Opposition Brief — National Archives and Records Admin. v. Favish
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_-— ——e.- _—
Nos. 02-599, 02-954
IN THE
Supreme Court of the United States
SHEILA FOSTER ANTHONY, LISA FOSTER MoOopDy,
Petitioners
Vv
ALLAN J. FAVISH, ET. AL..
Respondents
OFFICE OF INDEPENDENT COUNSEL.
Petitioner
Vv
ALLAN J. FAVISH, ET. AL..
Respondents
On Petition for Wnt Of Certiorarn
To The United States Court of Appeals for the Ninth Circuit
FAVISH’S BRIEF IN OPPOSITION TO PETITIONS
FOR WRIT OF CERTIORARI
ALLAN J. FAVISH
Counsel of Record
22406 HOLLY COURT
SANTA CLARITA, CA 91390-4202
(661) 513-2068
QUESTION PRESENTED FOR REVIEW
Whether the United States Court of Appeals for the
Ninth Circuit committed reversible error by holding that
Exemption 7(C) of the Freedom of Information Act did not
allow the Office of Independent Counsel to withhold four
original Polaroid photographs of Deputy White House
Counsel Vincent Foster’s deceased body.
i
PARTIES TO THE PROCEEDING
The petitioners are the Office of Independent Counsel,
who was the defendant below, and Sheila Foster Anthony
and Lisa Foster Moody, who intervened in the district court
to prevent release of the photographs. The respondent is
Allan J. Favish, who was the plaintiff below, and who has
filed his own petition for writ of certiorari in this case, Allan
J. Favish v. OIC, et al., No. 02-409.
ili
TABLE OF CONTENTS
Page
FAVISH’S BRIEF IN OPPOSITION TO PETITIONS
FOR WRIT OF CERTIORARI ....................00000000 l
STATEMENT OF THE CASE .................0.0cce0e00 l
REASONS FOR DENYING THE WRITS ............... 2
1. The Intervenors’ Arguments Do Not Justify
Granting Their Petition. ....................ccccceeeeeeeees 2
A. The D.C. Circuit’s Use Of An Incorrect Standard
Does Not Justify Granting The Intervenors’
iii cieeeeesetsnenanccseccoceccceccccens 2
B. The Ninth Circuit Required A Nexus Between The
Public Interest And The Specific Photographs........ 5
i. The Leaked Gun-In-Hand Photo........................ 7
ii. The Photograph Entitled “5 — VF’s body — focusing
on the Rt. side shoulder/arm”........................55. 8
iii. The Photograph Entitled “4 — VF’s body focusing
on right side and arm” ..................ccccccceeeeeeeeeees 12
iv. The Photograph Entitled “5 — VF’s body — focus on
top of head thru heavy foliage”......................... 13
C. The Ninth Circuit Did Not Create A New Universal
Standard With Its “Graphic, Explicit, etc.”
iv
2. The OIC’s Three Arguments About The Ninth
Circuit’s Evaluation Of The Public Interest Side Of
Exemption 7(C) Balancing Do Not Justify Granting
Cees OO cn cnsctcsnsciisonnsonssnnsinbinentnaennte
A. The D.C. Circuit’s Use Of An Incorrect Standard
Does Not Justify Granting The OIC’s Petition........
B. The OIC’s False Argument That The Fa» »graphs
At Issue Reveal Nothing About The Gu. ernment’s
Conduct Does Not Justify Granting The OIC’s
Vv
TABLE OF AUTHORITIES
Cases
Page(s)
Accuracy in Media v. National Park Service, 194
F.3d 120 (D.C. Cir. 1999), cert. denied, 529 U.S.
SOS Ge icnccnsianscnstendesnedsnmnsentinetpemecen 2-3
Department of the Air Force v. Rose, 425 U.S.
Be 3
Department of Justice v. Reporters Committee,
489 U.S. 749, 103 L.Ed.2d 774 (1989)............... 5, 20
Department of State v. Ray, 502 U.S. 164(1991).. 4,15
Favish v. OIC, 217 F.3d 1168 (9" Cir. 2000)........ 4-5,
14-15,
17, 19,
21
Halloran v. Veterans Admin., 874 F.2d 315
RSE Crees 4
KTVY-TV v. United States, 919 F.2d 1465
es Ci rrictccteatiibidiientincciabanitinieinsnneme 4
Miller v. Bell, 661 F.2d 623 (7 Cir. 1981)......... 4
NLRB v. Robbins Tire & Rubber Co., 437 US.
214, 57 L.Ed.2d 159 (1978).....0.cccesceceseseeeeeeee 20
Senate of the Commonwealth of Puerto Rico v.
vi
Stern v. F.B.1., 737 F.2d 84 (D.C. Cir. 1984)......... 20
Van Bourg, Allen, Weinberg & Roger v. National
Labor Relations Board, 751 F.2d 982 (9th Cir.
Christopher Ruddy, The Strange Death of Vincent
Foster: An Investigation (1997)..................cccces000 9
Ambrose Evans-Pritchard, The Secret Life of Bill
Clinton: The Unreported Stories (1997).................. 9
FAVISH’S BRIEF IN OPPOSITION TO PETITIONS
FOR WRIT OF CERTIORARI
STATEMENT OF THE CASE
Respondent Allan J. Favish filed a lawsuit under the
FOIA against Petitioner Office of Independent Counsel
(“OIC”) to obtain certain original photographs taken in
connection with the investigation of the July 20, 1993 death
of Deputy White House Counsel Vincent Foster (“Foster”).
The OIC withheld photographs of Foster’s body taken in
Virginia’s Fort Marcy Park on the basis of the “personal
privacy” exemption in the FOIA, 5 U.S.C. § 552(b)(7(C).
