Times Picayune Pub. Corp. v. U.S. Dept. of Justice

Citation37 F.Supp.2d 472
Decision Date05 March 1999
Docket NumberNo. CIV. A. 98-3455.,CIV. A. 98-3455.
PartiesTHE TIMES PICAYUNE PUBLISHING CORP. v. THE UNITED STATES DEPARTMENT OF JUSTICE and the United States Marshals Service.
CourtU.S. District Court — Eastern District of Louisiana

James Richard Swanson, Correro, Fishman, Haygood, Phelps, Walmsley & Casteix, LLP, New Orleans, LA, for plaintiff.

Kathryn Weekley Becnel, U.S. Atty's. Office, New Orleans, LA, Anne L. Weismann, U.S. Dept. of Justice, Civ. Div., Washington, DC, Karyn A. Temple, U.S. Dept. of Justice, Civ. Div., Washington, DC, for defendants.

ORDER AND REASONS

BERRIGAN, District Judge.

This action stems from efforts by the Times Picayune Publishing Company ("Times-Picayune") to obtain the U.S. Marshals Service booking photograph ("mug shot") of Edward J. DeBartolo, Jr. Mr. DeBartolo is a well known businessman in connection with his ownership of the San Francisco Forty-Niners as well as other business dealings, some of them here in Louisiana. Most recently, he pleaded guilty to federal charges arising out of a criminal investigation of former Louisiana Governor, Edwin W. Edwards. On November 20, 1998, the Times Picayune filed this lawsuit under the Freedom of Information Act, 5 U.S.C. § 552, to compel the United States Marshals Service to release Mr. DeBartolo's mug shot. Presently before the Court are the parties' cross motions for summary judgment. Having considered the record, the memoranda of counsel, and the law, the Court finds in favor of the defendant.

I. BACKGROUND

The facts of this case are not contested. On October 6, 1998, Edward J. DeBartolo, Jr. pleaded guilty and was sentenced, in the United States District Court for the Middle District of Louisiana, on the charge of misprision of a felony in violation of 18 U.S.C. § 4. Within hours of the plea. U.S. Marshals Service personnel processed Mr. DeBartolo. This included taking his fingerprints and his mug shot. On October 9, 1998, the Times Picayune submitted a Freedom of Information Act ("FOIA") request to the Marshals Service seeking copies of the mug shot. The Marshals Service denied the request by letter dated October 22, 1998. It claimed that the mug shot was exempt from disclosure under 5 U.S.C. § 552(b)(7)(C). On October 21, 1998, the Times Picayune appealed the denial of its request to the Office of Information and Privacy (OIP) of the Department of Justice.1 OIP acknowledged receipt of the appeal by letter dated November 10, 1998. On November 20, 1998, after the time had expired for deeming its administrative remedies exhausted, 5 U.S.C. § 552(a)(6)(C), the Times Picayune filed this action in federal district court.

On January 15, 1999, the Times Picayune filed a Motion for Partial Summary Judgment to compel immediate disclosure of the mug shot. This was followed, on February 3, 1999, by defendant's own Motion for Summary Judgment. Because there are no genuine issues of material fact in dispute, resolution of this matter on these motions is appropriate.

II. DISCUSSION

A party is entitled to summary judgment if it establishes that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The parties agree that there are no issues as to the material facts of this case. Instead, the cross motions for summary judgment call upon the Court to resolve a single, legal issue: whether disclosure of Mr. DeBartolo's mug shot "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). If the answer is yes, then Exemption (7)(C) precludes disclosure. If the answer is no, disclosure is required.

The FOIA provides for the general disclosure by government agencies of their records upon request 5 U.S.C. § 552(a). The statute was designed to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Avondale Industries, Inc. v. National Labor Relations Board, 90 F.3d 955, 958 (5th Cir.1996), quoting United States Department of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 547, 116 L.Ed.2d 526 (1991). It embodies "a general philosophy of full agency disclosure." Halloran v. Veterans Administration, 874 F.2d 315, 318 (5th Cir.1989), quoting Department of the Air Force v. Rose, 425 U.S. 352, 360, 96 S.Ct. 1592, 1598-99, 48 L.Ed.2d 11 (1976). Recognizing that a mandatory policy of full disclosure of agency records under the FOIA would not be warranted in every circumstance, however, Congress exempted certain categories of documents from disclosure. 5 U.S.C. § 552(b)(1)-(9); Halloran, 874 F.2d at 318-19. An agency that withholds information pursuant to an exemption carries the burden of proving that the exemption applies, and the district court reviews this determination de novo. 5 U.S.C. § 552(a)(4)(B); United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 1472, 103 L.Ed.2d 774 (1989) ("Reporters Committee").

