decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
The Public's Right to Know -- How Far Does It Go?
Monday, December 27 2004 @ 02:51 PM EST

I have been researching for us the topic of the public's right to know what goes on in the judicial system, now that the issue has been raised by G2. I haven't finished the research yet, but I've found some things that are so fun and interesting, to me anyway, that I wanted to share them with you now. For one thing, I found the 1966 oral arguments before the Supreme Court by F. Lee Bailey on behalf of Dr. Sam Sheppard.

That's the case that inspired the old TV series and later the movie, "The Fugitive." It's a case where the public's right to know got so out of balance, an apparently innocent man was incarcerated for a decade after a local newspaper took it upon itself to pressure the local authorities into charging him. The trial itself was so over-the-media-top that eventually, when the matter reached the Supreme Court, it ruled that he didn't have a fair trial.

The Sheppard case is Sheppard v. Maxwell, 384 U.S. 333 (1966). Here's the Supreme Court ruling trying to undo the harm done. And here is the part about what the media did to this man, in colored text because it's so long:

"On the 20th, the 'editorial artillery' opened fire with a front-page charge that somebody is 'getting away with murder.' The editorial attributed the ineptness of the investigation to 'friendships, relationships, hired lawyers, a husband who ought to have been subjected instantly to the same third-degree to which any other person under similar circumstances is subjected . . . .' The following day, July 21, another page-one editorial was headed: 'Why No Inquest? Do It Now, Dr. Gerber.' The Coroner called an inquest the same day and subpoenaed Sheppard. It was staged the next day in a school gymnasium; the Coroner presided with the County Prosecutor as his advisor and two detectives as bailiffs. In the front of the room was a long table occupied by reporters, television and radio personnel, and broadcasting equipment. The hearing was broadcast with live microphones placed at the Coroner's seat and the witness stand. A swarm of reporters and photographers attended. Sheppard was brought into the room by police who searched him in full view of several hundred spectators. Sheppard's counsel were present during the three-day inquest but were not permitted to participate. [384 U.S. 333, 340] When Sheppard's chief counsel attempted to place some documents in the record, he was forcibly ejected from the room by the Coroner, who received cheers, hugs, and kisses from ladies in the audience. Sheppard was questioned for five and one-half hours about his actions on the night of the murder, his married life, and a love affair with Susan Hayes. At the end of the hearing the Coroner announced that he 'could' order Sheppard held for the grand jury, but did not do so.

"Throughout this period the newspapers emphasized evidence that tended to incriminate Sheppard and pointed out discrepancies in his statements to authorities. At the same time, Sheppard made many public statements to the press and wrote feature articles asserting his innocence. During the inquest on July 26, a headline in large type stated: 'Kerr [Captain of the Cleveland Police] Urges Sheppard's Arrest.' In the story, Detective McArthur 'disclosed that scientific tests at the Sheppard home have definitely established that the killer washed off a trail of blood from the murder bedroom to the downstairs section,' a circumstance casting doubt on Sheppard's accounts of the murder. No such evidence was produced at trial. The newspapers also delved into Sheppard's personal life. Articles stressed his extramarital love affairs as a motive for the crime. The newspapers portrayed Sheppard as a Lothario, fully explored his relationship with Susan Hayes, and named a number of other women who were allegedly involved with him. The testimony at trial never showed that [384 U.S. 333, 341] Sheppard had any illicit relationships besides the one with Susan Hayes.

"On July 28, an editorial entitled 'Why Don't Police Quiz Top Suspect' demanded that Sheppard be taken to police headquarters. It described him in the following language:

'Now proved under oath to be a liar, still free to go about his business, shielded by his family, protected by a smart lawyer who has made monkeys of the police and authorities, carrying a gun part of the time, left free to do whatever he pleases . . . .'

"A front-page editorial on July 30 asked: 'Why Isn't Sam Sheppard in Jail?' It was later titled 'Quit Stalling - Bring Him In.' After calling Sheppard 'the most unusual murder suspect ever seen around these parts' the article said that '[e]xcept for some superficial questioning during Coroner Sam Gerber's inquest he has been scot-free of any official grilling . . . .' It asserted that he was 'surrounded by an iron curtain of protection [and] concealment.'

"That night at 10 o'clock Sheppard was arrested at his father's home on a charge of murder. He was taken to the Bay Village City Hall where hundreds of people, newscasters, photographers and reporters were awaiting his arrival. He was immediately arraigned -- having been denied a temporary delay to secure the presence of counsel -- and bound over to the grand jury.

"The publicity then grew in intensity until his indictment on August 17. Typical of the coverage during this period is a front-page interview entitled: 'DR. SAM: "I Wish There Was Something I Could Get Off My Chest - but There Isn't."' Unfavorable publicity included items such as a cartoon of the body of a sphinx with Sheppard's head and the legend below: '"I Will Do Everything In My Power to Help Solve This Terrible [384 U.S. 333, 342] Murder." - Dr. Sam Sheppard.' Headlines announced, inter alia, that: 'Doctor Evidence is Ready for Jury,' 'Corrigan Tactics Stall Quizzing,' 'Sheppard "Gay Set" Is Revealed By Houk,' 'Blood Is Found In Garage,' 'New Murder Evidence Is Found, Police Claim,' 'Dr. Sam Faces Quiz At Jail On Marilyn's Fear Of Him.' On August 18, an article appeared under the headline 'Dr. Sam Writes His Own Story.' And reproduced across the entire front page was a portion of the typed statement signed by Sheppard: 'I am not guilty of the murder of my wife, Marilyn. How could I, who have been trained to help people and devoted my life to saving life, commit such a terrible and revolting crime?' We do not detail the coverage further. There are five volumes filled with similar clippings from each of the three Cleveland newspapers covering the period from the murder until Sheppard's conviction in December 1954. The record includes no excerpts from newscasts on radio and television but since space was reserved in the courtroom for these media we assume that their coverage was equally large."

