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Supreme Court Decides to Hear "Survivor Privacy" Case

Confronting a Freedom of Information Act dispute that has lasted for nearly a decade, and a circuit conflict that has persisted for almost as long, the United States Supreme Court has decided to hear a case involving the protection of death-scene photographs on the basis of surviving family privacy interests under Exemption 7(C) of the Act.

On May 5, the Supreme Court granted the Solicitor General's petition for certiorari in Office of Independent Counsel v. Favish, 71 U.S.L.W. 3697 (U.S. May 5, 2003) (No. 02-954), a FOIA lawsuit in which the requester seeks photographs taken of the body of former Deputy White House Counsel Vincent W. Foster, Jr. Foster took his own life with a handgun in July of 1993, after a stressful first six months of the Clinton Administration, and his body was discovered in a Virginia park that is administered by the National Park Service.

Foster's death quickly became the object of much speculation and conspiracy-laden theorizing, fueled by the Whitewater-related scandals of the Clinton Administration, and it ultimately was the subject of no fewer than five separate official investigations, including those undertaken by two Independent Counsels. This in turn inevitably led to the filing of multiple FOIA requests for records pertaining to it, principally those held by the Federal Bureau of Investigation, the Office of Independent Counsel, and the National Park Service. One requester, Accuracy in Media, Inc., specifically sought copies of ten color photographs that were taken of Foster's body at the place of his death.

The National Park Service, as custodian of the records at that time, withheld them under Exemption 7(C) of the FOIA on the basis of their exceptional sensitivity and consequent ability to injure the personal privacy interests of Foster's surviving family. This withholding was upheld when the Court of Appeals for the D.C. Circuit readily found that Exemption 7(C) applies to these photographs, see Accuracy in Media, Inc. v. National Park Serv., 194 F.3d 120, 122-23 (D.C. Cir. 1999), cert. denied, 529 U.S. 1111 (2000), a ruling which ordinarily would have put an end to the matter.

The controversy was perpetuated, however, when one of Accuracy in Media's counsel in its case, former Judicial Watch attorney Allan J. Favish, proceeded to file his own FOIA request, this time with the Office of the Independent Counsel, for the very same photographs. He brought suit for the photographs in the Central District of California, after taking up residence there, claiming that he intended to serve an "overriding public interest" through his own further investigation of the circumstances surrounding Foster's death.

After ruling that Favish was not precluded from his own pursuit of the photographs in California even though his former client had lost a judgment as to them in Washington, D.C., the district court and the Ninth Circuit Court of Appeals decided that four of the photographs should be disclosed to Favish on "overriding public interest" grounds, notwithstanding the prior D.C. Circuit decision regarding them and despite the applicable principles established by the Supreme Court in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). See Favish v. Office of Indep. Counsel, 217 F.3d 1168 (9th Cir. 2001), summary judgment granted on remand, No. CV. 97-1479, 2001 WL 770410 (C.D. Cal. Jan. 11, 2001), aff'd, Nos. 01-55487, 01-55788, 01-55789 (9th Cir. June 6, 2002), reh'g en banc denied (9th Cir. Aug. 16, 2002).

In so ruling, the Ninth Circuit severely undervalued the personal privacy interests of Foster's family, as persons entitled to the full protection of the "survivor privacy" principle, and it also "depart[ed] radically from the narrow definition of public interest set forth in Reporters Committee." Freedom of Information Act Guide & Privacy Act Overview (May 2002), at 450. This is not the first time that the Ninth Circuit has acted with a manifest "lack of obeisance" to the Supreme Court on FOIA privacy issues. Id. at 449; see also id. at 449-51 & nn.28, 40 (citing, e.g., Supreme Court's summary reversal of Ninth Circuit Exemption 6 decision in Or. Natural Desert Ass'n v. Bibles, 519 U.S. 355 (1997)). But it is the first time that a FOIA case involving "survivor privacy" has been accepted for review by the Supreme Court.

The concept of "survivor privacy" under the FOIA traces back to the late 1970s, when personal information about Dr. Martin Luther King, Jr. in the files of the investigation of his assassination was withheld by the Department of Justice under Exemption 7(C) out of respect for the privacy interests of his surviving family members in the case of Lesar v. United States Department of Justice, 455 F. Supp. 921, 925 (D.D.C. 1978). The government's withholding of information in that case was upheld by the D.C. Circuit Court of Appeals. See Lesar v. United States Dep't of Justice, 636 F.2d 472, 486-88 (D.C. Cir. 1980).

