Amicus Curiae Brief — National Archives and Records Admin. v. Favish

No. 02-954

IN That

Supreme Court of the United States

OFFICE OF INDEPENDENT COU NSE

ALLAN J. FAVISH

On Writ of Ce

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BRIEF OF AMICI CURIAE

IHRE ASSOCTATION OF AMERICAN PHYSICIANS &

SURGEONS, INC, AND

LAGLE FORUM EDUCATION & LEGAL DEFENSE FUND

IN SUPPORT OF RESPONDENT

ANDREW SCHLAPLY KAREN B. TRIPP

521 Fifth Ave. - 17° Floor Counsel of Record

New York, NY 10175 2245 Shakespeare Road

(212) 292-4510 Houston, Texas 77030

(713) 658-9323

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TABLE OF CONTENTS

Pages

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REISER SIISIAS Ai JA aa Ee 4

I. FOIA EXEMPTION 7(C) IS INAPPLICABLE BECAUSE

PHOTOGRAPHS TAKEN OF A PUBLIC SCENE IN A

PUBLIC PARK ARE NOT “PERSONAL”, NOR IS

DISCLOSURE “UNWARRANTED ™................0.ceceececeececeeees 5

A. The Photographs Fail to Meet the “Personal

Privacy” Requirement of Exemption 7(C) .......... 6

B. The Photographs Fail to Meet the

“Unwarranted” Requirement of Exemption

Fan AREER i Se MeO ere Te ie SAS eR eee NE 8

Il. EXEMPTION 7(C) IS INAPPLICABLE TO CONCEAL

INFORMATION RELATED TO GOVERNMENT

REPORTS CONCERNING THE UNEXPECTED DEATH

OF A HIGH-RANKING GOVERNMENT OFFICIAL ............ 1]

Ill. REDACTION OF PERSONAL CHARACTERISTICS, NOT

WHOLESALE CONCEALMENT, IS. ALL THAT

EXEMPTION 7(C) COULD PERMIT HERE IN THE

RSE EST NER 16

aU anEN TET sectsisstscsidnidh Jadaananensegadineiinianenpanrtntenecensvesceseceune 18

TABLE OF AL THORITIES

Pages

Cases

Accuracy in Media v. National Park Service, 194

F.3d 120 (D.C. Cir. 1999), cert. denied, 529 U.S.

18 0 0 (SERED) ...ccvecnscncscossenesnscninensnennnennnnnanannnnnnn 10, 15

Association of Am. Physicians & Surgeons v. Clin-

ton, 997 F.2d 898 (D.C. Cie, 1993) .cccccssssccvssssusunanenes 2

Bowen v. FDA, 925 F.2d 1225 (9th Cir, 1991)............. \4

Cal. Bankers Ass'n v. Shultz, 416 U.S. 21 (1974).......... 7

Cooper Cameron Corp. v. United States DOL, 280

F.3d $39 (S® Civ. 2002)...::a0remsevessonsinianinn 17

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1973S) ...cceccccosorosessesseeeeesessiunnessennnininnnnnnnnnnnEEE I4

Department of Air Force v. Rose, 425 U.S. 352

€ 1976) ...cccccesesesescccececesosnssuseneneneinninnninnnnnnnnEEE &

Environmental Protection Agency v. Mink, 410 U.S.

TS (EDT) .occcccsccccecccceccescceussnnsnennnnnnnnnannnEEE

Favish v. OIC, 217 F.3d 1168 (9" Cir, 2000) .......... 4.11

Garrison v. Louisiana, 379 U.S, 64 (1964)..........cccccee 11

Katz v. National Archives & Records Administra-

tion, 862 F. Supp. 476 (D.D.C. 1994), aff'd on

other grounds, 68 F.3d 1438 (D.C. Cir. 1995)......... 13

New York Times Co. v. NASA, 782 F. Supp. 628

(D.D.C. 1991) ...cccevcccsssossneconssuennieiieiennnnnnnnnnnnnEE 15

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C.

