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

| Supreme Court. US

FILED

AUG 2 1 2003

No. 02-954 OFFICE OF THE CLERK

In the Supreme Court of the Anited States

OFFICE OF INDEPENDENT COUNSEL, PETITIONER.

V.

ALLAN J. FAVISH, RESPONDENT.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE

SILHA CENTER FOR THE STUDY OF

MEDIA ETHICS AND LAW

IN SUPPORT OF RESPONDENT ALLAN J. FAVISH

JANE E. KiRTLEY

Counsel of Record

SILHA CENTER FOR THE STUDY OF

Mepia ETHICS AND LAw

School of Journalism and

Mass Communication

University of Minnesota

111 Murphy Hall

206 Church Street, SE

Minneapolis, MN 55455

Aucust 21, 2003 (612) 625-9038

NS SP

l.

i

TABLE OF CONTENTS

Page

Ic srrcesceeessisnsesnaenuinbiianineabncencensen |

TET a ToT EOP l

Argument:

I. “Survivor privacy” does not exist under the

statutory language of the Freedom of Information

Ii cntcecieraseadibdiaddnsasigitasithiaaliteeiaienesinnianianenintabisiennnamseeeees 3

A. Exemption 7(C) extends only to individuals

who are mentioned in government records. ............. 4

1. The plain language of the statute makes

clear that “privacy” is limited to those =

individuals mentioned in the records in

(IITs ishibiideishteicaiatensendpiedsininsithininintsesesorserenes 5

2. Petitioner’s interpretation of “personal”

privacy is contrary to the meaning

compelled by statutory interpretation. ............... 6

B. The FOIA Exemptions must be construed

narrowly to exclude “survivor privacy”

IIIT ssieescinnieeetaitninititsieinasiiiibandntadeniumesneperemensemesees 9

The statute’s fundamental presumption of

disclosure compels a narrow interpretation

TIED, cnvsccsnesenccsnsecsmsssrecsenscesscssennsess 9

Petitioner has not provided evidence of

Congressional intent to expand privacy

interests beyond those of individuals

specifically mentioned in government

i clintreiiteincictncincninitenecerarmsammasenesesemnaees 10

II. The case law cited in support of “survivor privacy”

is inapposite or flawed, and should not be

regarded as binding precedent in the instant case. ....... 12

A. Cases where the personal privacy interest

belongs to individuals named or depicted in

the records sought are inapposite. ...............0:0000+ 13

i

TABLE OF CONTENTS—Continued: Page

B. The court in Katz recognized a proprietary

interest, not a “survivor privacy” interest, in

protecting autopsy photos from disclosure. ........... 14

C. New York Times v. NASA illustrates why

Congressional, not judicial, action is required

to create a “survivor privacy” interest under

POG.’ ...ccccssecssosenseseessesssesnsnniinsiianniannnne 15

D. Surviving family members who are not named

or depicted in the records sought do not have

a personal privacy interest under FOIA. ............... 16

III. Legislatures have the power to amend open-records

statutes to exempt material from disclosure if they

determine that public policy so requires, but it is not

the role of the Courts to dO SO. ........::cssssseesseeeeeeeeeeeees 17

IV. Recognizing “survivor privacy” under FOIA would

create precedent for further expansion of statutory

exemptions that would frustrate the fundamental

purposes Of Ge SHIUID, ....c..ccssssocessesesenssnnnensemmnsniiaas 19

A. “Survivor privacy” easily could evolve into a

generalized “family privacy” interest. .............:000008 20

B. The recognition of “survivor privacy” would

greatly increase the government’s burden under

FOIA and could lead to unjustified withholding

of records that should be disclosed. ............:0:00000 22

Comment ......ccccccscccesssosssscenesescssnsaietenne 24

ec

a me

a

TABLE OF AUTHORITIES

Cases:

Accuracy in Media v. Nat'l Park Serv.,

194 F.3d 120 (D.C. Cir. 1999), cert.

denied, 529 U.S. 1111 (2000) ...............000. 3-4, 16, 20

Atl. Cleaners & Dyers, Inc. v. United States,

CC Ee 4

Bailey v. United States, 516 U.S. 137 (1995)............... 5,7

Campbell v. Dep t of Justice,

164 F.3d 20 (D.C. Cir. 1998) .0.........cccccccccccecceesseeenes 16

Campbell v. Dept of Justice,

193 F. Supp.2d 29 (D.D.C. 2001) ........cccceccccceeeeeeees 22

Campus Communications, Inc. v. Earnhardt,

821 So. 2d 388 (Fla. Dist. Ct. App. 2002),

rev. denied, 848 So. 2d 1153 (Fla. 2003)

ee 18

Cordell v. Detective Publ’ns, 419 F.2d 989

EEE 8-9

Cox Broad. Corp. v. Cohn, 200 S.E.2d 127

(Ga. 1973), mev '‘d on other grounds,

rR 8-9

Crandon v. United States,

EET 10

Dept of Air Force v. Rose,

CR 10, 11, 19

Dept of Justice v. Reporters Comm. for

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

Dept of Justice v. Tax Analysts,

a 6

Dept of Navy v. FLRA,

840 F.2d 1131 (3d Cir. 1968) ..................ccccccceeseeeeees 12

N

Cases—Continued: Page

Dep t of State v. Ray, 502 U.S. 164 (1991) ............. 12, 13

Dep t of State v. Washingto” : . st Co.,

OG: Ta teense 5

Diamond v. FBI, 532 F. Supp. 216

(S.D.N.Y. 1981), aff'd, 707 F.2d 75

(2d Cir. 1983), cert. denied, 465 U.S.

Earnhardt v. Volusia County Office of

Med. Exam'r, 2001 WL 992068

ee EO 18

Estate of Conner v. Ambrose,

990 F. Supp. 606 (N.D.Iind. 1997)... eccccccceeeeeeees 9

Favish v. Office of Indep. Counsel,

217 F.3d 1168 (9th Cir. 1999) 20... cee eceeeeeeee passim

Heller v. U.S. Marshals Serv.,

655 F. Supp. 1088 (D.D.C. 1987) .0.......ccccccccceeeeeeeeees 5

Helmer v. Middaugh, 191 F. Supp.2d 283

es Ui GE cntensmemnerenssentnanidnateenenienanmneniaens 9

John Doe Agency v. John Doe Corp.,

SD es De rnnnenncisiinniimennens 10

Katz v. Nat'l Archives & Records Admin.,

862 F. Supp. 476 (D.D.C. 1994),

aff'd on other grounds, 68 F.3d 1438

ee 12, 14-15

Kyle v. United States,

ks 17

Lesar v. Dept of Justice,

636 F.2d 472 (D.C. Cir. 1980) 2.00.0... .cceeeeeeees passim

Marzen v. Dept of Health & Human Servs.,

825 F.2d 1148 (7th Cir. 1987)... cece eeeeeeee 12, 14

. ee ee ee

Cases—Continued: Page

Morissette v. United States,

ee Aiccsininnsvecsictinnmnenneemmeneneenens 7

Nat'l Ass'n of Retired Fed. Employees v.

