Supremes Keep Foster Photos Sealed

Supreme Court Keeps Foster Photos Private

The Supreme Court barred the release of police photographs of former deputy White House counsel Vincent Foster Jr.’s body today, ruling unanimously that the privacy of Foster’s family outweighs an effort to find out if his July 1993 death by gunshot was not a suicide.

Setting forth a new test to govern release of post-mortem pictures and documents held by the government, the court said surviving family members are covered by a provision of the Freedom of Information Act (FOIA) that exempts from disclosure law enforcement records that could invade personal privacy. Officials can withhold information to protect a grieving family, the court ruled, unless the requester has good evidence that disclosure might help uncover official wrongdoing.

In this case, Justice Anthony M. Kennedy wrote for the court that Allan J. Favish, a lawyer in California who believes the government covered up the true circumstances of Foster’s death, has no such evidence.

“It would be quite extraordinary to say that we must ignore the fact that five different inquiries into the Foster matter reached the same conclusion,” Kennedy wrote. Kennedy was referring to investigations by the FBI, a Senate committee, a House committee and Independent Counsels Robert Fiske and Kenneth W. Starr. Each confirmed the U.S. Park Police’s finding that Foster, who served former president Bill Clinton, killed himself in Fort Marcy Park.

The case put the court firmly on the side of grieving families in a case in which not only Favish, but also major media associations, argued for full disclosure. Citing lower-court opinions that blocked disclosure of President John F. Kennedy’s autopsy X-rays and photos and an audiotape of the Challenger Space Shuttle astronauts’ last words, Kennedy wrote sympathetically of the Fosters’ wish to “secure their own refuge from a sensation-seeking culture.”

Among the most private of government officials themselves, the nine justices united behind Kennedy’s statement that Foster’s “former status as a public official” does not diminish “the weighty privacy interests involved.”

I’m not all that familiar with FOIA case law or, indeed, the nuts and bolts of the legislation itself. But as a matter of pure public policy, this ruling seems correct. At some point, the family should have a right to protection. For that matter, Foster didn’t become a public figure in any real sense until his death.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. I’m not a huge fan of conspiracy theories, but Vince Foster’s death is such an obvious case of a political killing that it merits much more investigation.

    The fact that any (let alone every) journalist let this story die is very troubling to me. Some fourth estate …

  2. bryan says:

    I’m sure this will make the Earnhardt family happy, seeing how they had to fight in court so long to keep Dale Earnhardt’s autopsy photos out of the public eye.

  3. Dodd says:

    I’m not sure I agree on the public policy angle. A person’s privacy is his own, not his family’s. If that person is dead, he doesn’t have anything, including rights.

    I don’t mean to be insensitive, but Constitutional law should not hinge on feelings. I would probably want my family to have the right to protect my privacy after I die, too. But that doesn’t mean I should be given that protection as a matter of right. Only the living have rights.

    Besides, the photographs at issue are government property related to a homocide. I haven’t had time to read it yet, and I may change my mind after I have, but I lean to the opinion that this ruling is wrong.

  4. akim says:

    Re MMB’s link, I have to wonder why the family doesn’t seem impressed with these homicide theories (wound to the neck etc). As much as relatives might want “closure”, if there is something really fishy it tends to bother you as a family member – especially since none of them saw it coming.
    You are no doubt aware that there are still a lot of rumors going on concerning Dr.Kelly’s death in UK. A hyped political-scandal context in both of these cases would account for much of the perceived fishiness.

    It’s unbelievable what conspiracy-theorists are able to come up with to prove their perspective – spend an hour in a room with a conspiracist and you’ll come out convinced. No kidding.