Case Detail

FOIA Project Annotation: Ruling that it was bound by the Sixth Circuit's decision in Detroit Free Press v. Dept of Justice, 73 F.3d 93 (6th Cir. 1996), a federal court in Michigan has ruled that the Marshals Service must disclose mug shots of four Highland Park police officers who had been publicly indicted on federal drug and public corruption charges because they are not protected by Exemption 7(C) (invasion of privacy concerning law enforcement records). Currently, states within the Sixth Circuit are the only geographical area in which mug shots are available. The court explained that after the 2004 Supreme Court decision in National Archives v. Favish, 541 U.S. 157, in which the Court recognized a privacy right for survivors and indicated that crime scene photos were routinely protected by Exemption 7(C) unless the requester could identify a legitimate likelihood of government misconduct, the Marshals Service decided the Detroit Free Press decision was no longer good law and stopped disclosing mug shots within the Sixth Circuit until the revised policy was rejected twice by district courts in Detroit and Akron. Nevertheless, the Tenth and Eleventh Circuits, in World Publishing Co v. Dept of Justice, 672 F.3d 825 (10th Cir. 2012), and Karantsalis v. Dept of Justice, 635 F.3d 497 (11th Cir. 2011), considered whether mug shots were protected by Exemption 7(C) and ruled in favor of the government. Because neither case was accepted for review by the Supreme Court, the government was stuck with the anomalous situation in the Sixth Circuit and decided to start the process of challenging the continued validity of the Detroit Free Press decision by denying the newspaper access to the mug shots. The court dispensed with the Marshals Service's claim quickly, noting that "as DOJ acknowledges, this Court, which is squarely situated within the Sixth Circuit, is bound by Free Press I as the law of this circuit. It necessarily follows that DOJ is unable to discharge its burden of justifying its nondisclosure of the four booking photographs at issue." The Free Press argued that the agency's claim was precluded by the doctrines of res judicataâ€"that the issue had already been decided in previous litigation involving the same partiesâ€"and collateral estoppelâ€"that the issue of the case had already been decided by the court. The district court instead found that neither doctrine precluded the government from continuing with its challenge. The court noted that "DOJ contends that USMS's continued compliance with Free Press I creates a risk that USMS will take action in direct conflict with the law as articulated in both the Tenth and Eleventh Circuits. . .[I]n addition to acting in contravention to the rule enunciated in the Tenth and Eleventh Circuits, USMS would also be in violation of its statutory duties as described in the Privacy Act." The court rejected the idea that the original Sixth Circuit decision was somehow non-reviewable. The court pointed out that "while axiomatic that the Sixth Circuit is not bound by the legal interpretations expressed by co-equal appellate courts elsewhere in this country, this alteration to the legal landscape, in addition to other events unnecessary to this Court's determination, may provide the requisite grounds to grant a rehearing en banc should the Sixth Circuit decide that the issue is sufficiently important to hear anew." The court granted the agency a stay of disclosure until government appeals were completed. The court awarded the Free Press attorney's fees, but only if it remained the prevailing party after appeal.
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records

Date Filed	Doc #	Docket Text
2013-07-06	1	COMPLAINT filed by Detroit Free Press Inc against United States Department of Justice. Plaintiff requests summons issued. Receipt No: 0645-4178362 - Fee: $ 400. County of 1st Plaintiff: Wayne - County Where Action Arose: Wayne - County of 1st Defendant: USA. [ Previously dismissed case: No] [ Possible companion case(s): Eastern District of Michigan, 93-74692, Judge Anna Diggs Taylor ] (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A - 2/12/13 FOIA Request, # 3 Exhibit B - People v Kilpatrick, 2:10-CR-20403 Docket Entries, # 4 Exhibit C - 2/14/13 FOIA Rejection, # 5 Exhibit D - 12/12/12 DOJ Booking Photograph Disclosure Policy, # 6 Exhibit E - 3/15/13 Administrative Appeal, # 7 Exhibit F - 3/25/13 Acknowledgment of Receipt of Appeal, # 8 Exhibit G - 6/10/13 Detroit Free Press Letter re Appeal, # 9 Exhibit H - 5/2004 DOJ FOIA Guide, # 10 Exhibit I - Docket and Complaint in Free Press II (2:05-cv-71601), # 11 Exhibit J - 2005 Judgment and Attorney Fee Award in Free Press II, # 12 Exhibit K - 8/30/05 Order of District Judge Dowd in 5:05-cv-1396) (Fink, Herschel) (Entered: 07/06/2013)