Horner, 879 F.2d 873 (D.C. Cir. 1989),

cert. denied, 494 U.S. 1078 (1990) ............c.cccccceeeees 6

New York Times v. NASA,

920 F.2d 1002 (D.C. Cir. 1990)............... 12-13, 15-16

New York Times v. Sullivan,

I 21

Nixon v. Adm'r of Gen. Servs.,

a es ee caiidatinitetnccnennintintammematinininmianns 20

Outlaw v. Dept of the Army,

81S F. Sapp. SOS (D.D.C. 1993) ..22.202.2ccceccsecerceeeeceee 23

Platt v. Union Pac. R. Co., 99 U.S. 48 (1879)................. 7

Powell v. Dept of Justice,

584 F. Supp. 1508 (N.D.Cal. 1984) 0.0000... cceeeeeeeeens 5

Rabbitt v. Dept of Air Force,

383 F. Supp. 1065 (S.D.N.Y. 1974) ..........cccccceceeeeees 17

Reporters Comm. for Freedom of the Press

v. Dept of Justice, 831 F.2d 1124

en 21

Richards v. United States, 369 U.S. 1 (1962) ...........-00++ 10

SEC v. Joiner, 320 U.S. 344 (1943) .........ccccccceeeeeeeneenees 10

Seastrunk v. Burns,

a 19

Scheidler v. Nat'l Org. for Women,

Se Ce Oe rerneeeeemenmnen 7

Schrecker v. Dep t of Justice,

217 F. Supp.2d 29 (D.C. Cir. 2002) ...........cccceseeeeees 22

Swickard v. Wayne County Med. Exam'r,

475 N.W.2d 304 (Mich. 1991) ............c.cccsccesseeeeeeeeees 8

M

Cases—Continued: Page

Taylor v. United States, 495 U.S. 575 (1990) .............c004 7

United States v. Amalgamated Life Ins. Co.,

534 F. Supp. 676 (S.D.N.Y. 1982) ...........:ccccccceeeeeeeees 9

United States v. Ron Pair Enters., Inc.,

ee 5

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) ........... 19

Williams v. City of Minneola,

575 So. 2d 683 (Fla. Dist. Ct. App. 1991) ................ 18

Freedom of Information Act

Ps Se rerercmncssnremmmeneenmenne 24

I Ee passim

A 4

ie 1e GI cncrcccnsemmemenssmecsessentencen: 5

AR passim

GOs 0 Or Gerretsen 15

Pub. L. No. 102-526, 106 Stat. 3443 (1992) .................. 15

Fla. Stat. Ann. § 406.135 (West 2002) .............. Penmaes 18

Ind. Code Ann. § 5-14-3-4(a)(11) (2003) .................... 19

H.B. 77, 2002 Leg., Reg. Sess. (Ky. 2002).................. 19

ES ee DD crceenecteernsentemmeneccemene 19

A.B. 604, 2001-2002 Assembly (Wis. 2002)................ 19

Wyo. Stat. Ann. § 16-4-203(d)(i) (1977) ....0.....ecccceeeeee 19

Miscellaneous:

120 Cong. Rec. 17,033-34 (1974) 00.0... cccececeeeeeeeeeeeee 4,10

132 Cong. Rec. $16,496 (1986) .2..........ccccecceeeeeeeeeeeeeenees 4

Restatement (Second) of Torts (1977) ............:cccceeeeeeees 7,8

es GR IE cnncnernnsmsemmseremennenrersnmennemeens 10

eS a Ee CD crctterenmeneseneemeemememmme 23

Webster s New World Dictionary 1008, 1071

I Se inceveresnsentnnnenenninnsmnnimmnemenns 6

|

INTEREST OF AMICUS CURIAE

Amicus is a research center located within the School of Jour-

nalism and Mass Communication at the University of Minne-

sota.' Its primary mission is to conduct research on, and pro-

mote understanding of, legal and ethical issues affecting the mass

media. The Silha Center also sponsors an annual lecture series;

hosts forums, conferences and symposia; produces the Silha

Bulletin, a quarterly newsletter, and other publications; and pro-

vides information about media law and ethics to the public. Be-

cause Amicus believes that the Ninth Circuit’s extension of “per-

sonai privacy” under Exemption 7(C) of the Freedom of Infor-

mation Act, 5 U.S.C. § 552, to include “survivor privacy” inter-

ests threatens to undermine the purpose of the Act, Amicus re-

spectfully submits this brief in support of Respondent Favish.

SUMMARY OF ARGUMENT

The privacy exemptions of the federal Freedom of Informa-

tion Act (FOIA), 5 U.S.C. § 552(b)(6) and (b)(7)(C), are lim-

ited exceptions to that statute’s general presumption in favor of

disclosure. Both exemptions, which protect “personal privacy,”

should be construed narrowly to apply only to those individuals

mentioned or depicted in the records in question. To allowa

broader interpretation of the term “personal privacy” would be

to ignore the inherent purpose and clear intent of the statute, as

well as the noteworthy Congressional silence on any possible

privacy interest held by survivors of deceased persons who are

mentioned in government records.

Although this Court has said in the past that the privacy inter-

est created by FOIA is different from either common law or

' Letters of consent have been filed with the Clerk. Pursuant to Supreme

Court Rule 37.6, Amicus states that no counsel for a party authored this

brief in whole or in part, and no person or entity other than Amicus and its

counsel made a monetary contribution to the preparation or submission of

this brief.

2

Constitutional privacy interests, that statement was made in a

case which did not address the question of third-party privacy

rights. The instant case provides an opportunity for this Court

to clarify its interpretation. Wherever the outer boundaries of

statutory privacy under FOIA should fall, they should not en-

compass the type of survivor’s interests that the Petitioner at-

tempts to assert in this case.

“Survivor privacy” is not recognized in common law tort ac-

tions. Constitutional privacy interests likewise are not descend-

ible, expiring at the death of the individual concerned. As even

the Petitioner admits, there has never been a clear indication by

Congress that a “survivor privacy” interest was intended to be

recognized by the original FOIA or its subsequent amendments.

Because the statute is based on a strong presumption that gov-

ernment records should be public, the exceptions contained in

the statute must be specifically defined and narrowly construed.

VieWing the exemptions in light of their place in the statutory

structure, as well as common law and Constitutional parallels,

efforts to read a “survivor privacy” interest into the language of

the statute must fail.

Many of the cases cited by both the Petitioner and by Re-

spondent Foster family that are purported to provide a founda-

tion for assertions of “survivor privacy” are inapposite. Some

do not interpret FOIA at all. Others deal with family members’

first-person privacy rights as individuals mentioned in the records

sought. Still others establish “survivor privacy” simply by con-

cluding, without appropriate analysis of the statute, that such an

interest should exist. In another case concerning access to the

Foster death-scene photographs, the D.C. Circuit held that it is

“not unnatural” to view as a “privacy” interest a family’s desire

to avoid disclosure and their own subsequent exposure to such

material.? Although it can be argued that it would not, in fact,

? Accuracy in Media, Inc. v. Nat'l Park Serv., 194 F.3d 120, 123 (D.C. Cir.

