An Orrick team filed a petition for a writ of certiorari in the U.S. Supreme Court today asking the Court to decide whether booking photos of indicted federal defendants must be disclosed to the media under the Freedom of Information Act (FOIA). The petition follows a decision earlier this year by a deeply divided Sixth Circuit en banc court (with seven judges in dissent) overturning its prior 20 year old precedent.
The petition was filed on behalf of the Detroit Free Press, which sought the booking photos of four Michigan law enforcement officers indicted on federal public corruption and drug conspiracy felony charges. The government refused to honor the FOIA request, claiming disclosure would amount to an unwarranted invasion of personal privacy of the persons indicted of the federal felonies. As the cert. petition explains, “rather than look to legal and cultural privacy norms to determine whether Congress recognized a privacy interest in booking photos,” as mandated by the Supreme Court, the en banc majority of the court of appeals instead substituted its “own policy preferences for those of Congress and held that booking photos should be exempted under 7(C) because they might be “embarrassing.” Led by Washington, D.C.-based appellate partner Bob Loeb, the petition stresses that the Sixth Circuit’s approach is at odds with Supreme Court precedent, adopts wholly subjective test unmoored from the intent of Congress and, if allowed to stand, will undermine the FOIA’s purpose of exposing government activity to the full sunlight of public scrutiny
The cert petition can be read here.