In the Supreme Court of the United States
OFFICE OF INDEPENDENT COUNSEL, PETITIONER
ALLAN J. FAVISH, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
THEODORE B. OLSON
Counsel of Record
ROBERT D. MCCALLUM, JR.
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
ROBERT M. LOEB
Department of Justice
Washington, D.C. 20530-0001
The Freedom of Information Act's Exemption 7(C) protects from disclosure "records or information compiled for law enforcement purposes" if their production "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C). The question presented is:
Whether the Office of Independent Counsel properly withheld, under Exemption 7(C), photographs relating to the death of former Deputy White House Counsel Vincent Foster.
PARTIES TO THE PROCEEDING
The respondents are Allan Favish, who was the plaintiff below, and Sheila Foster Anthony and Lisa Foster Moody, who intervened in the court of appeals to join petitioner in defending the district court's judgment, and who have filed their own petition for a writ of certiorari in this case, Sheila Foster Anthony, et al. v. Favish, No. 02-599.
In the Supreme Court of the United States
OFFICE OF INDEPENDENT COUNSEL, PETITIONER
ALLAN J. FAVISH, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the Office of Independent Counsel, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.
The per curiam order of the court of appeals (App., infra, 1a-3a) is not published in the Federal Reporter, but it is reprinted at 37 Fed. Appx. 863. A prior opinion of the court of appeals in this case (App., infra, 4a-43a) is reported at 217 F.3d 1168. The orders of the district court (App., infra, 44a-46a, 47a-62a) are unreported.
The court of appeals entered its judgment on June 6, 2002. The government's petition for rehearing was denied on August 16, 2002. App., infra, 63a-64a. On November 5, 2002, Justice O'Connor extended the time within which to file a petition for a writ of certiorari to December 14, 2002, and, on December 4, 2002, Justice O'Connor further extended the time for filing a petition to and including December 20, 2002. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
The relevant provision of the Freedom of Information Act, 5 U.S.C. 552(b)(7), is set forth at App., infra, 65a.
1. Through the Freedom of Information Act (FOIA), 5 U.S.C. 552, Congress attempted "to balance the public's need for access to official information with the Government's need for confidentiality." Weinberger v. Catholic Action of Haw., 454 U.S. 139, 144 (1981). To that end, FOIA Exemption 7(C) exempts from the government's general duty of disclosure "records or information compiled for law enforcement purposes" if their production "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C).
2. This FOIA suit arises from the July 1993 suicide of Deputy White House Counsel Vincent Foster. Foster was found dead in Fort Marcy Park in McLean, Virginia. The United States Park Police conducted the initial investigation of Foster's death at Fort Marcy Park and took color photographs, including ten pictures of Foster's body. Investigations by the Park Police, the FBI, and congressional committees in both the House of Representatives and the Senate concluded that Foster committed suicide. App., infra, 5a. The Office of Independent Counsel twice investigated Foster's death, first through Independent Counsel Robert Fiske, Jr., and later through Independent Counsel Kenneth Starr. Id. at 5a, 26a-28a. Mr. Fiske issued a 58-page report concluding that the "overwhelming weight of the evidence compels the conclusion * * * that Vincent Foster committed suicide." Id. at 26a. Three years later, Mr. Starr filed a 114-page report that concurred with the conclusion of every other investigation, explaining that "[t]he available evidence points clearly to suicide as the manner of death." Id. at 28a.
3. A public-interest group, Accuracy in Media, filed a request with the Park Police seeking the autopsy photographs and photographs of Foster's body at Fort Marcy Park. The government declined to provide the photographs. The Court of Appeals for the District of Columbia Circuit sustained that decision, holding that the photographs are exempt from mandatory disclosure under FOIA Exemption 7(C). Accuracy in Media, Inc. v. National Park Serv., 194 F.3d 120 (D.C. Cir. 1999), cert. denied, 529 U.S. 1111 (2000). The D.C. Circuit noted that Accuracy in Media's asserted public interest in disclosure was to uncover "government foul play" in the investigations into Foster's death. Id. at 124. Adhering to circuit precedent, the court held that, to establish that the resulting invasion of privacy would not be "unwarranted" under Exemption 7(C) in these circumstances, Accuracy in Media must show "compelling evidence that the agency denying the FOIA request is engaged in illegal activity, and access to the [photographs] is necessary in order to confirm or refute that evidence." Ibid. (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1205-1206 (D.C. Cir. 1991)). The D.C. Circuit concluded that "there is no persuasive evidence of such falsification, much less compelling evidence," and it determined that unsubstantiated allegations of governmental misconduct alone are insufficient to overcome the surviving family members' privacy interest under Exemption 7(C). Ibid.
4. a. Respondent, who was an attorney for Accuracy in Media in the D.C. Circuit case, filed his own FOIA request for the ten photographs, seeking them from the Office of Independent Counsel. The Office withheld them under Exemption 7(C). Respondent filed suit in the Central District of California. The district court sustained the government's invocation of Exemption 7(C). The district court explained that the public interest asserted by Favish- that of "ensuring that the [Office of Independent Counsel] conducted a proper and thorough investigation," App., infra, 58a-"is lessened because of the exhaustive investigation that has already occurred regarding Foster's death," ibid. The district court further held that Favish failed to "sufficiently explain how the disclosure of these photographs will illuminate any deficiencies of the [Office of Independent Counsel] investigation." Id. at 59a. The district court thus concluded that the family's privacy interest outweighed the public interest in disclosure. Ibid.
b. A divided panel of the Court of Appeals for the Ninth Circuit reversed and remanded the case. App., infra, 4a-43a. The court first agreed with every other circuit court to address the question that "the personal privacy in the statutory exemption [Exemption 7(C)] extends to the memory of the deceased held by those tied closely to the deceased by blood or love." Id. at 13a. With respect to the public interest in disclosure necessary to overcome that privacy interest, however, the majority departed from the approach taken by the D.C. Circuit. While the D.C. Circuit had required, with respect to these same photographs, a showing of compelling evidence (not mere allegations) of governmental misconduct to outweigh the family's privacy interest, Accuracy in Media, 194 F.3d at 124, the Ninth Circuit held that it was sufficient that Favish simply sought to probe "how the [Office of Independent Counsel] conducted its investigation of Foster's death," because Favish thus sought to examine "what [his] government is up to." App., infra, 10a. Evidence or knowledge of "misfeasance by the agency," the court concluded, is not necessary, regardless of how many "other agencies have engaged in similar investigations" already. Id. at 11a. The court then remanded the case for the district court to review the photographs in camera and balance "the effect of their release on the privacy of the Foster family against the public benefit to be obtained by their release." Id. at 14a.
Judge Pregerson agreed with the majority that Exemption 7(C) protects the privacy interests of surviving family members, App., infra, 14a, but filed a lengthy dissent disagreeing with the majority's remand of the case and its analysis of the public interest in disclosure, id. at 14a-43a. He reasoned that the government's Vaughn index1 was sufficiently detailed to make a remand for in camera review of the photographs unnecessary, id. at 18a-22a, and that the "pain and anguish" that petitioner concedes the Foster family would suffer, id. at 35a, outweighs the public interest in obtaining the photographs to facilitate a sixth investigation into the cause of Foster's death, id. at 38a-42a. Furthermore, Judge Pregerson explained that, although Favish alleges that the investigation was "'grossly incomplete and untrustworthy,'" id. at 38a, Favish "has made no showing that anyone connected with the [Office of Independent Counsel]'s investigations-including Mr. Starr-engaged in wrongful conduct, [or] failed in his or her official duties." Ibid. Finally, like the district court, Judge Pregerson could find no nexus between disclosure of the photographs and advancement of the asserted public interest, because Favish failed to demonstrate that the "photographs at issue will shed any light on the integrity of their investigations, the nature of the [Office of Independent Counsel]'s conduct, or the correctness of its conclusions." Ibid.
c. On remand, the district court ordered release of five of the ten photographs. App., infra, 44a-46a. Those five included one photograph of a gun in Foster's hand that had been published previously by Time magazine. Id. at 13a.
d. The government appealed, and the widow and sister of Vincent Foster (who are petitioners in No. 02-599) intervened on appeal. In a one-sentence, unpublished disposition, the court of appeals affirmed the district court's judgment insofar as it sustained the withholding of five of the photographs and required the release of four others. App., infra, 1a-2a. The court held, however, that one photograph ordered released by the district court had been properly withheld by the Office of Independent Counsel. Id. at 2a. The four photographs ordered released included the one previously published by Time magazine, which shows Foster's right hand holding the gun, two photographs of Foster's right shoulder and the right side of his torso, and one photograph of the top of Foster's head from a distance through heavy foliage. Id. at 45a-46a. None of the photographs depict Foster's face or the bullet wounds.
Judge Pregerson again dissented on the ground that the nine "never-before-released" photographs were properly withheld under Exemption 7(C). App., infra, 3a.2 The court of appeals' denied the government's and the Foster family's petitions for rehearing and for rehearing en banc. Judge Pregerson would have granted panel rehearing. Id. at 63a-64a.
REASONS FOR GRANTING THE PETITION
This case warrants an exercise of this Court's certiorari jurisdiction. A request for the same documents under the Freedom of Information Act has been resolved differently by the District of Columbia and the Ninth Circuits, based on different rules for analyzing the public interest side of the Exemption 7(C) balance. Nevertheless, because this Court has granted certiorari in United States Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms [ATF] v. City of Chicago, cert. granted, No. 02-322 (Nov. 12, 2002), which also involves an analysis of the public interest under Exemption 7(C) and how it should be weighed against the privacy interest in material withheld under that Exemption, the government suggests that the Court hold this petition pending the Court's decision in ATF v. City of Chicago and then dispose of it as appropriate in light of the decision in that case.
1. By its terms, Exemption 7(C) protects from disclosure law enforcement records the production of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C). There is no dispute that the photographs at issue here are law enforcement records. They were taken by law enforcement officials at the scene where a deceased gun-shot victim was found for the purpose of investigating the cause of death. In United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), this Court held that the application of Exemption 7(C) requires courts to weigh the public interest in the documents against the intrusion on privacy that disclosure could be expected to cause.
On the privacy side of the Exemption 7(C) balance, the Ninth Circuit properly ruled-consistent with all other circuits to address the question-that Exemption 7(C) protects the privacy interests of close surviving family members, as well as the subject of the documents. App., infra, 13a. Because of the correctness of that aspect of the court of appeals' ruling and the lack of any circuit conflict on the question, the government has opposed the petition for a writ of certiorari filed by Favish seeking this Court's review of the question whether Exemption 7(C) protects the privacy interests of survivors at all, and therefore whether the Ninth Circuit erred in sustaining the withholding of the other six photographs in this case. See Gov't Br. in Opp., Favish v. Office of Indep. Counsel, No. 02-409.
The Foster family members have filed their own petition for a writ of certiorari seeking review of the Ninth Circuit's decision insofar as it orders release of the same four photographs that are the subject of this petition. Anthony v. Favish, No. 02-599. In addition to challenging the Ninth Circuit's evaluation of the public interest in disclosure, the Foster family members also raise an issue concerning the standards for assessing privacy interests of survivors under Exemption 7(C). In its response to that petition, the government argues that the survivors' privacy issue does not warrant plenary review, and suggests that the petition otherwise be held pending this Court's decision in ATF v. City of Chicago, supra.
2. Three aspects of the Ninth Circuit's evaluation of the public interest side of the balance under Exemption 7(C) do, however, warrant certiorari.
a. The court of appeals' decision ordering the release of four of the photographs squarely conflicts with the decision of the D.C. Circuit exempting the same photographs from disclosure. Accuracy in Media, Inc. v. National Park Serv., 194 F.3d 120 (D.C. Cir. 1999), cert. denied, 529 U.S. 1111 (2000).3 Moreover, the D.C. and Ninth Circuits applied divergent analyses of the public interest under Exemption 7(C) in this setting, where the only asserted public interest is in uncovering governmental misfeasance. The Ninth Circuit held that evidence or knowledge of "misfeasance by the agency" is not necessary. App., infra, 11a. The D.C. Circuit, by contrast, has long held that, in light of the presumption of legitimacy that attaches to governmental actions, compelling evidence is necessary before an allegation of misconduct will provide a basis for ordering disclosure of private information under Exemption 7(C). Accuracy in Media, 194 F.3d at 124; Davis v. United States Dep't of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1205-1206 (D.C. Cir. 1991); Senate of the Commonwealth of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574, 588 (D.C. Cir. 1987) (R. B. Ginsburg, J.) (a "general interest in getting to the bottom of" an alleged murder conspiracy is "not in itself sufficient to outweigh the privacy concerns") (internal quotation marks omitted). The Fourth Circuit takes the same approach. Neely v. FBI, 208 F.3d 461, 464 (2000) (public interest is "negligible" in absence of a "compelling allegation of agency corruption or illegality"). See also KTVY-TV v. United States, 919 F.2d 1465, 1470 (10th Cir. 1990) ("broad unsupported statement of possible neglect" by government is insufficient to outweigh privacy concerns).
Furthermore, in Department of State v. Ray, 502 U.S. 164 (1991), this Court explained that unsubstantiated allegations of misconduct will not suffice to overcome the privacy interests of third parties under FOIA:
We are also unmoved by respondents' asserted interest in ascertaining the veracity of the [government's] interview reports. 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. We generally accord Government records and official conduct a presumption of legitimacy.
