Response to The Supreme Court's Opinion Regarding the Vincent Foster Death Scene Photographs

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Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation. A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.

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Vincent Foster Death

Response to The Supreme Court's Opinion Regarding the Vincent Foster Death Scene Photographs

www.allanfavish.com

April 10, 2004

INTRODUCTION

On March 30, 2004, the United States Supreme Court issued its opinion in the case entitled National Archives and Records Administration v. Allan J. Favish. (The case was formerly entitled Office of Independent Counsel v. Allan J. Favish, but the OIC ceased operations in March of 2004 and transferred its documents to the NARA). The decision was 9-0 with Justice Anthony Kennedy writing the only opinion. The case arose from my Freedom of Information Act request seeking some of the photographs taken by the Government as part of its investigation into the death of President Bill Clinton’s Deputy White House Counsel Vincent Foster, who was found dead in Virginia’s Fort Marcy Park on July 20, 1993. The Government ruled that Foster committed suicide by firing a revolver into his mouth with the bullet exiting the back of his head.

Two Independent Counsels issued public reports on the death. The first was regulatory Independent Counsel Robert Fiske, who issued his report on June 30, 1994. The second was Independent Counsel Kenneth Starr, appointed under a different statute, who issued his report in July 1997 to the special three-judge panel of federal appellate court judges to whom Starr reported. That panel released Starr’s Foster report to the public in October of 1997.

By the time the Supreme Court got involved (the case had been to the United States Court of Appeals for the Ninth Circuit twice) the parties were only arguing over ten original Polaroid photographs of Foster’s body. The Government, and Foster’s widow Lisa Foster Moody and one of his two sisters, Sheila Foster Anthony, both of whom intervened in the case a few years earlier, sought to block public disclosure of the photographs. They argued that the public’s interest in disclosure was subordinate to the privacy interest that the Foster family had in the photographs. They based this argument on a section of the FOIA known as Exemption 7(C), that allows the Government to refuse disclosure when somebody’s privacy interest in a requested document compiled for law enforcement purposes outweighs the public’s interest in disclosure.

My primary arguments in opposition were that nobody had a privacy interest in the photographs and that if a privacy interest was found to exist in the photographs, then the public’s interest in disclosure outweighed that privacy interest. I argued that the evidence established that the Fiske and Starr reports were not trustworthy, largely, but not exclusively, because of significant omissions. Therefore the public could not trust the Government to filter the evidence and the public needed to see the raw evidence. The “suicide-in-the-park” conclusion may be correct, but we cannot conclude that from the publicly available evidence. The public only can make educated guesses about what happened. This is unacceptable.

The Supreme Court agreed with me on one of the important sub-issues in the case, but used false statements about the law and facts and material omissions to rule against me on the major issues. In doing so, the Supreme Court made an indefensible factual finding without mentioning the evidence, falsely described the Government’s investigations, failed to cite case law that proved its position about Congressional intent was wrong, falsely stated that a scholarly legal resource called the Restatement of Torts supported its interpretation of Congressional intent, falsely stated that I filed my lawsuit after a similar lawsuit was lost in which I represented the losing party, and failed to address the issue of redaction of the photographs.

THE SUPREME COURT ESTABLISHED AN APPROPRIATE STANDARD FOR BALANCING PUBLIC INTEREST IN DISCLOSURE WITH A PRIVACY INTEREST

On one major sub-issue the Supreme Court rejected the position advocated by the Government and Foster’s widow and sister. The issue involves the balancing procedure that a Government agency or court is required to do when a FOIA requestor has requested a document in which there is a privacy interest that is being asserted to prevent disclosure. In such a case the agency or court must balance the public’s interest in disclosure against the privacy interest. The United States Court of Appeals for the District of Columbia Circuit had been requiring FOIA requestors to establish at least “compelling evidence” of government “illegality” in order for the balancing to favor the FOIA requestor. Most other circuits, including the Ninth Circuit, had not imposed that requirement on FOIA requestors.

The Government and the Foster family members urged the Supreme Court to make the D.C. Circuit’s requirement the rule for all of the circuits. I argued against such a requirement and on pages 15-16 of its opinion the Supreme Court agreed with me. The Supreme Court stated that when a FOIA requestor seeks to overcome the Exemption 7(C) privacy interest by showing that Government officials performed improperly, the FOIA requestor need only “produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” (Emphasis added.) Such “impropriety” does not have to be illegal conduct, but can be conduct by Government officials that was performed “negligently or otherwise improperly in the performance of their duties.”

The death of the D.C. Circuit’s unjustified requirement is great news for the American people. In the future, Government agencies and the courts will not be able to use the “compelling evidence” of “illegal” conduct requirement to deny the public access to Government documents.

THE SUPREME COURT MADE AN UNJUSTIFIED FACTUAL FINDING WITHOUT MENTIONING THE EVIDENCE

Unfortunately, the Supreme Court held that I did not meet this new minimum requirement. On page 15 of the Court’s opinion, the Court stated that the “Court of Appeals was correct . . . . to recognize as significant the asserted public interest in uncovering deficiencies or misfeasance in the Government’s investigations into Foster’s death.” But on page 17 of the Court’s opinion, the Court stated: “Favish has not produced any evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred to put the balance into play.”

