No. 02-954 In the Supreme Court of the…

                           No. 02-954

In the Supreme Court of the United States

       OFFICE OF INDEPENDENT COUNSEL, PETITIONER,

                               v.

                  ALLAN J. FAVISH, RESPONDENT.



                  ON WRIT OF CERTIORARI
          TO THE UNITED STATES COURT OF APPEALS
                  FOR THE NINTH CIRCUIT




            BRIEF OF AMICUS CURIAE
        SILHA CENTER FOR THE STUDY OF
            MEDIA ETHICS AND LAW
  IN SUPPORT OF RESPONDENT ALLAN J. FAVISH



                                    JANE E. KIRTLEY
                                    Counsel of Record
                                    SILHA CENTER FOR THE STUDY OF
                                      MEDIA ETHICS AND LAW
                                    School of Journalism and
                                      Mass Communication
                                    University of Minnesota
                                    111 Murphy Hall
                                    206 Church Street, SE
                                    Minneapolis, MN 55455
AUGUST 21, 2003                     (612) 625-9038
                                             i

                           TABLE OF CONTENTS

                                                                                     Page
Interest of amicus curiae ......................................................... 1
Summary of argument .............................................................. 1
Argument:
    I. "Survivor privacy" does not exist under the
        statutory language of the Freedom of Information
        Act. ............................................................................. 3
        A. Exemption 7(C) extends only to individuals
             who are mentioned in government records. ............. 4
             1. The plain language of the statute makes
                  clear that "privacy" is limited to those
                  individuals mentioned in the records in
                  question. ......................................................... 5
             2. Petitioner's interpretation of "personal"
                  privacy is contrary to the meaning
                  compelled by statutory interpretation. ............... 6
        B. The FOIA Exemptions must be construed
             narrowly to exclude "survivor privacy"
             interests. ................................................................ 9
             1. The statute's fundamental presumption of
                  disclosure compels a narrow interpretation
                  of exemptions. ................................................. 9
             2. Petitioner has not provided evidence of
                  Congressional intent to expand privacy
                  interests beyond those of individuals
                  specifically mentioned in government
                  records. ......................................................... 10
    II. The case law cited in support of "survivor privacy"
        is inapposite or flawed, and should not be
        regarded as binding precedent in the instant case. ....... 12
        A. Cases where the personal privacy interest
             belongs to individuals named or depicted in
             the records sought are inapposite. ........................ 13
                                            i

TABLE OF CONTENTS--Continued:                                                      Page

        B. The court in Katz recognized a proprietary
            interest, not a "survivor privacy" interest, in
            protecting autopsy photos from disclosure. ........... 14
        C. New York Times v. NASA illustrates why
            Congressional, not judicial, action is required
            to create a "survivor privacy" interest under
            FOIA. ................................................................. 15
        D. Surviving family members who are not named
            or depicted in the records sought do not have
            a personal privacy interest under FOIA. ............... 16
   III. Legislatures have the power to amend open-records
        statutes to exempt material from disclosure if they
        determine that public policy so requires, but it is not
        the role of the courts to do so. .................................... 17
   IV. Recognizing "survivor privacy" under FOIA would
        create precedent for further expansion of statutory
        exemptions that would frustrate the fundamental
        purpose of the statute. ................................................ 19
        A. "Survivor privacy" easily could evolve into a
            generalized "family privacy" interest. ..................... 20
        B. The recognition of "survivor privacy" would
            greatly increase the government's burden under
            FOIA and could lead to unjustified withholding
            of records that should be disclosed. ...................... 22
Conclusion ............................................................................ 24
                                         iii

                       TABLE OF AUTHORITIES

Cases:
   Accuracy in Media v. Nat'l Park Serv.,
       194 F.3d 120 (D.C. Cir. 1999), cert.
       denied, 529 U.S. 1111 (2000) ...................... 3-4, 16, 20
   Atl. Cleaners & Dyers, Inc. v. United States,
       286 U.S. 427 (1932) ................................................... 4
   Bailey v. United States, 516 U.S. 137 (1995) ............... 5, 7
   Campbell v. Dep't of Justice,
       164 F.3d 20 (D.C. Cir. 1998) .................................... 16
   Campbell v. Dep't of Justice,
       193 F. Supp.2d 29 (D.D.C. 2001) ............................ 22
   Campus Communications, Inc. v. Earnhardt,
       821 So. 2d 388 (Fla. Dist. Ct. App. 2002),
       rev. denied, 848 So. 2d 1153 (Fla. 2003)
       (table no. SC02-1635). ............................................. 18
   Cordell v. Detective Publ'ns, 419 F.2d 989
       (6th Cir. 1969) ......................................................... 8-9
   Cox Broad. Corp. v. Cohn, 200 S.E.2d 127
       (Ga. 1973), rev'd on other grounds,
       420 U.S. 469 (1975) ................................................ 8-9
   Crandon v. United States,
       494 U.S. 152 (1990) ................................................. 10
   Dep't of Air Force v. Rose,
       425 U.S. 352 (1976) ..................................... 10, 11, 19
   Dep't of Justice v. Reporters Comm. for
       Freedom of the Press, 489 U.S. 749 (1989) ...... passim
   Dep't of Justice v. Tax Analysts,
       492 U.S. 136 (1989) ................................................... 6
   Dep't of Navy v. FLRA,
       840 F.2d 1131 (3d Cir. 1988) ................................... 12
                                        iv

