WASHINGTON, Dec. 3 (UPI) -- The Supreme Court heard argument Wednesday on whether the Freedom of Information Act compels the Office of the Independent Counsel to release autopsy photographs of Vincent Foster, the Clinton White House aide who was found dead in a Northern Virginia park in 1993.
The justices appeared highly skeptical of the requirement, despite a lower court ruling that says some of the photos should be surrendered following a FOIA request.
Five separate investigations, including those of the FBI and Whitewater independent counsel Kenneth Starr, concluded that Foster took his own life while depressed.
But California attorney Allan Favish is among those conspiracy theorists who believe that Foster was killed and has filed a FOIA request for Foster's autopsy photos to help prove it.
FOIA requires the federal government to release information gathered for law enforcement purposes, but among other things, contains an exemption when release of the material would constitute an "unwarranted invasion of privacy."
The larger issue at stake in Wednesday's argument is whether that privacy right extends to the survivors or dies with the person.
The U.S. Park Police, which conducted its own investigation at Fort Marcy Park, took color photographs of the death scene, including 10 pictures of Foster's body.
A conservative public interest group, Accuracy in Media, asked the Park Police for access to autopsy photographs and the 10 pictures of Foster's body. Federal investigators declined that request, and a federal appeals court in Washington upheld the refusal.
The appeals court said Accuracy in Media's stated purpose in getting the pictures was to uncover "government foul play," and the invasion of privacy would not be justified unless AIM could show "compelling evidence" of illegal activity.
Not only was there no "compelling evidence," the appeals court said, there didn't appear to be any sort of evidence to support the claim.
Favish, an attorney for AIM in the case, filed his own FOIA request to Starr's office for the 10 photographs of Foster's body. When Starr withheld them under the privacy exemption, Favish filed suit in federal court in Los Angeles.
A federal judge ruled for the office of the independent counsel, but a divided panel of the U.S. Court of Appeals for the 9th Circuit reversed.
The appeals court majority agreed that the personal privacy exemption to FOIA requests extends to the family of a deceased person, but said that knowledge of some falsification on the part of the government was not necessary to thrust aside that exemption. All that was needed, according to the appeals court majority said, was a desire to find out how the investigation was conducted.
The appeals court sent the case back down for trial, and this time a federal judge, acting on the appeals court's instructions, ordered the release of five of the 10 pictures to Favish.
When the appeals court largely upheld the judge's second ruling, the Office of the Independent Counsel asked the Supreme Court for review.
Speaking for the OIC Wednesday, Patricia Millett, assistant to the solicitor general, told the justices, "For the most part, courts have said privacy dies with the individual."
But Millett argued that FOIA privacy extended to the immediate family. "What's being protected here," she said, "is the survivors' memory of the deceased," and their ability to preserve their loved one's dignity.
In order to put aside the FOIA privacy exemption, she argued, the court has to weigh the right to privacy against the public's right to understand the workings of government.
Millett questioned the legitimacy of Favish's case. "We think unsubstantiated allegations of government misconduct carry no weight."
Washington attorney James Hamilton spoke for Foster's widow and sister, who intervened in the case at the appeals court level. "The privacy interests of the family are to be free from seeing those photographs on television and supermarket tabloids," and seeing them "in perpetuity" on the Internet.
Hamilton drew laughter from the court and the audience when he said, "It is a difficult argument to make that Judge Starr conspired with the Clinton administration" to cover up the cause of Foster's death.
For his part, Favish argued passionately for a narrow definition of privacy, but given the skepticism expressed by nearly all the justices, seemed to be swimming upstream.
"I can think of no clearer definition of personal privacy" than that given by the Supreme Court in a 1989 opinion, Favish said: "The right to control information about yourself."
When Justice Stephen Breyer asked about the "thousands of years" for which "respect for the dead" has been a tradition, Favish again cited Supreme Court precedent and said the Foster death was a "unique situation."
That brought comment from Chief Justice William Rehnquist, who said the issues surrounding Foster's death were no different from anyone else's.
Favish argued that he and those who agree with him could make no sure evaluation of the investigations into Foster's death, though they could make "educated guesses."
As for the OIC reporting on the investigation, "We know to a 100 percent certainty that there was negligence," he said. One photograph and a doctor's evaluation showing the fatal bullet traveled from mouth to throat was completely ignored by Starr, Favish claimed.
Though at times he appeared to be sympathetic to Favish's argument, Justice Antonin Scalia ended up attacking it in its later stages.
"You have relatives here who are going to be harmed by this," Scalia said. "If you had a plausible case that the investigation reached the wrong conclusion ... But you have just identified foot-faults ... Who cares?"
A number of professional journalism organizations, including the Reporters Committee for the Freedom of the Press and the American Society of Newspaper Editors, have filed a brief in support of Favish. The brief said the organizations had an interest in preserving public access to federal government records under FOIA.
Theresa Earnhardt, widow of racecar driver Dale Earnhardt, filed a brief in support of the Office of Independent Counsel. Dale Earnhardt was killed at the Daytona (Fla.) International Speedway during the Daytona 500.
A publisher's petition challenging Florida legislation keeping Earnhardt's autopsy photos private was rejected by the Supreme Court Monday.
The Earnhardt case involved state law, while the Foster case involves the federal FOIA.
The Supreme Court is expected to hand down a decision in the Foster case sometime over the next several months.
--
(No. 02-954, Office of Independent Counsel vs. Favish et al.)