However, the Court did not support its factual finding about the evidence with any discussion or analysis of the evidence. It did not even mention the evidence. Contrary to the Court’s unsupported conclusion, the record contained a voluminous amount of evidence that was thoroughly discussed in my briefs throughout the litigation, and especially in my brief on the merits to the Supreme Court. Ninety-nine percent of the documents comprising that evidence was from the Government’s own files, including from the Federal Bureau of Investigation and the United States Park Police. Moreover, it was undisputed that all of the evidence was authentic. The evidence in the record for this case established the following:

Fiske failed to tell the public and Starr failed to tell the public and the three-judge panel about an FBI memo to the Director of the FBI, written two days after the death, stating that the shot was fired into Foster’s mouth without leaving an exit wound, thereby directly contradicting Starr, Fiske and the official autopsy report which all concluded that there was an exit wound in the back of the head.
Fiske failed to tell the public and Starr failed to tell the public and the three-judge panel that the medical report by Dr. Donald Haut, the only doctor to examine Foster at the park, reported a neck wound that officially did not exist. Moreover, certified copies of his report are not the same and appear to have been improperly altered by obliteration of a word rather than drawing a line through the word so it can still be read, as is standard practice for medical records.
Starr failed to tell the public and the three-judge panel that the Park Police and the only medical doctor at the death scene, Dr. Haut, reported that they did not see any blood spatter on the vegetation that would have appeared behind Foster’s head immediately after he allegedly shot himself while sitting up on the ground.
Starr failed to tell the public and the three-judge panel that the first person officially to see Foster’s deceased body and who testified that he did not see any gun in Foster’s hand, also testified that the “gun in hand” photo that was leaked to the media in 1994 did not depict what he saw.
The official death gun appears black. Foster’s widow Lisa failed to identify the official death gun from a photograph nine days after the death, in part, because the gun was not silver, the color of a gun the Fosters owned. According to the FBI, Lisa was shown the official death gun in May 1994 and the FBI stated that she “believes that the gun found at Fort Marcy Park may be the silver gun which she brought up with her” from Arkansas. Despite the obvious invalidity of an identification of a black gun as being silver, and without stating the gun colors and other relevant background facts, Fiske reported that Lisa “stated that the gun looked similar to one that” Foster owned.
Starr failed to tell the public and the three-judge panel why Fiske did this. Starr failed to tell the public and the three-judge panel that one of Lisa’s reasons for not identifying the gun in the photo shown to her nine days after the death was because it was not silver. Also absent from Starr’s report is that the FBI expressly stated that Lisa believed the gun shown to her in May 1994 was silver as it was being shown to her.
Starr failed to tell the public and the three-judge panel why Fiske’s deputy, Roderick Lankler and Lisa’s attorney, James Hamilton (who represented her in my case) and at least two FBI agents, apparently failed to note at the May 1994 interview that in their presence, Lisa described a black gun as being silver.
Starr failed to tell the public and the three-judge panel why Lisa reportedly identified a black gun as silver, as it was being shown to her, in May 1994.
Fiske failed to tell the public and Starr failed to tell the public and the three-judge panel that Foster’s nephew, who was the surviving family member most familiar with the family’s guns, could not identify the black official death gun, largely because of its color.
Fiske failed to tell the public and Starr failed to tell the public and the three-judge panel that then United States Park Police Chief Robert Langston made a false statement to the public when he stated at a press conference in August 1993 that the Foster family had identified the official death gun as one of Foster’s guns.
Starr falsely implied that the Park Police observed the entire autopsy but Fiske failed to tell the public and Starr failed to tell the public and the three-judge panel that before the Park Police arrived, Foster’s tongue and soft palate were removed by the autopsy doctor who violated policy by beginning the autopsy before arrival of the police. (The tongue and soft palate were significant because there is controversy over whether there was an entrance wound in Foster’s neck that would have resulted in a bullet path through the tongue and soft palate.)
Starr failed to tell the public and the three-judge panel that three of the four witnesses who according to the Government, saw Foster’s car in the parking lot between 4:30 p.m. and just before 6:00 p.m., after he was dead, reported seeing a car that was brown and did not report seeing a car that was the color of Foster’s car, gray. Although Starr accurately reported that the fourth of these witnesses reported seeing a brown car, Starr concluded that Foster’s gray car was in the parking lot without explaining why all four of these witnesses reported seeing the same color car, brown, and did not report seeing a gray car.
Starr relied on Dr. Henry Lee’s conclusion that Foster’s clothes revealed no evidence that Foster’s body had been dragged, without telling the public and the three-judge panel that this conclusion was worthless because the Park Police stated that they dragged Foster’s body when it began to slide down the hill during an examination.
Starr implied that the reason for the lack of readable x-rays of Foster is that the x-ray machine was not functioning properly. However, Starr failed to tell the public and the three-judge panel that the records show that the first service call for the x-ray machine was made more than three months after Foster’s death. Also, if the machine was not functioning properly on July 20, 1993, Starr failed to explain why another machine was not used to take x-rays of Foster, a very high Government official, or why there are no records showing a service call for the machine at that time.

The Supreme Court’s unsupported conclusion about the lack of evidence is even more incredible in light of the fact that Justice Scalia thought at least one of these pieces of evidence was so significant that he asked a question about it at oral argument. He asked Lisa’s attorney James Hamilton about the Haut Report’s apparent alteration and its statement about a neck wound. Hamilton replied that Starr “answered the question” about the Haut Report in his report on the Foster death. However minutes later I told the Supreme Court during oral argument that Hamilton’s response was “not true” because Starr never discussed in his report on the Foster death the apparent alteration in the Haut Report or its statement about a neck wound.

Justice Scalia’s exchange with Hamilton appears on pages 20-21 of the transcript of the oral argument:

QUESTION: Well, let – let’s take a particular item of evidence, I mean, like the - the autopsy report that Mr. Favish claims was - was - was altered, that the word neck was white - whitened out and head was written in instead to - to cover the fact that the bullet exited the neck rather than the head. Now, you know, what - what he and other conspiracy theorists would say is, the fact that five investigations came up with the same conclusion just shows the extent of this - this conspiracy, you know. They’re not going to be satisfied by the mere fact that - that you had five separate groups. They're going to say, oh, all the worse, all the worse, this - this conspiracy is so widespread. Well, how do you respond to that?