Civ. 19D 1 ) ..cccccscssecoesssconessenensensinnsinieninnnnnnnnnnnnnnnE 10

Swidler & Berlin v. United States, 524 U.S. 399

( FDBB) ..cvccsccescccscceccceccessonmsemnneinnnneennnnnnnnnnnEEE 5.11

Umited States DOJ \ Reporters Comm. for Freedom

of Press, 489 U.S. 749 (1989) ....... passim

United States v. Ron Pair Enterprises, Inc, 489 U.S.

a . 16

Upjohn Co. v. United States, 449 US 383 (1981) 12

Statutes, Regulations and Legislative Materials

iaiicdiniicsectssccseees | 16

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es : 3.6.8

$8 Fed. Reg. 21.330 (1993) 00.0. | 2

58 Fed. Reg. 28.655 (1993).......... 2

58 Fed. Reg. 29,854 (1993) ..................:00000. 2

H.R. Rep. No. 104-849 ......... 42

Other

Arlington National Cemetery Website, James Vin-

cent Forrestal,

http://www.arlingtoncemetery .net/jvtorres.htm

a asccrncnssenecncosooooocs 12

Breckenridge, The Right to Privacy (1970) .............0. X

Goodenough, “Go Fish: Evaluating the Restate-

ment's Formulation of the Law of Publicity.” 47

Sn TET TIED ccesescansceccesesscosscscsessecceccrcceee 7

Project, “Government Information and the Rights of

Citizens, ” 73 Mich. L. Rev. 971 (1974-1975)........... §

Westin, Privacy and Freedom (V967).........cccccccccceeeeeeees s

No. 02-954

IN Tit

Supreme Court of the United States

OFFICE OF INDEPENDENT COUNSEL.

Petitioner a

ALLAN J. FAVISH,

Respondent.

On Writ of Certiorart

to the United States Court of Appeals

for the Ninth Circuit

INTEREST OF AMICI CURIAE'

The Association of American Physicians & Surgeons, Inc.

(“AAPS”) is a non-profit organization dedicated to defending

the practice of private medicine. Founded in 1943, AAPS

publishes a newsletter, journal and other materials in further-

ance of its goals of a limited and accountable government.

AAPS files requests under the Freedom of Information Act

(FOIA) and state equivalents. It sued to enforce the Federal

Advisory Committee Act (FACA) against the Clinton Ad-

ministration’s Task Force on National Health Care Reform,

' This brief is filed with the written consent of all parties. No counsel for

a party authored this brief in whole or in part, nor did any person or entity,

other than amici, its members, or its counsel make a monetary contribu-

tion to the preparation or submission of this brief.

5,

which Vincent Foster was handling when he tragically died.

Association of Am. Physicians & Sureeons v. Clinton, 997

F.2d 898 (D.C. Cir. 1993), 58 Fed. Reg. 29,854 (1993) (Mr.

Foster's court-required FACA order); 58 Fed. Reg. 28,655

(1993) (same), SS Fed. Reg. 21,330 (1993) (same). AAPS has

a strong imerest in construing FOIA exemptions narrowly, and

in obtaining full disclosure of the facts surrounding the death of

Mr. Foster in particular. Physician members of AAPS include

pathologists having medical expertise to analyze the photo-

graphs at issue tor the benefit of all.

Eagle Forum Education and Legal Defense Fund

(“EFELDF”) ts a nonprofit organization founded in 1981.

For more than twenty years it has sought a limited and

accountable government. EFELDF relies on full enforcement

of FOIA in order to hold the government accountable for its

actions. EFELDF has a strong interest in ensuring that infor-

mation concerning the death of any high government official,

including Vincent Foster, is made available to the public.

Amict have a direct and vital interest in the issues pre-

sented to this Court based on their reliance on FOIA tor gov-

ernmental accountability.

SUMMARY OF ARGUMENT

On July 20, 1993, Vincent Foster became the highest

ranking tederal government official to die in office in the

thirty years after President John F. Kennedy's assassination.

There is a compelling interest in obtaining full disclosure with

respect to such death. Inevitably, the details about death by

gunshot are tragic and unsettling. But the necessity for gov-

ernment accountability is not lessened by the horrifying na-

ture of the incident. A high ranking government official was

mortally wounded, and government has no authority for with-

holding direct evidence indicating how. All the disputed pho-

tographs should be released.

3

The government account pinned the entire blame tor the

death on the victim, Vincent Foster. Federal investigations

repeatedly proclaimed the government to be innocent of any

malfeasance but Vincent Foster to be guilty of suicide, an act

deemed morally unacceptable by major religions. But these

governmental conclusions were self-serving, exonerating the

very institution that funded them and transferring all the fault

to someone unable to defend himself. Undoubtedly a dozen

more investigations by the federal government would reach

the same result, deserved or not. Even if it was a suicide,

numerous unanswered questions remain about whether the

body was moved and reporting delayed in order to provide

additional time to remove documents from Mr. Foster's ot-

fice.

