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Case TitleWorld Publishing Company v. United States Department of Justice
DistrictNorthern District of Oklahoma
CityTulsa
Case Number4:2009cv00574
Date Filed2009-09-03
Date Closed2011-03-28
JudgeJudge Terence Kern
PlaintiffWorld Publishing Company
DefendantUnited States Department of Justice and its subordinate bureau
- United States Marshal Service
AppealTenth Circuit 11-5063
Documents
Docket
Complaint
Complaint attachment 5
Complaint attachment 6
Opinion/Order [40]
FOIA Project Annotation: A district court in Oklahoma has become the most recent court to jump into the mug shots dispute, ruling decisively against the Tulsa World and upholding the U.S. Marhals Service's position that mug shots of federal prisoners are categorically exempt from disclosure under Exemption 7(C) (invasion of privacy concerning law enforcement records). Judge Terence Kern embraced the reasoning of the Eleventh Circuit in its recent ruling in Karantsalis v. Dept of Justice 2011 WL 846242 (11th Cir. Mar. 11, 2011) and the district court in the earlier decision in Times Picayune v. Dept of Justice, 37 F. Supp. 2d 472 (E.D. La 1999), finding, like those two courts, that the privacy of individual prisoners in their appearance at the time of booking clearly outweighed any public interest in disclosure of the photos. Although the Sixth Circuit had upheld the disclosure of mug shots in Detroit Free Press v. Dept of Justice, 73 F.3d 93 (6th Cir.1996), every court that has heard a mug shot case since then has ruled the other way. Ironically, because mug shots are disclosable in the Sixth Circuit, the Marshals Service has adopted a policy of withholding mug shots except in the Sixth Circuit, where they are freely available under FOIA. The case in Tulsa involved a request by the newspaper's city editor for six mug shots of individuals being held at the Tulsa jail under a contract with the Marshals Service. The agency denied the request, the newspaper appealed, its appeal was denied, and the newspaper filed suit. Apparently not content to ride its winning streak from the Karantsalis case, the government first tried to convince Kern that the newspaper did not have standing because the request was made by the city editor. Although the city editor had not sent her request on newspaper letterhead, she had signed it in her position as city editor and provided the newspaper's address as the mailing address. Kern pointed out that "there is no indication in the letter that [the city editor] was a freelance journalist who wrote for several publications, and there is no indication that [the city editor] planned to use the booking photographs in any other capacity other than for publication in Tulsa World. In addition, a reasonable reader would conclude from the letter that Tulsa World was a local newspaper engaged in publishing news articles." Further, the Justice Department had accepted and adjudicated the appeal treating the newspaper as the requester. Kern observed that "it is inconsistent for Defendants to assert Tulsa World's lack of standing in this case, after it acknowledged and identified Tulsa World as the proper appellant throughout the administrative appeal." Kern then reviewed the existing case law, treating Circuit Judge Alan Norris' dissent in the Detroit Free Press case as a more appropriate analysis of the FOIA than the majority's opinion. Taking guidance from the Supreme Court's decision in Reporters Committee, Kern indicated that he was "conducting categorical balancing rather than ad-hoc balancing. Categorical balancing is appropriate because the 'case fits into a genus in which the balance characteristically tips in one direction.' The Court does not find it necessary or judicially feasible to evaluate each specific indicted individual's privacy interest in his or her mug shot. Instead, this is a situation that calls for categorical balancing and a categorical rule that leads to consistency in treatment within this judicial district." Kern examined the privacy interest in mug shots. He observed that "common sense dictates that individuals desire to control dissemination of any visual depictions of themselves and consider such visual depictions 'personal matters.' . . .Even more than an ordinary photograph, citizens have a privacy interestâ€"i.e., an interest in avoiding disclosure ofâ€"booking photographs because of their stigmatizing effect and their association with criminal activity." He continued: "The Court also concludes that federal indictees awaiting trialâ€"the specific category of individuals at issueâ€"are 'private citizens' who maintain all privacy interests protected by the FOIA. Because the subjects of the booking photographs are 'private citizens,' the privacy interest