Detroit Free Press, Inc. v. U.S. Dep't of Justice, Case No. 13-12939

• Decision Date: 21 April 2014
• Docket Number: Case No. 13-12939
• Parties: DETROIT FREE PRESS, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

DETROIT FREE PRESS, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Case No. 13-12939

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date: April 21, 2014

Hon. Patrick J. Duggan

OPINION AND ORDER

The present dispute involves Plaintiff Detroit Free Press's ("Free Press") January 25, 2013 request for booking photographs (colloquially referred to as "mug shots") of four individuals then under indictment and awaiting trial on federal drug and public corruption charges in the United States District Court for the Eastern District of Michigan. The request was made pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. At the time of the request, the four individuals - all police officers with the City of Highland Park, Michigan - had been indicted, their names had been made public, they had appeared in open court, and they were being actively prosecuted by the United States Attorney's Office. The United States Marshal Service ("USMS"), a subordinate law enforcement bureau within Defendant Department of Justice ("DOJ"), denied the request, citingthe FOIA's Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), despite controlling Sixth Circuit precedent holding that the subjects of the booking photographs do not have a privacy interest warranting nondisclosure.

After exhausting administrative remedies, Free Press filed a three-count complaint containing the following causes of action against DOJ: Count I - Violation of the FOIA; Count II - Contempt; and Count III - Declaratory Judgment. (Am. Compl.) The parties subsequently filed cross motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 and the motions have been fully briefed. Having determined that that oral argument would not significantly aid the decisional process, the Court dispensed with oral argument pursuant to Local Rule 7.1(f)(2). For the reasons stated herein, the Court grants summary judgment in favor of Free Press on Counts I and III but grants summary judgment in DOJ's favor on Count II.

I. BACKGROUND

A. Legal Framework

1. Statutory

a. The Freedom of Information Act ("FOIA")

"The statute known as the FOIA is actually a part of the Administrative Procedure Act (APA). Section 3 of the APA as enacted in 1946 gave agencies broad discretion concerning the publication of governmental records." U.S. Dep'tof Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754, 109 S. Ct. 1468, 1472 (1989). Congress subsequently amended section 3 in furtherance of a stated intention to promote "'a general philosophy of full agency disclosure[.]'" Id. (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 360, 96 S. Ct. 1592, 1599 (1976) (quoting S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965))); John Doe Agency v. John Doe Corp., 493 U.S. 146, 151, 110 S. Ct. 471, 475 (1989) (describing public access to government documents as "the fundamental principle . . . that animates the FOIA[]"); CIA v. Sims, 471 U.S. 159, 166-67, 105 S. Ct. 1881, 1886 (1985) ("The mandate of the FOIA calls for broad disclosure of Government records."); Rose, 425 U.S. at 361, 96 S. Ct. at 1599 (explaining that Congress enacted the FOIA to "open agency action to the light of public scrutiny[]") (quotation omitted).

Despite the principle of transparency animating the FOIA, there are certain instances in which Congress has deemed disclosure inappropriate. Sims, 471 U.S. at 166-67, 105 S. Ct. at 1886 ("Congress recognized, however, that public disclosure is not always in the public interest[.]"). Accordingly, in amending the FOIA, "Congress exempted nine categories of documents from the FOIA's broad disclosure requirements." Reporters Comm., 489 U.S. at 755, 109 S. Ct. at 1472.These exemptions are delineated in 5 U.S.C. § 552(b).¹ One of those exemptions is relevant to this case: Exemption 7(C).²

Exemption 7(C) exempts from disclosure "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 toconstitute an unwarranted invasion of personal privacy."³ 5 U.S.C. § 552(b)(7)(C). DOJ denied the request giving rise to the instant suit on the basis that the disclosure of the booking photographs "could reasonably be expected to constitute an unwarranted invasion of personal privacy." (FOIA Denial, Def.'s Mot. Ex. 20.) As explained more fully below, however, despite USMS's policy regarding the disclosure of booking photographs, the United States Court of Appeals for the Sixth Circuit has explicitly rejected the notion that Exemption 7(C) applies in circumstances such as those existing in this case.

