Indicted Executive’s Mug Shots Are Exempt from FOIA

11th Circuit says booking photographs don't serve the public interest.

Freelance journalist Theodore Karantsalis might have thought that requesting a convicted white-collar felon’s mug shots from the U.S. Marshals Service would be straightforward. Instead, his 2009 Freedom of Information Act (FOIA) filing led to a lawsuit and eventually set the 6th and 11th Circuits in conflict over when personal privacy trumps the public’s right to information.

In 2003, Luis Giro was indicted over allegations that his Miami-based firm, Giro Investments Group, had promised false yields to investors and used clients’ money to operate a Ponzi scheme. According to the Department of Justice (DOJ), Giro had misappropriated more than $2 million. Giro fled the country but was ultimately arrested in Venezuela in May 2009 and handed over to the FBI. On June 22, 2009, Giro pleaded guilty to securities fraud. When the U.S. Marshals Service took Giro into custody, it took mug shots.

Experts say the 11th Circuit’s ruling means media outlets will continue to flock to the 6th Circuit to obtain mug shots. “That decision will control what happens across the country, because everyone will make their [FOIA] request through their affiliates in [Kentucky, Michigan, Ohio or Tennessee],” says Barry J. Pollack, a member in Miller & Chevalier’s white-collar and internal investigations group. He notes that is exactly what media organizations did recently to acquire the shooter’s mug shots after the January shooting in Arizona that critically injured Congresswoman Gabrielle Giffords. 

The circuit split demonstrates how FOIA could become the subject of a patchwork of interpretations, which causes unease among media lawyers.

Erik Sherman

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