jeopardized by disclosure is 'at its apex.' The Court rejects any notion that federal indictees lose a privacy interest in their booking photographs simply because they have been charged with a crime, are the subject of ongoing criminal proceedings, and are therefore some type of 'public figure' with reduced expectations of privacy. There is no precedent for importing 'public figure/private person' distinctions or 'expectation of privacy' standards from other areas of law to the Exemption 7(C) analysis." Kern next pointed out that dissemination of the photographs was severely limited. He noted that the USMS's policy "prevents the disclosure of federal indictees' booking photographs to the news media and otherwise prevents their disclosure except for law enforcement purposes. Therefore, the booking photographs at issue are, as a literal matter, not freely available to the public. Tulsa World argued that USMS posted booking photographs on its website to "brag" about the capture of fugitives, suggesting the photos were used for public relations purposes rather than law enforcement purposes. Kern responded that "this argument incorrectly assumes that law enforcement purposes cease to be served after a fugitive is captured. But even assuming no law enforcement purpose is served post-capture, this argument has little relevance to the Exemption 7(C) analysis. The question presented is whether release of detained federal indictees' booking photographs implicates privacy interests, and there is no dispute that Defendants do not generally release such booking photographs for public viewing. Whether Defendants properly follow their own Policy in the case of captured fugitives does not impact the Court's conclusion in this regard." Tulsa World next argued that Oklahoma and most other states routinely made mug shots public, substantially diluting any claim that federal mug shots should be private. Although one would think this state policy would be quite relevant to whether or not the disclosure of mug shots could be considered an "unwarranted" invasion of privacy, Kern largely dismissed it. He observed that "state and local policies are relevant to the extent they demonstrate whether the law enforcement profession generally believes, or does not believe, that individuals have a privacy interest in certain information." He then concluded that state and federal mug shots were "distinct pieces of information," but provided no convincing basis on which to distinguish them except to say federal authorities did not routinely release them. He indicated that "booking photographs released by local agencies are generally different photographs than those taken by USMS. Different photographs are taken at different moments in time and may impart entirely different information. In other words, release of one booking photograph does not reveal precisely the same information as another booking photograph. Therefore, other law enforcement entities' policies of releasing booking photographs do not, in this Court's view, remove the privacy interest that would otherwise attach under Exemption 7(C) to that same prisoner's federal booking photograph." Obviously one photograph cannot be absolutely identical to another photograph. But why a federal mug shot is intensely private while a state mug shot is not remains unexplained. Perhaps federal prisoners are consistently caught at their most awkward down-and-out moment, while state mug shots are more akin to formal portraits. If there is a legitimate difference, Kern certainly doesn't explain it. Kern rejected the newspaper's argument taken from the Detroit Free Press case that federal prisoners lose any privacy because they have been publicly identified and sometimes have already appeared in open court. Kern pointed out that "booking photographs allow the public to piece together other publicly available information in a unique manner. They allow the public to connect a name, criminal charges, and a face. Booking photographs are arguably even more private than rap sheets because the federal mug shot itself is not yet in the public domain at all." He added that "the private information contained in a mug shot has not been somehow previously disclosed based on the indictment and prior judicial proceedings. Instead, a mug shot captures an expression and a moment in time not otherwise available to the public in any other manner." Kern rejected a variety of claims Tulsa World put forth asserting disclosure was in the public interest. He noted that "the Court agrees that uncovering government misconduct would further the core purposes of FOIA. However, this Court concludes that releasing booking photographs does nothing to meaningfully expose government law enforcement officials' conduct to public scrutiny."