Cases--Continued:                                                             Page
   Dep't of State v. Ray, 502 U.S. 164 (1991) .............. 12, 13
   Dep't of State v. Washington Post Co.,
       456 U.S. 595 (1982) ................................................... 5
   Diamond v. FBI, 532 F. Supp. 216
       (S.D.N.Y. 1981), aff'd, 707 F.2d 75
       (2d Cir. 1983), cert. denied, 465 U.S.
       1004 (1984) ............................................. 16-17, 20, 22
   Earnhardt v. Volusia County Office of
       Med. Exam'r, 2001 WL 992068
       (Fla. Cir. Ct. 2001) .................................................... 18
   Estate of Conner v. Ambrose,
       990 F. Supp. 606 (N.D.Ind. 1997) .............................. 9
   Favish v. Office of Indep. Counsel,
       217 F.3d 1168 (9th Cir. 1999) ............................ passim
   Heller v. U.S. Marshals Serv.,
       655 F. Supp. 1088 (D.D.C. 1987) .............................. 5
   Helmer v. Middaugh, 191 F. Supp.2d 283
       (N.D.N.Y. 2002) ......................................................... 9
   John Doe Agency v. John Doe Corp.,
       493 U.S. 146 (1989) ................................................. 10
   Katz v. Nat'l Archives & Records Admin.,
       862 F. Supp. 476 (D.D.C. 1994),
       aff'd on other grounds, 68 F.3d 1438
       (D.C. Cir. 1995) ............................................. 12, 14-15
   Kyle v. United States,
       1987 WL 13874 (W.D.N.Y.) .................................... 17
   Lesar v. Dep't of Justice,
       636 F.2d 472 (D.C. Cir. 1980) ........................... passim
   Marzen v. Dep't of Health & Human Servs.,
       825 F.2d 1148 (7th Cir. 1987) ............................. 12, 14
                                        v

Cases--Continued:                                                            Page
   Morissette v. United States,
       342 U.S. 246 (1952) ................................................... 7
   Nat'l Ass'n of Retired Fed. Employees v.
       Horner, 879 F.2d 873 (D.C. Cir. 1989),
       cert. denied, 494 U.S. 1078 (1990) ............................ 6
   New York Times v. NASA,
       920 F.2d 1002 (D.C. Cir. 1990) ............... 12-13, 15-16
   New York Times v. Sullivan,
       376 U.S. 254 (1964) ................................................. 21
   Nixon v. Adm'r of Gen. Servs.,
       433 U.S. 425 (1977) ................................................. 20
   Outlaw v. Dep't of the Army,
       815 F. Supp. 505 (D.D.C. 1993) .............................. 23
   Platt v. Union Pac. R. Co., 99 U.S. 48 (1879) ................. 7
   Powell v. Dep't of Justice,
       584 F. Supp. 1508 (N.D.Cal. 1984) ............................ 5
   Rabbitt v. Dep't of Air Force,
       383 F. Supp. 1065 (S.D.N.Y. 1974) ......................... 17
   Reporters Comm. for Freedom of the Press
       v. Dep't of Justice, 831 F.2d 1124
       (D.C. Cir. 1987) ........................................................ 21
   Richards v. United States, 369 U.S. 1 (1962) ................. 10
   SEC v. Joiner, 320 U.S. 344 (1943) ............................... 10
   Seastrunk v. Burns,
       772 F.2d 143 (5th Cir. 1985) .................................. 19
   Scheidler v. Nat'l Org. for Women,
       537 U.S. 393 (2003) ................................................... 7
   Schrecker v. Dep't of Justice,
       217 F. Supp.2d 29 (D.C. Cir. 2002) .......................... 22
   Swickard v. Wayne County Med. Exam'r,
       475 N.W.2d 304 (Mich. 1991) ................................... 8
                                         vi

Cases--Continued:                                                              Page
    Taylor v. United States, 495 U.S. 575 (1990) .................. 7
    United States v. Amalgamated Life Ins. Co.,
        534 F. Supp. 676 (S.D.N.Y. 1982) ............................. 9
    United States v. Ron Pair Enters., Inc.,
        489 U.S. 235 (1989) ................................................... 5
    Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) ........... 19
    Williams v. City of Minneola,
        575 So. 2d 683 (Fla. Dist. Ct. App. 1991) ................ 18
Statutes, bills, and regulations:
    Freedom of Information Act
        5 U.S.C. § 552(a)(4)(B) ........................................... 24
        5 U.S.C. § 552(b)(6) ........................................ passim
        5 U.S.C. § 552(b)(7) ................................................. 4
        5 U.S.C. § 552(b)(7)(A-D) ........................................ 5
        5 U.S.C. § 552(b)(7)(C) ................................... passim
    44 U.S.C. § 397 (1964) .................................................. 15
    Pub. L. No. 102-526, 106 Stat. 3443 (1992) .................. 15
    Fla. Stat. Ann. § 406.135 (West 2002) ............................ 18
    Ind. Code Ann. § 5-14-3-4(a)(11) (2003) .................... 19
    H.B. 77, 2002 Leg., Reg. Sess. (Ky. 2002) .................. 19
    2002 S.C. Acts 350 ....................................................... 19
    A.B. 604, 2001-2002 Assembly (Wis. 2002) ................ 19
    Wyo. Stat. Ann. § 16-4-203(d)(i) (1977) ...................... 19
Miscellaneous:
    120 Cong. Rec. 17,033-34 (1974) .............................. 4, 10
    132 Cong. Rec. S16,496 (1986) ....................................... 4
    Restatement (Second) of Torts (1977) ........................... 7, 8
    S. Rep. No. 813 (1965) .................................................. 10
    S. Rep. No. 221 (1983) .................................................. 23
    Webster's New World Dictionary 1008, 1071
        (3d coll. ed. 1988) ....................................................... 6
                                     1

              INTEREST OF AMICUS CURIAE
  Amicus is a research center located within the School of Jour-
nalism and Mass Communication at the University of Minne-
sota.1 Its primary mission is to conduct research on, and pro-
mote understanding of, legal and ethical issues affecting the mass
media. The Silha Center also sponsors an annual lecture series;
hosts forums, conferences and symposia; produces the Silha
Bulletin, a quarterly newsletter, and other publications; and pro-
vides information about media law and ethics to the public. Be-
cause Amicus believes that the Ninth Circuit's extension of "per-
sonal privacy" under Exemption 7(C) of the Freedom of Infor-
mation Act, 5 U.S.C. § 552, to include "survivor privacy" inter-
ests threatens to undermine the purpose of the Act, Amicus re-
spectfully submits this brief in support of Respondent Favish.