1999) (“While law enforcement sometimes necessitates the display of such

ned

3

have been “unnatural” for Congress to explicitly create such a

privacy interest in a disclosure statute, that does not alter the

fact that Congress has neither explicitly nor implicitly created

such an interest in the statutory language under consideration.

The legislatures of several states have acted affirmatively to

exempt autopsy and, in some instances, death-scene photographs

by amending state freedom of information laws. Amendment of

the statute is the only appropriate method to create a new ex-

emption to laws governing citizens’ access to presumptively pub-

lic government information.

For this Court to create, sua sponte, a “survivor privacy” ex-

emption would encourage ambiguity and ultimately undermine

the presumption of disclosure. Affirmation by this Court of Con-

gress’ stated intentions in establishing FOIA and its narrow pri-

vacy exemptions would help to delineate a clear line for both

information requesters and government agencies to observe.

ARGUMENT

I. “SURVIVOR PRIVACY” DOES NOT EXIST UNDER

THE STATUTORY LANGUAGE OF THE FREEDOM

OF INFORMATION ACT.

The core question in the instant case is to determine what Con-

gress meant by “personal privacy” in Exemptions 6 and 7(C).

Nothing in the statutory language or legislative history suggests

that the answer to this question includes individuals who are not

themselves mentioned in a government record. By contrast, the

legislative history, the common law, and Constitutional concepts

of privacy all indicate that no such interest could reasonably have

been intended by Congress when it enacted and amended the

Freedom of Information Act.

ghoulish materials, there seems nothing unnatural in saying that the inter-

est asserted against it by spouse, parents and children of the deceased is

one of privacy — even though the holders of the interest are distinct from

the individual portrayed.”), cert. denied, 529 U.S. 1111 (2000).

4

A. Exemption 7(C) extends only to individuals who are

mentioned in government records.

As enacted in 1966, Exemption 7 of the Freedom of Informa-

tion Act applied to “investigatory files compiled for law enforce-

ment purposes except to the extent available by law to a private

party.” 5 U.S.C. § 552(b)(7). Exemption 6 created a personal

privacy exemption for “personnel and medical files and similar

files the disclosure of which would constitute a clearly unwar-

ranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).

In 1974, Congress amended FOIA to create a personal pri-

vacy standard under Exemption 7(C), in part to address the se-

rious problem of government agencies’ and courts’ expansive

interpretation of Exemption 7 as justifying blanket withholding

‘of law enforcement records. Sen. Philip Hart, who sponsored

the amendment creating 7(C), said on the Senate floor that the

amendment “simply make[s] clear that the protections in the sixth

exemption for personal privacy also apply to disclosure under

the seventh exemption.” 120 Cong. Rec. 17,033 (1974).

In 1986, Congress amended Exemption 7(C) to reaffirm the

presumption of access unless disclosure “could reasonably be

expected to constitute an unwarranted invasion of personal pri-

vacy.” 5 U.S.C. § 552(b)(7)(C).

The nature of privacy interests mentioned in the two exemp-

tions, however, is fundamentally the same. See Atl. Cleaners &

Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932) (hold-

ing that “identical words used in different parts of the same act

are intended to have the same meaning”). Moreover, the 1986

change in 7(C) from “would constitute” to “could reasonably be

expected to constitute” was intended merely to codify the ap-

proach that courts should take in determining the degree of risk

that disclosure would produce. 132 Cong. Rec. $16,496 (1986)

(statement of Sen. Patrick Leahy). Once a valid privacy interest

has been identified, courts may use different standards in Ex-

emption 6 and 7(C) to balance the risks associated with disclo-

- ~~ ewe

5

sure against the public interest served by disclosure. But any

effort to portray the privacy interest embodied in 7(C) as more

expansive than the interest embodied in Exemption 6 is misplaced.

Exemption 6 was intended to prevent injury or embarrassment

to those whose personal information is contained in government

files. Dep t of State v. Washington Post Co., 456 U.S. 595,

599 (1982). By contrast, Exemption 7’s primary aim is to pro-

tect the government’s interest in keeping information secret.

Exemption 7 protects paid informants, individuals mentioned in

law enforcemént files, and the identities of law enforcement per-

sonnel who could be subjected to harassment because of their

roles in investigations. 5 U.S.C. § 552(b)(7)(A-D). See Heller

v. U.S. Marshals Serv., 655 F. Supp. 1088 (D.D.C. 1987)

(holding that polygraph examinations of public official cleared of

wrongdoing fell within Exemption 7(C) where redaction of that

official’s name would be insufficient to protect his privacy). See,

e.g., Powell v. Dept of Justice, 584 F. Supp. 1508, 1525

(N.D.Cal. 1984) (holding that identities of FBI agents may be

withheld to spare the agents “annoyance and harassment,” and

that records concerning individuals being investigated or who

are associated with investigations are also appropriate for ex-

emption under 7(C)). Protecting individuals explicitly mentioned

in law enforcement records from the embarrassment or humilia-

tion of being associated with a criminal investigation is a far dif-

ferent matter from protecting third parties not mentioned in law

enforcement records from discomfort or distress.

1. The plain language of the statute makes clear that

“privacy” is limited to those individuals mentioned

in the records in question.

When interpreting the meaning of a statute, analysis must be-

gin with the plain meaning of the statutory language of the statute

itself. Bailey v. United States, 516 U.S. 137, 144 (1995) (cit-

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

241 (1989)). The dictionary definition of “personal” is “of or

6

peculiar to a certain person; private; individual.” Websters

New World Dictionary 1008 (3d coll. ed. 1988) (emphasis

added). “Private,” according to Webster s, means “of, belong-

ing to, or concerning a particular person or group.” /d. at 1071.

“Personal privacy,” therefore, necessarily refers to a privacy in-

terest that is limited to a specific individual. Under that interpre-

tation, the inquiry, both as to the meaning of the statute and as to

the legitimacy of “survivor privacy” under FOIA, comes to an

end. See Nat'l Ass'n of Retired Fed. Employees v. Horner,

879 F.2d 873, 874 (D.C. Cir. 1989), cert. denied, 494 U.S.

1078 (1990) (citing Dep t of Justice v. Tax Analysts, 492 U.S.

136, 150-51 (1989)).?

2. Petitioner’s interpretation of “personal” privacy

is contrary to the meaning compelled by statutory

interpretation.

Questions of statutory interpretation arise in the instant case

only if one attempts to infer some hidden meaning beyond that

clearly and plainly intended by the statutory language. The Peti-

~ tioner proposes an implausible meaning for the word “personal”

in Exemption 7(C) that is contrary both to the plain language of

the statute and to the meaning compelled by interpretive tools

laid down by this Court. 7

> In Tax Analysts, this Court stated:

In enacting the FOIA, Congress intended to curb this appar-

ently unbridled discretion by clos[ing] the loopholes which

allow agencies to deny legitimate information to the public.