MR. HAMILTON: Well, I think the first response I would make is that it is a difficult argument to make that Judge Starr conspired with members of the Clinton administration to protect that administration.

(Laughter.)

MR. HAMILTON: Judge Starr - Judge Starr’s report was quite thorough, it was over 110 pages. He answered this question about the - the - the medical report. The medical report was somewhat inconsistent, but certainly, when you look at the autopsy reports, when you look at the - the - the photographs themselves, it is clear that the - there - there was a - an exit wound in the back of the head. There was no –

(Emphasis added.)

My response to Justice Scalia appears on pages 34-35 of the transcript of the oral argument:

[L]et me talk about what Justice Scalia talked about, the autopsy report.

To be more correct, Your Honor, it was a - a report by the only doctor to view Mr. Foster’s body at the park. It was not the autopsy report. It was a two-page document. Page 2 talked about the death-shot being mouth to neck. Mr. Hamilton stated that Mr. Starr dealt with that in his report. That’s not true. Mr. Starr ignored page 2 of the Haut report. That’s one of the problems here. We talk about these different investigations. Well, nobody investigated that language on the Haut report. Nobody investigated the FBI . . . .

The Haut Report’s statement about a neck wound is not the only place in the record in which a neck wound is discussed. Richard Arthur, one of the paramedics at the park, stated in his 1994 testimony under oath that while he was 2-3 feet away from Foster he saw what appeared to him to be a bullet neck wound on the right side of Foster’s neck around the jaw line and underneath the right ear. Starr reported that in 1996 Arthur stated to investigators that he may have been mistaken.

However, the Supreme Court failed to discuss a declaration under penalty of perjury by an investigative journalist stating that he has seen a photograph of what appears to be a wound in Foster’s neck. The alleged neck wound photograph referred to in the declaration also is discussed in two books. These are Christopher Ruddy, The Strange Death of Vincent Foster: An Investigation 163-65 (The Free Press, a division of Simon & Schuster, Inc., 1997) and Ambrose Evans-Pritchard, The Secret Life of Bill Clinton: The Unreported Stories 135-53 (Regnery Publishing, Inc., 1997). These books allege a story of illegal conduct by certain members of the OIC and the FBI in trying to prevent proper enlargement and examination of the pristine original of at least one of the six Polaroid photos not ordered released by the Ninth Circuit in this case. Allegedly, this was done to conceal a neck wound that officially did not exist, according to unidentified sources cited in these books. The books allege an effort to illegally obstruct the work of Assistant United States Attorney Miguel Rodriguez and his paralegal Lucia Rambusch while they were working on the Foster death investigation at the OIC for Starr. One of the authors of the two books, Ambrose Evans-Pritchard, stated in a declaration under penalty of perjury that was part of the record in this case, “I have seen the photograph showing an apparent neck wound to Foster’s neck . . . .”

Without any explanation, the Supreme Court did not consider this declaration or any of the other documents to be evidence “that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred” in this case regarding “deficiencies or misfeasance in the Government’s investigations into Foster’s death.”

The Supreme Court erroneously held that the Ninth Circuit failed to require any evidentiary showing that the Government investigations were improper. On page 15 of its opinion, the Supreme Court discussed the Ninth Circuit’s opinion in the first appeal and stated:

The court went on to hold that, because Favish has “tender[ed] evidence and argument which, if believed, would justify his doubts,” the FOIA request “is in complete conformity with the statutory purpose that the public know what its government is up to.” . . . This was insufficient. The Court of Appeals required no particular showing that any evidence points with credibility to some actual misfeasance or other impropriety. The court’s holding leaves Exemption 7(C) with little force or content. By requiring courts to engage in a state of suspended disbelief with regard to even the most incredible allegations, the panel transformed Exemption 7(C) into nothing more than a rule of pleading.

The Supreme Court’s statement contradicts itself. The Ninth Circuit required an evidentiary showing that the Government investigations were improper. Why else would the Ninth Circuit have concluded, as the Supreme Court quoted on pages 3-4 and 15 of its opinion, that “Favish, in fact, tenders evidence and argument which, if believed, would justify his doubts” about those investigations? Yet, incredibly, the Supreme Court held that the Ninth Circuit “require[ed] courts to engage in a state of suspended disbelief with regard to even the most incredible allegations . . . .”

By commenting on the evidence as it did, the Ninth Circuit made it clear that it was not requiring courts to engage in a state of suspended disbelief. Rather, it was holding that some evidence of Government impropriety was required and that I met that requirement. The Supreme Court concocted a phantom position that was not advocated by the Ninth Circuit. Moreover, I never advocated that position and presented a mountain of evidence in the belief that a court engaged in Exemption 7(C) balancing should not have to engage in a state of suspended disbelief, but should be presented with evidence of Government impropriety.

THE SUPREME COURT FALSELY DESCRIBED THE GOVERNMENT INVESTIGATIONS

The Supreme Court relied on the “fact” that the Government had conducted several “different” investigations into the Foster death and all concluded that it was suicide in the park. On page 16 of its opinion, the Supreme Court stated: “It would be quite extraordinary to say we must ignore the fact that five different inquiries into the Foster matter reached the same conclusion.” On page 2 of its opinion, the Supreme Court stated:

The United States Park Police conducted the initial investigation and took color photographs of the death scene, including 10 pictures of Foster’s body. The investigation concluded that Foster committed suicide by shooting himself with a revolver. Subsequent investigations by the Federal Bureau of Investigation, committees of the Senate and the House of Representatives, and independent counsels Robert Fiske and Kenneth Starr reached the same conclusion.

