FOIA Post (2004): Supreme Court Rules for "Survivor Privacy" in Favish

May 13, 2003

Supreme Court Rules for "Survivor Privacy" in Favish

In a long-awaited decision that both embraces "survivor

privacy" and repudiates the loose "public interest" standard of the Court of

Appeals for the Ninth Circuit, the United States Supreme Court last week ruled

unanimously in the government's favor on the broad use of the law enforcement

privacy exemption of the Freedom of Information Act.

On March 30, the Supreme Court handed down its decision

in National Archives & Records Administration v. Favish, 124 S.

Ct. 1570 (2004), a landmark FOIA case in which the Court ruled that several

death-scene photographs of former Deputy White House Counsel Vincent W. Foster,

Jr., properly can be withheld from the public, and from media exploitation,

on the basis of FOIA Exemption 7(C). It declared that Exemption 7(C) "requires

us to protect, in the proper degree, the personal privacy of citizens against

the uncontrolled release of information compiled through the power of the state."

124 S. Ct. at 1580.

Mr. Foster was found dead of an apparent self-inflicted

gunshot wound more than a decade ago and was survived by several family members

whose personal privacy interests in "their own peace of mind" were protected

by the government, but not by the lower courts, under the FOIA. This made it

necessary for the case to be appealed to the Supreme Court for final disposition,

an appeal in which the government and the Foster family joined together to argue

for the proper application of Exemption 7(C) against the extremely narrow interpretation

of it that was advocated by the FOIA requester.

The Favish FOIA controversy sprang from

the controversy surrounding Mr. Foster's tragic death during the first year

of the Clinton Administration in 1993, a death that soon became the subject

of multiple "conspiracy theories." It began when Allan J. Favish, an attorney

and avowed "skeptic" of the repeated law enforcement investigations that found

Mr. Foster's death to have been a suicide, decided to press his own suit under

the FOIA for access to the photographs of Mr. Foster's body that were taken

by the United States Park Police upon its discovery at Fort Marcy Park in Virginia.

See FOIA Post, "Supreme

Court Decides to Hear 'Survivor Privacy' Case" (posted 5/13/03; supplemented

10/10/03) (providing full chronology of Favish case, including its

connection to "Whitewater" investigations of 1990s). Although the Court of Appeals

for the District of Columbia Circuit had ruled in favor of withholding the photographs

under Exemption 7(C), Favish persuaded federal district and appellate courts

in California to rule otherwise, and to order them disclosed, based upon an

asserted "overriding public interest" in disclosing purported evidence of suspected

government wrongdoing. See id.

The Supreme Court, however, had no difficulty in

reversing those disclosure orders, and it did so in a 9-0 decision that rejected

all of Favish's arguments as well as the singleminded disclosure rationale that

had been used by the Ninth Circuit. Writing for the Court, Justice Anthony M.

Kennedy first rejected Favish's argument that Exemption 7(C) could not be applied

to protect any "individuals whose personal data are not contained in the requested

materials." 124 S. Ct. at 1576. Favish argued that such a rule was required

by the Court's decision in Department of Justice v. Reporters Committee

for Freedom of the Press, 489 U.S. 749 (1989), which had dealt with a more

common type of record (a "rap sheet") in which the individual whose personal

privacy interests were being protected was the direct subject of the record

itself. Justice Kennedy made short work of this simplistic argument:

We disagree. The right to personal privacy

is not confined, as Favish argues, to the "right to control information about

oneself." Favish misreads [our opinion] in Reporters Committee and

adopts too narrow an interpretation of the case's holding.

124 S. Ct. at 1576 (citation omitted).

Justice Kennedy then reached the broader question

of "survivor privacy" -- i.e., whether this twenty-five-year-old concept of

privacy protection that has been applied by federal agencies under both Exemption

6 and Exemption 7(C) is a valid one. He answered that question once and for

all in the affirmative, noting first that Reporters Committee itself

had made it clear that "the concept of personal privacy under Exemption 7(C)

is not some limited or 'cramped notion' of that idea." Id. at 1576-77.

