Los Angeles attorney Allan J. Favish achieved mixed results in his attempt to get photographic evidence in the death of White House deputy counsel Vincent W. Foster Jr. released by Independent Counsel Kenneth Starr.
Favish, a civil litigation lawyer, filed a Freedom of Information Act lawsuit in Federal District Court in Los Angeles last month seeking color copies of several previously released photos, as well as 11 unreleased photos. Ten of the unreleased photos pictured all, or part of, Foster’s body while it was still at Fort Marcy Park. The other unreleased photo is of Foster’s eyeglasses, lying on the ground near his body.
In his decision Monday, Judge William Keller ruled the independent counsel does not have to release the 10 photos that show Foster’s body. Starr does, however, have to release the photo of Foster’s eyeglasses, in addition to color copies of all previously released photos. Favish plans to appeal the decision regarding the photos of Foster’s body.
Favish’s original request was for color copies of dozens of photos from the Foster scene. After Favish filed the suit, the office released most of the photos in black and white photocopy form. Favish claimed the photocopies were poor in quality.
Starr’s office withheld the photographs of Foster’s body and eyeglasses based on an exemption for “privacy” in the Freedom of Information Act. The office claimed that releasing the photos would violate the privacy of Foster’s surviving family members.
In Favish’s pretrial motion, he argued that the privacy exemption only applied to the subject of the investigation, not family members. He cited the Third Circuit Court, which defined privacy as “control over knowledge about oneself,” and the Supreme Court, which stated that “both the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person.”
In response, Starr’s office cited previous court rulings regarding privacy as well. Most notable was a decision in which the New York Times was prevented from obtaining a tape recording of the Challenger astronauts’ voices in the moments before they died. NASA invoked the same FOIA privacy exemption to justify withholding the tape. The district court hearing the case, upon remand from D.C. Circuit Court, ruled that “exposure to the voice of a beloved family member immediately prior to that family member’s death is what would cause the Challenger families pain.”
Favish argued that the district court in the Challenger case ruled inconsistently with the Supreme Court’s definition of privacy.
In addition, Foster’s sister, Sheila Foster Anthony, filed a declaration in Favish’s lawsuit. She stated, in part, that “an intensely emotional and private matter drew national attention, and reporters, as well as simply curious individuals, harassed my grieving family in unbelievably insensitive ways. They do to this day. It is my ardent desire to protect my family as well as myself from additional torment which would result from the release of these graphic photographs.”
Given greater emphasis in Favish’s lawsuit were his claims that “the government investigations of (Foster’s) death are grossly incomplete and untrustworthy.” His pretrial motion detailed 10 apparent inconsistencies in the government investigations. Because of these inconsistencies, Favish claimed that even if there was a privacy interest, “it is outweighed by the public’s need to know.”
Starr’s response failed to address Favish’s accusations of incompleteness and distrust in detail. The independent counsel’s office claimed that “five government inquiries have determined that Vincent W. Foster, Jr. committed suicide by gunshot in Fort Marcy Park on July 20, 1993.” A reference was then given to the official report on the death.
Starr’s response also stated that even though it “already has furnished (Favish) with copies of 118 Foster-suicide investigatory photographs … he offers no explanation … as to why the (it) would have done so if it truly were motivated by a desire to hide the truth.”
Favish believes the release of the eyeglasses photograph would be significant. It represents one of the points of inconsistency in the Starr investigation. He would like to find out if “the photo … shows any of the blood reportedly seen by Henry Lee, but missed by the FBI lab,” and if “the eyeglasses were broken as they laid on the ground at the park, as they appear to be in the photo published by the Senate Whitewater Committee.”
Favish now waits to see if Starr’s office will appeal Judge Keller’s decision on the eyeglasses photo and the color copy issue. A decision on his own appeal regarding the withholding of Foster’s body photos could take a year.
He expects to receive the judge’s written decision in about 10 days, which Favish will post on his web site