As a matter of longstanding policy, this exceptional type of privacy protection largely has been reserved for "particularly sensitive, often graphic, personal details about the circumstances surrounding an individual's death," where nondisclosure would spare surviving family members from further mental anguish and pain. Freedom of Information Act Guide & Privacy Act Overview (May 2002), at 337; see also FOIA Update, Vol. III, No. 4, at 5 (advising that "careful consideration should be given" to affording "survivor privacy" protection). Over the years, the "survivor privacy" principle has been used under both Exemption 6 and Exemption 7(C) in a number of cases involving autopsy reports, death-scene photographs, and even detailed medical records. Freedom of Information Act Guide & Privacy Act Overview (May 2002), at 337-38 n.63.

Perhaps its most well-known use to date has been in protecting NASA's audiotape of the Challenger Space Shuttle disaster in 1987. After much litigation, and with a full transcript already released, NASA's recording of the voices of the Challenger crew was found properly withheld under Exemption 6 on the basis that "[e]xposure to the voice of a beloved family member immediately prior to that family member's death is what would cause the Challenger families pain . . . a disruption of their peace of mind." N.Y. Times Co. v. NASA, 782 F. Supp. 628, 631-32 (D.D.C. 1991). By the same token, though, even the most gruesome such records cannot be withheld under this exception to the general rule for the FOIA's privacy exemptions unless it is determined that there actually does exist a surviving family member whose interests warrant such protection. See, e.g., Outlaw v. United States Dep't of the Army, 815 F. Supp. 505, 506 (D.D.C. 1993) (refusing to protect murder-scene photographs where agency could not point to any surviving family member who would be harmed by their disclosure).

Another view of "survivor privacy," one that has not been firmly embraced either in FOIA case law or as a matter of governmentwide FOIA policy, focuses on the interests of the deceased person even apart from the interests of his or her survivors. This view of the issue stems from a 1998 Supreme Court decision in a non-FOIA case, Swidler & Berlin v. United States, 524 U.S. 399, 406 (1998), in which the Court extended the protection of the attorney-client privilege to include even the time period after the client's death. This decision, which coincidentally also was triggered by the death of Vincent Foster, has led the D.C. Circuit in some FOIA cases to speak of "reputational" as well as "family-related" interests surviving death. See Freedom of Information Act Guide & Privacy Act Overview (May 2002), at 338-39 & n.65.

The government's position in the Favish case rests on protecting the personal privacy interests of Foster's surviving family members, which include his widow, children, mother, and sister. The Foster family members, led by his widow and his sister Sheila Foster Anthony, took the exceptional step of intervening in the Favish case for purposes of advocating their personal privacy interests on appeal; they even filed their own certiorari petition in the Supreme Court before one was filed by the Solicitor General. See Anthony v. Favish, 71 U.S.L.W. 3319 (U.S. Oct. 16, 2002) (No. 02-599).

Mr. Favish, in turn, also filed his own certiorari petition, doggedly continuing to pursue the few records that the California courts allowed to be protected. See Favish v. Office of Indep. Counsel, 71 U.S.L.W. 3191 (U.S. Sept. 11, 2002) (No. 02-409). Neither of these other two certiorari petitions has been granted, which should mean that the issues raised by the Solicitor General will be foremost before the Supreme Court at oral argument.

This will be the first FOIA case to be argued before the Supreme Court in almost three years. See FOIA Post, "Supreme Court Vacates and Remands in ATF Database Case" (posted 3/25/03). The Favish case should be scheduled for oral argument in the fall, with a decision likely to be handed down in late 2003 or early 2004.   (posted 5/13/03)

Postscript:  In October 2003, several months after the above article was posted, Allan J. Favish claimed that it constituted "deception by the United States Department of Justice." He pointed to the paragraph stating that he "proceeded to file his own FOIA request," which he viewed as "falsely" suggesting that he had not filed his own FOIA request previously. In fact, Mr. Favish filed his own FOIA request and lawsuit earlier in 1997, though several published articles and organizations' Web sites have spoken of this same chronology similarly. One, the organization for which plaintiff worked at the time, Judicial Watch, Inc., in Washington, D.C., recounted this in a "media advisory" posted on its Web site on May 6, 2003 simply as follows: "Allan J. Favish, a former Judicial Watch attorney who worked on the Accuracy in Media case, then continued the pursuit of his own lawsuit to obtain access to the photos in California . . . ."  (posted 10/10/03)

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