Justices broaden FOIA privacy exemption

Wednesday, March 31, 2004

Requesting personal files from the federal government under the Freedom of Information Act just got a great deal more difficult as a result of a Supreme Court ruling yesterday.

Ruling in the case of a California lawyer’s quest for death-scene photographs of Clinton White House aide Vince Foster, the Supreme Court broadened the privacy exemption of the FOIA and placed new burdens on requesters to overcome privacy interests. The ruling is the latest in a series of decisions in which the Court has given greater weight to privacy concerns than the public’s right to know.

Even though five investigations have determined that Foster, then deputy White House counsel, died by suicide in 1993, lawyer Allan Favish, among others, remains unconvinced. He sought photographs from the scene at a park in Virginia where Foster’s body was found. The Office of Independent Counsel for the Whitewater and other Clinton-era investigations, which had the photos, denied the request, and Foster’s family also intervened in the litigation to stop their release. The independent counsel closed up shop earlier this month, and the photos are now in the possession of the National Archives, which is why the high court ruling is now called National Archives and Records Administration v. Favish.

Whereas traditionally, FOIA requesters do not need to explain why they are asking for certain documents, the Court’s ruling yesterday requires that when privacy interests are involved, “the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.”

That new standard brought swift objections from open-government advocates. “The new requirement that requesters must show evidence of government wrongdoing before such records will be released will almost surely prevent reporters and other interested citizens from investigating suspicious deaths,” said Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press. “I don’t know how you can expect requesters to prove a negative before they are entitled to a record under the Freedom of Information Act.”

The FOIA, long a valued tool for the news media and the public, nonetheless allows government agencies to withhold documents for a variety of specific reasons. Under exemption 7(C) the government may refuse to disclose materials that could, if released, cause an “unwarranted invasion of personal privacy.” A recent study by the Reporters Committee for Freedom of the Press found that privacy is now the leading reason cited by government agencies in refusing FOIA requests. Both the 7(C) exemption at issue in the Favish case and another exemption protecting personnel and medical records invoke privacy concerns.

Favish, who argued his own cause before the Supreme Court last December, was joined by press organizations in arguing to the Court that the privacy exemption does not extend to family members or survivors of the person whose documents are being sought.

But the Court’s unanimous ruling, written by Justice Anthony Kennedy, rejects that view categorically. Reviewing the history of burial rites back to ancient Greece, Kennedy said Foster’s family had a long-recognized right not to have pictures of his body released. “They seek to be shielded by the exemption to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility, not for the sake of the deceased.”

Kennedy continued, “We think it proper to conclude from Congress’ use of the term ‘personal privacy’ that it intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and in our cultural traditions. This does not mean that the family is in the same position as the individual who is the subject of the disclosure. We have little difficulty, however, in finding in our case law and traditions the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased family member’s remains for public purposes.”

Though much of the ruling appears confined to death-scene photographs, the rule or standard enunciated by Kennedy appears to cover any FOIA request in which privacy interests are involved — though it does not spell out how the presence or absence of those interests is supposed to be determined.

Kennedy wrote, “Where the privacy concerns addressed by Exemption 7(C) are present, the exemption requires the person requesting the information to establish a sufficient reason for the disclosure. First, the citizen must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake. Second, the citizen must show the information is likely to advance that interest. Otherwise, the invasion of privacy is unwarranted.”

Later in the opinion, Kennedy elaborates. “We hold that, where there is a privacy interest protected by Exemption 7(C) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.”

Dalglish argues the standard will be very difficult to meet. “In essence, they are requiring requesters to demonstrate government misdeeds before they get the record. Usually, that’s why they’re asking for the record — to show government impropriety. It puts the requester in an impossible situation.”

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