Privacy issues under high court’s scope

Thursday, December 4, 2003

WASHINGTON — It was privacy day at the Supreme Court yesterday, which means that advocates of freedom of information and the First Amendment ought to be worried.

In two cases before the Court yesterday, Office of Independent Counsel v. Favish and Doe v. Chao, the justices heard debate over the impact of government disclosure of private information — the first in the context of the Freedom of Information Act, the second on the Privacy Act itself.

While justices in both cases seemed concerned about the invasion of privacy that government can cause, they did not seem totally sold on the notion that the answer is greater restriction on government disclosure or stricter fines against the government for improper releases.

The first case asks the Court to decide whether 10-year-old death-scene photos of then-deputy White House Counsel Vince Foster must be released under the Freedom of Information Act. Numerous investigations, including one under the supervision of then-Independent Counsel Kenneth Starr, concluded that Foster committed suicide. But Allan Favish, a Santa Clarita, Calif., lawyer, questioned the conclusion and sought the photos as part of his own research into the case.

In a series of rulings over several years, the independent counsel was ordered to release some but not all of the requested photos. In the appeal before the Court, the issue is whether the privacy interests of Foster’s family can be weighed as a factor against release.

Under the FOIA, government agencies may withhold documents if releasing them could “reasonably be expected to constitute an unwarranted invasion of personal privacy.” But the Favish case asks whether that exemption can be used to protect the privacy of someone other than the target of the FOIA request, in this case the family of Vince Foster.

In a rare move, Favish argued his own case before the justices, worrying FOIA advocates who were concerned that Favish would use his time before the Court to spin theories about Foster’s death.

By and large Favish resisted that temptation, providing details about the Foster autopsy mainly in response to comments and questions from justices. He said reports on Foster’s death suffered from “major omissions” that cast doubt on their conclusions, but he underscored that he has not reached any contrary view about the cause of Foster’s death.

Favish seemed to score points with the justices by arguing that if Congress meant to protect the privacy of surviving family members as well as the actual targets of FOIA requests, then it should have said so explicitly in the words of the law. “It is not for the Court, with all due respect, to rewrite the FOIA,” said Favish.

But victory may still elude Favish. Several justices appeared worried that if he wins, photos and documents from even the most routine law enforcement investigations would have to be disclosed. “I think they will determine survivors have privacy rights,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, who supported Favish and attended the arguments.

In the final moments of the hourlong hearing, sober silence greeted an assertion by the lawyer representing the independent counsel’s office that a win for Favish could even mean that autopsy photos of U.S. soldiers killed in Iraq would have to be released to the public. “There will be little protection left,” said Patricia Millett, assistant to the solicitor general.

Earlier, Millett conceded that most courts have ruled that “privacy dies with the individual.” But she said common-law court rulings have recognized that survivors have privacy rights too, aimed at protecting the memory and dignity of the person who died.

The aim of the FOIA, Millett said, is “not maximum exposure but responsible disclosure.” She said when the privacy exemption is invoked, the requesting party must show “compelling evidence of government wrongdoing” to overcome the privacy interest. Justice David Souter seemed troubled by that test, wondering aloud what would happen if an FOIA requester was motivated by a desire to make “government look good” rather than to expose wrongdoing.

On behalf of Foster’s widow and his sister, D.C. lawyer James Hamilton also argued strenuously against disclosure of the photographs. If Favish wins, Hamilton said, the photos would be fodder for “television and grocery-store tabloids,” as well as “ghoulish Web sites” that specialize in gruesome graphics. “It’s been 10 years. It is time to give this family some peace,” said Hamilton.

Noting that five investigations have reached the same conclusion about the cause of Foster’s death, Hamilton said, “There is no public interest on the other side.”

Toying with Hamilton, Justice Antonin Scalia said that in the mind of some, the fact that five probes agreed that Foster committed suicide would only fuel the theory that a government conspiracy and cover-up was under way.

Hamilton replied sarcastically that it was unlikely that Starr had conspired to protect the Clinton administration. To which Scalia replied cryptically, “Mr. Starr might have been trying to protect (former House Speaker) Newt Gingrich!”

  • In the second case argued yesterday, Doe v. Chao, the issue was the Privacy Act, and what remedies can be won by citizens whose privacy rights have been violated.

    The dispute involves coal miners who claimed that in the handling of their federal black-lung benefits, their Social Security numbers were improperly released to attorneys, judges and coal company representatives. Several of the miners, using pseudonyms, sued the government under the Privacy Act, which calls for damages of at least $1,000 for people harmed by the disclosures. But the 4th U.S. Circuit Court of Appeals ruled that the miners had not shown that they suffered any “actual damages” from the release.

    The justices heard lengthy and technical debate over whether actual harm must be shown to win damages, or if proof of intentional violation of the act is sufficient.

    Justice Stephen Breyer said that with widespread release of Social Security numbers and other information, “it is easy to imagine bankruptcy for the federal treasury” if it were made too easy to win damages. Government lawyer Malcolm Stewart also cautioned against making it too easy to recover Privacy Act damages against the government. “You have to show actual damages,” he said. “Social Security numbers are not inherently secret or private.”

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