Fears of 'unsavory' coverage outweigh interests in Foster autopsy photos

From the Winter 2000 issue of The News Media & The Law, page 8.

The claim by Vince Foster's sister that disclosure of photographs of his body might subject his family to "unsavory and distasteful media coverage" figured prominently in an appeals court's decision to uphold the denial of the photographs to a conservative organization that believes there are significant discrepancies in government accounts of Foster's death.

The privacy invasion would not be outweighed, the court held, by any public interest in resolving the inconsistencies of a complex situation.

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Accuracy in Media (AIM), along with several other conservative and ultra-conservative organizations and individuals, has repeatedly asserted that high-level government officials covered up details of the 1993 death of White House Deputy Counsel Vincent Foster in Fort Marcy Park in McLean, Va.

AIM director Reed Irvine has issued a position paper charging that First Lady Hillary Clinton was involved in obstructing the investigation of Foster's death.

The U.S. Park Police, the law enforcement arm of the National Park Service, initially determined in a 58-page report that Foster died of a self-inflicted gunshot wound. That finding was reinforced in two congressional inquiries and an investigation by Independent Counsel Kenneth Starr.

But AIM still claims that the government has been deceptive in its findings and lists a series of "evidentiary inconsistencies." It says in court pleadings that the autopsy report is at odds with government explanations of Foster's wounds, and that pathologists "relocated" the entrance wound from the bullet "apparently in order to align it with the alleged exit wound."

In June 1997, AIM filed an extensive Freedom of Information Act request with the National Park Service for records of its investigation, and over time the agency made numerous records available. Among items it denied, however, were crime scene and autopsy photographs of Foster's body.

The agency concluded that disclosure of the photographs would cause renewed grief to Foster's family, and it invoked the privacy arm of the FOI Act's exemption for law enforcement records (Exemption 7c).

In September 1997, AIM sued for the photographs in federal District Court in Washington, D.C. It told the court that the privacy interests of the Foster family were irrelevant, that the privacy exemption can only be invoked to protect the subject of the records, but not after the subject's death.

Quoting from the U.S. Supreme Court's 1989 decision in Department of Justice v. Reporters Committee, AIM's attorney said the high court recognizes two kinds of privacy in the FOI Act: the individual interest in avoiding disclosure of personal matters, and the interest in independence in making certain decisions.

The government has inappropriately added a "family grief" arm to the privacy exemptions, AIM said.

And even if family members had a privacy interest, AIM said, the public's interest in reconciling significant questions about the investigation would outweigh it.

AIM also asked the judge to review the records in chambers to determine if they should be released.

The National Park Service told the court that the family's privacy interest was legitimate, submitting an affidavit from Sheila Foster Anthony, Vince Foster's sister, declaring that release of the photographs would bring "anguish" and cause "painful unwarranted invasion" of the privacy of the family. She said the disclosure would additionally "set off another round of intense scrutiny by the media."

"No public interest" would outweigh the Foster family's legitimate privacy interest, the agency said.

In November 1998, Judge Thomas Hogan ruled that photographs of Foster's body should not be disclosed, finding that the Foster family's "significant privacy interest" in not having them revealed outweighs the "potential ability of the photos to reveal the nature of the fatal wound."

Judge Hogan wrote that privacy interests described by the high court in Reporters Committee are not exhaustive. That case simply did not deal with the privacy interests of others. He said other federal appellate and district court decisions have recognized the privacy interests of a family. In this case, the family undoubtedly would suffer further grief and "likely further harassment," he said.

Judge Hogan wrote that privacy interests outweighed the public interest in disclosure. He recognized that "propriety of the government's administration of justice" is a legitimate public interest, but he said that the photographs would only show the nature of the fatal wounds.

He refused to review the records in chambers saying the government is entitled to a "presumption of good faith" in its statements that it has disclosed all non-exempt material responsive to a request.

AIM appealed to the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.). It reiterated that privacy exemptions do not exist to "protect against grief," saying again that the privacy interests of families does not exist in the Reporters Committee privacy definition. And AIM said that even if a privacy interest does exist, the public's strong interest in clearing up the discrepancies in governmental reports on Foster's death clearly would outweigh it.

The government argued that Anthony had "vividly articulated" her family's privacy interest and included an affidavit from her. Anthony predicted that "once again" her family would be the focus of "conceivably unsavory and distasteful media coverage." Although Anthony gave no examples, she said her family had "endured enough pain and personal invasion by the media and by those who investigated the death of my brother."

The government also pointed to language in a 1998 D.C. Circuit decision, Campbell v. Department of Justice, that "the court must also account for the fact that family related privacy expectations survive death." (See NM&L, Winter 1999)

The government said AIM had not even articulated an appropriate public interest. Nothing in the photographs would tell anything about the government, it said.

In late October, a three-judge panel ruled for the government. The definition of privacy in Reporters Committee was not "hermetically sealed," it said. Agreeing with AIM that the privacy exemption does not protect against "grief," the panel said it does, however, protect against the "invasion" of privacy that can occur. AIM cannot deny "the powerful sense of invasion bound to be aroused" in close survivors by "wanton publication of gruesome details of death by violence."

To overcome the privacy invasion, AIM must show "compelling" interest, the court said, but its examples of inconsistent reports on Foster's death were not sufficient. Falsification by the agencies would show government illegality, the court said, but there is no evidence of falsification, only some variation from the "hurried assessments of details" by multiple agencies and personnel who converged "on a complex scene."

AIM has asked for a new hearing by the full appeals court. (AIM v. National Park Service)