Instead, he declared, it is broad enough to protect surviving families' "own

privacy rights against public intrusions long deemed impermissible under the

common law and in our cultural traditions." Id. at 1578. He pointed

to our "well-established cultural tradition" of respecting death-scene images,

in particular, and "a family's control over" them throughout history. Id.

And he reasoned that Congress "legislated against this back[drop]" in crafting

Exemption 7(C) as a FOIA amendment in 1974 and then amending it in 1986. Id.

at 1579 (drawing additional support from two successive Attorney General memoranda

on FOIA that specifically extended privacy protection to "family members").

Accordingly, he held for the Court that "[the] FOIA recognizes surviving family

members' right to personal privacy with respect to their close relative's death-scene

images." Id.

In so doing, Justice Kennedy also made it quite

clear that the Court was recognizing the "survivor privacy" principle not on

the basis of any surviving privacy interest of Mr. Foster, i.e., not his "own

posthumous reputation or some other interest personal to him." Id.

at 1577. Rather, the principle was applied based upon the Foster family's "own

right and interest" in personal privacy protection. Id. He characterized

this interest as the privacy interest of the family members in being "secure

[in] their own refuge from [what recently has become] a sensation-seeking culture[,]

for their own peace of mind and tranquility." Id.

Next, Justice Kennedy addressed Favish's further

arguments that no privacy interest should be found in this case because Mr.

Foster was a high-level public official or because some photographs roughly

similar to the ones in question (but less graphic in nature) had over the years

reached the public domain. He gave relatively short shrift to each of these

arguments but dispatched them in no uncertain terms: "Neither the deceased's

former status as a public official, nor the fact that other pictures had been

made public, detracts from the weighty privacy interests involved." Id.

at 1580.

Turning to the other side of the FOIA's privacy

balance, i.e, the nature and existence of any "public interest" that might override

such identified privacy interests and warrant disclosure, Justice Kennedy noted

that a FOIA requester's attempt to establish such an overriding interest necessarily

takes him outside "the usual [FOIA] rule that the [requester] need not offer

a reason for requesting the information." Id. He stated that to make

a showing of public interest for any balancing against an identified privacy

interest, a FOIA requester must "establish a sufficient reason for the disclosure."

Id. Beyond the basic Reporters Committee requirement that

the records show the "operations or activities of the government," 489 U.S.

at 775, he emphasized that the requester "must show that the public interest

sought to be advanced is a significant one," 124 S. Ct. at 1580. Further, he

stated, the requester "must show [that disclosure of] the information is likely

to advance that interest" -- what he termed "the necessary nexus" between any

qualifying public interest and the particular records in question. Id.

at 1580-81.

Therefore, Justice Kennedy said, the Ninth Circuit

"erred" in failing to conduct the public interest analysis that it should have

conducted under Reporters Committee. Id. at 1581. The Ninth

Circuit had allowed Favish to present "'evidence and argument which, if believed,

would justify his doubts'" about the investigative findings of suicide, as if

that alone were sufficient -- but Justice Kennedy flatly stated that this "was

insufficient." Id. He pointedly found fault with the fact that the

Ninth Circuit had "required no particular showing . . . with credibility" of

any "actual" government misconduct before finding a qualifying public interest

that warranted disclosure. Id. Thus, he declared:

The [Ninth Circuit's] holding leaves Exemption

7(C) with little force or content. By requiring courts to engage in a state

of suspended disbelief with regard to even the most incredible allegations,

the [Ninth Circuit] transformed Exemption 7(C) into nothing more than a rule

of pleading. The invasion of privacy under its rationale would be extensive.

Id. What's more, Justice Kennedy observed,

the harm from following the Ninth Circuit's flawed rationale could never be

contained, because "[t]here is no mechanism under FOIA for a protective order

allowing only the requester to see whether the information bears out his theory,

or for proscribing its general dissemination." Id.