No doubt they sold a lot of papers. I'm sure all you'd have to do to see how terrible the experience was is to imagine yourself an innocent person subjected to such treatment, particularly if you listen to the audio of Mr. Bailey telling the complete story. You will grasp why the lower court called the trial a mockery of justice. And the point is, the media -- representing the public's right of access -- is what caused that mockery of justice. By the way, when it talks about the "Gay Set" here, it means Beautiful People, rich folks having a good time. Those headlines are from the fifties. You can find books galore on the trial, including one by Bailey.

So that's the down side of letting the public in too far. It's bad enough when the motive is as small as just wanting to sell papers or sticking it to someone richer than you are. But let's imagine one step further. What if a company with a lot of money, enough to influence reporters to write what they want, had a pony in the race and wanted coverage by the media to help it beat the competition? Remember what the DaimlerChrysler attorney wrote in the Wall St. Journal about companies nowadays using lawsuits to embarrass companies into settlements, by deliberately damaging their stock price by publicity in the media about the lawsuit? Have you seen, in the last two years, any bias in the media? Any analysts or reporters that seemed to have a bias in favor of SCO and against IBM? What if one of those reporters asked the court to see every last scrap of evidence in the case? See any potential for harm here?

But, you may say, the public has a right to know. G2 made that argument, in fact, in the SCO v. IBM case. But my research indicates that there is more to the phrase than that. The public has the right to know *what*?

Let's talk about you. Let's say you are going to file for bankruptcy. Maybe you suffered a severe illness, or a child did, and then you lost your job. There you are in debt, maybe ill, no hope of keeping your nose above water. At your wit's end, you decide to file for bankruptcy, so you can get a fresh start and at least keep up from then on. You're an extra honorable person, so you file for the kind of bankruptcy where the court does a workout, and you pay a certain amount on the dollar, rather than just wiping the debt out. So, off you go to court and you file.

Your courthouse, let's imagine, puts all court filings into its publicly accessible database. What is now in there once you file your bankruptcy papers? Your name, your address, your social security number, where you work now, if you do, your mortgage number, your credit card numbers and what you owe on them, any other outstanding debts, carefully and methodically listed. See a problem with that? If you are worried about identity theft, you probably do. So, does the public have a right to see all that?

How about your tax records? Want those on the Internet? Maybe you decide to bring a personal injury lawsuit or a medical malpractice action. Do you want the world to read all about it, including all your medical records for the past few years, on the Internet? Might your boss be interested to know you attend AA or went to a psychiatrist for a while after your wife dumped you for a circus high-wire artist or that you were treated once for cancer? That you are going to have periodic blackouts for the rest of your life because of the car accident you were in? Most of you will say no, I have a right to privacy. So now we have a line. There is a limit to what we are willing to have made public.

And the Supreme Court has recognized that access rights are not absolute and that technology affects the balance between access rights and privacy interests. Here's how one study of the law of access summed it up:

"The Supreme Court in Nixon v. Warner Communications observed that:

[E]very court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. 435 U.S. at 596

"The decision to deny public access involves a balance between the presumption in favor of access, on the one hand, and the privacy or other interests that may justify restricting access. These interests include the possibility of prejudicial pretrial publicity, the danger of impairing law enforcement or judicial efficiency, and the privacy interests of litigants or third parties. See United States v. McVeigh, 119 F.3d 806, 811 (10 Cir. 1997); United States v. Amodeo, 71 F.3d. 1044, 1047-50 (2d Cir. 1995).

So, those are some of the factors that a judge will consider when confronted with a request for access from the public. Criminal cases tend to imply greater access rights, from what I've seen in my research, the idea being that in a democracy, the people need to make sure nothing bad happens, no judge goes bad or takes a bribe or whatever. The Reporters Committee for Freedom of the Press, a nonprofit that provides free legal assistance to journalists) not long ago filed comments urging a Florida commission to adopt a broad policy of electronic access to court records:

"Public policy considerations also justify remote access to court records. As the U.S. Court of Appeals for the Second Circuit has said, 'Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring ... the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings.” United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)."

As a matter of fact, in the Sheppard case, the judge is reported to have been biased before the case even started, reportedly telling a reporter in his chambers, before the trial even began, that the man was obviously guilty. But even in criminal cases, the public doesn't always get access. In the US v. McVeigh, 119 F.3d 806 (10 Cir. 1997), for example, the court denied press requests for access to sealed documents in the Oklahoma City bombing trial, despite obvious and widespread interest in the case; in United States v. Corbitt, 879 F.2d 224 (7 Cir. 1989) the request was for access to presentence reports under both the common law and First Amendment. There was a case, U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749 (1989), where CBS News and the reporters' organization asked for the FBI rap sheet on an alleged mobster, and they were turned down:

"Where, as here, the subject of a rap sheet is a private citizen and the information is in the Government's control as a compilation, rather than as a record of what the Government is up to, the privacy interest in maintaining the rap sheet's 'practical obscurity' is always at its apex while the FOIA-based public interest in disclosure is at its nadir. Thus, as a categorical matter, rap sheets are excluded from disclosure by the Exemption in such circumstances. Pp. 776-780."