Later, Petitioners Sheila Foster Anthony and Lisa Foster
Moody (“intervenors”) intervened in the district court to
prevent release of the photographs.
The district court entered its first summary judgment
against Favish March 11, 1998, without viewing the original
photographs in camera. Intervenors’ Appendix., 45.
On July 12, 2000, in deciding the first appeal in this
case, the Ninth Circuit reversed and remanded, and ordered
the district court to view the photographs in camera.
Intervenors’ App., 8. Based on its interpretation of the
FOIA’s “personal privacy” exemption (5 USC. §
552(b\(7\(C)), the Ninth Circuit ordered the district court to
balance the “public purpose to be served by disclosure”
against the degree to which disclosure would “violate” the
“memory of the deceased loved one” held by “a spouse, a
parent, a child, a brother or a sister” or constitute an
“invasion” of “the survivor's memory of the beloved dead.”
Intervenors’ App., 16. The Ninth Circuit stated: “The
intrusion of the media would constitute invasion of an aspect
of human personality essential to being human, the survivor's
memory of the beloved dead.” Intervenors’ App., 16. The
Ninth Circuit also stated that the district court was to
“balance the effect of their release on the privacy of the
2
Foster family against the public benefit to be obtained by
their release.” Intervenors’ App., 17.
Applying the Ninth Circuit’s interpretation of the
“personal privacy” exemption, on January 12, 2001, the
district court entered a summary judgment ordering the OIC
to release five of the ten disputed photographs and allowing
the OIC to withhold the other five. Intervenors’ App., 5.
On June 6, 2002, without discussion, the Ninth Circuit
affirmed the summary judgment, except that it ordered an
additional photograph withheld. Intervenors’ App., 1.
Contrary to intervenors’ statement that the Ninth Circuit did
this “[a}fter in review of the photographs,”' there is
nothing in the record establishing that the original
photographs were delivered to the Ninth Circuit, only copies.
On August 16, 2002, the Ninth Circuit denied the OIC’s
and the intervenors’ petitions for rehearing and suggestions
for rehearing en banc. Intervenors’ App., 4.
REASONS FOR DENYING THE WRITS
1. The Intervenors’ Arguments Do Not Justify
Granting Their Petition.
A. The D.C. Circuit’s Use Of An _ Incorrect
Standard Does Not Justify Granting The
Intervenors’ Petition.
The intervenors state that there are “three issues under
the FOIA privacy exemption” raised by the Ninth Circuit’s
opinion that warrant granting of their petition.’ The first of
these is that the Ninth Circuit and the D.C. Circuit have
different standards for evaluating the public interest under
Exemption 7(C).’ The D.C. Circuit stated in Accuracy in
Media v. National Park Service:
To show that the invasion of privacy was not
“unwarranted,” AIM must show “compelling
evidence that the agency denying the FOIA
' Intervenors’ Petition for Writ of Certiorari 6 (“Intervenors’ Pet.”).
? Intervenors’ Pet. 6-8.
> Intervenors’ Pet. 6-7.
3
request is engaged in illegal activity, and
access to the [photos] is necessary in order to
confirm or refute that evidence.””
That is not the standard in the Ninth Circuit and it is an
improper standard. Exemption 7(C) states that disclosure
- may be denied when it would lead to an “unwarranted”
invasion of personal privacy. The exemption does not say
anything about having to produce “compelling evidence” in
order to make the invasion “warranted” or that it must be
evidence of “illegal activity” in order to make the invasion
“warranted.” This Court has held that the FOIA’s
exemptions must be narrowly construed to promote the
FOIA’s purpose of government disclosure.”
By imposing the additional burdens of “compelling
evidence” and “illegal activity” for those trying to show that
the public interest in disclosure of a particular document is
paramount to the privacy interest of a single person or a few
persons, the D.C. Circuit gave the privacy exemption a broad
construction that has no basis in the statutory language or
Congressional intent. The D.C. Circuit never explained how
its standard is consistent with the FOIA as interpreted by this
Court. For example, why require evidence of illegal activity
when the public also has an interest in discovering negligent
government activity?
The Ninth Circuit did not err by failing to impose the
erroneous standard used by the D.C. Circuit in AJM. The
D.C. Circuit’s improper standard was a good reason for this
Court to have granted certiorari in AJM, but it did not do so.
The Ninth Circuit’s obedience to the FOIA in this regard
does not provide a good reason for this Court to grant the
* AIM, 194 F.3d 120, 124 (D.C. Cir. 1999), cert. denied, 529 U.S. 1111
2000).
Yan Seam, Ailes Weinberg & Roger v. National Labor Relations
Board, 751 F.2d 982, 984 (9th Cir. 1985) (citing Dep't of the Air Force
v. Rose, 425 U.S. 352, 360-361, 96 S.Ct. 1592, 1S0S-98, 48 L.Ed.2d 11
(1976) ).
4
intervenors’ petition. The best time to grant certiorari over
this issue is when the D.C. Circuit or some other Circuit
imposes this erroneous standard again.
Moreover, the intervenors have jumbled cases together
that do not use this erroneous standard with those cases that
do.° Cases holding that a “general interest”’ in finding the
truth, or “mere speculation” or a “broad unsupported
Statement of possible neglect,” or “merely stating that [a
public] interest exists in the abstract,”° or “broad
unsupported hints of a government coverup”! are
insufficient, are not the same as cases requiring “compelling
evidence” of “illegal activity.”