The Freedom of Information Act (FOIA) exists so that

citizens may reach their own conclusions based on their own

review of evidence, free from institutional bias. There is no

reason to depend on hearsay about official information; it can

and should be viewed directly by the objective public. Ten

years later, many questions remain about whether Mr. Foster

committed suicide or was the vicum of murder. Post-mortem

official photographs are direct evidence of the truth, and can

immediately reveal the bullet wounds, direction of blood

flow, and probability of assault. FOIA prevents government

from forcing us to depend on its description of evidence.

FOIA requires government to produce the hard evidence it-

self.

The privacy exemption to FOIA, Exemption 7(C), does

not justify withholding these photographs. 5 U.S.C. §

552(bX7C). There is no meaningful privacy interest in

someone who has departed this life, just as his estate would

lack any cause of action for defamation. Here, Mr. Foster's

reputation could well be aided by refutation of the claim that

he committed suicide. If a victim of wrongdoing by others,

his plight would cry out for overdue justice. This Court

4

should establish that Exemption 7(C) does not extend beyond

a subject's life.

Even it Exemption 7(C) does apply, redaction of only the

oftending portions of the photographs would fully satisfy it.

Highly personal aspects of the pictures, such as Mr. Foster's

eyes, could be omitted while producing portions disclosing

the wounds. With computer technology, perhaps the parties

could even alter the apparent identity of the victim without

changing the information crucial to the investigation. At a

minimum, redaction should be ordered rather than wholesale

withholding of the records.

ARGUMENT

The Ninth Circuit was correct in ordering review of the

photographs by the district court, though it did not go far

enough in ordering their release. The reasoning of the Ninth

Circuit was sound with respect to the purpose of FOIA:

To anyone familiar with famous cases in the Old World or

in the New it ts a feature of famous cases that they gener-

ate controversy, suspicion, and the desire to second guess

the authorities. The continuing discussion of the assassi-

nation of President Kennedy may suffice to make the

point. [FOLA] establishes a right to look, a right to

speculate and argue again, a right of public scrutiny

that can be denied only if the relevant statutory ex-

emption applies.

Favish v. OIC, 217 F.3d 1168, 1173 (9" Cir. 2000) (emphasis

added).

FOIA mandates this “right to look” so that citizens are not

beholden to and wholly dependent on governmental accounts

and interpretation of evidence withheld. “Without question,

the Act is broadly conceived. It seeks to permit access to of-

ficial information long shielded unnecessarily from public

view and attempts to create a judicially enforceable public

right to secure such information from possibly unwilling offi-

5

cial hands.” Environmental Protection Agency v. Mink, 410

U.S. 73, 80 (1973). The very purpose of FOIA is to guarantee

access to official information possessed by a government that

has not willingly released ut. The post-mortem photographs

of Vincent Foster fall squarely within this mandate for disclo-

sure.

The Ninth Circuit erred, however, in limiting FOIA by

finding a broad right of privacy for relatives of the deceased

under Exemption 7(C). Defamation does not survive death;

nor does common law invasion of privacy. The FOIA pri-

vacy exemption is not animated by public policy like the at-

torney-client privilege, held to extend after death in order to

promote frank communications. See Swidler & Berlin \

United States, 524 U.S. 399, 403 (1998). Nothing about this

FOIA exemption is designed to encourage action by the sub-

ject, and it cannot justify withholding official information

gathered in public view about a subject who was already de-

ceased.

The government presented a self-serving explanation of

the death — that Mr. Foster supposedly committed suicide —

and cannot now hide behind the privacy exemption to protect

its account. Nor can relatives assert a derivative claim to pri-

vacy to prevent disclosure under Exemption 7(C).

I. FOIA EXEMPTION 7(C) IS INAPPLICABLE BECAUSE

PHOTOGRAPHS TAKEN OF A PUBLIC SCENE IN A PUBLIC

PARK ARE NOT “PERSONAL”, NOR IS DISCLOSURE

“UNWARRANTED”,

According to the government, Vincent Foster killed him-

self in a public park, where public discovery was inevitable.

If true, then he could not possibly have any reasonable expec-

tation of privacy and there can be no privacy basis for with-

holding the photographs. If the government's version is un-

true, then the need for release of the photographs is compel-

6

ling even if privacy is invaded. Either way, Exemption 7(C)

does not justify withholding the photos.