Even a mobster has a right of privacy. As we said, the public's right to have access isn't absolute, even in criminal trials. There is, in common law, a presumption that the public does have a right to access to court filings. Here is a bit on the law of access, from that same study:

"In numerous cases the federal courts, including the Supreme Court, have held that there is a common law right 'to inspect and copy public records and documents, including judicial records and documents.' Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978). The common law right, and the presumption of public access to court records in particular, 'allows the citizenry to monitor the functioning of our courts, thereby insuring quality, honesty, and respect for our legal system.' In re Continental Illinois Securities Litigation, 732 F.2d 1303, 1308 (7th Cir. 1984).

"Federal courts have applied the common law right in disputes over access to case files in a variety of judicial proceedings. See, e.g., Republic of the Philippines v. Westinghouse Electric Corp, 949 F.2d 653, 660 (3d Cir. 1991) (citing earlier cases and history of common law right).

How strong a presumption of a public right of access there is varies from place to place, in some places only a strong and compelling argument can keep a record sealed; in other circuits, it's just one factor considered; in others, it has very little weight. And there is some discussion and variety in how courts decide whether the public gets access to everything or just everything filed and if the latter, what is a "filed" document? Does the public have access to all filed documents, or just those that the judge uses to reach a substantive decision?

"The Second Circuit, in United States v. Amodeo, 44 F.3d at 145, summarized that approach:

We think that the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access. We think that the item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document.

"The First and D.C. Circuits have articulated a similar approach to the common law right. See Anderson v. Cryovac, Inc., 805 F.2d 1, 12-13 (1st Cir. 1986) (applying the common law right only to 'materials on which a court relies in determining the litigants' substantive rights'); and United States v. El-Sayegh, 131 F.3d 158 (D.C. Cir. 1997) (concluding that a plea agreement filed solely to allow the district court to rule on the government's motion to seal the agreement, and later withdrawn when the plea agreement fell through, was not subject to public access)."

Discovery materials, for example, are not normally filed with the court and don't show up in electronic records. But what about when they are attached by one of the parties to nondiscovery documents that are filed? Then do we get to see them? In some circuits, the answer would be no:

"A related issue is the scope of the common law right of access to discovery documents. The Supreme Court has held that non-filed discovery documents do not shed light on the performance of the judicial function and therefore are not subject to common law access rights. See Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). A request for access to filed discovery material may require different legal analysis. Such information generally is held to be subject to the common law right, but the access determination may depend on how the discovery documents are used in the judicial process. In general, filed discovery documents that are attached to non-discovery motions and briefs are subject to the common law access right. But some courts of appeals have denied access to discovery documents that are filed with motions concerning the discovery process itself (e.g., documents filed in connection with motions to compel discovery). See Leucadia, Inc. v. Applied Extrusion Technology Inc., 998 F.2d 157, 164 (3rd Cir. 1993) (holding that there is a 'presumptive right of public access to all of the material filed in connection with nondiscovery pretrial motions, whether those motions are case dispositive or not, but no such right as to discovery motions and their supporting documents'); and Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986) (no access to discovery documents submitted in connection with discovery motions)."

And the right to monitor what the judges and the government is doing isn't the same thing as a right to monitor parties in a civil lawsuit. There is a line there too, and in fact there is a line even in criminal matters:

"In United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), a case involving a database of information summarized in a criminal 'rap sheet,' the Supreme Court recognized a privacy interest in information that is publicly available through other means, but is 'practically obscure.' The Court specifically noted:

the vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information. 489 U.S. at 764.

In weighing the public interest in releasing personal information against the privacy interests of individuals, the Court defined the public's interest as 'shedding light on the conduct of any Government agency or official,' 489 U.S. at 773, rather than acquiring information about a particular private citizen. The Court also noted 'the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information.' 489 U.S. at 770.

Are you starting to see some bumps in the road for G2? Even if they are granted their motion to intervene, that doesn't mean they will get access to all that they want. What is their interest? Are they interested in how the judges are doing their jobs? Or is there a history of writing anti-IBM articles and maybe a interest in digging up some dirt to turn into a headline? That is the question the judge will have to weigh in making a decision.

Does a party sued have no privacy rights, just because they have the misfortune of being sued? If not, you can see that the courts could quickly be turned into an anticompetitive tool, whereby a company wishing to damage the reputation of its victim, maybe to force them into a quick settlement just to avoid the humiliation, will file suit with no greater purpose than to make some quick settlement money they don't really deserve.

Think there wouldn't be companies willing to do a low thing like that? Remember what the DaimlerChrysler attorney wrote about that? The rules are not that clear for when judges should and when they shouldn't unseal materials, in short. Judges have broad discretion, and it's case by case. I also learned that a case file does include transcripts of any hearings, so G2 didn't have to specifically ask for them by name. And one other thing I learned: the Freedom of Information Act doesn't apply to judicial proceedings. Not only that, but there are exceptions even to what must be provided to a FOIA requester, and one issue is privacy interests. I found some later Supreme Court cases too on the subject of the tension between two competing values: the right to privacy and the public's right to know, if you are interested in reading more about that subject.