                SUMMARY OF ARGUMENT
  The privacy exemptions of the federal Freedom of Informa-
tion Act (FOIA), 5 U.S.C. § 552(b)(6) and (b)(7)(C), are lim-
ited exceptions to that statute's general presumption in favor of
disclosure. Both exemptions, which protect "personal privacy,"
should be construed narrowly to apply only to those individuals
mentioned or depicted in the records in question. To allow a
broader interpretation of the term "personal privacy" would be
to ignore the inherent purpose and clear intent of the statute, as
well as the noteworthy Congressional silence on any possible
privacy interest held by survivors of deceased persons who are
mentioned in government records.
  Although this Court has said in the past that the privacy inter-
est created by FOIA is different from either common law or

  1
     Letters of consent have been filed with the Clerk. Pursuant to Supreme
Court Rule 37.6, Amicus states that no counsel for a party authored this
brief in whole or in part, and no person or entity other than Amicus and its
counsel made a monetary contribution to the preparation or submission of
this brief.
                                     2

Constitutional privacy interests, that statement was made in a
case which did not address the question of third-party privacy
rights. The instant case provides an opportunity for this Court
to clarify its interpretation. Wherever the outer boundaries of
statutory privacy under FOIA should fall, they should not en-
compass the type of survivor's interests that the Petitioner at-
tempts to assert in this case.
  "Survivor privacy" is not recognized in common law tort ac-
tions. Constitutional privacy interests likewise are not descend-
ible, expiring at the death of the individual concerned. As even
the Petitioner admits, there has never been a clear indication by
Congress that a "survivor privacy" interest was intended to be
recognized by the original FOIA or its subsequent amendments.
Because the statute is based on a strong presumption that gov-
ernment records should be public, the exceptions contained in
the statute must be specifically defined and narrowly construed.
Viewing the exemptions in light of their place in the statutory
structure, as well as common law and Constitutional parallels,
efforts to read a "survivor privacy" interest into the language of
the statute must fail.
   Many of the cases cited by both the Petitioner and by Re-
spondent Foster family that are purported to provide a founda-
tion for assertions of "survivor privacy" are inapposite. Some
do not interpret FOIA at all. Others deal with family members'
first-person privacy rights as individuals mentioned in the records
sought. Still others establish "survivor privacy" simply by con-
cluding, without appropriate analysis of the statute, that such an
interest should exist. In another case concerning access to the
Foster death-scene photographs, the D.C. Circuit held that it is
"not unnatural" to view as a "privacy" interest a family's desire
to avoid disclosure and their own subsequent exposure to such
material.2 Although it can be argued that it would not, in fact,
  2
    Accuracy in Media, Inc. v. Nat'l Park Serv., 194 F.3d 120, 123 (D.C. Cir.
1999) ("While law enforcement sometimes necessitates the display of such
                                    3

have been "unnatural" for Congress to explicitly create such a
privacy interest in a disclosure statute, that does not alter the
fact that Congress has neither explicitly nor implicitly created
such an interest in the statutory language under consideration.
   The legislatures of several states have acted affirmatively to
exempt autopsy and, in some instances, death-scene photographs
by amending state freedom of information laws. Amendment of
the statute is the only appropriate method to create a new ex-
emption to laws governing citizens' access to presumptively pub-
lic government information.
  For this Court to create, sua sponte, a "survivor privacy" ex-
emption would encourage ambiguity and ultimately undermine
the presumption of disclosure. Affirmation by this Court of Con-
gress' stated intentions in establishing FOIA and its narrow pri-
vacy exemptions would help to delineate a clear line for both
information requesters and government agencies to observe.

                           ARGUMENT
I. "SURVIVOR PRIVACY" DOES NOT EXIST UNDER
    THE STATUTORY LANGUAGE OF THE FREEDOM
    OF INFORMATION ACT.
  The core question in the instant case is to determine what Con-
gress meant by "personal privacy" in Exemptions 6 and 7(C).
Nothing in the statutory language or legislative history suggests
that the answer to this question includes individuals who are not
themselves mentioned in a government record. By contrast, the
legislative history, the common law, and Constitutional concepts
of privacy all indicate that no such interest could reasonably have
been intended by Congress when it enacted and amended the
Freedom of Information Act.

ghoulish materials, there seems nothing unnatural in saying that the inter-
est 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."), cert. denied, 529 U.S. 1111 (2000).
                                4

