Legal Times

12/4/03

Vince Foster Case Pits FOIA Against Family's Privacy

By Tony Mauro

WASHINGTON -- Details of the death 10 years ago of Clinton administration lawyer Vincent Foster were aired in an unlikely forum Wednesday: the U.S. Supreme Court.

The justices heard oral arguments in Office of Independent Counsel v. Favish, 02-954. The high court is being asked to decide whether death scene photos of Foster, deputy White House counsel in the Clinton administration, must be released under the Freedom of Information Act.

Numerous investigations, including one under the supervision of then-Independent Counsel Kenneth Starr, concluded that Foster committed suicide. But Allan Favish, a Santa Clarita lawyer, questions the conclusion and seeks the photos as part of his own research into the case.

In a series of rulings over several years, the independent counsel was ordered to release some but not all of the requested photos. Favish's litigation made its way to the Supreme Court in the form of an important FOIA issue the justices had never resolved before.

Under FOIA, government agencies may withhold documents when releasing them could "reasonably be expected to constitute an unwarranted invasion of personal privacy." At issue in the Favish case is whether that exemption can be used to protect the privacy of someone other than the target of the FOIA request, in this case the family of Vince Foster.

In a rare move, Favish argued his own case before the justices, worrying FOIA advocates who were concerned that Favish would use his time before the high court to spin theories about Foster's death.

By and large, Favish resisted that temptation, providing details about the Foster autopsy mainly in response to comments and questions from justices. He said reports on Foster's death suffered from "major omissions" that cast doubt on their conclusions. But he added that he had not reached any contrary view about the cause of Foster's death.

Favish seemed to score points with the justices by arguing that if Congress meant to protect the privacy of family members as well as the actual targets of FOIA requests, it should have said so explicitly in the words of the law. "It is not for the court, with all due respect, to rewrite the FOIA," said Favish.

But victory may still elude Favish. Several justices appeared worried that if he wins, photos and documents from even the most routine law enforcement investigations would have to be disclosed.

In the final moments of the hourlong hearing, sober silence greeted an assertion by the lawyer representing the independent counsel's office that a win for Favish could even mean that autopsy photos of U.S. soldiers killed in Iraq would have to be released to the public. "There will be little protection left," said Patricia Millett, assistant to the solicitor general.

Earlier, Millett conceded that most courts have ruled that "privacy dies with the individual." But she said common law court rulings have recognized that survivors have privacy rights too, aimed at protecting the memory and dignity of the person who died.

The aim of FOIA, Millett said, is "not maximum exposure but responsible disclosure." She said that when the privacy exemption is invoked, the requesting party must show "compelling evidence of government wrongdoing" to overcome the privacy interest. Justice David Souter seemed troubled by that test, wondering aloud what would happen if a FOIA requester was motivated by a desire to make "government look good" rather than to expose wrongdoing.

On behalf of Foster's widow and sister, James Hamilton of D.C.'s Swidler Berlin Shereff Friedman also argued strenuously against disclosure of the photographs. If Favish wins, Hamilton said, the photos would be fodder for "television and grocery store tabloids," as well as "ghoulish Web sites" that specialize in gruesome graphics. "It's been 10 years. It is time to give this family some peace," said Hamilton.

Noting that five investigations have reached the same conclusion about the cause of Foster's death, Hamilton said, "There is no public interest on the other side."

Toying with Hamilton, Justice Antonin Scalia said that, in the minds of some, the fact that five probes agreed that Foster committed suicide would only fuel the theory that a government conspiracy and cover-up was under way.

Hamilton responded sarcastically that it was unlikely that Starr had conspired to protect the Clinton administration. To which Scalia replied cryptically, "Mr. Starr might have been trying to protect [then-House Speaker] Newt Gingrich!"