Privacy won out over the public’s right to know in a Freedom of Information Act case decided by the Supreme Court in March.
The decision drew little attention when issued, perhaps because the quirky facts of the case may have appeared inapplicable to broader issues of freedom of information.
The court, citing privacy concerns, denied a request by California lawyer Allan Favish for government death-scene photographs of former Clinton Administration White House aide Vince Foster.
But the ruling in National Archives and Records Administration v. Favish may prove one of the most harmful FOIA decisions in years for the media and others seeking government documents. It strengthens the hand of government agencies seeking to invoke privacy as a reason not to release government information.
A Justice Department analysis of the decision advised other agencies that it “encompasses a full range of privacy-protection considerations … that can guide future FOIA decision making.” The analysis also noted that under the decision, Foster’s status as a public figure and prominent government official did not lessen his — or his family’s — claim to privacy.
“In the future, other potential beneficiaries of the FOIA’s privacy exemptions should be no less entitled too such treatment,” the government memo stated.
Favish, a California lawyer with a longstanding interest in the 1993 death of Clinton White House aide Vince Foster, originally filed the case. Even though five investigations have determined that Foster, then deputy White House counsel, died by suicide, Favish and others have questioned that conclusion.
He sought government photos of Foster’s body taken at a park in Virginia. The Office of Independent Counsel for the Whitewater and other Clinton-era investigations held the photos. It denied the request, and Foster’s family also intervened in the litigation to stop their release. When the independent counsel wound down its operations in early 2004, the National Archives got the photos.
Whereas traditionally, FOIA requesters do not need to explain why they seek certain documents, the court’s ruling requires that when privacy interests come into play, “the requester must produce evidence that would warrant a belief by a reasonable person that the alleged government impropriety might have occurred.”
That new standard brought swift objections from open government advocates.
“The new requirement that requesters must show evidence of government wrongdoing before such records will be released will almost surely prevent reporters and other interested citizens from investigating suspicious deaths,” said Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press. “I don’t know how you can expect requesters to prove a negative before they are entitled to a record under the Freedom of Information Act.”
The FOIA, long a valued tool for the press and the public, nonetheless allows government agencies to withhold documents for a variety of specific reasons.
Under exemption 7(C), the government may refuse to disclose materials that could, if released, cause an “unwarranted invasion of personal privacy.” A recent study by the Reporters Committee for Freedom of the Press found that privacy now ranks as the leading reason cited by government agencies in refusing FOIA requests. Both the 7(c) exemption at issue in the Favish case and another exemption protecting personnel and medical records invoke privacy concerns.
Favish argued his cause before the Supreme Court last December. Media and public access groups joined Favish in arguing that the privacy exemption does not extend to family members or survivors of the person on whom the documents focus.
But the court’s unanimous ruling, written by Justice Anthony Kennedy, rejects that view categorically. Reviewing the history of burial rites back to ancient Greece, Kennedy said Foster’s family had a long-recognized right not to have pictures of his body released.
“They seek to be shielded by the exemption to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility, not for the sake of the deceased,” Kennedy wrote. “We think it proper to conclude from Congress’ use of the term ’personal privacy’ that it intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and in our cultural traditions.”
Though much of the ruling appears confined to death-scene photographs, the rule or standard enunciated by Kennedy seems to cover any FOIA request in which privacy interests are involved. However, it does not spell out how to determine the presence or absence of those interests.
Kennedy wrote: “Where the privacy concerns addressed by Exemption 7(C) are present, the exemption requires the person requesting the information to establish a sufficient reason for the disclosure. First, the citizen must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake. Second, the citizen must show the information is likely to advance that interest. Otherwise, the invasion of privacy is unwarranted.”
Later in the opinion, Kennedy elaborated: “We hold that, where there is a privacy interest protected by Exemption 7(C) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.”
Dalglish believes the standard will be very difficult to meet.
“In essence, they are requiring requesters to demonstrate government misdeeds before they get the record. Usually, that’s why they’re asking for the record — to show government impropriety. It puts the requester in an impossible situation.”
Former SPJ FOI chairman Tony Mauro covers the Supreme Court for American Lawyer Media and Legal Times.
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