National Archives and Records Administration v. Favish – Oral Argument – December 03, 2003

Media for National Archives and Records Administration v. Favish

Audio Transcription for Opinion Announcement – March 30, 2004 in National Archives and Records Administration v. Favish

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William H. Rehnquist:

We’ll hear argument now in No. 02-954, the Office of Independent Counsel v. Allan J. Favish.

Ms. Millett.

Patricia A. Millett:

Mr. Chief Justice, and may it please the Court:

In the course of their investigative work, Federal law enforcement officials, of necessity, routinely come into possession of substantial amounts of highly sensitive and highly personal information.

Sometimes that information includes graphic death scene and autopsy photographs.

Those photographs are taken for the limited and restricted use of law enforcement and public safety officials.

They are not freely available to the general public as a matter of law, custom, or practice.

The question presented in this case is whether death scene photographs should be broadly disclosed to the general public under the Freedom of Information Act.

They should not.

The Freedom of Information Act’s purpose is not maximum disclosure, but responsible disclosure, and the publication of death scene photographs goes beyond the bounds of responsible disclosure, because in the terms of exemption 7(C), production could reasonably be expected to constitute an unwarranted invasion of the personal privacy of surviving family members.

In ordering the release of four photographs in this case, the court of appeals recognized that that substantial intrusion on privacy would occur, but it then committed three errors in assessing the countervailing public interest in disclosure.

William H. Rehnquist:

Must there be identifiable family members to suffer this invasion of privacy?

Would it just be automatic instead?

The… a scene like this, you would assume that there was someone?

Patricia A. Millett:

No, the… the practice of the Federal Government is that we need to identify the existence of a survivor.

There was a case in the D.C…. excuse me… District Court, named Outlaw, that I believe was cited in respondent’s brief, where the Department of Defense had asserted survivor privacy without having first identified a survivor, and that was held to be impermissible, and as a matter of practice, because this is sort of specialized application of privacy interest, the Government identifies a survivor before invoking it.

But that is often not a difficult job because the types of records that bring the photos to us, law enforcement records, military records when it’s a military service member who’s been autopsied, will often contain, or allow the identification, of family members.

Antonin Scalia:

And if you’re so unfortunate as not to have survivors, or to have survivors who don’t like you, the most embarrassing and gory photographs of your body can be released?

Patricia A. Millett:

Well, Justice Scalia, that has been the practice after the Outlaw decision of the Federal Government.

It… it’s not inconceivable to me that because you’re talking about an objective test, at least under 7(C)… some of these photographs are held… upheld under… or withheld under exemption 6, which doesn’t have the same objective test language.

It’s not inconceivable that the Government could justify withholding, in a situation like after the collapse of the World Trade Center towers, and their substantial amounts of… sorry, but, for the graphic nature… but partial remains that can’t be matched with particular individuals.

But we know that for some significant percentage of those people, there are a significant percentage of survivors on a match for match.

In that case, I think we would argue should not be required and that withholding could be done because we–

Antonin Scalia:

But only on the assumption that there are survivors?

Patricia A. Millett:

–On the assumption that there… a reasonable… obviously, a reasonable assumption–

Antonin Scalia:

I don’t know why that’s necessary.

I don’t know why you… you can’t say, and I think some courts have held, have they not, that… that there is a privacy interest in the… in the person who’s died?

Patricia A. Millett:

–For the most part, courts have said that privacy dies with the individual, but again, the problem in this case is the Ninth Circuit didn’t think we were withholding too little.

It rule… it ruled that we were withholding too much that… and that, in fact, when there are known survivors, these… these disturbing photographs still have to be released.

And in doing that, they committed three errors.

Ruth Bader Ginsburg:

Before we get to that though, on the question that was asked, if there are no survivors, given that the main rule of FOIA is disclosed, unless you fall under an exemption, and exemptions are to be narrowly construed, I don’t think the… the Government could suppose, could hypothesize an interest that may or may not have existed in the decedent when there are no survivors.

Patricia A. Millett:

Well, Justice Ginsburg, that has been the Government’s practice, is to identify a survivor, but again, I think our position is, because the nature of our world has changed and we now have to deal with situations involving mass deaths, that we aren’t going to insist when you have a large collection of remains and we know that for some percentage of those there… there are survivors, that withholding would still be permissible.

John Paul Stevens:

But why is that any less of a leap than saying the deceased… the deceased’s privacy is being invaded?

Why is it less of a leap to say that the privacy… the privacy of the survivors is being invaded?

It doesn’t seem to me that it’s… it’s their privacy that’s being invaded.

It’s… it’s their… their sensitivity, various other things, but… but it seems to me strange to speak of their having a privacy interest.

Surely they have an interest in not having their… their… their relative displayed this way, but I… I wouldn’t normally call that a privacy interest.

Patricia A. Millett:

Well, Justice Scalia, the common law… a number of common law courts did, and they did… and we cite… one of the very first common law courts ever to recognize the right to privacy, in 1895, the Schuler v. Curtis case, which is cited in our reply brief, found exactly a privacy interest in the survivors, and it said it is not the privacy interest of the deceased, because under the common law tradition, privacy dies with the individual.

But what’s being protected here is the survivors.

It sort of takes three forms, first of all, their… their memory of the deceased, their ability to provide a dignified disposition of the body, and the ability to have seclusion in their grief and repose and closure.

And those concepts packaged together have been recognized as a privacy right, both at tort law by a number of courts, and more broadly, by custom and practice in this country.

These types of photographs are not freely available virtually anywhere.

A large number of states, as we’ve cited in our brief, prevent their disclosure or have restrictions on their disclosure.

Sandra Day O’Connor:

Well, I guess we’re, in this case, asked to apply FOIA’s exemption 7(C) to interpret it anyway.

Patricia A. Millett:

Yes.

Sandra Day O’Connor:

Right?

Patricia A. Millett:

Yes.

Sandra Day O’Connor:

So that’s what we’re focused on.

Patricia A. Millett:

Yes.

Sandra Day O’Connor:

And what do you propose as the test?

Patricia A. Millett:

The test… the test is, as this Court has… to decide whether a… a invasion of privacy is clearly unwarranted, you have to weigh and balance the intrusion on privacy against the extent to which the information disclosed would, in this Court’s Reporters Committees decision, contribute significantly to public understanding of the operations or activities of the Federal Government.