2013-07-08	2	SUMMONS Issued for *United States Department of Justice* (DWor) (Entered: 07/08/2013)
2013-07-08	3	SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (DWor) (Entered: 07/08/2013)
2013-07-08		A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (DWor) (Entered: 07/08/2013)
2013-07-09	4	NOTICE by Detroit Free Press Inc re 1 Complaint,,,,, Supplemental Notice of Possible Companion Cases (Fink, Herschel) (Entered: 07/09/2013)
2013-08-08	5	STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Detroit Free Press Inc identifying Corporate Parent GANNETT CO., INC. for Detroit Free Press Inc. (Fink, Herschel) (Entered: 08/08/2013)
2013-08-09	6	STIPULATION by United States Department of Justice (Mead, Joseph) (Entered: 08/09/2013)
2013-08-10	7	AMENDED COMPLAINT First filed by Detroit Free Press Inc against United States Department of Justice. NO NEW PARTIES ADDED. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - 1/25/13 FOIA Request, # 3 Exhibit B - Docket Entries for Case No. 13-20212-1, 2, 3 and 4, # 4 Exhibit C - 1-29-13 FOIA Rejection, # 5 Exhibit D - 12-12-12 DOJ Booking Photograph Disclosure Policy, # 6 Exhibit E-1 - 3-15-13 Administrative Appeal, # 7 Exhibit E-2 - 3-15-13 Administrative Appeal, # 8 Exhibit F - 3-25-13 Acknowledgment of Receipt of Appeal, # 9 Exhibit G - 6-10-13 Detroit Free Press Letter Re Appeal, # 10 Exhibit H - 5/2004 DOJ FOIA Guide, # 11 Exhibit I - Docket and Complaint in Case No. 05-71601, # 12 Exhibit J - 2005 Judgment and Attorney Fee Award in Free Press II, # 13 Exhibit K - 8-30-05 Order of Judge Dowd in Case No. 05-1396) (Fink, Herschel) (Entered: 08/10/2013)
2013-08-12	8	ORDER to Extend Time to Answer re 7 Amended Complaint,,, filed by Detroit Free Press Inc. Responses due by 9/6/2013 Signed by District Judge Patrick J. Duggan. (MOre) (Entered: 08/12/2013)
2013-08-12	9	NOTICE of Appearance by Galen Thorp on behalf of United States Department of Justice. (Thorp, Galen) (Entered: 08/12/2013)
2013-09-09	10	ANSWER to Amended Complaint with Affirmative Defenses by United States Department of Justice. (Thorp, Galen) (Entered: 09/09/2013)
2013-09-10	11	NOTICE TO APPEAR: Scheduling Conference set for 9/24/2013 02:30 PM before District Judge Patrick J. Duggan (MOre) (Entered: 09/10/2013)
2013-09-12	12	DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Thorp, Galen) (Entered: 09/12/2013)
2013-09-13	13	SCHEDULING ORDER: Plaintiff's Dispositive Motion Cut-off set for 10/15/2013 Signed by District Judge Patrick J. Duggan. (Refer to image for additional dates) (MOre) (Entered: 09/13/2013)
2013-09-13		TEXT-ONLY NOTICE: Scheduling Conference on 9/24/13 is Cancelled (MOre) (Entered: 09/13/2013)
2013-10-12	14	MOTION for Summary Judgment by Detroit Free Press Inc. (Attachments: # 1 Document Continuation, # 2 Index of Exhibits, # 3 Exhibit A - April 29, 1994 Order Granting Summary Judgment in Case No. 93-cv-74692, # 4 Exhibit B - Pertinent Pleadings in Case No. 2:05-cv-71601, # 5 Exhibit C - August 30, 2005 Order Granting Summary Judgment in Case No. 5:05CV1396, # 6 Exhibit D - Pertinent Portion of DOJ 2004 Freedomof Information Act Guide, # 7 Exhibit E - December 12, 2012 DOJ Booking Photograph Disclosure Policy, # 8 Exhibit F - February 12, 2013 Detroit Free Press FOIA Request and DOJ February 14, 2013 Denial of Request, # 9 Exhibit G - January 25, 2013 Detroit Free Press FOIA Request and DOJ January 29, 2013 Denial of Request, # 10 Exhibit H - March 15, 2013 Administrative Appeal, DOJ Acknowledgment of Receipt and Detroit Free Press Response, # 11 Exhibit I - August 8, 2013 DOJ Letter, # 12 Exhibit J - Relevant Portion of December 19, 2011 DOJ Response Brief in Case No. 11-342, # 13 Exhibit K - Reporters Committee for Freedom of the Press 2011 Survey) (Fink, Herschel) (Entered: 10/12/2013)
2013-10-15	15	NOTICE REGARDING MOTION PRACTICE (MOre) (Entered: 10/15/2013)
2013-11-13	16	STIPULATION re 13 Scheduling Order by All Defendants (Thorp, Galen) (Entered: 11/13/2013)
2013-11-14	17	ORDER to Extend Time to File Response re 14 MOTION for Summary Judgment filed by Detroit Free Press Inc. Responses due by 11/26/2013 Replies due by 12/17/2013 Signed by District Judge Patrick J. Duggan. (MOre) (Entered: 11/14/2013)
2013-11-26	18	Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment by United States Department of Justice. (Attachments: # 1 Exhibit A - Bordley Decl and Subexhibits, # 2 Exhibit B through Q) (Thorp, Galen) (Entered: 11/26/2013)