Exemption 7(C) allows withholding records only if they

“could reasonably be expected to constitute an unwarranted

invasion of personal privacy ....” 5 U.S.C. § 552(b)(7)(C)

(emphasis added). Accordingly, an invasion of privacy is not

sufficient to trigger this exemption. The invasion must be of

“personal” privacy, and it must be “unwarranted”. Neither

requirement is satisfied here.

A. The Photographs Fail to Meet the “Personal Pri-

vacy” Requirement of Exemption 7(C).

The photographs fail to meet the “personal privacy” re-

quirement because they merely capture what was available to

any member of the public who wandered into Fort Marcy

Park at the appropriate time. The pictures were not taken in a

home, a private hotel room or even a medical facility. They

are non-medical photographs of a scene on public property in

open view. The subject was fully clothed and remarkably

neat. Government announced to the whole world intimate

facts relating to Mr. Foster’s death, leaving no cognizable

privacy interest to protect in connection with the photographs

themselves.

The photographs are devoid of any identifying details

about Mr. Foster that would intrude on his privacy, or that of

his next-of-kin, within the meaning of Exemption 7(C). In

United States DOJ v. Reporters Comm. for Freedom of Press,

this Court construed the privacy interest to be one of “identi-

fying details” and “identifying information.” 489 U.S. 749,

769 (1989). There, criminal “rap sheets” on individuals

qualified for Exemption 7(C) from FOIA because they con-

tain facts in the distant past about private citizens, not other-

wise readily available to the public. The harm attendant to

disclosure of one’s prior criminal record is completely absent

from the disclosure of blood flow on a dead body or a dis-

puted bullet-hole in his neck. Moreover, the exemption in

7

Reporters Comm. did not extend to the deceased, nor to pub-

lic officials; the Department of Justice released the requested

rap sheets on individuals who had died.

The photographs at issue here do not contain “identifying

information” about Mr. Foster, or anyone else, of a private

nature. Already the government has officially declared that

he had committed suicide, and nothing in the photographs

could add to the harm of that personal stigma. Unlike Re-

porters Comm., there is no identifying information, such as a

criminal background, that could potentially harm the subject

or even his next-of-kin. The government has already identi-

fied and disclosed all the facts that plausibly support its inves-

tigation. The standard set by Reporters Comm. to satisfy Ex-

emption 7(C) is not met here.

Nor can the privacy exemption under FOIA become a de-

rivative right claimed on behalf of individuals other than the

subject himself. Privacy, if it means anything at all, must be

only a personal right that terminates upon death. A “tort-like

attribute limited the right of privacy to the period of the indi-

vidual’s life. If the justification for the right is to prevent em-

barrassment and personal distress, then death presumably re-

moves the problem. Similar considerations have limited the

right to sue for defamation under traditional common-law

principles .... [T]he New York privacy statute restricted pro-

tection to ‘any living person,’ and the jurisdictions which

found privacy in the common law generally followed suit.”

Goodenough, “Go Fish: Evaluating the Restatement’s Formu-

lation of the Law of Publicity,” 47 S.C. L. Rev. 709, 731

(1996). Nor does the individual privacy right exist for corpo-

rations. See, e.g., Cal. Bankers Ass'n v. Shultz, 416 U.S. 21,

66 (1974) (denying an individual right to privacy to corpora-

tions because they “are endowed with public attributes” — a

compelling reason to deny the right to public officials).

Every plausible articulation of a privacy right is in wholly

personal terms. “Privacy ... is ... the individual's right to

control dissemination of information about himself.”

8

Breckenridge, The Right to Privacy | (1970) (quoted by Re-

porters Comm., 489 U.S. at 764 n.16). See also id. (quoting

Westin, Privacy and Freedom 7 (1967) (“Privacy is the claim

of individuals ... to determine for themselves when, how, and

to what extent information about them is communicated to

others”) and Project, “Government Information and the

Rights of Citizens,” 73 Mich. L. Rev. 971, 1225 (1974-1975)

(noting that “the right of privacy is the right to control the

flow of information concerning the details of one’s individu-

ality”).

The photographs do not contain any information about

Mr. Foster’s widow or sister, or even his children, that might

trigger Exemption 7(C). They may suffer offense and dis-

comfort, and Congress has the power to pass legislation pro-

tecting them against that emotional distress. But Congress

has not done so, or indicated any desire to do so. Emotional

distress in third parties resultant from release of information

gathered on public property about an individual may be too

speculative to guard against. Moreover, Mr. Foster’s children

have not sued in this action to block release of the photo-

graphs. They have an interest in learning the truth here and

could ultimately benefit from the requested disclosure.

