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High court denies access to photos of Vince Foster death

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    News Media Update         U.S. SUPREME COURT         Freedom of Information    

High court denies access to photos of Vince Foster death

  • The high court today recognized a “survivor privacy” right to be protected by the law enforcement exemption to the federal FOI Act, calling upon requesters to give evidence of government wrongdoing before agencies will disclose death images that might cause pain to survivors.

March 30, 2004 — The U.S. Supreme Court today unanimously recognized a right of “survivor privacy” that allows the government to invoke the privacy arm of the law enforcement exemption to the Freedom of Information Act in order to protect the sensibilities of survivors. It reversed the decision of a federal appeals court in San Francisco (9th Cir.)

The decision requires FOI requesters who seek law enforcement records of death images or data that might be painful to survivors, to provide the government with evidence of government wrongdoing. Until they do, the government will not consider release of that information.

The high court denied California attorney Allan Favish access to photographs of the late Vince Foster, deputy counsel to the Clinton White House whose death by gunshot wound had been ruled a suicide. Favish questioned the determination of suicide, despite the conclusions of several governmental investigations, some of which overlapped.

The Reporters Committee for Freedom of the Press and other news media organizations had filed a brief in support of Favish’s request. They argued that there is plainly a public interest in the unnatural (and public) death of a public official possessing information involving an investigation of high level officials.

In National Archives v. Favish , Justice Anthony Kennedy wrote that Foster’s family has a privacy interest in avoiding suffering that might be caused by publication of his death scene images.

Kennedy made clear that the protected privacy interest is that of the Foster family and not of Foster himself. The pictures are not withheld because they would reveal private information about Foster, or because they would be detrimental to his posthumous reputation or to any other personal interest of Foster’s. Under common law, neither dead people nor survivors have an interest in the privacy of the deceased.

Foster’s relatives “seek to be shielded from a sensation-seeking culture for their own peace of mind and tranquility, not for the sake of the deceased,” he wrote.

The opinion also distinguished the law enforcement privacy exemption to the FOI Act, invoked here which protects information that “could reasonably be expected to constitute an unwarranted invasion of privacy” from another exemption to the FOI Act that protects privacy interests in general personnel, medical and similar records held by the government.

The other, more far reaching, privacy exemption “in marked contrast” would only protect records where disclosure would cause a “clearly unwarranted” intrusion on personal privacy, Kennedy wrote.

For law enforcement information where privacy interests of survivors are to be weighed against the public’s interest in learning about the government’s activities, the court created a new and stringent balancing test..

Recognizing that the public may have an interest in how the government investigates a mysterious death, the court said that now, in the case of photographic images or other data concerning a mysterious death, a requester must actually present evidence of government officials’ wrongdoing — that they acted negligently or improperly in performing their duties — in order to gain disclosure.

The evidence does not have to be “clear evidence,” but it must be a meaningful evidentiary showing, sufficient to make a reasonable person believe that an impropriety has occurred. Only when the requester presents that evidence to the government can he hope to obtain law enforcement records that might intrude upon the privacy of survivors.

While characterizing some current interests in the Foster pictures as “sensation seeking,” the court looked to ancient Greek drama to find a historical interest of survivors in respecting the dead.

(National Archives and Records Administration v. Favish) RD

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© 2004 The Reporters Committee for Freedom of the Press

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