Using the July 2016 federal appellate court decision in Detroit Free Press, Inc. v. U.S. Department of Justice as an analytical springboard, this article explores the expansion of Freedom of Information Act (FOIA) Exemption 7(C) in the Internet era. In Detroit Free Press, the Sixth Circuit recognized a privacy interest in mug shots under Exemption 7(C). The practical impact of the decision is to uphold the general policy of the U.S. Marshals Service not to release mug shots. This article illustrates the yawning gap between tort law, which this article argues would deny recovery for the Internet posting of the mug shots at issue in Detroit Free Press, and Exemption 7(C) when it comes to privacy concerns. Furthermore, this article critiques three key reasons why the Sixth Circuit in 2016 reversed its ruling from twenty years ago in which it held there was no privacy interest in mug shots. Troublingly for access advocates, courts are justifying expansion of the meaning of “personal privacy” within Exemption 7(C) as a mechanism for counteracting the ease and permanence of accessibility to information on the Internet.
Clay Calvert, Austin Vining, and Sebastian Zarate, Reining in Internet-Age Expansion of Exemption 7(C): Towards a Tort Law Approach for Ferreting out Legitimate Privacy Concerns and Unwarranted Intrusions Under FOIA, 70 SMU L. Rev. 255 (2017)