ASHINGTON,
March 30 — The Supreme Court ruled unanimously on Tuesday that release of
the death-scene photographs of Vincent W. Foster, the Clinton
administration's deputy White House counsel who killed himself in 1993,
would be an unwarranted invasion of the privacy of Mr. Foster's surviving
family members.
The court said the photographs should be shielded from disclosure in a
suit brought under the Freedom of Information Act by a California lawyer,
Alan J. Favish, who said he doubted the conclusion reached in five separate
investigations that Mr. Foster committed suicide.
Mr. Favish's "bare suspicion" was an insufficient basis for overcoming
the family's privacy rights in light of the scope of the official
investigations, the court said, adding that courts should not have to
"engage in a state of suspended disbelief with regard to even the most
incredible allegations."
Justice Anthony M. Kennedy's opinion overturned a 2002 ruling by the
United States Court of Appeals for the Ninth Circuit, in San Francisco,
which found Mr. Favish was entitled to obtain 4 of the 11 photographs he had
sought. All 4 were partial views of Mr. Foster's body as it lay in Fort
Marcy Park in McLean, Va. One photograph showed a gun in Mr. Foster's right
hand.
Mr. Favish filed his lawsuit after Kenneth W. Starr, the independent
counsel whose office had the pictures at the time — they are now held by the
National Archives — refused to release the photographs. Mr. Foster's sister,
Sheila Foster Anthony, and widow, Lisa Foster Moody, intervened in the case
to oppose the suit.
Mr. Starr and the two family members invoked one of the Freedom of
Information Act's exemptions, Exemption 7(c), which provides that records or
information compiled for law enforcement purposes should not be disclosed if
their production "could reasonably be expected to constitute an unwarranted
invasion of personal privacy."
The case therefore presented two legal questions. The first was whether
the interest in "personal privacy" protected by the exemption could be
invoked not only by the individual whose records were sought, but also by
family members. If the answer was yes, the second question was whether
release of these photographs would be an unwarranted invasion of the
family's privacy. The answer required a balancing of the privacy interest
against the public interest in disclosure.
As to the family's privacy concerns, Justice Kennedy said respect for
bodies of the dead had a long tradition in culture and law, which Congress
presumably understood when it drafted the information act. He said the court
was aware of "the right of family members to direct and control disposition
of the body of the deceased and to limit attempts to exploit pictures of the
deceased family member's remains for public purposes."
Justice Kennedy said that while the family's interest could theoretically
be overcome by a strong public interest in disclosure, Mr. Favish had failed
to demonstrate such an interest in this case, National Archives v. Favish,
No. 02-954. He said the court would not "in this single decision" try to
define the public interest that might be sufficient under other
circumstances.
In this case, he said, where the person requesting the information is
trying to show that public officials acted negligently or improperly, "the
requester must produce evidence that would warrant a belief by a reasonable
person that the alleged government impropriety might have occurred."
Lucy Dalglish, executive director of the Reporters Committee for Freedom
of the Press, which filed a brief for Mr. Favish, said the ruling would
impede public disclosure of information about suspicious deaths. "I don't
know how you can expect requesters to prove a negative before they are
entitled to a record under the Freedom of Information Act," Ms. Dalglish
said.
Separately on Tuesday, the court ruled unanimously that customs officials
do not need a warrant or any particular degree of suspicion in order to
remove and search the gas tank of a vehicle that is crossing the border.
Chief Justice William H. Rehnquist wrote the opinion, United States v.
Flores-Montano, No. 02-1794, which overturned a ruling by the Ninth Circuit.
The case grew out of a search of a station wagon's gas tank at the Otay
Mesa, Calif., border crossing. Inside was 80 pounds of marijuana. "The
government's interest in preventing the entry of unwanted persons and
effects is at its zenith at the international border," Chief Justice
Rehnquist said.
Robert C. Bonner, commissioner of the Customs and Border Protection
Service, said the decision also applied to searches of cargo containers at
ports and would prove "vital to our mission" of intercepting terrorism at
the border.