By Charles Lane, The Washington Post
The Supreme Court barred the release of police photographs of former deputy White House counsel Vincent W. Foster Jr.'s body yesterday, ruling unanimously that the privacy of Foster’s family outweighs an effort to find out if his July 1993 death by gunshot was not a suicide.
Setting forth a new test to govern release of postmortem pictures and documents held by the government, the court said surviving family members are covered by a provision of the Freedom of Information Act (FOIA) that exempts from disclosure law enforcement records that could invade personal privacy. Officials can withhold information to protect a grieving family, the court ruled, unless the requester has good evidence that disclosure might help uncover official wrongdoing.
In this case, Justice Anthony M. Kennedy wrote for the court that Allan J. Favish, a lawyer in California who believes the government covered up the circumstances of Foster’s death, has no such evidence.
“It would be quite extraordinary to say that we must ignore the fact that five different inquiries into the Foster matter reached the same conclusion,” Kennedy wrote. The justice was referring to investigations by the FBI, a Senate committee, a House committee, and two independent counsels, Robert Fiske and Kenneth W. Starr. Each confirmed the U.S. Park Police’s finding that Foster, who served under President Bill Clinton, killed himself in Fort Marcy Park in Northern Virginia.
The case put the court firmly on the side of grieving families in a case in which not only Favish but also major media associations argued for full disclosure. Citing lower courts’ opinions that blocked disclosure of President John F. Kennedy’s autopsy X-rays and photos and an audiotape of the Challenger astronauts’ last words, Kennedy wrote sympathetically of the Fosters’ wish to “secure their own refuge from a sensation-seeking culture.”
Among the most private of government officials themselves, the nine justices united behind Kennedy’s statement that Foster’s “former status as a public official” does not diminish “the weighty privacy interests involved.”
The Fosters were backed by a brief from Teresa Earnhardt, the widow of race car driver Dale Earnhardt, who has been fighting in Florida’s state courts to block media access to the pictures of her husband’s body after a fatal car crash. Florida reporters were seeking the photos as part of research into NASCAR safety rules. Yesterday’s ruling interpreted only federal and not state law.
In an affidavit, Foster’s sister, Sheila Foster Anthony, said that the leak of a photograph of her brother’s body had already caused her nightmares, and that she feared that additional photos would end up on the Internet.
“The family is extremely pleased with the holding by the Supreme Court,” the Fosters said in a statement read yesterday by their attorney, James Hamilton. “We hope other grieving families will benefit from the court’s decision.”
“In terms of the photos of his death, or anything related, autopsy photos, I think it’s over,” Hamilton added.
The ruling indirectly adds the court’s imprimatur to official versions of Foster’s death.
Favish and a small but insistent group of researchers, mostly on the political right, have been animated by suspicion of a connection between Foster’s death and the Whitewater affair. Favish said in an interview after yesterday’s ruling that “a lot of people would be discouraged from looking further.”
Media associations such as the Reporters Committee for Freedom of the Press and the American Society of Newspaper Editors had argued that the Foster family’s legitimate privacy interests, if any, were limited. Whatever Favish’s motives for getting the photos might be, they related to a government murder investigation, and there was “plainly a public interest here in knowing what the government is up to,” their brief said.
“The rule the court announced would seem to require a journalist or someone else to come forward with proof of wrongdoing before they get the documents they think or hope will show the wrongdoing,” said Deanne Maynard, a lawyer for the media associations.
At the same time, Maynard noted, the court said that the evidence of wrongdoing must only be enough to convince a reasonable person of the possibility of government misconduct, a more flexible standard than the Bush administration had advocated.
Also, Kennedy’s opinion called FOIA’s goal of greater government openness “a structural necessity in a real democracy.”
Favish first requested 150 copies of Foster photos through FOIA in 1997. But Starr, then the Whitewater independent counsel, denied the request. In March 1998, a California federal judge ordered the release of some photos but denied Favish access to 10 pictures, citing the family’s privacy.
Favish pursued the case in court, and the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, ruled in 2002 that Favish could have four pictures of Foster’s body. The government appealed to the Supreme Court.
Because the Office of Independent Counsel officially went out of business on March 23 and turned its records over to the National Archives, the case is known as National Archives and Records Administration v. Favish, No. 02-954.