Toward this end, Congress formulated a system of clearly

defined exemptions to the FOILA’s otherwise mandatory dis-

closure requirements. An agency must disclose agency

records to any person under § 552(a) unless they may be

withheld pursuant to one of the nine enumerated exemptions

listed in § 552(b). Consistent with the Act’s goal of broad

disclosure, these exemptions have been consistently given a

narrow compass.

492 U.S. at 150-51 (internal quotation marks and citations omitted).

— ees 4 UE.

7

The Petitioner contends that the word “personal” serves merely

to distinguish between “natural persons rather than corporations

or other entities.” Pet'r Br. at 18 (emphasis in original). This

argument contradicts well-established principles laid down by

this Court. As the Court noted in a recent opinion, written by

the Chief Justice, unless Congress dictates otherwise, courts

should begin their interpretation of statutory language with the

presumption that a statutory term carries its common law mean-

ing. Scheidler v. Nat'l Org. for Women, 537 U.S. 393 (2003)

(citing Taylor v. United States, 495 U.S. 575, 592 (1990);

Morissette v. United States, 342 U.S. 246, 263 (1952)). For

Congress to say that personal privacy refers only to privacy of

“natural persons” and not corporations would be redundant,

because no common law right of privacy for corporations exists.

Restatement (Second) of Torts § 6521 cmt. c (1977) (“A corpo-

ration, partnership or unincorporated association has no per-

sonal right of privacy.”). Therefore, because Congress intends

that every word in a statute should have meaning, the word “per-

sonal” must have been included for purposes other than to dif-

ferentiate between a corporation’s privacy interests and a natu-

ral person’s privacy interests. Bailey, 516 U.S. at 145 (quoting

Platt v. Union Pac. R. Co.,99 U.S. 48, 58 (1879) (“[A] legis-

lature is presumed to have used no superfluous words.”’)). The

reasonable conclusion is that “personal” was used as a modifier

to limit an otherwise ambiguous term to a narrow group of people

— namely, those who are mentioned by name in the government

records in question.

This interpretation of the privacy interest was recognized by

this Court in Dep t of Justice v. Reporters Comm. for Free-

dom of the Press, 489 U.S. 749 (1989) (Reporters Commit-

tee). In that case, this Court noted that “both the common law

and literal understandings of privacy encompass the individual s

control of information concerning his or her person.” 489

U.S. at 763 (emphasis added). Although the Court stated that

the privacy interest identified by FOIA differs from both com-

8

mon law tort privacy and Constitutional privacy, it is clear that

those definitions inform the statutory meaning.‘

Under common law, “the right protected by the action for in-

vasion of privacy is a personal right, peculiar to the individual

whose privacy is invaded. The cause of action is not assignable,

and it cannot be maintained by other persons such as members

of the individual’s family, unless their own privacy is invaded

along with his.” Restatement (Second) of Torts § 6521, cmt. a

(1977). The Restatement also makes clear that no action may

be maintained by family members of a deceased individual whose

privacy was invaded, unless such action is specifically autho-

rized by statute. /d. cmt. b (emphasis added); see, e.g.,

Swickard v. Wayne County Med. Exam’r, 475 N.W.2d 304

(Mich. 1991); Cordell v. Detective Publ’ns, 419 F.2d 989 (6th

Cir. 1969);° but see Cox Broad. Corp. v. Cohn, 200 S.E.2d

* The Court, after a brief discussion of the dictionary definition of pri-

vacy, provided a footnote supporting definitions of privacy that were lim-

ited to an individual’s control over information about himself. Three defini-

tions were drawn from secondary sources: “Privacy . . . is the rightful claim

of the individual to determine the extent to which he wishes to share of

himself with others. . .;” “Privacy is the claim of individuals . . . to determine

for themselves when, how, and to what extent information about them is

communicated to others;” “[T]he right of privacy is the right to control the

flow of information concerning the details of one's individuality.” 489 U.S.

at 764 n.16 (citations omitted) (emphasis added).

> In Cordell, the defendant wrote an article concerning the murder of the

plaintiff's daughter. The Sixth Circuit ruled that the plaintiff could not bring

an action for public disclosure of private matters, emphasizing that such a

cause of action can only be asserted by subjects of the publication. The

court stated that “the right lapses with the death of the person who enjoyed

it, and one cannot recover for this kind of invasion of the privacy of a

relative, no matter how close the relationship.” 419 F.2d at 990-91. The court

went on to discuss the policy behind the rule:

The policy underlying these limitations is not hard to discern.

The law is not unwisely wary of actions for injury which is

purely emotional; the danger of spurious claims is too great.

As one court put it, “if the right asserted here were sustained,

it would be difficult to fix its boundaries. How distant a rela-

ee ee

SORE te dis be ore),

9

127 (Ga. 1973) (allowing father of deceased rape victim to bring

common law tort claim against company that broadcast the

victim’s name), rev'd on other grounds, 420 U.S. 469 (1975).°

Similarly, the Constitutional right of privacy does not extend

beyond death and does not descend to the heirs of the deceased.

United States v. Amalgamated Life Ins. Co., 534 F. Supp.

676, 679 (S.D.N.Y. 1982); Helmer v. Middaugh, 191 F.

Supp.2d 283, 285 (N.D.N. Y. 2002) (“Even assuming all of the

facts in favor of the plaintiff, a dead man does not have any

constitutional rights.”); Estate of Conner v. Ambrose, 990 F.

Supp. 606, 618 (N.D.Ind. 1997) (“After death, one is no longer

a ‘person’ within our constitutional and statutory framework and

has no rights of which he may be deprived.”).

No natural reading of the statutory language, without addi-

tional indications either in the statute or in the legislative history,

allows the conclusion that “personal privacy” was meant to ex-

tend beyond those individuals whose personal information is

contained in government records.

B. The FOIA Exemptions must be construed narrowly to

exclude “survivor privacy” interests.

1. The statute’s fundamental presumption of disclo-

sure compels a narrow interpretation of exemp-

tions.

The statutory language of FOIA carves out nine specifically

delineated exemptions to mandatory disclosure of government

tive could sue? At what relational distance does the danger of

feigned claims overcome the likelihood of real emotional dis-

tress?”

Id. (citations omitted).

® This Court in Cox did not consider the validity of the father’s claim that

his own privacy was violated through the publication of his daughter’s

name as the victim of a rape that ended in murder. Instead, this Court

deferred to the finder of fact on that question.

10

records. Those exemptions, like all of the statute’s provisions,

should be interpreted in light of the fundamental goal of the stat-

ute, which is to provide the fullest possible disclosure. Dep t of

Air Force v. Rose, 425 U.S. 352, 360 (1976) (quoting S. Rep.

No. 813, at 3 (1965), which states that FOIA carries a “basic

philosophy of full agency disclosure”); John Doe Agency v. John

Doe Corp., 493 U.S. 146 (1989).

The idea that statutory provisions should be interpreted in light

of the statute’s fundamental policy is not unique to FOIA. Itisa

widely accepted tenet of statutory interpretation. See, e.g.,

Crandon v. United States, 494 U.S. 152, 158 (1990) (holding

that statutory provisions should be interpreted in light of the “de-

sign of the statute and to its object and policy”); Richards v.