    A. Exemption 7(C) extends only to individuals who are
         mentioned in government records.
  As enacted in 1966, Exemption 7 of the Freedom of Informa-
tion Act applied to "investigatory files compiled for law enforce-
ment purposes except to the extent available by law to a private
party." 5 U.S.C. § 552(b)(7). Exemption 6 created a personal
privacy exemption for "personnel and medical files and similar
files the disclosure of which would constitute a clearly unwar-
ranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).
  In 1974, Congress amended FOIA to create a personal pri-
vacy standard under Exemption 7(C), in part to address the se-
rious problem of government agencies' and courts' expansive
interpretation of Exemption 7 as justifying blanket withholding
of law enforcement records. Sen. Philip Hart, who sponsored
the amendment creating 7(C), said on the Senate floor that the
amendment "simply make[s] clear that the protections in the sixth
exemption for personal privacy also apply to disclosure under
the seventh exemption." 120 Cong. Rec. 17,033 (1974).
  In 1986, Congress amended Exemption 7(C) to reaffirm the
presumption of access unless disclosure "could reasonably be
expected to constitute an unwarranted invasion of personal pri-
vacy." 5 U.S.C. § 552(b)(7)(C).
  The nature of privacy interests mentioned in the two exemp-
tions, however, is fundamentally the same. See Atl. Cleaners &
Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932) (hold-
ing that "identical words used in different parts of the same act
are intended to have the same meaning"). Moreover, the 1986
change in 7(C) from "would constitute" to "could reasonably be
expected to constitute" was intended merely to codify the ap-
proach that courts should take in determining the degree of risk
that disclosure would produce. 132 Cong. Rec. S16,496 (1986)
(statement of Sen. Patrick Leahy). Once a valid privacy interest
has been identified, courts may use different standards in Ex-
emption 6 and 7(C) to balance the risks associated with disclo-
                                 5

sure against the public interest served by disclosure. But any
effort to portray the privacy interest embodied in 7(C) as more
expansive than the interest embodied in Exemption 6 is misplaced.
  Exemption 6 was intended to prevent injury or embarrassment
to those whose personal information is contained in government
files. Dep't of State v. Washington Post Co., 456 U.S. 595,
599 (1982). By contrast, Exemption 7's primary aim is to pro-
tect the government's interest in keeping information secret.
Exemption 7 protects paid informants, individuals mentioned in
law enforcement files, and the identities of law enforcement per-
sonnel who could be subjected to harassment because of their
roles in investigations. 5 U.S.C. § 552(b)(7)(A-D). See Heller
v. U.S. Marshals Serv., 655 F. Supp. 1088 (D.D.C. 1987)
(holding that polygraph examinations of public official cleared of
wrongdoing fell within Exemption 7(C) where redaction of that
official's name would be insufficient to protect his privacy). See,
e.g., Powell v. Dep't of Justice, 584 F. Supp. 1508, 1525
(N.D.Cal. 1984) (holding that identities of FBI agents may be
withheld to spare the agents "annoyance and harassment," and
that records concerning individuals being investigated or who
are associated with investigations are also appropriate for ex-
emption under 7(C)). Protecting individuals explicitly mentioned
in law enforcement records from the embarrassment or humilia-
tion of being associated with a criminal investigation is a far dif-
ferent matter from protecting third parties not mentioned in law
enforcement records from discomfort or distress.

        1. The plain language of the statute makes clear that
            "privacy" is limited to those individuals mentioned
            in the records in question.
  When interpreting the meaning of a statute, analysis must be-
gin with the plain meaning of the statutory language of the statute
itself. Bailey v. United States, 516 U.S. 137, 144 (1995) (cit-
ing United States v. Ron Pair Enters., Inc., 489 U.S. 235,
241 (1989)). The dictionary definition of "personal" is "of or
                                    6

peculiar to a certain person; private; individual." Webster's
New World Dictionary 1008 (3d coll. ed. 1988) (emphasis
added). "Private," according to Webster's, means "of, belong-
ing to, or concerning a particular person or group." Id. at 1071.
"Personal privacy," therefore, necessarily refers to a privacy in-
terest that is limited to a specific individual. Under that interpre-
tation, the inquiry, both as to the meaning of the statute and as to
the legitimacy of "survivor privacy" under FOIA, comes to an
end. See Nat'l Ass'n of Retired Fed. Employees v. Horner,
879 F.2d 873, 874 (D.C. Cir. 1989), cert. denied, 494 U.S.
1078 (1990) (citing Dep't of Justice v. Tax Analysts, 492 U.S.
136, 150-51 (1989)).3

        2. Petitioner's interpretation of "personal" privacy
            is contrary to the meaning compelled by statutory
            interpretation.
  Questions of statutory interpretation arise in the instant case
only if one attempts to infer some hidden meaning beyond that
clearly and plainly intended by the statutory language. The Peti-
tioner proposes an implausible meaning for the word "personal"
in Exemption 7(C) that is contrary both to the plain language of
the statute and to the meaning compelled by interpretive tools
laid down by this Court.

  3
    In Tax Analysts, this Court stated:
       In enacting the FOIA, Congress intended to curb this appar-
       ently unbridled discretion by clos[ing] the loopholes which
       allow agencies to deny legitimate information to the public.
       Toward this end, Congress formulated a system of clearly
       defined exemptions to the FOIA's otherwise mandatory dis-
       closure requirements. An agency must disclose agency
       records to any person under § 552(a) unless they may be
       withheld pursuant to one of the nine enumerated exemptions
       listed in § 552(b). Consistent with the Act's goal of broad
       disclosure, these exemptions have been consistently given a
       narrow compass.
492 U.S. at 150-51 (internal quotation marks and citations omitted).
                               7