Contrary to the Supreme Court’s statement, the evidence established that no Congressional Committee conducted an investigation of whether Foster was murdered or committed suicide at the park. On page 46 of the transcript of the oral argument, I referred the Supreme Court to the pages of the record that establish this fact. My reply/answering brief in the second appeal to the Ninth Circuit set forth the evidence in the body of the brief. The evidence established that the Senate Banking Committee’s “investigation” into the Foster death was limited to the issue of whether the United States Park Police’s investigation was proper. The Banking Committee did not conduct an investigation to determine whether Foster was murdered or committed suicide in the park. Committee Chairman Sen. Donald Riegle (D-MI) said that the Committee was operating “under specific legislative instructions from the full Senate.” He said:

The scope of our present effort was carefully defined by the Senate Resolution 229 to pursue only three specific matters in order to not interfere or compromise in any way the full-scale inquiry being directed by Independent Counsel, Robert B. Fiske, Jr.

. . . .

Now, Senate Resolution 229 directed this Committee to conduct hearings on three specific matters in this phase . . .

. . . .

No. 2, I quote again:

The Park Service Police investigation into the death of White House Deputy Counsel Vincent Foster.

Several Senators, both Democrat and Republican, said in their opening statements on July 29, 1994 that they were not investigating whether Foster was murdered or committed suicide in the park. Sen. Robert Bennett (R-Utah) said:

No. 2, I will be happy to stipulate that Vincent Foster committed suicide. There was a time when the rumors in the press led me to believe there was some credence to an additional theory. I find no possible justification for that now. I am one Senator who is willing to say that this hearing should not be about whether or not Vincent Foster committed suicide. He committed suicide. I will so stipulate.

I will not stipulate that the investigation of that suicide was handled in a proper fashion. I think that’s a legitimate thing for us to go into.

Sen. Pete Domenici (R-NM) said: “I don’t think anyone on our side is challenging whether or not it was a suicide. So perhaps we can get rid of that rather quickly.”

Sen. Orrin Hatch (R-UT) said:

Accordingly, I want to be clear on one point. There is absolutely no credible evidence to contradict the Fiske Report’s conclusion that Vincent Foster took his own life and it happened at Fort Marcy Park. There is no credible evidence to the contrary.

Sen. Carol Moseley-Braun (D-IL) said:

At the outset, let me say, Mr. Chairman, I would like to associate myself with the remarks of Senators Bennett and Boxer regarding the Vincent Foster issue. We are not conducting an investigation into a suicide. Our investigation is only into the propriety of the investigation surrounding his tragic and untimely death.

. . . However, we do have an obligation, nonetheless, to the public to ensure that no untoward or inappropriate activities occurred that would reflect on the remaining issues before this Committee. The first part of this hearing, I believe, will rightfully look into the process by which that investigation took place.

No committee in the House of Representatives conducted an investigation of Foster’s death. As Starr’s OIC states on page 7 in its report on Foster’s death, Rep. William Clinger, then the ranking Republican member of the Committee on Government Operations in the House wrote a six-page “Summary Report” of his investigation into the death. It was not a Committee investigation. There are no public transcripts of any questioning he might have done. There is nothing to indicate that it was anything more than a rubber-stamp of the Fiske report. Clinger’s “Summary Report” does not answer the questions I raised in this case.

Moreover, the Park Police, FBI and Independent Counsel investigations were permeated with FBI agents and therefore were not as “different” as the Supreme Court implies. The FBI did the initial investigation along with the Park Police. On August 10, 1993 there was a joint FBI, Department of Justice and Park Police press conference announcing the results of the FBI and Park Police investigations. Park Police Major Robert Hines testified that within two days after the death he determined that the DOJ was “calling a lot of shots, setting up a lot of protocols.” The evidence established that both Fiske and Starr used FBI agents. Pages 46-47 of the transcript of the oral argument before the Supreme Court shows that I told the Court:

So we’re also looking at a situation with regard to the Fiske and Starr offices using FBI agents as part of their investigation, where the FBI did the initial investigation with the Park Police. That’s all in the record. There’s a conflict of interest there when you have FBI agents participating in an examination of what they already did.

So to call this five separate investigations is highly misleading, and I think that the only investigation that will matter in this case is the one that the people can do directly by seeing the raw evidence for itself . . .

In any case, the number of Government investigations and reports is not as important as the demonstrable credibility, or lack of credibility, of those investigations and reports. The Supreme Court gave more discussion to the number of Government investigations than it did to the evidence of the credibility or lack of credibility of those investigations.

THE SUPREME COURT FAILED TO CITE FEDERAL CASE LAW CONTEMPORANEOUS WITH FOIA’S ENACTMENT ESTABLISHING THAT THE “SURVIVOR PRIVACY” THEORY WAS A MINORITY THEORY THAT CONGRESS WOULD NOT HAVE INTENDED TO ADOPT

The Supreme Court held that when Congress used the word “privacy” in 1966 in the FOIA and again in amending the FOIA in 1974, it intended a definition that allowed for a person to have a privacy interest in a document that does not contain any information about the person in the document. Although in a previous case, United States Department of Justice v. Reporters Committee for Freedom of the Press,489 U.S. 749 (1989), the Supreme Court held that Congress intended the word “privacy” in the FOIA to mean the right to control information about oneself. In Reporters Committee, the Supreme Court quoted from several leading scholarly articles and books about privacy, most of which were published between 1966 and 1975 at the same time Congress was enacting and amending FOIA. All of them stated that privacy was the right to control information about oneself. In its opinion in my case there is no reference to those scholarly books and articles.