The Ninth Circuit’s decision was not based on a general
interest in finding the truth or mere speculation or an
unsupported statement of possible neglect or anything
similar. Rather, the Ninth Circuit held that “Favish, in fact,
tenders evidence and argument which, if believed, would
justify his doubts” about the government’s conclusion of
suicide in the park.'* Although the Ninth Circuit stated “if
believed,” it should be emphasized that none of the evidence
depends upon Favish’s credibility because the evidence
consists almost entirely of the government’s own documents.
Contrary to the intervenors’ statement that Favish is “a
conspiracy theorist,”'? compelling evidence was presented to
the district court and to the Ninth Circuit establishing that the
9
° intervenors’ Pet. 9-11.
” See e.g., Senate of the Commonwealth of Puerto Rico v. United States
Dep't of Justice, 823 F.2d 574, 588 (D.C. Cir. 1987).
* See e.g., Department of State v. Ray, 502 U.S. 164, 179 (1991).
” See e.g., KTVY-TV v. United States, 919 F.2d 1465, 1470 (10" Cir.
1990).
° See e.g., Halloran v. Veterans Admin., 874 F.2d 315, 323 (5" Cir.
1989).
'' See e.g., Miller v. Bell, 661 F.2d 623, 630 (7 Cir. 1981).
* Favish v. Office of Independent Counsel, 217 F.3d 1168, 1173 (9th Cir.
2000).
'? Intervenors’ Pet. 2.
5
OIC’s reports about Foster’s death are untrustworthy and
deceptive. The OIC was unable to prove that Favish distorted
the evidence and unable to provide plausible answers to the
questions raised that would diminish the public’s interest in
disclosure of the photographs.
B. The Ninth Circuit Required A Nexus Between
The Public Interest And The Specific
Photographs.
The intervenors state that the Ninth Circuit “failfed] to
require a nexus between the photographs it ordered released
and the alleged public interest . . . .”'* This is false. The
Ninth Circuit ordered the district court to “examine the
photos in camera and to balance the effect of their release on
the privacy of the Foster family against the public benefit to
be obtained by their release.”'* The phrase “their release”
refers to the subject photographs. Therefore, the Ninth
Circuit did not abandon a connection between the subject
photographs and their ability to serve the purpose of the
FOIA, namely, “to shed light ‘on an agency’s performance
of its statutory duties.”'®
The intervenors then make a factual argument, citing
dissenting Judge Pregerson, that “with one exception, the
photographs would shed no light on any of the claimed
inconsistencies in the Report.”
However, the factual issue of what the photographs
would reveal about how the OIC performed its job is not a
sufficient basis for the intervenors’ petition. Supreme Court
Rule 10 states: “A petition for a writ of certiorari is rarely
granted when the asserted error consists of erroneous factual
findings . . . .” Therefore, even if Judges Noonan and
'* Intervenors’ Pet. 13.
'° Favish, 217 F.3d at 1174 (emphasis added).
© Id. at 1171 (quoting United States Department of Justice v. Reporters
Committee for Freedom of the Press, 489 U.S. 749, 772-73, 109 S.Ct.
1468, 103 L.Ed.2d 774 (1989)).
'’ Intervenors’ Pet. 12.
6
O’Scanlain made an erroneous factual finding about what the
photographs reveal, that should not be grounds for granting
the intervenors’ petition.
Additionally, the intervenors’ factual argument is
entirely based on Judge Pregerson ‘ s dissenting opinion and
characterization of the evidence,'* not the evidence. The
intervenors are asking this Court to share its view that Judge
Pregerson’s dissenting opinion was a factually accurate, fair
and logical presentation of the factual issues raised by
Favish. In fact, Judge-Pregerson’s opinion was so deficient
that Judge’s Noonan and O’Scanlain did not join in it. The
intervenors have failed to establish that Judge’s Noonan and
O’Scanlain made any factual error regarding what the
photographs reveal about how the OIC conducted its job.
The intervenors take an unduly crabbed view of the
public’s interest in seeing the four photographs ordered
released. The intervenors made it sound as if the only reason
to see the photos is to examine “the location of Mr. Foster’s
entrance and exit wounds.”"”
In fact, the reason the public needs to see these photos is
that the government’s presentation of the evidence in its
reports is demonstrably untrustworthy and deceptive. The
government destroyed its own credibility with regard to this
case. The photos may or may not reveal information
contradicting the suicide story. The point however, is that the
public must be allowed to make that determination for itself
in the face of untrustworthy government reports.
The intervenors argue as if there is no relationship
between the four photos ordered released and the public’s
interest in evaluating how the OIC did its job.”” However,
there is such a relationship. Although the Ninth Circuit and
the district court did not articulate that relationship, that
'§ Intervenors’ Pet. 12-13.
'? Intervenors’ Pet. 12; see also id. 13.
?° Intervenors’ Pet. 12-14.
ans 28 ee ae
7
relationship was in the record before both courts, and
presumably was taken into account by them.
i. The Leaked Gun-In-Hand Photo.
The district court ordered that the photo entitled “1 —
Right hand showing gun & thumb in guard” should be
released.” The Ninth Circuit affirmed this ruling.
Intervenors’ App., 2-3.
The original of this photo is important because there is
controversy about why the gun would have remained in
Foster’s hand had he shot himself. Both Fiske and Starr said
that the gun remained in his hand because Foster’s thumb
was trapped and compressed between the trigger and the
trigger guard of the gun. 2 The publicly available “leaked”
copy of the photo is too degraded to make a definitive
evaluation of whether Foster’s thumb was extended through
the trigger area past the joint on his thumb to cause the gun
to stay in his hand. The original of this photo would provide
a much better view of his thumb and the trigger area.
