Accuracy in Media, Inc. v. National Park Service

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 4, 1999 Decided October 26, 1999

No. 98-5535

Accuracy in Media, Inc.,
Appellant

v.

National Park Service,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 97cv02109)

Larry E. Klayman argued the cause for appellant. Brett
M. Wood and Allan J. Favish were on the briefs.

Robert M. Loeb, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
David W. Ogden, Acting Assistant Attorney General, Leon-
ard Schaitman, Attorney, and Wilma A. Lewis, U.S. Attor-
ney.

 Before: Edwards, Chief Judge, Wald and Williams,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: Accuracy in Media, Inc. ("AIM")
applied under the Freedom of Information Act, 5 U.S.C.
s 552 ("FOIA"), for photos of the body of the late Deputy
White House counsel Vincent W. Foster, Jr., taken at the
scene of his death and at the autopsy (as well as other
documents about which there is no longer any dispute). The
National Park Service, custodian of the documents because
the United States Park Police conducted the initial investiga-
tion, resisted disclosure, invoking FOIA exemption 7(C), 5
U.S.C. s 552(b)(7)(C), which shelters records compiled for law
enforcement purposes if their production would "constitute an
unwarranted invasion of personal privacy." The district court
granted summary judgment for the Park Service. The first
question is whether, when the subject of a document has
himself died, the personal privacy protected by 7(C) may
include interests of the subject's surviving kin or posthumous
privacy interests of the subject himself. If so, then the
question arises whether AIM has met the "balancing" test
under 7(C) by advancing "compelling evidence" of illegal
government activity and of the need for the photos to confirm
or refute that evidence. See SafeCard Services, Inc. v. SEC,
926 F.2d 1197, 1205-06 (D.C. Cir. 1991). We have already
held that the protected privacy interests do extend beyond
the interests of a document's subject while alive, see Camp-
bell v. U.S. Department of Justice, 164 F.3d 20, 33-34 (D.C.
Cir. 1998), and we adhere to that view. Further, AIM's
evidence does not satisfy the SafeCard standard. According-
ly, we affirm the district court.

* * *

At about six PM on July 20, 1993, a private citizen alerted
two off-duty Park Service employees to a dead body in Ft.
Marcy Park in suburban Northern Virginia. Their immedi-
ate 911 call summoned police and rescue personnel to the
scene, where Foster lay dead with a .38 caliber revolver in his

right hand and a gunshot wound to his head. The House and
Senate launched inquiries into the death. See Summary
Report by William F. Clinger, Jr., Ranking Republican, Com-
mittee on Government Operations, U.S. House of Rep., on the
Death of White House Deputy Counsel Vincent W. Foster, Jr.
(Aug. 12, 1994); S. Rep. No. 103-433, 103d Cong., 4 (1995).
There were also two separate independent counsel inquiries.
See Report on the Death of Vincent W. Foster, Jr., by the
Office of Independent Counsel In re Madison Guaranty Sav-
ings and Loan Association (Oct. 10, 1997) ("Starr Report");
Report of the Independent Counsel Robert B. Fiske, Jr., In
re Vincent W. Foster, Jr. (June 30, 1994). All of these
inquiries concluded that Foster committed suicide. See Starr
Report at 2, 7-8.

To support its 7(C) privacy claim for the photos, the Park
Service presented the declaration of Sheila Foster Anthony,
Foster's sister, who described how release of the photos
would invade the privacy of the Foster family (including his
widow and children) and would cause extreme emotional
anguish. It also submitted a so-called Vaughn index1 describ-
ing each of the responsive documents found and the basis for
withholding or redacting the document.

AIM contested application of the privacy exemption on two
grounds. First it argued that because only Foster's privacy
was at stake, his death terminated any valid privacy interest.
If that were so, the Park Service's exemption claim would
automatically fail. In the alternative, AIM argued that it
satisfied SafeCard's "compelling evidence" requirement, say-
ing that "there is much controversy about the nature of Mr.
Foster's wounds," and that "[t]he photos of Mr. Foster's body
are crucial for getting the truth." The district court rejected
both theories.