And in this case, on one side of the balance is a substantial intrusion on privacy, requiring… exposing this sort of information out where family members will see it, encounter it, where they will know that their… that their loved one has not been buried in any sense.

Sandra Day O’Connor:

Is that the test that the CADC used in the Accuracy in Media case involving these same photos?

Patricia A. Millett:

They used a… the same balancing.

They recognized the–

Sandra Day O’Connor:

So whatever you’re proposing, you think the CADC correctly employed in that case?

Patricia A. Millett:

–The… there… with… with one qualification, which I don’t think is a distinction… don’t think it’s a distinction that makes a difference.

Certainly on the privacy interest side, they agreed with us that there’s a survivor privacy interest and that that has to be balanced under this Court’s Reporters Committee standard.

Now, the D.C. Circuit has said with… when the public interest that’s asserted is substantial allegation, or is unsubstantiated allegations of governmental misconduct, that’s not enough.

They require compelling evidence of governmental misconduct to overcome the presumption of regularity.

Patricia A. Millett:

We’ve articulated the test is clear as evidence.

I don’t think in practice there’s any difference.

We’ve employed the clear evidence standard because that’s the standard this Court has adopted for overcoming a presumption of regularity.

Antonin Scalia:

I’m… I’m… I’m glad you backed off from compelling evidence.

It seems to me if there were compelling evidence of Government’s misdoing, you wouldn’t need the photographs.

If it was already compelling, the photographs would… would not prove anything additional and you would… you would reject it for that reason, right?

Patricia A. Millett:

That may… that may well be.

The compelling… the way the compelling evidence standard works, as we understand it, and the way the clear evidence standard works that we propose is not that that means you get the photographs.

It just means that you have something of weight on your side of the balance.

We think the unsubstantiated allegations of governmental misconduct are worth virtually none, if no weight–

John Paul Stevens:

But are the… does the term compelling interest refer to the allegations that the person seeking the photographs makes, or the evidence he has supporting his position?

Patricia A. Millett:

–It has to be the… the evidence of governmental misconduct.

Empty allegations–

John Paul Stevens:

Independently of what the… the photographs themselves would show?

Patricia A. Millett:

–That… I mean, that presumably will not be the evidence, right, you can’t just come say that… that would be sort of boot-strapping to say that the evidence is the… I have to see that so that I will have my evidence of your governmental misconduct, which essentially–

John Paul Stevens:

Okay, tell me again what… what the test is as you… you understand it.

Patricia A. Millett:

–The… the test… you mean with respect to unsubstantiated allegations of governmental misconduct?

John Paul Stevens:

Yes.

Patricia A. Millett:

That is that the FOIA requester must come forward with clear evidence of governmental misconduct on their own, independent evidence on their own, to have a cognizable public interest to weigh against the intrusion on privacy that has occurred in this case.

And that is the standard that this… the clear evidence standard comes from this Court’s decisions, which say that is the quantum of evidence needed to overcome the presumption of regularity and legitimacy that attaches in this case to law enforcement investigations.

Ruth Bader Ginsburg:

Does the Government… does the Government… as I understand FOIA, the Government has the burden of proof, the Government presents an exemption and it is the Government’s burden to show that the exemption applies, not the requester, because going in, am I right to say, the requester can ask for this information for any reason or no reason?

Patricia A. Millett:

That… that’s… with respect… until an exemption is triggered, there’s no need to have any reason for your FOIA.

You can have a good reason, a bad reason, or no reason to ask for information, but–

Ruth Bader Ginsburg:

So what is the Government’s burden that it has, at least the initial burden is on the Government to show what?

Patricia A. Millett:

–The… the initial burden on the Government is once an exemption… we have to show that an exemption is triggered.

We have to, in this situation, identify a cognizable privacy interest which–

Ruth Bader Ginsburg:

Now, after you point to which number, 7, you point to 7(C) and that… that… the burden must be more than just, say–

Patricia A. Millett:

–No, that… that’s right, in fact, we get the written steps.

We have to identify a cognizable privacy interest and then, before we make a decision to withhold, we ourselves must make the… must balance.

It’s our job to do this balancing before we invoke an exemption, so we ourselves will then try to identify if we can from the requester’s papers or on our own what public interest would be served by the disclosure of these documents.

Patricia A. Millett:

Now, it’s not the particular interest of the requester, but it’s the relationship between this document and serving the public interest that was identified in Reporters Committee of revealing the operations or activities of the Government.

So in this case, we looked, we found a substantial privacy interest here, and then we looked at photographs of a deceased body at a death scene and in our judgement, these reveal nothing about the operations or activities of the Office of Independent Counsel and… and–

Antonin Scalia:

–Ms. Millett, you… you… you say that you have to show clear evidence of… have clear evidence of government misconduct.

What do you mean by misconduct?

What… what has been brought forward here, at least, are some disparities in… in various governmental reports, which suggest that at least there was negligence or sloppiness in some of the reports.

Is that enough to establish what you mean by governmental misconduct?

Or does it have to be some willful cover-up?

Patricia A. Millett:

–Justice Scalia, first of all, I don’t think there’s any evidence of negligence or sloppiness here, but if we adopt that–

Antonin Scalia:

All right, well, we… we’ll get to that, I assume, right?

Okay.

Patricia A. Millett:

–If we adopt that characterization, the fact that someone cannot… can identify something more that they should have been done, or the fact that… that they disagree with the ultimate result, is not governmental misconduct.

The type of thing that might rise… that… that might count, is something that was… if you had evidence that, you know, governmental investigators had suborned perjury, and you had evidence in the form of–

Antonin Scalia:

Willful?

Has to be willful?

Patricia A. Millett:

–I’m sorry?

Antonin Scalia:

Has to be willful?

It cannot be just a sloppy job?

Why… why isn’t that of interest to the public?

Patricia A. Millett:

I don’t… I… I don’t think… well, if… if they’ve got evidence of a sloppy job, then FOIA has already worked.

They can… the purpose of FOIA is not… it’s not a 60(b) motion to reopen an investigation or to make us investigate more.

It’s to see… learn what the Government did and then critique it as much as you like.

David H. Souter:

Okay.

Why… why then do you take the… I’m sorry… why… why do you take the position that to satisfy the… the… the condition of revealing the operation of the Government, it’s necessarily got to reveal something to the discredit of the Government?

What if someone came along and said, I think this was a superb investigation, and the Government is far too modest about what it has done, and I… I want the country to know?