Also, common sense tells us that the explosion of
supersonic gasses from a .38 high velocity gunshot into the
mouth is likely to cause a “blowback” of blood and other
organic matter out of the mouth and onto Foster’s gun, hand
and sleeve. Indeed, Starr quotes Dr. Henry Lee as saying that
he examined the photos taken at the park and found “blood
spatters” on Foster’s hands and shirt.” Starr quotes Lee as
saying that this “backspatter” is typical.”* The original photo
will allow the public to see if there is any such backspatter.
There also is a question about why the gun appears to be
partially lodged under Foster’s leg. If he shot himself with
that gun while sitting on the ground, how did it get under his
leg? The original photo will provide a more detailed view
2! Excerpts of Record 410 (filed in appeal 2, May 30, 2001) (“ER”). The
is at ER 178 & 179.
? ER 610-611, 616, 620.
3 ER 616, 621.
* ER 616, 621.
8
and allow a better evaluation of whether the gun is lodged
under his leg.
Although the degraded public version of the photo was
not officially released, the fact remains that any privacy
interest in the original is virtually nil because ABC, Time
and Newsweek have given the public version far greater
exposure than Favish could ever give any version he might
receive.
ii. The Photograph Entitled “5 — VF’s body -
focusing on the Rt. side shoulder/arm”.
The district court ordered that the photo entitled “5 —
VF’s body — focusing on the Rt. side shoulder/arm” should
be released.” The Ninth Circuit affirmed this ruling.
Intervenors’ App., 2-3.
In its motion to alter the judgment, the OIC stated that
this photo shows “blood stains and/or blood . . . .”*° This
photo also may help solve the mystery about blood flow
patterns and an alleged neck wound that officially did not
exist.
As Starr stated, paramedic Richard Arthur, “initially said
he saw what ‘appeared to be a bullet wound, an entrance
wound’ on the neck.””’ Unstated by Starr is that Arthur
testified he was 2-3 feet away from Foster when he observed
the apparent bullet neck wound on the right side of Foster’s
neck, around the jaw line and underneath the right ear.”
But, citing a nonpublic FBI report, Starr said that Arthur told
the FBI in 1996 that autopsy photos Arthur examined were
taken from a better angle and a better view than what he had
at the park and he may have been mistaken about such a
wound.”
> ER 409.
© ER 482.
7 ER 277, 314-15.
® ER 119-20, 122-23.
?° ER 277, 314-15.
9
The alleged neck wound also is discussed in two books
by major United States publishers.*” These books allege a
story of illegal conduct by members of the OIC and the FBI
in trying to prevent proper enlargement and examination of
the pristine original of at least one of the six Polaroid
photographs not ordered released.”' Allegedly, this was done
to conceal a neck wound that officially did not exist.** The
books allege an effort to illegally obstruct the work of
Assistant United States Attorney Miquel Rodriguez and his
former assistant Lucia Rambusch while they were working
on the Foster death investigation at the OIC.*? One of the
authors of the two books, Ambrose Evans-Pritchard, stated
in a declaration, “I have seen the photograph showing an
apparent neck wound to Foster’s neck . . . aa
It is undisputed that one of Starr’s experts reported
seeing dried blood on Foster’s neck in an autopsy photo,
supposedly taken after the body was washed, and the
location of that dried blood coincided with the location of the
alleged neck wound reportedly seen by a paramedic at the
park and visible in an enhanced copy of the original photo.*°
Moreover, Starr discussed blood draining from Foster’s
“right nostril” and “right side of the mouth.””® Starr stated
© ER 423-430 (Christopher Ruddy, The Strange Death of Vincent Foster:
An Investigation 163-165 (The Free Press, a division of Simon &
Schuster, Inc., 1997)); ER 423, 431-453 (Ambrose Evans-Pritchard, The
Secret Life of Bill Clinton: The Unreported Stories 135-153 (Regnery
Publishing, Inc., 1997)).
*" Id.
” Id.
33 Id. The district court denied Favish’s motion to take the testimony of
Rodriguez and Rambusch on the issue of the authenticity of the photos
being shown to the district court. ER 209, 220-226, 411-473, 713. The
Ninth Circuit was asked to reverse that ruling (Opening Brief of
Appellant at 4-6, 46-57 (filed in appeal 2, May 30, 2001), but affirmed it
without commenting on the ruling. Intervenors’ App. |.
* ER 601, 656, 662.
** ER 277, 345.
*° ER 277, 345.
10
that many witnesses who saw Foster at the scene described
his head as “facing virtually straight, not tilting noticeably to
one side or the other.” Starr also discussed “a blood
transfer stain in the area of the right side of the face” that Dr.
Lee allegedly cancluded was made when Foster’s “head
made contact with the right shoulder at some point before the
Polaroids were taken,” thereby causing a blood stain to
transfer from Foster’s shoulder to his cheek. Starr was
unable to explain how this happened and could only
speculate about who might have moved Foster’s head
because none of the Park Police or paramedics who were
among the first to see Foster’s body at the scene stated that
they moved Foster’s head.*’ Neither Fiske or Starr was able
to definitively state how Foster’s head made contact with his
right shoulder and then returned to a straight-up position to
leave the transfer stain on his cheek. Starr implied that the
blood on Foster’s right shoulder came from the blood
draining from the nostril and mouth.’ Thus Starr implied
that the blood draining from the nostril and mouth came first
and then stained the shoulder, and then the transfer stain was
made on the cheek over the blood trail from the nostril and
mouth.
However, more recently released evidence from Dr.
Lee’s report for Starr demonstrates that Starr’s implied
scenario did not happen. The new evidence raises questions
about whether the head was moved more than once and
whether the blood on the shoulder initially came from a neck
wound, not the mouth, and whether somebody tried to
conceal the blood flow from the neck by tilting the head to
spill blood from the mouth over the right side of the neck.
