Court rules against release of photos of Foster's death

Family of Clinton aide has right to privacy, it says

March 31, 2004|By David G. Savage | David G. Savage,LOS ANGELES TIMES

WASHINGTON - The Supreme Court ruled yesterday that the family of a prominent person who has died has a privacy right to object to the government's release of photographs taken at the scene of the death.

In a 9-0 ruling, the court held that the Freedom of Information Act does not require the release of four close-up photos of the body of Vincent Foster, a White House lawyer and aide to President Clinton who shot himself in 1993.

Yesterday's decision reverses one made by the 9th U.S. Circuit Court of Appeals and dismisses a lawsuit filed by a Los Angeles lawyer who contends that Foster might have been murdered.

Foster's family has a right "to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquillity," said Justice Anthony M. Kennedy.

Washington lawyer James Hamilton, whom Foster consulted before his death, represented Foster's family in seeking to keep the photographs private.

"The family is extremely pleased with the holding by the Supreme Court. We hope other grieving families will benefit from the court's decision," Foster's relatives said.

Yesterday's decision strengthens the case against requests for the release of other photos, such as images of the remains of space shuttle Columbia victims or the destruction of the World Trade Center in New York or possibly the body of race car driver Dale Earnhardt. His family has been fighting in the Florida courts to block the release of autopsy photos of Earnhardt, who was killed in a crash at the Daytona Speedway in 2001.

At least since the assassination of President Kennedy in 1963, the government has faced requests for the release of information or photos that might bear on a national tragedy.

The Freedom of Information Act generally requires the federal government to make information public. But among the many exceptions to the disclosure rule are law enforcement records that "could reasonably be expected to constitute an unwarranted invasion of privacy."

On July 20, 1993, after eating lunch at his desk, Foster left the White House. Several hours later, his body was discovered in Fort Marcy Park in Virginia. He had been shot in the head, and a gun lay next to his right hand.

"I was not meant for the job or the spotlight of public life in Washington," Foster wrote in a note found in his briefcase after his death. "Here ruining people is considered sport."

Investigations by the U.S. Park Police, by House and Senate committees and by independent counsels Robert B. Fiske Jr. and Kenneth W. Starr concluded that Foster committed suicide.

But Allan Favish, a Los Angeles lawyer, maintained that there were "discrepancies" in the official version of what happened, and that these questions could be resolved only by the government's release of photos of Foster and the gun.

Favish had pursued the issue while working in Washington for Accuracy in Media, a conservative watchdog group, but Starr's office refused to release the photos. After moving to Los Angeles, Favish filed a federal suit in 1997 to enforce his claim under the Freedom of Information Act.

Although U.S. District Judge William Keller refused to order the release of the photos, the 9th Circuit reversed his decision in a 2-1 ruling. The majority said Favish had not discovered wrongdoing in the official investigations, but that the law creates a "right to look, a right to speculate and argue again, a right of public scrutiny," wrote Judge John T. Noonan Jr.

U.S. Solicitor General Theodore B. Olson appealed on behalf of the independent counsel's office, and the Supreme Court reversed the 9th Circuit's ruling.

The right to privacy for families who have lost a loved one is of ancient standing, Justice Kennedy wrote. Both law and tradition establish "the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the ... remains for public purposes."

"Favish has not produced any evidence that would warrant a belief by a reasonable person that alleged government impropriety might have occurred."

The Los Angeles Times is a Tribune Publishing newspaper.

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