Friday, September 26, 2003
U.S. High Court Sets Arguments in Bid for Release of Foster Photos
By a MetNews Staff Writer
The U.S. Supreme Court has scheduled oral argument on a Los Angeles attorney’s contention that photos of presidential lawyer Vincent Foster’s corpse, taken by the U.S. Park Police, should be made public under the Freedom of Information Act, the attorney reported yesterday.
Allan J. Favish said he received notice from the Supreme Court clerk that the case will be heard Dec. 3.
The high court earlier granted 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 Favish’s request.
Favish practices with a Century City firm but has litigated the case on his own since its inception and has said he plans to argue it before the high court. He is also a former MetNews staff writer.
The government has opposed release of any of the disputed photos, saying the more than 100 already released photographs related to the Foster investigation satisfy any legitimate public interest. Favish continues to maintain that all 10 photos should be released, and that Foster’s sister and widow cannot assert an interest in the deceased’s privacy under FOIA.
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. Physical evidence, Favish and others have argued, supports the notion that Foster may have been murdered, and/or that his body was moved to Fort Marcy Park in Washington, 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 has 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, possibly 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 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 the family, he was required by the Ninth Circuit ruling to strike a balance between their right to privacy and the public’s right to disclosure.
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.
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.
Media groups have filed briefs supporting that position, while Theresa Earnhardt has filed a brief in support of the family. The widow of racing legend Dale Earnhardt became embroiled in legal and legislative battles over privacy rights after the Orlando Sentinel sought photos of her husband’s autopsy.
The Sentinel said it had no intention of publishing the photos, but wanted to have them reviewed by an independent expert to determine whether physical evidence was consistent with claims by NASCAR, the governing body of racing, that seat-belt failure caused the crash in which Earnhardt was killed.
Copyright 2003, Metropolitan News Company