World Publ'g Co. v. United States Dep't of Justice

• Citation: 672 F.3d 825,40 Media L. Rep. 1385
• Decision Date: 22 February 2012
• Docket Number: No. 11–5063.,11–5063.
• Parties: WORLD PUBLISHING COMPANY, Plaintiff–Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, and its subordinate bureau, United States Marshals Service, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

40 Media L. Rep. 1385

672 F.3d 825

WORLD PUBLISHING COMPANY, Plaintiff–Appellant,

v.UNITED STATES DEPARTMENT OF JUSTICE, and its subordinate bureau, United States Marshals Service, Defendant–Appellee.

No. 11–5063.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 2012.

J. Schaad Titus of Titus, Hillis, Reynolds, Love, Dickman & McCalmon, Tulsa, OK, for Plaintiff–Appellant.

Steve Frank, (Tony West, Assistant Attorney General, Thomas Scott Woodward, United States Attorney, and Leonard Schaitman of Department of Justice, with him on the brief), Washington, D.C., for Defendant–Appellee.

Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff–Appellant, World Publishing Company, publisher of the Tulsa World newspaper (“Tulsa World”), appeals from the district court's judgment in favor of Defendant–Appellee, the United States Department of Justice (“DOJ” or “government”). Resolving various pretrial motions including cross-motions for summary judgment, the district court held that Tulsa World had standing, denied it discovery, and concluded that the United States Marshals Service (“USMS”) properly withheld six booking photographs (“mug shots”) requested by Tulsa World. World Pub. Co. v. U.S. Dep't of Justice, No. 09–CV–574–TCK–TLW, 2011 WL 1238383, at *18 (N.D.Okla. Mar. 28, 2011). Tulsa World requested the photos under the Freedom of Information Act (“FOIA”), and the government relied upon Exemption 7(C) to withhold them. On appeal, Tulsa World argues that the district court erred in granting the government's motion for summary judgment and denying it discovery so that it might better respond to that motion. Jurisdiction is proper pursuant to 28 U.S.C. § 1291 and we affirm.

Background

On August 26, 2008, Tulsa World sent a FOIA request to the USMS seeking the booking photos of six pretrial detainees. See 5 U.S.C. § 552; Aplt.App. 15–16. The USMS denied the FOIA request, citing Exemption 7(C). 5 U.S.C. § 552(b)(7)(C); Aplt.App. 17. Tulsa World appealed the decision, and the DOJ affirmed the denial. See Aplt.App. 99. Subsequently, Tulsa World brought this action against the DOJ and the USMS. Tulsa World timely appeals from the district court's judgment in favor of the government.

Discussion

Given undisputed facts, we review de novo the district court's legal conclusion that requested records are exempt from disclosure under the FOIA. Prison Legal News v. Exec. Office for the U.S. Attorneys, 628 F.3d 1243, 1247 (10th Cir.2011). Congress enacted the FOIA to “open agency action to the light of public scrutiny.” Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (internal citations omitted). There are certain instances, however, when Congress has deemed disclosure inappropriate; these exceptions are covered by 5 U.S.C. § 552(b). The government bears the burden of demonstrating that the request falls into one of the enumerated exceptions, and we construe narrowly in favor of disclosure. See Prison Legal News, 628 F.3d at 1247.

A. The Photos are Exempt from FOIA Disclosure Based on Exemption 7(C)

Exemption 7(C) exempts “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....” 5 U.S.C. § 552(b)(7)(C). Thus, based on this statute, a three-part test has emerged to determine if information is covered by Exemption 7(C). A court must (1) determine if the information was gathered for a law enforcement purpose; (2) determine whether there is a personal privacy interest at stake; and if there is (3) balance the privacy interest against the public interest in disclosure. See Prison Legal News, 628 F.3d at 1247–48; U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Here, it is undisputed that the photos were taken for a “law enforcement purpose.” See World Pub. Co., 2011 WL 1238383, at *13. Tulsa World challenges the district court's resolution of elements (2) and (3) of the above test. These inquiries encompass the first three issues on appeal, and will be discussed in turn.