There is a right of privacy, then. Just because the government may have some information gathered about you doesn't mean it is free to share it with the whole world. In fact, there is a law. It's called the Privacy Act of 1974. It came into play in a Supreme Court case, Doe v. Chao, which was brought by some coal miners whose Social Security numbers were spread around by the government to insurance companies and attorneys in connection with a lawsuit over miner's lung disease. The miners got worried about identify theft, and sued under the Privacy Act. The Supreme Court said that because they were merely anxious over it possibly happening, but hadn't actually suffered any damages, they couldn't prevail. But that leaves clearly on the table that if they had in fact become victims of identity theft, they could have. You can read about that case here and here. So that is another factor a judge must consider. Not only do the parties have an interest in privacy, so do witnesses and third parties sucked into the lawsuit, in some cases very much against their will. Not everyone wants their home address published on the Internet. I recall Darl McBride very upset that his private phone number was used by those who found it on the Internet. Ari Schwartz, associate director of the Center for Democracy & Technology, which cosigned the Electronic Privacy Information Center's (EPIC) amicus brief [PDF] in Doe v. Chao, which highlighted the danger of identity theft, among other things, expressed something deep and subtle:

"If someone rummages through all your stuff, nothing's taken, but they find out information about you, you can't show actual damages.

"Yet something intangible has been taken from you, and what do we do to make up for that as a society?" asked Schwartz.

Although FOIA doesn't apply to public access to the courts, it does fit in to the discussion, because the media does use FOIA to cover the news, and they have asserted their right to know. The Supreme Court has been increasingly showing an interest in protecting privacy rights in its interpretations of exceptions to FOIA. I thought you might like to read the unanimous Supreme Court ruling [PDF] in the case of National Archives and Records Administration v. Favish, which involved a FOIA request for access to pictures taken of Vincent Foster's body after his apparent suicide, because in reading it, I think you'll understand that sometimes the public's right to know runs straight into someone else's right to privacy. As the Department of Justice expressed it after the ruling, unfortunately today's "sensation-seeking culture" breeds the potential for "unwarranted public exploitation" of FOIA-disclosed records. Agencies need to consider, they said, “both what the requester might do with the information at hand and also what any other requester (or ultimate recipient) might do with it as well.” The department also said that Favish allows them to disregard a person's status as a public figure when determining the extent of his survivors' privacy interests.

This is a controversial decision, but rather than focus on that, I present it, so you can read what Foster's sister wrote to the court, about her emotional anguish in having the public rummaging about in her family's things, so to speak. And as much as I like to know everything I can, my heart was affected deeply by what she wrote, and I feel for anyone in such a circumstance. Personally, my reaction is that I'd rather not cause any living human such anguish. But you are free to form your own opinion. So you can do so, here is the ruling (oral arguments transcript here [PDF]), in its entirety, with Sheila Foster's words emphasized, for those who may not have time to read the entire ruling. I hope you do have time, though. It isn't every day you get to read a Supreme Court ruling that references Antigone, and I've marked that part for you speed readers too:

***************************************************

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, PETITIONER
v. ALLAN J. FAVISH et al.

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 30, 2004]


Justice Kennedy delivered the opinion of the Court.

This case requires us to interpret the Freedom of Information Act (FOIA), 5 U. S. C. §552. FOIA does not apply if the requested data fall within one or more exemptions. Exemption 7(C) excuses from disclosure "records or in-
formation compiled for law enforcement purposes" if
their production "could reasonably be expected to constitute an unwarranted invasion of personal privacy." §552(b)(7)(C).

In Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749 (1989), we considered the scope of Exemption 7(C) and held that release of the document at issue would be a prohibited invasion of the personal privacy of the person to whom the document referred. The principal document involved was the criminal record, or rap sheet, of the person who himself objected to the disclosure. Here, the information pertains to an official investigation into the circumstances surrounding an apparent suicide. The initial question is whether the exemption extends to the decedent's family when the family objects to the release of photographs showing the condition of the body at the scene of death. If we find the decedent's family does have a personal privacy interest recognized by the statute, we must then consider whether that privacy claim is outweighed by the public interest in disclosure.

I

Vincent Foster, Jr., deputy counsel to President Clinton, was found dead in Fort Marcy Park, located just outside Washington, D. C. The United States Park Police conducted the initial investigation and took color photographs of the death scene, including 10 pictures of Foster's body. The investigation concluded that Foster committed suicide by shooting himself with a revolver. Subsequent investigations by the Federal Bureau of Investigation, committees of the Senate and the House of Representatives, and independent counsels Robert Fiske and Kenneth Starr reached the same conclusion. Despite the unanimous finding of these five investigations, a citizen interested in the matter, Allan Favish, remained skeptical. Favish is now a respondent in this proceeding. In an earlier proceeding, Favish was the associate counsel for Accuracy in Media (AIM), which applied under FOIA for Foster's death-scene photographs. After the National Park Service, which then maintained custody of the pictures, resisted disclosure, Favish filed suit on behalf of AIM in the District Court for the District of Columbia to compel production. The District Court granted summary judgment against AIM. The Court of Appeals for the District of Columbia unanimously affirmed. Accuracy in Media, Inc. v. National Park Serv., 194 F. 3d 120 (1999).