B. The Photographs Fail to Meet the ““Unwarranted”

Requirement of Exemption 7(C).

The photographs also fail to meet the “unwarranted” re-

quirement of Exemption 7(C), which allows withholding re-

cords only if disclosure could be “an unwarranted invasion of

personal privacy.” 5 U.S.C. § 552(b)(7)(C). Warranted inva-

sions of the personal privacy are fully subject to FOIA, and

the records must be disclosed.

This Court has found disclosures to be warranted if they

further “the basic purpose of the Freedom of Information Act

‘to Open agency action to the light of public scrutiny.”” De-

partment of Air Force v. Rose, 425 U.S. 352, 372 (1976).

Where, as here, the information consists of official documents

me ee

9

about public images of a high-ranking government official,

then disclosure is mandated to satisfy FOIA. “FOIA’s central

purpose is to ensure that the Government’s activities be

opened to the sharp eye of public scrutiny, not that informa-

tion about private citizens that happens to be in the ware-

house of the Government be so disclosed.” Reporters Comm.,

489 U.S. at 774 (emphasis added). Nothing about Mr. Foster

or the circumstances of his death suggest that disclosure

would be unwarranted with respect to the purposes of FOIA.

The government itself insists that it investigated the death

seven different times — each time by a federal authority — an

admission both of the importance of the controversy and the

lack of a non-federal, independent inquiry. Brief for the Peti-

tioner 2-5, 11 (“Pet. Br.””). FOIA establishes that we need not

depend only on the one-sided perspective of government in

these investigations. “‘The generation that made the nation

thought secrecy in government one of the instruments of Old

World tyranny and committed itself to the principle that a

democracy cannot function unless the people are permitted to

know what their government is up to.” EPA v. Mink, 410

U.S. at 105 (Douglas, J., dissenting) (quoting the historian

Henry Steele Commager). These much-criticized reports on

Mr. Foster’s death consist of the very governmental activity

deserving of the “sharp eye of public scrutiny.” Reporters

Comm., 489 U.S. at 774.

The purpose of the particular request is not controlling,

nor is speculation about media attention after disclosure of

highly sought records. Reporters Comm., 489 U.S. at 772.

The goal of FOIA is to advance “public scrutiny,” and more

of that publicity cannot disqualify records from disclosure.

FOIA does not include an exemption stating that if its purpose

is attained by extraordinary publicity, then the records may be

withheld by government to avoid that publicity. Publicity is

what FOIA supports, without limit on amount.

Nor is a request for information presumptively unwar-

ranted in the absence of proof of wrongdoing by the govern-

10

ment, as the D.C. Circuit held on similar facts. Accuracy in

Media v. National Park Service, 194 F.3d 120 (D.C. Cir.

1999), cert. denied, 529 U.S. 1111 (2000). “To show that the

invasion of privacy was not ‘unwarranted,’ AIM must show

‘compelling evidence that the agency denying the FOIA re-

quest is engaged in illegal activity, and access to the [photos]

is necessary in order to confirm or refute that evidence.’” 194

F.3d at 124 (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d

1197, 1205-06 (D.C. Cir. 1991)). Nothing in Exemption 7(C)

requires such a heightened showing by a FOIA requester.

Rarely, if ever, would a requester even have access to such

proof, and the SafeCard Servs. precedent should not extend

beyond withholding names and addresses. 926 F.2d at 1206

(“[U]Jnless access to the names and addresses of private in-

dividuals appearing in files within the ambit of Exemption

7(C) is necessary in order to confirm or refute compelling

evidence that the agency is engaged in illegal activity, such

information is exempt from disclosure.”) (emphasis added).

There is no proof-of-illegality requirement to FOIA requests

in general, as the statute requires government accountability

regardless of evidence of wrongdoing.

The position of Respondents is, at bottom, self-

contradictory. Media attention on the photographs would be

directly a function of their inconsistency with the official

government position. If the photographs are in conflict with

the published reports, then there should be media comment.

Such scrutiny would be exactly what FOIA requires when the

evidence does not support government claims. Some family

members may welcome the possibility that Mr. Foster did not

commit suicide as originally announced.

