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Details of the death 10 years ago of Clinton administration lawyer Vincent Foster were aired in an unlikely forum Dec. 3: the Supreme Court. The justices heard oral arguments in Office of Independent Counsel v. Favish, No. 02-954. The Court is being asked to decide whether death scene photos of Foster, deputy White House counsel in the Clinton administration, must be released under the Freedom of Information Act. Numerous investigations, including one under the supervision of then-Independent Counsel Kenneth Starr, concluded that Foster committed suicide. Allan Favish, a Santa Clarita, Calif., lawyer, questions the conclusion and seeks the photos as part of his own research. In a series of rulings over several years, the independent counsel was ordered to release some but not all of the requested photos. Favish’s litigation made its way to the Supreme Court in the form of an important FOIA issue the justices had never resolved before. Under FOIA, government agencies may withhold documents whenever their release could “reasonably be expected to constitute an unwarranted invasion of personal privacy.” At issue is whether that exemption can be used to protect the privacy of someone other than the target of the FOIA request, in this case the family of Vince Foster. Arguing his own case, Favish seemed to score points with the justices by saying that if Congress meant to protect the privacy of family members as well as actual targets of FOIA requests, it should have said so explicitly. “It is not for the Court, with all due respect, to rewrite the FOIA,” said Favish. But victory may still elude Favish. Several justices appeared worried that if he wins, photos and documents from even the most routine law enforcement investigations would have to be disclosed. In the final moments of the hour-long hearing, sober silence greeted an assertion by the lawyer representing the independent counsel’s office that a win for Favish could even mean that autopsy photos of U.S. soldiers killed in Iraq would have to be released to the public. “There will be little protection left,” said Patricia Millett, assistant to the solicitor general. Earlier, Millett conceded that most courts have ruled that “privacy dies with the individual.” But she said common law court rulings have recognized that survivors have privacy rights too, aimed at protecting the memory and dignity of the person who died. The aim of FOIA, Millett said, is “not maximum exposure but responsible disclosure.” She said that when the privacy exemption is invoked, the requesting party must show “compelling evidence of government wrongdoing” to overcome the privacy interest. Justice David Souter seemed troubled by that test, wondering aloud what would happen if a FOIA requester was motivated by a desire to make “government look good” rather than to expose wrongdoing. On behalf of Foster’s widow and sister, James Hamilton of D.C.’s Swidler Berlin Shereff Friedman also argued against disclosure of the photographs. “It’s been 10 years. It is time to give this family some peace,” said Hamilton. Noting that five investigations have reached the same conclusion about the cause of Foster’s death, Hamilton said, “There is no public interest on the other side.” Toying with Hamilton, Justice Antonin Scalia said that, in the minds of some, the fact that five probes agreed that Foster committed suicide would only fuel the theory that a government conspiracy and cover-up was under way. Hamilton responded sarcastically that it was unlikely that Starr had conspired to protect the Clinton administration. To which Scalia replied cryptically, “Mr. Starr might have been trying to protect [then-House Speaker] Newt Gingrich!”

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