Federal booking mugs FOIA concern

Colleagues,

Alan Miller at the Columbus Dispatch alerted me to a recent change of policy with the U.S. Marshal’s Service here in Ohio. See below:

Media: On December 12, 2012, the U.S. Marshals Service changed its policy of releasing booking photos of federal defendants. You can read their new policy here: http://www.usmarshals.gov/foia/policy/index.html

Fred Alverson
Law Enforcement Coordinator
U.S. Attorney's Office - Southern District of Ohio

I contacted Mark Caramanica, the Freedom of Information Director at The Reporters Committee for Freedom of the Press and he was kind enough to explain what is happening and why.

“The Marshals Service in Ohio previously had only released mug shots pursuant to federal FOIA requests originating from within the geographic jurisdiction of the U.S. Court of Appeals for the 6th Circuit (Michigan, Ohio, Kentucky, Tennessee) but not the rest of the U.S. That’s because of a lawsuit and a Sixth Circuit appeals court decision from 1996. Pursuant to that ruling, mug shots were released in the Sixth Circuit under FOIA when the following conditions were met: 1) the defendant had been publicly named; 2) the defendant had been indicted; 3) the defendant had made a court appearance in connection with the indictment; and 4) there was an ongoing trial or appeal related to the indictment. Once a release was made under FOIA to someone from the Sixth Circuit, the Marshals would then honor requests from anywhere for the same mug shot on the reasoning that it is already in the public domain.

In accordance with the December 12 memo, the Marshals have now decided to NOT release mug shots under FOIA from within the Sixth Circuit either.

This is in light of two recent federal appellate court decisions in the Tenth and Eleventh Circuits that held that a federal mug shot could be withheld from public disclosure under FOIA’s privacy protections.

The release of booking mugs from the Justice Department has always been a problem, their position has been that they will proactively release photos of people charged with crimes only if it benefits some law-enforcement purpose. They have also in the past narrowly followed the 1996 ruling referenced above but only in the Sixth Circuit. They would continue to deny requests from all other jurisdiction unless the mug shot was previously released under FOIA in the Sixth Circuit.

The new policy seems to simply be a unilateral refutation of the law in the Sixth Circuit.”

Everyone has this problem, it’s not just an Ohio issue and no doubt you have developed work arounds to get these images. It is counter to Ohio state and local laws — and the practices of all other law-enforcement agencies and courts most of us deal with everyday.

Mark has been working on this issue for some time and would like to document specific examples of FOIA requests where you could no longer get a federal booking mug shot in light of the December 12 memo. If you have other examples, not necessarily tied to the December memo, please let us know.

Take a moment to talk to your reporters and get examples ASAP to Mark or me. Mark is reachable directly at:

Mark R. Caramanica
FOI Director
The Reporters Committee for Freedom of the Press
mcaramanica@rcfp.org
(703) 807-2100

The Reporters Committee is drafting a protest letter to the Justice Department for sign-on by the media. I understand ASNE will sign and so will APME.

We need your help to get a change of policy.

Teri

Teri Hayt
Executive Editor
GateHouse Ohio Newspapers
The Repository | The Times-Reporter
The Independent | The Suburbanite
teri.hayt@cantonrep.com
(330) 580-8310