* * *

Exemption 7(C) allows non-disclosure of "records or infor-
mation compiled for law enforcement purposes" when such

__________
1 See Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973).

material "could reasonably be expected to constitute an un-
warranted invasion of personal privacy." 5 U.S.C.
s 552(b)(7)(C). AIM rightly points out that in United States
Dep't of Justice v. Reporters Committee for Freedom of the
Press, 489 U.S. 749 (1989), the Supreme Court recited a
number of definitions of privacy under which only the subject
could hold the interest. For example, it quoted A. Brecken-
ridge, The Right to Privacy 1 (1970), defining it as "the
individual's right to control dissemination of information
about himself." 489 U.S. at 764 n.16 (emphasis added). In
text, in fact, the Court used a possibly broader notion,
speaking of information as being private if "intended for or
restricted to the use of a particular person or group or class
of persons: not freely available to the public." Id. at 763-64.
For photos of a gunshot victim, the deceased's next of kin
might well constitute such a group.

But the primary weakness of AIM's reading of Reporters
Committee is not so much that some of the quoted definitions
are broader than those it has selected, but that the decision's
focus was utterly removed from our current problem. At
issue were "rap sheets," individualized collections of data on
persons' arrests, charges and convictions. The government
had theorized that there could be no privacy interest in
information that was scattered through public courthouse files
and accessible, in theory, to anyone ready to devote enough
resources to the task. In advancing the scholarly and dictio-
nary definitions exemplified above, the Court sought only to
explain its rejection of this narrow theory of privacy, not to
present a hermetically sealed definition of privacy.

Further, our circuit has squarely rejected the proposition
that FOIA's protection of personal privacy ends upon the
death of the individual depicted. In Campbell v. United
States Dep't of Justice, 164 F.3d 20 (D.C. Cir. 1998), a scholar
researching the life of James Baldwin made a FOIA request
for Baldwin's "FBI file." The FBI claimed some material
was protected from disclosure under exemption 7(C). Camp-
bell challenged this claim, arguing that exemption 7(C) does
not "protect the privacy of people who are dead." Id. at 33.
We responded:

 [D]eath clearly matters, as the deceased by definition
cannot personally suffer the privacy-related injuries that
may plague the living. A court balancing public interests
in disclosure against privacy interests must therefore
make a reasonable effort to account for the death of a
person on whose behalf the FBI invokes exemption 7(C).
The court must also account for the fact that certain
reputation interests and family-related privacy expecta-
tions survive death. As was recently pointed out by the
Supreme Court in Swidler & Berlin v. United States, 524
U.S. 399 (1998), the attorney-client privilege survives the
death of the client, who "may be concerned about reputa-
tion, civil liability, or possible harm to friends or family."

Id. at 33-34 (emphasis added) (citations omitted). While we
did not resolve "[t]he scope and weight of these interests"
because the record in Campbell was underdeveloped, see id.
at 34, the terms of our remand clearly depended on our view
that the 7(C) privacy interest survives death of the subject.

The parties struggle over whether language in some of our
prior cases, seeming to endorse either a posthumous privacy
interest or a privacy interest held by the subject's survivors,
is dictum or holding. See New York Times Co. v. NASA, 920
F.2d 1002, 1005 (D.C. Cir. 1990) (en banc); Badhwar v.
United States Department of the Air Force, 829 F.2d 182,
185-86 (D.C. Cir. 1987). We need not pursue that dispute:
Campbell was an unequivocal holding, and the others at a
minimum provide supporting dicta.

It is true that we have not said much by way of explana-
tion. But obviously AIM cannot deny the powerful sense of
invasion bound to be aroused in close survivors by wanton
publication of gruesome details of death by violence. One has
only to think of Lindbergh's rage at the photographer who
pried open the coffin of his kidnapped son to photograph the
remains and peddle the resulting photos. While law enforce-
ment sometimes necessitates the display of such ghoulish
materials, there seems nothing unnatural in saying that the
interest asserted against it by spouse, parents and children of
the deceased is one of privacy--even though the holders of

the interest are distinct from the individual portrayed. We
need not here explore whether the interest belongs to living
close survivors (in which case it might end at their deaths), or
alternatively may inhere posthumously in the subject himself
(in which case it would seem to be of indefinite duration), or
both.

AIM quite rightly notes that exemption 7(C) protects
against unwarranted "invasions" of privacy, not against grief
per se. There is no grief exemption. It is the "invasion" that
triggers a weighing of the public interest against the private
harm inflicted, NASA, 920 F.2d at 1005, not the grief or any
feeding frenzy of media coverage, even though the latter
constitute the private harm. But the release of photos of the
decedent at the scene of his death and autopsy qualifies as
such an invasion.

* * *

To show that the invasion of privacy was not "unwarrant-
ed," AIM must show "compelling evidence that the agency
denying the FOIA request is engaged in illegal activity, and
access to the [photos] is necessary in order to confirm or
refute that evidence." SafeCard, 926 F.2d at 1205-06.
AIM's theory is that known contradictions in the published
materials are adequate evidence of government foul play, and
that, because those contradictions relate to the nature of the
bullet wounds, the photos would likely shed critical light.

