 |
|
U.S. 9th Circuit Court of Appeals
FAVISH v OIC
9855594
ALLAN J. FAVISH, No. 98-55594 Plaintiff-Appellant, D.C. No. v. CV-97-01479-WDK OFFICE OF INDEPENDENT COUNSEL, OPINION Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
William D. Keller, District Judge, Presiding
Argued and Submitted
November 1, 1999--Pasadena, California
Filed July 12, 2000
Before: Harry Pregerson, John T. Noonan, and
Diarmuid F. O'Scannlain, Circuit Judges.
Opinion by Judge Noonan;
Partial Concurrence and Partial Dissent by Judge Pregerson
_________________________________________________________________
COUNSEL
Allan J. Favish, pro se, Tarzana, California, for the plaintiff-
appellant.
Leon W. Weidman, Jan L. Luymes, Assistant United States
Attorneys, Santa Ana, California., for the defendant-appellee.
_________________________________________________________________
OPINION
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 Infor-
mation Act, 5 U.S.C. S 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, Inc., 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 photo-
graphs 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 Cor-
poration -- 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 qual-
ity 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. S 552(b)(7)(A)
(records whose "release could reasonably be expected to
interfere with enforcement proceedings") and under
S 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 exemp-
tion 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 judg-
ment 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 inter-
est 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.
Favish appeals.
ANALYSIS
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 estop-
pel, the OIC cited decisions of this circuit where privacy lead-
ing 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. Geophys-
ical 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 priv-
ity. ITT Rayonier, Inc., 627 F.2d at 1003. Collateral estoppel
does not apply.
[1] The Command and Purpose of the Statute. The alpha
and omega of this case is the statute that prescribes the condi-
tions for the release of records of a public agency when a per-
son 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 avail-
able 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 per-
son.
5 U.S.C. S 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 sup-
plied). 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 stat-
utory duties." United States Department of Justice v. Report-
ers Committee For Freedom Of The Press, 489 U.S. 749, 772-
73 (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 quota-
tions 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 Fos-
ter'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 specifi-
cally referred to his request for a new copy of the photo pub-
lished in Time, March 18, 1996 and on ABC-TV and stated
that the OIC was "without sufficient information or knowl-
edge 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 dis-
seminated" 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.
[2] 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 enforce-
ment purposes, but only to the extent that the pro-
duction of such law enforcement records or
information . . . (C) could reasonably be expected to
constitute an unwarranted invasion of personal pri-
vacy . . . .
5 U.S.C. S 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. War-
ren 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."
[3] The statutory command coupled with the statutory
exemption requires "balancing" of the personal privacy
expected by a reasonable person to be invaded by the produc-
tion of the records against the public purpose served by
release. Reporters Committee, 489 U.S. at 776. Deference to
the determination of the agency that the exemption applies is
not due; the burden of the proof that the request may be prop-
erly denied because of an exemption rests with the agency.
The court "shall determine the matter de novo."
S 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 compli-
ance 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 argu-
ment 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 specu-
late 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 mem-
bers who would be distressed by this feared coverage are
identified by Anthony as Foster's mother, his children, her-
self, 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 dif-
ficulty 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.
[4] 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 pri-
vacy caused by the release of records made for law enforce-
ment 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 biologi-
cal systems of the body achieve. Taken in either sense, bal-
ancing 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.
[5] 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 descrip-
tion 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 an 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 cam-
era 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 con-
sistent with this opinion.
