Supreme Court Rules for "Survivor Privacy" in Favish
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.
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.
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 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.
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).
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
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.
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.
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.
"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.
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.
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
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").
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").
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.
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").
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).
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'").
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.).
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.
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.
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").
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
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.
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).
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
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