While we’ve already told you about our work on the SAVE Act and possible changes to the federal FOIA, our work isn’t limited to the Legislative Branch. AAN continues to join amicus briefs filed in courts around the country to protect and advance your rights. Most recently, we joined a brief before the United States Court of Appeals in a case involving access to federal mugshots.

The brief supports the Detroit Free Press’ efforts to access federal mugshots from the United States Marshalls Service (USMS). This a fight with roots dating back years, if not decades. The USMS consistently has argued that it does not have to release mugshots requested via the federal FOIA because there is a privacy right which exists under Exemption 7(C) – even when the investigation or prosecution in question has ended. Several federal courts of appeal have sided with the USMS but there was one who did not: the United States Court of Appeals for the 6th Circuit, which covers Kentucky, Michigan, Ohio and Tennessee. This led to an interesting “work around” where people outside those states would request or pay someone inside those states to make the request for them. That generally worked because people were still getting federal mugshots, albeit jumping through a hoop or two to get them from within the 6th Circuit.

And then the government reversed course – in a bad way. The USMS announced about 2 years ago that it would begin denying requests for mugshots that were filed within the 6th Circuit. It has defended this new position in court against a lawsuit filed by the Freep in the Eastern District of Michigan. The newspaper won, with the District Court ordering the USMS to release the photos. The USMS has appealed.

We joined a brief drafted by the Reporters Committee for Freedom of the Press which makes two basic arguments: (1) there is no personal privacy interest in a mugshot that allows the government to withhold it and (2) the public interest in overseeing the administration of justice far outweighs any purported privacy interest implicated by mugshots. Each argument rests on the fact that the federal FOIA is “broadly conceived” and exemptions are to be narrowly construed. With regard to this Exemption 7(c), that means the exemption can only apply if: (1) the record was compiled for law enforcement purposes, (2) it is reasonably expected to constitute an invasion of personal privacy and (3) it must create an intrusion that is “unwarranted” when one balances that privacy interest against the public interest. However, the brief concedes that mugshots are compiled for law enforcement purposes; hence the brief only focuses on the 2nd and 3rd arguments above.

Specifically, we show why mugshots cannot reasonably be expected to constitute an invasion of personal privacy. Not only has the 6th Circuit already reached this conclusion (and should feel bound to that result again) but mugshots have traditionally been open to the public in the past. It’s also the case in most of the states around the country now (at least 40 state laws created a presumptive right of access to mugshots). Finally the Justice Department itself releases mugshots – when it’s convenient to or furthers the government’s interests (examples include press releases announcing capture of fugitives on the “Most Wanted List”, the mugshots of famous people on the FBI website including the Unibomber and Patty Hearst, the ATF’s posting of mugshots of famous terrorist bombers like Eric Rudolph and others, and the DEA’s posting of mugshots of famous drug kingpins and traffickers including Carlos Lehder and former Panamanian President Manuel Noriega).

But, even assuming there is a privacy interest in mugshots, that interest is strongly outweighed by the public interest in their disclosure, which ranges from already identified benefits such as helping the government apprehend fugitives or determining whether persons were wrongly detained to informing the public about the workings of the criminal justice process as a whole. The brief explains how reporters assist in both of these processes and simply why reporters need the mugshots to tell the stories they tell. In addition to their use in ongoing stories, mugshots have significant historical value, the brief identifies the many mugshots that “have come to represent crucial moments in American history” such as Emma Goldman, Charles Ponzi, Al Capone, John Dillinger, Bruno Hauptmann, Hermann Goering, Julius and Ethel Rosenberg, Rosa Parks, Martin Luther King, Jr., Malcolm X, Janis Joplin, Jane Fonda, Lee Harvey, Oswald, Sirhan Sirhan, members of The Weathermen, John Gotti, O.J. Simpson, Perry Smith, and Richard Hickock (all of which are appended in the version of the brief that will eventually be filed).

This is a very big case. If we lose, then nobody will be able to obtain any federal mugshots at all. If we win (and, I suppose, if we lose), the case could be headed to the Supreme Court. Either way, this is clearly a case of national importance.