Consequently, Justice Kennedy held for a unanimous

Court that a FOIA requester must establish much more than Favish did as part

of the FOIA's privacy balancing process in such a case -- he "must produce evidence

that would warrant a belief by a reasonable person that the alleged [g]overnment

impropriety might have occurred." Id. And this higher standard must

be met, he repeatedly stressed, even "to put the balance into play." Id.

at 1582; see also id. ("Only when the FOIA requester has produced

evidence sufficient to satisfy this standard will there exist a counterweight

on the FOIA scale for the court to balance . . . ."). This is due in no small

part, he explained, to the fact that "[a]llegations of government misconduct

are 'easy to allege and hard to disprove.'" Id. Here, Justice Kennedy

concluded, Favish had not produced "any evidence" warranting disclosure under

the proper FOIA standard, id. at 1581, so the Ninth Circuit's disclosure

ruling merited only reversal.

Thus, the Supreme Court's decision in Favish

not only corrects an erroneous FOIA decision, it encompasses a full range of

privacy-protection considerations, covering both sides of the balancing process

undertaken for the FOIA's privacy exemptions, that can guide future FOIA decisionmaking.

Indeed, several distinct FOIA principals can be drawn from this landmark Supreme

Court decision:

• "Survivor privacy." The concept

of "survivor privacy" now is an entirely solid part of the FOIA landscape, with

the Supreme Court's imprimatur, and it stands firmly available for use in appropriate

(albeit by definition exceptional) cases. This vital FOIA-protection principle

was first applied by the government more than twenty-five years ago, to Department

of Justice records of its investigation into the assassination of Dr. Martin

Luther King, Jr., in the case of Lesar v. United States Department of Justice,

455 F. Supp. 921 (D.D.C. 1978), aff'd, 636 F.2d 472 (D.C. Cir. 1980).

See also FOIA Post, "Supreme

Court Decides to Hear 'Survivor Privacy' Case" (posted 5/13/03; supplemented

10/10/03) (tracing "survivor privacy" history). The Supreme Court's opinion

in Favish cites to this seminal case, as well as to subsequent ones

involving the assassination of President John F. Kennedy and the tragic deaths

of the astronauts on the Space Shuttle Challenger, as precedential

authority. See 124 S. Ct. at 1579-80. At bottom, this principle rests

on the propriety of protecting survivors, in cases of extraordinary sensitivity,

from "'disruption [to] their peace of mind.'" Id. at 1580 (quoting

district court decision in space shuttle case); see also id.

at 1577 (speaking of family's "own peace of mind and tranquility").

At the same time though, agencies applying this

important principle must be mindful that it logically requires reasonable certainty

that a survivor actually exists to merit such protection. See FOIA Post,

"Supreme Court Decides to Hear 'Survivor

Privacy' Case" (posted 5/13/03; supplemented 10/10/03) (citing as an example

a case in which the principle correctly was found not to apply because the agency

failed to verify the existence of any surviving family member). This does not

mean, of course, that a survivor must formally object and intervene in the matter

as the Foster family understandably went so far as to do in Favish.

See, e.g., 124 S. Ct. at 1577 (noting that the Foster family even took

the further exceptional step of submitting a "sworn declaration . . .

oppos[ing] the disclosure of the disputed pictures"). Indeed, as a matter of

longstanding practice born of practicality, the individuals whose personal privacy

interests are being protected under the FOIA rarely are aware of that process,

let alone involved in it, even when a FOIA request reaches litigation. Compare

Exec. Order No. 12,600, 3 C.F.R. 235 (1988) (providing system of such notification

and involvement for those who possess business interests, not any others); see

also Freedom of Information

Act Guide & Privacy Act Overview (May 2002), at 346 & n.92 (advising that

"there is no requirement that an agency notify record subjects of the intent

to disclose personal information about them").

As well, agencies also must remember that the Supreme

Court's adoption of "survivor privacy" does not at all alter the equally longstanding

rule of FOIA administration that an individual's privacy rights are extinguished

upon death. See FOIA

Update, Vol. III, No. 4, at 5 (advising that "[a]fter death, a person

no longer possesses privacy rights . . . [and that] privacy rights cannot be

inherited by one's heirs[, though] the disclosure of particularly sensitive

personal information pertaining to a deceased person may well threaten the privacy

interests of surviving family members or other close associates"). Significantly,

