A Federal District Court judge in Florida denied a freelance journalist's request for the mug shots of a man who had pleaded guilty to securities fraud after the judge determined that the guilty man's privacy interests outweighed the public interest in the photos' release in a Dec. 14, 2009 decision.
Judge Paul Huck of the U.S. District Court for the Southern District of Florida said the United States Marshals Service was justified in denying the Freedom of Information Act (FOIA) request from freelance journalist Theodore Karantsalis seeking the mug shots of Luis Giro in Karantsalis v. U.S. Dep't. of Justice, 38 Media L. Rep. 1240 (S.D. Fla. 2009).
According to the opinion, Karantsalis had requested "copies of the mug shot photos of Luis Giro" pursuant to the FOIA, 5 U.S.C. § 552. Giro, the former president of Giro Investments Group, Inc., pleaded guilty to securities fraud in 2009 after being arrested by Venezuelan police. According to a June 23 FBI press release, Giro had been indicted in 2003 but was a fugitive until his arrest in May 2009.
Federal marshals had taken booking photographs of Giro after taking him into custody. They denied Karantsalis's request for the photographs, citing FOIA's Exemption 7©, which exempts "records or information compiled for law enforcement purposes . . . [that] could reasonably be expected to constitute an unwarranted invasion of personal privacy." Karantsalis then filed suit in U.S. District Court for the Southern District of Florida, and the Department of Justice (DOJ) moved for summary judgment.
Huck relied on an 11th Circuit case, Ray v. U.S. Dep't of Justice, 908 F.2d 1549 (11th Cir.1990), in ruling that the photos could be withheld because he determined that the mug shots of Giro fell under a valid exemption to the FOIA.
Huck's opinion stated that the Marshals Service has a policy not to release booking photographs of prisoners to the news media "unless doing so serves a law enforcement purpose," and that "the only law enforcement purpose for releasing a booking photograph is to address an issue involving a fugitive, which Giro - currently in federal prison - is not."
The opinion relied on the precedent of the U.S. Supreme Court case U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989), to determine whether releasing Giro's mug shots would represent an "an unwarranted invasion of personal privacy."
"The Court agrees . . . that a booking photograph is a unique and powerful type of photograph that raises personal privacy interests distinct from normal photographs," Huck wrote in the opinion. "A booking photograph is a vivid symbol of criminal accusation, which, when released to the public, intimates, and is often equated with, guilt. Further, a booking photograph captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties."
Huck later wrote that Giro, despite having pleaded guilty and appearing in open court, had "a continuing personal privacy interest in preventing public dissemination of his booking photographs" and that there was no public interest in disclosing Giro's mug shots.
"[T]he general curiosity of the public in Giro's facial expression during his booking photographs is not a cognizable interest that would 'contribute significantly to public understanding of the operations or activities of the government,'" Huck wrote, citing the policy behind the FOIA cited by the Supreme Court in Reporters Committee. "[T]he public obtains no discernible interest from viewing the booking photographs, except perhaps the negligible value of satisfying voyeuristic curiosities."
The opinion recognized that its decision varied from the precedent of the 6th Circuit U.S. Court of Appeals, which held in Detroit Free Press v. Dep't of Justice, 73 F.3d 93 (6th Cir. 1996), that some booking photographs must be disclosed even without a law enforcement purpose.
Karantsalis filed an appeal with the 11th Circuit U.S. Court of Appeals on March 1, 2010. In his appeal, Karantsalis argued that under 11th Circuit precedent, exemptions to the FOIA are to be construed narrowly, and that federal courts had a long history of refusing to find a privacy interest in booking photos.
"Giro was a six-year fugitive who pled guilty, and was awaiting sentencing at the time of Karantsalis' request," the appeal said. "He simply had no reasonable expectation of privacy in his mug shot."
Tampa Bay media law attorney David Borucke questioned the court's decision to extend privacy protection to Giro in a Jan. 20, 2010 summary of the case on the website for the law firm Holland & Knight.
"The privacy interest described in Karantsalis seems disconnected from the facts: Giro's criminal activities, his flight from law enforcement, the worldwide circulation of his driver's license photograph tied to an indictment, more than five years as a fugitive, his admission of guilt, a looming prison sentence, and a DOJ press release describing all of these events," Borucke wrote. "Whatever additional embarrassment Mr. Giro may sustain by the release of his mug shots, it surely pales in comparison to what he has already experienced."
- JACOB PARSLEY
SILHA FELLOW AND BULLETIN EDITOR