Posted on 10/26/2003 10:33:58 AM PST by Mark
Los Angeles Daily News
Battle over Foster photos going to high court By Nicholas Grudin Staff Writer
Soft-spoken Santa Clarita attorney Allan J. Favish will challenge the government's definition of privacy this winter in the U.S. Supreme Court, capping a decade-long quest for photographs of Clinton administration official Vincent Foster's dead body.
The elements of this story read like a crime thriller: the president's counsel and confidante found dead in a Washington-area park; a suspicious and tenacious attorney who sees holes in the government's determination of suicide; a contentious search for answers pitting the family of the deceased against the dogged lawyer.
And Dec. 3, the story will climax in the nation's highest court with a case that could redefine the term "personal privacy" under the federal Freedom of Information Act (FOIA): Will photos of Foster's corpse be released to Favish under the law, which grants broad public access to government documents, or will the court affirm that personal privacy applies to survivors of the dead, and in this case outweighs the public's right to information?
"This case represents an issue that our society repeatedly confronts, of how to balance the public's right to know, and interest in knowing, versus privacy," said Erwin Chemerinsky, a University of Southern California constitutional-law professor. "How do we balance the desire to see these photographs with the desire of the family not to have them published?"
Out of millions of requests filed with government agencies under FOIA every year, the most prevalent reasons for denials come from privacy exemptions.
In essence, "Favish v. Office of Independent Counsel" will determine the bounds of those exemptions, a decision that could either empower or constrict media organizations and private citizens seeking access to government documents.
The case has government agencies throughout the nation watching.
"This office is paying pretty close attention to it," said Michael Sherman, an attorney in the U.S. Department of Justice's Office of Information and Privacy.
"The Supreme Court is going to have to define the word privacy as it was used by Congress," Favish said. "This is going to affect a lot of Freedom of Information Act requests."
Suspicious Circumstances
On the afternoon of July 20, 1993, President Clinton's counsel, Vincent Foster, was found dead of a gunshot wound to the head in Ft. Marcy Park just outside Washington. After several federal investigations into the death, including one by Independent Counsel Kenneth Starr, Foster's death was ruled a suicide.
But Favish, a 48-year-old insurance lawyer from Tarzana who now lives in Santa Clarita, believes that the investigation into Foster's death was "either grossly negligent or a government cover-up." He wants to view original Polaroid photographs taken of Foster's body as it lay in Ft. Marcy Park.
Although widely discredited and officially refuted, theories abound that Foster was murdered to protect information regarding White House scandals ranging from Whitewater to the Branch Davidian shootout in Waco, Texas.
"The theory is that maybe he had some dirt on the Clintons -- he'd been a law partner of Hillary's for many years -- maybe somebody close to the Clintons didn't think he could keep his mouth shut on certain things," Favish said. "That's just speculation ... I just have to show that the government reports are demonstrably untrustworthy."
Favish has already received more than 100 photographs related to the Foster investigation, but none of the body. Of the 10 that he is still seeking, one of them, a picture of the gun in Foster's hand, was previously leaked and published in 1994 by several media organizations.
Favish says that evidence indicates several discrepancies in the government's investigation, such as witness reports saying that Foster's car was not in the Ft. Marcy parking lot at the time when he was supposed to have committed suicide; questions regarding the description of the gun that Foster used; and a witness's report that there was a wound to Foster's neck, which would conflict with official reports that he only suffered a single gunshot wound to the head.
But the Solicitor General's Office has harshly refuted Favish's assertions, saying that Foster's death has been exhaustively investigated and the case is closed.
"There is not a scintilla of evidence, either in the documents themselves or elsewhere in the record, that tends to impugn the integrity of the reports," the Solicitor General's Office wrote in a petition to the Supreme Court, referring to Favish's assertions that FBI interviews were inaccurate.
Department of Justice officials declined to comment further on the case.
Court Battles
In 1997, Favish filed a freedom of information request with the Office of Independent Counsel seeking several photographs of the Foster crime scene and autopsy. That office denied the request based on a "personal privacy" exemption to the federal law, which states that otherwise public documents can be withheld if they "could reasonably be expected to constitute an unwarranted invasion of personal privacy."
But Favish kept going. When his request to the OIC was denied, he filed a lawsuit with the U.S. District Court in Los Angeles.
