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Vince foster photos secret { December 4 2003 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A33174-2003Dec3.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A33174-2003Dec3.html
Privacy Case Goes Before Justices
Man Battling Family for Access to Vincent Foster Photos
By Charles Lane
Washington Post Staff Writer
Thursday, December 4, 2003; Page A04
Oral arguments at the Supreme Court took on an emotional and, at times, macabre tone yesterday, as the justices weighed a conflict between a skeptical citizen's demand for government disclosure and a grieving family's plea for personal closure -- in the context of the 1993 death of deputy White House counsel Vincent Foster.
At issue was Allan Favish's claim that the federal Freedom of Information Act (FOIA) gives him a right to 10 gruesome photographs of Foster's body made by police who discovered it at Fort Marcy Park in July 1993.
Favish believes the gunshot that killed Foster, President Bill Clinton's confidant and custodian of documents in the Whitewater case, may not have been self-inflicted, and that five official investigations, including those by Whitewater special prosecutor Robert B. Fiske Jr. and Whitewater independent counsel Kenneth W. Starr, that concluded otherwise may have been part of a coverup.
But the Bush administration, joined by Foster's sister Sheila Foster Anthony and his widow, Lisa Foster Moody, contends that the release of the pictures would do nothing but prolong a family's 10-year nightmare.
They say the situation falls within a provision of FOIA that permits the government to withhold law enforcement records that might create "an unwarranted invasion of personal privacy."
Thus, the justices must decide whether "personal privacy" was meant to apply only to the individual referred to in requested records, or to his survivors as well. If they find a right to "survivor privacy," they must determine whether Favish's theories are of sufficient public interest to override it.
Favish, a lawyer arguing his own case, told the court that Congress had not written FOIA to cover family members, and that "it is not for the courts to rewrite it."
Alleging "major omissions" by official investigators, Favish argued that "I can think of no higher public interest than what is being asserted here."
Favish has said in filings that the photos will let him evaluate "blood splatters" that could show whether Foster's body was tampered with.
In 2001, a California district court agreed in part with Favish, granting him access to four of the pictures he wanted, and last year the San Francisco-based U.S. Court of Appeals for the 9th Circuit agreed, though it denied Favish one of the four photos.
Favish also has the support of leading journalists. A friend-of-the-court brief submitted by eight press groups, including the Reporters Committee for Freedom of the Press and the American Society of Newspaper Editors, denounced the government's "overly narrow view of the public interest."
Describing the Foster family's privacy interests as "minimal," given already extensive coverage of the case, the organizations urged the court to look beyond Favish and think of "other members of the public, including journalists and writers."
Patricia A. Millett, assistant solicitor general of the United States, her voice occasionally breaking with emotion, asked the court to indulge her mention of "graphic" material and argued that "in an age of mass death," the government must sometimes withhold images on behalf of survivors.
Favish's speculation is not the sort of "clear evidence" that could trump survivor privacy, she said.
James Hamilton, an attorney for Foster's family, said the relevant image of the news media was not loyal public watchdog, but baying pack.
"The Foster family seeks to be free from seeing these photos on television and the front pages of grocery store tabloids or on ghoulish Web sites," he said.
The argument created a role reversal of sorts as Favish, branded a "conspiracy theorist" by Justice Antonin Scalia, refrained from expounding his more elaborate views of Clinton and Foster, while justices launched questions at him tinged with strong feelings.
"You've just demonstrated some foot faults" in the Foster investigations, Scalia told him. "Who cares? You really think this is a question of moment for the country?"
"There is a tradition going back thousands of years . . . that death is a private matter," Justice Stephen G. Breyer added.
"Congress didn't say that," Favish replied.
Later, Breyer suggested that Favish wanted to throw open records of criminal investigations of "thousands" of people who turned out to be innocent. What would protect them? Breyer asked.
Favish said that, under his argument, they would be protected inasmuch as there would be no issue of survivors' rights.
But in her rebuttal argument, Millett said, "Justice Breyer, you hit the nail on the head."
Suggesting the photos could soon be on "findadeath.com," she said that "if in the eye of the public, law enforcement becomes the instrument of this kind of disclosure, that is likely to have a chilling effect on people's cooperation with" authorities.
The case is Office of Independent Counsel v. Favish, No. 02-954. A decision is expected by July.
© 2003 The Washington Post Company
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