Id. at 179. The Court explained that such substantiation is necessary because,
[i]f a totally unsupported suggestion that the interest in finding out whether Government agents have been telling the truth justified disclosure of privacy materials, Government agents would have no defense against requests for production of private information.
While Ray indicated that bald allegations of governmental misconduct are insufficient to overcome a privacy interest under FOIA, the Court left open the question of "[w]hat sort of evidence of official misconduct might be sufficient to identify a genuine public interest in disclosure." 502 U.S. at 179. This case acutely illustrates the conflict in legal standards adopted by the Ninth Circuit and the D.C. and Fourth Circuits to resolve that question, because the same FOIA request has been adjudicated differently in the two circuits.4
b. Reporters Committee made clear that the relevant public interest, for purposes of Exemption 7(C), is the extent to which disclosure of the requested documents would "contribute significantly to public understanding of the operations or activities of the government." 489 U.S. at 775. That is "the only relevant public interest." Department of Defense v. FLRA, 510 U.S. 487, 497 (1994); see also Bibles v. Oregon Natural Desert Ass'n, 519 U.S. 355, 355-356 (1997) (per curiam). Accordingly, courts of appeals applying Reporters Committee have held that, no matter how meritorious the asserted public interest, disclosure will not be ordered unless the requested documents would actually advance that public interest. See, e.g., Hale v. United States Dep't of Justice, 973 F.2d 894, 900 (10th Cir. 1992) ("the person requesting the information must identify with reasonable specificity the public interest that would be served by release"), overruled on other grounds, 509 U.S. 918 (1993); Senate of the Commonwealth, 823 F.2d at 588 ("[T]he Senate has not adequately supported its 'public interest' claim with respect to the specific information being withheld. The district court, evaluating the DOJ's (7)(C) claims, must 'weigh[ ] the specific privacy invasion against the value of disclosing a given document.'"). Favish has made no such showing here.
Favish has asserted a generalized public interest in uncovering deficiencies in the Office of Independent Counsel's investigation. In particular, Favish asserts that he needs the photographs to investigate his allegations of a government-wide conspiracy to cover-up the "murder" of Foster. As Judge Pregerson explained in dissent (App., infra, 39a-40a), Favish identified four areas of the investigation in which he alleges the Office of Independent Counsel's (and the four other investigations) fell short.5 The first three areas of the investigation Favish cited concerned which "officials were present during Vincent Foster's autopsy," "witness identifications of Mr. Foster's car in Fort Marcy Park at the time of his death," and "possible discrepancies between the kind of gun that was reportedly found at the scene of Mr. Foster's death and the gun identified by his widow." Id. at 39a. The ordered release of photographs of Foster's right shoulder, arm, and torso taken at Fort Marcy Park, however, have no relevance to and can shed no light on which persons were present at the Park or the subsequent autopsy of Foster, or on the appearance of Foster's abandoned car in the parking lot some distance from where Foster's body was found. Only one of the four photographs the court of appeals ordered released depicts the gun in Foster's hand. That same photograph, however, was previously published by Time magazine, and "[m]any of the 119 photographs already released to Mr. Favish depict the gun that was found at the scene." Id. at 39a-40a. Favish made no showing, and the court of appeals offered no explanation, of how such a redundant disclosure could materially advance the public interest.
The remaining aspect of the investigation that Favish identified concerned alleged inconsistencies in the description of the entrance and exit wounds-specifically, whether the wounds were in Foster's head or neck. App., infra, 40a-41a. But the photographs that the court of appeals ordered released, by their description in the district court opinion based on the government's Vaughn index, do not show any part of Foster's head or neck or any aspect of the bullet wound or the bullet's path. They are pictures "focusing on Rt. side shoulder/ arm"; "Right hand showing gun & thumb in guard," which hand was positioned next to Foster's hip; "focusing on right side and arm"; and the "top of head thru heavy foliage." App., infra, 45a-46a. Having reviewed the pictures in camera, both the district court and the court of appeals were fully apprised that those photographs would do nothing to facilitate Favish's inquiry into the bullet's trajectory. Indeed, the district court, summarily affirmed by the court of appeals, could say nothing more than that the photographs "may be probative of the public's right to know," id. at 45a.
FOIA, however, does not give the public a generalized "right to know" personal details about private third parties that happen to be maintained in government files. Such information may be disclosed only if it would directly advance the public's knowledge of the government's activities and operations, and if the value of that knowledge outweighs the intrusion on third-party privacy:
[A]lthough there is undoubtedly some public interest in anyone's criminal history, especially if the history is in some way related to the subject's dealing with a public official or agency, the FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.
Reporters Comm., 489 U.S. at 774.
The photographs at issue here reveal nothing about the government's conduct; they reveal only visual depictions relating to the death of Vincent Foster. Moreover, disclosure of those photographs would be entirely ineffectual as a means of advancing Favish's asserted public interest. Favish made no showing that photographs of Foster's torso would facilitate his investigation of Foster's head injuries. Nor did the district court or the court of appeals, in their brief opinions ordering release, identify any such connection. In fact, it is only the photographs that the Ninth Circuit held were exempt from mandatory disclosure-the dramatically more graphic shots of Foster's head and face- that bear any potential relation to Favish's asserted interest in studying the bullet's path. Unable to release the only photographs relevant to the purported public interest because of the enormous intrusion on family privacy, however, the court had no equitable license to offset that withholding by ordering the release of different photographs that bear no relationship to advancing the public interest that Favish asserted.
c. The court of appeals also erred in holding that the multiple, lengthy investigations that had already taken place and the enormous volume of materials (including photographs) about Foster's death already in the public domain were completely irrelevant to evaluation of the public interest in disclosure of the particular photographs at issue here.6 The court of appeals concluded that "[n]othing in the statutory command shields an agency from disclosing its records because other agencies have engaged in similar investigations." App., infra, 11a. This Court has made clear, however, that the public interest in disclosure of the particular information sought must be measured against the amount of information that is already in the public domain. In Department of State v. Ray, supra, this Court upheld the withholding of the identities of repatriated Haitian refugees who had been interviewed by the State Department on the ground that the "public interest has been adequately served by disclosure of the redacted interview summaries." 502 U.S. at 178. Furthermore, in Reporters Committee, the Court emphasized that the public interest inquiry asks whether the disclosure of private information would "contribute significantly" to the public's understanding of governmental operations. 489 U.S. at 775. By giving no weight to the enormous volume of information already released by the government, the Ninth Circuit found the public interest requirement to be satisfied by information the disclosure of which would contribute only marginally, if at all, to public understanding.
The court of appeals' decision also conflicts with the decisions of other circuits, which have hewed to Ray and Reporters Committee. See, e.g., Halloran v. Veterans Admin., 874 F.2d 315, 324 & n.13 (5th Cir. 1989) ("Undoubtedly, the public has an interest in learning about the nature, scope, and results of the [Veterans' Administration]'s investigation of, and its relationship with, one of its contractors. That interest, however, has already been substantially served by the release of the redacted transcripts and the VA's report on the investigation, from which the full nature and extent of the VA's actions, as well as whatever the VA learned from its surreptitious recording of the conversations, can be discerned. Disclosure of the identities of the individual suspects employed by Santa Fe, and the identities of others unrelated to the investigation, will add little to the public's understanding of 'what [its] government is up to.'"); id. at 324 n.13; Marzen v. Department of Health & Human Services, 825 F.2d 1148, 1153-1154 (7th Cir. 1987) ("We agree with the district court that the plaintiff failed to establish a nexus between the release of the medical records and the public debate. While it is true that the circumstances surrounding the life and death of Infant Doe are of substantial public interest, release of the intimate details contained in the medical records would not appreciably serve the ethical debate since most of the factual material concerning the details of the case, including the final HHS report are already in the public domain.").7
In this case, when five investigations in different branches of the federal government (including by the Office of Independent Counsel) have uniformly reached the same result, the contribution to public understanding that a sixth investigation by an unsatisfied private citizen can make is marginal at best. The court of appeals thus erred in holding (App., infra, 11a) that FOIA compels courts to close their eyes to reality and simply accept at face value any asserted interest in additional investigation of already thoroughly probed matters.
The court of appeals relied on "famous cases" in history that "generate controversy, suspicion, and the desire to second guess the authorities." App., infra, 11a. But Favish wants a sixth guess, not a second guess, and he seeks that even though four of those prior investigations were undertaken by entities separate from Executive Branch "authorities." Furthermore, the court of appeals' approach overlooks that the interests of "someone who has spent many years studying every aspect of [a governmental] investigation in great detail * * * and the public interest are not necessarily identical." Stone v. FBI, 727 F. Supp. 662, 667 n.4 (D.D.C.), aff'd, No. 90-5065, 1990 WL 134431 (D.C. Cir. Sept. 14, 1990). That is because "the same bit of new information considered significant by zealous students of the * * * investigation would be nothing more than minutiae of little or no value in terms of the public interest." Ibid. (upholding withholding of information pertaining to the Robert F. Kennedy assassination). Accordingly, Exemption 7(C) requires balancing the interest of the general public in disclosure, not the "highly-specialized interests of those individuals who understandably have a great personal stake in gaining access to that information." Ibid. In short, while "speculat[ion] and argu[ing]" by the public are always appropriate in a democratic society, "speculation" alone cannot be enough under Exemption 7(C)-regardless of how much has already been disclosed-to outweigh the profound privacy interests of third parties in avoiding disclosure.
3. For the foregoing reasons, the Ninth Circuit erred in its assessment of the public interest in the disclosure of the four photographs of Foster's body that it ordered released in this case, and review by this Court is warranted. The Court, however, has granted review in United States Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms [ATF] v. City of Chicago, cert. granted, No. 02-322 (Nov. 12, 2002), to consider issues concerning the assessment of the public interest in disclosure and the weighing of that interest against privacy interests under Exemption 7(C). Accordingly, plenary review is not warranted in this case at the present time. Instead, the petition should be held pending the Court's decision in ATF v. City of Chicago.
The petition for a writ of certiorari should be held pending this Court's decision in United States Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms v. City of Chicago, cert. granted, No. 02-322 (Nov. 12, 2002), and then disposed of as appropriate in light of the Court's decision in that case.
THEODORE B. OLSON
ROBERT D. MCCALLUM, JR.
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
ROBERT M. LOEB
1 See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
2 Judge Pregerson agreed with the ordered release of the one photograph published by Time magazine. App., infra, 3a.
3 The D.C. Circuit case also included a request for autopsy photographs.
4 A similar issue under FOIA Exemption 7(C), concerning the assessment of the public interest based on allegations of agency misconduct, is presented in Oguaju v. United States Marshals Service, petition for cert. pending, No. 02- 5651. In its response to the petition in Oguaju, the government suggests that that petition also be held pending the Court's decisions in ATF v. City of Chicago.
5 The majority opinion failed to address the nexus problem raised by Judge Pregerson and the district court, App., infra, 59a.
6 Each Independent Counsel published lengthy reports; the Justice Department has released over one hundred photographs and hundreds of pages of material; and both congressional committees published reports along with volumes of evidence.
7 See also Bast v. United States Dep't of Justice, 665 F.2d 1251, 1255 (D.C. Cir. 1981) ("While these are important public interests, we note that they have been served to a large extent by the substantial release of information already made in this case. Thus, it is the incremental advantage to the public of releasing the undisclosed portions of the twelve documents which must be weighed against the invasion of personal privacy."); Miller v. Bell, 661 F.2d 623, 630-631 (7th Cir. 1981) (per curiam) ("[T]he substance of the information in the FBI files has been exposed in its entirety, and only the names of the FBI agents deleted. * * * The documents thus reveal the entire course of the investigation and the facts it uncovered. This information should be sufficient to permit the plaintiff to evaluate the thoroughness of the investigation. We find any public interest in pursuing the completeness and adequacy of the investigation beyond this point to be minimal in the extreme."), cert. denied, 456 U.S. 960 (1982); Stone v. FBI, 727 F. Supp. 662, 666 (D.D.C.), aff'd, No. 90-5065, 1990 WL 134431 (D.C. Cir. Sept. 14, 1990); cf. Cooper Cameron Corp. v. United States Dep't of Labor, 280 F.3d 539, 549 (5th Cir. 2002) (describing Favish's asserted public interest as "highly tenuous" in light of the previous investigations).
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
D.C. No. CV-97-01479-WDK
ALLAN J. FAVISH, PLAINTIFF-APPELLANT
SHELIA FOSTER ANTHONY, ET AL.,
OFFICE OF INDEPENDENT COUNSEL,
D.C. No. CV-97-01479-WDK
ALLAN J. FAVISH, PLAINTIFF-APPELLEE
SHELIA FOSTER ANTHONY, ET AL.,
OFFICE OF INDEPENDENT COUNSEL, DEFENDANT
D.C. No. CV-97-01479-WDK-05
ALLAN J. FAVISH, PLAINTIFF-APPELLEE
OFFICE OF INDEPENDENT COUNSEL, DEFENDANT-APPELLANT, AND SHEILA FOSTER ANTHONY, ET AL., DEFENDANT-INTERVENORS
[Filed: June 6, 2002]
Appeal from the United States District Court
for the Central District of California
William D. Keller, District Judge, Presiding
Submitted May 02, 2002**
San Francisco, California
Before: PREGERSON, NOONAN and O'SCANNLAIN, Circuit Judges.
