'Picture Imperfect: Mug Shot Disclosures and the Freedom of Information Act' by Lisa Chinai in (2013) 2
Seton Hall Circuit Review comments
“Look at the picture of this guy. Do you realy [sic] need to do a backgroung [sic] check?
One look and the answer shou;d [sic] have been ‘no, you can’t have a gun,’” wrote one
commenter in the comments section following The Huffington Post article, “Jared Lee
Loughner’s Mug Shot (PHOTO).” The commenter’s reaction to Jared Lee Loughner’s
photograph illustrates the prejudicial effect of releasing mug shot photographs to the press. In
the photograph, a bald Loughner smirks directly into the camera. As one publication described,
“[h]e grabs the viewer with his eyes, looking straight ahead and not backing down or showing
any sign of shame or remorse.” In 2012, Loughner plead guilty for shooting Congresswoman
Gabrielle Giffords, killing six people, and wounding thirteen others in 2011 at a political rally in
Tuscon, Arizona.
United States courts have long recognized the prejudicial nature of submitting a
defendant’s mug shot into evidence during trial. In Barnes v. United States, the court stated that
the “double-shot” (front and profile) feature of a mug shot photograph “is so familiar, from
‘wanted’ posters in the post office, motion pictures and television, that the inference that the
person involved has a criminal record, or has at least been in trouble with the police, is natural,
perhaps automatic.” Some courts have guidelines that regulate the submission of mug shot
photographs into evidence. For instance, the United States Court of Appeals for the First
Circuit and the United States Court of Appeals for the Second Circuit require prosecutors to
prove a demonstrable need to introduce the mug shot photograph and do not permit photographs
that imply a defendant’s prior criminal record and suggest the source setting of the photograph.
While these guidelines discuss the admittance of mug shot photos to courtrooms during
trials, they do not discuss the impact of releasing mug shot photographs to the media during an
ongoing trial. This Comment does not concentrate on the evidentiary function of mug shot
photographs in courtroom proceedings. Instead, this Comment focuses on how the release of a
defendant’s mug shot photograph to the media affects a defendant’s privacy rights.
The United States Court of Appeals for the Sixth Circuit and the United States Court of
Appeals for the Eleventh Circuit disagree over whether releasing a defendant’s mug shot to the
media violates a defendant’s right of privacy. The Sixth Circuit, in Detroit Free Press v.
Department of Justice, held that disclosing mug shots to the media during “ongoing criminal
proceedings in which the names of the indicted suspects have already been made public and in
which the arrestees have already [revealed their visages in] court appearances” does not
implicate those defendants’ privacy rights. On the other hand, the Eleventh Circuit, in
Karantsalis v. Department of Justice, held that mug shot disclosures during an ongoing
proceeding implicate privacy rights. Both Detroit Free Press and Karantsalis discussed
whether releasing a defendant’s mug shot photo to the press violated Exemption 7(C) of the
Freedom of Information Act (“FOIA”), which prohibits the government from disclosing
records that could “reasonably be expected to constitute an invasion of personal privacy.”
Releasing a defendant’s mug shot to the press during an ongoing judicial proceeding
violates Exemption 7(C) of FOIA. Defendants do not waive their right of privacy simply by
appearing in a court proceeding. Disclosing a defendant’s mug shot to the press after a
defendant has appeared in court poses a unique privacy challenge. A mug shot captures one
particular moment in a defendant’s life and communicates a message wholly distinct from a
defendant’s courtroom appearance. In turn, releasing this mug shot to the press during an
ongoing criminal proceeding negatively impacts the defendant’s personal privacy long after the
end of the criminal proceeding. Thus, the long lasting effects of the release constitute a
violation of a person’s reasonable expectation of privacy. Courts must adopt a legal standard,
which robustly protects defendants’ privacy rights under FOIA Exemption 7(C) against the
countervailing public need for mug shots disclosures.
Sections II through V of this Comment demonstrate how mug shot disclosures to the
press during a court proceeding violate a defendant’s right of privacy guaranteed under
Exemption 7(C) of FOIA. Section II provides a background on ways the public can legally
access documents in government possession. Specifically, this section examines Karantsalis,
Detroit Free Press, the legislative history of FOIA and Exemption 7(C), and First Amendment
rights to access government information. Section III analyzes the theoretical underpinnings of
privacy as a legal right by discussing Supreme Court and common law tort jurisprudence on
privacy. These legal theories are helpful in defining the privacy interests under FOIA that
protect mug shot photographs. Section IV explores the impact that mug shot disclosures to the
press has on privacy even after the end of a criminal proceeding. In addition, Section IV
presents social science evidence showing that any public benefit of releasing mug shots to the
press is far from conclusive. Finally, Section V concludes this Comment by discussing a
possible solution to the conflict between the defendant’s right to privacy and the public’s right to
know.