the Court's "survivor privacy" analysis in Favish eschewed any reliance

whatsoever on a recent potential variant of the concept that "focuse[d] on the

interests of the deceased person even apart from the interests of his or her

survivors." FOIA Post, "Supreme

Court Decides to Hear 'Survivor Privacy' Case" (posted 5/13/03; supplemented

10/10/03) (explaining that D.C. Circuit had suggested going so far as to protect

post-mortem "reputational" interests in some FOIA cases). As a matter of FOIA

policy, that decedent-based approach has never been embraced by the Department

of Justice, and it likewise was not embraced in Favish by the Supreme

Court. See, e.g., 124 S. Ct. at 1577 (distinguishing Court's "survivor

privacy" basis from any "reputation[al]" one). Thus, the proper application

of this principle involves protection of the interests of a decedent's survivors

themselves, with respect to information of such exceptional sensitivity that

its public disclosure reasonably could be expected to cause harm to them. But

in applying this principle as such, both agencies and the courts alike should

take heed of the Court's explicit recognition in Favish that unfortunately

today's "sensation-seeking culture" breeds the potential for "unwarranted public

exploitation" of FOIA-disclosed records. Id. at 1577, 1578.

• "Public figure" status. The Court's

decision in Favish also makes it clear that a person's status as a

"public figure," including by virtue of being a high-level public official,

should not be treated as a privacy-lessening factor under the FOIA. As another

matter of well-established FOIA policy, federal agencies have long followed

the rule that although "[t]he fact that persons have placed themselves in the

public eye may indeed lessen their expectations of privacy . . . such persons

surely do not forfeit all rights to privacy by virtue of that status." FOIA

Update, Vol. III, No. 4, at 5; see, e.g., Fund for Constitutional

Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 865 (D.C. Cir.

1981) (pointing out that the very "degree of" a privacy invasion "is indeed

potentially augmented by the fact that the individual is a well known figure").

In deciding Favish, the Supreme Court confronted

this factor because Mr. Foster was both a public figure at the time of his death

(or at least arguably so, based upon his professional involvement in precursors

to "Whitewater-related" matters) and a high-level official of the federal government

as well. Either one of those facts (or both together) was argued to have been

sufficient to lessen the privacy interests involved in the case, including (by

extension) those of Mr. Foster's survivors. Yet the Court pointedly found that

neither fact "detracts from the weighty privacy interests involved." 124 S.

Ct. at 1580. This means more than just the axiom that Mr. Foster and his family

did not lose all entitlement to the protection of their privacy interests due

to his position prior to his death; the fact that his status did not at all

"detract" from those interests in the Court's estimation means that they stood

entirely undiminished despite it. In the future, other potential beneficiaries

of the FOIA's privacy exemptions should be no less entitled to such treatment

and commensurate privacy protection. Accord Attorney

General's Memorandum for Heads of All Federal Departments and Agencies Regarding

the Freedom of Information Act (Oct. 12, 2001), reprinted in FOIA

Post (posted 10/15/01) (placing particular emphasis on the importance of

"preserving personal privacy" among the other interests that are protected by

the FOIA's exemptions).

• Public place. Likewise, the Favish

decision illustrates that the occurrence of an event in a public place is no

disqualifying factor for privacy protection under the FOIA either. One somewhat

unusual aspect of the Favish case is that Mr. Foster's suicide occurred

on national parkland, which is how the United States Park Police came to take

and possess the death-scene photographs that were at issue. The facts that Mr.

Foster's death occurred "in public," that the photographs were of course taken

in that public place, and that anyone else perhaps could have done likewise

had Mr. Foster's body been discovered there under different circumstances, all

gave rise to the question of whether the photographs were as entitled to protection

as they would have been had they been taken at the site of a suicide in a private,

or at least less public, place. It therefore is significant that those particular

facts, too, did not detract from the Court's valuation of "the weighty privacy

interests involved." 124 S. Ct. at 1580. So agencies should not be deterred

from according privacy protection in otherwise meritorious cases involving this

factor either. Cf. Shaw v. FBI, 749 F.2d 58, 61-62 (D.C. Cir.

1984) (observing in an Exemption 7(D) case involving "photographs of a public

act which might have been taken by any number of people" that "the mere fact

that an event occurred in public does not make it 'public' in the relevant sense

of 'generally known'").

• "Release to one is release to all."