1. Detainees Have Some Privacy Interest in Booking Photos

In Reporters Committee, the Supreme Court held that the 7(C) Exemption prevented disclosure of FBI “rap sheets”—or criminal history summaries. 489 U.S. at 780, 109 S.Ct. 1468. The Court determined that “[a]lthough much rap-sheet information is a matter of public record, the availability and dissemination of the actual rap sheet to the public is limited.” Id. at 753, 109 S.Ct. 1468. The Court rejected the argument that because the events summarized in rap sheets had been previously disclosed to the public, there was a diminished privacy interest in the rap sheet. Id. at 762–63, 109 S.Ct. 1468. The Court also found that the pattern of authorized rap sheet disclosure was restricted to “the use of a particular person or group or class of persons”, further supporting the notion that individuals have a privacy interest in their rap sheets. Id. at 765, 109 S.Ct. 1468 (internal quotations omitted). It continued: “the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information.” Id. at 770, 109 S.Ct. 1468 (internal quotations omitted). After balancing this privacy interest against the public's interest in disclosure—step (3) in the test—the Court held that Exemption 7(C) applied to FBI rap sheets, despite the fact that the individuals involved had been convicted.

In Prison Legal News, this court applied Exemption 7(C) to autopsy photographs and a video taken of the aftermath of a prison murder, notwithstanding that these items were shown to a jury in open court and to the public audience present at trial. The court concluded that the privacy interests contained in Exemption 7(C) remained intact, rejecting the application of the “public domain doctrine.” 628 F.3d at 1252–53.

Likewise, a federal district court has held that the subject of a booking photo has a protectable privacy interest under the FOIA. Times Picayune Pub. Corp. v. U.S. Dep't of Justice, 37 F.Supp.2d 472, 477 (E.D.La.1999). There, the subject was Edward J. DeBartolo, a well-known businessman and owner of the San Francisco Forty–Niners. The court stated:

Contrary to the assertion of the Times Picayune, Mr. Debartolo's mug shot is more than just another photograph of a person. Mug shots in general are notorious for their visual association of the person with criminal activity.

Whether because of the unpleasant circumstances of the event or because of the equipment used, mug shots generally disclose unflattering facial expressions. They include front and profile shots, a backdrop with lines showing height, and, arguably most humiliating of all, a sign under the accused's face with a unique Marshals Service criminal identification number.

Id. (emphasis added). The court continued, “[a]s in the cliché, a picture is worth a thousand words. For that reason, a mug shot's stigmatizing effect can last well beyond the actual criminal proceedings.... A mug shot preserves, in its unique and visually powerful way, the subject individual's brush with the law for posterity.” Id. (emphasis added). Following the Supreme Court's reasoning in Reporters Committee, the court reiterated that a booking photo is intended for use only by a specific and small group of people—further reason for a court to protect an individual's privacy interest in that photo. Id. at 477–78.

a. Circuit Split

The Sixth Circuit held, to the contrary, that disclosure of a booking photo “in an ongoing criminal proceeding, in which the names of the defendants have already been divulged and in which the defendants themselves have already appeared in open court” does not implicate privacy rights. Detroit Free Press, Inc. v. Dep't of Justice, 73 F.3d 93, 97 (6th Cir.1996). The court did not address whether disclosure might invade privacy given “dismissed charges, acquittals, or completed criminal proceedings.” Id. The court distinguished exempt rap sheets ( Reporters Committee ) by noting that they were not relevant to any ongoing prosecution at the time of requested disclosure and that

the very nature of rap sheets demands that they be accorded a greater degree of privacy and protection from public scrutiny. Such documents are not single pieces of information but, rather, compilations of many facts that may not otherwise be readily available from a single source. Thus, rap sheets both disclose information that extends beyond a particular, ongoing proceeding and recreate information that, under other circumstances, may have been lost or forgotten.

73 F.3d at 97. The Sixth Circuit is the only circuit to conclude that there is no privacy interest in a booking photo given ongoing and public criminal proceedings. The court was undeterred by the negative impression a booking photo conveys: “the personal privacy of an individual is not necessarily invaded simply because that person suffers ridicule or embarrassment from the disclosure of information in the possession of government agencies.” Id. at 97.

Conversely, the Eleventh Circuit held that booking photos were exempt from disclosure pursuant to Exception 7(C). In that case, a freelance reporter submitted a FOIA request for the booking photo of an individual who pleaded guilty to securities fraud. Karantsalis v. U.S. Dep't of Justice, 635 F.3d 497, 499 (11th Cir.2011) (per curiam), cert. denied, ––– U.S. ––––, 132 S.Ct. 1141, 181 L.Ed.2d 1017 (2012). Addressing the personal privacy interest—the second element in deciding the applicability of the Section 7(C) exemption—the court stated that “mug shots carry a clear implication of criminal activity.” Id. at 503 (internal quotations omitted). The court continued:

a booking...