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Supreme Court permits withholding Foster photos

Bill Mears
CNN Washington Bureau

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WASHINGTON (CNN) -- The Supreme Court Tuesday blocked the public release of controversial photographs showing the body of former White House official Vincent Foster, with justices concluding it would be an "unwarranted invasion" of the family's privacy.

The unanimous 9-0 ruling now makes it harder to use a federal public information law to obtain sensitive records, such as autopsy and crime scene images.

At issue was whether the public's right to access to graphic evidence related to a closed government investigation outweighed a family's right to privacy.

Allan Favish, a California attorney, sued the Justice Department under the Freedom of Information Act (FOIA) for the release of photos taken at the scene of Foster's suicide. A federal appeals court ordered the release of four of 10 contested photos, one showing a handgun in Foster's hand.

But the Justice Department argued that releasing the death photos would be an invasion of privacy and that the photos do not "directly advance the public knowledge of the government's activities and operations." Government lawyers were supported by Foster's family and friends.

Justice Anthony Kennedy, writing for the court, concluded, "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."

Kennedy also said Favish "has not produced any evidence" supporting his belief of a White House cover-up surrounding Foster's death.

Foster was deputy White House counsel under President Clinton when he was found July 20, 1993, in Fort Marcy Park outside Washington, with a gunshot wound to the head. His death was ruled a suicide by several different investigations, including one by former independent counsel Kenneth Starr, who was put in charge of the wide-ranging Whitewater probe.

An extensive investigation by Starr's office concluded Foster was suffering from depression and had felt frustrated by the pressures of his government job. Foster was also a former law partner of Hillary Rodham Clinton in Little Rock, Ark.

A number of conspiracy theories have emerged over the years, claiming Foster was murdered and that the government tried to cover it up.

Kennedy also raised larger issues supporting limited release of certain public records.

"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."

Among those supporting Foster and the government was Theresa Earnhardt, widow of race car driver Dale Earnhardt, who was killed in a horrible crash at the Daytona 500 in 2001. His family has been fighting the release of Earnhardt's autopsy photos.

The Office of Independent Counsel, led for a time in the late 1990s by Starr, officially shut down last week. The Foster photos and other evidence were transferred to the National Archives in Washington.

The case is National Archives and Records Administration v. Favish, case no. 02-0954.


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