In Vincent Foster case, court upholds privacy

Surviving family members have a right to privacy that can trump the public's right to examine certain government-held materials relating to a dead individual.

In an important decision dealing with the release of government documents under the Freedom of Information Act (FOIA), the US Supreme Court has ruled for the first time that family members of a person depicted or mentioned in government files have legal authority to block the release of those documents.

The decision makes it more difficult for media organizations, government watchdog groups, and historians to obtain certain types of documents held in government files. At the same time, it will make it easier for family members to protect the memories of their dead loved ones.

In a unanimous decision announced Tuesday, the nation's highest court upheld the government's refusal to publicly release four detailed photographs showing Vincent Foster, former deputy White House counsel, lying dead in a suburban Washington, D.C., park in July 1993.

A federal appeals court in California had ordered the release of the photographs to a Santa Clarita lawyer conducting a private investigation of the circumstances surrounding Mr. Foster's death. Five government investigations ruled the death a suicide. But the lawyer, Allan Favish, suspected a government coverup.

In reversing the appeals court, Justice Anthony Kennedy wrote that the privacy interests of Foster's family outweigh the public interest in disclosure of the photographs.

The court did not rule that family objections would always prevail in FOIA cases. Instead, the justices said that those seeking release of photos or documents must show more than just suspicion of government negligence or wrongdoing to justify a release of such information in the face of objections by relatives. "The requester must produce evidence that would warrant a belief by a reasonable person that the alleged government impropriety might have occurred," Justice Kennedy writes in the 17-page opinion. He said Mr. Favish did not satisfy that standard.

One key aspect of the ruling is that the court did not extend the FOIA privacy exemption based on an expanded view of Foster's privacy rights.

The FOIA privacy exemption covers "personal privacy" under the wording of the law. But the high court found that Congress's view of personal privacy was broad enough to embrace the privacy rights of surviving family members in addition to the privacy rights of the individual who is the subject of the requested information.

"Foster's relatives ... invoke their own right and interest to personal privacy," Kennedy writes.

Three appeals courts have recognized similar family privacy rights in earlier FOIA cases, but until Tuesday the Supreme Court itself had never explicitly endorsed those holdings. The earlier cases, all mentioned in Kennedy's decision, involved the withholding from public release of the audiotape of the last words of the space shuttle Challenger astronauts, the autopsy X-rays and photographs of President Kennedy, and details from investigative files into the assassination of Dr. Martin Luther King Jr.

One concern of Foster's family was that death-scene photographs released to the public would soon find their way onto the Internet and into publications, forcing Foster's relatives to relive the horrible events surrounding his death.

The court was sympathetic to such concerns. "We are advised by the government that child molesters, rapists, murderers, and other violent criminals often make FOIA requests for autopsies, photographs, and records of their deceased victims," Kennedy says. "Our holding ensures that the privacy interests of surviving family members would allow the government to deny these gruesome requests in appropriate cases."