Competing values of privacy, public disclosure to get high court test

Tuesday, May 13, 2003

WASHINGTON — The Supreme Court has agreed to review a case that could be a landmark in the growing battle between personal privacy concerns and public disclosure of government information.

The case, Office of Independent Counsel v. Favish involves a request by a California lawyer for access under the federal Freedom of Information Act to death-scene photographs of White House deputy counsel Vincent Foster.

Foster’s 1993 death in Fort Marcy Park in McLean, Va., has fueled nearly a decade’s worth of speculation among conspiracy theorists and critics of former President Clinton.

Allan J. Favish, a lawyer in Santa Clarita, Calif., is one of those who believes that Foster was murdered. The Office of Independent Counsel for Whitewater, along with numerous congressional committees and law enforcement agencies, concluded that Foster committed suicide. Favish invoked the FOIA to seek 150 death-scene and autopsy photos from the independent counsel in 1997. The photographs, he contends, could clear up conflicting reports of whether Foster suffered a neck wound.

Separate litigation by Accuracy in Media seeking similar photos from the
National Park Service failed, with the U.S. Court of Appeals for the D.C.
Circuit ruling that the surviving family’s privacy interests outweighed the
unsubstantiated allegations of government wrongdoing that were behind the
request for the photos.

When his FOIA request was denied, Favish filed a federal lawsuit in the central district of California. The district court ruled against him, though it did order the release of some of the requested photos. On appeal, a divided panel of the 9th U.S. Circuit Court of Appeals ruled partly in Favish’s favor. The appeals panel, like the D.C. Circuit, said Foster’s family had a valid privacy interest. But unlike the D.C. Circuit, the 9th Circuit said Favish did not have to justify his request by demonstrating government misconduct.

The appeals panel ordered a lower court judge to review the remaining 10 photos in contention and balance the public benefit against the privacy interest of the Foster family. On remand, the judge ordered release of five of the 10 photos. When the case went back to the appeals court, the appeals panel differed with the trial judge on one photo but ordered four released.

Under FOIA exemption 7(C), the government may withhold documents that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” But Favish claims that exemption only applies to the privacy of the person who is the subject of the documents — not family members. By expanding the exemption to protect the privacy of family members, Favish says the 9th Circuit ruling will give government an excuse to hide embarrassing documents in newsworthy cases where disclosure is most warranted.

The Foster family argues that Favish should have been required to submit “compelling evidence of governmental misconduct to warrant overriding privacy interests implicated by such records.” The family’s brief asserts the Foster family has already experienced “acute distress” over the leaked release of one death-scene photograph — of Foster’s hand holding the gun that killed him — that appeared in Time magazine.

The independent counsel, represented by the solicitor general’s office, says the privacy issue needs to be resolved. The independent counsel’s brief notes that all of the circuit courts that have ruled on the issue say the privacy exemption of FOIA extends to close surviving family members. Similar skirmishes over release of autopsy photos of President Kennedy and audiotapes of the final moments of the Challenger disaster were not reviewed by the high court.

“FOIA, however, does not give the public a generalized ‘right to know’ personal details about private third parties that happen to be maintained in government files,” the government told the Court. “Such information may be disclosed only if it would directly advance the public’s knowledge of the government’s activities and operations, and if the value of that knowledge outweighs the intrusion on third-party privacy.”

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