United States, 369 U.S. 1, 10 (1962); SEC v. Joiner, 320

U.S. 344, 350 (1943). Based on that interpretive guidance, it is

clear that, given multiple possible interpretations of the term “per-

sonal privacy,” this Court should select the meaning that best

furthers the goal of the fullest possible public access to govern-

ment records.

2. Petitioner has not provided evidence of Congres-

sional intent to expand privacy interests beyond

those of individuals specifically mentioned in gov-

ernment records.

As the Petitioner asserts, this Court has held that FOIA’s ex-

emptions “are intended to have meaningful reach and applica-

tion.” Pet'r Br. at 14 (quoting John Doe Agency, 493 U.S. at

152). Such “meaningful reach” is provided by an interpretation

given by Senator Hart, who sponsored the 1974 amendment

that created Exemption 7(C). During Senate floor debate, Sen.

Hart specifically described the personal privacy exemption as

“intended to protect the privacy of any person mentioned in the

requested files, and not only the person who is the subject of the

investigation.” 120 Cong. Rec. 17,033-34 (1974) (emphasis

added).

I]

Once a valid privacy interest is found under Exemption 7(C),

personal information contained in law enforcement records can-

not be disclosed unless the privacy interest is outweighed by a

public interest in what the government “is up to.” Reporters

Committee, 489 U.S. at 774. As Reporters Committee and

subsequent cases have shown, that public interest requirement

represents a significant hurdle for requesters. To erect an even

higher barrier for requesters by extending privacy interests to

those not mentioned or portrayed in government records would

undermine the basic philosophy and underlying aims of FOIA.

Had the exemption been intended to extend beyond those in-

dividuals explicitly mentioned in law enforcement records, Sen.

Hart’s remarks would have been likely to include some mention

of that. To infer that legislative intent, without more, would be to

disregard traditional common law and Constitutional notions of

privacy, and adopt a greatly expanded statutory definition of

privacy which is without support in either the plain language of

the statute or in the legislative history.

The Petitioner asserts that Congress’ failure specifically to ex-

clude “survivor privacy” from the statute provides evidence of

intent to include it. Pet'r Br. at 18. This assertion disregards the

role of the exemptions in the overall statutory scheme. The man-

datory disclosure of government information under FOIA can

be overcome only by an exemption created by “clearly delin-

eated statutory language.” Rose, 425 U.S. at 360-361 (citation

omitted). Failing to exclude an interest can hardly be seen as

embracing that interest, especially when it is one that Congress,

looking to the common law, would not expect to be included in

the notion of “privacy.” Congress also failed to specifically ex-

clude potential privacy interests of former bowling league team-

mates or grammar school friends, but it scarcely could be ar-

gued that such exclusions compel the judicial acknowledgment

of those interests.

12

Second, the Petitioner points to two memoranda from Attor-

neys General which appear to support an interpretation of Ex-

emption 7(C) that extends to family members or descendants.

Pet'r Br. at 18. Although it is not surprising that the Attorney

General would attempt to minimize the burden on the Justice

Department by narrowing the range of records that must be dis-

closed under the statute, these administrative interpretations have

no bearing on the legislative intent behind the statute. Nor should

they control this Court’s determination of the proper reach of

the statute’s exemptions. Agencies’ interpretations of statutes —

even those they are charged to enforce — are not controlling, and

agency decisions should not be “rubber-stamp[ed]” if they run

counter to the stated purposes of those statutes. Dep t of Navy

v. FLRA, 840 F.2d 1131, 1134 (3d Cir. 1988) (“[N]o defer-

ence is owed an agency’s interpretation of a general statute.”).

II. THE CASE LAW CITED IN SUPPORT OF “SURVIVOR

PRIVACY” IS INAPPOSITE OR FLAWED, AND

SHOULD NOT BE REGARDED AS BINDING PRE-

CEDENT IN THE INSTANT CASE.

Several cases that Petitioner contends recognize a familial or

“survivor privacy” interest under FOIA in fact merely affirm the

stated Congressional intention that FOIA’s privacy protections

extend to individuals who are named or depicted in records but

are not themselves the subject of the records. See Dep t of State

v. Ray, 502 U.S. 164 (1991); Marzen v. Dept of Health &

Human Servs., 825 F.2d 1148 (7th Cir. 1987); Lesar v. Dept

_ of Justice, 636 F.2d 472 (D.C. Cir. 1980). Other cases, such

as Katz v. Nat'l Archives & Records Admin., 862 F. Supp.

476 (D.D.C. 1994), are inapposite because FOIA and its ex-

emptions are not applicable to the requested materials. Another

case frequently cited by the Petitioner and others who seek a

pedigree for “survivor privacy” is New York Times v. NASA,

920 F.2d 1002, 1010 (D.C. Cir. 1990). The NASA opinion

was the product of a court that split 6-5 and stands as an ex-

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ample of tragic facts making bad law, a trait that is a hallmark of

many cases where courts have recognized “survivor privacy.”

A. Cases where the personal privacy interest belongs to

individuals named or depicted in the records sought

are inapposite.

In Dep t of State v. Ray, the Court upheld the redaction of

individuals’ names from summaries of interviews of returned Hai-

tian emigrants conducted by the State Department. These

records were requested by a Florida lawyer and his three cli-

ents, Haitian nationals seeking political asylum in the United States.

502 U.S. at 168. As part of immigration proceedings, the records

were sought in order to show that Haitians who attempted to

immigrate to the United States illegally and were subsequently

returned to Haiti would “face a well-founded fear of persecu-

tion.” Jd.

Many of the interview summaries contained “personal details

about particular interviewees” including “highly personal infor-

mation regarding marital and employment status [and] children.”

Id. at 175-176. Family members were named as a part of the

record and therefore had privacy interests independent from the

privacy interests of the interviewees. Read broadly, as Peti-

tioner urges, Ray would protect from disclosure any record that

could subject any family member — whether named in the record

or not — to “embarrassment in their social and community rela-

tionships.” Jd. at 176 (citation omitted). This would create not

a “survivor privacy” interest, but a familial privacy interest for

family members of the living. Such an interest would undercut

FOIA’s purpose by stretching the meaning of “personal privacy”

to encompass anyone who has a family member who has ex-

posed them to potential embarrassment.

Respondent Foster family cites Lesar as an example of judi-

cial recognition of “survivor privacy” to protect the privacy of

family members. Resp’t Br. at 24. It is true that, in Lesar, the

D.C. Circuit upheld the withholding of “information allegedly of

14

a personal nature concerning Dr. [Martin Luther] King [Jr.]’s

family and associates.” 636 F.2d at 487. However, the privacy

interests being weighed were not, as is often stated, “survivor

privacy” interests.’ Instead, the interests were those of family

members and associates who were themselves named in the

records. The same is true of Marzen v. Dept of Health &

Human Servs. , 825 F.2d 1148, where the Seventh Circuit rec-

ognized that the parents of a deceased baby could assert a pri-

vacy interest when their own actions and decisions to withhold

medical treatment were part of the record.