If government may withhold post-mortem pictures of a

government official on the ground of privacy, then it will be

impossible to scrutinize any future pronouncement about a

violent death of a high public official. Such a precedent

would be destructive of FOIA. Three separate courts — the

District Court for the D.C. Circuit, the Court of Appeals for

the D.C. Circuit, and the District Court for the Central District

of California — all held in favor of the government's assertion

of the privacy exemption without first looking at the photo-

graphs themselves. Favish v. OIC, 217 F.3d at 1174 (“But no

court has ever seen” the photographs. “Balancing without a

knowledge of what the photos show would be an exercise in

the air.”). No accountability for government can survive the

expansive view of Exemption 7(C) adopted by these other

courts, which upheld concealment without ever viewing the

evidence. Ful! disclosure of the photographs is warranted un-

der FOIA.

Il. EXEMPTION 7(C) IS INAPPLICABLE TO CONCEAL

INFORMATION RELATED TO GOVERNMENT REPORTS

CONCERNING THE UNEXPECTED DEATH OF A HIGH-

RANKING GOVERNMENT OFFICIAL.

The photographs contain evidence directly relevant to

continuing criticisms of governmental claims about the unex-

pected death of a high-ranking government official. “[W here

the criticism is of public officials and their conduct of public

business, the interest in private reputation is overborne by the

larger public interest, secured by the Constitution, in the dis-

semination of truth.” Garrison v. Louisiana, 379 U.S. 64, 72-

73 (1964). The official reports about the death of Vincent

Foster were completely self-serving, ascribing no possible

fault to government and heaping blame and humiliation on

the victim. FOIA ensures that citizens need not take the gov-

ernment’s account at face value, but may view non-medical

evidence directly themselves.

Petitioner’s position here is at odds with its stance before

this Court over five years ago, when the Office of Independ-

ent Counsel (OIC) demanded access to personal attorney-

client communications of Mr. Foster. Swidler & Berlin v.

United States, 524 U.S. 399 (1998). The OIC insisted that the

attorney-client privilege does not survive death, and the D.C.

Circuit held in favor of the OIC there also. But this Court

}?

a

held that this privilege does survive death because it “is in-

tended to encourage ‘full and frank communication between

attorneys and their clients and thereby promote broader public

interests in the observance of law and the administration of

justice." /d. at 403 (quoting Upjohn Co. v. United States,

449 U.S. 383, 389 (1981)). In contrast, no such policy inter-

est is at stake with respect to these photographs, and there is

no justification for finding a right to privacy under FOIA that

survives death. OIC is simply safeguarding its own reputa-

tion, not Mr. Foster’s, in withholding these particular photo-

graphs. Pet Br. at 42-43 (detailing all the intimate informa-

tion that the OIC did disclose about Mr. Foster in support of

its reports, while refusing to release records potentially incon-

sistent with its claims).

The Fiske and Starr Reports by the OIC insist that Mr.

Foster, who was the well-liked, number-one graduate of Ar-

kansas Law School and the top scorer on his bar exam, sud-

denly committed suicide without any preparation in his work

or family life. It is a conclusion that strains credibility, as

suicide is very rare at that level of responsibility and observa-

tion. None of the erratic behavior associated with suicide was

observed in Mr. Foster prior to his death, and his strong sense

of responsibility belies such a complete abandonment. In

contrast, Defense Secretary James Forrestal had formally re-

signed from his post and was admitted to a Navy hospital be-

fore he died plunging from its sixteenth floor.”

The clandestine removal of objects from Mr. Foster’s of-

fice at the time of his death raises a healthy skepticism by

those outside of the federal government about subsequent de-

nials of wrongdoing. See, e.g., H.R. Rep. No. 104-849, at

121-86 (asserting that White House officials were responsible

for a cover-up and even obstruction of justice after Foster’s

death). The claims about a mutilated suicide note, missing

from initial searches of Mr. Foster’s briefcase and then inex-

° hitp://www.arlingtoncemetery.net/jvforres.htm (viewed 8/15/03).

13

plicably withheld for years from meaningful public scrutiny

until examiners eventually considered it to be a forgery, do

nothing to bolster the official theory. FOIA does not guaran-

tee final answers, but does ensure that the government may

not conceal evidence to safeguard its own reports.