In my case the Supreme Court stated that its decision in Reporters Committee was never intended to limit its assessment of Congressional intent about the word “privacy” in the FOIA so as to limit the Congressionally intended definition to the right to control information about oneself. In support of its position, the Supreme Court cited non-FOIA cases dealing with the definition of “privacy” and concluded that Congress in 1966 and 1974 must have intended for “privacy” as used in the FOIA to have the same meaning as expressed in those non-FOIA cases. At pages 10-11 of its opinion, the Supreme Court stated: “We can assume Congress legislated against this background of law, scholarship, and history when it enacted FOIA and when it amended Exemption 7(C) to extend its terms.”

However, only two of the cases cited by the Supreme Court predated 1966 and 1974 when Congress enacted the FOIA and added the privacy exemption to Exemption 7(C). Therefore, among the cases cited by the Supreme Court only these two cases could have influenced Congress and played a role in shaping its intent regarding the meaning of “privacy” as used in the FOIA. These two cases are a New York state case, Schuyler v. Curtis, 147 N. Y. 434, 447, 42 N. E. 22, 25 (1895) and a Georgia state case, Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S. E. 194 (1930). Both of these cases defined “privacy” so as to allow people to claim a privacy interest in documents that contained information about their deceased relatives, but no information about them.

Yet the Supreme Court failed to cite two federal court cases that surveyed the case law regarding this “survivor privacy” theory in 1969, virtually contemporaneously with enactment of the FOIA and its amendment in 1974. These two cases established that the cases endorsing this “survivor privacy” theory were an aberrational minority of cases that should be rejected. The most logical assumption is that Congress intended the word “privacy” to mean what the overwhelming majority of cases had said it means, as opposed to what an aberrational minority of cases had said it means. Both of these 1969 federal cases would be revealed to any person doing basic research on the Schuyler and Bazemore cases. Moreover, one of them was cited in a “friend of the court” brief by the Silha Center for the Study of Media Ethics and Law at the School of Journalism and Mass Communication at the University of Minnesota, an organization that sided with me. Also, I cited both federal cases during oral argument, as established on page 31 of the transcript.

In the first of these two federal cases, Cordell v. Detective Publications, 419 F.2d 989 (6^th Cir. 1969), the United States Court of Appeals for the Sixth Circuit stated that the privacy cause of action “is regarded as purely personal, and only the person about whom facts have unauthorizedly been published may recover.” Cordell, at 990 (citing many cases from various jurisdictions). Cordell also stated: “The majority of jurisdictions which have considered the issue have declined to recognize a relational tort.” Cordellat 992 (referring to the “survivor privacy” theory).

Another federal case decided in 1969 that made the same point about existing law at that time is Young v. That Was The Week That Was, 312 F. Supp. 1337 (N.D. Ohio 1969), which stated:

Virtually all the cases which have passed upon this question (cited above) have held that an individual has no cause of action for invasion of his privacy, where the defendant published information concerning the individual's deceased relative.

Young, at 1340 (citing many cases from various jurisdictions). Young stated:

To sustain an action for invasion of privacy based on the publication of a person’s private affairs, one necessary element is the identification of the plaintiff in the publication. If the plaintiff cannot be identified as the person who is the subject of the publication from the published matter itself, then there has been no actionable invasion of the right of privacy.

Young, at 1341 (citing many cases from various jurisdictions).

Young further stated:

A few cases are occasionally cited as recognizing a so-called “relational” right of privacy. Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S.E. 194 (1930); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22; Smith v. Doss, 251 Ala. 250, 37 So.2d 118 (1948); Fitzsimmons v. Olinger Mortuary Assoc., 91 Colo. 544, 17 P.2d 535 (1932); Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849, 42 L.R.A.,N.S., 386 (1912). For the most part these are not recent cases and their authority, even in the states which decided them, is questionable. See e.g. Waters v. Fleetwood, 212 Ga. 161, 91 S.E.2d 344 (1956). … the Court does not find the reasoning of these cases persuasive or applicable here.

Young, at 1341 n.2.

Here is what the Sixth Circuit in Cordell said about Bazemore:

Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S.E. 194 (1930), an early case apparently upholding a relational right of privacy, has been severely restricted. Waters v. Fleetwood, 212 Ga. 161, 168, 91 S.E.2d 344, 348 (1956): "We do not pass on the question of whether there might be a ‘relational’ right of privacy in this State.”

Cordell, at 991.

Therefore, the Supreme Court took two aberrational cases, one from 1895 and one from 1930, and asserted that Congress must have intended to adopt the reasoning of those cases and failed to cite case law establishing that at the time Congress enacted FOIA, the overwhelming majority of cases rejected the reasoning of these two cases. First year law students are taught that in addition to discussing case law supporting their position, they must also discuss any case law opposing their position. The Supreme Court did not do that.

The Supreme Court also cited two non-FOIA cases from 1989 and 1998, both of which could not have been considered by Congress when it enacted the FOIA in 1966 and amended it in 1974. At page 10 of its opinion, the Supreme Court cited Reid v. Pierce County, 136 Wash. 2d 195, 212, 961 P. 2d 333, 342 (1998) and McCambridge v. Little Rock, 298 Ark. 219, 231, 232, 766 S. W. 2d 909, 915 (1989).

In McCambridge, a man murdered his wife and children and then committed suicide. “[C]rime scene and pathologist photographs were taken,” according to the opinion. The lead plaintiff, McCambridge, was the mother of the murderer who committed suicide. She sued to block release of the photos under the Arkansas Freedom of Information Act. The Supreme Court described McCambridgeas “recognizing the privacy interest of the murder victim’s mother in crime scene photographs”. The Supreme Court’s description is wrong because McCambridge was the mother of the murderer, not the mother of the wife and children.