According to Lee’s report: “A portion of the blood trail
from Mr. Foster’s mouth appears to have been deposited on
” BR 347.
** ER 277, 347.
ER 277, 347.
” ER 277, 344-347.
|
|
11
top of the transfer pattern after his face was separated from
the shoulder region.””' Starr failed to tell this to the public.
Starr led the public to believe that blood drained from
Foster’s nostril and mouth and stained his shoulder. Then,
Starr implies, some unknown person tilted Foster’s head so
that the right cheek touched the blood on the shoulder and
then that person moved Foster’s head off the shoulder back
to the straight-up position, leaving the transfer stain on the
cheek.
Starr did not tell the public that Lee stated that after this
transfer stain was made, more blood drained from Foster’s
mouth. How could more blood have drained from Foster’s
mouth at that point, unless somebody tilted his head again?
Presumably his heart had long since stopped beating and at
least some of the blood had already drained from his mouth
to stain the shoulder.
Starr does not tell us what caused the flow of blood out
of Foster’s mouth that is described by Lee as going on top of
the transfer stain on Foster’s cheek. Given Starr’s failure to
explain this second blood flow, to fit the facts reported by
Lee, it appears that one has to assume that the head was
moved for a second time. This second movement means that
after whomever moved Foster’s head the first time, someone
(who presumably had no business moving the head of a man
known to be dead at a possible crime scene) moved the head
with the result that blood streamed down the right side of the
head and onto the neck and shoulder. Therefore, we now
have possible evidence for a second movement of Foster’s
head that Starr failed to report.
This leaves the American public in a position of having
to make educated guesses with insufficient evidence about
what happened. The public should not have to do that. One
educated guess is that the shoulder became stained with
blood that was draining from a right-side neck wound (that
*' BR 601, 654-655.
12
officially did not exist). Then some unknown person moved
Foster’s head, causing the right cheek to touch the
bloodstained right shoulder, thereby creating the transfer
stain on the right cheek, and then moved his head back to the
straight-up position. Subsequently, somebody moved
Foster’s head for a second time to the right in order to spill
some blood that was collected in the mouth out the right side
of the mouth to cover the blood trail that was coming from
the neck and make it appear that all the blood was
originating from the mouth, and none from the neck.
Such an educated guess is consistent with something
else Lee stated that Starr did not tell the public: “A pool of
blood appears to be directly under the right side of his neck
and shoulder region.””” Unfortunately, the public is left to
this sort of educated guessing because the government has
not dealt with the public honestly. We know that Lee told
Starr that the contact stain was created before the blood trail
from the mouth, implying that they were caused by two
separate events. We know that Starr failed to tell this to the
public. We also know that neither Lee or Starr offer any
explanation of how this happened.
The public must see these photos so that the public can
provide the careful analysis that the government failed to
provide. Perhaps the photos will show whether the amount of
blood that pooled under the right side of the neck and
shoulder region, as reported by Lee and concealed by Starr,
is too great to have come from the mouth, thus indicating it
came from the neck.
We are dealing with a mystery. By nature, we don’t
know all the answers. We do not know all the night
questions to ask. Public release is the only way to ensure that
these photos are given the scrutiny they deserve.
iii. The Photograph Entitled “4 —- VF’s body
focusing on right side and arm”.
” ER 601, 654, 655.
13
The district court ordered that the photo entitled “4 -
VF’s body focusing on right side and arm” should be
released.” The Ninth Circuit affirmed this ruling.
Intervenors’ App., 2-3.
In its motion to alter the judgment, the OIC stated that
this photo shows “blood stains and/or blood . . . .“™ This
photo also may help solve the mystery about the blood flow
patterns discussed above.
iv. The Photograph Entitled “5 — VF’s body —
focus on top of head thru heavy foliage”.
The district court ordered that the photo entitled “5 —
VF’s body — focus on top of head thru heavy foliage” should
be released.** The Ninth Circuit affirmed this ruling.
Intervenors’ App., 2-3.
In its motion to alter the judgment, the OIC stated that in
this photo “Foster’s face is clearly visible . . . ..“* This photo
also may help solve the mystery about the blood flow
patterns discussed above.
C. The Ninth Circuit Did Not Create A New
Universal Standard With Its “Graphic, Explicit,
etc.” Standard.
The intervenors argue that the Ninth Circuit and the
district court’s use of the phrase “graphic, explicit and
extremely upsetting” constitutes a new test for determining
whether a privacy interest is impacted, to be applied in all
cases. In so doing, the intervenors misconstrue what the
Ninth Circuit and the district court did here. The district
court stated: “/n this case, the appellate court appears to have
defined the zone of privacy protection as those photographs
that are ‘graphic, explicit and extremely upsetting.”
Intervenors’ App. 5 (emphasis added). Therefore, the zone of
*” ER 410.
“ ER 482.
* ER 410.
“” ER 482.
*’ Intervenors’ Pet. 14-17.
14
privacy protection was only defined for “this case” not all
cases.
It must be remembered that in “this case” the Ninth
Circuit held that “Favish, in fact, tenders evidence and
argument which, if believed, would justify his doubts” about
the government’s conclusion of suicide in the park.“* Thus,
in that context, a photograph would have to meet the
“graphic, explicit and extremely upsetting” standard in order
to remain hidden from public view. Neither the Ninth Circuit
or the district court was establishing that standard for every
future case involving a claim of privacy under Exemption
7(C). Therefore, the Ninth - Circuit’s opinion is not-
inconsistent with this Court’s opinion in Reporters
Committee, as argued by the intervenors.”
