A Family's Privacy vs. Public's Right to Know ; High Court Weighs Whether Photos of Vincent Foster Must Be Released under the Freedom of Information Act

By Warren Richey writer of The Christian Science Monitor | The Christian Science Monitor, December 3, 2003 | Go to article overview

A Family's Privacy vs. Public's Right to Know ; High Court Weighs Whether Photos of Vincent Foster Must Be Released under the Freedom of Information Act


Warren Richey writer of The Christian Science Monitor, The Christian Science Monitor


Allan Favish is on a mission. The California lawyer wants to expose what he believes is a government coverup involving the July 1993 death of Vincent Foster, deputy White House counsel.

He even has an idea how to expose the coverup: by gaining access, through the Freedom of Information Act (FOIA), to 10 color photographs taken by police shortly after Mr. Foster's body was discovered in a national park in Virginia.

There's just one problem. The government is unwilling to release the photographs, as are Foster's surviving family members, who say public disclosure and distribution of the photos would violate the family's right to privacy and force them to relive the morbid episode a decade later.

Wednesday, the issue arrives at the US Supreme Court, where the justices are being asked to decide whether the public's right to know certain government information outweighs any privacy rights of a dead person and surviving family members.

The case has major implications for American news organizations and government watchdogs who often battle officials and agencies for access to government-held information. It also has major implications for the state of privacy in the US. As such, it represents a classic struggle between a citizen's right to know what his government is up to versus another citizen's right to be left alone.

Clarifying the rights of the deceased

The case, Office of Independent Counsel v. Favish, is significant because it offers the court an opportunity to clarify whether a dead individual has a right to privacy that extends after death to surviving family members. The case is also important because it could help establish how much evidence, if any, is necessary to overcome privacy concerns to force the government to disclose information under the Freedom of Information Act.

"When a high-ranking government employee dies a violent death, the public has a right to know if that death occurred in the manner claimed by the government," says Mr. Favish in his brief to the court.

Lawyers for Foster's widow and sister view the issue differently. "Favish's ghoulish attempt to obtain and publicize photographs of Vince Foster lying dead in Fort Marcy Park is not supported by any legitimate public interest," says Washington lawyer James Hamilton, in his brief to the court.

Since Foster's death, there have been five official investigations, including two by independent counsels. They have generated thousands of pages of evidence, testimony, and analysis, and more than 100 photographs. All five investigations reached the same conclusion: that Foster committed suicide.

Conspiracy theories and disclosure

Despite these investigations, some conspiracy theorists believe Foster may have been murdered.

In his brief to the court, Favish details a series of questions that he says were unresolved or ignored in the government's investigations.

For example, he says the first person to find Foster dead did not recall seeing a gun in Foster's hand, as reported later by federal agents. And he says a paramedic reported seeing a small bulletlike entrance wound on the right side of Foster's neck, a wound inconsistent with a single self-inflicted gunshot as described in government reports.

"The public's interest in disclosure outweighs the asserted privacy interest because the government's reports are demonstrably untrustworthy," says the Favish brief. …

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