The order of the district court of January 11, 2001 is AFFIRMED, except that photo 3-VF's body looking down from top of berm is to be withheld.
PREGERSON, Circuit Judge, dissenting:
I continue to maintain that the record before the district court before remand was "sufficiently detailed for the district court to resolve the issues in this case" without an in camera review of the ten photographs at issue. Favish v. OIC, 217 F.3d 1168, 1186 (9th Cir. 2000). Nevertheless, having personally viewed the ten photographs, I adhere to my prior conclusion that only the photograph of Foster's right hand clutching the gun
should be released because "[t]he public's interest in disclosure of the remaining nine, never-before-released post-mortem Polaroid photographs does not outweigh the privacy interests of Vincent Foster's surviving family in their nondisclosure." Id.
* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
** This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
D.C. NO. CV-97-01479-WDK
ALLAN J. FAVISH, PLAINTIFF-APPELLANT
OFFICE OF INDEPENDENT COUNSEL,
Appeal from the United States District Court for the Central District of California; William D. Keller, District Judge, Presiding
Argued and Submitted: Nov. 1, 1999
Filed: July 12, 2000
Before: PREGERSON, NOONAN and O'SCANNLAIN, Circuit Judges.
Opinion by Judge NOONAN; Partial Concurrence and Partial Dissent by Judge PREGERSON
NOONAN, Circuit Judge:
Allan J. Favish appeals the judgment of the district court granting summary judgment to the Office of Independent Counsel (the OIC) in his action under the Freedom of Information Act, 5 U.S.C. § 552 (1999) (the FOIA). Favish seeks 10 photos relating to the death of Vincent W. Foster, Jr., the Deputy Counsel to the President. Holding the OIC has not established that the photos fall within the privacy exemption of the FOIA, we reverse the judgment of the district court and remand for further proceedings.
FACTS AND PROCEEDINGS
On July 20, 1993, Foster was found dead in Fort Marcy Park. His death was investigated by the National Park Service and the Federal Bureau of Investigation and by a committee of the House and by a committee of the Senate. See Accuracy in Media v. National Park Service, 194 F.3d 120 (D.C. Cir. 1999). It was also investigated twice by the OIC. These inquiries all concluded that Foster committed suicide.
Favish is a lawyer not convinced by the reasoning of these prior investigators and skeptical of the thoroughness of their investigations. On January 6, 1997, he filed his request under the FOIA seeking from the OIC 150 photocopies of photographs compiled for law enforcement purposes. The photos were identified in the request by reference to Hearings Related to Madison Guaranty S & L and the Whitewater Corporation-Washington, D.C. Phase United States Senate, 103d Cong. (1994), with the exception of one photo of a gun in Foster's hand, identified as having been published by Time, March 18, 1996 and on ABC-TV. Favish sought higher quality copies of these already-published materials and copies of 9 unpublished photos. He offered to pay for the reproduction. On January 24, 1997, the OIC denied his request, stating that the photos were exempt under 5 U.S.C. § 552(b)(7)(A) (records whose "release could reasonably be expected to interfere with enforcement proceedings") and under § 552(b)(7)(C) (relating to personal privacy). Favish appealed this decision to a higher level of the agency. On February 19, 1997, the OIC denied his appeal, reiterating the exemptions asserted but not explaining how they applied.
On March 6, 1997, Favish filed this suit. On April 28, 1997, the OIC answered making no reference to any exemption and simply denying that Favish was "entitled to the relief sought." On January 5, 1998, the OIC filed a Vaughn index referring to the requested material; at the same time the OIC released 118 copies of the requested photos in black and white. Favish withdrew his request with respect to 21 photos. Eleven photos remained in dispute, as did Favish's request for color versions of the photos released. Both sides moved for summary judgment.
On March 11, 1998 the district court gave summary judgment to Favish as to his request for color photos, to be paid for by Favish, and as to a photo of Foster's eyeglasses. As to the 10 remaining photos, the court balanced the privacy interest of members of the Foster family against the public interest served by new copies of the photos, concluded that the public interest was outweighed by the privacy interest, and gave judgment for the OIC.
A Preliminary Question. Sua sponte, the court asked whether Favish was collaterally estopped by having been associate counsel for Accuracy in Media, the losing plaintiff in Accuracy in Media, supra. In response, arguing for estoppel, the OIC cited decisions of this circuit where privacy [sic] leading to estoppel has been found when a party to a judgment virtually represented "a person now sought to be estopped." Virtual representation, however, has been based on an express or implied legal relationship that makes the party accountable to the person sought to be estopped. United States v. Geophysical Corp. of Alaska, 732 F.2d 693, 697 (9th Cir. 1984); United States v. ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir. 1980). We have not found a case where a client is accountable to its lawyer. The identity of interest between Favish and Accuracy in Media is "an abstract interest in enforcement" of FOIA, an interest insufficient to create privity. ITT Rayonier, Inc., 627 F.2d at 1003. Collateral estoppel does not apply.
The Command and Purpose of the Statute. The alpha and omega of this case is the statute that prescribes the conditions for the release of records of a public agency when a person makes a request of the agency for a record within its possession. The statute in relevant part reads as follows:
(a) Each agency shall make available to the public information as follows:
. . . . .
(3)(A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed, shall make the records promptly available to any person.
5 U.S.C. § 552(a)(3)(A).
Three features of the statutory command are of particular note. The duty to make the information available to the public is mandatory ("shall make", repeated). The agency response is to be made to any request and to any person (emphasis supplied). The agency response is to be made promptly (no need for emphasis on this term aimed at the sluggishness all too characteristic of bureaucracies).
The words of a statute are, of course, dead weights unless animated by the purpose of the statute. The purpose of this statute is to shed light "on an agency's performance of its statutory duties." United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-73, 109 S.Ct. 1468, 103 L. Ed. 2d 774 (1989). The statute is a commitment to "the principle that a democracy cannot function unless the people are permitted to know what their government is up to." Id. (internal quotations omitted). The statute's "central purpose is to ensure that the Government's activities be opened to the sharp eye of public scrutiny." Id. at 774.
The Statutory Exemption Invoked. First, the OIC denied Favish's request on one ground that made no sense, viz, that release of the photos would interfere with law enforcement proceedings. It took over a year for the OIC to abandon this position. The bulk of the photos requested were already in the public domain. How higher quality photos released to Favish would interfere with law enforcement was not and has not been explained by an agency under a statutory duty to comply promptly with a freedom of information request.
Second, after the OIC did release new copies of the 118 photos it had withheld without adequate explanation, it did not release them in color, nor did it release a new copy of Foster's eyeglasses. The OIC has now released copies in color and a new copy of the eyeglasses photo, thanks to the order of the district court. Not appealing that order, the OIC tacitly admits that it had no legal right to withhold this material.
Third, in its answer to Favish's complaint, the OIC specifically referred to his request for a new copy of the photo published in Time, March 18, 1996 and on ABC-TV and stated that the OIC was "without sufficient information or knowledge to form a belief as to the truth of the allegations" that the photo had been published in the forms alleged. This denial was on its face implausible. How could the OIC not discover, with a modicum of diligence, whether a photo published in national news media had not come from its files? But the OIC did not abandon this posture in the ensuing litigation. In its brief on this appeal, the OIC declared that it did not concede that the photo had come from its files and added that Favish's argument "that the photograph already has been widely disseminated" should, therefore, be rejected. Only on appeal in this court, at oral argument, did counsel for the OIC state that it was true that the OIC possessed the photo referred to in Favish's request.
In the proceedings before the district court, although not in its answer, the OIC invoked this exemption:
(b) This section does not apply to matters that are
. . . . .
(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . .
5 U.S.C. § 552(b)(7)(C).
Here four terms are significant: "production", that is, the release of the records, is what must be expected to have the undesired result; "expected," meaning what may be predicted with probability by a reasonable person, that is, the standard is objective; "unwarranted", that is, unjustified by the purpose of the statute; and "privacy", that is, a right held dear in our democracy. The root meaning of privacy has perhaps been best expressed in the article that launched its legal career. The principle is "that of an inviolate personality." Samuel D. Warren and Louis D. Brandeis, The Right To Privacy, 4 Harv. L. Rev. 193, 205 (1890). The statutory term, it is worth adding, is modified by "personal" and is phrased as "privacy", not "privacy interest."
The statutory command coupled with the statutory exemption requires "balancing" of the personal privacy expected by a reasonable person to be invaded by the production of the records against the public purpose served by release. Reporters Committee, 489 U.S. at 776, 109 S. Ct. 1468. Deference to the determination of the agency that the exemption applies is not due; the burden of the proof that the request may be properly denied because of an exemption rests with the agency. The court "shall determine the matter de novo." § 552(a)(4)(B). The "burden is on the agency to sustain its action." Id.
Application of the Statute. Favish's request focuses on how the OIC conducted its investigation of Foster's death. So doing, his request is in complete conformity with the statutory purpose that the public know what its government is up to. Nothing in the statutory command conditions agency compliance on the requesting party showing that he has knowledge of misfeasance by the agency, although at times evidence of such knowledge has been referred to as enhancing the urgency of the request. See Hunt v. FBI, 972 F.2d 286, 289 (9th Cir.1992). Favish, in fact, tenders evidence and argument which, if believed, would justify his doubts; but it is not the function of the court in a FOIA proceeding to weigh such evidence or adjudicate such arguments. See Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989).
Nothing in the statutory command shields an agency from disclosing its records because other agencies have engaged in similar investigations. To anyone familiar with famous cases in the Old World or in the New it is a feature of famous cases that they generate controversy, suspicion, and the desire to second guess the authorities. The continuing discussion of the assassination of President Kennedy may suffice to make the point. The statute establishes a right to look, a right to speculate and argue again, a right of public scrutiny that can be denied only if the relevant statutory exemption applies.
The exemption invoked now is the privacy of "the Foster family members." The OIC relies on a declaration made under oath by Sheila Foster Anthony, Foster's sister, that release of the photos "would set off another round of intense scrutiny by the media," leading the family to be "the focus of conceivably unsavory and distasteful media coverage." The family members who would be distressed by this feared coverage are identified by Anthony as Foster's mother, his children, herself, and Foster's widow.
Strictly speaking, it is not "the production" of the records that would cause the harms suggested by the declaration but their exploitation by the media including publication on the Internet. But the statutory reference to what may "reasonably be expected" encompasses the probable consequences of the release. A preliminary question for decision is whether these consequences would invade the personal privacy of persons protected by the exemption. The question is not free from difficulty due to the imprecision of the statutory phrase.
The statute does not identify whose personal privacy may not be unjustifiably invaded. The statute therefore leaves open the possibility that the exemption does extend to others than the person to whom the information relates, although as a matter of first impression "personal" might seem to refer only to that person. As it happens, the question is not one of first impression in the courts. Release of the photos of the body of the assassinated president has been held to invade the privacy of members of the Kennedy family. Katz v. National Archives & Records Administration, 862 F. Supp. 476, 485 (D.D.C. 1994), aff'd on other grounds, 68 F.3d 1438 (D.C. Cir. 1995). Release of a tape of the last conversation of the astronauts on the Challenger has been blocked because it would invade the privacy of their families. See New York Times Company v. National Aeronautics and Space Administration, 920 F.2d 1002, 1009-10 (D.C. Cir. 1990) and 782 F. Supp. 628 (D.D.C. 1991) (on remand).
It could, no doubt, be suggested that the president or the astronauts so tragically destroyed were special cases, leading to special solicitude for the feelings of their families. That would be a constricted reading of the precedents. What the cases point to is a zone of privacy in which a spouse, a parent, a child, a brother or a sister preserves the memory of the deceased loved one. To violate that memory is to invade the personality of the survivor. The intrusion of the media would constitute invasion of an aspect of human personality essential to being human, the survivor's memory of the beloved dead.
We hold as a matter of law that the personal privacy in the statutory exemption extends to the memory of the deceased held by those tied closely to the deceased by blood or love and therefore that the expectable invasion of their privacy caused by the release of records made for law enforcement must be balanced against the public purpose to be served by disclosure.
Balancing is one of the most pervasive and most elusive metaphors in the law. We do not literally balance, because what is being brought into a comparison has no weight. To many, balancing sounds like assigning hypothetical weights. To others, it may suggest the kind of equilibrium the biological systems of the body achieve. Taken in either sense, balancing seems to require the exercise of discernment in a particular case. Our standard of review of such a question has been carefully set out in Schiffer v. The FBI, 78 F.3d 1405 (9th Cir. 1996). Where facts are not in dispute, we review de novo as a matter of law the district court's determination of "whether a document fits within one of FOIA's prescribed exemptions." See id. at 1409.
We do not, however, have before us all the relevant facts. The OIC represents that the 10 withheld photographs are "graphic, explicit, and extremely upsetting." That description is not true of the photo already published in Time and on television, showing a hand holding a gun. It may be true of the remaining 9 photos. But no court has ever seen them. The district court has discretion to decide a FOIA case on the basis of affidavits, and affidavits are in some cases sufficient. Quinon v. F.B.I., 86 F.3d 1222, 1229 (D.C. Cir. 1996). But when the agency affidavits are insufficiently detailed, in camera review is appropriate. Id. at 1228. Balancing without a knowledge of what the photos show would be an exercise in the air. Accordingly, we return the case to the district court to examine the photos in camera and to balance the effect of their release on the privacy of the Foster family against the public benefit to be obtained by their release.