  The Petitioner contends that the word "personal" serves merely
to distinguish between "natural persons rather than corporations
or other entities." Pet'r Br. at 18 (emphasis in original). This
argument contradicts well-established principles laid down by
this Court. As the Court noted in a recent opinion, written by
the Chief Justice, unless Congress dictates otherwise, courts
should begin their interpretation of statutory language with the
presumption that a statutory term carries its common law mean-
ing. Scheidler v. Nat'l Org. for Women, 537 U.S. 393 (2003)
(citing Taylor v. United States, 495 U.S. 575, 592 (1990);
Morissette v. United States, 342 U.S. 246, 263 (1952)). For
Congress to say that personal privacy refers only to privacy of
"natural persons" and not corporations would be redundant,
because no common law right of privacy for corporations exists.
Restatement (Second) of Torts § 652I cmt. c (1977) ("A corpo-
ration, partnership or unincorporated association has no per-
sonal right of privacy."). Therefore, because Congress intends
that every word in a statute should have meaning, the word "per-
sonal" must have been included for purposes other than to dif-
ferentiate between a corporation's privacy interests and a natu-
ral person's privacy interests. Bailey, 516 U.S. at 145 (quoting
Platt v. Union Pac. R. Co., 99 U.S. 48, 58 (1879) ("[A] legis-
lature is presumed to have used no superfluous words.")). The
reasonable conclusion is that "personal" was used as a modifier
to limit an otherwise ambiguous term to a narrow group of people
­ namely, those who are mentioned by name in the government
records in question.
  This interpretation of the privacy interest was recognized by
this Court in Dep't of Justice v. Reporters Comm. for Free-
dom of the Press, 489 U.S. 749 (1989) (Reporters Commit-
tee). In that case, this Court noted that "both the common law
and literal understandings of privacy encompass the individual's
control of information concerning his or her person." 489
U.S. at 763 (emphasis added). Although the Court stated that
the privacy interest identified by FOIA differs from both com-
                                        8

mon law tort privacy and Constitutional privacy, it is clear that
those definitions inform the statutory meaning.4
  Under common law, "the right protected by the action for in-
vasion of privacy is a personal right, peculiar to the individual
whose privacy is invaded. The cause of action is not assignable,
and it cannot be maintained by other persons such as members
of the individual's family, unless their own privacy is invaded
along with his." Restatement (Second) of Torts § 652I, cmt. a
(1977). The Restatement also makes clear that no action may
be maintained by family members of a deceased individual whose
privacy was invaded, unless such action is specifically autho-
rized by statute. Id. cmt. b (emphasis added); see, e.g.,
Swickard v. Wayne County Med. Exam'r, 475 N.W.2d 304
(Mich. 1991); Cordell v. Detective Publ'ns, 419 F.2d 989 (6th
Cir. 1969);5 but see Cox Broad. Corp. v. Cohn, 200 S.E.2d
  4
     The Court, after a brief discussion of the dictionary definition of pri-
vacy, provided a footnote supporting definitions of privacy that were lim-
ited to an individual's control over information about himself. Three defini-
tions were drawn from secondary sources: "Privacy . . . is the rightful claim
of the individual to determine the extent to which he wishes to share of
himself with others. . .;" "Privacy is the claim of individuals . . . to determine
for themselves when, how, and to what extent information about them is
communicated to others;" "[T]he right of privacy is the right to control the
flow of information concerning the details of one's individuality." 489 U.S.
at 764 n.16 (citations omitted) (emphasis added).
   5
     In Cordell, the defendant wrote an article concerning the murder of the
plaintiff's daughter. The Sixth Circuit ruled that the plaintiff could not bring
an action for public disclosure of private matters, emphasizing that such a
cause of action can only be asserted by subjects of the publication. The
court stated that "the right lapses with the death of the person who enjoyed
it, and one cannot recover for this kind of invasion of the privacy of a
relative, no matter how close the relationship." 419 F.2d at 990-91. The court
went on to discuss the policy behind the rule:
        The policy underlying these limitations is not hard to discern.
        The law is not unwisely wary of actions for injury which is
        purely emotional; the danger of spurious claims is too great.
        As one court put it, "if the right asserted here were sustained,
        it would be difficult to fix its boundaries. How distant a rela-
                                      9

127 (Ga. 1973) (allowing father of deceased rape victim to bring
common law tort claim against company that broadcast the
victim's name), rev'd on other grounds, 420 U.S. 469 (1975).6
  Similarly, the Constitutional right of privacy does not extend
beyond death and does not descend to the heirs of the deceased.
United States v. Amalgamated Life Ins. Co., 534 F. Supp.
676, 679 (S.D.N.Y. 1982); Helmer v. Middaugh, 191 F.
Supp.2d 283, 285 (N.D.N.Y. 2002) ("Even assuming all of the
facts in favor of the plaintiff, a dead man does not have any
constitutional rights."); Estate of Conner v. Ambrose, 990 F.
Supp. 606, 618 (N.D.Ind. 1997) ("After death, one is no longer
a `person' within our constitutional and statutory framework and
has no rights of which he may be deprived.").
  No natural reading of the statutory language, without addi-
tional indications either in the statute or in the legislative history,
allows the conclusion that "personal privacy" was meant to ex-
tend beyond those individuals whose personal information is
contained in government records.

