COURT WATCH
FOIA and the Foster Photos
The high court can close a privacy loophole - or blow it
On July 20, 1993, Vincent Foster, a White House deputy counsel and close friend of Bill and Hillary Clinton, was found dead of a gunshot wound in a Virginia park, an apparent suicide. In what is likely to be a landmark Freedom of Information Act case, the Supreme Court has agreed to hear arguments this term on whether a family — in this instance, Foster's — can invoke its right to privacy in order to prevent the release of information.
Death-scene photos of Foster were "graphic, explicit, and extremely upsetting," said the government, in refusing to release them on the ground that the Foster family was entitled to privacy under FOIA exemptions. (Of the nine exemptions to FOIA, two deal with privacy.)
In 1997 Accuracy in Media, a conservative watchdog group, unsuccessfully sued the National Park Service in the Washington, D.C., Circuit Court of Appeals to make the photos public in an effort to discover if Foster had, as some on the political right alleged, been murdered. Then, in 1998, Allan J. Favish, a lawyer in the AIM lawsuit, sued the Office of Independent Counsel on his own in the Ninth Circuit Court of Appeals in California and won the release of four of the ten disputed death-scene pictures. The court expressed concern about how exploitation of the remaining photos by the media, including publication on the Internet, would affect the family. Foster's sister, Sheila Anthony, had argued that making the photos public "would set off another round of intense scrutiny by the media" and subject the family to "conceivably unsavory and distasteful media coverage." Favish then appealed to the Supreme Court to obtain the unreleased photos. The OIC, meanwhile, appealed to have all ten photos withheld.
So now the lines are drawn. The high court must decide if the FOIA's privacy exemptions can be interpreted in so novel a way as to protect the privacy concerns of families, and not strictly those of living people named in the records sought. If OIC prevails, it could mean a significant broadening of the privacy exemptions, a further erosion of FOIA access rights for the press and public, and more government secrecy. In nearly four decades, the Supreme Court has heard only seven suits on the FOIA's privacy exemptions, and has ruled in favor of disclosure just once.
Another family-privacy FOIA case was decided in 1990 by the D.C. Circuit Court of Appeals, which ruled that the privacy rights of family members were legitimate grounds on which to block a New York Times request for an audiotape of the last conversations of the Challenger crew before their shuttle exploded in 1986. (NASA did release transcripts of the conversations.) The Supreme Court, however, did not hear the Challenger case, so the court's decision applies only to the District of Columbia circuit. A Supreme Court ruling on Office of the Independent Council v. Favish would apply to FOIA privacy disputes in all the nation's courts. The consequences of an FOIA defeat in the Foster case could be considerable. Already, privacy exemptions count for more rejected FOIA requests than any other exemption.
Such a ruling would also have an impact on state open-records laws, because states typically model their laws on the federal statute.
One significant difference between the Challenger case and the Foster case is that the latter involves the possible widespread dissemination of grisly photographs on the Internet. The Supreme Court may have decided to take this case because justices want to explore the question: Does the judiciary need to tailor a new privacy exemption to cope with the new media?
What's at stake here is not simply the release of photographs
and the real harm Foster's family probably would suffer at the
hands of exploitative media, but also the impact of a bad precedent
that can be exploited by the government so it can operate in ever
greater secrecy.
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