Conclusion. The judgment of the district court is REVERSED and the case REMANDED for proceedings consistent with this opinion.
PREGERSON, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b)(7)(C) ("Exemption 7(C)"),1 Vincent W. Foster Jr.'s surviving family members have a cognizable privacy interest in the ten post-mortem Polaroid photographs of Vincent Foster's face and body that Appellant Allan J. Favish has requested. I also agree that the family's privacy interest in the post-mortem photographs taken at the scene of Foster's death by a self-inflicted gunshot wound must be balanced against the public's interest in disclosure. I disagree, however, that remand for an in camera inspection of the photographs is necessary before these interests can be properly balanced. I believe the affidavit and exhibits contained in the "Vaughn index"2 submitted by the Office of Independent Counsel ("OIC") are sufficiently detailed to justify withholding these photographs under Exemption 7(C). I also believe that the district court properly balanced the family's privacy interest against the public's interest in the production of the photographs and concluded that their disclosure "'could reasonably be expected to constitute an unwarranted invasion of [the family's] personal privacy.'" See Hunt v. FBI, 972 F.2d 286, 287-89 (9th Cir.1992) (quoting 5 U.S.C. § 552(b)(7)(C)). On this basis, I would hold that the nine, never-before-released post-mortem Polaroid photographs of Foster's face and body are exempt from disclosure under Exemption 7(C). I would, however, order the release of the photograph of Foster's right hand clutching the gun, which previously appeared in Time Magazine and other media.
I. The Vaughn Index
A. General Principles
In a FOIA case, the government agency seeking to withhold requested documents has the burden of prov-ing the applicability of any FOIA exemption claimed, see Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996), and "the district courts are to review de novo all exemption claims advanced" by the government, King v. United States Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). Because the agency has sole access to the withheld documents, the ordinary rules of discovery do not operate in a FOIA case to "give each party access to the evidence upon which the court will rely in resolving the dispute between them." Weiner v. FBI, 943 F.2d 972 (9th Cir. 1991). "'This lack of knowledge by the party seeking disclosure seriously distorts the traditional, adversary nature of our legal system[ ].'" Id. (quoting Vaughn, 484 F.2d at 824) (alteration in original). To correct this imbalance, the courts devised the Vaughn index requirement, which may be imposed on government agencies seeking to withhold documents requested under FOIA. See id.; see also Fiduccia v. United States Dep't of Justice, 185 F.3d 1035, 1042 (9th Cir. 1999) (noting that "[t]here is no statutory requirement of a Vaughn index or affidavit.").3
"The purpose of the Vaughn index is to 'afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholdings.'" Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995) (quoting Wiener, 943 F.2d at 977). The Vaughn "index functions to restore the adversary process to some extent, and to permit more effective judicial review of the agency's decision." Wiener, 943 F.2d at 977-78. "Consistent with its purpose, a Vaughn index is not required where it is not needed to restore the traditional adversary process." Wiener, 943 F.2d at 978 n.5. For example, a Vaughn index is unnecessary where "the FOIA requester ha[s] acquired sufficient facts to permit the adversary process to function." Id. (citing Brown v. FBI, 658 F.2d 71, 74 (2d Cir. 1981)). "[W]hen a FOIA requester has sufficient information to present a full legal argument, there is no need for a Vaughn index." Minier, 88 F.3d at 804.
To fulfill its purpose, a Vaughn index must "identify each document withheld, the statutory exemption claimed, and [provide] a particularized explanation of how disclosure of the particular document would damage the interest protected by the claimed exemption." Id. at 977. The Vaughn index may consist of detailed affidavits or other evidence "showing that the information logically falls within the claimed exemptions." Minier, 88 F.3d at 800 (citation omitted). Such affidavits may not be "vague" or merely "conclusory," King, 830 F.2d at 219, but should disclose "as much information as possible without thwarting the [claimed] exemption's purpose," Wiener, 943 F.2d at 978 (citation omitted) (alteration in original).
B. The Sufficiency of the OIC's Vaughn Index
The majority opinion states that the OIC's Vaughn index is insufficiently detailed with respect to the ten post-mortem Polaroids at issue on appeal4 because the OIC described these photographs as "graphic, explicit, and extremely upsetting," including the photograph depicting Vincent Foster's hand clutching the gun. Majority Op. at 1174. According to the majority opinion, because the latter photograph is not "graphic" and no court has ever seen the nine other photographs, "[b]alancing [the public's interest in their disclosure against the personal privacy interest in nondisclosure] without a knowledge of what the photos show would be an exercise in the air." Id. On this basis, the majority concludes that remand for an in camera inspection of the photographs is necessary. I disagree.
The fact that no court has seen these photographs is not dispositive on the question whether in camera review is required. If that were the litmus test for when in camera review should be undertaken, in camera review would be required in almost every FOIA case. That is not what FOIA requires. Under FOIA, "the decision to conduct an in camera review is committed to the broad discretion of the trial court judge." Quinon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (citations omitted); see also 5 U.S.C. 552(a)(4)(B) (Supp. 1999). "The in camera review provision . . . is designed to be invoked when the issue before the District Court could not otherwise be resolved; It . . . does not mandate that the documents be individually examined in every case." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978) (emphasis added). Thus, "an in camera review should not be resorted to as a matter of course, simply on the theory that 'it can't hurt.'" Quinon, 86 F.3d at 1228 (emphasis added).
I believe that the OIC's Vaughn index's description of the ten post-mortem Polaroid photographs is sufficiently detailed for the district court to resolve the issues in this case. Indeed, it is unclear exactly what an in camera review would add to the district court's already thoughtful and thorough analysis of the issues here.
The OIC's Vaughn index did not just describe the photographs as "graphic" as the majority opinion suggests. The index contained a general narrative description of the nine post-mortem photographs, which stated:
The material withheld is a photograph of Mr. Foster's body in Fort Marcy Park. Disclosure of this photograph would cause Mr. Foster's surviving family members a great deal of anguish and reasonably can be expected to constitute an unwarranted invasion of their personal privacy. The disclosure of this graphic picture would shed no light on how the government performs it[s] statutory duties. The material therefore is exempt from disclosure under FOIA Exemption (b)(7)(C).
The OIC's Vaughn index also included a photocopy of the FBI "Receipt for Property Received/Returned/
Released/Seized" ("the FBI Receipt") that set forth a handwritten description of the ten post-mortem Polaroid photographs and eight other photographs5 that were taken by the National Park Service at the scene of Vincent Foster's death in Fort Marcy Park. The FBI Receipt uses Vincent Foster's initials, "VF," and describes the ten post-mortem Polaroids as follows:
VF's body-looking down from top of berm
... VF's body-focusing on face . . . VF's body- focusing on rt. side shoulder/arm
* * * * * *
... right hand showing gun & thumb in guard
* * * * * *
... VF's body taken from below feet
... VF's body focusing on right side & arm
... VF's body focus on top of head thru heavy foliage
... VF's body focus on head & upper torso
... VF's face-looking directly down into face
... VF's face-Taken from right side focusing on face & blood on shoulder. . . .
No one disputes that Vincent Foster died when a .38 caliber revolver was placed in his mouth and the trigger was pulled. It is therefore difficult to understand just how much more detail the OIC would have had to provide to satisfy the majority. Certainly, what the OIC did provide was "as much information as possible without thwarting the purpose of the exemption claimed." Wiener, 943 F.2d at 979.
More importantly, Favish does not argue with the OIC's description of what the photographs depict (e.g., the head, face, or body of Vincent Foster). Nor does he suggest that the OIC's description of these photographs was provided in bad faith. His argument is with how the OIC interpreted the photographs and the conclusions the OIC drew from them. In particular, Favish disputes the OIC's conclusion that the photographs establish that Foster committed suicide. Generally speaking, in camera inspection would be appropriate where a FOIA request specifies only the kind of information sought and the Vaughn index provides insufficient detail for the district court to determine whether the withheld documents qualify for the claimed exemption. See Wiener, 943 F.2d at 978-79. But where, as here, the Vaughn index provides (1) sufficient detail to permit meaningful review of the exemptions claimed, (2) there is no evidence of bad faith on the part of the governmental agency, and (3) "the dispute turns on the . . . parties' interpretations of [the withheld] documents," not their contents, in camera review may not be necessary. Quinon, 86 F.3d at 1228. Given such circumstances, I cannot agree with the majority opinion's conclusion that the district court abused its discretion in declining to conduct an in camera review in this case.
Finally, the record and discussion infra clearly establish that Favish had "sufficient information [about the post-mortem photographs] to present a full legal argument" in this case and in another FOIA case presented to the Court of Appeal for the District of Columbia. See Accuracy in Media, Inc. ("AIM") v. National Park Service, 194 F.3d 120 (D.C. Cir. 1999), cert. denied, 529 U.S. 1111, 120 S. Ct. 1966, 146 L. Ed. 2d 797 (2000). AIM's FOIA case sought black and white copies of precisely the same photographs that Favish seeks color copies of here. As AIM's co-counsel, Favish wrote the reply brief considered in AIM's appeal to the D.C. Circuit. That reply brief is in large measure identical to the appellate brief filed in his appeal to this court. The D.C. Circuit held the photographs exempt under Exemption 7(C). See id. at 123-25. In so ruling, the court rejected the same claim about the Vaughn index that Favish makes in this case, viz: "that the Vaughn index falls short in not revealing just how graphic each of the photos is." Id. at 125. As the D.C. Circuit stated: "Given the subject matter, we cannot imagine any photos that could both elucidate the true nature of Foster's wounds and yet not be disturbingly graphic." Id. I agree.
II. Exemption Under 7(C)
A. General Principles
Having determined that in camera review is unnecessary because the factual basis for the district court's decision is sufficient, the next issue is whether the OIC properly withheld the post-mortem Polaroid photographs under Exemption 7(C). Although FOIA's exemptions " 'must be narrowly construed,' . . . the[se] . . . exemptions are intended to have meaningful reach and application." John Doe Agency v. John Doe. Corp., 493 U.S. 146, 152, 110 S. Ct. 471, 107 L. Ed. 2d 462 (1989) (quoting Department of the Air Force v. Rose, 425 U.S. 352, 361 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976)). Congress enacted Exemption 7(C) and the other FOIA exemptions because it "'realized that legitimate . . . private interests could be harmed by release of certain types of information.'" Id. at 152, 110 S. Ct. 471 (quoting FBI v. Abramson, 456 U.S. 615, 621, 102 S. Ct. 2054, 72 L. Ed. 2d 376 (1982)). Thus, Exemption 7(C) permits the government to withhold documents "compiled for law enforcement purposes, but only to the extent that [the government establishes that] the production of such records could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . ." 5 U.S.C. 552(b)(7)(C); see also Schiffer v. FBI, 78 F.3d 1405, 1409-10 (9th Cir. 1996). To meet its burden, the government need show "only that an unwarranted invasion of privacy could be reasonably expected, not that it will inevitably occur." Hunt, 972 F.2d at 288.
In determining whether the government has met its burden of proof, "a court weighs 'the public interest in disclosure against the possible invasion of privacy caused by the disclosure.'" Id. at 1409. (quoting Hunt, 97 F.2d at 287). The "sole cognizable public interest for FOIA is the interest 'to open agency action to the light of public scrutiny,' to inform the citizenry 'about what their government is up to.'" Rosenfeld v. United States Dep't of Justice, 57 F.3d 803, 811 (9th Cir. 1995) (quoting Department of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 772-73, 109 S. Ct. 1468, 103 L. Ed. 2d 774(1989)). The "'identity of the requesting party' . . . [thus has] 'no bearing on the merits of his [ ] FOIA request.'" Schiffer, 78 F.3d at 1411 (quoting Reporters Comm., 489 U.S. at 771, 109 S. Ct. 1468) (second alteration in original).6 Rather, "[w]hether disclosure of a document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to [this] 'basic purpose . . . .'" Reporters Comm., 489 U.S. at 772, 109 S. Ct. 1468 (internal citation omitted) (emphasis added).
To determine whether the government met its burden of proof concerning the applicability of Exemption 7(C) to the withheld Polaroid photographs, an understanding of the government's actions concerning Vincent Foster's death is necessary. See Wiener, 943 F.2d at 985 ("[T]he public interest in disclosure, and the proper balancing of the two, will vary depending upon the content of the information and the nature of the attending circumstances."). This factual perspective is essential to the determination whether production of the photographs will shed any light on "what their government is up to." Reporters Comm., 489 U.S. at 773, 109 S. Ct. 1468.7
B. Factual Background
1. Vincent Foster's Death and the Multiple Investigations That Ensued
In late afternoon on July 20, 1993, Deputy White House Counsel Vincent W. Foster Jr. was found dead by a private citizen in Fort Marcy Park, a national park located in a Northern Virginia suburb of Washington, D.C. According to eyewitness accounts and the investigative reports of the FBI and U.S. Park Service published by a Senate committee on July 29, 1994, see Hearings Relating to Madison Guaranty S & L and the Whitewater Development Corporation-Washington, D.C. Phase, volume II, 103rd Cong. (2nd sess.1994) ("Senate Hearings Volume II"), a 911 call summoned the United States Park Police to a sloping embankment where a body-later identified as Vincent Foster-lay dead. Park Police found Foster's body facing up, with his head positioned slightly below the top of a berm and his body sloping down the embankment, enveloped in foliage; his extremities were apparently not clearly visible to witnesses who stood on the top of the berm. Park Police investigators took Polaroid and 35mm photographs of the death-scene, surrounding environs, and Mr. Foster's face and body-including the ten Polaroids at issue in this appeal. As they did so, they observed a .38 caliber revolver in Mr. Foster's right hand (his thumb still in the trigger guard), gunpowder residue or burns on his right hand web and forefinger, and a gunshot wound to his head. Blood was visible in his nose and mouth area, on his right shoulder area, and in a pool underneath his head. There was no sign of a struggle, no other signs of trauma to the body, and no indication that the foliage or vegetation around his body had been trampled by others.
