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Public access to federal mugshots at risk

While many states allow public access to photos taken during a criminal booking procedure, the U.S. Marshall’s service in almost every federal circuit refuse to provide them, citing a FOIA exemption intended to protect subjects’ personal privacy rights. The only exception is the Sixth Federal Circuit (i.e., Kentucky, Michigan, Ohio and Tennessee), where the Marshall’s service has given mugshots to requesters for over 15 years.

While many states allow public access to photos taken during a criminal booking procedure, the U.S. Marshall’s service in almost every federal circuit refuse to provide them, citing a FOIA exemption intended to protect subjects’ personal privacy rights. The only exception is the Sixth Federal Circuit (i.e., Kentucky, Michigan, Ohio and Tennessee), where the Marshall’s service has given mugshots to requesters for over 15 years.

The schism is the result of conflicting court rulings.  In a case brought by the Detroit Free Press in 1996, the U.S. Court of Appeals for the Sixth Circuit ruled that the public’s right to know outweighs an individual’s privacy interest in their mugshot when the individual has already been indicted, made court appearances, and been publicly identified in connection with an ongoing criminal prosecution. The Courts of Appeals in the Tenth and Eleventh Circuits subsequently came down on the opposite side of the issue, and the Marshall’s office in 11 of the 12 federal circuits cite these rulings in denying mugshot requests.

As a practical matter, however, reporters and other savvy requesters have still been able to get their hands on federal mugshots via surrogates who live within the Sixth Circuit. As long as the request comes through one of their district offices in the Circuit, the Marshall’s service has regularly provided access to the photos regardless of where the arrest occurred.

That informal workaround might be coming to an end as the U.S. Supreme Court decides whether to hear the case of Karantsalis v. U.S. Department of Justice.  Theodore Karantsalis, a freelance journalist, requested the mugshot of a felon who was convicted in Florida. The Marshall’s service rejected his request and the decision was upheld by a U.S. District Court in Florida and the U.S. Court of Appeals for the 11th Circuit. Instead of turning to a surrogate in the Sixth Circuit to file a request, Karantsalis appealed to the Supreme Court. ASNE is likely to participate as an amicus supporting Karantsalis if the Court decides to hear his case.

But it appears that Karantsalis’ appeal has already disrupted the uneasy status quo. In its brief opposing his request (see footnote 5) the government indicated that it may begin denying mugshot requests made in the Sixth Circuit, or ask the Sixth Circuit Court of Appeals to revisit its 1996 decision. ASNE joined a letter sent today to the Marshall’s Service asking for a clarification of its intentions and opposing any extra-legal changes in how it processes mugshot requests in the Sixth Circuit

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