Everything about the finding of Mr. Foster's body is con-

sistent with its having been placed in its final location rather

than his dying there. Investigators found little blood and no

bullet; the gun, surprisingly, was still in his hand; the gun

lacked his fingerprints; his posture was improbably straight;

his shoes lacked dirt that would have been inevitable had he

walked through the park; and rug fibers were all over his

clothes, as though he had been rolled in a carpet and moved.

The point here is not to ask the government to reopen its own

investigation, but to obtain the accountability guaranteed by

FOIA. This law ensures that citizens need not rely on gov-

ernment claims about the evidence, but may look and decide

for themselves.

The photographs are not autopsy material that may war-

rant privacy protection, as urged by relatives of other victims.

For example, the court below cited a precedent for withhold-

ing autopsy photographs of President John F. Kennedy. Katz

v. National Archives & Records Administration, 862 F. Supp.

476, 485 (D.D.C. 1994), aff d on other grounds, 68 F.3d 1438

(D.C. Cir. 1995). But autopsy photographs are part of the

medical record and therefore subject to heightened standards

of privacy. 68 F.3d at 1441 (“The x-rays and photographs are

medical records, which are usually considered private.”) (cit-

ing 5 U.S.C. § 552(b)(6), which exempts “medical files and

similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy”). Moreover, the

photographs of Mr. Foster are plainly agency records, in con-

trast to the finding that the Kennedy pictures are part of his

presidential papers. 68 F.3d at 1442.

Here, the photographs taken of Mr. Foster at Fort Marcy

Park were not medical at all; nor do they reveal any intimate

14

information. Mr. Foster was‘fully clothed and the photo-

graphs merely capture what was available to any passerby.

Disclosure of the photographs at issue here does not require

release of autopsy or other medical records about other vic-

tims. See e.g., Bowen v. FDA, 925 F.2d 1225, 1228 (9th Cir.

1991) (the privacy interest in the autopsy report of a private

victim falls under Exemption 6 from FOIA disclosure). Con-

cerns about publication of medical records, like that ex-

pressed by Teresa Earnhardt as amicus here, are misplaced in

the context of the non-medical records at issue here. Peti-

tioner’s numerous cites to examples of medical records are

irrelevant to this dispute and offer no support for concealing

these very public photographs. Pet. Br. at 24-26.

Congress has not created an exemption for relatives of

the subject of government information, nor should this Court.

Where, as here, the issue at stake is government credibility for

its Own investigative reports, such an exemption is particu-

larly unjustified. “[T}he citizenry is the final judge of the

proper conduct of public business.” Cox Broadcasting Corp.

v. Cohn, 420 U.S. 469, 495 (1975). Exemption 7(C) does not

entitle the government to escape scrutiny based on an alleged

privacy interest of a deceased victim and his surviving rela-

tives.

In contrast to other cases concerning the privacy of rela-

tives of the deceased, the post-mortem official photographs of

Mr. Foster were taken on public property by public officials.

Even if a privacy right survived death — which it does not un-

der common law — Mr. Foster himself lacked any reasonable

expectation of privacy in these photographs. The interests of

his relatives can be no greater than his own.

Moreover, if a legitimate privacy interest in facts of a de-

ceased did exist, only the children as next-of-kin should have

standing to assert it. Yet Mr. Foster's children have not sued

to prevent release of these photographs, and their absence

cannot be filled by other relatives. It may be that some rela-

tives, perhaps even some children, favor additional scrutiny of

1S

the government conduct here. A privacy interest under FOIA

cannot extend without limit beyond the children to other rela-

tives. The government's position implicitly rejects any mean-

ingful limits on time and relation in asserting a privacy ex-

emption for relatives.

The concealment of these photographs speaks volumes

about the operations of government in investigating Mr. Fos-

ter’s death and ferreting out, or covering up, the truth. This

contrasts sharply with decisions upholding application of the

Exemption 7(C) to information arising from a public tragedy.

See, e.g., New York Times Co. v. NASA, 782 F. Supp. 628,

633 (D.D.C. 1991) (applying Exemption 6 to withhold con-

versations on the Challenger just prior to its explosion be-

cause “[|w)hat the astronauts knew or did not know about the

explosion says nothing about the operations of NASA.”).

Vincent Foster served our country at a high level and died

in office. The government blamed him, and him alone, for his

death. FOIA enables citizens to scrutinize this self-serving

conclusion by our government by accessing the photographs

of Mr. Foster taken in a public park. If the photographs sup-

port the government's reports, then it has no motivation to

withhold them. If, however, the photographs are inconsistent

with the official account, then FOIA requires their release for

that very reason. FOIA disclosures ultimately protect Vincent

Foster and those like him to ensure accountability for expla-

nations provided by our government.