Nor does the Ninth Circuit’s use of that standard in this
case, based on the facts of this case, conflict with other
appellate opinions from other circuits. The different result in
the D.C. Circuit’s AJM case is based more on the judge’s
different analysis of the facts, rather than the Ninth Circuit’s
use of the “graphic, explicit and extremely upsetting”
standard. Accordingly, the Ninth Circuit’s use of that
standard is insufficient reason for this Court to grant the
intervenors’ petition.
2. The OIC’s Three Arguments About The Ninth
Circuit’s Evaluation Of The Public Interest Side Of
Exemption 7(C) Balancing Do Not Justify Granting
The OIC’s Petition.
A. The D.C. Circuit’s Use Of An_ Incorrect
Standard Does Not Justify Granting The OIC’s
Petition.
The OIC states that there are “[t]hree aspects of the
Ninth Circuit’s evaluation of the public interest side of the
* Favish v. Office of Independent Counsel, 217 F.3d 1168, 1173 (9th Cir.
2000).
” Intervenors’ Pet. 16.
15
balance under Exemption 7(C)” that “warrant certiorari.”°°
The first of these is that the Ninth Circuit and the D.C.
Circuit have different standards for evaluating the public
interest under Exemption 7(C).°' For the same reasons
discussed above, the D.C. Circuit’s use of an incorrect
standard does not justify granting the OIC’s petition.
Moreover, the OIC has jumbled cases together that do
not use this erroneous standard with those cases that do.”
Cases holding that a “general interest” in finding the truth is
insufficient,” or that impugning government reports without
“a scintilla of evidence” is insufficient, are not the same as
cases requiring “compelling evidence” of “illegal activity.”
The Ninth Circuit’s decision was not based on a general
interest in finding the truth or impugning government reports
without a scintilla of evidence. Rather, the Ninth Circuit held
that “Favish, in fact, tenders evidence and argument which,
if believed, would justify his doubts” about the government’s
conclusion of suicide in the park. Although the Ninth
Circuit stated “if believed,” it should be emphasized that
none of the evidence depends upon Favish’s credibility
because the evidence consists almost entirely of the
government’s own documents. Contrary to the OIC’s
implication, this is not a case where “bald allegations of
governmental misconduct” were made. The OIC also states
that “‘speculation’ alone cannot be enough under Exemption
7(C) . . . to outweigh the profound privacy interests of third
© OIC Pet. 9.
*" Id.
*? OIC Pet. 9-10.
* See e.g., Senate of the Commonwealth of Puerto Rico v. United States
Dep't of Justice, 823 F.2d 574, 588 (D.C. Cir. 1987).
™ See e.g., Department of State v. Ray, 502 U.S. 164, 179 (1991); KTVY-
TV v. United States, 919 F.2d 1465, 1470 (10" Cir. 1990).
*® Favish v. Office of Independent Counsel, 217 F.3d 1168, 1173 (9th Cir.
2000).
* OIC Pet. 10.
16
parties in avoiding disclosure.”°’ That would be a good point
to make in a FOIA case that involved “speculation alone,”
but that is not this case.
B. The OIC’s False Argument That The
Photographs At Issue Reveal Nothing About The
Government’s Conduct Does Not Justify
Granting The OIC’s Petition.
The second aspect of the Ninth Circuit’s evaluation of
the public interest side of the balance under Exemption 7(C)
raised by the OIC is that “(t]he photographs at issue here
reveal nothing about the government’s conduct; they reveal
only visual depictions relating to the death of Vincent
Foster.”*> The OIC’s statement is false. The government
‘conduct at issue is the quality of its investigation into the
cause of Foster’s death and the accuracy of its conclusion
about that death. Photographs of Foster’s body will either be
consistent or inconsistent with the government’s conclusion
of suicide in the park. Therefore, the photographs will reveal
something about the government’s conduct. It is completely
illogical for the OIC to state that photographs of a body that
has been mysteriously shot reveal nothing about the quality
of the investigation into that death. Does the OIC also
believe that the photographs were completely irrelevant to
the death investigation?
It is especially important in this case that the public see
the raw evidence because the government’s reports about the
death are untrustworthy and deceptive, when compared with
the publicly available raw evidence. Because the public
cannot trust the government to fairly and accurately
characterize the evidence in this case, the public, by
definition, must see the evidence for itself.
Moreover, the factual issue of what the photographs
reveal is not a sufficient basis for the OIC’s petition, as
stated in Supreme Court Rule 10. Additionally, the OIC
5’ OIC Pet. 18.
8 OIC Pet. 14.
17
makes the same mistake as the intervenors in relying on
Judge Pregerson’s dissenting opinion and characterization of
the evidence,” not the evidence.
The OIC supports its argument with a statement that has
no relevance to this case. The states: “FOIA, however, does
not give the public a generalized ‘right to know’ personal
details about private third parties that happen to be
maintained in government files.” However, there are no
“personal details” or any details about Foster’s survivors in
these photographs. The only person depicted in the
photographs is Foster and because he is deceased, his
privacy is not an issue in this case.
The OIC takes an unduly crabbed view of the public’s
interest in seeing the four photographs ordered released. The
OIC made it sound as if the only reason to see the photos is
to examine Foster’s “head injuries” or “the bullet’s path’®!
and the OIC argues that the four photos ordered released
have no value to the public.” This is false, for the reasons
stated above.
C. The OIC’s Mischaracterization Of The Ninth
Circuit’s Opinion Does Not Justify Granting The
OIC’s Petition.
