Federal court says mug shots not public records

A federal court in south Florida told a freelance journalist that his request for the mug shot of a securities fraud mastermind will go unfulfilled because the Freedom of Information Act does not apply to booking photos of suspects in federal custody — at least not if you make the request in the Eleventh Circuit.

U.S. District Court Judge Paul C. Huck said the United States Marshals Service correctly withheld the mug shot of Luis Giro from freelance journalist Theodore Karantsalis‘s FOIA request because Giro’s right to personal privacy was more important than the public’s interest in seeing the photo.

The court rejected Karantsalis’s argument that Giro, who pleaded guilty to securities fraud in 2009 after six years as a fugitive, had no continuing privacy interest related to his crime.

“[A] booking photograph does more than suggest guilt; it raises a unique privacy interest because it captures an embarrassing moment that is not normally exposed to the public eye,” Huck wrote.

Though the court agreed with the Marshal Service’s assessment that releasing photos “which show his appearance and expression while being processed … could result in humiliation for Giro” it rejected Karanstalis’s suggestion that facial expressions could reveal whether he received preferential treatment while in custody.

“The Court is not persuaded that the facial expression of a prisoner in a booking photograph is a sufficient proxy to evaluate whether a prisoner is receiving preferential treatment,” Huck wrote.

Finally, the court found that even though the Marshals Service has at times ignored its own policy of only disclosing photos for law enforcement purposes — mug shots of Bernard Lawrence “Bernie” Madoff and Joseph P. Nacchio were given to requesters in the Sixth Circuit — it did not have to amend its practices across all jurisdictions.

“[T]he Sixth Circuit has held that, in some circumstances, booking photographs must be disclosed to the media even if doing so does not serve a law enforcement purpose,” Huck wrote. “Plaintiff’s request for Giro’s booking photographs, however, is not subject to this policy exemption because this case falls within the jurisdiction of the Eleventh Circuit.”

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