NATIONAL ARCHIVES AND RECORDS ADMINISTRATION v. FAVISH

Legal Principle at Issue

Whether the Office of Independent Counsel properly withheld, under FOIA's Exemption 7(C), photographs relating to the death of former Deputy White House Counsel Vincent Foster.

Action

Reversed and remanded. Petitioning party received a favorable disposition.

Facts/Syllabus

Vincent Foster, Jr., deputy counsel to President Bill Clinton, was found dead in Fort Marcy Park, and the U.S. Park Police conducted the initial investigation and took color photographs of the death scene, including 10 pictures of Foster's body. The investigation concluded that Foster committed suicide by shooting himself with a revolver. Subsequent investigations by the FBI, Senate and the House committees, and independent counsels Robert Fiske and Kenneth Starr reached the same conclusion. 

Despite the unanimous finding of these five investigations, a citizen interested in the matter, Allan Favish, remained skeptical. Favish was the associate counsel for Accuracy in Media, which applied under FOIA for Foster's death-scene photographs. After the National Park Service resisted disclosure, Favish filed suit in the U.S. District Court for the District of Columbia to compel the government to release the photos. The District Court granted summary judgment against Accuracy in Media. The Court of Appeals for the District of Columbia unanimously affirmed.

However, still convinced that the Government's investigations were "grossly incomplete and untrustworthy," Favish filed yet another FOIA request under his own name. Like the National Park Service, the Office of Independent Counsel refused the request. Again, Favish sued to compel the release of the photos, this time in the U.S. District Court for the Central District of California, which granted partial summary judgment to the Office of Independent Counsel. With the exception of the picture showing Foster's eye-glasses, the court upheld the Counsel's claim of exemption, holding that Foster's surviving family members enjoy personal privacy interests that could be infringed by disclosure of the photographs. It then found, with respect to the asserted public interest, that Favish "has not sufficiently explained how disclosure of these photographs will advance his investigation into Foster's death." Any purported public interest in disclosure, moreover, "is lessened because of the exhaustive investigation that has already occurred regarding Foster's death." Balancing the competing interests, the court concluded that "the privacy interests of the Foster family members outweigh the public interest in disclosure." 

On appeal to the U.S. Court of Appeals for the Ninth Circuit, the majority reversed and remanded. In the majority's view, although evidence or knowledge of misfeasance by the investigative agency may enhance the urgency of the FOIA request, "nothing in the statutory command conditions [disclosure] on the requesting party showing that he has knowledge of misfeasance by the agency." As the majority read the statute, there is "a right to look, a right to speculate and argue again, a right of public scrutiny." The Ninth Circuit, however, agreed with the district court that the exemption recognizes the Foster family's right to personal privacy. Although the pictures contain no information about Foster's relatives, the statute's protection "extends to the memory of the deceased held by those tied closely to the deceased by blood or love." Nevertheless, the majority held that the district court erred in balancing the relevant interests based only on the Vaughn index, and remanded the case back to the district court to examine the photos in light of the Ninth Circuit's opinion. On remand, the district court ordered the release of five photographs.

On the second appeal to the same panel, the majority affirmed in part. Without providing any explanation, it upheld the release of all the pictures, except one. The Supreme Court granted OIC's petition for a writ of certiorari to resolve a conflict in the Courts of Appeals over the proper interpretation of the FOIA exemption.