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2009-09-031CIVIL COVER SHEET by World Publishing Company (Titus, J) (Entered: 09/03/2009)
2009-09-032COMPLAINT against United States Department of Justice and its subordinate bureau, United States Marshal Service (paid $350 filing fee; receipt number 10850000000000602029) by World Publishing Company (With attachments) (Titus, J) (Additional attachment(s) added on 10/20/2009: # 5 Exhibit 1 FOIA Request, # 6 Exhibit 3 FOIA Appeal) Exhibits replaced per Minute Order #12 (lml, Dpty Clk). (Entered: 09/03/2009)
2009-09-033ATTORNEY APPEARANCE by J Schaad Titus on behalf of World Publishing Company (Titus, J) (Entered: 09/03/2009)
2009-09-034MINUTE ORDER by Court Clerk, directing World Publishing Company to file a Corporate Disclosure Statement pursuant to FRCvP 7.1 within five (5) days of this order, if they have not already done so. The parties shall use the form entitled Corporate Disclosure Statement available on the Courts website (please do not refile if already filed on non-court form unless directed to do so). If you have already filed your Corporate Disclosure Statement in this case, you are reminded to file a Supplemental Corporate Disclosure Statement within a reasonable time of any change in the information that the statement requires. (s-srb, Dpty Clk) (Entered: 09/03/2009)
2009-09-035CORPORATE DISCLOSURE STATEMENT by World Publishing Company (Titus, J) (Entered: 09/03/2009)
2009-09-046SUMMONS Issued by Court Clerk as to United States Department of Justice (s-srb, Dpty Clk) (Entered: 09/04/2009)
2009-09-097SUMMONS Issued by Court Clerk as to United States Marshal Service (s-srb, Dpty Clk) (Entered: 09/09/2009)
2009-10-148MOTION to Dismiss by United States Department of Justice (With attachments) (Thorp, Galen) Modified on 10/15/2009; this is a two-part motion of which only one part was efiled - see 10 for Motion for Summary Judgment (sac, Dpty Clk). (Entered: 10/14/2009)
2009-10-149MOTION to Seal Document Exhibits 1 and 3 of Plaintiff's Complaint for Improperly Including Personal Data Identifiers (Re: 2 Complaint ) by United States Department of Justice (Thorp, Galen) (Entered: 10/14/2009)
2009-10-1410MOTION for Summary Judgment (submitted as part of 8 ) by United States Department of Justice (sac, Dpty Clk) (Entered: 10/15/2009)
2009-10-15NOTICE of Docket Entry Modification; Error: this is a two-part document of which only one part was efiled; Correction: efiled Motion for Summary Judgment - see 10 (Re: 8 MOTION to Dismiss ) (sac, Dpty Clk) (Entered: 10/15/2009)
2009-10-1511MOTION to Withdraw Document(s) and Substitute Exhibits (Re: 9 MOTION to Seal Document Exhibits 1 and 3 of Plaintiff's Complaint for Improperly Including Personal Data Identifiers ) by World Publishing Company (With attachments) (Titus, J) (Entered: 10/15/2009)
2009-10-1912MINUTE ORDER by Judge Terence Kern Plaintiff's Motion to Withdraw and Substitute Exhibits (Doc. 11) is GRANTED. The Clerk is directed to remove Exhibits 1 and 3 from Plaintiff's Complaint and replace them with the redacted Exhibits 1 and 3 attached to Plaintiff's Motion to Withdraw and Substitute Exhibits (Doc. 11). Defendant's Motion to Seal Exhibits from Plaintiff's Complaint for Improperly Excluding Personal Data Identifiers (Doc. 9) is DENIED as moot. ; finding as moot 9 Motion to Seal Document(s); granting 11 Motion to Withdraw Documents(s) (Re: 2 Complaint, ) (vah, Chambers) (Entered: 10/19/2009)
