National Archives and Records Administration v. Favish

PETITIONER:National Archives and Records Administration
RESPONDENT:Allan J. Favish, et al.
LOCATION:University Court Housing Project

DOCKET NO.: 02-954
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 541 US 157 (2004)
GRANTED: May 05, 2003
ARGUED: Dec 03, 2003
DECIDED: Mar 30, 2004

Allan J. Favish – argued the cause for Respondents
James Hamilton – argued the cause for Respondents Anthony and Moody in support of petitioner
Karen B. Tripp – for the Association of American Physicians & Surgeons, Inc., et al. as amici curiae
Patricia A. Millett – argued the cause for Petitioner

Facts of the case

Vincent Foster, a high-ranking White House lawyer involved in the investigation of possible fraud by the Clinton family in the Whitewater real estate venture, was found dead in a Virginia park. Two government investigations subsequently found that the death had been a suicide. Allan Favish questioned the findings of the government investigations, claiming that they were part of a government cover-up of murder. Under the Freedom of Information Act, Favish requested access to 150 photos of Foster’s body in the park and during the autopsy. He later reduced his request to 129 photos.

The government initially denied him access to all the photos, but eventually gave him access to 118 of them. It withheld the rest, arguing that the privacy interest of Foster’s family members in relation to Foster’s death trumped the public interest served by providing Favish access to the photos. The government stated that the photos were very graphic and that releasing them would upset the family. Favish countered by arguing that the family did not have a relevant privacy interest; the only person whose privacy interests would be violated by the release of the photos was Foster, Favish argued, and Foster’s death had rendered him incapable of exercising that interest.

After a series of appeals in which a Ninth Circuit panel held that the Foster family’s right to privacy was relevant to the case but that the district court must look at the specific photos in order to weigh the privacy rights against Favish’s right to access government information, the Ninth Circuit eventually decided that Favish should be given access to all but four of the photos. The government, joined by the Foster family, appealed the decision to the Supreme Court.


Do family members of a man who apparently committed suicide have a privacy right that justifies the government’s withholding autopsy photos from a request for information under the Freedom of Information Act?

Media for National Archives and Records Administration v. Favish

Audio Transcription for Oral Argument – December 03, 2003 in National Archives and Records Administration v. Favish

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

William H. Rehnquist:

The opinion of the Court in No. 02-954, National Archives and Records Administration versus Favish will be announced by Justice Kennedy.

Anthony M. Kennedy:

The apparent suicide of Vincent Foster who has been the Deputy Counsel to President Clinton received wide publicity.

That was some time ago and this case arises in the wake of that tragic event.

The case was brought under the Freedom of Information Act by an interested citizen.

The respondent, whose name is Allan Favish, Favish sought to obtain copies of photographs taken by investigators at the scene of the death.

One way to state the issue of the case in the narrowest possible terms is whether under the Freedom of Information Act Favish can obtain the four photographs.

The larger legal issue is whether the deceased’s surviving family members have privacy interests that they may assert under Exemption 7(c) of the Freedom of Information Act.

And if they do have a privacy interest, the question then becomes whether those interests are outweighed by the public interest in disclosure.

Exemption 7(c) exempts from disclosure records compiled for law enforcement purposes if their production could reasonably be expected to constitute an unwarranted invasion of personal privacy.

This case originally came to the United States District Court for the Central District of California and the trial judge initially ruled that only one photograph could be disclosed.

The Court of Appeals of the Ninth Circuit remanded the case to the application of a different legal standard, and after the District Court followed the instructions of the Court of Appeals, it ordered disclosure of five photographs and the Court of Appeals affirmed as to the release of four of the photographs which are the ones that are in question here.

We granted certiorari and we now reverse.

The first issue we address is whether the family members have a privacy interest that can be asserted none of the statute.

We hold that the Freedom of Information Act does recognize the rights of family members to personal privacy with respect to their close relative’s death scene images, burial rights or their counterparts have been respected in almost all civilizations from time immemorial.

This well-established cultural tradition acknowledging the family’s control over the body and the death images of one of its deceased members has also been long recognized at common law.

We assume that Congress legislated against this background of law in scholarship and history when it enacted the Exemption 7(c).

It would be inconsistent with this presumption when we decide that the statute provides even less protection than the common law did.

To say that the family members have privacy interests does not end the case.

The next question is whether the invasion of privacy interest is unwarranted, a question that requires us to balance the family’s privacy against the public interest in disclosure.

This means we first have to identify the public interest sought to be advanced and the public interest must be a significant one, and the information must be likely to advance that interest.

The interest here is a citizen’s interest in uncovering deficiencies or misfeasance in the government’s investigation into the apparent suicide.

We hold that where the public interest asserted just to show that responsible officials acted negligently or otherwise improperly, the person requesting the information must produce evidence that would warrant a belief by a reasonable person that government impropriety might have occurred.

Here, the requester has produced no evidence to put that balance into play.

It is of relevance we think that five investigations had independently concluded that Foster did commit suicide.

The District Court’s first order in this case followed the correct approach.

The case is now remanded with instructions to grant the government’s motion for summary judgment with respect to the four photographs in dispute.

The opinion of the Court is unanimous.