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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Declaration of Darrell M. Joseph
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
ALLAN J. FAVISH
Plaintiff,
v.
OFFICE OF THE INDEPENDENT COUNSEL,
Defendant.
No. CV 97-1479-WDK (Ex)
Filed on or about January 5, 1997, in Federal District Court in Los Angeles
DECLARATION OF DARRELL M. JOSEPH
I, Darrell M. Joseph, pursuant to 28 U.S.C. § 1746, hereby declare as follows:
1. I am an Associate Independent Counsel in the Office of the Independent Counsel ("OIC") Kenneth W. Starr. I have held this position since November 5, 1997. One of my responsibilities is to review or supervise the review of OIC files in response to requests made under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"); and the Privacy Act, 5 U.S.C. § 552a, to determine whether such files contain records within the scope of a request and, if so, to ascertain what portions of those records can be made available to the requester.
2. The purpose of this declaration is to provide the Court with a Vaughn index for documents subject to plaintiff's FOIA request but withheld from disclosure, in accordance with Vaughn
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v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974); and Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991), cert. denied, 505 U.S. 1212 (1992). This declaration provides the Court and plaintiff with a narrative description of the material being withheld by OIC, which identifies each document or portion thereof withheld, the statutory exemption claimed, and provides the justification for the assertion of FOIA exemptions used to withhold certain information contained in the records at issue.
3. This declaration consists of: (I) the relevant pre-litigation correspondence between plaintiff and OIC regarding plaintiff's FOIA request; (II) a description of the OIC's system of records searched pursuant to plaintiff's request; (III) a detailed explanation of the format used in this declaration for the justification of withheld or redacted materials; and (IV) the justifications for withheld or redacted materials.
4. Submitted with this declaration are the following exhibits. Exhibit I consists of copies of the relevant pre-litigation FOIA correspondence between plaintiff and OIC. Exhibit II consists of copies of the documents responsive to plaintiff's request, including redacted documents, where redactions were necessary. Exhibit III consists of narrative descriptions containing detailed identification and justification for each of OIC's withholdings.
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I. HISTORY OF THE PROCESSING OF PLAINTIFF'S REOUEST
5(a). Set forth as Exhibits I-1 through 1-4 to this declaration are copies of pre-litigation correspondence between plaintiff and OIC relating to plaintiff's FOIA request. Exhibit I-1 is the initial request from the plaintiff, dated January 6, 1997. Plaintiff seeks "[p]hotographs taken in connection with the investigation into the death of Vincent Foster." Plaintiff’s letter specified what he described as ten categories of requested photographs. Exhibit 1-2 is a copy of OIC's January 24, 1997 letter denying plaintiff's request, pursuant to Exemptions 7(A) and 7(C) of the FOIA, 5 U.S.C. §§ 552(b)(7)(A) and 552(b)(7)(C), while reserving OIC's right to assert the applicability of other relevant exemptions, if warranted. Exhibit I-3 is a copy of plaintiff's appeal letter, dated January 28, 1997. Exhibit 1-4 is a February 19, 1997 letter from John D. Bates, Deputy Independent Counsel, denying plaintiff's appeal, pursuant to Exemptions 7(A) and 7(C) of the FOIA, while reserving OIC’s right to assert other applicable exemptions if the need should arise.
5(b). On October 10, 1997, Independent Counsel Kenneth W. Starr submitted his Report on the death of Vincent W. Foster, Jr. ("Report") to the United States Court of Appeals for the District of Columbia Circuit's Division for the purpose of Appointing
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Independent Counsels ("the Special Division").[1] By Order dated October 10, 1997, the Special Division permitted the Report to be released to the public. (In addition, an Appendix containing the comments or information submitted to the Special Division pursuant to 28 U.S.C. § 594 was released by the Special Division in the Special Division's Appendix.) Subsequent to the public release of the Report, OIC reviewed the documents responsive to plaintiff's request and, as a result of that review (and the fact that the investigation regarding Vincent Foster's death has been concluded), OIC is no longer asserting a (b)(7)(A) exemption to withhold information from the plaintiff. As I describe in detail below, certain limited information is being withheld pursuant to Exemptions (b)(3) or (b)(7)(C).