The exemption relevant to this matter extends to:

(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ...

(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy ....

5 U.S.C. § 552(b)(7)(C) ("FOIA Exemption 7(C)"). For the exemption to apply, the information requested must have been compiled "for law enforcement purposes." If that threshold is met, then the specific privacy interests implicated by disclosure of the information must be identified and evaluated. Assuming a privacy interest is found to be implicated, the next step is to identify and evaluate the particular public interests that may be served by disclosure. Finally the specific privacy interests and the particular public interests are weighed to determine if the "invasion" of the privacy interests is "unwarranted." Halloran, 874 F.2d at 319. As will be discussed below, the Marshals Service has met its burden of establishing that the FOIA Exemption 7(C) applies.

A. Was Mr. DeBartolo's Mug Shot Taken "for Law Enforcement Purposes"?

In a series of footnotes, the Times Picayune suggests that the defendant may not be able to satisfy the threshold requirement for exemption from disclosure, namely that the mug shot is a record "compiled for law enforcement purposes." Pl's Mem., Jan. 15, 1999, at 8 n. 8; Pl's Mem., Feb. 9, 1999, at 2 n. 1. The plaintiff argues that the Marshals Service took the mug shot after Mr. DeBartolo had already pleaded guilty to all charges and was sentenced. Therefore, "it has no relationship to the enforcement of laws," having been taken instead "for administrative purposes." Pl's Mem., Jan. 15, 1999, at 2 n. 1. The defendant aptly responds, "administration of what[?]." Def's Mem., Feb. 12, 1999, at 1. The Marshals Service, an undisputed law enforcement agency, took Mr. DeBartolo's mug shot for the purpose of fulfilling its legal mandate to facilitate the enforcement of federal laws through processing of individuals charged with federal crimes. See 28 C.F.R. § 0.111(j) (the agency's legal duties include "... processing ... of prisoners held in the custody of a marshal ..."). Clearly this qualifies as "law enforcement purposes." See Detroit Free Press Inc. v. Department of Justice, 73 F.3d 93, 96 (6th Cir.1996) (finding that mug shots of federal indictees were compiled for law enforcement purposes); Jimenez v. FBI, 938 F.Supp. 21, 28 (D.D.C. 1996) (finding valid law enforcement purpose under FOIA where Marshals Service compiled documents in connection with receipt and processing of individual within Marshals Service custody). Defendant has satisfied the first element of the FOIA Exemption 7(C).

B. Could Release of Mr. DeBartolo's Mug Shot be "Reasonably Expected to Constitute an Invasion of Personal Privacy"?

The Times Picayune contends that Mr. DeBartolo has no protectable privacy interest in his mug shot. It argues that Mr. DeBartolo is a well-known person and that his photograph has been publicly shown through the media on numerous occasions, ergo disclosure of another photograph — the mug shot — could not be a privacy invasion. Additionally, the Times-Picayune argues that Exemption 7(C) does not apply to mug shots at all.

As part of its authority, the plaintiff cites several cases holding that there is no constitutional or common law right of privacy to a mug shot, as well as cases interpreting state Freedom of Information Act statutes. See, e.g., Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976); Sorrentino v. City of Philadelphia, 1997 WL 597990, *7 (E.D.Pa.1997); Detroit Free Press v. Oakland County Sheriff, 164 Mich.App. 656, 418 N.W.2d 124, 127 (Mich.Ct.App.1987); Pemberton v. Bethlehem Steel Corp., 66 Md.App. 133, 502 A.2d 1101, 1119 (Md. App.1986); Frith v. Associated Press, 176 F.Supp. 671, 673-76 (E.D.S.C.1959). These cases readily can be distinguished. The right of privacy formulated under the Constitution and the common law are different from the privacy interests protected under the FOIA. Reporters Committee, 489 U.S. at 763 n. 13, 109 S.Ct. at 1476 n. 13. Obviously, a state court's interpretation of a state's FOIA also is irrelevant to the meaning of the federal statute.

In order to determine whether Mr. DeBartolo has a privacy interest in a mug shot for purposes of the FOIA Exemption 7(C), the Court must turn to the definition of "privacy interests" as encompassed by the Act and as interpreted by the binding federal case law.

The Times Picayune relies predominantly on the Sixth Circuit decision of Detroit Free Press, Inc. v. Department of Justice, 73 F.3d 93 (6th Cir.1996). which did in fact conclude that the release of mug shots in that case did not constitute an invasion of personal privacy under Exemption 7(C). For the following reasons, this Court disagrees with that decision as being contrary to United States Supreme Court jurisprudence...

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