B. The court in Katz recognized a proprietary interest,

not a “survivor privacy” interest, in protecting autopsy

photos from disclosure.

Katz v. Nat'l Archives & Records Admin., 862 F. Supp.

476, has been cited frequently and erroneously, including by Pe-

titioner, as an example of judicial recognition of a “survivor pri-

vacy” interest. In Katz, the district court denied access to the

autopsy materials of President Kennedy out of concern for the

privacy of the Kennedy family. /d. But because of the unique

legal status of the Kennedy autopsy materials, the case cannot

be seen as precedent for judicial or Congressional recognition

of a broad “survivor privacy” interest under FOIA.

’ In Lesar, the D.C. Circuit made clear that it was protecting family mem-

bers and associates from direct invasions of their own personal privacy

interest:

[W]e must consider whether the district court correctly found

that the materials in question fell within the scope of Exemp-

tion 7(C). To recall briefly, these materials are of two types:

the names and other identifying data of FBI agents and infor-

mants involved in the FBI's investigations of Dr. King and

information allegedly of a personal nature concerning Dr. King’s

family and associates.

636 F.2d at 487. Although the D.C. Circuit did recognize a privacy interest in

avoiding “annoyance or harassment," as the Petitioner asserts, the court

made clear that this interest was held by the FBI agents named in the files,

not by King's family and associates. /d. at 487; Pet'r Br. at 23.

—

15

The Kennedy family donated the autopsy materials to the Na-

tional Archives by deed of gift under the Presidential Libraries

Act, placing restrictions on their access and disclosure as al-

lowed by the Act. /d. at 478; 44 U.S.C. § 397 (1964). In

1992, Congress recognized the validity of this deed of gift in the

President John F. Kennedy Assassination Records Collection

Act. Katz, 862 F. Supp at 482; Pub. L. No. 102-526, 106

Stat. 3443 (1992). The deference that Congress paid to the

Kennedy family was tied to a specific law, and cannot be read

as an endorsement of a general “survivor privacy” right granted

by Congress under some other statute. Indeed, Congress’ need

to specially codify the Kennedy family’s privacy interest indi-

cates that Congress did not recognize an established “survivor

privacy” interest inherent in FOIA.

Although the district court in Katz held, in the alternative, that

the privacy interest of the Kennedy family outweighed the public

interest in disclosure of the autopsy materials, the decision to

withhold the autopsy materials was affirmed on other grounds

by the D.C. Circuit. Katz, 862 F. Supp. 485-86, aff'd on other

grounds, 68 F.3d 1438, 1442 (D.C. Cir. 1995) (holding that

the autopsy materials are not and never were “agency records”

subject to FOIA).

Both Congress and the courts have recognized that the deed

of gift under the Presidential Libraries Act, not FOIA, governs

access to the Kennedy autopsy materials. Because access to

these materials is controlled by the Kennedy family, not the gov-

ernment, Katz cannot be seen as useful precedent for the devel-

opment of “survivor privacy” as a basis for government with-

holding of material under FOIA.

C. New York Times v. NASA illustrates why Congres-

sional, not judicial, action is required to create a “sur-

vivor privacy” interest under FOIA.

The Challenger disaster was an example of tragic facts making

bad law. See Favish v. Office of Indep. Counsel, 217 F.3d

16

1168, 1173 (9th Cir. 1999) (“It could, no doubt, be suggested

that the . . . astronauts so tragically destroyed were special cases,

leading to special solicitude for the feelings of their families”).

The five dissenting judges in New York Times v. NASA cor-

rectly argued that the majority erred when it held that the Chal-

lenger tape was a “similar file” under Exemption 6. 920 F.2d at

1010. The words of the dissent, although written in the context

of the threshold question of Exemption 6 (whether the tape was

a medical file, personnel file, or similar file), are equally appli-

cable to the issue of recognizing “survivor privacy” here: “The

result reached today defies the will of Congress as expressed in

the statute. We dissent because we believe that we are con-

strained to enforce the statute as it was written by Congress.”

Id. at 1011.8 The dissent noted that the majority opinion found

that “the withheld tape contains no information about the per-

sonal lives of the Challenger astronauts or any of their family,”

and concluded “[W]e are not at liberty to rewrite FOIA to de-

feat an-unseemly request. . . . Any needed repairs to the way in

which privacy concerns are protected . . . must be undertaken

by Congress, not by the courts.” /d. at 1018 n.10.

D. Surviving family members who are not named or de-

picted in the records sought do not have a personal

privacy interest under FOIA.

Courts have held that the survivors of individuals who are the

subjects of a government record have no “survivor privacy” in-

terest whatsoever that would justify withholding the records. In

Diamond v. FBI, auniversity professor sought disclosure of FBI

documents relating to government surveillance of academics,

including himself, during the McCarthy era. 532 F. Supp. 216,

* The D.C. Circuit in Accuracy in Media, Inc. v. Nat'l Park Serv. declined

to settle the dispute of whether the “survivor privacy” language of New

York Times v. NASA was holding or dictum. 194 F.3d at 123. Instead, the

court found “survivor privacy” via Campbell v. Dep t of Justice, 164 F.3d

20, 33-34 (D.C. Cir. 1998). Id

17

219(S.D.N.Y. 1981), aff'd, 707 F.2d 75 (2d Cir. 1983), cert.

denied, 465 U.S. 1004 (1984). The Second Circuit found that

the death of those persons mentioned in the requested files had

so diminished their privacy interests as to amount to waiver. Dia-

mond, 707 F.2d at 77. In finding that death essentially destroyed

the privacy interest of these named individuals, the court did not

weigh the privacy interest of the survivors of these individuals at

all. Jd. Because the court ordered the disclosure of these records

without placing “survivor privacy” interests in the balance be-

tween personal privacy interests and public interest, one can rea-

sonably infer that the court assigned no weight to these interests.

In Rabbitt v. Dept of Air Force, the court held that under

Exemption 6, the plaintiff was entitled to the medical records of

a ground crew member who was killed in an accident that also

killed plaintiff’s husband, but that she was not entitled to the

records of an airman who survived the accident. 383 F. Supp.

1065 (S.D.N.Y. 1974). The court reasoned as follows: “[W]e

fail to perceive any invasion of privacy in releasing the medical

report of the deceased ground crew member. Release of the

medical information relating to the surviving occupant falls in a

different category. ... [S]uch reports may contain embarrass-

ing information.” /d. at 1070. Similarly, in Kyle v. United States,

the plaintiff, the widow of an Air National Guard pilot killed in a

crash, was entitled to the autopsy report of the weapons officer

who was also killed in the crash. 1987 WL 13874 (W.D.N.Y.).

The court found no part of the autopsy report was protected

from disclosure under Exemption 6. /d. at 1.

Ill. LEGISLATURES HAVE THE POWER TO AMEND

OPEN-RECORDS STATUTES TO EXEMPT MATE-

RIAL FROM DISCLOSURE IF THEY DETERMINE

THAT PUBLIC POLICY SO REQUIRES, BUT IT IS

NOT THE ROLE OF THE COURTS TO DO SO.