_________________________________________________________________
PREGERSON, Circuit Judge, concurring in part and dissent-
ing in part:
I agree with the majority that under the Freedom of Infor-
mation Act ("FOIA"), 5 U.S.C. S 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 dis-
closure. I disagree, however, that remand for an in camera
inspection of the photographs is necessary before these inter-
ests 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 consti-
tute an unwarranted invasion of [the family's ] personal priva-
cy.' " See Hunt v. FBI, 972 F.2d 286, 287-89 (9th Cir. 1992)
(quoting 5 U.S.C. S 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 dis-
closure 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 with-
hold requested documents has the burden of proving 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 dis-
pute between them." Wiener v. FBI, 943 F.2d 972, 977 (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 docu-
ments 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. 1998) (quoting Weiner, 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." Weiner, 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 pro-
cess." Weiner, 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 pro-
tected 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 omit-
ted). Such affidavits may not be "vague" or merely "conclu-
sory," King, 830 F.2d at 219, but should disclose "as much
information as possible without thwarting the [claimed]
exemption's purpose," Weiner, 943 F.2d at 978 (citation omit-
ted) (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 7948. According to the
majority opinion, because the latter photograph is not "graph-
ic" 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 dis-
positive 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 com-
mitted to the broad discretion of the trial court judge." Quinon
v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (citations omit-
ted); see also 5 U.S.C. S 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 indi-
vidually examined in every case." NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 224 (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 photo-
graphs 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. Fos-
ter's body in Fort Marcy Park. Disclosure of this
photograph would cause Mr. Foster's surviving fam-
ily members a great deal of anguish and reasonably
can be expected to constitute an unwarranted inva-
sion of their personal privacy. The disclosure of this
graphic picture would shed no light on how the gov-
ernment 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 major-
ity. Certainly, what the OIC did provide was "as much infor-
mation as possible without thwarting the purpose of the
exemption claimed." Weiner, 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 pho-
tographs and the conclusions the OIC drew from them. In par-
ticular, Favish disputes the OIC's conclusion that the
photographs establish that Foster committed suicide. Gener-
ally 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 docu-
ments qualify for the claimed exemption. See Weiner, 943
F.2d at 978-79. But where, as here, the Vaughn index pro-
vides (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] docu-
ments," not their contents, in camera review may not be nec-
essary. 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, 120 S. Ct. 1966 (2000). AIM's FOIA
case sought black and white copies of precisely the same pho-
tographs 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 Exemp-
tion 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 (1989) (quoting Department of the Air
Force v. Rose, 425 U.S. 352, 361 (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 (quoting FBI v. Abramson, 456 U.S. 615, 621 (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 pro-
duction of such records could reasonably be expected to con-
stitute an unwarranted invasion of personal privacy . . . ." 5
U.S.C. S 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 disclo-
sure.' " Id. at 1409 (quoting Hunt , 972 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.' " Rosenfield
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(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) (second
alteration in original).6 Rather,"[w]hether disclosure of a doc-
ument 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
(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 gov-
ernment's actions concerning Vincent Foster's death is neces-
sary. See Weiner, 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 pho-
tographs will shed any light on "what their government is up
to." Reporters Comm., 489 U.S. at 773. 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 North-
ern Virginia suburb of Washington, D.C. According to eye-
witness 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 -- Washing-
ton, 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 posi-
tioned 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 envi-
rons, 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 hand-
written 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 sur-
rounding 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.
SS 600 and 603.1, in part to investigate the circumstances sur-
rounding 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 Vin-
cent 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 manipula-
tion 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, Hous-
ing, and Urban Affairs conducted public hearings to "investi-
gat[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 conclu-
sion 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. SS 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 Divi-
sion 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. S 594) ("Starr Report"). To conduct the investiga-
tion, Mr. Starr assembled a team of experienced investigators
and renowned forensic experts.8See id.
After a three-year investigation involving interviews with
more than thirty witnesses and analysis of hundreds of docu-
ments, 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 Com-
mittees 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 inde-
pendent, 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 request-
ing the release under FOIA of the "highest quality duplicate
photographic [color] prints" of "photographs taken in connec-
tion 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. Fos-
ter's face and body had not been published in the Senate
Hearings Report Volume II,11 Favish requested these photo-
graphs 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.
S 552(b)(7)(A), which exempts from disclosure information
that may reasonably interfere with an ongoing law enforce-
ment investigation or proceeding, and Exemption 7(C). Fav-
ish 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 informa-
tion embraced by Favish's FOIA request.