II. DESCRIPTION OF OIC's SYSTEM OF RECORDS SEARCHED
AND RESULTS OF THE SEARCH
6(a). As noted above, plaintiff requested "photographs taken in connection with the investigation into the death of Vincent Foster", Exhibit I-1, and requested specific photographs which plaintiff attempted to identify in 10 categories. With the exception of categories 2 and 3, the plaintiff identified the photographs he sought as copies of certain photographs published in Volume II of Hearings Relating to Madison Guaranty S&L and the
_____________________
[1] Vincent W. Foster, Jr. was Deputy Counsel to President Clinton. The Report concluded that Mr. Foster committed suicide by gunshot in Fort Marcy Park on July 20, 1993.
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Whitewater Development Corporation – Washington, D.C. Phase. 103d Cong. (1994) ("the Senate hearings Volume II"). In categories 2 and 3, the plaintiff did not correlate the photograph he sought with a specific photograph contained in the Senate hearings Volume II; instead the plaintiff sought the photographs listed on pg. 2112 of the Senate hearings volume II (which contains a photocopy of an Federal Bureau of Investigation "Receipt for Property Received/Returned/Released/Seized" bearing certain handwriting listing certain photographs).
6(b). On August 5, 1994, after the enactment of the Independent Counsel Reauthorization Act of 1994, the Special Division appointed Kenneth W. Starr as Independent Counsel In re: Madison Guaranty Savings & Loan Association. The OIC was given jurisdiction to investigate and prosecute matters "relating in any way to James B. McDougal's, President William Jefferson Clinton's, or Mrs. Hillary Rodham Clinton's relationships with Madison Guaranty Savings & Loan Association, Whitewater Development Corporation, or Capital Management Services, Inc." Due to continuing questions about Mr. Foster's death, the relationship between Mr. Foster's death and the handling of documents (including Whitewater-related documents) from Mr. Foster's office after his death, and Mr. Foster's possible role or involvement in other events under investigation by the OIC, the OIC reviewed and analyzed evidence gathered during prior
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investigations of Mr. Foster's death and conducted further investigations. The photographs which the plaintiff requested were compiled for law enforcement purposes, including the investigation into the death of Mr. Foster. The photographs are maintained in the OIC's Washington, D.C. office. In response to the plaintiff's request, the OIC searched for potentially responsive material. The results of that search and the defendant's response to each category is set forth in detail in paragraph 6(c) below.
6(c). Following a photocopy of the plaintiff's FOIA request, Exhibit II contains each of the ten categories of photographs as listed by the plaintiff, and each category is numerically identified by tabs 1 through 10. In order to assist the Court, for each page in the Senate hearings Volume II which bore photograph(s) requested by the plaintiff, a copy of the Senate Report page first appears. When there were multiple photographs contained on a page in the Senate hearings Volume II, on the photocopy of the Senate page was added a legend "A," "B," "C," or "D" as was appropriate to each of the photographs. Following the page from the Senate hearings Volume II, there appears the photograph(s), identified by page and "A, B, C, or D". Thus, the Court and the plaintiff can easily correlate the released, withheld, or redacted photographs with what has been requested. Extreme care has been taken in the reproduction of
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the photographs. The following contains a summary of the photographs released, withheld in full or withheld in part:
(1) As to Category 1, which requests photographs of a gun published on pages 2406-2412 and 2436 of Senate hearings Volume II:
4 photographs are released in full from page 2406;
4 photographs are released in full from page 2407;
4 photographs are released in full from page 2408;
4 photographs are released in full from page 2409;
4 photographs are released in full from page 2410;
4 photographs are released in full from page 2411;
4 photographs are released in full from page 2412; and
Page 2436 (which contains a picture of a gun superimposed
upon a handwritten document) is being released in full.