The Arkansas Supreme Court found that McCambridge had a common law privacy interest in the photographs that could be protected despite the fact that there was no information about her in the photographs. (Ironically, in contrast to what the Supreme Court did in my case, after balancing the public’s interest in disclosure, the Arkansas Supreme Court ruled that the photographs should be released to the public.) But the Arkansas Supreme Court did not rely on anything that would have been available to the Congress in 1966 or 1974 to inform Congressional intent regarding the definition of “privacy” as used in the FOIA.

The Arkansas Supreme Court ignored the overwhelming majority of cases and scholarly articles and books that had defined privacy as the right to control information about oneself. The Arkansas Supreme Court then described “privacy” as the right to control disclosure of “personal matters” and defined “personal matters” as “information . . . that the individual wants to and has kept private or confidential . . . .”

This is a drastic expansion of the definition of “privacy” that is not supported by the overwhelming majority of cases, scholarly articles and books about privacy. The Arkansas Supreme Court’s definition includes anything that a person wants to be kept confidential. Thus, this definition would allow a person to prevent disclosure of government documents that have no information about the person in the document and documents that do not have information about the person’s family or loved ones. In McCambridge, that definition allowed the Arkansas Supreme Court to find that McCambridge had a privacy interest in death-scene photographs of her daughter-in-law and grandchildren, as well as her son, despite the absence of any information about her in the photographs.

In the other non-FOIA case, Reid, the Supreme Court of Washington held that a person’s common law right of privacy can be infringed by improper disclosure of autopsy photographs of the person’s aunt. All of the cases cited by the Washington Supreme Court to support its position that a person can have a privacy interest in a document that has no information about the person in the document, except one, were decided in 1987, and therefore could not have informed Congressional intent in 1966 and 1974. The one exception was Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849 (1912), decided by the Kentucky Supreme Court. But that case never used the word “privacy” in its opinion so could not have informed Congressional intent in 1966 about the meaning of the word “privacy.” Moreover, Reidwas based, in part, on a Washington state statute that protected the confidentiality of autopsy records. There is no such statute involved in my case.

Therefore, the only two pre-1966 cases cited by the Supreme Court that could have influenced the Congressional definition of “privacy” in 1966 and 1974, are the discredited (but now resurrected) Bazemore and Schuyler cases.

On page 10 of its opinion, the Supreme Court cited the Restatement of Torts in support of it holding that a person can have a privacy interest in a document that has no information about the person in the document. The Restatement of Torts is a collection of rules compiled by scholars that is supposed to reflect the current common law (the law made by judges in their opinions). The Supreme Court implied that the Restatement of Torts endorses its definition of privacy that the Court ascribed to the 1966 Congress. But that is not the case and the Supreme Court’s description of the Restatement section to which it referred was inaccurately and deceptively paraphrased.

The Supreme Court stated: “Restatement (Second) of Torts §652D, p. 387 (1977) (recognizing that publication of a photograph of a deceased infant--a hypothetical ‘child with two heads’--over the objection of the mother would result in an ‘inva[sion]’ of the mother’s ‘privacy’).” This makes it appear that the Restatement takes the position that the mother has a privacy interest in a document that has no information about her in it, the photograph of her child. But the Restatement does not endorse such a position. Instead, Restatement (Second) of Torts §652D states:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

This rule does not endorse the proposition that a person has a privacy interest in a document that does not contain any information about the person.

The Restatement follows its sections, like Section 652D, with illustrations that help explain the respective sections. The Supreme Court’s parenthetical comment about this Restatement section inaccurately paraphrased Illustration no. 7 to the section. The full text of Illustration no. 7 to Section 652D states:

A gives birth to a child with two heads, which immediately dies. A reporter from B Newspaper asks A’s permission to photograph the body of the child, which is refused. The reporter then bribes hospital attendants to permit him, against A’s orders, to take the photograph, which is published in B Newspaper with an account of the facts, naming A. B has invaded A’s privacy.

Therefore, Illustration no. 7 includes the vital fact that B Newspaper published “an account of the facts, naming A.” This fact was essential to making B Newspaper’s conduct a violation of A’s privacy because this fact established that information about A was disclosed. Thus, A, the mother, had her privacy violated because information about her was disclosed by B, the newspaper. The Supreme Court omitted this essential fact from its description of Restatement section 652D and thereby implied that the section recognized that a person can have a privacy interest in a document that does not contain information about the person. That implication is false. Restatement section 652D does not support the Supreme Court’s position.

On page 9 of its opinion the Supreme Court recognized our “cultural traditions” of respecting the dead. There is no dispute about those traditions and their rightful place in our culture. But the Supreme Court chose to falsely attribute to the 1966 and 1974 Congresses the intent to include those traditions as part of the FOIA’s definition of “privacy” rather than allow Congress to amend the FOIA in the way it deems proper in light of those traditions. This was a classic example of a court changing the law under the guise of “interpretation,” thereby usurping the role of Congress.

THE SUPREME COURT MADE FALSE STATEMENTS ABOUT THE ORIGIN OF MY LAWSUIT, THEREBY MAKING IT APPEAR I TRIED TO GET A SECOND BITE AT THE APPLE

Despite being given the facts, the Supreme Court made false statements about the circumstances under which my lawsuit originated to make it appear that I initiated this case only after a related case had been lost in which I was one of the attorneys for the losing party. On page 2 of its opinion, the Supreme Court stated:

In an earlier proceeding, Favish was the associate counsel for Accuracy in Media (AIM), which applied under FOIA for Foster’s death-scene photographs. After the National Park Service, which then maintained custody of the pictures, resisted disclosure, Favish filed suit on behalf of AIM in the District Court for the District of Columbia to compel production. The District Court granted summary judgment against AIM. The Court of Appeals for the District of Columbia unanimously affirmed. Accuracy in Media, Inc. v. National Park Serv., 194 F.3d 120 (1999).