2013-12-05	19	STIPULATED ORDER to Extend Time to File Replies re 14 MOTION for Summary Judgment filed by Detroit Free Press Inc, 18 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment filed by United States Department of Justice. Reply due by 12/27/2013 & 1/17/14 Signed by District Judge Patrick J. Duggan. (MOre) (Entered: 12/05/2013)
2013-12-23	20	REPLY re 14 MOTION for Summary Judgment and Response to 18 Cross MOTION for Summary Judgment filed by Detroit Free Press Inc. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhbiit 2 a - b, # 4 Exhibit 2 c - d, # 5 Exhibit 3 a - c, # 6 Exhibit 3 d - e, # 7 Exhibit 4 a - c, # 8 Exhibit 4 d - g, # 9 Exhibit 5 a - e, # 10 Exhibit 5 a - g) (ATee) (Entered: 12/23/2013)
2014-01-17	21	STIPLATED ORDER to Extend Time to File Reply re 18 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment filed by United States Department of Justice. Reply due by 1/24/2014 Signed by District Judge Patrick J. Duggan. (MOre) (Entered: 01/17/2014)
2014-01-25	22	REPLY to Response re 18 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment filed by United States Department of Justice. (Thorp, Galen) (Entered: 01/25/2014)
2014-04-09	23	Notice of Determination of Motion Without Oral Argument re 18 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment , 14 MOTION for Summary Judgment (MOre) (Entered: 04/09/2014)
2014-04-21	24	OPINION AND ORDER granting in part and denying in part 14 Motion for Summary Judgment; granting in part and denying in part 18 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre) (Entered: 04/21/2014)
2014-04-21	25	JUDGMENT in favor of Plaintiff & Defendant Signed by District Judge Patrick J. Duggan. (MOre) (Entered: 04/21/2014)
2014-05-22	26	NOTICE of Appearance by Marcia K. Sowles on behalf of United States Department of Justice. (Sowles, Marcia) (Entered: 05/22/2014)
2014-05-22	27	NOTICE OF APPEAL by United States Department of Justice re 25 Judgment, 24 Order on Motion for Summary Judgment,. Fee Status: No Fee Paid. (Sowles, Marcia) (Entered: 05/22/2014)
2014-05-23	28	Certificate of Service re 27 Notice of Appeal. (KKra) (Entered: 05/23/2014)
2015-08-12	29	JUDGMENT from U.S. Court of Appeals - Sixth Circuit re 27 Notice of Appeal filed by United States Department of Justice [Appeal Case Number 14-1670] (KCla) (Entered: 08/17/2015)
2015-11-12	30	ORDER from U.S. Court of Appeals - Sixth Circuit re 27 Notice of Appeal filed by United States Department of Justice [Appeal Case Number 14-1670] (Ahmed, N) (Entered: 12/02/2015)
2015-11-20	31	ORDER from U.S. Court of Appeals - Sixth Circuit re 27 Notice of Appeal filed by United States Department of Justice [Appeal Case Number 14-1670] (Ahmed, N) (Entered: 12/02/2015)
2016-07-14	32	OPINION and JUDGMENT from U.S. Court of Appeals - Sixth Circuit re 27 Notice of Appeal filed by United States Department of Justice [Appeal Case Number 14-1670] (SSch) (Entered: 07/19/2016)
2016-08-31	33	MANDATE from U.S. Court of Appeals - Sixth Circuit as to 27 Notice of Appeal filed by United States Department of Justice, 32 Appeal Order/Opinion/Judgment [Appeal Case Number 14-1670] (Ahmed, N) (Entered: 08/31/2016)
2016-09-02		Text-Only Order of reassignment from District Judge Patrick J. Duggan and Magistrate Judge Michael J. Hluchaniuk to District Judge Stephen J. Murphy III and Magistrate Judge Stephanie Dawkins Davis pursuant to Administrative Order. (VLun) (Entered: 09/02/2016)
2016-09-20	34	NOTICE TO APPEAR: Status Conference set for 10/6/2016 11:00 AM before District Judge Stephen J. Murphy III (CCoh) (Entered: 09/20/2016)
2016-10-19	35	CORRECTED OPINION from U.S. Court of Appeals - Sixth Circuit re 32 Appeal Order/Opinion/Judgment [Appeal Case Number 14-1670] (Ahmed, N) (Entered: 10/19/2016)
2016-12-01	36	LETTER from the US Supreme Court that a petition for writ of certiorari was filed on 11/22/2016. [Supreme Court Case Number: 16-706] [Court of Appeals Case Number: 14-1670] (Ahmed, N) (Entered: 12/02/2016)
2016-12-13	37	ORDER Administratively Closing the Case Pending Appeal. Signed by District Judge Stephen J. Murphy, III. (LHos) (Entered: 12/13/2016)
2017-05-26	38	LETTER from the US Supreme Court denying the petition for writ of certiorari [Supreme Court Case Number: 16-706] [Court of Appeals Case Number: 14-1670] (Ahmed, N) (Entered: 05/26/2017)
2017-06-02	39	ORDER to Submit Joint Status Report. Signed by District Judge Stephen J. Murphy, III. (DPar) (Entered: 06/02/2017)
2017-06-05	40	NOTICE of Voluntary Dismissal by United States Department of Justice and Detroit Free Press (Thorp, Galen) (Entered: 06/05/2017)
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