The U.S. Supreme Court today unanimously rejected the efforts of California attorney Allan Favish to see pictures taken at the scene of the death of the late Vince Foster, deputy counsel to the Clinton White House.
The decision, written by Justice Anthony Kennedy, addressed an interest of Foster’s sister, wife and children, in not being reminded of their grief by disclosure of the photographs. It added “survivor’s privacy” to the interests that can be protected under the privacy arm of the law enforcement exemption to the Freedom of Information Act.
The Reporters Committee for Freedom of the Press and other news media groups had asked the court to reject government arguments that its own investigations precluded any further need for public oversight that might be served by disclosure of the photographs. The news media said that there is plainly a public interest in the investigation of the death of a public official who, as Foster, possessed information involving an ongoing investigation of high level administration officials.
Under the ruling, FOI Act requesters who seek evidence of government wrongdoing from death images or data in government records must now provide the government independent evidence of wrongdoing before agencies will consider making records available.
“The new requirement that requesters must show evidence of government impropriety before such records will be released will almost surely prevent reporters and other interested citizens from investigating suspicious deaths,” said Reporters Committee Executive Director Lucy Dalglish. “I don’t know how you can expect requesters to prove a negative before they are entitled to a record under the Freedom of Information Act.”
The high court, categorizing some interest in the Foster photos as “sensation-seeking,” cited a cultural history of survivor need to respect the dead that extends back in time at least to the writing of the Greek drama Antigone.
A 2003 study by the Reporters Committee documented the government’s increasing use of the two privacy exemptions to the FOI Act to deny records to requesters.
Justice Kennedy made clear, though, that today’s decision concerns only the privacy exemption embodied in the exemption that protects law enforcement records. It protects information in those records that “could reasonably be expected to constitute an unwarranted invasion of privacy.” He said that “in marked contrast,” another broader FOI exemption for personnel, medical and similar records calls for protection of “clearly unwarranted” intrusions on privacy.
Additional information about the case and the attempted media intervention is available from the following links:
Case Name: National Archives and Records Administration v. Favish
Supreme Court opinion: http://www.supremecourtus.gov/opinions/03slipopinion.html
2003 RCFP study: Privacy tops reasons agencies withhold information https://www.rcfp.org/news/mag/27-3/foi-privacyt.html
News article: High court denies access to photos of Vince Foster death https://www.rcfp.org/news/2004/0330naravf.html