Reporters Committee urges high court to consider the public’s interest in FOIA case

The Reporters Committee for Freedom of the Press and several other media organizations filed a friend-of-the-court brief with the U.S. Supreme Court Friday urging the justices to fully consider the public’s interest in disclosure when they rule in the upcoming term in a case involving a privacy exemption to the Freedom of Information Act.

In Office of Independent Council v. Favish, the justices will review a decision by the U.S. Court of Appeals in San Francisco (9th Cir.) regarding disclosure of government photographs taken during the investigation into the death of Vincent Foster in 1993 at a federal park in McLean, Va. Foster served as deputy counsel in the Clinton White House during Travelgate and, until his death, while the Clintons faced allegations concerning the Whitewater land deal.

The news media told the court that there is a powerful public interest in records of this unnatural (and very public) death of a high level government official who was embroiled in high-profile public controversy.

The government conducted numerous investigations into Foster’s death, always concluding that he died by a self-inflicted gunshot wound. The plaintiff in this case, who is not a journalist, believes those inquiries were flawed and through the FOI Act sought the photographs which are the subject of this lawsuit and other records.

The government, along with Foster’s sister, Sheila Foster Anthony, and his wife, Lisa Foster Moody, asked the Court to reverse the appeals panel’s ruling insofar as it mandates disclosure of more photographs. In separate briefs the government and the women said that the public’s receipt of more information would intrude upon the privacy of the family members and that, because the government had conducted its own numerous investigations and released much information already, there is little need for the public to review these records.

But the news media told that court that if sheer volume of disclosures counted, the government could avoid release of meaningful records simply by providing voluminous records, even if they were evasive and duplicative.

The privacy exemptions to the FOI Act can only be used when intrusions on personal privacy outweigh the public’s interest in disclosure.

The federal government has vastly increased its use of the privacy exemptions to the FOI Act since 1989 when the U.S. Supreme Court ruled, in a case brought by the Reporters Committee, that the only purpose served by disclosures under the FOI Act is the public’s interest in knowing what the government is “up to.” Amendments to the FOI Act in 1996 were intended to make clear that the FOI Act was meant to serve any purpose, but the government argued that the language in that measure was not clear enough to cause it to make any changes.

Allan Favish, an attorney who lives in Santa Clarita, Calif., filed the initial FOI Act request for records of the investigation into Foster’s death leading to this lawsuit.

The news media brief was prepared by attorneys Deanne E. Maynard, David C. Belt and Elaine J. Goldenberg of Jenner & Block in Washington, D.C.

Additional news media groups who signed the friend-of-the-court brief are: the American Society of Newspaper Editors; the Radio-Television News Directors Association; the Society of Professional Journalists; the Association of Alternative Newsweeklies; the National Press Club; Investigative Reporters and Editors, Inc., and the National Freedom of Information Coalition.

The brief can be found at: https://www.rcfp.org/news/documents/20030825-oicvfavish.pdf