Dead Weight in the Balance

From the Spring 2004 issue of The News Media & The Law, page 35.

By Rebecca Daugherty

The U.S. Supreme Court ruled in March that when death images or data in law enforcement records could cause distress to survivors, the government can keep them secret. Courts will only consider releasing the records if a Freedom of Information Act requester shows evidence of government wrongdoing that the unseen images or data might reveal.

Not just any evidence will do, though. The evidence of wrongdoing uncovered by the FOI requester must be sufficient to convince “a reasonable man” that the possibility of government wrongdoing exists. Only with that evidence in hand will the government think about revealing death images or data in enforcement files.

Reversing the decision of a federal appeals panel in San Francisco, the high court in National Archives and Records Administration v. Favish deferred to the “privacy interests” of survivors in not being reminded of their loved ones by the disclosure of government documents.

Favish is a painful decision for reporters, even though it was not brought by one. The interests of California attorney Allan Favish were not unlike the interests of reporters who must regularly pursue leads, even those that may not pan out.

Favish wanted to see the pictures taken at the scene of the death of former White House deputy counsel Vince Foster. Favish believes the photographs might well provide answers to questions that underlie the investigations into Foster’s death, in a public park in northern Virginia in 1993, by gunshot wound. He believes that the pictures would be informative as to how Foster died.

Several government investigations had already concluded that Foster’s gunshot wounds were self-inflicted, but Favish does not trust them. He believes that the various investigations relied on each other rather than on independent fact gathering. He is still bewildered that the justices would deny him the opportunity to keep looking.

They did so unanimously.

To invoke the privacy exemption to the federal FOI Act (Exemption 6) or the privacy arm of the law enforcement exemption (Exemption 7c), agencies balance the intrusion into personal privacy that the disclosure might cause against the public’s interest in disclosure. It’s a tricky balancing act.

It is not a weighing of “apples against oranges,” even though the two conceptual sides of the scale are not at all comparable. A more apt imagery would be weighing pumpkins against grapes. In the routine FOI decisions made every day at government agencies, privacy has become a very big deal; the public’s interest is hardly considered at all.

In a 1989 case in which a reporter sought criminal history records of public arrests and convictions, the high court skewed the balance in favor of privacy. The government could protect remote privacy interests such as the “practical obscurity” of facts not currently before the public. The only public interest it could consider in the balance, weighing in for disclosure, would be the public’s interest in “operations and activities of government.” (Department of Justice v. Reporters Committee)

In the decade and a half since that decision, the government has begun finding privacy interests in the names of prisoners, in the addresses of homes involved in environmental clean-ups, in the identification of government workers charged with specific duties, in the names of people who petition for referendum, and even at some agencies in the names of FOI Act requesters.

For reporters, who can hardly use the act at all to find anything about named individuals — even people who are running the government or who suffer or benefit from its actions — “privacy” has taken on a whole new and sinister meaning.

There is a glimmer of good news in Favish. The court made clear — as the government has not — that the general privacy exemption, which only protects against a “clearly unwarranted” intrusion on privacy, cannot be invoked as freely as the law enforcement privacy exemption can. The law enforcement exemption more broadly protects information that could “reasonably be expected” to constitute an unwarranted invasion of personal privacy.

But at least for law enforcement records, Favish adds “survivor privacy” to the side of the pumpkins. And it lightens the weight of the grapes. Now requesters seeking law enforcement records about dead people have to first find evidence that some wrongdoing has occurred that might be addressed by the records they seek. They have to take that step before agencies will even consider making the records available.

And you can trust that the government will push the ruling further than it goes. Less than a month after the decision — in a case that does not involve survivors, personal privacy or even the Freedom of Information Act — the government, in a reply brief to the U.S. Supreme Court, cited Favish for the proposition that someone who seeks information about the government must present evidence that what the government is doing is not OK, in order to learn what the government is doing.

That case involves public interest groups Judicial Watch and Sierra Club, which want to know who was involved in Vice President Dick Cheney’s task force to develop a national energy policy. Cheney says only government officials were involved, but the groups want to learn if energy companies participated in the decision-making process. If they did, if they were part of the task force, the open meeting and record requirements of the Federal Advisory Committee Act would kick in. The public would have a rig ht to know what went on in those meetings.

The government, referring to the high court’s language about wrongdoing in Favish, points out that in the plaintiffs’ quest to know who participated in the task force, they have offered no evidence that anyone participated who should not have.

Could it come to the point that you can’t find out if anything is wrong unless you can show, to the government’s satisfaction, that something is probably wrong?

That would be just plain wrong .