Would… would that support a claim?

Patricia A. Millett:

Well, Justice Souter, let me be very clear.

We’re talking here about the allegations of misconduct because that is the public interest that is asserted.

One might be able to–

David H. Souter:

Right, but if misconduct… my… the reason I’m raising the question is, if misconduct does not have to be shown, I suppose that would have a bearing on the degree of misconduct in a case like this that would… that would suffice.

Patricia A. Millett:

–Well, a public interest has to be identified at some point, and the problem with this case is, or the problem–

David H. Souter:

No, but what about my question for a minute?

Patricia A. Millett:

–Right.

David H. Souter:

Why is… why is it an illegitimate public interest for somebody to come along and say, I want to make the Government look good.

They are hiding their light under a bushel.

I… I want the people to know how… how fine they’ve done.

Why is that not a… a possible legitimate objective under the statute?

Patricia A. Millett:

Well, I think that… that… that is sort of nothing more than… than a desire to show what the Government did in this investigation, transparency in government interest, which is the point of FOIA.

But once you’ve come to an… applying an exemption, you’re going to need something more on your side than just serving the general interests that FOIA itself advances, because otherwise, the exemption doesn’t work as an exemption.

You have to want… want something more than transparency in government.

Now, it may not be that you have to show misconduct.

You might be able to do it because there’s some other sort of acute public interest that’s going to outweigh it, but I think in the end, the public interest in making the Government look good or telling the Government… tell the public more about what the Government did is never going to be enough to outweigh the privacy interests of individuals.

You can do that with the substantial amounts of disclosures that have already been made.

I would like to reserve the balance of my time for rebuttal.

William H. Rehnquist:

Very well, Ms. Millett.

We’ll hear from you, Mr. Hamilton.

James Hamilton:

Mr. Chief Justice, and may it please the Court:

There are five basic reasons why the privacy interest at issue in this case should be protected.

First, the Foster family seeks to protect their own, wholly legitimate privacy interests.

The privacy interests here of the family are to be free from seeing these photographs on television and in grocery store tabloids, to be free from the knowledge that these photographs are displayed in virtual perpetuity on ghoulish Web sites that show death and carnage, to be free from the harassment by the media that inevitably will follow if these photographs are released.

Second, while FOIA privacy protection is broader, there is significant common law authority that a survivor’s right of privacy is violated by showing photographs of deceased loved ones.

The Restatement of Torts recognizes this, so does Reid v. Pierce County, a 1998 decision by the Supreme Court of Washington, en banc, which allowed a cause of action for displaying the autopsy photographs of former Governor, Washington Governor, Dixie Lee Ray, at cocktail parties.

Third, every FOIA case that has examined the issue has found that in appropriate circumstances, survivors have a proper… a privacy interest.

The Ninth Circuit and the D.C. Circuit did so in the cases involving these photographs.

There is a 1987 opinion in the D.C. Circuit of Badhwar v. Air Force that does so regarding autopsy reports, and Justice Ginsburg joined in that opinion.

Antonin Scalia:

Mr. Hamilton, assume we agree with you on all of that.

We haven’t heard anything about the other… the other half of the inquiry, and that is what the public interest is in… that might overcome that… that… that privacy interest.

I’m sure the other side is going to… is going to talk about that, the… the alleged discrepancies in the reports and whatnot.

Can… can you shed some light on that?

James Hamilton:

Well, Justice Scalia, we think that there is no public interest on the other side.

We think as… as counsel for the Solicitor General has said, that there’s a strong evidence test for showing that there is government… government misconduct where that is the allegation of the public interest, which is the situation here.

James Hamilton:

A… a number of courts have said that the test should be compelling evidence.

The D.C. Circuit has done that in several cases.

The Fourth Circuit has done it.

Other circuits have come to other standards in… in terms of what the public interest should be, but it must be something that is strong, that is not insubstantial.

Secondly, in determining what the public interest is, the Court must be aware that there have been five investigations, five investigations of Mr. Foster’s death, and all of them have found that he died by suicide.

These investigations have released over 3,000 documents over–

John Paul Stevens:

Yes, but it seems to me that the… arguably, the interest in disclosure might not challenge the ultimate conclusion, but rather they might contend… want to show that one of the team of investigators was totally incompetent, and it was necessary to have three or four other investigations to reach the correct result.

I don’t think the ultimate conclusion necessarily answers the… the claim that there may be some public interest in how the investigation was conducted.

James Hamilton:

–Well, Justice Stevens, the… 7(C) requires a balancing, and when you have this balance, you have to weigh whatever the public interest is against the privacy interest.

And here, where there have been five investigations, where the reports are voluminous, where the documents released and the photographs already released are voluminous, it is very difficult to see what the public interest is in getting these photographs, which would grossly invade the privacy of the family.

The other point on the public–

Antonin Scalia:

Well, let… let’s take a particular item of evidence, I mean, like the… the autopsy report that Mr. Favish claims was… was… was altered, that the word neck was white… whitened out and head was written in instead to… to cover the fact that the bullet exited the neck rather than the head.

Now, you know, what… what he and other conspiracy theorists would say is, the fact that five investigations came up with the same conclusion just shows the extent of this… this conspiracy, you know.

They’re not going to be satisfied by the mere fact that… that you had five separate groups.

They’re going to say, oh, all the worse, all the worse, this… this conspiracy is so widespread.

Well, how do you respond to that?

James Hamilton:

–Well, I think the first response I would make is that it is a difficult argument to make that Judge Starr conspired with members of the Clinton administration to protect that administration.

[Laughter]

Judge Starr… Judge Starr’s report was quite thorough, it was over 110 pages.

He answered this question about the… the… the medical report.

The medical report was somewhat inconsistent, but certainly, when you look at the autopsy reports, when you look at the… the… the photographs themselves, it is clear that the… there… there was a… an exit wound in the back of the head.

There was no–

Antonin Scalia:

He might have been protecting Newt Gingrich.

Did you ever think of that?

James Hamilton:

–I… I beg your pardon?

Antonin Scalia:

Mr. Starr might have been protecting Newt Gingrich.

We really… we really don’t know.

[Laughter]

May… may I ask–

James Hamilton:

Justice–

Anthony M. Kennedy:

–the… I wanted to ask this question of the Government, didn’t have the opportunity.

The Government says there were three errors made by the Ninth Circuit.

