A family's privacy vs. public's right to know

Allan Favish is on a mission. The California lawyer wants to expose what he believes is a government coverup involving the July 1993 death of Vincent Foster, deputy White House counsel.

He even has an idea how to expose the coverup: by gaining access, through the Freedom of Information Act (FOIA), to 10 color photographs taken by police shortly after Mr. Foster's body was discovered in a national park in Virginia.

There's just one problem. The government is unwilling to release the photographs, as are Foster's surviving family members, who say public disclosure and distribution of the photos would violate the family's right to privacy and force them to relive the morbid episode a decade later.

Wednesday, the issue arrives at the US Supreme Court, where the justices are being asked to decide whether the public's right to know certain government information outweighs any privacy rights of a dead person and surviving family members.

The case has major implications for American news organizations and government watchdogs who often battle officials and agencies for access to government-held information. It also has major implications for the state of privacy in the US. As such, it represents a classic struggle between a citizen's right to know what his government is up to versus another citizen's right to be left alone.

The case, Office of Independent Counsel v. Favish, is significant because it offers the court an opportunity to clarify whether a dead individual has a right to privacy that extends after death to surviving family members. The case is also important because it could help establish how much evidence, if any, is necessary to overcome privacy concerns to force the government to disclose information under the Freedom of Information Act.

"When a high-ranking government employee dies a violent death, the public has a right to know if that death occurred in the manner claimed by the government," says Mr. Favish in his brief to the court.

Lawyers for Foster's widow and sister view the issue differently. "Favish's ghoulish attempt to obtain and publicize photographs of Vince Foster lying dead in Fort Marcy Park is not supported by any legitimate public interest," says Washington lawyer James Hamilton, in his brief to the court.

Since Foster's death, there have been five official investigations, including two by independent counsels. They have generated thousands of pages of evidence, testimony, and analysis, and more than 100 photographs. All five investigations reached the same conclusion: that Foster committed suicide.

Despite these investigations, some conspiracy theorists believe Foster may have been murdered.

In his brief to the court, Favish details a series of questions that he says were unresolved or ignored in the government's investigations.

For example, he says the first person to find Foster dead did not recall seeing a gun in Foster's hand, as reported later by federal agents. And he says a paramedic reported seeing a small bulletlike entrance wound on the right side of Foster's neck, a wound inconsistent with a single self-inflicted gunshot as described in government reports.

"The public's interest in disclosure outweighs the asserted privacy interest because the government's reports are demonstrably untrustworthy," says the Favish brief.

"Once the government reports are shown to be untrustworthy, it becomes necessary for the public to see the raw evidence for itself because it cannot trust the government to accurately and completely report on that evidence to the public," he says. "This case is a textbook example of the reason that the FOIA was enacted."

Lawyers for the Foster family see nothing unusual in the issues raised by Favish.

"The kinds of minor inconsistencies [Favish] alleges are typically present in any large, high-profile investigation," Mr. Hamilton says in his brief.

He warns that if Favish's evidence is enough to require FOIA disclosure, "persons like [Favish] will have free reign to rummage through law enforcement records and publish any material they obtain, no matter how damaging that may be to privacy rights."

Solicitor General Theodore Olson says the government has already investigated and rejected the questions raised by Favish. "FOIA's carefully crafted protection of personal privacy would be rendered an empty promise if it could be overcome by little more than an idiosyncratic distrust of government or the creative spawning of conspiracy theories," Mr. Olson says in his brief.

Although the high court itself hasn't ruled on the scope of privacy rights of family members, other courts have upheld such rights. They've blocked public release of the final voice transmissions from the space shuttle Challenger and refused public access to autopsy photos of President Kennedy.

In addition to judges, state lawmakers have generally sided with families seeking to block public access to autopsy photos. Twenty-four states have classified autopsy photographs as confidential, and 19 other states have enacted restrictions on their public release. Of the seven states with no restrictions, two have pending legislation to make disclosure of autopsy photos more difficult.

"There are profound privacy interests involved," says Parker Thomson, a Miami lawyer who filed a friend-of-the-court brief in the Favish case. Mr. Thomson represents the widow of professional race-car driver Dale Earnhardt.

Mr. Earnhardt was killed in February 2001 during the Daytona 500. Various news organizations and Internet website operators sued to obtain copies of his autopsy photos.

Eventually, the Florida Legislature passed a law banning release of autopsy photos absent a showing of government misconduct.

Thomson says Florida autopsy reports are public record and are routinely released to the press with a generic drawing depicting injuries.

Under the new law, autopsy reports will continue to be released, but the accompanying photographs will not be, except in certain extraordinary circumstances. "There is a particular gruesomeness about a photo as opposed to the words of a report," he says.

On Monday, the US Supreme Court rejected without comment a challenge to the Florida law by a student-run newspaper at the University of Florida at Gainesville.