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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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