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From the Police Precinct to Your Neighbor’s Coffee Table: Limiting Public Dissemination of Mug Shots During an Ongoing Criminal Proceeding Under the Freedom of Information Act

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ABSTRACT: The Freedom of Information Act provides public access to government agency records. Agencies have discretion, however, to withhold any information that falls under one of the Act’s exemptions, including, in some instances, private individual records. While the Supreme Court has recognized that criminal detainees have a privacy interest in restricted dissemination of their criminal records, it has yet to rule on whether the same privacy interest exists for mug shots. Currently, there is a circuit split over this issue. This Note analyzes the split in light of the purpose and history of the Freedom of Information Act and argues that future courts that entertain the issue should adopt the reasoning employed by the Tenth Circuit—namely, recognizing a privacy right in detainees’ mug shots in ongoing criminal proceedings. The Supreme Court has already recognized the detrimental and lasting stigma on the not-yet convicted detainee. In holding that such a privacy interest exists, the Court will maintain consistency in its tendency toward increased privacy protection under the Act, minimize negative stigma, and still adhere to the Act’s purpose.

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