Petrelis Files

US Marshals Withhold Judy Miller's Mug Shot; Appeal Filed

U.S. Department of Justice
United States Marshal Service
Office of General Council
Washington, DC 20531

October 25, 2005

Re: Freedom of Information Act Request No. 2006USMS8868

Dear Mr. Petrelis:

The United States Marshals Service is responding to your request for the mug shot of Judith Miller.

The Marshals Service is denying your request pursuant to exemption 7(c) of the Freedom of Information Act, 5 U.S.C. Section 552 (b). Exemption 7(c) allows an agency to withhold records or information compiled for law enforcement purposes, to the extent that the production of such records or information could reasonably be expected to constitute an unwarranted invasion of personal privacy. A discretionary release of this information would be in violation of the Privacy Act of 1974, 5 U.S.C. Section 552a. See also Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989).

If you are dissatisfied with my action on this request, you may appeal by writing to the Director, Office of Information and Privacy, United States Department of Justice, Flag Building, Suite 570, Washington, DC 20530, within 60 from the date of this letter. Both the letter and the envelope should be clearly marked "Freedom of Information Act Appeal."

In the event you are dissatisfied with the results of any such appeal, judicial review will thereafter be available to you in United States District Court for the judicial district in which you reside or have your principal place of business, or in the District of Columbia.

Sincerely,
William E. Bordley
FOI/PA Officer, Associate General Counsel
Office of General Counsel

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November 1, 2005

Director
FOIA Office
Office of Information and Privacy
U.S. Department of Justice
Flag Building, Suite 579
Washington, DC 20530

Re: FOIA Appeal of Request No. 2006USMS8868

Dear Sir or Madam:

This letter is my formal appeal of the U.S. Marshals Service’s October 25 denial of my Freedom of Information Act request for New York Times reporter Judith Miller’s mug shot. The Marshals Service has assigned my FOIA request the following number: 2006USMS8868.

The denial letter from the Marshals Service states Miller’s mug shot can’t be released because of Exemption 7 (c) of FOIA, which allows a federal agency to withhold records or documents because release of them could constitute an unwarranted invasion of privacy.

My appeal is based on several arguments, as listed below.

First of all, the web site for the Marshals Service posts photos of fugitives and several of the photos are mug shots taken by the service when the suspects were previously in the marshals’ custody.

Second, the 1996 ruling by the U.S. Court of Appeal for the Sixth Circuit, Detroit Free Press v. Department of Justice, Nos. 94-1540/1720, upheld the release of mug shots by the Marshals Service under the provisions of FOIA.

And third, an important ruling reported in the September 19, 2005, Detroit Free Press said the paper “has won a partial victory in its legal battle to require the U.S. Marshals Service release photos of criminal defendants who appear in U.S. District Court in Detroit.

“But U.S. District Judge Anna Diggs Taylor declined a Free Press request Monday that the photos be processed by the Marshals Service in Detroit rather than at its headquarters in Washington, D.C.

“Her decision, in effect, means the Marshals Service can take 20 days to process the requests under the Federal Freedom of Information Act. Mug shots previously requested in Detroit usually were provided the same day.

“The Free Press and the Akron Beacon Journal in Ohio sued the Marshals Service earlier this year after it stopped providing the photos on the grounds that government said in court documents that providing them would invade defendants’ privacy.

“The Marshals Service had previously honored such requests in Kentucky, Michigan, Ohio and Tennessee based on a 1996 U.S. 6th Circuit Court decision resulting from a Free Press lawsuit. […]”

If the Marshals Service’s web site can use mug shots of fugitives from the Marshals Service, and there are two legal rulings upholding the release of mug shots taken by the Marshals Service, there is ample precedent for releasing Judith Miller’s mug shot to me, according to the provisions of FOIA.

I don’t think my FOIA request for Miller’s mug shot should be denied by the Marshals Service’s headquarters in Washington, DC, especially when the Detroit office of the Marshals Service has for some time, and still does, release mug shots.

There should be uniform application of the FOIA by all offices of the federal Marshals Service, including the headquarters in the District of Columbia, in relation to release of mug shots, not a patchwork of release policies. Different offices of the Marshals Service should not allow inconsistent adherence to FOIA provisions.

Therefore, I ask that my appeal be immediately granted and Judith Miller’s mug shot from the Marshal Service provided to me for noncommercial newsgathering purposes.

Regards,
Michael Petrelis