Five government inquiries investigated the circumstances and cause of Vincent Foster's death. Because Fort Marcy Park is a national park, the U.S. Park Police, a component of the U.S. Park Service, had primary jurisdiction over the first investigation into Mr. Foster's death. After his death, a handwritten note was found torn in pieces at the bottom of Mr. Foster's briefcase in his White House office. The FBI had jurisdiction over the investigation into the circumstances surrounding the discovery of the note. On August 10, 1993, both the Park Police and the FBI announced their findings. The Park Police concluded that Mr. Foster committed suicide, and the FBI found no criminality in connection with the note's discovery.
A flurry of media exposes followed both announcements. Faced with mounting speculation about the circumstances of Vincent Foster's death and the Park Police's investigation into it, Attorney General Janet Reno appointed Robert B. Fiske, Jr. as a regulatory Independent Counsel, pursuant to 20 C.F.R. § § 600 and 603.1, in part to investigate the circumstances surrounding Vincent Foster's death and the events that occurred in the White House following his death. On June 30, 1994, Mr. Fiske issued a 58-page public report on the death of Vincent Foster that reached the same conclusion as the Park Police: the "overwhelming weight of the evidence compels the conclusion . . . that Vincent Foster committed suicide . . ." by a self-inflicted gunshot wound. Report of the Independent Counsel Robert B. Fiske, Jr., In re Vincent W. Foster, Jr. (June 30, 1994).
Meanwhile, the House and Senate launched additional inquiries into the circumstances of Vincent Foster's death. Congressman William F. Clinger, Jr., the ranking Republican on the House Committee on Government Operations, instructed the Committee's staff to "thoroughly review . . . the investigation into the death of White House aide Vincent W. Foster to determine if there had been any improper manipulation of the investigation by the White House or others." 140 Cong. Rec. H2177-05 (daily ed. Apr. 12, 1994) (statement of Rep. Clinger). And the Senate Committee on Banking, Housing, and Urban Affairs conducted public hearings to "investigat[e] . . . and study" the Whitewater matter and "all matters that have a tendency to reveal the full facts about:. . . . (B) the Park Service Police investigation into the death of White House Deputy Counsel Vincent Foster; and (C) the way in which White House officials handled documents in the office of White House Deputy Counsel Vincent Foster at the time of his death; and . . . make such findings of fact as are warranted and appropriate. . . ." S. Res. 229, 103d Cong., 2d Sess. (1994), 140 Cong. Rec. S7076-01 (June 16, 1994). Both inquiries categorically concluded that Mr. Foster committed suicide. See Summary Report by William F. Clinger, Jr., Ranking Republican, Committee on Government Operations, U.S. House of Representatives, On the Death of White House deputy Counsel Vincent W. Foster, Jr. (Aug. 12, 1994) ("all available facts lead to the undeniable conclusion that Vincent W. Foster, Jr. took his own life in Fort Marcy Park, Virginia on July 20, 1993."); S. Rep. No. 103-433, 103d Cong., 4 (1995) ("[t]he evidence overwhelmingly supports the conclusion of the Park Police that on July 20, 1993, Mr. Foster died in Fort Marcy Park from a self-inflicted gunshot wound.").
Nevertheless, a fifth inquiry was undertaken by the Office of Independent Counsel pursuant to the Ethics in Government Act of 1978, 28 U.S.C. 591-599, as reauthorized by the Independent Counsel Reauthorization Act of 1994, Pub. L. No. 103-270, 108 Stat. 732. On August 5, 1994, Kenneth W. Starr was appointed statutory Independent Counsel by the Special Division of the United States Court of Appeals for the District of Columbia Circuit ("the Special Division"). Mr. Starr was authorized to conduct an extensive investigation into the circumstances of Mr. Foster's death, the handling of documents in Mr. Foster's White House office following his death, and other matters. See Report on the Death of Vincent W. Foster Jr., By the Office of Independent Counsel, In re: Madison Guaranty Savings & Loan Ass'n, to the Special Division of the United States Court of Appeals for the District of Columbia Circuit (filed July 15, 1997) (leave to publish granted by the Special Division on Oct. 10, 1997, pursuant to 28 U.S.C. 594) ("Starr Report"). To conduct the investigation, Mr. Starr assembled a team of experienced investigators and renowned forensic experts.8 See id.
After a three-year investigation involving interviews with more than thirty witnesses and analysis of hundreds of documents, forensic reports, the physical evidence, and death-scene and autopsy photographs, Mr. Starr reached the same conclusion about Vincent Foster's death that the Park Police, Independent Counsel Fiske, and the House and Senate Committees had reached: "The available evidence points clearly to suicide as the manner of death."9 Id.
In sum, as the district court observed in this case, Vincent Foster's death has been the subject of intense scrutiny by the national media and "exhaustive[ly] investigat[ed]" in the course of five government inquiries. The unanimous, yet independent, conclusion of all inquiries is that Mr. Foster died from a self-inflicted gunshot wound on July 23, 1993 in Fort Marcy Park, Virginia.
2. Favish's FOIA Request and Complaint
On January 6, 1997-seven months before Mr. Starr filed his final report on the death of Vincent Foster with the Special Division of the District of Columbia Circuit and ten months before the OIC received the court's approval to publicly release that report10 -Favish sent a letter to the OIC requesting the release under FOIA of the "highest quality duplicate photographic [color] prints" of "photographs taken in connection with the investigation into the death of Vincent Foster." Favish specifically requested ten categories of photographs. The photographs requested in eight of the categories were identified by the page in Senate Hearings Report Volume II on which the Senate Committee on Banking, Housing, and Urban Affairs had previously published copies. But, because the photograph of Mr. Foster's right hand clutching the gun and the nine post-mortem Polaroid photographs of Mr. Foster's face and body had not been published in the Senate Hearings Report Volume II,11 Favish requested these photographs in two separate categories. One category requested the photograph of "Mr. Foster's hand with a gun still in it" that purportedly was broadcast by ABC-TV News in March 1994, reprinted in Time Magazine on March 18, 1996, and appears to have been "listed on page 2112" of the Senate Hearings Report Volume II. In the second category, Favish simply requested those Polaroid photographs "listed on page 2112" of the Senate Hearings Report Volume II. Page 2112 consists of a photocopy of the FBI Receipt discussed supra, which bears the handwritten description of the eighteen photographs taken by the National Park Service in Fort Marcy Park within hours of Vincent Foster's death.
By letter dated January 24, 1997, the OIC denied Favish's request in its entirety, citing Exemptions 7(A), 5 U.S.C. 552(b)(7)(A), which exempts from disclosure information that may reasonably interfere with an ongoing law enforcement investigation or proceeding, and Exemption 7(C). Favish administratively appealed on January 28, 1997. The appeal was denied by the OIC on February 19, 1997.
On March 6, 1997, Favish filed a complaint for injunctive relief in district court for the Central District of California. The complaint sought release of all photographs and information embraced by Favish's FOIA request.
After the Special Division granted the OIC leave to publicly release the Starr Report on October 10, 1997, the OIC reviewed the photographs and the information written on them that Favish sought by his FOIA request. The Special Division's approval of the Starr Report's public release marked the official conclusion of Mr. Starr's OIC investigation into Vincent Foster's death. Thereafter, the OIC withdrew its objection to production of the photographs requested on the basis of FOIA Exemption (b)(7)(A).
On January 5, 1998, the OIC filed a Vaughn index and released black and white copies of 118 photographs in full (front and back) and fourteen photographs in part (front or back) that it had previously withheld. Copies of all of the released photographs were published in Senate Hearings Report Volume II.
On February 12, 1998, the district court entered the parties' "Stipulation to Dismiss With Prejudice Claims to Information Withheld Pursuant to Exemption (b)(3) and Claims as to Certain Information Withheld Pursuant to (b)(7)(C) and Identification of What Remains At Issue." Pursuant to that stipulation, the only photographs that remained in dispute were eleven post-mortem photographs taken in Fort Marcy Park: one depicting Mr. Foster's right-hand holding the gun, one depicting only Mr. Foster's eyeglasses lying on the ground in Fort Marcy Park, and nine post-mortem photographs of Mr. Foster's body and face. Exemption 7(C) was the only exemption claimed. And the parties stipulated that "[t]he only issue left to be resolved with regard to this exemption is whether the disclosure of these photographs could reasonably be expected to constitute an unwarranted invasion of personal privacy." (Emphasis added.)
On February 11 and 13, 1998, the parties filed cross-motions for summary judgment. In support of its summary judgment motion and to establish the significant privacy interest at stake, the OIC filed the declaration of Sheila Foster Anthony, Mr. Foster's surviving sister. Writing on behalf of Vincent Foster's widow, three children, elderly mother, and other family members, Ms. Anthony expressed the fervent[ ] belie[f] that releasing any photocopies depicting Vince's body post-mortem would constitute a painful warranted [sic] invasion of my privacy, my mother's privacy, and the privacy of Lisa Moody (widow of Vincent Foster), her three children and other members of the Foster family.
Our family has suffered a great loss under extremely tragic circumstances, compounded by the barrage of newspaper and magazine articles and television reports that followed Vince's death. An intensely emotional and private matter drew national attention, and reporters, as well as simply curious individuals, harassed my grieving family in unbelievably insensitive ways. They do to this day. It is my ardent desire to protect my family as well as myself from additional torment which would result from the release of these graphic photographs.
I fear that the release of these photographs certainly would set off another round of intense scrutiny by the media. Undoubtedly, the photographs would be placed on the Internet for world consumption. Once again my family would be the focus of conceivably unsavory and distasteful media coverage. I cannot adequately express how truly unjust, unfair and cruel it would be to subject my family to more public scrutiny and the dissemination of these photographs via the Internet or by other print and electronic means. No member of any family should ever be concerned with the possible public exposure of photographs of this nature.
The death of my brother has been more than adequately investigated. Five separate government inquiries have determined that Vince's death was a result of a self-inflicted gun wound. Therefore, I cannot fathom a legitimate or rational reason why the photographs should be released. The mere suggestion that these photographs would be released is unconscionable. The release of these photographs would only bring more agony to members of my family.
We have endured enough pain and personal invasion by the media and by those who investigated the death of my brother. While I have tried here, I cannot adequately express the anguish release of these photographs would bring to me and the entire Foster family.
The Court has been asked by the Government to uphold its position that the release of the photographs would be an unwarranted invasion of my personal privacy and that of Vince's family. I implore the Court to do all it can to protect Vince's family, but particularly his children, and his 83 year old mother, from further invasion and the distressing events that surely would result from the release of the photographs.
After hearing oral argument and reviewing the evidence, the district court granted partial summary judgment for Favish and ordered the OIC to produce the Polaroid photograph of Mr. Foster's eyeglasses lying on the ground at Fort Marcy Park and to produce color copies, at Favish's expense, of any photograph released in response [to] his FOIA request if it was originally taken in color. The court, however, ruled that the privacy interests of Mr. Foster's surviving family members outweighed the public interest in disclosure of the nine post-mortem Polaroid photographs of Vincent Foster taken in Fort Marcy Park under Exemption 7(C) and granted the OIC partial summary judgment on this basis. Favish timely appeals.
C. Balancing the Personal Privacy Interest at Stake Against the Public's Interest in Disclosure
1. The Privacy Interest
Favish concedes that release of the nine post-mortem Polaroids of Vincent Foster's face and body are likely to cause to Foster's surviving family members pain and anguish. Favish argues, however, that "family grief" or "emotional grief" is not a legally cognizable privacy interest under FOIA-an argument that the majority and I reject. As noted supra, the Court of Appeals for the District of Columbia in AIM was confronted with essentially the same FOIA request as that at issue here. As the AIM court stated:
[one] cannot deny the powerful sense of invasion bound to be aroused in close survivors by wanton publication of gruesome details of death by violence. One has only to think of Lindbergh's rage at the photographer who pried open the coffin of his kidnapped son to photograph the remains and peddle the resulting photos. While law enforcement sometimes necessitates the display of such ghoulish materials, there seems nothing unnatural in saying that the interest asserted against it by spouse, parents and children of the deceased is one of privacy-even though the holders of the interest are distinct from the individual portrayed.
Id. at 123.
In the present case, the majority and I agree that, as a matter of law, FOIA protects the privacy interests that Vincent Foster's surviving family members have in the post-mortem photographs of the deceased and the intimate details of the circumstances surrounding his death that they reveal. Cf. Bowden v. FDA, 925 F.2d 1225, 1228 (9th Cir. 1991) (holding that the privacy interest of a deceased's family in the deceased's autopsy report is protected by FOIA's Exemption (b)(6)); cf. also Hale v. United States Department of Justice, 973 F.2d 894, 902 (10th Cir. 1992) (finding that Exemption 7(C) exempts photographs of a deceased murder victim from disclosure because no discernible public interest outweighed "the personal privacy interests of the victim's family"), vacated on other grounds, 509 U.S. 918, 113 S. Ct. 3029, 125 L. Ed. 2d 717 (1993), implicitly reinstated on remand; New York Times Co. v. NASA, 782 F. Supp. 628 (D.D.C. Cir. 1991) (finding that the Challenger astronauts' surviving families have "valid and substantial" privacy interests in the voice communications of the astronauts tape recorded aboard the space shuttle immediately prior to its explosion); Katz v. National Archives & Records Admin., 862 F. Supp. 476, 482 (D.D.C. 1994) (accepting as undisputed that the Kennedy family has a privacy interest in the autopsy records of President Kennedy).