I assume the district court, under the Government’s test, does have substantial discretion even if we… if we adopt the test the Government wants us to adopt.

And my question is whether or not, rather than simply reverse and remand… and reverse, we have to remand for the district court to do this under the proper test?

James Hamilton:

–Well, I would hope… I would hope, given the full record here, that this Court would not remand, that this Court would decide this issue.

It has been, Justice Kennedy, 10 years since–

Anthony M. Kennedy:

I… I understand, but as a… as a legal matter, if the Ninth Circuit didn’t apply the proper test and if the district judge has to exercise discretion in the first entrance… instance… whether or not we have to remand even if we adopt the Government’s argument?

James Hamilton:

–I… I believe that on the record before the Court, the Court can decide that there is no valid public interest here, and that the interest of… the privacy interest of the Foster family greatly outweighs–

Anthony M. Kennedy:

So you want us to do that weighing?

James Hamilton:

–I… I certainly do.

I want this case to end at this Court, Justice Kennedy.

It has been 10 years and it is time to give this family some peace.

Ruth Bader Ginsburg:

That was the initial position of the district court, wasn’t it?

In the… in the first round, didn’t the district court uphold the exemption?

James Hamilton:

The… yes, Justice Ginsburg.

Ruth Bader Ginsburg:

So the district judge… what… I don’t recall what standard the district court applied in the first instance, but it was the Ninth Circuit that… that said, district court, you have to look at these and disclose the ones that aren’t, whatever that series of adjectives is.

Yes. That… that’s my concern.

Is there evidence that the district court used the standard that the Government now argues for in the first… when he… when the… Judge Keller first looked at this case, did he adopt basically what the Government is asking us to adopt?

James Hamilton:

Not… not exactly.

No, he did not adopt a… a clear evidence test, but the district court in the first instance, in his first decision, did weigh the public interest against the privacy interest and found that as to all of the photographs, the privacy interest prevailed.

I would like to… I would like to return to the… the family’s privacy interest and make one more point, which is that law and tradition treat the moment surrounding death as special, private family matters.

A family generally has the right to decide how to conduct its leave-taking and how to dispose of the body of a loved one with dignity.

At a funeral, a family may choose whether a coffin is open or is shut, and they have that choice even if the deceased person was a public official.

Here, the Foster family decided that the coffin be shut, and to effectively open it now by disclosing the photographs would be an unconscionable invasion of the family’s privacy interest.

In the Reporters Committee brief, the contention was made that the invasion of sorts here would be minimal and would impose no meaningful additional harm.

That assertion is just simply wrong, and those claims ignore the potent and the moving declarations submitted in this case by Ms. Anthony and Ms. Moody.

These declarations express what any family in the circumstance would feel, and they show why law and tradition treat death as a private, family matter.

Mr. Foster’s sister, Ms. Anthony, in her declaration, recounted her nightmares and heart-pounding insomnia each time she has seen the leaked photograph of–

William H. Rehnquist:

Thank you.

Thank you, Mr. Hamilton.

William H. Rehnquist:

Mr. Favish, am I pronouncing your name correctly?

Allan J. Favish:

Yes, Chief Justice, thank you.

Mr. Chief Justice, and may it please the Court:

I can think of no clearer definition of the phrase, personal privacy, as Congress used it in exemption 7(C) than what this Court said about that phrase in the Reporters Committee case when it cited the work of former Solicitor General Charles Fried and other noted scholars on what the definition of privacy is: the right to control information about yourself.

That’s what I base this case on.

I want you to stick with what you said on that point in 1989.

Ruth Bader Ginsburg:

The issue wasn’t before the Court.

There were no family members.

It was an individual, so it was natural for the Court to address it.

Allan J. Favish:

Justice Ginsburg, the definition of privacy as intended by Congress in exemption 7(C) was before the Court in Reporters Committee, and this Court–

Ruth Bader Ginsburg:

But the… the Court didn’t have a case that involved, say, for example, what was presented in the Challenger case.

It didn’t come here, but it did go to the district court and the D.C. Circuit.

Allan J. Favish:

–I agree–

Ruth Bader Ginsburg:

Are… are you saying that Reporters Committee showed that that decision was wrong?

Allan J. Favish:

–No.

I… I agree with you that Reporters Committee did not involve death-related documents, if that’s what you’re saying.

I agree on that point.

But Reporters Committee gave only one definition of privacy as intended by Congress, and that definition should apply to all circumstances in which FOIA requests may come up.

Stephen G. Breyer:

There’s a tradition going back thousands of years in human life.

You can go back to Antigone, Euripides, every major religion, respect for the dead, respect for survivors, and that runs through every religion, through Greek myth, tragedy, and why isn’t that important enough to human life to believe that Congress also intended to encompass that?

Allan J. Favish:

I believe it is an important interest, but Congress left no indication that it intended for that interest to be protected by the privacy language in exemption 7(C).

Stephen G. Breyer:

Well, if the history is totally silent, why wouldn’t we assume that Congress intended to recognize something so deep in human nature?

Allan J. Favish:

Well, the… the legislative history isn’t totally silent.

Stephen G. Breyer:

No, I mean if they said, no, no, we do not intend to respect this sacred tradition, fine.

But I bet they didn’t say that, and for good reason.

Allan J. Favish:

They did not say that, but they did talk about personally identifying details and government agencies where person–

Antonin Scalia:

Are you reading from the legislative history?

Allan J. Favish:

–From the legislative history, which is at page–

Antonin Scalia:

Why don’t you use the text of the statute?

Allan J. Favish:

–Yes.

Antonin Scalia:

I would… I would think that your response to… to Justice Breyer would be that the… that the word privacy is not a… the normal way of… of expressing those concerns for respect for the dead.

Allan J. Favish:

I agree, I agree, and that’s why I cited what this Court did in Reporters Committee, and those concerns are valid and those concerns should be made to Congress in an attempt to get them to add another exemption to the FOIA, if that’s what the Government and the Foster respondents want.

We know that–

Stephen G. Breyer:

You’ve heard… you’ve heard Mr. Hamilton mention aspects of how the revelation of documents, pictures of the dead, can injure a survivor.

Why isn’t the word privacy broad enough at least to cover that?

Allan J. Favish:

–That’s not the way this Court defined it in Reporters Committee.

That’s not the way I’ve seen it defined anywhere else except a few aberrational cases, which by the way–

David H. Souter:

Well, one… one of the… one of the definitions that I think we instinctively assume is the very simple one that Justice Brandeis used, the right to be let alone.

