Wednesday, May 19, 2004
Justices Deny Foster Photos Rehearing; Attorney Blasts ‘Lies’ in Opinion
By KENNETH OFGANG, Staff Writer/Appellate Courts
The U.S. Supreme Court has denied rehearing of its decision not to order the government to disclose photos that a local attorney contends might show Clinton administration lawyer Vincent Foster was murdered.
The court Monday denied without comment Allan J. Favish’s petition for rehearing in +National Archives and Records Administration v. Favish+, 02-954.
The high court ruled unanimously on March 30 that Favish did not produce enough evidence of a cover-up in investigations that concluded Foster committed suicide to overcome what the high court found to be a substantial privacy interest on the part of Foster’s survivors.
Favish unsuccessfully argued that the Freedom of Information Act recognizes no privacy interest on the part of persons about whom the document in question contains no information, and that even if it does, the public interest in the cause of Foster’s death still requires disclosure.
Favish, a former MetNews staff writer, yesterday criticized the court for failing to correct “false statements in its opinion.” Since the statements “have been brought to [the court’s] attention” by the petition for rehearing “and the Supreme Court refuses to correct them, it is now accurate to characterize the false statements as...lies,” Favish said.
Favish, who practices with a Century City firm but litigated the case on his own, said the justices were guilty of “a blatantly false statement” suggesting that he had lost a previous case on the issue.
The opinion cites a suit filed in Washington, D.C. by the organization Accuracy in Media, seeking copies of photographs of Foster’s corpse, in the possession of the National Park Service, the parent agency of the D.C. Park Police.
Justice Anthony Kennedy, in his opinion for the court, explained that “Favish was the associate counsel for” AIM, lost that case on summary judgment, then “filed the present FOIA request in his own name.” Kennedy went on to say that the judge who heard Favish’s case in the U.S. District Court for the Central District of California “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.”
But Favish, in his comments yesterday and in a detailed response on his website, www.allanfavish.com, noted that he handled the prior suit as an employee of Judicial Watch, Inc., which was counsel of record for AIM, and that he filed his FOIA request in January 1997 and his lawsuit two months later.
AIM, he pointed out, filed its FOIA request after he had already sued in California; he did not begin working on the AIM suit until he joined Judicial Watch several months after that suit was filed.
Other misrepresentations in the court’s opinion, he said, concern the content of the Restatement (Second) of Torts concerning privacy rights of someone who is not the subject of the photograph or document in question, and the statement that he provided “no evidence” to back up his assertion that the Park Police were negligent in their handling of the investigation.
He also took issue with statements in the court’s opinion, and elsewhere, that the conclusion that Foster committed suicide in the park is supported by “five different inquiries,” including that of the Park Police and those led by Justice Department special counsel Robert Fiske and Independent Counsel Kenneth Starr, as well as two by Congress.
There has never been a congressional investigation into the Foster death, Favish insisted. The references in the court’s opinion, he said, are to a Senate Banking Committee probe into the way the Park Police handled the investigation—in which the suicide conclusion was simply accepted, not investigated, Favish said—and a report by the ranking Republican on the House Government Affairs Committee that had no official status and produced no official record.
No official inquiry has resulted in any conclusion other than 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 sided with the Foster relatives, arguing 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 government’s official archivist was substituted for the Office of Independent Counsel as the defendant in the case after the office once headed by Kenneth Starr ceased operations in March and turned over all of its records.
Copyright 2004, Metropolitan News Company