    B. The FOIA Exemptions must be construed narrowly to
       exclude "survivor privacy" interests.
       1. The statute's fundamental presumption of disclo-
           sure compels a narrow interpretation of exemp-
           tions.
  The statutory language of FOIA carves out nine specifically
delineated exemptions to mandatory disclosure of government

        tive could sue? At what relational distance does the danger of
        feigned claims overcome the likelihood of real emotional dis-
        tress?"
Id. (citations omitted).
  6
     This Court in Cox did not consider the validity of the father's claim that
his own privacy was violated through the publication of his daughter's
name as the victim of a rape that ended in murder. Instead, this Court
deferred to the finder of fact on that question.
                                 10

records. Those exemptions, like all of the statute's provisions,
should be interpreted in light of the fundamental goal of the stat-
ute, which is to provide the fullest possible disclosure. Dep't of
Air Force v. Rose, 425 U.S. 352, 360 (1976) (quoting S. Rep.
No. 813, at 3 (1965), which states that FOIA carries a "basic
philosophy of full agency disclosure"); John Doe Agency v. John
Doe Corp., 493 U.S. 146 (1989).
  The idea that statutory provisions should be interpreted in light
of the statute's fundamental policy is not unique to FOIA. It is a
widely accepted tenet of statutory interpretation. See, e.g.,
Crandon v. United States, 494 U.S. 152, 158 (1990) (holding
that statutory provisions should be interpreted in light of the "de-
sign of the statute and to its object and policy"); Richards v.
United States, 369 U.S. 1, 10 (1962); SEC v. Joiner, 320
U.S. 344, 350 (1943). Based on that interpretive guidance, it is
clear that, given multiple possible interpretations of the term "per-
sonal privacy," this Court should select the meaning that best
furthers the goal of the fullest possible public access to govern-
ment records.

        2. Petitioner has not provided evidence of Congres-
            sional intent to expand privacy interests beyond
            those of individuals specifically mentioned in gov-
            ernment records.
  As the Petitioner asserts, this Court has held that FOIA's ex-
emptions "are intended to have meaningful reach and applica-
tion." Pet'r Br. at 14 (quoting John Doe Agency, 493 U.S. at
152). Such "meaningful reach" is provided by an interpretation
given by Senator Hart, who sponsored the 1974 amendment
that created Exemption 7(C). During Senate floor debate, Sen.
Hart specifically described the personal privacy exemption as
"intended to protect the privacy of any person mentioned in the
requested files, and not only the person who is the subject of the
investigation." 120 Cong. Rec. 17,033-34 (1974) (emphasis
added).
                                11

  Once a valid privacy interest is found under Exemption 7(C),
personal information contained in law enforcement records can-
not be disclosed unless the privacy interest is outweighed by a
public interest in what the government "is up to." Reporters
Committee, 489 U.S. at 774. As Reporters Committee and
subsequent cases have shown, that public interest requirement
represents a significant hurdle for requesters. To erect an even
higher barrier for requesters by extending privacy interests to
those not mentioned or portrayed in government records would
undermine the basic philosophy and underlying aims of FOIA.
  Had the exemption been intended to extend beyond those in-
dividuals explicitly mentioned in law enforcement records, Sen.
Hart's remarks would have been likely to include some mention
of that. To infer that legislative intent, without more, would be to
disregard traditional common law and Constitutional notions of
privacy, and adopt a greatly expanded statutory definition of
privacy which is without support in either the plain language of
the statute or in the legislative history.
  The Petitioner asserts that Congress' failure specifically to ex-
clude "survivor privacy" from the statute provides evidence of
intent to include it. Pet'r Br. at 18. This assertion disregards the
role of the exemptions in the overall statutory scheme. The man-
datory disclosure of government information under FOIA can
be overcome only by an exemption created by "clearly delin-
eated statutory language." Rose, 425 U.S. at 360-361 (citation
omitted). Failing to exclude an interest can hardly be seen as
embracing that interest, especially when it is one that Congress,
looking to the common law, would not expect to be included in
the notion of "privacy." Congress also failed to specifically ex-
clude potential privacy interests of former bowling league team-
mates or grammar school friends, but it scarcely could be ar-
gued that such exclusions compel the judicial acknowledgment
of those interests.
                                12

  Second, the Petitioner points to two memoranda from Attor-
neys General which appear to support an interpretation of Ex-
emption 7(C) that extends to family members or descendants.
Pet'r Br. at 18. Although it is not surprising that the Attorney
General would attempt to minimize the burden on the Justice
Department by narrowing the range of records that must be dis-
closed under the statute, these administrative interpretations have
no bearing on the legislative intent behind the statute. Nor should
they control this Court's determination of the proper reach of
the statute's exemptions. Agencies' interpretations of statutes ­
even those they are charged to enforce ­ are not controlling, and
agency decisions should not be "rubber-stamp[ed]" if they run
counter to the stated purposes of those statutes. Dep't of Navy
v. FLRA, 840 F.2d 1131, 1134 (3d Cir. 1988) ("[N]o defer-
ence is owed an agency's interpretation of a general statute.").

II. THE CASE LAW CITED IN SUPPORT OF "SURVIVOR
    PRIVACY" IS INAPPOSITE OR FLAWED, AND
    SHOULD NOT BE REGARDED AS BINDING PRE-
    CEDENT IN THE INSTANT CASE.
  Several cases that Petitioner contends recognize a familial or
"survivor privacy" interest under FOIA in fact merely affirm the
stated Congressional intention that FOIA's privacy protections
extend to individuals who are named or depicted in records but
are not themselves the subject of the records. See Dep't of State
v. Ray, 502 U.S. 164 (1991); Marzen v. Dep't of Health &
Human Servs., 825 F.2d 1148 (7th Cir. 1987); Lesar v. Dep't
of Justice, 636 F.2d 472 (D.C. Cir. 1980). Other cases, such
as Katz v. Nat'l Archives & Records Admin., 862 F. Supp.
476 (D.D.C. 1994), are inapposite because FOIA and its ex-
emptions are not applicable to the requested materials. Another
case frequently cited by the Petitioner and others who seek a
pedigree for "survivor privacy" is New York Times v. NASA,
920 F.2d 1002, 1010 (D.C. Cir. 1990). The NASA opinion
was the product of a court that split 6-5 and stands as an ex-
                                 13

ample of tragic facts making bad law, a trait that is a hallmark of
many cases where courts have recognized "survivor privacy."

