One Foster photo must be released; court must consider more

From the Summer 2000 issue of The News Media & The Law, page 26.

A picture of the late Vince Foster’s right hand holding the gun with which he fatally shot himself, which had appeared both in Time Magazine and on ABC News, must be released in response to a Freedom of Information Act request, a three-judge panel of the U.S. Court of Appeals in San Francisco (9th Cir.) ruled in mid-July. The court rejected government arguments that its release would violate the privacy of Foster’s family.

Foster, who was White House Deputy Counsel, died of self-inflicted gunshot wounds in 1993 in Fort Marcy Park in northern Virginia.

Overturning the decision of a federal District Court in Los Angeles, the appeals panel also ruled that the Office of Independent Counsel had not established that disclosure of that photo or any of nine other polaroid pictures taken at the scene on the day of Foster’s suicide would intrude upon the privacy of Foster’s family. The privacy arm of the law enforcement exemption might apply to protect the nine unpublished photos but the District Court could not have made that determination based on the facts before it, the divided panel ruled.

*

Allan Favish, an attorney who believes that former White House Deputy Counsel Vince Foster’s death was probably not a suicide — or at least that government investigations into his death were too slipshod to make that finding — filed an FOI request with the Office of Independent Counsel in January 1997 seeking 150 photographs identified during Senate hearings in 1994 into the Madison Guaranty Savings & Loan and the Whitewater Corporation. He also sought a photograph of a gun held in Foster’s right hand that appeared in Time magazine and on ABC News. All but nine of the photographs he sought had been published.

In a short categorical response, OIC refused to give Favish the photographs, saying that disclosure would interfere with enforcement proceedings or violate privacy. Favish appealed, but the OIC simply reiterated that the exemptions applied, without explaining why they were invoked.

In March 1997, Favish sued for the records in U.S. District Court in Los Angeles. OIC initially responded to the court that Favish was not “entitled to the relief sought” without addressing the exemptions it had claimed, but several months later it gave him black-and-white prints of most of the photographs. Favish continued to press for new prints of all the photos in color.

The government told the court that release of the photos would perpetuate the Foster family’s grief and that their personal privacy interests outweighed any public interest in photographs of Foster’s body. The government pointed out that investigations already had concluded that Foster’s death was a suicide, and so no public interest would be served by disclosure.

In March 1998, the lower court ruled that Favish could have new color prints of the disclosed pictures if he paid for them. It also ruled that a photograph of Foster’s eyeglasses at the scene would be released. But the photograph of the deceased Foster’s hand on the gun that apparently had been leaked to ABC News and Time magazine — and had been copied from an ABC News broadcast and widely published — would be withheld. The nine previously unpublished photos would also be withheld as the privacy interest of Foster’s family would outweigh any public interest in disclosure, the lower court said.

Favish appealed. He said that Foster’s family has no privacy interest in the photos, and even if there were such an interest it would be outweighed by the public’s need to know if their government is being accurate about Foster’s death. He claimed the investigation of the death was so grossly incomplete and untrustworthy that the public’s need to evaluate the performance of the federal agencies and park police involved justifies disclosure of the photographs.

Filing an affidavit from Foster’s sister, Sheila Foster Anthony, the government countered that release of the photos would perpetuate the family’s grief and that personal privacy interests outweighed any public interest in photographs of Foster’s body. The government repeated that investigations already had concluded that Foster’s death was a suicide.

In March 1998, the trial court held that OIC must provide Favish copies of all photos that did not show any of Foster’s body, including a picture of Foster’s glasses lying on the ground, and that it must provide color photos for photographs originally taken in color. However, the court allowed the government to withhold all 10 photographs of Foster’s body including the already published photo of Foster’s hand on the gun.

Favish appealed to the U.S. Court of Appeals in San Francisco (9th Cir). Family members have no privacy interest in the photographs because they are not in the photos, he said. And even if they did have an interest, it would be outweighed by the public’s interest in disclosure since, he said, “official investigations of the death are untrustworthy, nonsensical and deceptive.”

The U.S. Supreme Court had described only two definitions of “privacy,” Favish said: The disclosure of personal matters and the interest in exercising independence in making certain kinds of important decisions. Neither definition encompasses a right to be free of emotional grief.

And although the government had described the photos as “graphic, explicit and extremely upsetting,” the one photograph that had been published was no such thing, Favish noted. It merely depicted a hand on a gun. Furthermore, no one who testified about the crime scene had indicated that it was in any way gruesome.

He also outlined disparities in official findings about Foster’s death, which he said show the public’s need for more published evidence.

In mid-July, the appeals panel in a split decision reversed the decision, granting release of the photo of the hand on the gun that had already been published. It also remanded the case to the trial court, ordering it to actually look at the nine remaining photos and determine if their disclosure would invade the privacy of the survivors.

The personal privacy in the FOI Act exemption “extends to the memory of the deceased held by those tied closely to the deceased by blood or love,” the panel ruled. Violating a memory “is to invade the personality of the survivor,” it said.

Strictly speaking it is not the production of the records that would cause harm, but the exploitation by the media, the panel said, and probable consequences may be considered in measuring privacy. The court said, “The intrusion of the media would constitute invasion of an aspect of human personality essential to being human, the survivor’s memory of the beloved dead.”

But balancing privacy and public interests in the photos without a knowledge of what the photographs show “would be an exercise in the air,” the panel said. The OIC represented that the 10 photos are “graphic, explicit and extremely upsetting,” but the only picture the court had seen, the picture of the hand on the gun, certainly did not fit that description. When agency affidavits are insufficiently detailed, in camera review is appropriate, the court said.

A dissenting judge agreed that the photograph of Foster’s right hand clutching the gun should be released, but stated that the OIC had provided enough of a factual description of the other nine undisclosed photos to allow the court to find that their disclosure would cause an unwarranted intrusion on the family’s privacy.