The survivors' privacy interests also involve their "right to avoid [ ] disclosure of personal matters" or at least "to control the dissemination" of such information. Reporters Comm., 489 U.S. at 762, 762-64 & n.16, 109 S. Ct. 1468. Favish argues that such privacy interests have been diminished in this case because the circumstances of Vincent Foster's death are publicly known. He is mistaken. "The Supreme Court explicitly rejected [a similar] argument in Reporters Committee, stating that . . . the fact that 'an event is not wholly "private" does not mean that an individual has no interest in limiting disclosure or dissemination of the information.'" Schiffer, 78 F.3d at 1410-11 (quoting Reporters Comm., 489 U.S. at 770-771, 109 S. Ct. 1468; see also FLRA, 510 U.S. at 449, 114 S. Ct. 1006) ("An individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information be available to the public in some form.").
Here, there is simply no question that the release of these photographs "could reasonably be expected to constitute an unwarranted invasion" of the Foster family's personal privacy. Doing so will deprive the family of their right to "avoid" the dissemination of these highly personal photographs and to keep the "personal facts [they depict] away from the public eye." Reporters Comm., 489 U.S. at 769-70, 109 S. Ct. 1468 (citing Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977)). And that constitutes a cognizable and significant invasion of their privacy under FOIA. Unless these photographs will "shed light on what the government is up to," and thus serve the sole public interest cognizable under FOIA, they should not be ordered released. Reporters Comm., 489 U.S. at 773, 109 S. Ct. 1468.
2. The Public's Interest in Disclosure
The governmental agency in question here is the OIC. The conduct in question is the OIC's two investigations into the circumstances of Vincent Foster's death and their conclusion that he committed suicide. As the district court stated, the public has a substantial interest in ensuring that the "OIC conducted a proper and thorough investigation."
But Favish has made no showing that anyone connected with the OIC's investigations-including Mr. Starr-engaged in wrongful conduct, failed in his or her official duties, or that the nine post-mortem photographs at issue will shed any light on the integrity of their investigations, the nature of the OIC's conduct, or the correctness of its conclusions. Although the government bears the burden of establishing that the photographs are exempt from disclosure under FOIA, Schiffer, (citing 5 U.S.C. 552(a)(4)(B)), "the person requesting the information must identify with reasonable specificity, how disclosure would advance the public interest," Hale, 973 F.2d at 900. Favish has failed to do so in this case with respect to the nine post-mortem Polaroid photographs of Foster's face and body.
Favish's overarching argument is that the photographs are needed because the OIC's investigation was "grossly incomplete and untrustworthy." Such "generic platitudes clearly are not enough" to tilt the balance in favor of disclosure. Id. As the Seventh Circuit observed, the contention that private information is needed "to serve as a watchdog over the adequacy and completeness of an FBI investigation . . . would apparently apply to every . . . criminal investigation, severely vitiating the privacy . . . provision [ ] of [E]xemption (C)." Miller v. Bell, 661 F.2d 623, 630 (7th Cir. 1981). As a general rule, "[g]overnment records and official conduct [are accorded] a presumption of legitimacy." United States Dep't of State v. Ray, 502 U.S. 164, 179, 112 S. Ct. 541, 116 L. Ed. 2d 526 (1991). If the mere allegation that a senior government official, like an independent counsel, is "untrustworthy" or incompetent was sufficient to warrant disclosure of private matters that the senior official happened to have compiled, then FOIA's privacy exemptions would be meaningless. See id.
Five separate government inquiries have determined that Vincent Foster committed suicide by a gunshot in Fort Marcy Park on July 23, 1993. The two OIC investigations and the two congressional inquiries each sprung from doubt as to the thoroughness and integrity of the preceding investigation(s). Yet each ultimately reached the same conclusions. And each found no wrongdoing in the preceding investigation(s). Intense media scrutiny of these investigations and of the circumstances of Mr. Foster's death has also reached the same conclusion and has uncovered no wrongdoing. Clearly, the public's interest in further investigating Vincent Foster's death has significantly diminished.
Favish's individual contentions that disclosure of the nine post-mortem Polaroids will serve the public's interest also fall short of justifying their disclosure. Three of Favish's contentions have no logical link to the nine post-mortem Polaroids. Favish disputes statements by Mr. Starr made in his report regarding which officials were present during Vincent Foster's autopsy. But the nine photographs at issue were taken at Fort Marcy Park and depict Mr. Foster's face and body only. They will not shed light on who was present during his autopsy at all. Favish also takes issue with the witness identifications of Mr. Foster's car in Fort Marcy Park at the time of his death. Again, the nine post-mortem photographs will not shed light on the basis for or veracity of these witness statements. Finally, Favish contends that there are possible discrepancies between the kind of gun that was reportedly found at the scene of Mr. Foster's death and the gun identified by his widow. Many of the 119 photographs already released to Mr. Favish depict the gun that was found at the scene of Mr. Foster's death and therefore speak directly to this aspect of the investigation. Nevertheless, because the photograph of Mr. Foster's right hand still clutching the gun has apparently already appeared in the national media and may shed further light on this aspect of the investigation, I believe that it should be released. The remaining nine post-mortem photographs, however, do not depict the gun and therefore should not be released for this purpose.
Favish's remaining contention is similarly insufficient to justify disclosure. Favish contends that the nine photographs of Vincent Foster's face and body are needed to explain purported deficiencies and inconsistencies in the Starr Report concerning the nature of Mr. Foster's wound.12 The Starr Report concluded that Vincent Foster died of a self-inflicted "gunshot [wound] through the back of his mouth exiting the back of his head" and that the exit wound was "three inches from the top of the head." Starr Report at 1, 31. Favish disputes this conclusion for two reasons: First, Favish contends that the Starr Report did not adequately explain the comment of a paramedic on the scene who viewed the body from a distance of two to three feet and initially reported that the entrance wound was on Mr. Foster's neck, near the jawline. Second, he contends that the Starr Report failed to mention that the report of the medical examiner at the scene, Dr. Donald Haut of the Fairfax County Medical Examiner's Office, was internally inconsistent. On one page of the report, Dr. Haut described Mr. Foster's wounds as "perforating gunshot wound mouth-head" and on the another page he described it as "mouth to neck." Favish claims that the statement on Dr. Haut's report that the wound was "mouth-head" was the product of an alteration.
As the D.C. Court of Appeals explained in AIM when it considered and rejected these same contentions:
Depending on what one views as the "top" of the head, the discrepancy between [the statement that the exit wound was three inches from the top of the head] and assertions of a neck exit wound may be matters of characterization. Further, the paramedic, after reviewing photos (presumably belonging to the disputed set), admitted that he may have been mistaken about Foster having a neck wound. Starr Report at 34 n.77. Dr. Haut's report is internally inconsistent, with one assertion consistent with the later reports from Congress and two independent counsels. AIM asserts that the consistent entry on Dr. Haut's report was the product of an alternation. . . . Without more, however, [there is] hardly "compelling evidence" that any government actor has behaved illegally. At least while completing that part of the report, Dr. Haut presumably thought "head" correct. . . .
When multiple agencies and personnel converge on a complex scene and offer their hurried assessments of details, some variation among all the reports is hardly so shocking as to suggest illegality or deliberate government falsification. Nor does it suggest that the congressional or independent counsel inquiries got anything wrong regarding Foster's wounds. The Starr report is altogether credible in its assertion that the photos are "[s]ome of the best evidence" of the nature of Foster's wounds . . . and those who have viewed them have concluded that Foster suffered an entrance wound in the mouth and an exit wound in the back of the head. The likelihood that the photos contradict the statements of all four investigating agencies [i.e., the Park Service, the FBI, Congress, and the OIC] seems remote. While we agree that falsification by the agencies would show government illegality . . . there is no persuasive evidence of such falsification, much less compelling evidence.
AIM, 194 F.3d at 124. I agree.
The description in the OIC's Vaughn index of the ten post-mortem Polaroid photographs at issue is sufficiently detailed for the district court to resolve the issues in this case. Consequently, remand for in camera review is unnecessary.
Moreover, I am persuaded that the public's interest in the OIC's two investigations of Vincent Foster's death is more than adequately served by the release of the 118 photographs that Favish has already obtained from the OIC, the photograph of Foster's eyeglasses that the district court ordered released to him, and the photograph of Foster's right hand clutching the gun that I believe should be released to him as well. The public's interest in disclosure of the remaining nine, never-before-released post-mortem Polaroid photographs does not outweigh the privacy interests of Vincent Foster's surviving family in their nondisclosure. Accordingly, under FOIA's Exemption 7(C), the government has established that their production could reasonably be expected to constitute an "invasion of privacy [that] is 'unwarranted.'" Reporters Comm., 489 U.S. at 780, 109 S. Ct. 1468.
1 Exemption 7(c) exempts production of "records or information compiled for law enforcement purposes . . . to the extent that production . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy. . . ." 5 U.S.C.
2 The Vaughn index derives its name from the case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)
3 In fact, "Congress did not speak of an "index" [in FOIA]. The statute says that an agency has [only] to 'notify the person making such request of [the] determination [to withhold the docu-
ments sought] and the reasons therefor.'" Fiduccia, 185 F.3d at 1042 & n.9 (quoting 5 U.S.C. 552(a)(6)(A)(l).
4 The OIC's Vaughn index actually consisted of an affidavit and exhibits numbering over 200 pages that addressed Favish's FOIA request in its entirety. Favish's FOIA request ultimately embraced over a hundred photographs, including 129 photographs and written information appearing in 32 photographs (on front or back). The index provided: (1) photocopies of the fronts and backs of all photographs that had been previously released by the OIC to the United States Senate; (2) a photocopy of the FBI Receipt describing the photographs that had not been previously released at all; (3) a description of the OIC's system for searching for the requested photographs and detailed explanation of the form used for identifying and justifying any redacted information or photographs withheld in their entirety; (4) the pre-litigation correspondence between the parties; and (5) narrative descriptions of the requested photographs and written information appearing on them that generally identified the photographs or portions thereof being withheld by the OIC, the exemption claimed, and the justification for withholding the exemption, including the interests to be harmed from the disclosure of the information.
5 The other eight Polaroids listed on the FBI Receipt on page 2112 are not at issue on appeal because copies of seven of them were released to Favish pursuant to stipulation lodged in district court on February 9, 1998, and the district court ordered the release of a copy of the eighth photograph, depicting Vincent Foster's eyeglasses lying on the ground at Fort Marcy Park. The eight Polaroids released pursuant to stipulation depict the location and environs where Vincent Foster was found dead and the interior of the car he purportedly drove to Fort Marcy Park.
6 The majority thus mistakenly ascribes undue importance to the fact that Favish is a "skeptical" "lawyer" who personally disagrees with the government's interpretation of the post-mortem photographs.
7 Here, the fact that the Polaroid photographs were "compiled for law enforcement purposes" is not disputed.
8 "The investigators included an FBI agent detailed from the FBI-MPD Cold Case Homicide Squad in Washington, D.C.; an investigator who also had extensive homicide experience as a detective with the Metropolitan Police Department in Washington, D.C. for over 20 years; and two other OIC investigators who had experience as FBI agents investigating the murders of federal officials and other homicides." Id. at 111. The forensic experts included Dr. Henry C. Lee, Ph.D., an expert in physical evidence and crime scene reconstruction who is Director of the Connecticut State Police Forensic Science Laboratory; Dr. Brian D. Blackbourne, M.D., a forensic pathologist who is Medical Examiner for San Diego County; and Dr. Alan L. Berman, Ph.D, an expert suicidologist who currently is Executive Director of the American Association of Suicidology. See id. at 2.
9 Mr. Starr's conclusion reflected that of Dr. Lee ("[a]fter careful review of the crime scene photographs, reports, and reexamination of the physical evidence, the data indicate that the death of Mr. Vincent W. Foster, Jr. is consistent with a suicide...."), Dr. Blackbourne ("Vincent Foster committed suicide on July 20, 1993 in Ft. Marcy Park by placing a . 38 caliber revolver in his mouth and pulling the trigger. His death was at his own hand."), and Dr. Berman ("In my opinion and to a 100% degree of medical certainty the death of Vincent Foster was suicide. No plausible evidence has been presented to support any other conclusion.").
10 The Independent Counsel Reauthorization Act ("the Act") requires an independent counsel "to file a final report with the [Special] division of the [D.C. Circuit] court, setting forth fully and completely a description of the work of the independent counsel, including the disposition of all cases brought." 28 U.S.C. 592(h)(1)(B). Until that report is filed and the D.C. Circuit approves it, an OIC's investigation is considered ongoing. While an investigation is ongoing, the Act mandates that the OIC "exercise restraint" in releasing information that prosecutors "do not normally provide the public," Conference Report on S. 24, Independent Counsel Reauthorization Act of 1994, H.R. 103-511, 140 Cong. Rec. H36907-02, at *H3702 (2d Sess.1994), which would include death-scene Polaroid photographs. Congress instructed the OIC to exercise particular restraint where, as in the case of Vincent Foster's death, it decides not to prosecute anyone. See id.