The third aspect of the Ninth Circuit’s evaluation of the
public interest side of the balance under Exemption 7(C)
raised by the OIC is based on the OIC’s mischaracterization
of the Ninth Circuit’s opinion. The OIC correctly quotes the
Ninth Circuit as stating that “[nJothing in the statutory
command shields an agency from disclosing its records
because other agencies have engaged in similar
investigations.”* The Ninth Circuit’s statement is
* OIC Pet. 11-14.
OIC Pet. 13.
*' OIC Pet. 14.
* OIC Pet. 11-14.
* OIC Pet. 15 (quoting Favish, 217 F.3d atl 173).
18
completely true and the OIC presents no authority to
contradict that statement.
Instead, the OIC mischaracterizes the Ninth Circuit’s
statement and then attacks the mischaracterization as if it
was the Ninth Circuit’s holding. The OIC mischaracterizes
the Ninth Circuit’s statement into the following:
The court of appeals also erred in
holding that the multiple, lengthy
investigations that had already taken place
and the enormous volume of materials
(including photographs about Foster’s death
already in the public domain were
completely irrelevant to evaluation of the
public interest in disclosure of the particular
photographs at issue here. . . . By giving no
weight to the enormous volume of
information already released by the
government, the Ninth Circuit found the
public interest requirement to be satisfied by
information the disclosure of which would
contribute only marginally, if at all, to
public understanding.
Contrary to the OIC’s mischaracterization, the Ninth
Circuit did not state that the government’s reports and
publicly available evidence about the death were
“completely irrelevant to evaluation of the public interest” in
this case. Nor did the Ninth Circuit give “no weight” to those
reports and evidence. Rather, after being presented with the
deceptions and omissions in the government reports, when
compared to the government’s own raw publicly available
evidence, the Ninth Circuit stated that “Favish, in fact,
tenders evidence and argument which, if believed, would
OIC Pet. 15.
19
justify his doubts” about the government’s conclusion of
suicide in the park.°°
Rather than holding the government reports and publicly
available evidence irrelevant, the Ninth Circuit found that the
reports and evidence were deficient enough to justify its
statement that “Favish, in fact, tenders evidence and
argument which, if believed, would justify his doubts” about
the government’s conclusion of suicide in the park.” The
OIC fails to disprove the Ninth Circuit’s statement.
Moreover, the OIC’s argument is based on the following
statement:
In this case, when five investigations in
different branches of the federal government
(including by the Office of Independent
Counsel) have uniformly reached the same
result, the contribution to public
understanding that a sixth investigation by an
unsatisfied private citizen can make is
marginal at best.°”
The OIC makes this statement as if the credibility of the
government investigations is irrelevant. Under the OIC’s
view, it is difficult to see why there is any need for the FOIA
at all because if the government has conducted several
investigations, no matter how untrustworthy, the public has
no need to see any of the hidden evidence.
The OIC’s view is contrary to the purpose of the FOIA.
According to this Cpurt, the central purpose of the FOIA is
to give ordinary citizens the power to keep the government
°° Favish v. Office of Independent Counsel, 217 F.3d 1168, 1173 (9th Cir.
2000).
* Favish v. Office of Independent Counsel, 217 F.3d 1168, 1173 (9th Cir.
2000).
*” OIC Pet. 17.
20
honest in order to preserve our constitutional democracy.”
This Court also has-held:
The basic purpose of FOIA is to ensure
an informed citizenry, vital to the functioning
of a democratic society, needed to check
against corruption and to hold the governors
accountable to the governed.”
Consistent with these holdings, the District of Columbia
Circuit has discussed the nature of the public interest that
could be served by disclosure of government investigative
records:
For example, the public may have an interest
in knowing that a government investigation
itself is comprehensive, that the report of an
investigation released publicly is accurate,
that any disciplinary measures imposed are
adequate, and that those who are accountable
are dealt with in an appropriate manner.”
The number of government investigations is not
as important as the demonstrable credibility, or lack
of credibility, of those investigations. As established ~
below, the government investigations are either not
credible or were so limited as to be inappropriate to
cite as support for the government’s official
conclusion.
3. The Fiske And Starr Reports On The Death Are
Untrustworthy.
Permeating the OIC’s and the intervenors’ petitions is
the assumption that the majority of the Ninth Circuit panel
had no basis for holding that “Favish, in fact, tenders
evidence and argument which, if believed, would justify his
* Department of Justice v. Reporters Committee, 489 U.S. 749, 772-775,
103 L.Ed.2d 774 (1989).
& NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 57 L.Ed.2d
159, 178 (1978).
” Stern v. F.B.1., 737 F.2d 84, 92 (D.C. Cir. 1984).
21
doubts” about the government’s conclusion of suicide in the
park.’’ That assumption is false. The Ninth Circuit majority
had good reason to make its statement.
The OIC states that “Favish asserts that he needs the
photographs to investigate his allegations of a government-
wide conspiracy to cover-up the ‘murder’ of Foster.””* The
OIC’s statement is false. Favish relies upon undisputed facts
from the government’s own underlying investigative record
that do not prove to a certainty either murder or suicide in
the park. However, when compared with the reports on the
Foster case from Independent Counsels Robert Fiske and
Kenneth Starr, those facts establish beyond question that
both of those reports are not worthy of the public’s trust.
The intervenors state that Favish is a “conspiracy
theorist .. . .””* No matter how much the intervenors and the
OIC argue that it is impossible for such a significant number
of government officials and consultants to have produced
such deceptive reports, the fact remains that they did, and
that is the fundamental truth from which our analysis must
begin.”* The OIC stated: “Having examined, and rejected, all
of Favish’s specific factual assertions, at best Mr. Favish’s
assertion of ‘public interest’ in this case is based upon
conspiracy theories and speculation of a mass governmental
cover-up relating to Mr. Foster’s suicide.””* Although the
OIC may have “rejected” all of Favish’s specific factual
assertions, it has not refuted them. Contrary to the OIC’s
statement, Favish’s assertion of the public interest is not
based exclusively on “conspiracy theories.” Such
”' Favish v. OIC, 217 F.3d 1168, 1173 (9" Cir. 2000).