(2) As to Category 2, which requests "the photograph of a gun alleged to be of Mr. Foster's hand with a gun still in it" and as to which plaintiff has stated "this photograph appears to be the first Polaroid listed among the set of eight listed at the bottom of page 2112" of Senate hearings Volume II:
the defendant's response is found as part of defendant's response to request for Polaroid 1 from bottom section of page 2112, located in Tab 3 (It is being withheld in full pursuant to the (b)(7)(C) exemption.)
(3) As to Category 3, which requests the photographs listed
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on page 2112 of Senate hearings Volume II, as noted above, this page is a photocopy of an Federal Bureau of Investigation "Receipt for Property Received/Returned/Released/Seized" bearing certain handwriting listing certain photographs. In Tab 3, a photocopy of the Receipt is reproduced. The listing of Polaroid photographs is broken into three sections: the top section which references 5 Polaroids, the middle section which references 5 Polaroids, and the bottom section which references 8 Polaroids.
(i) As to the top section, the defendant is releasing in full the first Polaroid ("rear of cannon"), and the second Polaroid ("heavily foliaged area"). The third, fourth, and fifth Polaroids are being withheld in full pursuant to the (b)(7)(C) exemption.
(ii) As to the middle section, the defendant is releasing in full the first Polaroid ("driver seat"), the second Polaroid ("rear seat - driver side"), the third Polaroid ("rear seat - passenger side"), the fourth Polaroid ("Ft seat - passenger side"), and the fifth Polaroid ("rear of vehicle").
(iii) As to the bottom section, the defendant is withholding in full the 8 Polaroids pursuant to the (b)(7)(C) exemption.
(4) As to Category 4, which requests photographs of a gun and accompanying materials published on pages 2395-2399 of Senate hearings Volume II:
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2 photographs are released in full from page 2395;
3 photographs (or their backs)[2] are released in full from page 2396;
3 photographs (or their backs) are released in full from page 2397;
3 photographs (or their backs) are released in full from page 2398; and
3 photographs (or their backs) are released in full from page 2399.
(5) As to Category 5, which requests photographs published on pages 2388-2391 of Senate hearings Volume II:
3 photographs are released in full from page 2388; the backs of 3 photographs are released in part from page 2389 and certain information is being withheld from 2389A, 2389B, and 2389C pursuant to Exemption (b)(3); 2 photographs are released in full from page 2390; and the backs of 2 photographs are released in part from page 2391 and certain information is being withheld from 2391A and 2391B pursuant to Exemption (b)(3).
(6) As to Category 6, which requests photographs published
____________________
[2] When the photograph contained in the Senate hearing volume was the back of a photograph, the backs of the photograph were reproduced in Exhibit II to the extent that they could be identified. The plaintiff was asked whether he still wanted to have the backs of photographs produced and he indicated that he did.
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on page 2392 of Senate hearings Volume II:
2 photographs are released in full from page 2392.
(7) As to Category 7, which requests photographs published on pages 2393-2394 of Senate hearings Volume II:
the backs of 3 Polaroids are released in part from page 2393 and certain information is being withheld from 2393A, 2393B, and 2393C pursuant to Exemption (b)(3); and the backs of 2 Polaroids are released in part from page 2394 and certain information is being withheld from 2394A and 2394B pursuant to Exemption (b)(3).
(8) As to Category 8, which requests photographs published on pages 2399-2405 of Senate hearings Volume II:
3 photographs are released in full from page 2399;
2 photographs are released in full from page 2400 and certain information is being withheld from photographs 2400C and 240OD pursuant to Exemption (b)(7)(C);
2 photographs are released in full from page 2401 and certain information is being withheld from photographs 2401A and 2401B pursuant to Exemption (b)(7)(C);
Certain information is being withheld from photographs 2402A, 2402B, 2402C and 2402D pursuant to Exemption (b)(7)(C);
2 photographs are released in full from page 2403, and certain information is being withheld from photographs 2403A
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and 2403B pursuant to Exemption (b)(7)(C) 4 photographs are released in full from page 2404; and
4 photographs are released in full from page 2405.
