California attorney persists in effort to force disclosure of Foster suicide photographs

From the Summer 2002 issue of The News Media & The Law, page 40.

Even after a person is dead, the federal government might use the Freedom of Information Act’s exemption for personal privacy to withhold records about him. The government claims that when, as the result of some government disclosure, surviving loved ones could be reminded of the deceased or learn some gruesome detail about his death, there could be an intrusion on personal privacy.

This privacy-of-survivors theory was endorsed in 1989 by Judge Douglas Ginsburg of the U. S. Court of Appeals in Washington (D.C. Cir.) who found that the government could withhold the recorded last minutes of conversation between astronauts aboard the doomed Challenger Space Shuttle (even though it had released a transcript) because survivors and loved ones could be disturbed by hearing the voice inflections of the deceased. (New York Times v. NASA)

Since that decision, the federal government has routinely invoked the privacy exemptions to protect survivors’ privacy interests. Only rarely has a court found that the public’s interest in disclosure outweighs their interests.

But in June, the U.S. Court of Appeals in San Francisco (9th Cir.) made that finding. It ordered the government to release four more photographs taken during the investigation of Vince Foster’s death — three because the court said they could not cause distress to his survivors and one because its disclosure served the public’s interest in helping to explain how the government conducted its investigation.

The appeals court’s order followed its earlier decision to remand the case to the federal district court in Los Angeles for an examination of nine photographs withheld by the government to protect the privacy of Foster’s survivors.

The Ninth Circuit accepted the government’s contention that privacy exemptions can protect survivors’ “privacy,” but it refused to accept, without court review of withheld records, the government’s affidavits that the privacy intrusion likely to be suffered by Foster’s survivors if the photographs were disclosed would outweigh public concerns.

The lower court’s acceptance that a “balancing test” had taken place without looking at the pictures would be “balancing in the air,” the appeals court said.

The appeals court first made that ruling in July 2000, ordering a lower court to review nine photographs of the Foster death scene. Foster, who had been White House deputy counsel to President Clinton, was found dead from a gunshot wound in 1993 in Fort Marcy Park in northern Virginia.

Allan Favish, an attorney in Los Angeles, believes that the government, which called Foster’s death a suicide, could not possibly have made that finding from the investigation it conducted. Since 1997, he has sought photographs made at the scene from the Office of Independent Counsel.

Favish insisted that the public’s interest in what those photographs might reveal outweighs any privacy the family might forfeit if the photographs were published.

The divided panel sent Favish’s case back to the federal district court in Los Angeles because that court had relied on government affidavits describing the privacy intrusions and had not examined the pictures to determine for itself whether the public interest could outweigh any privacy intrusion likely to occur. (See NM&L, Summer 2000)

The panel noted several obstructionist actions by the government in dealing with Favish’s request:

It had first refused to provide Favish any photographs, on the basis that he “was not entitled” to them even though the bulk of those he requested had already been published as a part of a hearing.

In response to an administrative appeal, it said disclosure of the already published photographs would “interfere with law enforcement proceedings,” a ground the court said “made no sense.”

When the agency did release the photographs it only released them in black and white and would not produce them in color at Favish’s expense until ordered to do so by the lower court.

It had withheld a photograph published in Time magazine, claiming it had no way of knowing whether that photo had been published.

By the time Favish’s case came to court, the agency was withholding ten photographs, including the one published in Time, which it said were “graphic, explicit and extremely upsetting,” and the lower court allowed the government to invoke the privacy exemption to protect those pictures.

But the appeals panel disagreed. That description was not true of the widely disseminated picture in Time, the court noted, ordering that picture released. The lower court must look at the other photographs to determine if they should also be released.

The district court reviewed the nine withheld photographs and in January 2001 found that four were not so graphic or gruesome that their disclosure could harm any interest of the survivors. It also found that a fifth photograph contained information that enhances the public’s right to know and must be released.

In June, the split appeals panel accepted the lower court’s judgment but called for the withholding of another photograph because of its graphic display.

The dissenting judge on the first panel dissented from the later decision as well, reiterating his view that the court could rely on government affidavits that disclosure would intrude upon privacy.

(Favish v. Office of Independent Counsel) — RD