That is at the… at the heart of a lot of privacy thinking in our law, and the right to be let alone, I suppose, would encompass at least two things relevant in this case.

One is the right not to be assaulted by these photographs, which will be very upsetting.

That is… that’s certainly not being left alone when… when you have to go through that.

And the second consequence, I would suppose, of publication is simply even in the narrowest definition of privacy, even apart from the Brandesian sense.

If these things are going to be published, the family is going to be subject to intrusive inquiries again.

People are going to ask them for comments on it.

They’re going to go to their house again and take a picture of the front of the house.

Why aren’t these interests, which at this time in our history I think do tend to fall with… within the concept of privacy, easily encompassed by the… the sense of privacy in the exemption?

Allan J. Favish:

–The right to be let alone was not the sole expression of the definition of privacy in that article.

In fact, in Reporters Committee–

David H. Souter:

Well, nothing it… I… I’m not suggesting… your… I mean, your argument is based upon the fact that there has to be one narrow definition of privacy encompassed by this word, and no other.

You’ve gone back to a case in which we were talking about the interests of the living, and you say it can’t be anything more than that.

Why do you make the assumption that privacy is such a circumscribed concept in the exemption?

Allan J. Favish:

–Well, the word privacy, if it’s going to be meaning the right to be let alone in its broadest sense, I suppose anything that could be considered a tort then would be considered a violation of somebody’s privacy right.

Antonin Scalia:

Mr. Favish, do… do we have any case law that suggests that the exemptions to the Freedom of Information Act are to be narrowly construed?

Allan J. Favish:

Well, sure, this Court’s decision in Rose, Department of Air Force, there are many cases–

Antonin Scalia:

Isn’t that your… isn’t that your response to why you should not think that privacy means the right to be let alone?

Allan J. Favish:

–Exactly.

Antonin Scalia:

Or anything beyond its narrowest meaning?

Allan J. Favish:

I… I–

Antonin Scalia:

I assume that that’s your argument?

Allan J. Favish:

–Yes, absolutely.

Allan J. Favish:

That’s established that these are to be narrowly construed, and that was a part of the legislative intent of Congress to have the exemptions clearly delineated, specific, so that there would be clear standards.

In fact, that was the… the reason for the Freedom of Information Act being enacted in 1966, because the prior enactment was allowing the Government to take ambiguous language and cover every document with it.

So if you are going to come up with another definition of privacy, it has to fit within that legislative intent.

Ruth Bader Ginsburg:

Are you saying that this Court, because of the definition in Reporters Committee, has already recognized that it’s got to be the individual that is in the photograph and families are out of it?

That it… that… that’s… so you would… you would say the D.C. Circuit was wrong, the district court in the Challenger case, which involved the voices of the people?

Allan J. Favish:

Okay.

Two… two parts to your question.

First, as to your first part, based on what this Court did in Reporters Committee, I’d say privacy in this context is the right to control information about yourself.

If the survivors have no information in that photograph or document, they have no privacy interest here.

With regard to the Challenger case, the D.C. Circuit in Challenger did not reach this issue.

The sole issue they decided was whether or not the threshold had been met in this exemption (C) case, which was whether the file was a personnel, medical, or similar file.

Ruth Bader Ginsburg:

Yeah, but it went back to the district court.

Allan J. Favish:

The district court made the decision that there was a privacy interest, but it wasn’t the D.C. Circuit that made that decision, and the D.C.–

Ruth Bader Ginsburg:

But in… in any event, you would say that district court decision was off-limits because this was a case of survivor grief, no information about the survivors?

Allan J. Favish:

–Yes, I would.

And I’d like to point to two cases, one of which has already been cited to you in the brief by the Silha Center, one of the amicus, and that’s Cordell v. Detective Publications.

It’s a Sixth Circuit opinion from 1969.

And also, a case that hasn’t been cited to you yet is a Federal district court case called Young v. That Was The Week That Was, and that’s at 312 F. Supp. 1337.

The beauty of these two Federal cases, they’re both from 1969, which is just three years after Congress first enacted FOIA, just a few years before they put the privacy phrase in exemption 7(C).

They talk about the common law definition of privacy and–

William H. Rehnquist:

Well, if… if they were decided in 1969, why are they not in your brief?

Allan J. Favish:

–Well, I didn’t… I filled up my 50 pages and I didn’t address this specific issue, other than citing Reporters Committee.

David H. Souter:

Well, on… on… on Reporters Committee, maybe you’ll disagree, but what I think is… is… is the key language is in roman IV, where the Court says, to begin with, both the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person.

It doesn’t say consists of or is defined, it says encompass.

The Court couldn’t have been more careful to use a word to say that this is… that it includes.

It doesn’t say it’s exclusively confined to.

Allan J. Favish:

I… I–

David H. Souter:

I… I just think that’s a very unfair reading of that sentence.

Now, if you have something else.

Allan J. Favish:

–No, well, then I look at… well, first of all, I generally agree with what you just said.

David H. Souter:

I… you… you agree that that is… that’s the key sentence that we’re talking about.

Allan J. Favish:

Yes, and… but I don’t… I disagree that it’s unfair, because then I look at what was cited by the Court, and all these scholarly articles talk about the right to control information about yourself.

And I see nothing else in the word privacy from the common law, other than a minority of aberrational cases, and certainly nothing in the legislative history that would come up with this relational tort, this survivor privacy–

David H. Souter:

Well, but that’s what we were involved with.

It… it’s not our style to say, now we have before us the question of whether there is this… privacy includes control of the individual’s information about himself.

Now, of course, there are many other definitions, but we… we don’t write opinions that way.

Allan J. Favish:

–Right.

I agree, but if you look at the scholarly articles that you cited, none of them endorse this survivor privacy theory.

They talk about privacy as the right to control information about yourself exclusively.

Sandra Day O’Connor:

Well, Mr. Favish, now, the court below didn’t really rest on that ground, did it?

I mean, you… you didn’t… the court below didn’t think that privacy was limited to this… to the deceased?

Allan J. Favish:

Neither the district court nor the Ninth Circuit–

Sandra Day O’Connor:

No.

Allan J. Favish:

–accepted that.

Sandra Day O’Connor:

And so I assume you may want to address the other arguments in the case.

Allan J. Favish:

Certainly.