(9) As to Category 9, which requests photographs published on pages 2413-2424 of Senate hearings Volume II:
4 photographs are released in full from page 2413;
4 photographs are released in full from page 2414;
2 photographs are released in full from page 2415 and certain information is being withheld from photographs 2415C and 2415D pursuant to Exemption (b)(7)(C);
4 photographs are released in full from page 2416;
4 photographs are released in full from page 2417;
4 photographs are released in full from page 2418;
4 photographs are released in full from page 2419;
4 photographs are released in full from page 2420;
4 photographs are released in full from page 2421;
2 photographs are released in full from page 2422, and certain information is being withheld from photographs 2422A and 2422B pursuant to Exemption (b)(7)(C);
4 photographs are released in full from page 2423; and
4 photographs are released in full from page 2424.
(10) As to Category 10, which requests photographs published on pages 2425-2428 of Senate hearings Volume II:
Each page contained in Senate hearings Volume II at 2425-
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2428 contains the copy of the backs of 2 photographs, for a total of the backs of 8 photographs. After extensive comparison, it is not possible to definitively match the backs of photographs with the backs as photocopied in the Senate hearings Volume II. Therefore, all 8 backs appear in Tab 10 without a page correlation. As to each of the backs, certain information has been withheld from each of the 8 backs pursuant to the (b)(3) exemption.
6(d). In summary, a total of 118 photographs or Polaroids (or their backs) have been released in full, 11 Polaroids have been withheld in full pursuant to the (b)(7)(C) exemption, information from 18 photographs (or their backs) has been withheld pursuant to the (b)(3) exemption, and information from 14 photographs (or their backs) has been withheld pursuant to the (b)(7)(C) exemption.
III. EXPLANATION OF FORMAT USED FOR JUSTIFICATION
OF WITHHELD MATERIAL
7. For the Court's information, I thoroughly reviewed the responsive photographs described in paragraph 6, above. As noted, portions of certain photographs or backs of photographs, and certain photographs in their entirety, are being withheld by OIC pursuant to one of two FOIA exemptions: (b)(3) and (b)(7)(C). The categories, which are described below, describe the statutory exemption asserted, the rationale for claiming the exemption, and the subject matter of the asserted exemptions. Copies of the
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redacted records (see Exhibit II) are labeled with the relevant coded categories of exemptions. The coded categories identify the nature of the information withheld under FOIA. In addition, OIC has provided a separate narrative description (see Exhibit III) identifying each document or portion thereof being withheld, the exemption claimed, and the justification for withholding the information.
8. A summary of the exemption categories is provided below:
|
Category (b)(3) |
Records Specifically |
|
Category (b)(7)(C) |
Records or Information |
9. Exemptions claimed by OIC fall into two categories: (b)(3) and (b)(7)(C). The narrative descriptions for the information being withheld are found in Exhibit III. The narrative descriptions (which also refer back to paragraphs in this declaration) and coded categories are being used to aid the Court's review of OIC's explanations for FOIA exemptions used to withhold the protected material. Describing the information withheld by OIC in more detail, in this declaration and in the narrative descriptions in Exhibit III, could identify the
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material OIC seeks to protect. No reasonably segregable, non-exempt portions have been withheld from the plaintiff. Accordingly, all information withheld is exempt from disclosure pursuant to a FOTA exemption.
IV. JUSTIFICATION FOR WITHHELD MATERIALS
10. Plaintiff is being provided with the maximum disclosure authorized by law. The specific FCIA exemptions under which information was withheld by OIC are discussed below.
(A) Title 5 U.S.C. § 552(b)(3). Information Specifically Exempted from Disclosure By Statute.
11. Title 5 U.S.C. § 552(b)(3) allows the withholding of information specifically exempted from disclosure by statute if such exempting statute "(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld."
12. Fed. R. Crim. P. 6(e), which prohibits the disclosure of "matters occurring before the grand jury," is an exempting statute within the meaning of Exemption (b)(3) of the FOIA. The investigations conducted into the death of Mr. Foster included, among other things, the adducing of evidence before the federal grand jury in Washington, D.C. See Report at 2.
