Metropolitan News-Enterprise


Wednesday, March 31, 2004


Page 1


Supreme Court Rejects Local Lawyer’s Bid for Foster Death Photos

Justices Rule There Was No Showing That Would ‘Warrant Belief’ Impropriety Occurred


From Staff and Wire Service Reports


The U.S. Supreme Court yesterday rejected a lawyer’s pursuit of photos he contends might show Clinton administration lawyer Vincent Foster was murdered, ruling that the privacy rights of relatives outweigh any public interest in disclosure.

Writing for a unanimous court, Justice Anthony Kennedy said Allan Favish, a former MetNews staff writer, did not produce enough evidence of a cover-up in investigations that concluded Foster committed suicide to require release of the photographs. Favish, who practices with a Century City firm but litigated the case on his own, could have prevailed only by making a showing that would “warrant a belief by a reasonable person that the alleged government impropriety might have occurred,” Kennedy said.

Favish yesterday hailed the new standard as a mark of progress in litigation under the Freedom of Information Act, saying Kennedy’s opinion has “driven a stake through the heart” of an “onerous, improper” standard adopted by the D.C. Circuit, among other courts. Under that standard, Favish said, “compelling evidence” of government misconduct would have been required.

But he faulted the justices for making a factual determination that he failed to make the required showing. That determination, he noted, was made without any significant discussion of the evidence of impropriety he presented.

Favish said he cited an FBI memo and medical reports showing inconsistencies in the descriptions of Foster’s fatal wounds. He said questions about the Foster case remain unanswered, but conceded, “This case is over.”

Exemption 7(C)

 Yesterday’s ruling marked the first time the Supreme Court has said that FOIA Exemption 7(C), which allows the government to withhold records that could “constitute an unwarranted invasion of personal privacy,” applies to survivors.

“It’s going to be much more difficult for journalists and others to get these records,” Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press said. “They’re going to have to show the government screwed up or deliberately misbehaved. I think that’s a virtually impossible standard.”

In rejecting Favish’s contention that the exemption applies only to the individual who is the subject of the records involved, not to relatives, Kennedy wrote:

“Law enforcement documents obtained by Government investigators often contain information about persons interviewed as witnesses or initial suspects but whose link to the official inquiry may be the result of mere happenstance. There is special reason, therefore, to give protection to this intimate personal data, to which the public does not have a general right of access in the ordinary course.”

While family members are not “in the same position” to assert privacy rights as an individual who is the subject of government records, Kennedy conceded, he added:

 “We have little difficulty, however, in finding in our case law and traditions 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.”

The justice cited the play Antigone by the Greek dramatist Sophocles, among other authorities, for that proposition.

‘Bare Suspicion’ Insufficient

Kennedy said the Ninth U.S. Circuit Court of Appeals erred in failing to require a “particular showing that any evidence points with credibility to some actual misfeasance or other impropriety” in order to overcome the family’s privacy interest. “[M]ore than a bare suspicion” must be shown, he said.

Foster’s family and the Bush administration had together battled to keep the pictures private.

They were supported at the Supreme Court by the widow of race car driver Dale Earnhardt, who has waged her own fight in Florida courts against the release of her husband’s autopsy photographs. The pictures had been sought by journalists amid questions that better equipment could have prevented his 2001 death during the Daytona 500.

Five government investigations concluded that a depressed Foster, 48, shot himself in the head at a suburban park in 1993. The longtime friend of Bill and Hillary Rodham Clinton was handling several personal legal matters for them at the time.

The Bush administration argued that the government needs to protect sensitive information, like autopsy photographs of U.S. soldiers killed overseas and pictures of unidentified remains from the Sept. 11 attacks.

 The case had been to the Ninth Circuit twice since Senior U.S. District Judge William Keller of the Central District of California ruled in 1998 that none of the photographs taken in Washington’s Fort Marcy Park after Foster’s body was discovered there in 1993 should be released.

Examination Ordered

 The first appellate ruling, in July 2000, said that Keller erred in ruling without actually looking at the photos, and directed that he examine them and make a separate determination as to each one whether the privacy interests of the family outweighed the public interest in disclosure.

On remand, Keller said that while he “commiserate[d]” with Sheila Foster Anthony and Lisa Foster Moody, he was required by the Ninth Circuit ruling to strike a balance between their right to privacy and the public’s right to disclosure.

Moody is Foster’s widow, and married a federal judge after his death. Anthony, the late attorney’s sister, was an appointee of President Clinton to the Federal Trade Commission and is the wife of a former congressman.

 Keller said that five of the photos were so “graphic, explicit, and extremely upsetting” that they should not be released into the public domain, but that the rest should be disclosed. On the second appeal, the panel largely agreed with Keller, except that it allowed withholding of one additional photo.

One of the four photos, which shows Foster clutching the gun with which he is believed to have killed himself, was actually leaked to the media and published in 1994.


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