    A. Cases where the personal privacy interest belongs to
        individuals named or depicted in the records sought
        are inapposite.
  In Dep't of State v. Ray, the Court upheld the redaction of
individuals' names from summaries of interviews of returned Hai-
tian emigrants conducted by the State Department. These
records were requested by a Florida lawyer and his three cli-
ents, Haitian nationals seeking political asylum in the United States.
502 U.S. at 168. As part of immigration proceedings, the records
were sought in order to show that Haitians who attempted to
immigrate to the United States illegally and were subsequently
returned to Haiti would "face a well-founded fear of persecu-
tion." Id.
  Many of the interview summaries contained "personal details
about particular interviewees" including "highly personal infor-
mation regarding marital and employment status [and] children."
Id. at 175-176. Family members were named as a part of the
record and therefore had privacy interests independent from the
privacy interests of the interviewees. Read broadly, as Peti-
tioner urges, Ray would protect from disclosure any record that
could subject any family member ­ whether named in the record
or not ­ to "embarrassment in their social and community rela-
tionships." Id. at 176 (citation omitted). This would create not
a "survivor privacy" interest, but a familial privacy interest for
family members of the living. Such an interest would undercut
FOIA's purpose by stretching the meaning of "personal privacy"
to encompass anyone who has a family member who has ex-
posed them to potential embarrassment.
  Respondent Foster family cites Lesar as an example of judi-
cial recognition of "survivor privacy" to protect the privacy of
family members. Resp't Br. at 24. It is true that, in Lesar, the
D.C. Circuit upheld the withholding of "information allegedly of
                                     14

a personal nature concerning Dr. [Martin Luther] King [Jr.]'s
family and associates." 636 F.2d at 487. However, the privacy
interests being weighed were not, as is often stated, "survivor
privacy" interests.7 Instead, the interests were those of family
members and associates who were themselves named in the
records. The same is true of Marzen v. Dep't of Health &
Human Servs., 825 F.2d 1148, where the Seventh Circuit rec-
ognized that the parents of a deceased baby could assert a pri-
vacy interest when their own actions and decisions to withhold
medical treatment were part of the record.

     B. The court in Katz recognized a proprietary interest,
         not a "survivor privacy" interest, in protecting autopsy
         photos from disclosure.
   Katz v. Nat'l Archives & Records Admin., 862 F. Supp.
476, has been cited frequently and erroneously, including by Pe-
titioner, as an example of judicial recognition of a "survivor pri-
vacy" interest. In Katz, the district court denied access to the
autopsy materials of President Kennedy out of concern for the
privacy of the Kennedy family. Id. But because of the unique
legal status of the Kennedy autopsy materials, the case cannot
be seen as precedent for judicial or Congressional recognition
of a broad "survivor privacy" interest under FOIA.
  7
     In Lesar, the D.C. Circuit made clear that it was protecting family mem-
bers and associates from direct invasions of their own personal privacy
interest:
       [W]e must consider whether the district court correctly found
       that the materials in question fell within the scope of Exemp-
       tion 7(C). To recall briefly, these materials are of two types:
       the names and other identifying data of FBI agents and infor-
       mants involved in the FBI's investigations of Dr. King and
       information allegedly of a personal nature concerning Dr. King's
       family and associates.
636 F.2d at 487. Although the D.C. Circuit did recognize a privacy interest in
avoiding "annoyance or harassment," as the Petitioner asserts, the court
made clear that this interest was held by the FBI agents named in the files,
not by King's family and associates. Id. at 487; Pet'r Br. at 23.
                                15

  The Kennedy family donated the autopsy materials to the Na-
tional Archives by deed of gift under the Presidential Libraries
Act, placing restrictions on their access and disclosure as al-
lowed by the Act. Id. at 478; 44 U.S.C. § 397 (1964). In
1992, Congress recognized the validity of this deed of gift in the
President John F. Kennedy Assassination Records Collection
Act. Katz, 862 F. Supp at 482; Pub. L. No. 102-526, 106
Stat. 3443 (1992). The deference that Congress paid to the
Kennedy family was tied to a specific law, and cannot be read
as an endorsement of a general "survivor privacy" right granted
by Congress under some other statute. Indeed, Congress' need
to specially codify the Kennedy family's privacy interest indi-
cates that Congress did not recognize an established "survivor
privacy" interest inherent in FOIA.
  Although the district court in Katz held, in the alternative, that
the privacy interest of the Kennedy family outweighed the public
interest in disclosure of the autopsy materials, the decision to
withhold the autopsy materials was affirmed on other grounds
by the D.C. Circuit. Katz, 862 F. Supp. 485-86, aff 'd on other
grounds, 68 F.3d 1438, 1442 (D.C. Cir. 1995) (holding that
the autopsy materials are not and never were "agency records"
subject to FOIA).
  Both Congress and the courts have recognized that the deed
of gift under the Presidential Libraries Act, not FOIA, governs
access to the Kennedy autopsy materials. Because access to
these materials is controlled by the Kennedy family, not the gov-
ernment, Katz cannot be seen as useful precedent for the devel-
opment of "survivor privacy" as a basis for government with-
holding of material under FOIA.

