6th Circuit Holds No Right to Privacy in Mug Shot, etc.

In Bailey v. City of Port Huron, the Sixth Circuit held that a person charged with drunk driving does not have a privacy right in her mug shot, name, husband's occupation, or phone number. The U.S. Constitution does not provide a right a privacy for this information.

Dorothy Bailey and her husband, a sheriff's deputy, were involved in a one-car, alcohol-related rollover accident. The police department issued a press release about the incident and provided information to a local television station in response to a Freedom of Information Act (FOIA) request.

After the release of this information, the Baileys faced some harassment, such as being followed by two men in a store that Ms. Bailey recognized as men her husband had investigated. Also, someone deliberately cut their cable line.

Although the court recognized that substantive due process provides some privacy protection, those protections do not apply to one's criminal record. For more on the state of constitutional substantive due process rights, see Daniel O. Conkle's 2006 law review article: Three Theories of Substantive Due Process.

In short, the court concluded: "As a matter of federal constitutional law, a criminal suspect does not have a right to keep her mug shot and the information contained in a police report outside of the public domain - and least of all from legitimate requests for the information from the press."

As we monitor the development of privacy law in civil cases, it remains important to consider how privacy rights are being addressed in criminal matters because they may provide instructive principles or at times require a showing of why civil privacy issues should be distinguished from criminal privacy standards.