Tuesday, May 6, 2003
High Court to Hear Local Lawyer’s Bid for Foster Photos’ Release
By KENNETH OFGANG , Staff Writer/Appellate Courts
The U.S. Supreme Court yesterday agreed to decide whether a Los Angeles attorney is entitled under the Freedom of Information Act to obtain the release of photos taken of presidential lawyer Vincent Foster’s corpse by the U.S. Park Police.
The justices without comment granted a petition by the federal government for review of a Ninth U.S. Circuit Court of Appeals decision that requires the Office of Independent Counsel to make public four of 10 disputed photos covered by Allan J. Favish’s request.
Favish practices with a Century City firm but has litigated the case on his own since its inception and said he plans to argue it before the high court. He told the MetNews he was “a little bit elated” the court decided to hear the case, but was confused as to why the justices only granted the government’s petition, one of three that were filed.
Favish filed a petition of his own, arguing that all 10 photos should be released. Foster’s sister and widow filed a petition asking for the same relief as the government, blocking any of the photos from being made public.
While only the government’s petition was granted yesterday, Favish noted that the other petitions remain pending, and said he was hopeful the court would eventually grant his. Favish contends that the government has, through negligence or design, covered up the possibility that Foster was murdered for reasons related to his government service, and has previously obtained more than 100 photographs related to the Foster investigation from the OIC.
Physical evidence, Favish and others have argued, supports the notion that Foster may have been murdered, and/or that his body was moved to the park, where it was found on July 20, 1993.
Foster was a deputy White House counsel and onetime Arkansas law partner of now-U.S. Sen. Hillary Rodham Clinton, D-N.Y., and was said to be despondent about life in official Washington. Favish’s “educated guess,” he said, is that Foster was planning to resign and an associate of the Clintons, with or without their knowledge, wanted Foster killed for fear he might reveal official wrongdoing, possible in connection with the so-called Whitewater or “Travelgate” scandals.
The case has 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.
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.
Congressional Intent Issue
Favish argues that both Keller and the Ninth Circuit have expanded FOIA’s “unwarranted invasion of personal privacy” exemption beyond what Congress intended.
The exemption, he says, was designed to protect personal information, not sensibilities of family members. Thus, Foster’s privacy rights under the act terminated with his death, and his widow and sister cannot block the release of the photos because their rights under FOIA are limited to protecting the release of information about themselves, he argues.
Moody and Anthony, represented by prominent Washington attorney James Hamilton, said the release of more photos would harm them by “invading their memory of a loved one, by subjecting them to harassment from any number of media outlets, and by leaving them vulnerable to the unwitting viewing of profoundly traumatic images.”
That’s no argument under FOIA, Favish said yesterday.
Moody and Anthony “are arguing for a change in the definition,” he commented. “I don’t dispute ...that they may be upset” by the sight of a gruesome photo of Foster in a newspaper, he commented, “but there’s nothing in the law to protect [them] from having that happen.”
The family members should “lobby Congress to get an exemption” rather than ask the high court to create one, he said.
Favish, a former MetNews staff writer, also urged the high court to address the issue of whether it was appropriate for the Ninth Circuit to leave entire photos shielded from public view rather than require that the offensive feature of a photo be blacked out, just as text documents are redacted when a portion of a document is exempt from disclosure.
The court, he said, should “apply the redaction principle to image documents as well as text documents.” For example, he explained, it could order that the image of Foster be removed from a photo, leaving visible the surrounding leaves or brush.
The Justice Department argued in its papers that the Ninth Circuit ruling implicates “the privacy interest of millions of individuals, about whom personal and sensitive information is stored in government files.”
The government claims that no public purpose would be served by release of the information, because five government investigations, including those conducted by former Independent Counsel Kenneth Starr, former Justice Department special counsel Robert Fiske and the Park Police, concluded that Foster, who was depressed, killed himself.
The Justice Department argued that a sixth probe “by an unsatisfied private citizen” is unnecessary.
Copyright 2003, Metropolitan News Company