13. Information relating to matters before the grand jury has been redacted from the backs of certain photographs, pursuant to FOIA Exemption (b)(3). (See document numbers 2389A; 2389B; 2389C; 2391A; 2391B; 2393A; 2393B; 2393C; 2394A; 2394B; 2425A; 2425B;
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2426A; 2426B; 2427A; 2427B; 2428A; 2428B.)[3] Disclosure of the withheld information would reveal what evidence was presented to the grand jury.
(B) Title 5 U.S.C § 552(b)(7)(C) Records or Information Compiled for Law Enforcement Purposes which Could Reasonably be Expected to Constitute an Unwarranted Invasion of Personal Privacy.
14. Title 5 U.S.C. § 552(b)(7)(C) exempts from release records or information compiled for law enforcement purposes, disclosure of which reasonably could be expected to constitute an unwarranted invasion of personal privacy.
15. In asserting this exemption, the withheld information was evaluated to determine the nature and strength of the privacy interest of any individual whose name and/or identifying data appears in the photographs at issue. In withholding the information, the individual's privacy interest was balanced against the public's interest in disclosure. In each instance where information was withheld, it was determined that the individual did have a privacy interest and that the individual's
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[3] It should be noted that the information being withheld from the backs of these identified photographs pursuant to Exemption (b)(3) was not affixed to the photographs at the time of the Senate hearings. To the extent that the plaintiff has requested the photographs as they existed in the Senate hearings Volume II, the information was not in existence at that time and therefore the information being withheld is outside the scope of the plaintiff's FOIA request.
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privacy interests were not outweighed by any public interest in disclosure. Disclosure of names and identifying information and data relating to third parties would not shed light on how the government performs its statutory duties. When the documents at issue were reviewed for purposes of preparing this declaration, the passage of time and any effect on third-party privacy interests were considered. It was determined that the privacy interests are as strong -- if not stronger -- now than when the records were created. To reveal names and other personal identifying information in the context of these records could reasonably be expected to cause embarrassment, potential harassment and emotional anguish.
16. Exemption (b)(7)(C) was asserted to withhold the names and identifying information of third parties (Foster family and non-family members) who were not the subject of investigation in Document Nos. 2400C; 2400D; 2401A; 2401B; 2415C; 2415D. The names and identifying information were withheld to protect the relevant individuals from unnecessary harassment, nuisance and emotional and mental anguish. The identification of these individuals, particularly in connection with Mr. Foster's death, could cause them embarrassment, humiliation or unwarranted public attention. Disclosure of this information would, thus, result in an unwarranted invasion of those individuals' personal privacy.
17. Exemption (b)(7)(C) was also asserted to withhold nine
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(9) post-mortem photographs of Mr. Foster's face and/or body. OIC invokes the same exemption to withhold one (1) photograph depicting, post-mortem, Mr. Foster's right hand clutching a gun; and one (1) photograph of Mr. Foster's eyeglasses, lying on the ground near his body. Thus, a total of eleven (11) photographs are being withheld in full pursuant to Exemption (b)(7)(C). These photographs sought by the plaintiff are graphic, explicit, and extremely upsetting. The privacy interest being asserted is that of Vincent Foster's family members. Disclosure of the foregoing photographs would cause Mr. Foster's surviving family members a great deal of anguish well beyond that which they have already suffered, and thus would constitute an unwarranted invasion of their personal privacy. (See Document No. 2112, Top Section, Polaroid Nos. 3-5; Document No. 2112, Bottom Section, Polaroid Nos. 1-8.)
18. Finally, Exemption (b)(7)(C) was asserted to withhold from eight photographs certain matter pertaining to Foster family members. (See Document Nos. 2402A; 2402B; 2402C; 2402D; 2403A; 2403B; 2422A; 2422B.) Disclosure of these items in the form called for by Mr. Favish's FOIA request would cause Mr. Foster's
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surviving family members additional anguish, and thus, as is the case with the material described in paragraph 17, above, would constitute an unwarranted invasion of their personal privacy.
I declare under penalty of perjury the foregoing information is true and correct to the best of my knowledge and belief.
Dated this 2nd day of January, 1998, at the Office of the Independent Counsel, Washington, D.C.
/signature/
Darrell M. Joseph
Associate Independent Counsel
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