Still convinced that the Government's investigations were " 'grossly incomplete and untrustworthy,' " App. to Pet. for Cert. 57a, Favish filed the present FOIA request in his own name, seeking, among other things, 11 pictures, 1 showing Foster's eyeglasses and 10 depicting various parts of Foster's body. Like the National Park Service, the Office of Independent Counsel (OIC) refused the request under Exemption 7(C).

Again, Favish sued to compel production, this time in the United States District Court for the Central District of California. As a preliminary matter, the District Court held that the decision of the Court of Appeals for the District of Columbia did not have collateral estoppel effect on Favish's California lawsuit brought in his personal capacity. On the merits, the court granted partial summary judgment to OIC. With the exception of the picture showing Foster's eyeglasses, the court upheld OIC's claim of exemption. Relying on the so-called Vaughn index provided by the Government--a narrative description of the withheld photos, see Vaughn v. Rosen, 484 F. 2d 820 (CADC 1973)--the court held, first, that Foster's surviving family members enjoy personal privacy interests that could be infringed by disclosure of the photographs. App. to Pet. for Cert. 56a. It then found, with respect to the asserted public interest, that "[Favish] has not sufficiently explained how disclosure of these photographs will advance his investigation into Foster's death." Id., at 59a. Any purported public interest in disclosure, moreover, "is lessened because of the exhaustive investigation that has already occurred regarding Foster's death." Id., at 58a. Balancing the competing interests, the court concluded that "the privacy interests of the Foster family members outweigh the public interest in disclosure." Id., at 59a.

On the first appeal to the Court of Appeals for the Ninth Circuit, the majority reversed and remanded, over Judge Pregerson's dissent. 217 F. 3d 1168 (2000). In the majority's view, although evidence or knowledge of misfeasance by the investigative agency may "enhanc[e] the urgency of the [FOIA] request," "[n]othing in the statutory command conditions [disclosure] on the requesting party showing that he has knowledge of misfeasance by the agency." Id., at 1172-1173. Furthermore, because "Favish, in fact, tenders evidence and argument which, if believed, would justify his doubts," the FOIA request "is in complete conformity with the statutory purpose that the public know what its government is up to." Ibid. This was so, the Court of Appeals held, even in the face of five previous investigations into Foster's death: "Nothing in the statutory command shields an agency from disclosing its records because other agencies have engaged in similar investigations... . [I]t is a feature of famous cases that they generate controversy, suspicion, and the desire to second guess the authorities." Id., at 1173. As the majority read the statute, there is "a right to look, a right to speculate and argue again, a right of public scrutiny." Ibid.

The Court of Appeals, however, agreed with the District Court that the exemption recognizes the Foster family members' right to personal privacy. Although the pictures contain no information about Foster's relatives, the statute's protection "extends to the memory of the deceased held by those tied closely to the deceased by blood or love." Ibid. Nevertheless, the majority held that the District Court erred in balancing the relevant interests based only on the Vaughn index. While "the [D]istrict [C]ourt has discretion to decide a FOIA case on the basis of affidavits, and affidavits are in some cases sufficient," "the agency affidavits are insufficiently detailed." Id., at 1174. It remanded the case to the District Court to examine the photos in camera and, "consistent with [the Court of Appeals'] opinion," "balance the effect of their release on the privacy of the Foster family against the public benefit to be obtained by their release." Ibid.

On remand, the District Court ordered release of the following five photographs:

" The photograph identified as '3--VF's [Vincent Fos-
ter's] body looking down from top of berm' must be
released, as the photograph is not so explicit as to
overcome the public interest.

. . . . .

" The photograph entitled '5--VF's body--focusing on
Rt. side of shoulder arm' is again of such a nature
as to be discoverable in that it is not focused in such
a manner as to unnecessarily impact the privacy in-

terests of the family.

. . . . .

" The photograph entitled '1--Right hand showing
gun & thumb in guard' is discoverable as it may be
probative of the public's right to know.

. . . . .

" The photograph entitled '4--VF's body focusing on
right side and arm' is discoverable.

" The photograph entitled '5--VF's body--focus on
top of head thru heavy foliage' is discoverable."
App. to Pet. for Cert. 45a.

On the second appeal to the same panel, the majority, again over Judge Pregerson's dissent, affirmed in part. 37 Fed. Appx. 863 (2002). Without providing any explanation, it upheld the release of all the pictures, "except that photo 3--VF's body looking down from top of berm is to be withheld." Id., at 864.

We granted OIC's petition for a writ of certiorari to resolve a conflict in the Courts of Appeals over the proper interpretation of Exemption 7(C). 538 U. S. 1012 (2003). The only documents at issue in this case are the four photographs the Court of Appeals ordered released in its 2002 unpublished opinion. We reverse.

The OIC terminated its operations on March 23, 2004, see 28 U. S. C. §596(b)(2), and transferred all records--including the photographs that are the subject of Favish's FOIA request--to the National Archives and Records Administration, see §594(k)(1). The National Archives and Records Administration has been substituted as petitioner in the caption of this case. As all the actions relevant to our disposition of the case took place before March 23, 2004, we continue to refer to petitioner as OIC in this opinion.

