Vince Foster Photo Decision Narrowly Protects Privacy

The Supreme Court of the United States held that the federal Freedom of Information Act recognizes “surviving family members’ right to personal privacy with respect to their close relative’s death-scene images.” With that, on March 30, it denied access to four photographs of the body of Clinton White House Deputy Counsel Vincent Foster, Jr., that had been ordered to be released by a lower court decision.

The Court also held that when a request for law enforcement information is balanced against a privacy interest, the requester has to show “clear evidence” that the material requested could show government impropriety. This holding goes beyond the usual FOIA rule that the identity of the requester and the reason for the request can not be considered.

Justice Anthony Kennedy’s discussion goes beyond those holdings.

He compared privacy language in two FOIA exemptions. Under Exemption 7(c), records may not be released if disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy [italics added].” These words make the Exemption 7(c) broader than another exemption that forbids disclosure only when disclosure actually would “constitute” a “clearly” unwarranted invasion of privacy. The consequence of this is likely to prompt a close reading of exemption language in states that model access laws after the federal FOIA and should produce a narrower reading of exemptions without the essential language.

The common law on invasion of privacy usually does not protect the privacy of family members. Furthermore, the right to privacy is usually perceived to disappear after a person’s death. But here, the Court said that the Foster family, seeking to protect its own peace of mind and tranquility, could reasonably anticipate further intrusion if the photographs of the body were released. The Court recognized this as a separate privacy interest intended to be protected by the 7(c) exemption. “We have little difficulty…finding the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased family member’s remains for public purposes.” The Court said that family members have a personal stake in honoring their dead and avoiding “unwarranted public exploitation.” In this sense, Exemption 7(c) goes beyond the common law.

The case was brought by Allan Favish, who had been the associate counsel for Accuracy in Media when he made the first request for the Foster death-scene pictures. His and AIM’s theory was that there were contradictions relating to the nature of the bullet wounds in the materials published after five government investigations. He contended this was sufficient to raise a suspicion or doubt about the law enforcement investigation of Foster’s death.

Without describing Favish’s theory, the Court said “suspicion” could not be enough. Someone who seeks private information under 7(c) must “produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” This is a new holding under the federal FOIA, but the Court said without this rule, the “unwarranted” balance in the 7(c) exemption would have no teeth. Thus, courts have to ask for meaningful evidence under circumstances like these. “It would be quite extraordinary,” Justice Kennedy wrote, “to say we must ignore the fact that five different inquiries into the Foster matter reached the same conclusion.”

Nothing in the decision suggests that the exemption against public inspection should go beyond these facts: law enforcement photographs of the body of a deceased person when a family’s interests against intrusion are reasonably certain to be disrupted by “unwarranted public exploitation” and where government misconduct has been ruled out by multiple investigations.

Copyright Alice Neff Lucan 2004

Editor’s Note: The Association of Alternative Newsweeklies joined a coalition of media organizations that filed an amicus brief urging the Supreme Court to rule that the Foster photos must be released under FOIA.