The well-known maxim under the FOIA that "release to one is release to all"

was firmly reinforced in the Favish decision, where it was given specific

application to the consequences of potential media "use" of any information

disclosed. The Supreme Court in Favish took pains to articulate that

"[a]s a general rule, if the information is subject to disclosure, it belongs

to all" and that the potential consequences of FOIA disclosures must be viewed

accordingly. 124 S. Ct. at 1580; see also, e.g., Durns v. Bureau

of Prisons, 804 F.2d 701, 706 (D.C. Cir. 1986) (recognizing that "Congress

granted the scholar and the scoundrel equal rights of access" under the

FOIA), cert. granted, judgment vacated on other grounds & remanded,

486 U.S. 1029 (1988). In Favish, of course, this meant that the expected

"public exploitation" of the requested records through "attempts to exploit

pictures of the deceased family member's remains for public purposes" by the

media, among other things, were properly taken into consideration. 124 S. Ct.

at 1577. Favish thus stands as a reminder to all agencies that their

consideration of potential privacy invasions must include both what the requester

might do with the information at hand and also what any other requester (or

ultimate recipient) might do with it as well. See id. at 1581

("It must be remembered that once there is disclosure, the information belongs

to the general public" to do with it what it will.).

• Mere allegations. Because the Favish

case was one in which the FOIA requester sought to justify disclosure based

upon an asserted need to "show that responsible officials acted negligently

or otherwise improperly in the performance of their duties," id. at

1577, it stands first and foremost for the "public interest" proposition that

requesters' mere allegations of such wrongdoing are simply "insufficient." Id.

Pointedly recognizing that "[a]llegations of government misconduct are 'easy'"

to make, id. at 1582, the Supreme Court made it clear that a FOIA requester's

"bare suspicion" of government misfeasance or his personal "doubts" about government

integrity, no matter how strongly or perhaps genuinely held, can never be sufficient

to override an existing privacy interest. Id. at 1581 (pointing to

need for some "credib[le,] actual" wrongdoing to be shown); see also

id. (speaking of "the showing Favish must make to substantiate his

public interest claim"). As its opinion instructed, both agencies and the lower

courts must hold FOIA requesters to higher standards before disclosure under

the FOIA's privacy exemptions may be warranted on such an "agency wrongdoing"

basis; otherwise, the exemptions could be swallowed whole -- or, as the Court

put it, "transformed . . . into nothing more than a rule of pleading" that permits

mere allegations to hold sway. Id.

Indeed, if making an allegation of agency wrongdoing

were the only step that a FOIA requester had to take in order to be able to

override a privacy interest and obtain disclosure of information that otherwise

would be withheld to protect a personal privacy interest, then that privacy

interest would be practically worthless. See United States Dep't

of Justice v. Ray, 502 U.S. 164, 179 (1991) (reasoning exactly along such

lines); see also 124 S. Ct. at 1580 (emphasizing importance of "practical[ity]"

in privacy-protection decisionmaking). Unfortunately, the government's decades

of experience with FOIA administration teaches that there is no shortage of

potential FOIA requesters who might be willing to make such allegations (even

in what they would swear to be good faith, subjectively speaking) if that were

all that it would take to gain disclosure. Favish now stands as a further

bulwark against that.

• Specific "public interest" standard.

The higher standard adopted by the Court in Favish for the evaluation

of "agency wrongdoing" claims under the FOIA's privacy exemptions goes to both

the existence and quality of the evidence that is to be required. The Court

has explained that in seeking to apply some "clear" or "compelling" evidence

test in such a case an agency now specifically should consider whether the requester

has "produced any evidence that would warrant a belief by a reasonable person

that the alleged [g]overnment impropriety might have occurred." 124 S. Ct. at

1582. This is a standard not easily met -- and properly so, given the weighty

privacy interests that can be at stake -- because it specifically requires (1)

the submission of hard "evidence," rather than speculation, supposition, or

(as in Favish's case) doubts and suspicion, and (2) that the evidence be of

such character that would make a "reasonable person" believe in it as a basis

for overriding personal privacy interests. Thus, the Supreme Court stressed,

"courts must insist upon a meaningful evidentiary showing" in this regard. Id.;

see also id. at 1580 (speaking of need "to give practical meaning

to the exemption").

