On Friday, the Sixth Circuit voted to rehear Detroit Free Press, Inc. v. USDOJ (Free Press II) en banc. As we have noted here and here, the Sixth Circuit has been reluctant recently to grant en banc review. As with any grant of en banc review, the previous judgments of the court are vacated and the case is restored to the docket. The Sixth Circuit historically hears en banc cases at two sittings each year, in June and December; however, the argument has not been scheduled yet.
In 1996, the Sixth Circuit decided Detroit Free Press v. United States Department of Justice, 73 F.3d 93 (1996) (Free Press I). The Sixth Circuit held that “the Freedom of Information Act requires government agencies to honor requests for the booking photographs of criminal defendants who have appeared in court during ongoing proceedings.” Constrained by the holding in Free Press I, the Sixth Circuit, through a per curium opinion, granted summary judgment to the Detroit Free Press in Free Press II. However, the court “urge[d] the full court to reconsider the merits of Free Press I.”
Given the recent reluctance to grant en banc review, the Sixth Circuit’s decision to rehear Free Press II demonstrates the significance of issue. The majority of the Sixth Circuit’s opinion in Free Press II was dedicated to discussing the factors that merit reversing the holding in Free Press I., and it appears that a majority of the judges in the Sixth Circuit agree that the issue is one that demands a closer review. We will monitor this case’s progression through the docket and will offer updates as they come.