Is the Sixth Circuit willing to recognize a right to be forgotten under U.S. law?

Recent FOIA decision questions the 20-year-old notion that defendants have no interest in preventing release of booking photographs during ongoing criminal proceedings.

The Freedom of Information Act (“FOIA”) implements “a general philosophy of full agency disclosure” of government records. Since the mid-90s, the Sixth Circuit has required law enforcement to turn over booking photographs of defendants while ongoing criminal proceedings are occurring.

Plaintiff sought the booking photos of four criminal defendants from the U.S. Marshall’s office. When the U.S. Marshall refused to turn the photos over, plaintiff filed suit. The district court found in plaintiff’s favor, citing the Sixth Circuit case of Detroit Free Press v. United States Department of Justice, 73 F.3d 93 (1996). Defendant sought review with the Sixth Circuit and, bound by the 1996 decision, a panel of the Sixth Circuit affirmed, ordering that the photos be turned over.

But the panel was far from comfortable in its holding. Although it was bound to follow the earlier Sixth Circuit precedent, it urged the court to consider en banc whether an exception to FOIA 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.”

The general theory behind the current requirement that booking photos be released is that the suspects have already appeared publicly in court, and the release of the photos and their names conveys no further information to implicate a protectible privacy interest. But this panel of the court noted that “[s]uch images convey an ‘unmistakable badge of criminality’ and, therefore, provide more information to the public than a person’s mere appearance.”

Something like a right to be forgotten appears in the court’s discussion of how photos can linger online: “[B]ooking photographs often remain publicly available on the Internet long after a case ends, undermining the temporal limitations presumed” by Sixth Circuit case law that calls for the release of photos during ongoing proceedings.

Detroit Free Press v. U.S. Dept. of Justice, — F.3d —, 2015 WL 4745284 (6th Cir. August 12, 2015)

Evan Brown is an attorney in Chicago helping clients manage issues involving technology and new media.