II

It is common ground among the parties that the death-scene photographs in OIC's possession are "records or information compiled for law enforcement purposes" as that phrase is used in Exemption 7(C). App. 87. This leads to the question whether disclosure of the four photographs "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

Favish contends the family has no personal privacy interest covered by Exemption 7(C). His argument rests on the proposition that the information is only about the decedent, not his family. FOIA's right to personal privacy, in his view, means only "the right to control information about oneself." Brief for Respondent Favish 4. He quotes from our decision in Reporters Committee, where, in holding that a person has a privacy interest sufficient to prevent disclosure of his own rap sheet, we said "the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person." 489 U. S., at 763. This means, Favish says, that the individual who is the subject of the information is the only one with a privacy interest.

We disagree. The right to personal privacy is not confined, as Favish argues, to the "right to control information about oneself." Brief for Respondent Favish 4. Favish misreads the quoted sentence in Reporters Committee and adopts too narrow an interpretation of the case's holding. To say that the concept of personal privacy must "encompass" the individual's control of information about himself does not mean it cannot encompass other personal privacy interests as well. Reporters Committee had no occasion to consider whether individuals whose personal data are not contained in the requested materials also have a recognized privacy interest under Exemption 7(C).

Reporters Committee explained, however, that the concept of personal privacy under Exemption 7(C) is not some limited or "cramped notion" of that idea. 489 U. S., at 763. Records or information are not to be released under the Act if disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U. S. C. §552(b)(7). This provision is in marked contrast to the language in Exemption 6, pertaining to "personnel and medical files," where withholding is required only if disclosure "would constitute a clearly unwarranted invasion of personal privacy." §552(b)(6). The adverb "clearly," found in Exemption 6, is not used in Exemption 7(C). In addition, "whereas Exemption 6 refers to disclosures that 'would constitute' an invasion of privacy, Exemption 7(C) encompasses any disclosure that 'could reasonably be expected to constitute' such an invasion." Reporters Committee, 489 U. S., at 756. Exemption 7(C)'s comparative breadth is no mere accident in drafting. We know Congress gave special consideration to the language in Exemption 7(C) because it was the result of specific amendments to an existing statute. See id., at 756, n. 9, 777, n. 22.

Law enforcement documents obtained by Government investigators often contain information about persons interviewed as witnesses or initial suspects but whose link to the official inquiry may be the result of mere happenstance. There is special reason, therefore, to give protection to this intimate personal data, to which the public does not have a general right of access in the ordinary course. Id., at 773. In this class of cases where the subject of the documents "is a private citizen," "the privacy interest ... is at its apex." Id., at 780.

Certain amici in support of Favish rely on the modifier "personal" before the word "privacy" to bolster their view that the family has no privacy interest in the pictures of the decedent. This, too, misapprehends the family's position and the scope of protection the exemption provides. The family does not invoke Exemption 7(C) on behalf of Vincent Foster in its capacity as his next friend for fear that the pictures may reveal private information about Foster to the detriment of his own posthumous reputation or some other interest personal to him. If that were the case, a different set of considerations would control. Foster's relatives instead invoke their own right and interest to personal privacy. They seek to be shielded by the exemption to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility, not for the sake of the deceased.

In a sworn declaration filed with the District Court, Foster's sister, Sheila Foster Anthony, stated that the family had been harassed by, and deluged with requests from, "[p]olitical and commercial opportunists" who sought to profit from Foster's suicide. App. 94. In particular, she was "horrified and devastated by [a] photograph [already] leaked to the press." Ibid. "Every time I see it," Sheila Foster Anthony wrote, "I have nightmares and heart-pounding insomnia as I visualize how he must have spent his last few minutes and seconds of his life." Ibid. She opposed the disclosure of the disputed pictures because "I fear that the release of [additional] photographs certainly would set off another round of intense scrutiny by the media. Undoubtedly, the photographs would be placed on the Internet for world consumption. Once again my family would be the focus of conceivably unsavory and distasteful media coverage." Id., at 95. "[R]eleasing any photographs," Sheila Foster Anthony continued, "would constitute a painful unwarranted invasion of my privacy, my mother's privacy, my sister's privacy, and the privacy of Lisa Foster Moody (Vince's widow), her three children, and other members of the Foster family." Id., at 93.

As we shall explain below, we think it proper to conclude from Congress' use of the term "personal privacy" that it intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and in our cultural traditions. This does not mean that the family is in the same position as the individual who is the subject of the disclosure. We have little difficulty, however, in finding in our case law and traditions the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased family member's remains for public purposes.

Burial rites or their counterparts have been respected in almost all civilizations from time immemorial. See generally 26 Encyclopaedia Britannica 851 (15th ed. 1985) (noting that "[t]he ritual burial of the dead" has been practiced "from the very dawn of human culture and ... in most parts of the world"); 5 Encyclopedia of Religion 450 (1987) ("[F]uneral rites ... are the conscious cultural forms of one of our most ancient, universal, and unconscious impulses"). They are a sign of the respect a society shows for the deceased and for the surviving family members. The power of Sophocles' story in Antigone maintains its hold to this day because of the universal acceptance of the heroine's right to insist on respect for the body of her brother. See Antigone of Sophocles, 8 Harvard Classics: Nine Greek Dramas 255 (C. Eliot ed. 1909). The outrage at seeing the bodies of American soldiers mutilated and dragged through the streets is but a modern instance of the same understanding of the interests decent people have for those whom they have lost. Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.