2009-10-1913ORDER by Judge Terence Kern, directing parties to file joint status report( Status Report due by 11/20/2009) (cds, Dpty Clk) (Entered: 10/19/2009)
2009-10-2814MOTION for Extension of Time to Respond to Motion (Re: 10 MOTION for Summary Judgment (submitted as part of 8 ) ) by World Publishing Company (Titus, J) (Entered: 10/28/2009)
2009-10-2815Amended MOTION for Extension of Time to Respond to Motion (Re: 10 MOTION for Summary Judgment (submitted as part of 8 ) , 14 MOTION for Extension of Time to Respond to Motion ) by World Publishing Company (Titus, J) (Entered: 10/28/2009)
2009-10-2916MINUTE ORDER by Judge Terence Kern ; setting/resetting deadline(s)/hearing(s): ( Responses due by 11/13/2009, Replies due by 11/30/2009); granting 15 Motion for Extension of Time to Respond to Motion (Re: 10 MOTION for Summary Judgment (submitted as part of 8 ) ) (vah, Chambers) (Entered: 10/29/2009)
2009-10-2917MINUTE ORDER by Judge Terence Kern motion was amended by Doc. 15 ; finding as moot 14 Motion for Extension of Time to Respond to Motion (vah, Chambers) (Entered: 10/29/2009)
2009-10-2918RESPONSE in Opposition to Motion (Re: 8 MOTION to Dismiss ) by World Publishing Company ; (With attachments) (Titus, J) (Entered: 10/29/2009)
2009-11-1019Unopposed MOTION for Extension of Time to Respond to Motion (Re: 10 MOTION for Summary Judgment (submitted as part of 8 ) ) by World Publishing Company (Titus, J) (Entered: 11/10/2009)
2009-11-1220MINUTE ORDER by Judge Terence Kern ; setting/resetting deadline(s)/hearing(s): ( Responses due by 11/25/2009, Replies due by 12/11/2009); granting 19 Motion for Extension of Time to Respond to Motion (Re: 10 MOTION for Summary Judgment (submitted as part of 8 ) ) (vah, Chambers) (Entered: 11/12/2009)
2009-11-1221NOTICE of Intent to File One Reply to Plaintiff's Bifurcated Responses (Re: 16 Minute Order,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Ruling on Motion for Extension of Time to Respond to Motion, 20 Minute Order,, Setting/Resetting Deadline(s)/Hearing(s), Setting/Resetting Deadline(s)/Hearing(s), Ruling on Motion for Extension of Time to Respond to Motion, ) by United States Department of Justice (Thorp, Galen) (Entered: 11/12/2009)
2009-11-1822JOINT STATUS REPORT by World Publishing Company, United States Department of Justice (Titus, J) (Entered: 11/18/2009)
2009-11-2523RESPONSE in Opposition to Motion (Re: 10 MOTION for Summary Judgment (submitted as part of 8 ) ) by World Publishing Company ; (With attachments) (Titus, J) (Entered: 11/25/2009)
2009-11-2524MOTION Fed. R. Civ. P. 56(f) Motion to Deny Defendant's Motion for Summary Judgment or Continue the Response to Obtain Discovery in this Case and Brief in Support (Re: 10 MOTION for Summary Judgment (submitted as part of 8 ) ) by World Publishing Company (With attachments) (Titus, J) Modified on 11/30/2009-This is a multi-part motion; See Doc #25 for second part (lml, Dpty Clk). (Entered: 11/25/2009)
2009-11-2525MOTION for Extension of Time to Respond to Motion (SUBMITTED AS DOC # 24 ) (Re: 10 MOTION for Summary Judgment (submitted as part of 8 ) , 8 MOTION to Dismiss ) by World Publishing Company (lml, Dpty Clk) (Entered: 11/30/2009)
2009-11-30NOTICE of Docket Entry Modification; Error: Document No. 24 is a multi-part motion, but only one part was filed; Correction: Filed the second motion part as Document No. 25 (Re: 24 MOTION Fed. R. Civ. P. 56(f) Motion to Deny Defendant's Motion for Summary Judgment or Continue the Response to Obtain Discovery in this Case and Brief in Support MOTION Fed. R. Civ. P. 56(f) Motion to Deny Defendant's Motion for Summary Judgment or Continue the Response to Obtain Discovery in this Case and Brief in Support, 25 MOTION for Extension of Time to Respond to Motion (SUBMITTED AS DOC # 24 ) ) (lml, Dpty Clk) (Entered: 11/30/2009)
2009-12-0126MINUTE ORDER by Judge Terence Kern, referring motion(s) to Magistrate Judge Wilson (Re: 25 MOTION for Extension of Time to Respond to Motion (SUBMITTED AS DOC # 24 ) ) (vah, Chambers) (Entered: 12/01/2009)
2009-12-0327MINUTE ORDER by Magistrate Judge T Lane Wilson, setting/resetting deadline(s)/hearing(s): Parties are to report to Magistrate Courtroom No. 2, Third Floor. ( Motion Hearing set for 1/5/2010 at 09:30 AM before Magistrate Judge T Lane Wilson) (Re: 25 MOTION for Extension of Time to Respond to Motion (SUBMITTED AS DOC # 24 ) ) (crp, Dpty Clk) (Entered: 12/03/2009)
2009-12-0428MINUTE ORDER by Magistrate Judge T Lane Wilson a Telephone Conference is scheduled for today 12/4/09 at 3:00 p.m. , setting/resetting deadline(s)/hearing(s): (Court will initiate conference call) ( Miscellaneous Hearing set for 12/4/2009 at 03:00 PM before Magistrate Judge T Lane Wilson) (crp, Dpty Clk) (Entered: 12/04/2009)
2009-12-0429MINUTES of Proceedings - held before Magistrate Judge T Lane Wilson: Miscellaneous Hearing held on 12/4/2009, striking/terminating deadline(s)/Hearing(s) (Re: 24 MOTION Fed. R. Civ. P. 56(f) Motion to Deny Defendant's Motion for Summary Judgment or Continue the Response to Obtain Discovery in this Case and Brief in Support MOTION Fed. R. Civ. P. 56(f) Motion to Deny Defendant's Motion for Summary Judgment or Continue the Response to Obtain Discovery in this Case and Brief in Support, 25 MOTION for Extension of Time to Respond to Motion (SUBMITTED AS DOC # 24 ) ) (Court Reporter: C1) (crp, Dpty Clk) (Entered: 12/04/2009)
2009-12-0730MINUTE ORDER by Magistrate Judge T Lane Wilson the hearing scheduled for 1/5/10 is stricken ; striking/terminating deadline(s)/Hearing(s); denying 25 Motion for Extension of Time to Respond to Motion (Re: 23 Response in Opposition to Motion, 18 Response in Opposition to Motion, 8 MOTION to Dismiss ) (crp, Dpty Clk) (Entered: 12/07/2009)
2009-12-1131REPLY to Response to Motion (Re: 8 MOTION to Dismiss ) by United States Department of Justice ; (Thorp, Galen) (Entered: 12/11/2009)
2009-12-1132REPLY to Response to Motion (Re: 10 MOTION for Summary Judgment (submitted as part of 8 ) , 8 MOTION to Dismiss ) by United States Department of Justice ; (Thorp, Galen) (Entered: 12/11/2009)
2009-12-1133MOTION to Strike Document(s) Strike Plaintiff's Request for Summary Judgment for Failure to File Separate Cross-Motion (Re: 23 Response in Opposition to Motion ) by United States Department of Justice (Thorp, Galen) (Entered: 12/11/2009)
2009-12-1134RESPONSE in Opposition to Motion (Re: 24 MOTION Fed. R. Civ. P. 56(f) Motion to Deny Defendant's Motion for Summary Judgment or Continue the Response to Obtain Discovery in this Case and Brief in Support MOTION Fed. R. Civ. P. 56(f) Motion to Deny Defendant's Motion for Summary Judgment or Continue the Response to Obtain Discovery in this Case and Brief in Support ) by United States Department of Justice ; (Thorp, Galen) (Entered: 12/11/2009)
2009-12-1535NOTICE Notice of Recent Decision (Re: 10 MOTION for Summary Judgment (submitted as part of 8 ) , 8 MOTION to Dismiss ) by United States Department of Justice (With attachments) (Thorp, Galen) (Entered: 12/15/2009)
2009-12-2436REPLY to Response to Motion (Re: 24 MOTION Fed. R. Civ. P. 56(f) Motion to Deny Defendant's Motion for Summary Judgment or Continue the Response to Obtain Discovery in this Case and Brief in Support MOTION Fed. R. Civ. P. 56(f) Motion to Deny Defendant's Motion for Summary Judgment or Continue the Response to Obtain Discovery in this Case and Brief in Support ) by World Publishing Company ; (Titus, J) (Entered: 12/24/2009)
2009-12-3137RESPONSE in Opposition to Motion (Re: 33 MOTION to Strike Document(s) Strike Plaintiff's Request for Summary Judgment for Failure to File Separate Cross-Motion ) by World Publishing Company ; (Titus, J) (Entered: 12/31/2009)
2010-01-1438REPLY to Response to Motion (Re: 33 MOTION to Strike Document(s) Strike Plaintiff's Request for Summary Judgment for Failure to File Separate Cross-Motion ) by United States Department of Justice ; (Thorp, Galen) (Entered: 01/14/2010)
2011-03-1439NOTICE of Recent Decision (Re: 10 MOTION for Summary Judgment (submitted as part of 8 ) , 8 MOTION to Dismiss ) by United States Department of Justice (With attachments) (Thorp, Galen) (Entered: 03/14/2011)
2011-03-2840OPINION AND ORDER by Judge Terence Kern ; denying 33 Motion to Strike Document(s); denying 8 Motion to Dismiss; granting 10 Motion for Summary Judgment; denying 24 Motion for Miscellaneous Relief (vah, Chambers) (Entered: 03/28/2011)
2011-03-2841JUDGMENT by Judge Terence Kern, dismissing/terminating case (terminates case), entering judgment in favor of Defendants against Plaintiff (terminates case) (vah, Chambers) (Entered: 03/28/2011)
2011-03-28***Civil Case Terminated (see document number 41 ) (lml, Dpty Clk) (Entered: 03/29/2011)
2011-04-2642NOTICE OF APPEAL to Circuit Court (paid $455 appeal fee; receipt number 1085-847237) (Re: 40 Opinion and Order, Ruling on Motion to Strike Document(s), Ruling on Motion to Dismiss, Ruling on Motion for Summary Judgment, Ruling on Motion for Miscellaneous Relief, 41 Judgment, Dismissing/Terminating Case, Entering Judgment ) by World Publishing Company (Titus, J) (Entered: 04/26/2011)
2011-04-2743PRELIMINARY RECORD Sent to Circuit Court (Re: 42 Notice of Appeal to Circuit Court, ) (With attachments) (lml, Dpty Clk) (Entered: 04/27/2011)
2011-04-2744APPEAL NUMBER INFORMATION from Circuit Court assigning Case Number 11-5063 (#42) (Re: 42 Notice of Appeal to Circuit Court, ) (sam, Dpty Clk) (Entered: 04/27/2011)
2011-05-2045TRANSCRIPT ORDER FORM (Transcripts are not necessary or are already on file ) (Re: 42 Notice of Appeal to Circuit Court, ) by World Publishing Company (Titus, J) (Entered: 05/20/2011)
2011-06-0146CLERK'S RECORD on Appeal Sent to Circuit Court (Re: 42 Notice of Appeal to Circuit Court, ) (s-srl, Dpty Clk) (Entered: 06/01/2011)
2012-02-2247DECISION from Circuit Court affirming the Decision of the District Court (awaiting mandate) (Re: 42 Notice of Appeal to Circuit Court, ) (s-srt, Dpty Clk) (Entered: 02/23/2012)
2012-02-2448ORDER from Circuit Court entering judgment (Re: 42 Notice of Appeal to Circuit Court, ) (s-srt, Dpty Clk) (Entered: 02/24/2012)
2012-04-1649MANDATE from Circuit Court (Re: 47 Decision from Circuit Court, 42 Notice of Appeal to Circuit Court, ) (s-srt, Dpty Clk) (Entered: 04/16/2012)
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