                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 15a0183p.06

                   UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


 DETROIT FREE PRESS, INC.,                               ┐
              Plaintiff-Appellee,                        │
                                                         │
                                                         │      No. 14-1670
        v.                                               │
                                                          >
                                                         │
 UNITED STATES DEPARTMENT OF JUSTICE,                    │
             Defendant-Appellant.                        │
                                                         ┘
                         Appeal from the United States District Court
                        for the Eastern District of Michigan at Detroit
                    No. 2:13-cv-12939—Patrick J. Duggan, District Judge.
                                     Argued: April 22, 2015
                             Decided and Filed: August 12, 2015

                   Before: GUY, COOK, and McKEAGUE, Circuit Judges.

                                      _________________

                                          COUNSEL


ARGUED: Steve Frank, U.S. DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant.
Herschel P. Fink, DETROIT FREE PRESS, INC., Detroit, Michigan, for Appellee. ON BRIEF:
Steve Frank, U.S. DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Herschel P.
Fink, DETROIT FREE PRESS, INC., Detroit, Michigan, Paul R. McAdoo, McADOO LAW
PLLC, Ypsilanti, Michigan, for Appellee. Bruce D. Brown, THE REPORTERS COMMITTEE
FOR FREEDOM OF THE PRESS, Washington, D.C., for Amici Curiae.

                                      _________________

                                           OPINION
                                      _________________

       PER CURIAM. Detroit Free Press v. United States Department of Justice, 73 F.3d 93
(1996) (Free Press I), held that the Freedom of Information Act requires government agencies to




                                                1
14-1670         Detroit Free Press, Inc. v. USDOJ                              Page 2

honor requests for the booking photographs of criminal defendants who have appeared in court
during ongoing proceedings. Despite that holding, the United States Marshals Service denied the
Free Press’s 2012 request for the booking photographs of Detroit-area police officers indicted on
federal charges. The district court, bound by Free Press I, granted summary judgment to the
newspaper in the ensuing lawsuit. We are similarly constrained and therefore AFFIRM, but we
urge the full court to reconsider the merits of Free Press I.

                                                  I.

       Congress enacted the Freedom of Information Act (FOIA) in 1966 to “implement a
general philosophy of full agency disclosure” of government records. U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 754 (1989). The statute requires federal
agencies to make their opinions and policy statements generally available to the public and to
make other records “promptly available” to any person who requests them.                5 U.S.C.
§ 552(a)(2)–(3). An agency may withhold or redact information that falls within one of nine
statutory exemptions.    Id. § 552(b).     Exemption 7(C), the provision at issue here, permits
agencies to refuse requests for “records or information compiled for law enforcement purposes”
if public release “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” Id. § 552(b)(7)(C).

       Free Press I held that Exemption 7(C) did not apply to booking photographs created by
federal law-enforcement agencies.        Specifically, the court held that “no privacy rights are
implicated” by releasing booking photographs “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.” Free Press I, 73 F.3d at 97. It reasoned that booking
photographs of individuals who have “already been identified by name by the federal
government” and whose “visages ha[ve] already been revealed during prior judicial
appearances” reveal “[n]o new information that . . . indictees would not wish to divulge” to the
public. Id. The court expressly declined to address whether releasing the images following
acquittals, dismissals, or convictions would implicate privacy interests.      Id.   Judge Norris
dissented, maintaining that a booking photograph conveys “much more than the appearance of
14-1670              Detroit Free Press, Inc. v. USDOJ                          Page 3

the pictured individual,” including his “expression at a humiliating moment.” Id. at 99 (Norris,
J., dissenting).

        In the wake of Free Press I, the United States Marshals Service adopted a “bifurcated
policy” for releasing booking photographs. It required agency offices located within the Sixth
Circuit’s jurisdiction to honor all requests for photographs in their possession, and mandated that
offices in other jurisdictions release photographs to residents of the four states within the Sixth
Circuit. The government suggests that national media organizations exploited that policy by
employing “straw man” requesters in Michigan, Ohio, Kentucky, and Tennessee to obtain
records maintained in other jurisdictions.

        For fifteen years, Free Press I was the only circuit-level decision to address whether
Exemption 7(C) applied to booking photographs. But the Tenth and Eleventh Circuits recently
considered the issue, and both disagreed with this court’s analysis. See World Publ’g Co. v.
Dep’t of Justice, 672 F.3d 825 (10th Cir. 2012); Karantsalis v. Dep’t of Justice, 635 F.3d 497
(11th Cir. 2011) (per curiam) (adopting district court opinion), cert. denied, 132 S. Ct. 1141
(2012). The United States Marshals Service abandoned its bifurcated policy in 2012 in light of
the circuit split.