In addition this well-established cultural tradition acknowledging a family's control over the body and death images of the deceased has long been recognized at common law. Indeed, this right to privacy has much deeper roots in the common law than the rap sheets held to be protected from disclosure in Reporters Committee. An early decision by the New York Court of Appeals is typical:

"It is the right of privacy of the living which it is sought to enforce here. That right may in some cases be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living, and not that of the dead, which is recognized. A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased." Schuyler v. Curtis, 147 N. Y. 434, 447, 42 N. E. 22, 25 (1895).

See also Reid v. Pierce County, 136 Wash. 2d 195, 212, 961 P. 2d 333, 342 (1998) ("[T]he immediate relatives of a decedent have a protectable privacy interest in the autopsy records of the deceased"); McCambridge v. Little Rock, 298 Ark. 219, 231-232, 766 S. W. 2d 909, 915 (1989) (recognizing the privacy interest of the murder victim's mother in crime scene photographs); Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S. E. 194 (1930) (per curiam) (recognizing parents' right of privacy in photographs of their deceased child's body); Restatement (Second) of Torts §652D, p. 387 (1977) (recognizing that publication of a photograph of a deceased infant--a hypothetical "child with two heads"--over the objection of the mother would result in an "inva[sion]" of the mother's "privacy").

We can assume Congress legislated against this background of law, scholarship, and history when it enacted FOIA and when it amended Exemption 7(C) to extend its terms. Those enactments were also against the background of the Attorney General's consistent interpretation of the exemption to protect "members of the family of the person to whom the information pertains," U. S. Dept. of Justice, Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 36 (June 1967), and to require consideration of the privacy of "relatives or descendants" and the "possible adverse effects [from disclosure] upon [the individual] or his family," U. S. Dept. of Justice Memorandum on the 1974 Amendments to the Freedom of Information Act 9-10 (Feb. 1975), reprinted in House Committee on Government Operations and Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974 (Pub. L. 93-502), Source Book, App. 5, pp. 519-520, 94th Cong., 1st Sess. (Joint Comm. Print. 1975).

We have observed that the statutory privacy right protected by Exemption 7(C) goes beyond the common law and the Constitution. See Reporters Committee, 489 U. S., at 762, n. 13 (contrasting the scope of the privacy protection under FOIA with the analogous protection under the common law and the Constitution); see also Marzen v. Department of Health and Human Servs., 825 F. 2d 1148, 1152 (CA7 1987) ("[T]he privacy interest protected under FOIA extends beyond the common law"). It would be anomalous to hold in the instant case that the statute provides even less protection than does the common law.

The statutory scheme must be understood, moreover, in light of the consequences that would follow were we to adopt Favish's position. As a general rule, withholding information under FOIA cannot be predicated on the identity of the requester. See Reporters Committee, supra, at 771. We are advised by the Government that child molesters, rapists, murderers, and other violent criminals often make FOIA requests for autopsies, photographs, and records of their deceased victims. Our holding ensures that the privacy interests of surviving family members would allow the Government to deny these gruesome requests in appropriate cases. We find it inconceivable that Congress could have intended a definition of "personal privacy" so narrow that it would allow convicted felons to obtain these materials without limitations at the expense of surviving family members' personal privacy.

For these reasons, in agreement with the Courts of Appeals for both the District of Columbia and the Ninth Circuit, see Accuracy in Media v. National Park Serv., 194 F. 3d 120 (CADC 1999); 217 F. 3d 1168 (CA9 2000), we hold that FOIA recognizes surviving family members' right to personal privacy with respect to their close relative's death-scene images. Our holding is consistent with the unanimous view of the Courts of Appeals and other lower courts that have addressed the question. See, e.g., New York Times Co. v. National Aeronautics and Space Admin., 782 F. Supp. 628, 631, 632 (CADC 1991) (sustaining a privacy claim under the narrower Exemption 6 with respect to an audiotape of the Space Shuttle Challenger astronauts' last words, because "[e]xposure to the voice of a beloved family member immediately prior to that family member's death ... would cause the Challenger families pain" and inflict "a disruption [to] their peace of mind every time a portion of the tape is played within the hearing"), on remand from 920 F. 2d 1002 (CADC 1990); Katz v. National Archives and Records Admin., 862 F. Supp. 476, 485 (DC 1994) (exempting from FOIA disclosure autopsy X-rays and photographs of President Kennedy on the ground that their release would cause "additional anguish" to the surviving family), aff'd on other grounds, 68 F. 3d 1438 (CADC 1995); Lesar v. Department of Justice, 636 F. 2d 472, 487 (CADC 1980) (recognizing, with respect to the assassination of Dr. Martin Luther King, Jr., his survivors' privacy interests in avoiding "annoyance or harassment"). Neither the deceased's former status as a public official, nor the fact that other pictures had been made public, detracts from the weighty privacy interests involved.

III

Our ruling that the personal privacy protected by Exemption 7(C) extends to family members who object to the disclosure of graphic details surrounding their relative's death does not end the case. Although this privacy interest is within the terms of the exemption, the statute directs nondisclosure only where the information "could reasonably be expected to constitute an unwarranted invasion" of the family's personal privacy. The term "unwarranted" requires us to balance the family's privacy interest against the public interest in disclosure. See Reporters Committee, 489 U. S., at 762.