The government admitted that the photographs at issue

here are “some of the best evidence” of the fatal wounds, and

therefore release of that evidence is essential to scrutinize the

government's conclusions. Accuracy in Media, 194 F.3d at

124. Respondent is entitled to full compliance with his FOIA

request in order to obtain this “best evidence.” The govern-

ment has no basis for concluding that “[t}he public's interest

in matters pertaining to [Mr. Foster's] death and its investiga-

tion has been satisfied.” Pet. Br. 50 (emphasis omitted). The

16

public's interest will not be satisfied until it gains access to

the best evidence, as required by FOIA.

HL.REDACTION OF PERSONAL CHARACTERISTICS, NOT

WHOLESALE CONCEALMENT, IS ALL THAT EXEMPTION

7(C) COULD PERMIT HERE IN THE NAME OF PRIVACY.

FOIA requires redaction of portions of records under Ex-

emption 7(C) and release of the remainder. “Any reasonably

segregable portion of a record shall be provided to any person

requesting such record after deletion of the portions which are

exempt under this subsection.” 5 U.S.C. § 552(b). See also

United States DOJ v. Reporters Comm. for Freedom of Press,

489 U.S. 749, 765 (1989). Only the personal characteristics

of the photographs, such as Mr. Foster's eyes, nose and

mouth, are even plausibly exempt from disclosure. The al-

leged neck wound, the isolated flow of blood, the glasses, and

numerous other features of the photographs implicate no le-

gitimate privacy interests.

The plain language of Section 552(b) requires redaction

only of the exempt portions of the photographs at issue.

United States v. Ron Pair Enterprises, Inc., 489 U.S. 235,

240-41 (1989) (“[A]s long as the statutory scheme is coherent

and consistent, there generally is no need for a court to in-

quire beyond the plain language of the statute.”). A triangular

black-out of the eyes, nose and mouth would satisfy this

mandate, while a withholding of the complete photographs

would not. Likewise, a computer-based alteration of the ap-

pearance of the subject himself would be possible while still

producing essential information.

The official government position is that there was no bul-

let wound in the neck of Mr. Foster, who supposedly died by

shooting himself in his mouth. If true, then there is no legiti-

mate objection to releasing the portion of the photographs

containing images of Mr. Foster's neck. Under the govern-

ment’s view, these images would be uninteresting and there-

17

fore unlikely to generate any media attention, and thei publi-

cation would at most confirm what the government has said

all along. There is no basis under Exemption 7(C) for with-

holding these images. It is only in the event that the photo-

graphs are inconsistent with the official government position

that there would be media exposure — publicity that FOIA

supports.

The Fifth Circuit has compelled the government to pro-

duce documents under FOIA based on this requirement of

redaction. See Cooper Cameron Corp. v. United States DOL,

280 F.3d 539 (5" Cir. 2002). There the Department of Labor

insisted on withholding 145 pages of its investigation of a pet-

rochemical facility, citing Exemption 7 as the basis. /d. at

542. There, as here, the federal government defended its re-

fusal to segregate Exemption 7(C) portions and disclose the

remainder. The Court of Appeals ordered disclosure of with-

held information with only names and addresses redacted. /d.

at 554. Exemption 7(C) does not justify wholesale conceal-

ment of entire records, at least not when the subject was a

high-ranking public official.

18

CONCLUSION

Ten photographs were taken of Vincent Foster's fully

clothed body in Fort Marcy Park. To this day, the govern-

ment has refused to release them for independent scrutiny.

Amici urge full release of the photos, so that the public can

draw its own conclusions from the facts.

The precedent at stake is whether the government can

hide behind Exemption 7(C) to FOIA. Ten years have passed

and Mr. Foster's children have not sued to block release. Re-

spondent has agreed to redact any portion of the photos that

may be offensive. Government accountability is necessary

here and in future cases dependent on this precedent.

For the foregoing reasons, the post-mortem photographs

of Vincent Foster should be released.

ANDREW SCHLAFLY KAREN B. TRIPP

§21 Fifth Ave.- 17" Floor — Counsel of Record

New York, NY 10175 2245 Shakespeare Road

(212) 292-4510 Houston, Texas 77030

(713) 658-9323

Counsel for Amici

Dated: August 18, 2003.