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High court will hear FOI case for Foster photos

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High court will hear FOI case for Foster photos

  • The Supreme Court has agreed to hear a Freedom of Information Act case involving the privacy exemptions, and which could affect the kinds of information available to reporters.

May 6, 2003 — The U.S. Supreme Court will hear arguments this fall in a Freedom of Information Act case involving access to the photographs taken at the scene of the late Vincent Foster’s death at a federal park in McLean, Va. Foster, whose 1993 death was ruled a self-inflicted gunshot wound, served as deputy counsel to the Clinton White House.

The court accepted the case on the heels of its decision not to hear another case relating to privacy exemptions, in which the government claimed the FOI Act protects the names of gun owners and sellers whose guns are used to commit crimes. Legislation passed after the court had already agreed to hear the case prohibited expenditure of federal funds to make that information available. The high court sent the case back to a lower court to determine the effects of the new law.

Privacy exemptions increasingly have been used by the government during the past decade to protect government information that names individuals. In a friend-of-the-court brief filed in the gun owner case, media groups, including The Reporters Committee for Freedom of the Press, suggested that the court might want to revisit its 1989 decision in Department of Justice v. Reporters Committee. Since that decision, the government has made broad use of the privacy exemptions.

To use the privacy exemptions, the government balances the public’s interest in disclosure against the intrusions on personal privacy those disclosures might cause. In the 1989 decision the high court skewed the balance and ruled that the only public interest that can be considered is the public’s interest in knowing “what the government is up to.”

The government and Foster’s family claim that these exemptions protect his family from the release of the requested photographs, which they say exhibit no legitimate public interest.

Allan Favish, a party in this case who is now an attorney in California, has personally investigated Foster’s death for years. He rejects the conclusions of federal law enforcement officials that Foster died of a self-inflicted gunshot wound and says that the public’s interest in what the photographs might reveal outweighs any personal privacy interest of the family. He pursued his FOI Act case for the photographs through the U.S. Court of Appeals in San Francisco (9th Cir.).

In June 2002, that court, in a split decision, granted Favish access to all but four of the photographs. The government and Foster’s family appealed the court’s decision to release photographs to the high court.

Foster’s sister’s claims that disclosure of photographs of his body might subject his family to “unsavory and distasteful media coverage” figured prominently in another appeals court’s decision in 1999, reaching the opposite conclusion, that the photographs must be withheld.

In that case, AIM v. National Park Service, the U.S. Court of Appeals in Washington, D.C., ruled that the photographs were not available to conservative watchdog organizations led by Accuracy in Media, which had asserted in a lengthy report that high-level government officials covered up details of Foster’s 1993 death.

(Favish v. Office of Independent Counsel) RD

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© 2003 The Reporters Committee for Freedom of the Press

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