Further, it must be remembered that this additional

new standard for determining the existence and magnitude of a public interest

in "agency wrongdoing" cases does not replace the basic Reporters Committee

standard for determining the existence of any "public interest" generally; rather,

it applies above and beyond it. This means that as in any other case, an agency

considering a Favish-type public interest argument must first consider

whether there is a "qualifying" public interest in showing the operations or

activities of the federal government (as opposed to a state or local government,

for example), as required by Reporters Committee. See FOIA

Update, Vol. X, No. 2, at 6-7 ("FOIA Counselor: Exemption

6 and Exemption 7(C): Step-by-Step Decisionmaking"); see also 124 S.

Ct. at 1580 (reminding that any qualifying public interest "must [be] a

significant one").

• Required Nexus. Another closely

related but distinct FOIA principle contained in the Favish decision

is that especially in any case in which a FOIA requester seeks to override a

privacy interest on an "agency wrongdoing" basis, neither agencies nor the courts

should forget "the necessary nexus between the requested information and the

asserted public interest that would be advanced by disclosure." 124 S. Ct. at

1581; see also id. at 1582 (speaking of "the nexus required

between the requested documents and the purported public interest"). This refers,

of course, to the fact that a matter of qualifying public interest might surround

a particular case given the overall subject of the records involved, and exist

in sufficient magnitude to seemingly outweigh the privacy interest that is present,

but disclosure still will not be warranted unless the particular records

at issue themselves would serve that public interest if disclosed. See,

e.g., Halloran v. VA, 874 F.2d 315, 323 (5th Cir. 1989) ("[M]erely

stating that the interest exists in the abstract is not enough."). In other

words, there has to be an actual connection between the two -- or "nexus," in

legal terms -- and Favish serves as a reminder of that requirement.

To be sure, as the Court in Favish also reminded, FOIA decisions in

general should be guided by the FOIA's "prodisclosure purpose," 124 S. Ct. at

1582, but that does not mean that disclosures should be made "without limitations

at the expense of . . . personal privacy," id. at 1579.

Lastly, the Supreme Court's reversal of the Ninth

Circuit's decision in Favish finally should make it clear beyond anyone's

doubt that the Ninth Circuit's persistently crabbed views of "privacy protection"

in the face of spurious "public interest" arguments, which have left it alone

among all circuit courts of appeals, are now firmly rejected. See Freedom

of Information Act Guide & Privacy Act Overview (May 2002), at

449-51 & n.28 (drawing attention to the Ninth Circuit's "singularly skewed" FOIA rationales

on both sides of the privacy balance due to its refusal to follow the Supreme

Court's Reporter's Committee rules in recent years). Indeed, the Supreme

Court's total repudiation of the Ninth Circuit's disclosure rationales in Favish

necessarily sweeps broadly enough to discredit (or effectively overrule) that

circuit court's very similar prior Exemption 7(C) decision in Lissner v.

United States Customs Service, 241 F.3d 1220, 1224 (9th Cir. 2001),

as well as an aberrational Exemption 6 decision of that court, Dobronski

v. FCC, 17 F.3d 275, 278 (9th Cir. 1994), that more than ten years ago

ordered the disclosure of agency personnel records based upon nothing more than

a bare allegation of agency wrongdoing. See also Rosenfeld v. Dep't

of Justice, 57 F.3d 803, 812 (9th Cir. 1995) (Ninth Circuit decision departing

from the norm in finding that the "public interest in this case may not be served

without disclosing the names of the investigation subjects"); cf. Castañeda

v. United States, 757 F.2d 1010, 1011-12 (9th Cir. 1985) (pre-Reporters

Committee decision blithely overriding privacy interests based on the requester's

bare "assert[ion] that [an] agent was lying," which led to the Ninth Circuit's

conclusion that the matter was sufficiently "in doubt" to warrant disclosure).

Now, in the wake of Favish, all federal

agencies nationwide confidently can apply the FOIA's privacy exemptions in the

face of allegations of underlying impropriety, thereby preserving valuable privacy

interests in government records, and do otherwise only where the Supreme Court's

clear "public interest" standards are fully and properly satisfied.  (posted

4/9/04)


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