If you do–

Sandra Day O’Connor:

Do you defend the approach taken otherwise by the courts below?

Allan J. Favish:

–No, I don’t.

And if you do get to a second step where you are going to be balancing whatever privacy interest you might find here against the public’s interest, then you have an overwhelming… an overwhelming case that’s been established showing that there was government misconduct here, at least negligence.

And I talk about the government conduct on two separate levels.

One, there was government conduct in investigating Mr. Foster’s death, finding out what happened to him.

Second, there was government conduct in reporting about that death and the investigation to the public.

The primary reporting agencies here were the Fiske and Starr OICs.

Now, with regard to the first area of government conduct, the investigation as to finding out what happened, it’s just educated guesses that the public can make about whether there was any negligence here.

But with regard to the second area of whether or not the reporting conduct by the Government was at least negligent, we know to a 100 percent certainty that there was at least negligence, because we know that… let me talk about what Justice Scalia talked about, the autopsy report.

To be more correct, Your Honor, it was a… a report by the only doctor to view Mr. Foster’s body at the park.

It was not the autopsy report.

It was a two-page document.

Page 2 talked about the death-shot being mouth to neck.

Allan J. Favish:

Mr. Hamilton stated that Mr. Starr dealt with that in his report.

That’s not true.

Mr. Starr ignored page 2 of the Haut report.

That’s one of the problems here.

We talk about these different investigations.

Well, nobody investigated that language on the Haut report.

Nobody investigated the FBI–

Ruth Bader Ginsburg:

Explain how the… the four documents that we’re concerned with don’t talk about… none of them show head and neck, so I don’t… we… we hear only about those four documents, right?

Because the district court and the Ninth Circuit said, right, not all ten but only those four?

And none of those four have anything to do with head and neck.

Allan J. Favish:

–I… I… I’m… I’m not sure I follow your question.

I… I understand that all 10 photos are at play here because–

Ruth Bader Ginsburg:

Well, that… that’s what I’d like clarified, because I thought that we are reviewing a decision that the Government has asked us to review, which said, Government, disclose four photographs.

Allan J. Favish:

–My understanding is that the petition that was granted by the Government had, as its question presented, was the Office of Independent Counsel correct in withholding all of these photographs?

And under the–

Ruth Bader Ginsburg:

But the court below said yes with respect to six of them.

So how do we get to review that?

Allan J. Favish:

–Yeah, the–

Antonin Scalia:

Didn’t you cross-petition on the six?

I thought you cross-petitioned.

Allan J. Favish:

–Yes, I did, and that’s being held over.

Antonin Scalia:

That’s the answer.

Right.

Allan J. Favish:

So I believe all 10 photos are at play here in what decision you come up with, because the… all the issues presented by all three petitioners are subsumed under the question presented in the petition that you granted.

Stephen G. Breyer:

I’m worried about… suppose you won.

I take it the police investigate hundreds of thousands or millions or crimes every year, and in those investigations they may investigate people whom they later conclude are innocent, perhaps again hundreds of thousands of millions of them.

And, of course, there might, in respect to those people, be lots of newspapers or others who would like to have the police records about people found to be innocent.

Now, what would protect these thousands or hundreds of thousands of innocent people from having the police investigation of them displayed on the front page of their local paper if you were to win this case?

Allan J. Favish:

Well, if I was one of those people that you’re talking about and–

Stephen G. Breyer:

Yes, well–

Allan J. Favish:

–and there’s information about me in the document, I have a privacy interest in the document, is what my position is.

Stephen G. Breyer:

–Well, if you… but suppose you won this, if you won it, then you and everybody else, let’s say millions of people, you don’t mind perhaps, or not enough, you don’t mind enough, but a lot of people would mind having a police report about them on the front page of the local paper.

Allan J. Favish:

Well, then, in that case–

Stephen G. Breyer:

Now, what is it that… if you win, I don’t see that those people would have any protection whatsoever.

Allan J. Favish:

–The protection would be in the balancing that’s done to see–

Stephen G. Breyer:

The balancing would be that the police had found them innocent, and it’s not that hard if you win this, where there have been five investigations, for somebody to say, oh, there was a police cover-up, they weren’t really innocent.

Allan J. Favish:

–I–

Stephen G. Breyer:

And if there are two investigations, they’ll still say it, and there’ll always be something that isn’t perfect about the investigation, so they’ll have a peg to hang their hat on.

Allan J. Favish:

–Under the balancing, all the factors must be taken into account.

We have an almost unique situation here of a deputy White House counsel, public official, very close to the President of the United States, who was under investigation at the time, there were documents related to that investigation in Mr. Foster’s office, that is why Kenneth Starr and Robert Fiske investigated this.

We’re talking about the highest levels of government where there’s a mysterious death by gunshot.

This is not one of the cases that you pose a hypothetical about.

This is something unique and–

David H. Souter:

But I don’t see how you can confine it to uniqueness.

Why doesn’t everyone in every hometown in America have a… a very significant interest in whether their police department is adequately investigating and evaluating reports of homicide.

Of course they have an… an interest in that.

Allan J. Favish:

–I–

David H. Souter:

Every… everyone in… in… in any Federal district has an interest in whether the United States Attorney and the FBI and so on are investigating serious crimes, and I… I don’t see how you can confine this to what you call the unique case.

Allan J. Favish:

–I… I’m not saying it would be confined.

I’m saying that this is what sets those other… this case apart from the others.

But in principle, unless it falls within one of the exemptions, then that information would have to be made public–

David H. Souter:

So–

Allan J. Favish:

–under the FOIA as it currently exists.

David H. Souter:

–But here’s the… I think one of the… the… one of the things that’s bothering Justice Breyer, and it’s bothering me, if we accept as broad a principle as you argue for, is this: that one of the things that… that most police investigators learn very early on is that when the investigate a crime and they investigate a suspect, the suspect’s old friends and enemies come forward, and the latter frequently even ups some old scores.

The amount of misinformation that is intentionally communicated to law enforcement officers is enormous.

They have to evaluate that, and it seems to me that that kind of misinformation is… is… is going to come very close to the front page in most cases if… if a principle as broad as yours is accepted.

Allan J. Favish:

Well, first of all, I believe in the FOIA, in exemption 7, there is an exemption for ongoing investigations, so much of what you’re talking about–

David H. Souter:

Well, yeah, but the… the problem for the person being investigated who is ultimately exonerated is going to be the same the day after the investigation is… is over.