Still convinced that the Government’s investigations were “‘grossly incomplete and untrustworthy,’” Favish filed the present FOIA request in his own name . . . . Like the National Park Service, the Office of Independent Counsel (OIC) refused the request under Exemption 7(C). Again, Favish sued to compel production, this time in the United States District Court for the Central District of California. As a preliminary matter, the District Court held that the decision of the Court of Appeals for the District of Columbia did not have collateral estoppel effect on Favish’s California lawsuit brought in his personal capacity.

There are several falsehoods in this passage. The AIM v. NPS case was not “an earlier proceeding” to this case. My FOIA request and FOIA complaint were filed before AIM filed its FOIA request and complaint. As established in my complaint, my FOIA request was filed January 6, 1997 and my complaint was filed March 6, 1997. As established in AIM’s complaint, AIM’s FOIA request was dated June 6, 1997 and its complaint was not filed until September 12, 1997.

Moreover, the photographs sought by AIM from the National Park Service were not the same photographs I sought from the OIC. The OIC had the original Polaroid photographs. The NPS had copies of those originals. There can be a significant difference between the quality of original Polaroid photographs and copies of those originals.

I was not “the associate counsel for Accuracy in Media (AIM)”. I was an associate counsel working as an employee for AIM’s attorney of record, Judicial Watch, Inc., a public interest law firm. I worked for Judicial Watch from April 1998 to September 1999. Before I was employed by Judicial Watch I had already filed my FOIA request and complaint in January and March of 1997. Contrary to the Supreme Court’s statement, I did not file suit on behalf of AIM in the District Court for the District of Columbia. AIM’s complaint was filed in September 1997 by Judicial Watch long before I became an employee of Judicial Watch in April 1998.

The issue of “collateral estoppel effect” is a legal doctrine that precludes a litigant from relitigating issues that have been resolved in prior litigation. Contrary to the Supreme Court’s statement, the District Court in my FOIA case never “held that the decision of the Court of Appeals for the District of Columbia did not have collateral estoppel effect on Favish’s California lawsuit brought in his personal capacity.” The collateral estoppel issue never arose in the District Court because my complaint predated AIM’s complaint.

The truth is that the collateral estoppel issue was raised for the first time on November 1, 1999 during oral argument before the Ninth Circuit in the first appeal of my case. At oral argument one of the judges wondered whether my work as an attorney representing AIM should preclude my right to pursue my own case as a party. Taking the bait, the OIC’s attorney agreed with the judge despite the fact that the OIC had never raised the issue before. After additional post-oral argument briefing the Ninth Circuit resolved the issue in my favor in its first decision in this case on July 12, 2000.

These facts about the origins of my lawsuit were given to the Supreme Court long before its decision in my case. They were part of the record for the case and part of the public record. The filing dates of my lawsuit and AIM’s lawsuit are stated on the respective documents and are part of the respective courts’ public files. AIM’s September 1997 complaint does not list me as one of AIM’s attorneys. On November 16, 1999, my post-oral argument brief on the collateral estoppel issue was filed with the Ninth Circuit. That brief and accompanying declaration under penalty of perjury from me established that I did not become an employee of Judicial Watch until after Judicial Watch had filed AIM’s complaint.

Moreover, on or about November 4, 2002, Theodore B. Olson, Solicitor General of the United States and his assistant counsel, Patricia A. Millett, filed a document with the Supreme Court falsely stating that my FOIA request was filed after the appellate decision in the AIM case. I filed a response with the Supreme Court on November 12, 2002 stating the correct facts.

Despite knowledge of the correct facts that are easily verified, the Supreme Court stated falsehoods in its opinion that make it appear like I was trying to get a second bite at the apple by filing my FOIA case. Not only have these falsehoods also been stated by the Solicitor General’s office, but they also are made by the Department of Justice on its website.

THE SUPREME COURT FAILED TO ADDRESS THE ISSUE OF REDACTION OF THE PHOTOGRAPHS

The FOIA states: “Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). I argued on page 47 of my brief on the merits that if it is determined that Foster’s family members have a privacy interest in a photograph, and if after that interest is balanced against the public’s interest in disclosure it is determined that the photograph cannot be released in its entirety, the Government only is authorized to withhold those portions of the photograph that would violate the Foster family members’ privacy interest.

It is common practice for the government to disclose text documents pursuant to the FOIA with exempt information redacted. This allows the nonexempt portion of the document to be disclosed, in conformity with 5 U.S.C. § 552(b). There is no reason why image documents, like Polaroid photographs, should not also be subject to redaction when they include information that is exempt from disclosure and information that is nonexempt. Under the FOIA, the Government is required to release all nonexempt information.

The Supreme Court held on pages 9-10 of its opinion that the privacy interest it found was based on “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” and “a family’s control over the body and death images of the deceased. . . .” Therefore, the Government has no right to withhold those portions of the photographs that do not show the body.

The Supreme Court did not address the issue.

THE SUPREME COURT FAILED TO ADDRESS THE “DERIVATIVE USE” ISSUE

On page 8 of its opinion the Supreme Court described the privacy of the Foster family members it was protecting as their right “to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility. . . .” The Supreme Court then relied upon a declaration by Sheila Foster Anthony, one of his sisters, who stated that “that the family had been harassed by, and deluged with requests from, ‘[p]olitical and commercial opportunists’ who sought to profit from Foster’s suicide.” The Supreme Court continued:

She opposed the disclosure of the disputed pictures because “I fear that the release of [additional] photographs certainly would set off another round of intense scrutiny by the media. Undoubtedly, the photographs would be placed on the Internet for world consumption. Once again my family would be the focus of conceivably unsavory and distasteful media coverage.”