11 Since the U.S. Park Police turned the post-mortem photographs over to the OIC in 1994, the OIC has maintained that the privacy interests of Mr. Foster's surviving family members in these gruesome death-scene photographs outweigh the public interest in disclosure. For this reason, the OIC has refused to publish them in any form-including the OIC's report to Congress dated June 30, 1994 (prepared by Independent Counsel Robert B. Fiske, Jr.) and its court-approved summary report dated October 10, 1997 (prepared by Independent Counsel Kenneth W. Starr). See Senate Hearings Volume II; Starr Report.
The OIC stated in the Starr Report that "based on traditional privacy considerations, this report does not include death scene or autopsy photographs. The potential for misuse and exploitation of such photographs is both substantial and obvious." See Starr Report at 16-17 (citing by way of comparison, e.g., Navy Report Omits Suicide Notes, N.Y. Times, Nov. 2, 1996, at 9 (regarding suicide of Admiral Boorda: "The Navy Department decided not to make the notes public. . . . Many other items in the report are blacked out, like the autopsy report and the identities of people interviewed by investigators."); Katz v. National Archives and Records Admin., 68 F.3d 1438, 1441 (D.C. Cir. 1995) ("Out of concern for the Kennedy family's privacy, . . . the x-rays and photographs did not become a part of the record of the Warren Commission.")).
12 For the first time on appeal, Favish also contends that the photographs at issue are needed to discern the correctness of two of Dr. Lee's conclusions: (1) that Vincent Foster's body was not "dragged" to the location where his body was found; and (2) that the post-mortem photographs possibly reveal bloodstains on the immediately surrounding vegetation. As purported proof that Dr. Lee's conclusion regarding "dragging" should not be believed, Favish points to the statements of the Park Police on the scene and Dr. Haut that Mr. Foster's body started to "slide down the hill" when they rolled him over to examine him and that they had to "pull" him back up. According to Favish, if Vincent Foster's body slid down the hill at all, Dr. Lee should have reported that there was some evidence of "dragging." At best, Favish's contention is speculative and amounts to nothing more than a difference of opinion. As purported proof that Dr. Lee's statement concerning possible bloodstains on the vegetation was erroneous, Favish points to statements by a Park Police officer on the scene that "there was no blood splatter on the plants or trees surrounding the decedent's head" and a statement by Dr. Haut that he could recall no blood "on the vegetation around the body." Dr. Lee did not conclude that there were bloodstains on the vegetation, only that after viewing an enlarged, close-up view of the vegetation, there may have been bloodstains. See Starr Report at 59. Again, Favish's contention amounts to little more than a difference of opinion, with no suggestion of official misconduct or wrongdoing.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
No. CV 97-1479-WDK
ALLAN J. FAVISH, PLAINTIFF
OFFICE OF THE INDEPENDENT COUNSEL, DEFENDANTS
Jan. 11, 2001
The context of this summary judgment ruling is informed by the underlying decision of the Circuit as found at 217 F.3d 1168. The decision requires a review in lieu of affidavits. And, the decision to release is to be determined by balancing the respective interests of the public and the survivors. In this case, the appellate court appears to have defined the zone of privacy protection as those photographs that are "graphic, explicit and extremely upsetting." See the decision at page 1174.
Having the foregoing in mind and following review of the photographs in issue as identified in the Notice of Submission Under Seal of 10 Original Polaroid Pictures to Court for Court's In Camera, Ex-Parte Examination, which was filed January 9, 2001, the Court focuses on the first five Polaroids set forth in Exhibit 2 to the Notice and concludes as follows:
l The photograph identified as "3-VF's body looking down from top of berm" must be released, as the photograph is not so explicit as to overcome the public interest.
l The photograph identified as "4-VF's body- focusing on face" is an absolute intrusion into the zone of privacy of the survivors, and as such is not discoverable.
l The photograph entitled "5-VF's body-focusing on Rt. side shoulder/arm" is again of such a nature as to be discoverable in that it is not focused in such a manner as to unnecessarily impact the privacy interests of the family.
As regards the balance of the photographs referenced at page 46 of the exhibit to the notice, the Court rules as follows:
l The photograph entitled "1-Right hand showing gun & thumb in guard" is discoverable as it may be probative of the public's right to know.
l The photograph entitled "3-VF's body taken from below feet" is not discoverable as it does invade the zone of privacy.
l The photograph entitled "4-VF's body focusing on right side and arm" is discoverable.
l The photograph entitled "5-VF's body-focus on top of head thru heavy foliage" is discoverable.
l The photograph entitled "6-VF's body-focus on head and upper torso" is so explicit as to violate the privacy of the survivors and is not discoverable.
l The photograph entitled "7-VF's face-looking directly down into face" is again so explicit as to be clearly in violation of the survivors' privacy.
l The photograph entitled "8-VF's face-Taken from right side focusing on face & blood on shoulder" is again so explicit as to be not discoverable as it clearly violates the privacy of the survivors.
Accordingly, summary judgment is entered in favor of the OIC with respect to photograph # 4 from the top section of the exhibit list and photographs # 3, # 6, # 7 and # 8 identified in the bottom section of the exhibit list. Absent an appeal, the photographs must be provided to the plaintiff's counsel within 60 days [see Federal Rules of Appellate Procedure, Rule 4(a)(1)(B) ] of this order. In the event neither party chooses to appeal, the photographs will be provided within 10 days of such determination. In the event of an appeal, the photographs subject to the appeal will remain under seal until such time as there is a final decision by the Court of Appeals.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
No. CV 97-1479-WDK
ALLAN J. FAVISH, PLAINTIFF
OFFICE OF THE INDEPENDENT COUNSEL, DEFENDANTS
Mar. 11, 1998
Before the Court are the parties' Cross Motions for Summary Judgment. The Court issued a preliminary ruling and held a hearing on this matter. The following is a clarification of the Court's final ruling, which was given orally at the hearing.
On January 6, 1997, Plaintiff Allan J. Favish sent to Defendant Office of Independent Counsel ("OIC") a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522.
Plaintiff's request sought photographs taken in connection with the investigation into the death of Deputy White House Counsel Vincent Foster. On January 24, 1997, the OIC denied Plaintiff's request, asserting: (1) Exemption (b)(7)(A), which exempts from disclosure law enforcement information whose disclosure could interfere with enforcement proceedings [5 U.S.C. § 552(b)(7)(A)]; and (2) Exemption (b)(7)(C), which exempts from disclosure law enforcement information whose disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy" [5 U.S.C. § 552(b)(7)(C)]. The OIC also reserved the right to assert other relevant exemptions, Plaintiff administratively appealed the OIC's decision, and the appeal was denied on February 19, 1997.
On March 6, 1997, Plaintiff filed the present "Complaint for Injunctive Relief Under the Freedom of Information Act." On October 10, 1997, the United States Court of Appeals for the District of Columbia Circuit for the Purpose of Appointing, Independent Counsels (the "Special Division"), permitted the OIC report on the death of Vincent Foster to be released to the public. Following the release of this report, the OIC reviewed the photographs sought by Plaintiff and modified its response. As a result, the OIC withdrew its assertion of Exemption (b)(7)(A), but still asserted Exemption (b)(7)(C). Additionally, the OIC asserted Exemption (b)(3), which exempts from disclosure matters that are specifically exempted from disclosure by a separate statute, 5 U.S.C. § 552(b)(3).
On February 12, 1998, the Court entered the parties' "Stipulation to Dismiss With Prejudice Claims As To Information Withheld Pursuant to Exemption (b)(3) and Claims As To Certain Information Withheld Pursuant to (b)(7)(C) and Identification of What Remains At Issue." In that stipulation the parties dismissed with prejudice Plaintiff's claims regarding all photographs withheld pursuant to Exemption (b)(3. Stipulation, at 1:26-2:12. The parties also dismissed with prejudice Plaintiff's claims regarding certain photographs withheld pursuant to Exemption (b)(7)(C). Stipulation, at 2:4-12. The stipulation also identified the documents that Plaintiff still seeks. Plaintiff still seeks 11 Polaroid photographs, including 9 post-mortem photographs of Foster's body in Fort Marcy Park, 1 post-mortem photograph of Foster's right hand holding a gun, and 1 photograph of Foster's eyeglasses lying on the ground at Fort Marcy Park. Stipulation, at 2: 13-19; Defendant's Motion for Summary Judgment, at 20:19- 21:13.
The stipulation also stated that Defendant still asserts Exemption (b)(7)(C) to withhold the 11 photographs. The parties stipulated that the remaining 11 photographs were "compiled for law enforcement uses," the threshold requirement for Exemption (b)(7)(C). Stipulation, at 2:19-22. The parties stated that "[t]he only issue left to be resolved with regard to this exemption is whether the disclosure of these photographs could reasonably be expected to constitute an unwarranted invasion of personal privacy." Stipulation, at 2:22-25. In addition, the parties noted that Plaintiff claims that Defendant is required to produce color copies of the unredacted photographs already released to Plaintiff in black and white. Stipulation, at 2:25-3.1
On February 11, 1998, Plaintiff filed the present motion for summary adjudication of issues, seeking an order that (1) release of the eleven remaining photographs will not result in an unwarranted invasion of the privacy of Vincent Foster's surviving family members; and (2) release of color copies of the photographs already received is required by FOIA. On February 13, 1998, Defendant filed the present motion for summary judgment, claiming that no genuine issue of material fact exists with regard to the claimed exemption and that Defendant is entitled to judgment as a matter of law.
I. Cross Motions For Summary Judgment
A. Summary Judgment Standard
Summary judgment is appropriate only where there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. All reasonable inferences are granted in favor of the non-moving party, however, the non-moving party must provide specific facts showing that there are genuine issues for trial, Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). When "the record as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In deciding a motion for summary judgment, the court must "determine whether the 'specific facts' set forth by the non-moving party, coupled with the undisputed background or contextual facts, are such that a reasonable jury might return a verdict in its favor based on the evidence," T.W. Serv., Inc v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 631 (9th Cir. 1987). A "party opposing summary judgment may not rest on conclusory allegations, but must set forth specific facts showing that there is a genuine issue for trial." Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988). A "mere scintilla of evidence" is insufficient to oppose a summary judgment motion under Rule 56. Anderson v. Liberty Lobby Co., 477 U.S. 242, 252 (1986).
B. Eleven Remaining Contested Photographs: Privacy Exemption Under 5 U.S.C. § 552(b)(7)(C)
Exemption (b)(7)(c) exempts from disclosure "records or information compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). The parties have stipulated that the remaining 11 photographs were compiled for law enforcement purposes. Stipulation, at 2:19-22. Thus, as the parties recognize, "[t]he only issue left to be resolved with regard to this exemption is whether the disclosure of these photographs could reasonably be expected to constitute an unwarranted invasion of personal privacy." Stipulation, at 2:22-25.
1. Privacy Interest of Foster's Surving Family Members
The parties take opposite positions on the question of whether Foster's surviving family members have a privacy interest in the withheld photos. Defendant claims that the family members' privacy interests exist and of the 11 photographs. Defendant claims that the photographs sought by Plaintiff are "graphic, explicit, and extremely upsetting." Defendant's Motion, at 22. Defendant further claims that disclosure of these 11 photographs can reasonably be expected to cause the surviving Foster family members anguish beyond that which they have already suffered, thus constituting an invasion of their personal privacy. Joseph Declaration, ¶¶ 15, 17. Plaintiff asserts that the concern argued by the OIC is not for the "privacy" of the Foster family members, which is protected by Exemption (b)(7)(C), but rather is an argument for a "family grief" exemption to FOIA which does not exist.
In support of its privacy argument, Defendant points to several cases which recognize such a privacy interest in surviving family members, including New York Times Co. v. National Aeronautics and Space Administration, 782 F. Supp. 628 (D.D.C. 1991). In New York Times, a reporter submitted a FOIA request to NASA seeking a copy of the voice communications tape recorded aboard the space shuttle Challenger prior to its explosion on January 28, 1986. Id. at 630. NASA provided the transcripts of the tape, but denied the request for a copy of the tape itself, claiming the privacy exemption under § 552(b)(6) ("Exemption (b)(6)")1 Id. The district court found that the astronauts' families had a "valid and substantial" privacy interest against disclosures which would cause them to suffer additional anguish. Id. at 631. The court stated that the privacy interest included "reasonable expectations of undisturbed enjoyment in the solitude and seclusion of one's own home." Id. at 631-632 (citation omitted). The court noted that exposure to the voice of a deceased family member would cause the Challenger families pain and that the Challenger families would face a disruptive assault on their privacy if the tape were disclosed, because of the notoriety surrounding the accident. Id. at 631-632. The court found that this potential invasion of privacy outweighed the public interest in the disclosure of the tape. Id. at 633.
The court in New York Times cited Badhwar v. United States Department of the Air Force, 829 F.2d 182 (D.C. Cir. 1987), as another court that recognized privacy interests of relatives in various records of deceased family members. New York Times, 782 F. Supp. at 631. In Badhwar, the D.C. Circuit remanded for the district court to determine whether disclosure of a portion of an autopsy report would constitute a "clearly unwarranted invasion of personal privacy," because of the possibility that it would "shock the sensibilities of surviving kin." Badhwar, 829 F.2d at 186. In doing so, the court implicitly but necessarily recognized that such a privacy interest existed and remanded to determine whether the disclosure sought would impact that interest. Id.
