Quick look at National Archives and Records Administration v. Favish

Tuesday, March 30, 2004

Case name: National Archives and Records Administration v. Favish (formerly Office of Independent Counsel v. Favish)

Background: Although five investigations have found that the 1993 death of Clinton White House aide Vince Foster was a case of suicide, California lawyer Allan Favish remains skeptical. Favish invoked the Freedom of Information Act in seeking public disclosure of death-scene photographs of Foster. He sued the Office of Independent Counsel, which had the photos, but on March 23, 2004, it ended its work, and the photos are now in possession of the National Archives. The government refused to release the photos, citing exemption 7(C) of the FOIA, which exempts from disclosure materials that could, if released, cause an “unwarranted invasion of personal privacy.” The 9th U.S. Circuit Court of Appeals ruled against the government in part, though it did acknowledge that Foster’s family had a privacy interest that should be recognized by the law.

Ruling: That the privacy interests involved in this case outweigh the public interest in disclosure of the photographs. Though Favish and other freedom-of-information advocates argued that the law’s privacy exemption protects only the individual himself or herself — not the family or survivors — the Court ruled that in fact survivors do have a valid privacy right, especially in the case of death-scene photographs, to seek “refuge from a sensation-seeking culture.” To balance the competing interests, the citizen seeking documents must show that the disclosure will advance a “significant” public interest and could uncover government impropriety.

Verbatim: “Our holding ensures that the privacy interests of surviving family members would allow the Government to deny these gruesome requests in appropriate cases. We find it inconceivable that Congress could have intended a definition of ‘personal privacy’ so narrow that it would allow convicted felons to obtain these materials without limitations at the expense of surviving family members’ personal privacy … .

“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.”

Line-up: The Court was unanimous. The opinion was written by Justice Anthony Kennedy.

First Amendment impact: The result was not surprising, but the language of the opinion, with heavy emphasis on privacy interests, was dramatic. It is the latest in a series of recent Supreme Court cases in which the public’s right to know has been deemed less important than personal privacy — a trend that could bode ill in future freedom-of-press cases as well. In the context of the FOIA, the ruling will make it far more difficult for the news media and public to obtain records when privacy is invoked. It puts the requester in the difficult position of predicting the significance of the documents requested without having seen them. The ruling does not appear to have an effect on the FOIA beyond cases in which the privacy exemption is invoked.

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