73 F.3d 93 (6th Cir. 1996), 94-1540, Detroit Free Press, Inc. v. Department of Justice

Docket Nº:94-1540, 94-1720.
Citation:73 F.3d 93
Party Name:DETROIT FREE PRESS, INC., Plaintiff-Appellee, v. DEPARTMENT OF JUSTICE, Defendant-Appellant.
Case Date:January 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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73 F.3d 93 (6th Cir. 1996)

DETROIT FREE PRESS, INC., Plaintiff-Appellee,


DEPARTMENT OF JUSTICE, Defendant-Appellant.

Nos. 94-1540, 94-1720.

United States Court of Appeals, Sixth Circuit

January 12, 1996

Argued Nov. 28, 1994.

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Herschel P. Fink (argued and briefed), Michael A. Gruskin, Honigman, Miller, Schwartz & Cohn, Detroit, MI, for Detroit Free Press, Inc.

Jane E. Kirtley (briefed), Reporter's Committee for Freedom of the Press, Washington, DC, for Reporter's Committee for Freedom of the Press.

Leonard Schaitman, U.S. Department of Justice, Appellate Staff, Civil Division, Washington, DC, L. Michael Wicks, Asst. U.S. Attorney, Office of the U.S. Attorney, Detroit, MI, John F. Daly (argued and briefed), U.S. Department of Justice, Appellate Staff, Civil Division, Washington, DC, for Department of Justice.

Before: JONES, NORRIS, and DAUGHTREY, Circuit Judges.

DAUGHTREY, J., delivered the opinion of the court, in which JONES, J., joined. NORRIS, J. (pp. 99-100), delivered a separate dissenting opinion.

DAUGHTREY, Circuit Judge.

Pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552, the

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Detroit Free Press sought the release of mug shots of eight named individuals who were then under indictment and awaiting trial on federal charges. The United States Marshals Service of the Department of Justice denied the request, however, on the ground that release of the photographs to the newspaper would invade the personal privacy interests of the criminal defendants. The Free Press then filed suit in federal district court pursuant to the provisions of 5 U.S.C. Sec. 552(a)(4)(B) to compel production of the mug shots. The district court granted the newspaper summary judgment and an award of attorneys' fees, after concluding that the information related by dissemination of the photographs did not involve a private matter. We now affirm the judgment of the district court to the extent that the FOIA request by the Free Press concerns ongoing criminal proceedings in which the names of the indicted suspects have already been made public and in which the arrestees have already made court appearances. We also affirm the district court's award of attorneys' fees to the newspaper.


"A district court reviews de novo an agency's decisions regarding a FOIA request. 5 U.S.C. Sec. 552(a)(4)(B)." Jones v. F.B.I., 41 F.3d 238, 242 (6th Cir.1994). Furthermore, in analyzing the propriety of the district court's grant of summary judgment in a FOIA proceeding, we also utilize a de novo standard of review. Id.


By enacting the FOIA, Congress evidenced "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Department of the Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (quoting S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)). Thus, "disclosure, not secrecy, is the dominant objective of the Act," and any exemptions to that disclosure requirement "must be narrowly construed." Id. at 361, 96 S.Ct. at 1599.

In rejecting the FOIA request of the Free Press for the mug shots at issue in this litigation, the Department of Justice appropriately focused upon the two statutory exemptions from disclosure contained in 5 U.S.C. Secs. 552(b)(6) and (b)(7)(C). Pursuant to these subsections, the general FOIA disclosure requirement does not extend to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," Sec. 552(b)(6), or to "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy," Sec. 552(b)(7)(C).

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In United States Dep't of Defense v. Federal Labor Relations Auth., --- U.S. ----, ---- n. 6, 114 S.Ct. 1006, 1013 n. 6, 127 L.Ed.2d 325 (1994), the Supreme Court recognized that "[e]xemption 7(C) is more protective of privacy than Exemption 6: the former provision applies to any disclosure that 'could reasonably be expected to constitute' an invasion of privacy that is 'unwarranted,' while the latter bars any disclosure that 'would constitute' an invasion of privacy that is 'clearly unwarranted.' " Thus, if information is not protected from FOIA disclosure under the privacy provisions of Sec. 552(b)(7)(C), that same information would also be subject to dissemination upon request under the less sweeping exemption of Sec. 552(b)(6). We focus our initial inquiry, therefore, upon the provisions of 5 U.S.C. Sec. 552(b)(7)(C).


To be exempt from disclosure under the privacy provision of Sec. (b)(7)(C), information must first be "compiled for law enforcement purposes." Second, the release of the information by the federal agency must reasonably be expected to constitute an invasion of personal privacy. Finally, that intrusion into private matters must be deemed "unwarranted" after balancing the need for protection of private information against the benefit to be obtained by disclosure of information concerning the workings of components of our federal government.

A. Compilation of Information for Law Enforcement Purposes

Despite the Free Press's protestations to the contrary, the mug shots of the federal indictees at issue in this controversy were "compiled for law enforcement purposes." In Jones v. F.B.I., 41 F.3d at 245-46, we recently endorsed a per se rule "under which records compiled by a law enforcement agency qualify as 'records compiled for law enforcement purposes' under FOIA." (Emphasis in original.) The threshold requirement for exemption from disclosure of information under Sec. 552(b)(7) is, therefore, met by the mug shots created by the United States Marshals Service in its law enforcement capacity.

B. Reasonable Categorization of Disclosure as Invasion of Personal Privacy

The Department of Justice also contends that the range of privacy interests protected by the exemptions from FOIA disclosure is "expansive" and that even the disclosure of the mug shots of individuals already arrested, indicted, and awaiting federal trial could reasonably be considered an invasion of personal privacy. In support of its position, the Department of Justice cites Supreme Court cases ruling that certain information in the possession of federal agencies cannot be released to the public without infringing unnecessarily upon personal privacy interests. The highlighted decisions, however, actually emphasize the public nature of the information sought in this case and distinguish this matter from the factual situations presented in those earlier disputes.

For example, in United States Dep't of Defense v. Federal Labor Relations Auth., the Court refused to order dissemination of the home addresses of federal agency employees, despite the fact that many of those addresses could also be obtained from readily-available, public telephone directories. --- U.S. at ----, 114 S.Ct. at 1016. Release of home addresses, however, would shed no light on the workings of the government and, as the Court has recognized, the "crystal clear" objective of the FOIA is "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Rose, 425 U.S. at 361, 96 S.Ct. at 1599. In contrast, the release of mug shots of individuals under indictment in federal court does not in this instance disclose personal information unrelated to the daily work of the Marshals Service. Rather, such disclosure provides documentary evidence of the designated responsibilities of an agency of the federal government and thus provides a factual scenario distinguishable from the controversy in Federal Labor Relations Auth..

Similarly, the Department of Justice's citation to United States Dep't of State v. Ray, 502 U.S. 164, 112 S.Ct. 541, 116

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L.Ed.2d 526 (1991), does not mandate a conclusion that the mug shots in this case should be exempted from disclosure to the media. In Ray, the Court ruled only that illegal Haitian immigrants had a statutory privacy interest in preventing the initial release of their names to the public, although the State Department had already published the fact that unnamed individuals had been interviewed by the agency. Likewise, had the Marshals Service in this case sought to withhold only names of targets of investigations whose identities had not previously been released, the result requested now by the Department of Justice might well have been required. The factual situation presented in this...

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