Specifically, AIM relies on three statements about Foster's
wounds that differ from the conclusion reached by the two
congressional inquiries and the two independent counsels,
namely, that Foster had an entrance wound in the mouth and
an exit wound in the back of the head, which are consistent
with suicide. First, a paramedic who was at the scene,
reported the wound as an entrance wound at the neck.
Second, a Dr. Donald Haut, of the Fairfax County medical
examiner's office, examined Foster at Ft. Marcy Park and
filed a report that described Foster's wounds on one page as
"perforating gunshot wound mouth-head" and on the next as

"mouth to neck." Finally, an FBI memo states there was no
exit wound at all.

We find AIM's evidence considerably below the threshold.
The Starr Report characterizes the exit wound as three
inches from the top of the head. Starr Report at 31. De-
pending on what one views as the "top" of the head, the
discrepancy between this and assertions of a neck exit wound
may be matters of characterization. Further, the paramedic,
after reviewing photos (presumably ones belonging to the
disputed set), admitted that he may have been mistaken
about Foster having a neck wound. Starr Report at 34 n.77.
Dr. Haut's report is internally inconsistent, with one assertion
consistent with the later reports from Congress and the two
independent counsels. AIM asserts that the consistent entry
on Dr. Haut's report was the product of an alteration. On
the photocopy that is part of our record, there does appear to
be a deletion on Dr. Haut's typed report just before the word
"head," so we cannot rule out AIM's speculation that "neck"
had appeared but was deleted. Without more, however, the
possibility that "neck" ever appeared in the now-empty space
is hardly "compelling evidence" that any government actor
has behaved illegally. At least while completing that part of
the report, Dr. Haut presumably thought "head" correct.
Finally, the FBI memo reporting that there was no exit
wound is a puzzling document of unknown origin. But it
merely purports to offer "preliminary results" and is date-
stamped "July 23, 1993," only three days after Foster died.

When multiple agencies and personnel converge on a com-
plex scene and offer their hurried assessments of details,
some variation among all the reports is hardly so shocking as
to suggest illegality or deliberate government falsification.
Nor does it suggest that the congressional or independent
counsel inquiries got anything wrong regarding Foster's
wounds. The Starr Report is altogether credible in its asser-
tion that the photos are "[s]ome of the best evidence" of the
nature of Foster's wounds, Starr Report at 16, and those who
have viewed them have concluded that Foster suffered an
entrance wound in the mouth and an exit wound in the back
of the head. The likelihood that the photos contradict the

statements of all four investigating agencies seems remote.
While we agree that falsification by the agencies would show
government illegality--under the present facts, indeed, ille-
gality on a massive scale--there is no persuasive evidence of
such falsification, much less compelling evidence.

* * *

Two final issues: First, AIM contends that the district
court should have at least inspected the photos in camera.
We review its decision not to do so for abuse of discretion,
Spirko v. United States Postal Serv., 147 F.3d 992, 996 (D.C.
Cir. 1998), and have said that such review "may be particular-
ly appropriate when either the agency affidavits are insuffi-
ciently detailed to permit meaningful review of exemption
claims or there is evidence of bad faith on the part of the
agency." Quinon v. FBI, 86 F.3d 1222, 1227-28 (D.C. Cir.
1996). None of the evidentiary discrepancies is evidence of
bad faith on the part of the Park Service. AIM suggests that
the Vaughn index falls short in not revealing just how graphic
each of the photos is, following up with the suggestion that in
camera inspection might identify some photos tame enough to
be released with little invasion of personal privacy. Given the
subject matter, we cannot imagine any photos that could both
elucidate the true nature of Foster's wounds and yet not be
disturbingly graphic. We find no abuse of discretion.

Second, AIM seeks further discovery on the theory that the
Park Service has failed to search adequately for missing
photos, handwritten notes, telephone records, and other docu-
ments. AIM's claim of need rests on highly speculative
criticism of the Park Service's search. For example, it ob-
serves that type-written reports from those who attended the
autopsy were quite detailed--so detailed, it says, that there
must also be some handwritten notes because the attendees
could not have typed or dictated the reports from memory.
But "[m]ere speculation that as yet uncovered documents
may exist does not undermine the finding that the agency
conducted a reasonable search for them." SafeCard, 926

F.2d at 1201. We find no abuse of the court's exercise of its
discretion to manage the scope of discovery.

* * *

The decision of the district court is

Affirmed.