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Nearly 10 years after White House Deputy Counsel Vincent Foster died in a Northern Virginia park, a contentious battle over public access to death-scene photographs is before the U.S. Supreme Court. While the circumstances of Foster’s apparent suicide are now debated mainly on the Internet by conspiracy theorists and critics of former President Bill Clinton, the access dispute could result in an important ruling on privacy and the Freedom of Information Act. Similar skirmishes over release of autopsy photos of President John F. Kennedy and audiotapes of the final moments of the space shuttle Challenger disaster were not reviewed by the high court. Three petitions involving the Foster photos are among dozens of cases the Court will consider at its private conference this Friday. At the conference, the justices will discuss pending cases and decide which, if any, to add to the Court’s docket for argument and decision next term. The three cases are Office of Independent Counsel v. Allan J. Favish, No. 02-954; Allan J. Favish v. Office of Independent Counsel, No. 02-409; and Sheila Foster Anthony and Lisa Foster Moody v. Allan J. Favish, No. 02-599. Favish is an associate at Charlston, Revich & Chamberlin in Los Angeles who once worked for Judicial Watch in Washington, D.C. Moody is Foster’s widow, and Anthony is one of his sisters. The Office of Independent Counsel, which twice investigated Foster’s death, was once led by Kenneth Starr and is now headed by Julie Thomas, who is phasing out its operations. Two independent counsel investigations, as well as probes by law enforcement agencies and congressional committees, concluded that Foster committed suicide in July 1993 in Fort Marcy Park in McLean, Va. But Favish says his “best guess” is that Foster was murdered. He invoked FOIA to seek 150 death-scene and autopsy photos from the independent counsel in 1997. The photographs, he contends, could clear up conflicting reports of whether Foster suffered a neck wound. Separate litigation by the conservative group Accuracy in Media seeking similar photos from the National Park Service failed, with the U.S. Court of Appeals for the D.C. Circuit ruling that the surviving family’s privacy interests outweighed the unsubstantiated allegations of government wrongdoing that were behind the request for the photos. Favish’s FOIA litigation has had several twists and turns. Says Favish: “I didn’t know what I was getting into when I started this.” When Favish’s FOIA request was denied, he filed suit in the Central District of California. A district judge ruled against him, though the court ordered some of the photos released. On appeal, a divided panel of the San Francisco-based 9th Circuit ruled partly in Favish’s favor. The appeals panel, like the D.C. Circuit, said Foster’s family had a valid privacy interest. But unlike the D.C. Circuit, the 9th Circuit said Favish did not have to justify his request by demonstrating government misconduct. The appeals panel ordered a lower court judge to review the remaining 10 photos in contention and balance the public benefit against the privacy interest of the Foster family. On remand, the judge ordered the release of five of the 10 photos. When the case went back to the appeals court, the panel differed with the trial judge on one photo but ordered four released. All of the parties are challenging different aspects of the ruling and are asking the high court to step in. FOIA allows the government to withhold documents that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” But Favish claims that the exemption only applies to the privacy of the person who is the subject of the documents — not family members. By expanding the exemption to family members, Favish says, the 9th Circuit ruling will give the government an excuse to hide embarrassing documents in newsworthy cases where disclosure is most warranted. The Foster family, represented by James Hamilton, a partner at D.C’s Swidler Berlin Shereff Friedman, argues that Favish should have been required to submit “compelling evidence of governmental misconduct to warrant overriding privacy interests implicated by such records.” Hamilton asserts the Foster family has already experienced “acute distress” over the leaked release of one death-scene photograph — showing Foster’s hand holding the gun that killed him — that appeared in Time magazine. The independent counsel, represented by the solicitor general’s office, says the privacy issue needs to be resolved. Its brief notes that all the circuit courts that have ruled on the issue say the privacy exemption of FOIA extends to close surviving family members. But the government urged the Supreme Court to hold the Foster cases pending the outcome of ATF v. City of Chicago, No. 02-322. That case, scheduled for argument March 4, also involves interpretation of the privacy exemption of FOIA — this time in the context of firearms data kept on gun owners. Both the Foster family and Favish argue that the issues in the Chicago case are different enough that the Court should grant review of the Foster cases without delay. OTHER CASES UP FOR REVIEWCasino Association of Louisiana v. Louisiana, No. 02-466. Whether a ban on campaign contributions by casino industry interests violates the First Amendment. � United States v. Banks, No. 02-473. Whether law enforcement officers violated the Fourth Amendment when they entered an apartment in a search for illegal drugs only 15 to 20 seconds after knocking and announcing their presence. � Alaska Department of Environmental Conservation v. Environmental Protection Agency, No. 02-658. Whether the EPA may second-guess state permit decisions under the Clean Air Act. � Silver v. Commack Self-Service Kosher Meats Inc., No. 02-675. Whether New York violates the First Amendment’s establishment clause by defining and enforcing Kosher food standards. � Archer-Daniels-Midland Co. v. Dellwood Farms Inc., No. 02-692. Whether adverse inferences can be drawn when a nonparty in a civil case invokes the Fifth Amendment right against forced self-incrimination. � Moore v. Detroit School Reform Board, No. 02-711. Whether Detroit’s move from an elected to an appointed school board violates the federal Voting Rights Act. � Steele v. Industrial Development Board of Metropolitan Government of Nashville and Davidson County, No. 02-737. Whether a low-interest loan to a sectarian school, funded by tax-exempt revenue bonds, violates the First Amendment establishment clause. � Raytheon Co. v. Hernandez, No. 02-749. Whether an employer’s policy against rehiring former employees who were fired for misconduct violates the Americans with Disabilities Act when applied to successfully rehabilitated drug addicts. � Sun Prairie v. McCaleb, No. 02-751. Whether a non-Indian lessee of Indian land has standing to challenge a Bureau of Indian Affairs decision to void the lease. � Barnhart v. Thomas, No. 02-763. Definition of “disability” needed to qualify for Social Security disability insurance. � California v. Paige, No. 02-765. Use of statistical evidence to prove disparate-impact employment discrimination case. � BellSouth Advertising & Publishing Corp. v. Tennessee Regulatory Authority, No. 02-783. Whether the First Amendment allows state regulators to require phone companies to display the names and logos of competing companies on the cover of telephone directories. � Pharmaceutical Research and Manufacturers of America v. Medows, No. 02-869. Whether federal Medicaid law pre-empts a Florida prescription drug rebate program. � Advanta Corp. v. Riseman, No. 02-882. Whether the Seventh Amendment right to a civil jury trial is violated when a judge overturns a jury damage award. � Three O Realty v. New York State Urban Development Corp., No. 02-909. Whether a pretextual finding of blight satisfies the Fifth Amendment requirement that a government taking of private property be for “public use.” � Women’s Choice-East Side Women’s Clinic v. Newman, No. 02-935. Challenge to Indiana law requiring women to receive information necessary for informed consent for an abortion 18 hours before the procedure. � Board of Education of Pawling Central School District v. Schutz, No. 02-946. Tuition reimbursement under the Individuals with Disabilities Education Act. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. Goldstein does not otherwise participate in the preparation of this column.

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