        The Free Press submitted the FOIA request at issue here after the policy’s demise. When
the Deputy U.S. Marshal for the Eastern District of Michigan denied the request, the Free Press
sued, the district court granted the newspaper summary judgment, and the government timely
appealed.

                                                   II.

        Although we must follow Free Press I, see 6th Cir. R. 32.1(b), we urge the full court to
reconsider whether Exemption 7(C) applies to booking photographs. In particular, we question
the panel’s conclusion that defendants have no interest in preventing the public release of their
booking photographs during ongoing criminal proceedings. See Free Press I, 73 F.3d at 97.

        Exemption 7(C) protects a non-trivial privacy interest in keeping “personal facts away
from the public eye,” Reporters Comm., 489 U.S. at 769, particularly facts that may embarrass,
humiliate, or otherwise cause mental or emotional anguish to private citizens, see Nat’l Archives
14-1670           Detroit Free Press, Inc. v. USDOJ                             Page 4

& Records Admin. v. Favish, 541 U.S. 157, 166–71 (2004) (families have a privacy interest in
photographs of a relative’s death scene); Rimmer v. Holder, 700 F.3d 246, 257 (6th Cir. 2012)
(suspects and third parties have a privacy interest in avoiding embarrassment, humiliation, or
danger that could result from releasing records of an investigation); Assoc. Press v. U.S. Dep’t of
Def., 554 F.3d 274, 287–88 (2d Cir. 2009) (abused detainees and their abusers both possess
privacy interests in avoiding embarrassment and humiliation resulting from the public release of
records detailing abuse). Booking photographs convey the sort of potentially embarrassing or
harmful information protected by the exemption: they capture how an individual appeared at a
particularly humiliating moment immediately after being taken into federal custody.            See
Karantsalis, 635 F.3d at 503; Free Press I, 73 F.3d at 99 (Norris, J., dissenting); Times Picayune
Publ’g Corp. v. U.S. Dep’t of Justice, 37 F. Supp. 2d 472, 477 (E.D. La. 1999). Such images
convey an “unmistakable badge of criminality” and, therefore, provide more information to the
public than a person’s mere appearance. United States v. Irorere, 69 F. App’x 231, 235 (6th Cir.
2003); cf. N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 920 F.2d 1002, 1006 (D.C. Cir.
1990) (en banc) (explaining that an audio recording conveys more than a verbatim transcript of
the recording, because “information recorded through the capture of a person’s voice is distinct
and in addition to the information contained in the words themselves”).

       A criminal defendant’s privacy interest in his booking photographs persists even if the
public can access other information pertaining to his arrest and prosecution. Individuals do not
forfeit their interest in maintaining control over information that has been made public in some
form. See Am. Civil Liberties Union v. U.S. Dep’t of Justice, 750 F.3d 927, 932 (D.C. Cir. 2014)
(“[T]he fact that information about [individuals who were indicted but not convicted] is a matter
of public record simply makes their privacy interests [in their case names and docket numbers]
‘fade,’ not disappear altogether.”); Prison Legal News v. Exec. Office for U.S. Attorneys, 628
F.3d 1243, 1249–50 (10th Cir. 2011) (holding that Exemption 7(C) permitted the government to
withhold autopsy photographs and a portion of a video depicting a brutal prison murder even
though the images and video were displayed publicly in a courtroom during two trials); see also
Reporters Comm., 489 U.S. at 770 (“[T]he 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.”).
14-1670            Detroit Free Press, Inc. v. USDOJ                                          Page 5

        Further, criminal defendants do not forfeit their interest in controlling private information
while their cases remain pending. Even if an individual possesses a heightened interest in
controlling information about his past entanglements with the criminal justice system, see Free
Press I, 73 F.3d at 97, it does not follow that he has zero interest in controlling what information
becomes public during ongoing proceedings. Moreover, booking photographs often remain
publicly available on the Internet long after a case ends, undermining the temporal limitations
presumed by Free Press I.1 Cf. Reporters Comm., 489 U.S. at 771 (noting that the advent of
technology allowing computers to store information about an individual’s criminal history “that
would otherwise have surely been forgotten” contributes to a “substantial” privacy interest in
FBI-compiled rap sheets).

                                                        III.

        In sum, several factors merit revisiting Free Press I. But we remain bound by our
precedent and therefore AFFIRM.




        1
          We doubt that the panel accounted for Internet search and storage capabilities when deciding Free Press I.
Notably, the panel issued its opinion nearly two years before Google registered as a domain in September 1997. See
Google, Our history in depth, http://www.google.com/about/company/history/ (last visited Aug. 5, 2015).
