Detroit Free Press, Inc. v. DOJ, No. 13-12939, 2014 WL 1584171 (E.D. Mich. Apr. 21, 2014) (Duggan, J.)

Detroit Free Press, Inc. v. DOJ, No. 13-12939, 2014 WL 1584171 (E.D. Mich. Apr. 21, 2014) (Duggan, J.)

Re: Request for booking photographs of four police officers awaiting trial on federal drug and public corruption charges

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 7(C):  The court "grants summary judgment in favor of [plaintiff] on Count I."  The court holds that "[a]s DOJ acknowledges, this Court, which is squarely situated within the Sixth Circuit, is bound by Free Press I as the law of this circuit" and, therefore, "[i]t necessarily follows that DOJ is unable to discharge its burden of justifying its nondisclosure of the four booking photographs at issue."  Moreover, the court finds that "[b]ecause the Court has rendered its decision with respect to Count I on the basis of stare decisis, the Court declines to address the merits of the parties' arguments regarding whether Free Press I was correctly decided." 

However, the court also finds that "[t]o the extent that [plaintiff] contends that principles of res judicata preclude DOJ from seeking en banc review of Free Press I in the Sixth Circuit, this Court does not agree."  The court further finds that the principle of collateral estoppel should not preclude DOJ from seeking further review.  The court explains that this is the case because "two federal appellate courts interpreting the privacy interest protected by Exemption 7(C) have reached a conclusion contrary to that reached by the Sixth Circuit" and because "collateral estoppel does not prevent DOJ, the 'dissatisfied party [,]' from 'seek[ing to redress what it believes was a] wrongly decided question.'"  Furthermore, DOJ's argument that the Supreme Court's NARA v. Favish decision "renders Free Press I's public interest analysis questionable" is "not . . . wholly without merit." 

Additionally, concerning plaintiff's request for "a declaratory ruling that the 2012 USMS Booking Photograph Policy is invalid insofar as it directs that Free Press I shall not be followed for booking photograph requests originating in the districts of the Sixth Circuit," the court holds that "[t]o the extent [plaintiff] seeks a ruling that the 2012 policy violates circuit precedent, this has been accomplished in resolving Count I."

Finally, the court notes that "while [it] does not endorse DOJ's conduct, which, as this Court has stated numerous times herein, was in violation of Sixth Circuit precedent, the Court does not believe that further delay in obtaining the photographs will . . . cause any harm to either Free Press or the public."  For this reason, "although DOJ must release the requested photographs, the Court grants DOJ's request to stay this order pending appeal."

• Litigation Considerations:  The court rejects plaintiff's request that the court "hold DOJ in contempt for promulgating USMS's 2012 booking photograph policy in violation of both Free Press I and II."  The court explains that "[w]ithout a 'definite and specific order of the court' requiring the production of the photographs at issue in this case, there is simply no cause to hold any entity or individual . . . in contempt of court."

• Attorney Fees:  The court holds that it "will award attorney's fees and costs to [plaintiff] should it prevail on appeal or in the event that an appeal is not taken, because, in either circumstance, [plaintiff] will have substantially prevailed as that term is used in the FOIA's fee statute."  With regard to the first fee entitlement factor, the court finds that it "does not believe that [plaintiff's] request of the booking photographs at issue was of benefit to the public."  Specifically, "the Court does not agree that the booking photographs of federal arrestees provide '"insight into the criminal justice administration conducted in the district."'"  With regard to the second fee entitlement factor, the court finds that "[a]lthough [it] recognizes that [plaintiff] may 'reap some commercial benefit from its access to the mug shots[,]' . . . the Court does not believe that this factor is particularly weighty given that the Sixth Circuit provided the newspaper with a right to the records in question."  With regard to the final fee entitlement factor, the court finds that "DOJ's withholding does have a reasonable basis in law, just not the law of the Sixth Circuit," and "[t]his Court is cognizant of the fact that in order to change the law, DOJ must appeal to a higher authority."