Weighing Public Access Against Survivor Privacy

U.S. Supreme Court weighs ‘survivor privacy’ interests in FOI case over death-scene photographs of former White House counsel Vince Foster

From the Winter 2004 issue of The News Media & The Law, page 26.

By Rebecca Daugherty

In early December, the U.S. Supreme Court heard the gov ernment challenge California attorney Allan Favish’s right to see remaining photographs of the body of the late Vince Foster, deputy White House counsel to President Clinton who died by gunshot wound in 1993 in Fort Marcy Park in northern Virginia.

The government, in several formal pronouncements, determined that Foster died by his own gun. But Favish claims that the government has not told the whole story, and that records — including photographs sought under the federal Freedom of Information Act — may show otherwise.

Because Foster is dead, he arguably has no privacy interest in these photographs, but the government argued vigorously that they should not be released because of “survivor privacy” interests. Foster’s sister, Sheila Foster Anthony, and his wife, Lisa Foster Moody, joined the government in suing to prevent disclosure.

Journalists did not bring the lawsuit for these photographs, but their access to government records that concern individuals will be affected by whatever decision the justices reach. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief, joined by most national news media groups, arguing that there is a public interest in the photographs, and that the court should balance that interest against a minimal privacy interest.

The Silha Center for Media Ethics & Law at the University of Minnesota also filed a friend-of-the-court brief, challenging the concept of “survivor privacy.”

Privacy exemptions to the federal FOI Act require a balancing test. To determine if records are exempt, FOI officers and specialists — and ultimately the courts — balance the intrusion on personal privacy against the public’s interest in disclosure. Any change the High Court makes in defining “personal privacy” or “public interest” skews the balance. Whatever changes the Court makes to either phrase will reverberate in greater grants or denials of information.

In the 1989 case Department of Justice v. Reporters Committee, the justices severely limited access to government records involving individuals. The Reporters Committee and the late CBS newsman Robert Schakne sought public record information contained in criminal history rap sheets compiled by the FBI, but the justices ruled that there was a privacy interest in the “practical obscurity” of information distant in time and place. Privacy, the Court said, encompasses the right to control information about yourself.

The Court also created a new definition of public interest for use in FOI Act processing. The only interest that can be considered is the public’s interest in operations and activities of the government.

It is impossible to tell from the argument what the Supreme Court’s ruling will be, but most of the justices were vigorous in questioning Favish, Deputy Solicitor General Patricia Millett, who argued for the government, and attorney James Hamilton, who represented the Foster family.

During questioning, Justices Stephen Breyer and David Souter and counsel for the Favish family speculated that the real privacy intrusion would come from renewed news media interest in the death. Here is a play-by-play review of the spirited argument:

Millett opened: The death-scene photographs exist for limited law enforcement use and are not freely available in law, custom or practice. The FOI Act’s purpose “is not maximum disclosure, but responsible disclosure.” Publication of death scene photographs is “beyond the bounds” of responsible disclosure, an “unwarranted invasion” of surviving family members’ privacy.

Chief Justice William Rehnquist questioned if the privacy invasion only occurred if there were identifiable family members. Justice Antonin Scalia wondered if “embarrassing and gory photographs” might be released if you had no survivors — or if your survivors did not like you.

Millett said the federal government identifies a survivor before it makes this “specialized application” of a privacy interest, although it might assume an invasion of privacy where many victim remains could not be identified, as in the World Trade Center collapse.

But Scalia said it doesn’t seem to him that survivors’ “privacy” is being invaded — it’s their sensitivity. Surely they have an interest in not having their relative displayed this way, but he would not call that a “privacy interest.”

Millett said what is protected is survivors’ ability to remember the deceased, to dispose of the body with dignity, and to have seclusion in their grief. Courts, custom and practice recognize those concepts, she said.

The justices asked what the test for invoking the exemption should be. Millett said the government must weigh and balance the intrusion on privacy against how the information will serve the public’s interest, how it will contribute significantly to public understanding of the government’s operations and activities. The court of appeals in the District of Columbia has said there must be “compelling evidence” of government wrongdoing. The Justice Department only requires “clear evidence.” But there has to be some evidence of misconduct — the requester must come forward with his own clear evidence — or there is no weight for the public interest side.

Scalia ventured that if the evidence were already “compelling,” there would be no need for photographs.

Souter asked why “wrongdoing” enters into the test. What about making the government look good? What if someone says, “They are hiding their light under a bushel. I want the people to know how fine they’ve done.” Isn’t that a legitimate public interest? Souter asked.

No, Millett said. Interest in making the government look good is never going to outweigh individuals’ privacy interests.

Hamilton, the Foster family attorney, said showing photographs of deceased loved ones violates a “survivor’s right of privacy.”

Scalia asked what public interest would overcome that privacy interest.

It isn’t present in this case, Hamilton said — not where there have been five investigations, all concluding that Foster committed suicide.

Yes, said Justice John Paul Stevens, but the ultimate conclusion does not necessarily answer the claim of public interest. The public may have an interest in how the investigation was conducted.

There were voluminous reports released, Hamilton replied, and it is difficult to see what the public interest is in these additional pictures that would grossly invade the family’s privacy.

But Favish claims the autopsy report was altered, Scalia said. Then “the conspiracy theorists” would say, “Oh, all the worse, all the worse . . . This conspiracy is sooo widespread.”

Favish opened his argument with a claim that there is no clearer definition of privacy than that in the 1989 Reporters Committee case, a definition Congress intended to apply to all FOI cases: Privacy is the right to control information about yourself, he said.

Justice Ruth Bader Ginsberg protested. “But this issue was not before the Court, there were no family members,” she said.

Breyer jumped in. “Respect for the dead, respect for survivors,” runs through religion, myth and tragedy. “Why isn’t it important enough to believe that Congress also intended to encompass that?” he asked.

Congress gave no indication it intended to protect that interest, Favish said.

Scalia said to Favish: “I would think your response would be . . . the word ‘privacy’ is not a normal way of expressing those concerns.”

Souter cited Justice Louis Brandeis’s privacy definition, “the right to be let alone.” That would encompass the family’s right not to be “assaulted” by these photographs. Souter speculated, “These things are going to be published, the family is going to be subject to intrusive inquiries again. People are going to ask them for comments on it. They are going to go to their house again and take a picture of the front of the house.”

Why, Souter asked, aren’t these interests easily encompassed by the sense of privacy in the exemption? Why would privacy be such a “circumscribed” concept?

Justice Anthony Kennedy referred to the language in Reporters Committee: The common law and literal understandings of privacy “encompass” — not are “exclusively confined to” — an individual’s control of information about himself.

But that is the only definition in all of the scholarly articles cited by the Court in Reporters Committee, Favish responded. Nothing in the common law, other than a few aberrational cases, and nothing in the legislative history suggests this “survivor privacy.”

He said that in this case, if the balance is made, there is an overwhelming case for disclosure. There was questionable government conduct in the investigation. And “to a 100 percent certainty,” there was at least negligence in reporting the investigations to the public. The doctor’s report was not an autopsy report, and there were changes to that report. Nobody investigated that language, and nobody investigated the FBI.

But what if you win? Breyer asked. The police investigate “hundreds of thousands of millions” of people who they later conclude are innocent. What would protect those people from having the investigations displayed on the front page of their local paper?

Favish answered that all factors must be considered in the balance. Here, a deputy White House counsel was close to a President of the United States who was himself under investigation. These facts are unique. “We’re talking about the highest levels of government . . . a mysterious death by gunshot.”

“But how can you confine it to uniqueness?” Justice Souter asked. Why doesn’t everyone in every hometown have a significant interest in their police department’s adequate homicide investigations?

Scalia asked, if the privacy exemption covers this at all, what would the public interest be? Relatives are going to be very much harmed by this, as shown by their lengthy and expensive litigation. What is the interest on the other side? “You have demonstrated some foot faults,” he told Favish, but “who cares?”

Favish said, in the end those reports may be correct and Foster’s death was a suicide in the park. But when a high-level government official is involved in this kind of investigation, and there are so many investigations by the government, apparently to get it right, you have a public interest “unlike any other case I could imagine.”

In rebuttal, Millett told Breyer he “hit the nail on the head.” If this investigation isn’t enough, what will happen to the routine case? Always something more could have been done, something more should have been revealed, she said. There will be little protection “left for privacy.”

And the problem, she continued, will not just be that the information “will end up on the front page of The New York Times,” but under the Electronic FOI Act, it will be posted on government Web sites. You would find autopsy photographs of military officials on the Defense Department Web site, she predicted.