Releasing the Vince Foster Photos   

The high court will decide whether the public’s interest trumps privacy concerns.

The controversy surrounding the investigation into the 1993 death of former Deputy White House Counsel Vince Foster is in the news again, and not simply because of the publication of Hillary Clinton's autobiography. The Supreme Court guaranteed that the radio and cable talk shows would have plenty of opportunity to rehash all those allegations of conspiracy, cover-ups and even murder, thanks to its May 5 decision to review the 9th U.S. Circuit Court of Appeals' ruling in Favish vs. Office of Independent Counsel.

The case stems from a dispute over access to government photographs taken of Foster's body after it was discovered in Fort Marcy Park in Northern Virginia. Allan Favish, one of the attorneys who represented Washington, D.C.-based Accuracy in Media in its unsuccessful pursuit of those photographs, had previously filed Freedom of Information Act requests with the Office of Independent Counsel in his own right from his home in California. He demanded copies of 150 photographs identified in government reports, including a picture of a gun in Foster's hand that had been published in Time magazine and shown on ABC News. The Office of Independent Counsel denied the FOIA request, and Favish filed a lawsuit.

The federal appeals court in Washington ruled in 1999 that the National Park Service, which held the photographs at the time of AIM's request, properly refused to disclose them under Exemption 7(C) of FOIA. This exemption permits federal agencies to withhold records, which, if disclosed, would "constitute an unwarranted invasion of personal privacy." The Park Service argued that release of the photos would invade the privacy of the Foster family.

Several federal courts have construed "personal privacy" to include that of "survivors." One of the best-known examples is the denial in 1991 of the New York Times' request for the audiotape of the Challenger space shuttle disaster because it would distress the crew members' families.

Under Supreme Court precedent from 1989 in Department of Justice vs. Reporters Committee for Freedom of the Press, once a court determines there is a legitimate privacy interest, then only a strong public interest in disclosure would justify release. Even then, the records could be withheld unless they would shed light on government activities. (Full disclosure: I was RCFP's executive director at the time.) AIM had argued there were discrepancies in the official reports of Foster's death. But the D.C. Circuit found those allegations insufficient to constitute the "compelling evidence" of illegal government activity necessary to outweigh the family's privacy.

The federal appeals court in California, however, saw things a little differently. Two members of a three-judge panel said that Favish had offered evidence which, "if believed," would raise significant questions about the government's investigation. Although the court ruled that the personal privacy exemption to FOIA should include survivors, the majority also concluded that the government would have to satisfy a judge that the photos would be "graphic, explicit and extremely upsetting" in order to withhold them. The 9th Circuit agreed with a district court's determination that four of the remaining photos should be made public, and it is that ruling that will be considered by the Supreme Court. (In the past five years, a number of the 150 photos have been released--in black and white, not color--and this decision pertains to the disposition of 10 of the remaining photos.)

The case will evoke memories of the controversy over access to the Dale Earnhardt autopsy records after the NASCAR driver's death in 2001. His widow, Teresa Earnhardt, fought to prevent public dissemination and led a successful campaign to create an exemption to the Florida open records law (see First Amendment Watch, May 2001). Earnhardt has declared her intention to file a friend-of-the-court brief in the Favish case.

But Favish implicates another important aspect of the FOIA. Ever since the high court's 1989 ruling, courts have permitted federal agencies to withhold records on privacy grounds unless the documents significantly contributed to public understanding of "what the government is up to." Yet when Congress most recently amended FOIA in 1996, it clarified that the statute guaranteed access "for any public or private purpose," whether the records would provide insights into government operations or not.

The Supreme Court could take this opportunity to reexamine its "central purpose" test, perhaps restoring the public's right to gain access to records regardless of whether they enlighten us about the operations of government. But even if the high court chooses not to do that, it will still have to decide whether the right of surviving family members to "be left alone to grieve" should trump the public's right to know.