Another district court has recognized this family privacy interest with regard to the Foster family members whose privacy is sought to be protected in the present case. See Dow Jones & Co. v. United States Department of Justice, 88 F Supp. 145, 152 (S.D.N.Y. 1995). In Dow Jones, the court allowed the disclosure of an allegedly forged note found in Vincent Foster's briefcase. In doing so, the court recognized that the Foster privacy interest that would be impinged by the pain and anguish that would accompany the renewed scrutiny resulting from disclosure of the note. Id. The court allowed disclosure because it found that this privacy interest would be outweighed by the substantial public interest in viewing the note. Id.
Defendant also cites several cases which implicitly recognize such a privacy interest in the relatives of the deceased. See Hale v. United States Department of Justice, 973 F.2d 894, 902 (10th Cir. 1992) (finding that Exemption (b)(7)(C) applied to exempt from disclosure photographs of a deceased victim, because no public interest could be discerned "that would outweigh the personal privacy interests of the victim's family"), vacated on other grounds, 509 U.S. 918 (1993)2; Katz v. National Archives & Records Administration, 862 F. Supp. 476, 473 (D.D.C. 1994) (accepting as undisputed that the Kennedy family has a privacy interest in the autopsy records of President Kennedy, limited to preventing public disclosure that would cause clearly unwarranted anguish or grief), aff'd on other grounds, 68 F.3d 1438 (D.C. Cir 1995); Bowen v. U.S. Food and Drug Administration, 925 F.2d 1125 (9th Cir. 1990) (holding that the FDA properly withheld medical records and autopsy reports under the (b)(6) privacy exemption, thereby necessarily recognizing a privacy interest belonging to others in documents relating to a deceased family member, at least with regard to the autopsy reports); Outlaw v. United States Department of the Army, 815 F. Supp. 505, 506 (D.D.C. 1993) (finding that the deceased's family members' privacy interest was "not substantial" and was outweighed by the public interest in disclosure).
Plaintiff assails this collection of persuasive authority by arguing that many of these cases did not expressly hold that such a privacy interest exists and by arguing that the courts that recognized such an interest did so "by making their own law" in contravention of the Supreme Court's definition of privacy. Plaintiff's Motion, at 4:23. Plaintiff cites the Third Circuit's definition of "privacy" in the United States v. Westinghouse Electric Corp., 638 F.2d 570, 577 n.5 (3rd Cir. 1980) (quoting Fried, Privacy, 77 Yale L.J. 475, 483 (1968)), as "control over knowledge about oneself." Plaintiff argues that the Supreme Court agreed with this definition in United States Department of Justice v. Reporters Committee, 489 U.S. 749, 762-63 (1989), when it stated: "To begin with, both the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person." The Court in Reporters Committee also stated:
"As we have pointed out before, '[t]he cases sometimes characterized as protecting 'privacy' have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personnel matters, and another is the interest in independence in making certain kinds of important decisions.'"
Id. at 762 (citation omitted).
However, neither this passage nor footnote 5 purports to define the full contours of "privacy" as that term is understood in the FOIA privacy exemptions. Therefore, Plaintiff's argument that all of the foregoing authority is contrary to Supreme Court precedent must be rejected. While the courts in New York Times, Badhwar, Dow Jones, Hale and Katz may have extended the definition of "privacy" in exempting their respective documents from disclosure, these extensions did not occur in the face of contrary Supreme Court precedent. The Court finds that Foster's surviving family members possess personal interests that could be infringed by the disclosure of the 11 photographs still at issue. Accordingly, the OIC's assertion of Exemption (b)(7)(C) does not fail for lack of a privacy interest.
2. Public Interest in Disclosure
Plaintiff argues that, even if the surviving family members have a privacy interest in the nondisclosure of the 11 photographs, this privacy interest is outweighed by the public interest in their disclosure. In determining the applicability of Exemption (b)(7)(C), the Court must balance the public interest in disclosure against the possible invasion of privacy caused by the disclosure. Reporters Committee, 489 U.S. at 776; Schiffer v. Federal Bureau of Investigation, 78 F.3d 1405, 1409 (9th Cir. 1996). The government bears the burden of establishing that privacy interests outweigh the public's interests in disclosure, Schiffer, 78 F.3d at 1409-1410.
Defendant claims that Plaintiff has not established that a public interest in disclosure exists. Defendant correctly noted that a public interest cognizable under FOIA is informing the citizenry about how the government is performing its statutory duties. Defendant's Reply, at 13:8-10 (citing Reporter's Committee, 489 U.S. at 733). See also Hunt v. Federal Bureau of Investigation, 972 F.2d 286, 289-90 (9th Cir. 1992) (discussing the "public interest in ensuring the integrity and the reliability of government investigation procedures"). Defendant argues that none of the 11 photographs at issue have any bearing upon how Vincent Foster performed his duties as Deputy Counsel to the President. Defendant's Reply, at 13:11-13. From this, Defendant argues that Plaintiff merely demonstrates "curiosity" in the photographs, not a cognizable public interest.
However, it is clear that the public interest Plaintiff attempts to identify is not a concern for how Vincent Foster performed his duties. Rather, Plaintiff's concerns appear to be for the circumstances surrounding Foster's death and for the OIC's investigation of that death. Pages 9-33 of Plaintiff's Motion for Summary Adjudication attack the government investigations of Foster's death (as conducted by Independent Counsels Robert Fiske and Kenneth Star) as "grossly incomplete and untrustworthy." These pages attempt to raise several questions, contradictions, and inconsistencies with regard to what the public was told regarding: (1) the extent of Foster's injuries; (2) the statements made by Starr's [sic] family regarding the gun allegedly found in Foster's hand; (2) [sic] the condition of Foster's body as it was found; (4) the condition and location of Foster's eyeglasses; (5) the circumstances surrounding Foster's autopsy; and (6) the condition of the death scene. Plaintiff's Motion, at 9-33. Plaintiff's allegations question the manner in which the OIC investigated Foster's death and implicitly question the manner in which Foster died as well. Thus, the public interest asserted by Plaintiff clearly involves the question of how the OIC performed its statutory duties, not how Vincent Foster performed his duties.
3. Balancing the Privacy Interest with the Public Interest in Disclosure
The issue remains, however, of whether the privacy interests of Foster's family members outweigh the interest in ensuring the integrity and reliabilty of the OIC's investigation procedures. There is no doubt that the public interest in ensuring that the OIC conducted a proper and thorough investigation is substantial. However, this interest is lessened because of the exhaustive investigation that has already occurred regarding Foster's death. Five government inquiries have determined that Vincent Foster committed suicide by gunshot in Fort Marcy Park on July 20, 1993. The United States Park Policy initially investigated the death and conducted another investigation under the direction of Independent Counsel Robert Fiske. Report on the Death of Vincent W. Foster, Jr.. by the Office of Independent Counsel In Re: Madison Guaranty Savings & Loan Association ("Exhibit A to Defendant's Opposition") at 2. Congress conducted two inquiries which reached the same conclusion. Id. Finally, the OIC reached the same conclusion in its report that was recently ordered to be released to the public. Id. at 114. In addition to these investigations. Foster's death has been subject to intense media scrutiny, as evidenced by the several news sources mentioned by both parties in their briefing. For these reasons, the public interest in investigation of Foster's death is not as strong as it was prior to the extensive examination it has already received.
Additionally, the Court is not convinced that the disclosure of these 11 photographs will serve the asserted public interest. Plaintiff has not sufficiently explained how the disclosure of these photographs will advance his investigation into Foster's death. Nor has he sufficiently explained how the disclosure of these photographs will illuminate any deficiencies of the OIC investigation. Due to this uncertainty and the extensive investigation of this affair that has already occurred, the Court finds that the privacy interests of the Foster family members outweigh the public interest in disclosure. See Katz, 862 F. Supp. 484-486 (finding that the Kennedy family members' interests in preventing the disclosure of President Kennedy's autopsy photos and x-rays outweighed the public interest in their disclosure, because, inter alia, "the records had already been reviewed by a number of government entities and private researchers"); New York Times, 82 F. Supp. at 633 (finding that the Challenger families' privacy interest outweighed the public interest in disclosure).
Based on the foregoing, the Court finds that summary judgment is appropriate in favor of the OIC, with one exception. The Court finds that the privacy interests in the nondisclosure of the photographs of Foster's eyeglasses are not as strong as the privacy interests in the nondisclosure of the other ten photographs. Thus, the balancing tips in favor of the public interests with regard to this photograph. Accordingly, the OIC is required to produce the photograph of Foster's eyeglasses within 90 days.
C. Photographs Already Produced: Color Copies
With regard to the photographs that have been released, Plaintiff objects to the OIC's "redaction of the color from the photographs." Plaintiff argues that he originally requested color copies of the photographs, but has received only black and white copies. Plaintiff argues that the OIC has not cited and cannot cite any FOIA exemption which allows it to redact the color from these photographs.
Defendant counters that it is not required to provide color copies of color photographs, Defendant argues that the version of FOIA that was effective at the time of Plaintiff's request requires only that agencies make records promptly available upon a proper request. 5 U.S.C. § 552(a)(3). Defendant argues that § 552 at that time did not impose a requirement of providing color copies of color photographs. Defendant claims that Plaintiff was provided with the best photocopy available.
However, a new subsection of § 552 became effective in April of 1997. That subsection states: "In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." 5 U.S.C. § 552(A)(3)(B). Since this subsection was effective in January of 1998, when the OIC made records available to Plaintiff, it applies to the OIC's disclosures. Therefore, the issue becomes whether color copies of color photographs are "easily reproducible" by the OIC.
The OIC argues that it is not equipped to make color photocopies and therefore cannot do so without undue burden and interference with its investigatory mandates. The OIC also argues that either engaging an outside contractor to make color copies or allowing plaintiff to make color copies himself would burden the OIC and expose it to the significant risk of leakage of sensitive, non-public material pertaining to its pending criminal investigations, Defendant's Opposition, at 19 n.10.
The problem with this argument is that Plaintiff has offered to pay "the costs of providing the OIC with the appropriate equipment to make suitable copies under circumstances consistent, with the OIC's security needs." Plaintiff's Reply, at 18:12-13. Plaintiff suggests that this offer extends to paying the bill of any source of equipment and personnel that the OIC trusts. Id. at 18:13-15. In light of this offer of accommodation, it is difficult to understand how making copies with a color copier in the OIC's offices created any more of a "undue burden" than doing so with the OIC's own black and white copier. As for the risk of leakage, the court does not believe that this risk would be enhanced by a single delivery of a piece of office equipment. In footnote 8 of its Reply, the OIC claims that the Court is to "accord substantial weight to any agency's determination as to . . . reproducibility under [§ 552(a)(3)(B)]." 5 U.S.C. § 552(a)(409B). Even with this deference in mind, the Court cannot accept the arguments advanced by Defendant. Consequently, the Court finds that color copies are "readily reproducible," and therefore must be provided to Plaintiff within 90 days.
IT IS SO ORDERED.
1 Exemption (b)(6) exempts from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Since the exemption argued in this case exempts records or information compiled for law enforcement purposes that "could reasonably be expected to constitute an unwarranted invasion of personal privacy," the standards for determining whether each exemption applies obviously differ. However, both exemptions involve privacy interests, and there is no apparent difference in the privacy interests that may be recognized by the two exemptions. Therefore, the cases discussing the more stringent (b)(6) privacy standard are applicable to this Court's determination of whether the interest asserted by the OIC is a privacy interest recognized by Exemption (b)(7)(C).
2 The Tenth Circuit's decision in Hale was vacated and remanded for reasons unrelated to Exemption (b)(7)(C) [Hale v. United States Department of Justice, 509 U.S. 918 (1993)], but Plaintiff conceded that the Tenth Circuit implicitly reinstated the portion of the opinion discussing Exemption (b)(7)(C) on remand [Hale v. United States Department of Justice, 2 F.3d 1066, 1057-58 (10th Cir. 1993)]. Plaintiff's Reply, at 7:4-5.
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Nos. 01-55487, 01-55788, 01-55789
D.C. No. CV-97-01479-WDK
ALLAN J. FAVISH, PLAINTIFF-APPELLANT
OFFICE OF THE INDEPENDENT COUNSEL,
Entered: Aug. 16, 2002
Before: PREGERSON, NOONAN AND O'SCANNLAIN, Circuit Judges
The majority of the panel has voted to deny the petitions for rehearing. Judge Pregerson would grant the petitions for rehearing. Judges Pregerson and O'Scannlain have voted to deny suggestions for rehearing en banc and Judge Noonan recommended deny-ing the suggestions for rehearing en banc.
The full court has been advised on the suggestions for rehearing en banc, and no active judge has requested a vote whether to rehear the matter en banc. Fed. R. App. P. 35.
The petitions for rehearing are DENIED and the suggestions for rehearing en banc are DENIED.
1. Section 552, of Title 5, U.S.C., provides in pertinent part:
Public information; agency rules, opinions, orders, records, and proceedings
* * * * *
(b) This section does not apply to matters that are-
(7) records or information complied for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,
(D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institute which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,
(E) would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.