Thus, the Supreme Court based its decision on Sheila’s description of what disclosure might lead to, not the information that disclosure would reveal.

This contradicts Justice Scalia’s concurrence in Dept. of State v. Ray, 502 U.S. 164 (1991), a case that dealt with the word “privacy” as used in the FOIA’s Exemption 6, the other exemption that protects “privacy”. Although there are other differences between the two privacy exemptions, it is undisputed that the meaning of the word “privacy” as used in the two exemptions is the same. Therefore, there is no reason why Justice Scalia’s discussion in Ray should not be applicable to Exemption 7(C). Justice Scalia stated:

The majority does not, in my view, refute the persuasive contention that consideration of derivative uses, whether to establish a public interest or to establish an invasion of privacy, is impermissible. Perhaps FOIA would be a more sensible law if the Exemption applied whenever disclosure would "cause," "produce," or "lead to" a clearly unwarranted invasion of personal privacy, see, e. g., National Assn. of Retired Fed. Employees v. Horner, 279 U.S. App. D.C. 27, 32, 879 F.2d 873, 878 (1989), cert. denied, 494 U.S. 1078, 108 L. Ed. 2d 936, 110 S. Ct. 1805 (1990) -- though the practical problems in implementing such a provision would be considerable. That is not, however, the statute Congress enacted. Since the question under 5 U. S. C. § 552(b)(6) is whether "disclosure" would "constitute a clearly unwarranted invasion of personal privacy" (emphasis added); and since we have repeatedly held that FOIA's exemptions "'must be narrowly construed,'" John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 107 L. Ed. 2d 462, 110 S. Ct. 471 (1989) (quoting Rose, supra, at 361); it is unavoidable that the focus, in assessing a claim under Exemption 6, must be solely upon what the requested information reveals, not upon what it might lead to.

Ray, 502 U.S. 164, at 180.

As seen on page 48 of the transcript of the oral argument, I told the Court that the Ninth Circuit made this error when it ruled that the privacy of the Foster family members would be violated because disclosure of the photographs would lead to members of the press bothering the Foster family members.

However, the Supreme Court did not address the issue and its holding contradicts Justice Scalia’s concurrence in Ray. Justice Scalia was silent about the contradiction between his concurrence in Ray and his joining in the Court’s opinion in my case.

CONCLUSION

On page 9 of its opinion the Supreme Court based its decision, in part, on “the respect a society shows for the deceased and for the surviving family members.” But who respects Vincent Foster? Those who perpetuate and tolerate the untrustworthy Government investigations and reports accusing him of having killed himself or those who seek an honest and complete investigation, no matter what might be found?

My case would not have been possible without the tireless work of concerned citizen Hugh Sprunt, who analyzed Government documents released in 1995 that were ignored by the media and posted his “Citizens Independent Report” on the Internet. Other concerned citizens including Hugh Turley and Fort Marcy Park witness Patrick Knowlton and his attorney John Clarke, who maintain their own web site with their analysis of the evidence, have contributed greatly to an understanding of this case. Reed Irvine of Accuracy in Media filed the FOIA request that resulted in release of the “no exit wound” FBI memo and he has fought for years to get more facts about the case to the American people. Another concerned citizen, Michael Rivero, first made me aware of the black/silver gun issue at his web site. It was Fiske’s distortion of that issue that first made me skeptical of the Government’s story about the death. Many other concerned citizens all over the country have contributed to my understanding of this case and they were able to do so because of new technology that brought us e-mail, Usenet and the World Wide Web.

None of these people acted out of disrespect for Foster or his family. They acted out of a love of America, a concern for the integrity of our law enforcement agencies and respect for a man who has been accused by the Government of killing himself in reports that do not survive scrutiny by anybody who takes the time to analyze the evidence.

They acted because with the exception of the journalists previously mentioned and WorldNetDaily, virtually nobody in the media has given the public the important facts about this case.

With a Supreme Court opinion like this one you would normally expect a large uproar from bar associations, Congress, the press, radio talk show hosts, legal academia and organizations from all over the political spectrum like the American Civil Liberties Union to the Federalist Society to condemn its distortions of fact and law. You also might wonder what it is about the Foster death that could result in a Supreme Court opinion like this one and the failure of the rest of the media to tell you the facts about this case and this opinion. Unfortunately, given today’s media and elected leaders, the Supreme Court had good reason to believe that there would not be any uproar and it could get away with this.

Downloadable documents:

U.S. Supreme Court:

Opinion, Nat’l Archives and Records Admin. v. Favish, March 30, 2004 (216 KB)

Brief on the Merits, OIC v. Favish (166 KB)

Oral argument, OIC v. Favish (105 KB)

“Friend of the court” brief, OIC v. Favish (90 KB)

Application for Extension of Time to File Petition for Writ of Certiorari to the U.S.Court of Appeals, Ninth Circuit, USA v. Favish (259 KB)

Response to Application for Extension of Time to File Petition for Writ of Certiorari to the U.S. Court of Appeals, Ninth Circuit, USA v. Favish (101 KB)

U.S. Court of Appeals, Ninth Circuit:

Post-oral argument Brief and Declaration, Favish v. OIC (82 KB)

Favish Reply/Answering Brief, Favish v. OIC (915 KB)

Opinion, Favish v. OIC (69 KB)