His argument for the release of the photos is twofold. First, that the privacy exception should not apply to someone who is dead. And second, that even if it does apply to the family of the deceased -- as the government has argued it should -- it is in the public's best interest to see the Foster photos and set the record straight.
In response, the solicitor general and Foster's sister and widow argue that releasing the graphic images would be a violation of the family's privacy and that the public has nothing to gain from viewing the photos.
"The photographs at issue here reveal nothing about the government's conduct; they reveal only the visual depictions relating to the death of Vincent Foster," according to the solicitor general's petition to the Supreme Court.
Favish lost his initial District Court lawsuit, but appealed to the Ninth Circuit Court of Appeals, where he found more support. The case was sent back to Central District Court, where Judge William D. Keller determined that five out of the 10 photographs in question would be released.
That decision was appealed by the solicitor general and the Foster family, and the Ninth Circuit finally said that four of the 10 photographs could be released. Favish and the solicitor general petitioned that decision, and this month, the Supreme Court agreed to hear the case, one of about 75 that it likely will consider this term.
Supreme decisions
The Supreme Court has agreed to answer the following question: "Whether the Office of Independent Council properly withheld, under (the privacy exemption), photographs relating to the death of former Deputy White House Counsel Vincent Foster."
Prior decisions by circuit courts -- including one previously rejected request for the Foster photos in Washington -- support the rationale that privacy applies to families of the deceased.
According to the Ninth Circuit, the memory of a deceased loved one held by a parent, child, spouse or sibling is protected under the privacy exemption of the federal law.
"No court, and especially not this court, is going to say that dead people and their families have no right of privacy at all. It's just not going to happen," said Georgetown law professor David Vladeck, a noted open-government litigator.
But according to Favish, a 1989 Supreme Court ruling indicates otherwise.
"This court expressly described only two definitions of privacy and neither of them was a broad right to have one's memory of a deceased family member protected," Favish wrote in his merits brief to the high court.
If the court determines that the family has no right to privacy under the freedom of information statute, then the Foster photos will be released.
However, if the court determines that the family has a right to privacy, as Vladeck predicts, then the question will shift to the public value of the requested documents, a subjective decision that the Supreme Court could either rule on or send back to district court.
Vladeck says that the high court's acceptance of Favish's case could be an "ominous sign" for the Freedom of Information Act.
"The government believes, rightly or wrongly, that it has a strong institutional stake of keeping the law where it can withhold information that might impinge on the public servant's privacy rights."
In similar cases, such as requests for documents in the John F. Kennedy assassination and the space shuttle Challenger disaster, the government has won the right to withhold information, Vladeck said.
Several media organizations, including the American Society of Newspaper Editors, the Reporters Committee for Freedom of the Press and the Radio-Television Society of Newspaper Editors have filed "friend of the court" briefs supporting Favish's case.
If he wins, Favish says that he will consider writing a book on the case. He also will publish the photos on his Web site, www.allanfavish.com , where a full history of his numerous personal investigations can be found.
Nicholas Grudin, (661) 257-5255 nicholas.grudin@dailynews.com
Nothing better than killing a whole six pack of Dead Hillary's Lover Brew on football Sunday's.
If it's not suicide, then it was murder and the public has every right to know. Ther's a killer loose and we have got to find him. How do we know it wasn't murder? I'm not convinced it was suicide. Show me all the photographs and then I'll decide.
Wanting to know if Vince was killed, myself.
Altho I believe Ken Starr is honorable, I believe he is a person who would be willing to let certain things go untested for the betterment of his nation.
Vince Foster may have been killed in the WH. The activity after his death, within his office, INCLUDING ORDERS FROM HITLERY HERSELF, is very alarming.
Mr. Chemerinsky you are such a statist.
The balance is simple. If a family does not want photographs of their family member published, do not allow government to take the photos.
Once our government has possession of such photographs, all citizens have the unambigous right to few those photographs.
Amendment I
"Congress shall make no law...prohibiting...petition the Government for a redress of grievances."
It is only judicial dicta to the contrary.
There is not a "scintilla of (forensic) evidence" that Foster died where he was found. At the very least, his body was moved.
And he ate the hamburger lunch at his desk before he supposedly left the White House about 1:00PM. I don't know if there are tapes, but an Arkansas friend (a young lady who was at the White House that day) called a friend in Arkansas that afternoon hysterically saying Foster had killed himself in the White House parking lot.
If Vince Foster would have had a gun in his hand,
he'd be alive today.
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