The issue of public access to autopsy photographs became a

topic of national interest in early 2001, following NASCAR driver

18

Dale Earnhardt’s death resulting from a crash during the Daytona

500. Under Florida public records laws in place at the time,

autopsy photographs were considered public documents not

subject to privacy exemptions. See, e.g., Williams v. City of

Minneola, 575 So. 2d 683 (Fla. Dist. Ct. App. 1991). Four

days after her husband’s death, and one day before the first public

records request for autopsy photographs was made by the Or-

lando Sentinel, Teresa Earnhardt petitioned for a temporary

restraining order barring release of the photographs pending

consideration of the family’s right to privacy under the Florida

and U.S. Constitutions. See Earnhardt v. Volusia County Of-

fice of Med. Exam’r, 2001 WL 992068 (Fla. Cir. Ct. 2001).

The Florida legislature quickly amended the state’s public

records law to create Chapter 2001-1 expressly exempting au-

topsy photographs from disclosure. Fla. Stat. Ann. § 406.135

(West 2002). In Earnhardt, the court praised the legislature for

its wisdom “in recognizing that autopsy photographs, of all things,

should be presumptively private; that is, they will not be shared

with the public, even though they were in the very public hands

of the government, unless it can be established that good cause

exists” for their review. 2001 WL 992068 at 5. Although the

Petitioner relies heavily on the words of the Florida court, they

are little more than dicta supporting the actions of the state leg-

islature. See Pet'r Br. at 29.

The Florida court’s holding in Earnhardt offers no support

for the Petitioner’s contention that it is appropriate for this Court

to find a “survivor privacy” interest in the federal FOIA. To the

contrary, Earnhardt demonstrates that the only way in which

such an interest should be established is through an act of the

legislature.’

* The Florida statute created to protect Dale Earnhardt’s autopsy photo-

graphs from public disclosure was upheld as Constitutional in Campus

Communications, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. Dist. Ct. App.

2002), rev. denied, 848 So. 2d 1153 (Fla. 2003) (table no. SC02-1635).

19

Although the Earnhardt case is the most-publicized example

of a state legislature exempting autopsy photographs or reports

from open-records laws, other states have acted similarly. See,

e.g., 2002 S.C. Acts 350; Ind. Code Ann. § 5-14-3-4(a)(11)

(2003); Wyo. Stat. Ann. § 16-4-203(d)(i) (1977).'°

Legislatures have the authority to restrict public access to ma-

terials such as autopsy or death scene photographs if they deter-

mine that public policy so requires. Presumably, if courts are

compelled to order the disclosure of material that some find dis-

turbing because of a legislature’s failure to foresee the conse-

quences of its open-records laws, the legislature will act to change

the law. But it is not the role of the courts to do so, sua sponte.

E.g., Seastrunk v. Burns, 772 F.2d 143, 151 (5th Cir. 1985)

(“[E]ven where a legislative choice of policy is perceived to have

been unwise or simply not the optimum choice . . . federal courts

must defer to that legislative judgment.”).

IV. RECOGNIZING “SURVIVOR PRIVACY” UNDER

FOIA WOULD CREATE PRECEDENT FOR FUR-

THER EXPANSION OF STATUTORY EXEMPTIONS

THAT WOULD FRUSTRATE THE FUNDAMENTAL

PURPOSE OF THE STATUTE.

The finding ofa “survivor privacy” interest under FOLA would

do more than slightly adjust the calculus of disclosure. It would

completely reverse the underlying presumptions of the Act in

situations where first-person privacy interests have been waived,

diminished by public-official status, or extinguished by death.

FOIA is founded upon a presumption of disclosure of govern-

ment records. Rose, 425 U.S. at 360-36; Vaughn v. Rosen,

484 F.2d 820, 823 (D.C. Cir. 1973). If no valid personal pri-

vacy interest exists (in the absence of other applicable exemp-

'© Some states, however, have declined to exempt autopsy records and/or

photographs from open-records laws. See, e.g., A.B. 604, 2001-2002 Assem-

bly (Wis. 2002); H.B. 77, 2002 Leg., Reg. Sess. (Ky. 2002).

20

tions), the government must disclose the records. Where a valid

privacy interest is found, however, the dynamic is reversed. The

requester must then show not only that the documents will serve

a public interest, but that they will serve the narrowly-drawn

public intérest defined by this Court in Reporters Committee as

revealing “what the government is up to.” 489 U.S. at 773. Such

a radical change should not be made without a showing of Con-

gressional intent to do so.

A. “Survivor privacy” easily could evolve into a gener-

alized “family privacy” interest.

A “survivor privacy” right could significantly alter the disclo-

sure equation in cases involving public officials or cases in which

the subject of the records somehow has waived his privacy in-

terest. See, e.g., Nixon v. Adm’r of Gen. Servs., 433 U.S.

425 (1977); Lesar, 636 F.2d 472; Diamond, 707 F.2d 75. If

family members who survive a deceased individual who is the

subject of a government record also have a valid privacy interest

in preventing disclosure of that record, it is only logical that fam-

ily members ofa still-living subject of government records would

have an interest in preventing disclosure. Thus, even in situa-

tions where an individual has waived his privacy interest, the

government could withhold documents on the basis of family

members’ privacy rights, unless the requester could provide evi-

dence of a strong public interest as defined by this Court in Re-

porters Committee.

The circuit courts whose decisions are implicated in the instant

case tailored their “survivor privacy” exemption to address only

the interests of family members in avoiding graphic or emotion-

ally disturbing images of a deceased loved one. Accuracy in

Media, 194 F.3d 120; Favish, 217 F.3d 1168. That does not

mean, however, that future courts would continue to limit appli-

cation of family privacy interests to such a situation. Indeed, the

disclosure of records, such as photos, videotape or audiotape

of a loved one engaged in illegal or immoral acts would almost

21

certainly cause pain and humiliation to family members, whether

or not the subject of the record was alive.

The dangers of such a broad application are particularly sig-

nificant in the context of the privacy interests of public officials."

In such cases, a requester ordinarily would have to show only a

modest public interest to overcome an official’s diminished pri-

vacy interest. If, however, family members of these public offi-

cials could claim privacy interests in avoiding embarrassment or

humiliation that could result from disclosure of records concern-

ing their loved ones, the requester would ve forced to present

clear evidence of a Reporters Committee public interest strong

enough to overcome the family members’ undiluted privacy in-

terests in order to compel disclosure. As a result, the general

presumption of disclosure under FOIA would be dramatically

curtailed.

Moreover, as a result of such an interpretation, FOIA would

treat records concerning individuals who were married or had

living relatives differently from records conceming individuals who

were unmarried or had no living family members. Such an in-

equality in application is neither sensible nor appropriate in light

of the Act’s fundamental policy of full disclosure.

'' Despite the Petitioner’s assertions to the contrarv it is well accepted

that public officials’ privacy interests are reduced ‘y virtue of their posi-

tions. See, e.g., Lesar, 636 F.2d 472 (holding that FBI agents’ privacy inter-

ests related to their work activities are diminished); New York Times v.

Sullivan, 376 U.S. 254 (1964). Judge Starr also advocated such an approach

in his dissent in Reporters Comm. for Freedom of the Press v. Dep't of

Justice, 831 F.2d 1124, 1129 (D.C. Cir. 1987) (stating that, for guidance in

fleshing out the balance between privacy interests and public interest “it

seems sensible . . . to draw upon the substantial body of defamation law

dealing with public personages”).

22

B. The recognition of “survivor privacy” would greatly

increase the government’s burden under FOIA and

could lead to unjustified withholding of records that

should be disclosed.

Under FOIA, the burden is on the agency to justify withhold-

ing. If this Court recognizes a “survivor privacy” interest, the

burden of determining whether the survivors of deceased indi-

viduals are themselves alive or dead would fall on the govern-

ment. Schrecker v. Dep t of Justice, 217 F. Supp.2d 29, 36

(D.C. Cir. 2002) (“An agency must make a reasonable effort to

account for the death of a person on whose behalf the FBI in-

vokes exemption 7(C).”) (internal quotation marks omitted).

It requires a considerable expenditure of resources to deter-

mine whether named parties in requested files are alive or dead.

See, e.g., Diamond, 532 F. Supp. at 77 n.2 (finding that the

FBI, as part of “extensive search,” reviewed nearly 200,000

pages of documents to determine whether named parties had

waived privacy interests through death, public disclosure, or

consent); Campbell v. Dep t of Justice, 193 F. Supp.2d 29, 40

(D.D.C. 2001) (finding that the FBI employed 100-year test,'?

a publication entitled Who Was Who, and “general institutional

knowledge” to determine whether individuals were dead or

alive); Schrecker, 217 F. Supp.2d at 37 (using Campbell meth-

odologies as well as Social Security Death Index when social

security number of person was known).

Recognizing “survivor privacy” means taking an exponentially

more costly step. Once a named party is found to be dead, the

government will be forced to determine whether “those tied closely

to the deceased by blood and love” are themselves alive or dead.

Favish, 217 F.3d at 1173. This task is not as simple as merely

reading an obituary. At a minimum, for example, if an individual

'2 The 100-year test assumes that individuals who would be more than

100 years old are dead for the purposes of balancing private versus public

interests. Campbell, 193 F. Supp.2d at 40.

Ate imine a ee , kaa

_

23

who was the subject of a record died, an agency would be faced

with first determining who that person’s loved ones and close

relations were. Second, the agency would need to determine

which of these individuals were tied closely enough to the de-

ceased to have a “survivor privacy” interest. Third, the agency

would need to determine if these individuals were still alive and,

if so, whether they object or consent to release of the records.

Rather than undertaking such exhaustive searches, agencies

would instead be likely to err on the side of caution and to with-

hold all records concerning deceased individuals, whether iden-

tifiable surviving relatives existed at all. The case of Outlaw v.

Dep t of the Army, 815 F. Supp. 505 (D.D.C. 1993), illustrates

this problem. In Outlaw, a former army sergeant convicted by

court-martial of murder and who had served his sentence sought

to clear his name through analysis of death scene photographs of

the victim.'’ The Department of the Army denied the sergeant

access to the pictures on the basis of Exemptions 6 and 7(C).

The district court ordered release of the photographs, finding

that the government’s “concern for the privacy of the decedent’s

surviving relatives has not extended to an effort to locate them to

determine whether they object to the release.” Jd. at 505. And,

as the court noted, “Most important, there is no showing by

defendant that, as of now, there are any surviving relatives of the

deceased, or if there are, that they would be offended by the

disclosure.” /d. Nevertheless, costly and time-consuming liti-

gation resulted from the government’s decision to withhoid this

information.

If this Court recognizes a “survivor privacy” exemption to

FOIA, such scenarios would become commonplace. An agency

'? The Petitioner’s Brief raises the specter of “child molesters, rapists,

murderers, and other violent felons” requesting images of their victims.

Pet'r Br. at 29. Congress considered providing authority to the Attorney

General to limit requests by felons, but failed to pass such an amendment.

S. Rep. No. 221, at 29 (1983).

24

would withhold records, even from a requester seeking to un-

cover government illegality, fraud, or waste. Although FOIA

places the burden “on the agency to sustain its action,” 5 U.S.C.

§ 552(a)(4)(B), an agency could always claim that its search for

survivors continues in perpetuity, delaying disclosure indefinitely

lest it disclose information that implicates the “survivor privacy”

interest of an overlooked relative or loved one. In such a case,

the requester, for all practical purposes, would bear the burden

of disproving the existence of some hypothetical third-party

survivor’s privacy interest. Such a result directly contradicts the

language and intent of the statute.

If this Court recognizes “survivor privacy,” government agen-

cies will require guidance far beyond a holding that the personal

privacy of 7(C) “extends to the memory of the deceased held by

those tied closely to the deceased by blood or love.” Favish,

217 F.3d at 1173. In determining the breadth of “survivor pri-

vacy,” these agencies will need to be not only historians and

genealogists, but sociologists as well. How “close” does “tied

closely” mean? How is “family” defined? Does a deadbeat dad

have a “survivor privacy” interest because he is “tied by blood”

to the deceased? Does a domestic partner have this interest

because she is “tied by love”? Would a fiancée? Would an ex-

husband? Do the biological parents of an adopted child have a

“survivor privacy” interest? The Court would spur massive liti-

gation because the government would wish to sound the depths

of “survivor privacy.” If public policy dictates the creation of

such a privacy interest, it should be undertaken only through

informed, carefully-drafted and explicit legislation.

CONCLUSION

“Survivor privacy” is a legal concept without support in the

plain meaning of FOIA’s statutory text, in the legislative history,

or in common law or Constitutional notions of privacy. That has

not prevented some lower courts from creating an independent

privacy interest for survivors of deceased individuals mentioned

'

25

or depicted in government records. The impetus for such rulings

is obvious. Cases where “survivor privacy” arises often are

freighted with emotion, and it is difficult to fault the judicial in-

stinct to shield innocents from emotional distress. However,

courts have long resisted allowing claims based purely on emo-

tional harm. Moreover, the potential emotional harm that might

be caused by adhering to the language and intent of a statute is

not a sufficient basis for this Court to create exemptions for fam-

ily members or loved ones where Congress did not provide them.

This Court has the opportunity in this case to reaffirm FOLA’s

fundamental presumption that government records must be avail-

able to the public, and to revitalize the central idea that any ex-

emptions must be both specifically drawn and narrowly con-

strued.

This Court should rule that no such thing as “survivor privacy”

exists under the federal Freedom of Information Act. To that

end, this Court should affirm the decision of the Ninth Circuit

ordering disclosure of four photographs, and reverse that court’s

decision to withhold six others.

Respectfully submitted,

JANE E. KIRTLEY

Counsel of Record

SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW

School of Journalism and Mass Communication

University of Minnesota

111 Murphy Hall

206 Church Street, SE

Minneapolis, MN 55455

(612) 625-9038

COUNSEL FOR AMICUS CURIAE

August 21, 2003