” OIC Pet. 12.
” Intervenors’ Pet. 2.
”* It should be noted that it is not necessary for everybody involved in the
Foster investigations to have deliberately deceived the public. In addition
to those who act deliberately, shoddy work is done by people who are
disinterested, lazy, or who are acting reasonably but who have been given
incorrect or incomplete information from which to work.
"7° ER 474, 497.
22
conspiracies remain a possibility, especially because the OIC
has failed to explain how the significant distortions and
omissions in the Fiske and Starr reports were made.
The OIC states that privacy interests “cannot be trumped
by such speculation of government wrongdoing or
misconduct.””° The word “speculation” implies that Favish
has not shown any proof that the Fiske and Starr reports are
untrustworthy and that there was government misconduct,
either intentional or negligent. Contrary to the OIC ’s
statement, the proof of at least negligent misconduct is
overwhelming. As to whether any of the misconduct was
intentional, there is plenty of circumstantial evidence to take
that conclusion beyond the point of mere “speculation.” .
Moreover, the integrity of the federal court system is at
stake because in addition to the public, the OIC misled the
special three-judge panel that oversaw its Foster work and to
whom Starr’s OIC initially delivered its Foster report in
1997.
The Congressional “investigations” involving this
death were so limited that they did not investigate the issue
of whether Foster was murdered or committed suicide at the
77
Starr failed to tell the public and the three-judge panel
that the Park Police and a medical doctor at the death scene
reported that they saw no blood spatter on the vegetation in
the area that would have been behind Foster’s head when he
allegedly shot himself. ”*
Starr failed to tell the public and the three-judge panel
that the first person officially to see Foster’s deceased body
and who testified that he did not see any gun in Foster’s
hand, also testified that the “gun in hand” photo did not
depict what he saw.”
© ER 474, 497.
7” ER 602-609, 277, 288.
7* ER 105, 109, 150, 153.
7 ER 168-170, 178-179, 277, 358.
23
Starr and Fiske used an invalid gun identification.”
Fiske and Starr failed to tell the public and the three-
judge panel that the Park Police Chief made a false statement
about alleged identification of the gun.*'
Fiske and Starr failed to tell the public and the three-
judge panel that the medical report by the only doctor to
examine Foster at the park reported a neck wound that
officially did not exist and certified copies of his report are
not the same and appear to have been improperly altered. *”
Starr falsely implied that the Park Police observed the
entire autopsy and Fiske and Starr failed to tell the public
and the three-judge panel that before the Park Police arrived,
Foster’s tongue and soft palate were removed by the autopsy
doctor who violated policy by beginning the autopsy before
arrival of the police.*
Starr failed to tell the public and the three-judge panel
that three of the four witnesses who allegedly saw Foster’s
car in the parking lot during a certain time period after he
was dead, reported a car that was a different color than
Foster’s. Although he accurately reported that the fourth of
these witnesses reported seeing a car of a different color than
Foster’s, Starr concluded that Foster’s car was in the parking
lot without explaining why all four of these witnesses were
mistaken and reported the same color car—one that was a
different color than Foster’s car.
Starr relied on Dr. Henry Lee’s conclusion that Foster’s
clothes revealed no evidence that Foster’s body had been
dragged, without telling the public and the three-judge panel
that this conclusion was worthless because the Park Police
*° ER 89, 92, 147-149, 156, 178-179, 277, 355, 362-363, 474, 488.
*' BR 151, 152, 155, 156, 158, 474, 492.
* ER 44-47, 241-245, 277, 308-09, 311-312, 314-15, 600, 632-635, 643-
650.
* ER 115, 117-18, 134-35, 154, 277, 309, 345.
™ ER 57, 89-90, 105, 107-08, 124-26, 128, 130, 137-43, 154, 168, 172,
277, 299, 302, 307, 349, 350, 474, 496.
24
stated that they dragged Foster’s body when it began to slide
down the hill during an examination.”
Fiske and Starr failed to tell the public and the three-
judge panel about an FBI memo to the Director of the FBI,
written two days after the death, stating that the shot was
fired into Foster’s mouth without leaving an exit wound,
thereby directly contradicting Starr, Fiske and the official
autopsy report.
Starr implied that the reason for the lack of readable x-
rays of Foster is that the x-ray machine was not functioning
properly. However, Starr failed to tell the public and the
three-judge panel that the records show that the first service
call for the x-ray machine was made more than three months
after Foster’s death.*”
CONCLUSION
The intervenors’ and the OIC’s petitions should be
denied.
Respectfully submitted.
ALLAN J. FAVISH
Counsel of Record
22406 HOLLY COURT
SANTA CLARITA, CA 91390-4202
(661) 513-2068
Counsel for Respondent
* ER 105, 109, 111, 146, 277, 332, 377, 474, 489.
*° ER 277, 311-312, 314, 636-641.
*' ER 356-57. These records were filed in August 2001 in the case
entitled Accuracy in Media, Inc. v. Office of Independent Counsel, no.
99CV3448 (ESH) (D.D.C.). The invoices, an excerpt from the Vaughn
index in that case and an authenticating declaration from AIM’s attorney,
were attached to Favish’s opening brief to the Ninth Circuit in appeal no.
2 as an Addendum.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.