b. The Privacy Act

The Privacy Act of 1974, codified at 5 U.S.C. § 552a, "delineates duties and responsibilities for federal agencies that collect, store, and disseminate personal information about individuals." Butler v. U.S. Dep't of Justice, 368 F. Supp. 2d 776, 782 (E.D. Mich. 2005). It prohibits federal agencies from disclosing personal information about individuals that is maintained in systems of records except pursuant to written authorization from the individual or if the disclosure fits within one of the statutory exceptions. Importantly, it is not a violation of the Privacy Act to disclose documents that must be released under the FOIA. 5 U.S.C. §552a(b)(2). As will become clear in reading this Opinion and Order, the Privacy Act is relevant because DOJ argues that if, for example, USMS were to disclose the booking photographs in one of the two federal circuits that have held that such photographs are exempted from disclosure pursuant to Exemption 7(C), USMS's disclosure would be in violation of the Privacy Act. (Def.'s Br. 6 ("The effect of the Privacy Act is to bar discretionary release of [] information under the FOIA, limiting the disclosure of personal information to the public to what is mandatory.").)

B. Factual and Procedural Background

1. The Parties

Plaintiff Detroit Free Press ("Free Press") is a Michigan corporation that publishes the Detroit Free Press, a newspaper of general circulation in the State of Michigan. Defendant United States Department of Justice ("DOJ") is a cabinet-level department within the Executive Branch of the United States Government. The United States Marshal Service ("USMS") is a law enforcement bureau within the DOJ. 28 U.S.C. § 561(a) ("There is hereby established a United States Marshals Service as a bureau within the Department of Justice under the authority and direction of the Attorney General.").

2. Sixth Circuit Precedent

In 1993, Free Press submitted a FOIA request for the booking photographs of eight individuals who were then under indictment and awaiting trial on federal charges. USMS, citing Exemption 7(C), denied the request. Subsequently, Free Press filed a lawsuit challenging the nondisclosure. Upon concluding that the information divulged by dissemination of the photographs did not implicate privacy interests, Judge Anna Diggs Taylor of the Eastern District of Michigan granted the newspaper summary judgment and awarded attorney's fees to Free Press. Detroit Free Press v. Dep't of Justice, No. 93-74692 (E.D. Mich. Apr. 29, 1994) (Taylor, J.) (Order attach. Def.'s Mot. Ex. C). DOJ appealed and, in a decision accompanied by a vigorous dissent, a panel of the Sixth Circuit affirmed. Detroit Free Press v. Dep't of Justice, 73 F.3d 93 (6th Cir. 1996) (hereinafter, "Free Press I"). The Sixth Circuit denied DOJ's request for rehearing and rehearing en banc and DOJ declined to seek certiorari in the Supreme Court.

The court began its analysis by setting forth the prerequisites to application of Exemption 7(C):

To be exempt from disclosure under the privacy provision of § (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.

Id. at 96 (emphasis in original). Citing a per se rule within the circuit, the Free Press I panel quickly dismissed any notion that the booking photographs sought by the newspaper were not "compiled for law enforcement purposes." Id. (citing Jones v. FBI, 41 F.3d 238, 245-46 (adopting rule enunciated in three sister circuits "under which records compiled by a law enforcement agency qualify as 'records compiled for law enforcement purposes' under FOIA[]") (emphasis in original). Because USMS created the booking photographs after arresting the subjects as a routine part of the process of taking them into federal custody, the eight photographs sought easily satisfied the first requirement. See 28 CFR § 0.111(j) (including the "[r]eceipt, processing and transportation of prisoners held in the custody of a marshal" in a list of USMS activities).

With respect to the second element, the Sixth Circuit concluded that the release of booking photographs "could not reasonably be expected to constitute an invasion of personal privacy[]" "to the extent that the FOIA request . . . 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." Id. at 97, 95.

Having determined that the release of the booking photographs at issue did not result in an invasion of any personal privacy interest, the majority opinion did not conduct a balancing analysis as part of its holding. It did, however, address indicta the possibility that a "significant public interest in the disclosure of the mug shots of the individuals awaiting trial could, nevertheless, justify the release of that information to the public." Id. at 97-98 (emphasis in original...