FOIA is often explained as a means for citizens to know "what the Government is up to." Id., at 773. This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy. The statement confirms that, as a general rule, when documents are within FOIA's disclosure provisions, citizens should not be required to explain why they seek the information. A person requesting the information needs no preconceived idea of the uses the data might serve. The information belongs to citizens to do with as they choose. Furthermore, as we have noted, the disclosure does not depend on the identity of the requester. As a general rule, if the information is subject to disclosure, it belongs to all.

When disclosure touches upon certain areas defined in the exemptions, however, the statute recognizes limitations that compete with the general interest in disclosure, and that, in appropriate cases, can overcome it. In the case of Exemption 7(C), the statute requires us to protect, in the proper degree, the personal privacy of citizens against the uncontrolled release of information compiled through the power of the state. The statutory direction that the information not be released if the invasion of personal privacy could reasonably be expected to be unwarranted requires the courts to balance the competing interests in privacy and disclosure. To effect this balance and to give practical meaning to the exemption, the usual rule that the citizen need not offer a reason for requesting the information must be inapplicable.

Where the privacy concerns addressed by Exemption 7(C) are present, the exemption requires the person requesting the information to establish a sufficient reason for the disclosure. First, the citizen must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake. Second, the citizen must show the information is likely to advance that interest. Otherwise, the invasion of privacy is unwarranted.

We do not in this single decision attempt to define the reasons that will suffice, or the necessary nexus between the requested information and the asserted public interest that would be advanced by disclosure. On the other hand, there must be some stability with respect to both the specific category of personal privacy interests protected by the statute and the specific category of public interests that could outweigh the privacy claim. Otherwise, courts will be left to balance in an ad hoc manner with little or no real guidance. Id., at 776. In the case of photographic images and other data pertaining to an individual who died under mysterious circumstances, the justification most likely to satisfy Exemption 7(C)'s public interest requirement is that the information is necessary to show the investigative agency or other responsible officials acted negligently or otherwise improperly in the performance of their duties.

The Court of Appeals was correct to rule that the family has a privacy interest protected by the statute and to recognize as significant the asserted public interest in uncovering deficiencies or misfeasance in the Government's investigations into Foster's death. It erred, however, in defining the showing Favish must make to substantiate his public interest claim. It stated that "[n]othing in the statutory command conditions [disclosure] on the requesting party showing that he has knowledge of misfeasance by the agency" and that "[n]othing in the statutory command shields an agency from disclosing its records because other agencies have engaged in similar investigations." 217 F. 3d, at 1172-1173. The court went on to hold that, because Favish has "tender[ed] evidence and argument which, if believed, would justify his doubts," the FOIA request "is in complete conformity with the statutory purpose that the public know what its government is up to." Id., at 1173. This was insufficient. The Court of Appeals required no particular showing that any evidence points with credibility to some actual misfeasance or other impropriety. The court's holding leaves Exemption 7(C) with little force or content. By requiring courts to engage in a state of suspended disbelief with regard to even the most incredible allegations, the panel transformed Exemption 7(C) into nothing more than a rule of pleading. The invasion of privacy under its rationale would be extensive. It must be remembered that once there is disclosure, the information belongs to the general public. There is no mechanism under FOIA for a protective order allowing only the requester to see whether the information bears out his theory, or for proscribing its general dissemination.

We hold that, where there is a privacy interest protected by Exemption 7(C) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred. In Department of State v. Ray, 502 U. S. 164 (1991), we held there is a presumption of legitimacy accorded to the Government's official conduct. Id., at 178-179. The presumption perhaps is less a rule of evidence than a general working principle. However the rule is characterized, where the presumption is applicable, clear evidence is usually required to displace it. Cf. United States v. Armstrong, 517 U. S. 456, 464 (1996) (" '[I]n the absence of clear evidence to the contrary, courts presume that [Government agents] have properly discharged their official duties.' "); United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926) ("The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties"). Given FOIA's prodisclosure purpose, however, the less stringent standard we adopt today is more faithful to the statutory scheme. Only when the FOIA requester has produced evidence sufficient to satisfy this standard will there exist a counterweight on the FOIA scale for the court to balance against the cognizable privacy interests in the requested records. Allegations of government misconduct are " 'easy to allege and hard to disprove,' " Crawford-El v. Britton, 523 U. S. 574, 585 (1998), so courts must insist on a meaningful evidentiary showing. It would be quite extraordinary to say we must ignore the fact that five different inquiries into the Foster matter reached the same conclusion. As we have noted, the balancing exercise in some other case might require us to make a somewhat more precise determination regarding the significance of the public interest and the historical importance of the events in question. We might need to consider the nexus required between the requested documents and the purported public interest served by disclosure. We need not do so here, however. Favish has not produced any evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred to put the balance into play.

The Court of Appeals erred in its interpretation of Exemption 7(C). The District Court's first order in March 1998--before its decision was set aside by the Court of Appeals and superseded by the District Court's own order on remand--followed the correct approach. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to grant OIC's motion for summary judgment with respect to the four photographs in dispute.

It is so ordered.


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )