Jewish World Review Dec. 8, 2003 / 13 Kislev, 5764

Martin Halstuk

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Court struggles with privacy issue in Vincent Foster suicide case | (KRT) Ever since White House deputy counsel Vincent Foster, a close friend of Bill and Hillary Clinton, was found dead by gunshot in a Washington-area park a decade ago, some on the political right have claimed foul play.

Several official investigations concluded that Foster committed suicide. Still, one of the murder theorists sued to obtain the death scene and autopsy photos in order to conduct an independent investigation. Foster's family and the government, meanwhile, counter-sued to block disclosure of some of the photos on ground their release would invade the family's privacy.

This week (Dec. 3) the U.S. Supreme Court heard arguments in this legal fight, which is shaping up to become a landmark Freedom of Information Act case. For the first time, the high court is considering whether surviving family members can claim a right of privacy to block disclosure of government records on someone who has died. The FOIA statue includes two privacy exemptions the government may use to justify withholding records. However, these privacy rights historically have applied to the person whose records are sought - not to family members. The court decision is expected next year.

It is hard not to have sympathy for Foster's family. The gruesome pictures will likely end up on the Internet and be exploited by some in the media. However, to side with the family would be to miss the overarching issue and what is really at stake - the possibility of a dangerous precedent the government can exploit so it can cloak future law enforcement activities in secrecy.

The Foster case came before the Supreme Court by way of the California federal courts after a lawyer, Allan J. Favish, sued the Office of the Independent Counsel in 1997 to obtain the photos under the Freedom of Information Act. The government eventually released dozens of Foster investigation pictures but withheld 10. The Court of Appeals for the 9th Circuit ordered the release of four of the 10 contested photos, but said the government can withhold the others, which judges found "graphic, explicit and extremely upsetting."

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Judges seemed swayed by Foster's sister, Sheila Anthony, who said releasing the photos "would set off another round of intense scrutiny by the media," and unsavory news coverage. Favish appealed to the Supreme Court to obtain the withheld photos. Meanwhile, the Independent Counsel wants the court to block the release of all 10.

The court's concerns for privacy were echoed during oral arguments this past week when Justice Stephen G. Breyer observed that respect for the dead and respect for survivors are not only traditions but also hallmarks of civilization. He openly speculated that release would "grossly invade the privacy of the family."

If the Office of the Independent Counsel prevails, it would mean a significant expansion of the privacy exemptions and further erosion of the rights of the public to examine government records. Already, the privacy exemptions account for more rejected FOIA requests than any of the law's other exemptions, of which there are nine in all. Also, in nearly four decades, the Supreme Court has heard seven suits on the FOIA's privacy exemptions, and it has ruled in favor of disclosure only once.

A similar case came up in 1990, when a District of Columbia federal court said privacy rights of family members were grounds to reject a New York Times request for an audiotape of the last conversations of the Challenger crew before their shuttle exploded in 1986. The government did release transcripts of the conversations. However, the Supreme Court never heard the Challenger case because the New York Times, apparently satisfied with the transcripts, did not appeal. This means the precedent set by the D.C. federal court is strictly limited and applies only to the District of Columbia.

A Supreme Court decision in the Foster case would apply to FOIA requests in all the nation's courts, creating a blanket survivor privacy-exemption. There is another important difference between the two cases: The Challenger case was decided before the Internet profoundly shook the media and legal worlds.

In fact, some Supreme Court justices acknowledged the powerful impact of the Internet on privacy during the hearing. It may be that justices decided to hear this case precisely because they want to tailor privacy law to fit the digital age.

That would be wrong. The issue is not simply the release of the grim photos to conspiracy theorists and the resulting real harm Foster's family probably would suffer. Rather, it is about whether the court should enable the government to operate behind closed doors in ever greater secrecy.

Martin E. Halstuk teaches media law in the College of Communications at Pennsylvania State University. He is a senior fellow at the Pennsylvania Center for the First Amendment. Comment by clicking here.


© 2003, Martin E. Halstuk