After the Special Division granted the OIC leave to pub-
licly 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 investiga-
tion into Vincent Foster's death. Thereafter, the OIC with-
drew 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 Cer-
tain Information Withheld Pursuant to (b)(7)(C) and Identifi-
cation 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 photo-
graphs 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 exemp-
tion is whether the disclosure of these photographs could rea-
sonably 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 inter-
est 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 consti-
tute a painful warranted 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 tele-
vision 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 unbe-
lievably 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 cer-
tainly 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 con-
ceivably 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 photo-
graphs via the Internet or by other print and elec-
tronic 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 ade-
quately investigated. Five separate government
inquiries have determined that Vince's death was a
result of a self-inflicted gun wound. Therefore, I can-
not fathom a legitimate or rational reason why the
photographs should be released. The mere sugges-
tion 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 inva-
sion by the media and by those who investigated the
death of my brother. While I have tried here, I can-
not 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 photo-
graphs would be an unwarranted invasion of my per-
sonal 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 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 par-
tial 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 Polar-
oids 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 pho-
tographer who pried open the coffin of his kidnapped
son to photograph the remains and peddle the result-
ing 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 mat-
ter 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.
Bowen 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 (1993), implicitly
reinstated on remand, 2 F.3d 1055, 1057-58 (10th Cir.); 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. 4786, 482
(D.D.C. 1994) (accepting as undisputed that the Kennedy
family has a privacy interest in the autopsy records of Presi-
dent 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. Favish argues that such pri-
vacy 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 dissemi-
nation of the information.' " Schiffer, 768 F.3d at 1410-11
(quoting Reporters Comm., 489 US at 770-71; see also FLRA,
510 U.S. at 499 ("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 pri-
vacy. Doing so will deprive the family of their right to
"avoid" the dissemination of these highly personal photo-
graphs and to keep the "personal facts [they depict] away
from the public eye." Reporters Comm., 489 U.S. at 769-70
(citing Whalen v. Roe, 429 U.S. 589 (1977)). And that consti-
tutes 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.
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 con-
ducted 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 conclu-
sions. Although the government bears the burden of establish-
ing that the photographs are exempt from disclosure under
FOIA, Schiffer, 78 F.3d at 1409-10 (citing 5 U.S.C.
S 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 incom-
plete 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 ade-
quacy 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 (1991). If the mere allega-
tion 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 cir-
cumstances 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 conten-
tions 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 Fos-
ter'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 identi-
fications 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 pur-
ported 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 dis-
putes 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 dis-
tance 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. Don-
ald 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 prod-
uct 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 mis-
taken 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 "com-
pelling 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 assess-
ments 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 coun-
sel 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 evi-
dence" 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 likeli-
hood 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.
III. CONCLUSION
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. Conse-
quently, 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 photo-
graph 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 surviv-
ing 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 "in-
vasion of privacy [that] is `unwarranted.' " Reporters Comm.,
489 U.S. at 780.
_______________________________________________________________
FOOTNOTES
1 Exemption 7(C) exempts production of "records or information com-
piled for law enforcement purposes . . . to the extent that production . . .
could reasonably be expected to constitute an unwarranted invasion of per-
sonal privacy . . . ." 5 U.S.C. S 552(b)(7)(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 documents sought] and the reasons
therefor.' " Fiduccia, 185 F.3d at 1042 & n.9 (quoting 5 U.S.C.
S 552(a)(6)(A)(i)).
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 pho-
tographs, 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 photo-
graphs and detailed explanation of the form used for identifying and justi-
fying 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 appear-
ing 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 photo-
graph, 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 inte-
rior 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 gov-
ernment'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 Execu-
tive 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 com-
mitted 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. S 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 pro-
vide the public," Conference Report on S. 24, Independent Counsel Reau-
thorization Act of 1994, H.R. 103-511, 140 Cong. Rec. H36907-02, at
*H3702 (2d Sess. 1994), which would include death-scene Polaroid pho-
tographs. 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 Rob-
ert 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 photo-
graphs. 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 Depart-
ment 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 Admin., 68
F.3d 1438, 1441 (D.C. Cir. 1995) ("Out of concern for the Kennedy fami-
ly'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 conclu-
sions: (1) that Vincent Foster's body was not "dragged" to the location
where his body was found; and (2) that the post-mortem photographs pos-
sibly 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 blood-
stains 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 con-
tention amounts to little more than a difference of opinion, with no sug-
gestion of official misconduct or wrongdoing.
Ads by FindLaw