So that… that doesn’t answer the problem.

Allan J. Favish:

–Yeah.

Allan J. Favish:

Now, I’m just talking about the privacy exemption in 7(C).

Now, I don’t know in your hypothetical whether there would be other exemptions to prevent disclosure in those situations.

I’m not commenting on that.

Now, with regard… yes.

David H. Souter:

Neither… neither do I, in fact.

Mr. Favish, here’s… here’s my… I mean, one… once you get past the first… the first issue, whether the privacy exemption at all covers this, if you assume it does cover it, you have relatives here who are going to be very much… very much harmed by… by this, as is shown by the mere fact that they’ve conducted this lengthy litigation.

It’s lasted how long, and I’m sure it’s been expensive.

Now, what is the interest on the other side?

If… if you… if you had a plausible case that… that these investigations reached the wrong conclusion, I’d say, yeah, that’s a pretty significant governmental interest.

But I don’t see that here.

I… you… you… you’ve just demonstrated some foot faults in… in each of the investigations.

Oh, this… this investigation made this mistake, this other investigation made the other mistake.

I mean, you really think that that is a matter of… of significant moment for… for the country, that there was an isolated mistake in… in one and another of the investigations?

Who cares?

Allan J. Favish:

Justice Scalia, I would not characterize them as foot faults.

I think these are major omissions of significant evidence that pointed away from the Government’s official conclusion, and what it establishes is that the government reports are not trustworthy.

I agree that in the end those reports may be correct and it was suicide in the park.

Again, like I said earlier, I can just make educated guesses about that.

I’m not saying that it was definitely something other than that, but I am saying that when you have a high-level government official involved in this kind of investigation, and then you have so many investigations by the Government, apparently to get it right, that it took so many, you have a public interest here, unlike almost any other case I could imagine.

William H. Rehnquist:

Well, why should the high level of the victim make that much difference?

Allan J. Favish:

As opposed to just an innocuous neighbor down the street, perhaps.

William H. Rehnquist:

Well, say a… a public interest in something that happens in Albuquerque, New Mexico, maybe the assistant to the mayor is shot.

Allan J. Favish:

Because we’re dealing with somebody who was working close to the President of the United States and we’re talking about the Freedom of Information Act, whose primary purpose is to allow the people to be a check on government, not only to–

William H. Rehnquist:

Well, but… but why… why wouldn’t that be just as true of this incident, hypothetical incident in Albuquerque as the Vince Foster slaying?

Allan J. Favish:

–Well, it very well might be with regard to city or state government and states have their open records acts, and as we heard before, some of them prohibit death photos, but they do that by legislation.

We know that the State of Florida did that in response to amicus Teresa Earnhardt’s plea.

That’s what should be done here if they want the Federal Government to follow the lead of the state legislatures here.

It’s not for the courts, with all due respect, to rewrite the FOIA exemption, so I… I’m not disagreeing that that’s a valid concern, but the way–

John Paul Stevens:

Well, you’re… you’re… you’re getting away from the hypothetical.

The hypothetical, if you… if you insist on taking this line, could be refined so that we assume New Mexico has exactly the same statute and has interpreted exactly the same way.

John Paul Stevens:

Then you have to answer the hypothetical.

Allan J. Favish:

–Oh, absolutely then.

If… if the balancing is done and you’re talking about a law like FOIA where the primary purpose is to allow the people to ensure that their government is honest, because that’s the heart of our democracy and we’re talking about the integrity of our law enforcement agencies, I can think of no higher public interest than what’s being asserted here.

And again, all of this is going to have to be–

John Paul Stevens:

So… so… so then it doesn’t just turn on the fact that it’s Vince Foster and that… and the Chief Justice’s point is… is that this was going to apply to every police department, every… every local government in the country that has an act like this?

Allan J. Favish:

–Well, in principle, yes.

How the balancing would come out in each individual case would depend on the ad hoc balancing, but the principles would… would be the same if the law is the same, I agree.

Stephen G. Breyer:

When a person goes to work for the Government, on top of everything else, he even loses a private right to bury the body.

I mean, I’m speaking metaphorically, but, I mean, there are a lot of disadvantages in government, and you’re saying one of the things would be that after death there is no protection, even to see that that body is buried and the photographs disappear for the… for the–

Allan J. Favish:

Well–

Stephen G. Breyer:

–It would just go on forever.

Allan J. Favish:

–Well, we’re not talking about interfering with the… the burial process.

Stephen G. Breyer:

No, I know.

I’m speaking metaphorically.

I have Antigone in my mind.

[Laughter]

Allan J. Favish:

Again, as I read the FOIA exemption 7(C), the privacy exemption, Congress has not legislated that the Government is allowed to withhold death photographs under this privacy exemption.

If we think that’s a good public policy to enact, we should get Congress to hold hearings on it and we’ll find out all the yeas and the nays and that’s how good legislation comes.

And that’s what should be done here and–

Ruth Bader Ginsburg:

What does privacy cover without that?

Are you suggesting that there be a catalog A to Z of… and the… and the word privacy within the meaning of 7(c) covers, and that’s–

Allan J. Favish:

–Oh, in terms of what Congress might do or what this Court might do?

Ruth Bader Ginsburg:

–No, in terms of… the Court has no leeway unless Congress has such a catalog and this is one of the enumerated items–

Allan J. Favish:

Well, we know that Congress used the phrase, personal privacy, in the statute, and now the debate is over what did they mean by that.

And apparently, people are scribing words, Alice-in-Wonderland-like definitions to words, and if we go down that route–

Ruth Bader Ginsburg:

–But it’s not very Alice in Wonderland-like to take the Brandeis definition that started this all.

Allan J. Favish:

–What I like about the Brandeis article is–

Antonin Scalia:

I think it’s Alice in Wonderland-like.

Allan J. Favish:

–What I like about the Brandeis article is the section of that article that was cited by this Court in Reporters Committee.

The Brandeis article was one of the six scholarly articles.

Allan J. Favish:

Now, keep in mind, the Brandeis article, 1890, was maybe the earliest trying to come up with a definition of privacy, so the language isn’t as precise as what, for instance, former Solicitor General Fried came up with in his seminal 1996 article, also cited by this Court.

