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I do not practice in the field of criminal law.

But I had to comment on the U.S. Sixth Circuit Court of Appeals decision that was released yesterday that I found interesting. The Sixth Circuit Court of Appeals is a federal Court of Appeals. It hears cases from United States District Courts in Tennessee, Kentucky, Ohio, and Michigan.

In yesterday's decision, the Court held that booking photographs, also known as "mugshots", those typically unflattering pictures of people who have been arrested, may be withheld from production in response to a request under the federal Freedom of Information Act ("FOIA").

In this case, a newspaper, the Detroit Free Press, requested photos under FOIA, and the United States Marshals Service turned down the request. The Court found that the Marshals Service was entitled to turn down the request.

In 1996, the same court took a different position. That case also involved the Detroit Free Press. In this new case, just 20 years later, the Court reversed course.

The Court held that arrestees have a privacy interest in their mugshots. Arrestees have privacy concerns about their mugshots being obtained and then spread around the world via the internet. These privacy concerns, the Court held, are sufficient to invoke an exception contained in FOIA.

The opposing interest, which the Court noted, was the importance of governmental transparency. The courts and the prosecutions in the courts should be open to the public, and should not be closed or secret matters. In this case, the Court held that privacy interests were the more important value.

The Court was not unanimous. There is a well written dissent (opposing view) from Judge Boggs.

I do not have a strong opinion about how this should come out, but I feel the opinion is a good one to read by anyone who has an interest in law and public policy. I have a suspicion that this may be headed to the United States Supreme Court.

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