The Sixth Circuit Court of Appeals is preparing for an en banc hearing on whether there is a privacy interest inherent in mugshots, or whether they are simply public records that can be obtained with an FOIA request.

For the most part, mugshots have been considered public records. This has led to a shady mugshot-posting cottage industry, as well as an equally-shady mugshot-removal cottage industry.

Whatever success these businesses enjoy is mostly due to a flaw in public perception. Despite the nation’s justice system being built on the presumption of innocence, a large percentage of the population views “arrested and charged” as being no different than “found guilty.” (Federal law enforcement databases — used for background checks — reinforce this perception by entering arrested persons’ info when booking, but routinely failing to remove it when charges are dropped or the person is found innocent.)

Despite these flaws, there is a public interest in arrest and booking information, not necessarily because the public deserves to know every detail of every mundane arrest, but because findings to the contrary lend themselves to the burial of information that is definitely in the public’s interest, like information pertaining to the alleged criminal acts of their public servants.

The information under dispute in this case involves a federal law enforcement agency and the indictment of three local law enforcement officers.

The opinion by a three-judge panel of the 6th U.S. Circuit Court of Appeals ends a years-long battle led by the Detroit Free Press. The paper sued the Justice Department in 2013 after the Marshals Service denied a reporter’s request for booking photos of Detroit-area police officers indicted on federal charges.

The appeals court found there were privacy concerns yet to be addressed in the public release of booking photos and information, but ultimately upheld the lower court’s ruling ordering the DOJ to release the photos to the Detroit Free Press.

The en banc hearing will apparently consider these deeper issues. The presiding judge noted that a person’s “visage” (as it pertains to a mugshot) is not simply a neutral bit of information. It is, in the public’s mind, an expression of guilt.

The DOJ argued on behalf of the people its agencies arrest, noting the bizarre fact that a person’s privacy interests actually increase the “guiltier” they get.

DOJ attorney Frank admitted at the hearing that the existing delineation mystified him.

“A person innocent before the law has no privacy interest [in a mug shot release], but someone convicted and serving time has a privacy interest,” Frank said. “I can’t wrap my head around that.”

Citing rulings from sister circuits that run counter to the Sixth Circuit’s process, Frank explained that “all we are asking is for the court to find the privacy interest in mug shots is greater than non-trivial.”

As nice as it is to hear the DOJ express these concerns, its ultimate goal is to obtain the final say on the release of booking photos via a wholly internal process.

U.S. Circuit Judge David McKeague questioned the application of such a test, which would, in theory, balance an individual’s right to privacy against a public interest in obtaining the pictures.

Frank explained that an individual at the Justice Department would review each request for information to determine if there was a public interest in releasing the mug shots.

McKeague pressed the attorney: “The presumption is that [requesters] don’t get the pictures, correct?”

Frank agreed, but was quick to point out that in most cases, “there is no public interest.”

On the other side, the Detroit Free Press, through its lawyer, Herschel Fink, is arguing that the presumption that these records are public should remain intact. The paper is looking for a broader decision that will settle issues related to other government agencies, rather than leaving it limited to one wing of the DOJ and the arrests it performs.

Fink meanwhile contended that the current system is a perfect application of “checks and balances,” and also provides the individual with the “right to be forgotten” after court proceedings have concluded.

Fink also suggests the Sixth Circuit shouldn’t “kowtow” to contrary decisions reached by other circuits.

Fink’s involvement in this case isn’t surprising, considering he has represented the Detroit Free Press for twenty-two years. However, Fink has proven he’ll advocate for the First Amendment and the freedom of information only when it’s most convenient for him.

In this case, he’s pursuing his employer’s interest in obtaining booking information for its journalistic endeavours. But roughly a year ago, he was arguing against the release of law enforcement-related information — specifically, a list of Oakley, Michigan’s (pop. 300) 100 “pay-to-play” police officers. Fink is one of Oakley’s police officers and he stepped up to prevent the listfrom being made public, citing bullshit “terrorism” concerns.

In the undated email, Fink cited an Oct. 13 bulletin by the FBI and Department of Homeland Security that ISIS had called for attacks against law enforcement and government workers.

“To release identifying information about law enforcement personnel under such circumstances would not only result in damages against the Village, and everyone involved in such a release, it would likely be considered as having been done with malice, opening the door to punitive damages,” wrote Fink.

So, Fink may be fighting for the release of other people’s information but is much less willing to permit the release of his own. On the other side, the DOJ wants to consolidate its FOIA refusal powers. In the middle, there’s a presumption of guilt that’s nothing more than a common misperception, but often results in very real complications for those whose information has been released. Siding with members of the public who have been tarnished by this guilt-by-association also means siding with an agency seeking yet another way to withhold public records from the public. Siding with the Detroit Free Press means rubbing elbows with Herschel Fink’s hypocritical stance and allowing a whole host of dubious “entrepreneurs” to use public perception against private citizens to extract fees for the removal of booking info.

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