So I would say that the best definition that provides the clearest workable standard is the right to control information about yourself, and again, on the second point here, I… I won’t go down the litany of things that are in the brief talking about how there was misconduct, at least negligence with regard to reporting this case, but once I’ve established that, which I have, I think that the Government can no longer be trusted to filter the raw evidence to the people in this case, and I don’t see how in a democracy that depends on the integrity of its law enforcement agencies in a case where you’ve had… well, by the way, there haven’t been five investigations.

For instance, the Senate Whitewater Committee stated out the outset of its two-day hearings they’re not looking into whether Mr. Foster committed suicide or not.

That’s in the record.

Look at ER 603 and those pages.

So we’re also looking at a situation with regard to the Fiske and Starr offices using FBI agents as part of their investigation, where the FBI did the initial investigation with the Park Police.

That’s all in the record.

There’s a conflict of interest there when you have FBI agents participating in an examination of what they already did.

So to call this five separate investigations is highly misleading, and I think that the only investigation that will matter in this case is the one that the people can do directly by seeing the raw evidence for itself, because for whatever reason, and I don’t impugn the motives of Judge Starr or anybody else, I have no personal knowledge that he actually wrote the report.

He had lawyers in his office.

I don’t know what the mechanics was.

I want to make that very, very clear.

I just want it to be known that we know objectively, and it’s undisputed, there were major pieces of evidence omitted from the Fiske and Starr reports that point to something other than the official conclusion, not just little details, because those things, I agree, can be explained sometimes.

We’re talking about major, major issues, and those are spelled out in the brief in detail for you.

Antonin Scalia:

Mr. Favish, are there any other Federal statutes that use the term privacy?

Allan J. Favish:

There is the Privacy Act enacted in 1974, and there is a definition which talks about personally identifying details, and I don’t have that at hand right now, but it’s consistent–

Antonin Scalia:

You don’t think that covers relatives who are deceased?

Allan J. Favish:

–I don’t think it enacts a definition that gives somebody a privacy interest in a document–

Ruth Bader Ginsburg:

I don’t either.

Allan J. Favish:

–which has no information about them, and I think that’s indicative also.

And my one last point has to do with what the Ninth Circuit did here in addition to the reasons I’ve already explained.

They basically said that it isn’t the release of the photos that will cause the harm, it’s what’s going to be done later, media intrusion and so forth, which I think violates what Justice Scalia said in his concurrence in the Ray case about the derivative uses.

Now, Ray was an exemption 6 case, but it focused on the word that’s common to both exemptions, constitute, would the release or production constitute the invasion of privacy?

What the Ninth Circuit came up with really violates what Justice Scalia said in his concurrence in Ray, with which I… I agree wholeheartedly.

William H. Rehnquist:

Do you think the Ninth Circuit is bound to agree with Justice Scalia’s concurrence?

[Laughter]

Allan J. Favish:

I… I–

Antonin Scalia:

You just think they would be well advised to do so.

[Laughter]

Allan J. Favish:

–I think they would be well advised to have at least noted what Justice Scalia said and compare it to what they were doing, and if they had done that, they would see that what they did was wrong on that score.

Allan J. Favish:

And that’s really all I have.

I thank you.

William H. Rehnquist:

Thank… thank you, Mr. Favish.

Ms. Millett, you have four minutes remaining.

Patricia A. Millett:

Thank you, Mr. Chief Justice.

Justice Breyer, you hit the nail on the head when you said that if this type of investigation isn’t enough, what’s going to happen in the routine case?

This is the gold standard for law enforcement investigations, and if in this case, the fact that someone can think of something more that should have been said, something more should have been done, something more should have been revealed, then in the run-of-the-mill routine law enforcement case, there will be little protection left for privacy.

And the problem won’t be just that this information will end up on the front page of the New York Times, but under the 1996 amendments to the FOIA, if… if the Government anticipates three or more requests for information, we’re obliged to post the information on our Web sites for photographs taken after 1996… November 1996.

You won’t need to go to findadeath dot com.

You can go to departmentofdefense dot gov to find pictures of… the 50 pictures that are routinely taken during autopsies of military office… officials killed overseas.

Justice Kennedy, you had asked about the remand, whether a remand was necessary.

It is not in this case.

On pages 56A through 59A of the petition appendix, the district court, before being redirected by the court of appeals, we think erroneously, ruled that the… the pictures should be withheld applying a less demanding standard than the one that we approached, that it just balanced the allegations of misconduct against the privacy interest, and concluded that the privacy interest still outweighed, assuming that… that just allegations count for something on the public interest side.

So if this Court agrees with the Government’s position or requires anything more than allegations of misconduct, there’ll be no need to remand.

It’s also not a discretionary decision, it’s a de novo review.

The balancing is undertaken in the first instance, but it’s reviewed de novo by the court of appeals and de novo by this Court.

Justice Scalia, you talked about this doesn’t sound like privacy.

Well, privacy is a language that has been used by not all, but a number of common law courts that are cited in our opening and reply brief.

And this Court’s interpretation of the concept of privacy under the Freedom of Information Act has gone far beyond what tort law would protect.

There… I don’t know that there’s any court case that would suggest that rap sheets should be public records, like rap sheets would be protected under privacy conceptions in common law, so it would be extraordinary in this case to decide that the language Congress employed, personal privacy, is intended to be interpreted more narrowly than it has, at least at some… at some courts at common law.

Justice Scalia, you also asked about narrowly construing the exemptions.

It’s… I agree that there are cases that say that, but in John Doe Agency v. a John Doe Corporation, this Court made clear that these exemptions still have to be interpreted in a way that allows their exempt… the purposes of the exemptions to be served.

And in a… and they should not be construed in the non-functional manner.

If law enforcement is to become the instrument… in the eyes of the public, the law enforcement, the Federal Government, will be the instrument of these types of disclosures and causing this type of pain to families that is likely to have a chilling effect on people’s willingness to provide information to law enforcement.

You asked about other statutes, and we discussed the Privacy Act statute.

The Privacy Act statute doesn’t apply to survivors, but that’s because the language is specifically different.

The Privacy Act talks about… defines the… the records that are covered in terms of information about an individual and information that… to that pertains to the individual.

It has a sort of very… and it has to be information contained in a system of records that… where information can be retrieved by an individual identifier.

It’s a very narrow and specialized definition.

It’s exactly the type of definition that Congress would have used if it wanted a more narrow approach.

Patricia A. Millett:

Thank you.

William H. Rehnquist:

Thank you, Ms. Millett.

The case is submitted.