   C. New York Times v. NASA illustrates why Congres-
       sional, not judicial, action is required to create a "sur-
       vivor privacy" interest under FOIA.
 The Challenger disaster was an example of tragic facts making
bad law. See Favish v. Office of Indep. Counsel, 217 F.3d
                                    16

1168, 1173 (9th Cir. 1999) ("It could, no doubt, be suggested
that the . . . astronauts so tragically destroyed were special cases,
leading to special solicitude for the feelings of their families").
The five dissenting judges in New York Times v. NASA cor-
rectly argued that the majority erred when it held that the Chal-
lenger tape was a "similar file" under Exemption 6. 920 F.2d at
1010. The words of the dissent, although written in the context
of the threshold question of Exemption 6 (whether the tape was
a medical file, personnel file, or similar file), are equally appli-
cable to the issue of recognizing "survivor privacy" here: "The
result reached today defies the will of Congress as expressed in
the statute. We dissent because we believe that we are con-
strained to enforce the statute as it was written by Congress."
Id. at 1011.8 The dissent noted that the majority opinion found
that "the withheld tape contains no information about the per-
sonal lives of the Challenger astronauts or any of their family,"
and concluded "[W]e are not at liberty to rewrite FOIA to de-
feat an unseemly request. . . . Any needed repairs to the way in
which privacy concerns are protected . . . must be undertaken
by Congress, not by the courts." Id. at 1018 n.10.

    D. Surviving family members who are not named or de-
        picted in the records sought do not have a personal
        privacy interest under FOIA.
  Courts have held that the survivors of individuals who are the
subjects of a government record have no "survivor privacy" in-
terest whatsoever that would justify withholding the records. In
Diamond v. FBI, a university professor sought disclosure of FBI
documents relating to government surveillance of academics,
including himself, during the McCarthy era. 532 F. Supp. 216,

  8
     The D.C. Circuit in Accuracy in Media, Inc. v. Nat'l Park Serv. declined
to settle the dispute of whether the "survivor privacy" language of New
York Times v. NASA was holding or dictum. 194 F.3d at 123. Instead, the
court found "survivor privacy" via Campbell v. Dep't of Justice, 164 F.3d
20, 33-34 (D.C. Cir. 1998). Id.
                                17

219 (S.D.N.Y. 1981), aff 'd, 707 F.2d 75 (2d Cir. 1983), cert.
denied, 465 U.S. 1004 (1984). The Second Circuit found that
the death of those persons mentioned in the requested files had
so diminished their privacy interests as to amount to waiver. Dia-
mond, 707 F.2d at 77. In finding that death essentially destroyed
the privacy interest of these named individuals, the court did not
weigh the privacy interest of the survivors of these individuals at
all. Id. Because the court ordered the disclosure of these records
without placing "survivor privacy" interests in the balance be-
tween personal privacy interests and public interest, one can rea-
sonably infer that the court assigned no weight to these interests.
  In Rabbitt v. Dep't of Air Force, the court held that under
Exemption 6, the plaintiff was entitled to the medical records of
a ground crew member who was killed in an accident that also
killed plaintiff's husband, but that she was not entitled to the
records of an airman who survived the accident. 383 F. Supp.
1065 (S.D.N.Y. 1974). The court reasoned as follows: "[W]e
fail to perceive any invasion of privacy in releasing the medical
report of the deceased ground crew member. Release of the
medical information relating to the surviving occupant falls in a
different category. . . . [S]uch reports may contain embarrass-
ing information." Id. at 1070. Similarly, in Kyle v. United States,
the plaintiff, the widow of an Air National Guard pilot killed in a
crash, was entitled to the autopsy report of the weapons officer
who was also killed in the crash. 1987 WL 13874 (W.D.N.Y.).
The court found no part of the autopsy report was protected
from disclosure under Exemption 6. Id. at 1.

III. LEGISLATURES HAVE THE POWER TO AMEND
     OPEN-RECORDS STATUTES TO EXEMPT MATE-
     RIAL FROM DISCLOSURE IF THEY DETERMINE
     THAT PUBLIC POLICY SO REQUIRES, BUT IT IS
     NOT THE ROLE OF THE COURTS TO DO SO.
  The issue of public access to autopsy photographs became a
topic of national interest in early 2001, following NASCAR driver
                                   18

Dale Earnhardt's death resulting from a crash during the Daytona
500. Under Florida public records laws in place at the time,
autopsy photographs were considered public documents not
subject to privacy exemptions. See, e.g., Williams v. City of
Minneola, 575 So. 2d 683 (Fla. Dist. Ct. App. 1991). Four
days after her husband's death, and one day before the first public
records request for autopsy photographs was made by the Or-
lando Sentinel, Teresa Earnhardt petitioned for a temporary
restraining order barring release of the photographs pending
consideration of the family's right to privacy under the Florida
and U.S. Constitutions. See Earnhardt v. Volusia County Of-
fice of Med. Exam'r, 2001 WL 992068 (Fla. Cir. Ct. 2001).
   The Florida legislature quickly amended the state's public
records law to create Chapter 2001-1 expressly exempting au-
topsy photographs from disclosure. Fla. Stat. Ann. § 406.135
(West 2002). In Earnhardt, the court praised the legislature for
its wisdom "in recognizing that autopsy photographs, of all things,
should be presumptively private; that is, they will not be shared
with the public, even though they were in the very public hands
of the government, unless it can be established that good cause
exists" for their review. 2001 WL 992068 at 5. Although the
Petitioner relies heavily on the words of the Florida court, they
are little more than dicta supporting the actions of the state leg-
islature. See Pet'r Br. at 29.
  The Florida court's holding in Earnhardt offers no support
for the Petitioner's contention that it is appropriate for this Court
to find a "survivor privacy" interest in the federal FOIA. To the
contrary, Earnhardt demonstrates that the only way in which
such an interest should be established is through an act of the
legislature.9

  9
    The Florida statute created to protect Dale Earnhardt's autopsy photo-
graphs from public disclosure was upheld as Constitutional in Campus
Communications, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. Dist. Ct. App.
2002), rev. denied, 848 So. 2d 1153 (Fla. 2003) (table no. SC02-1635).
                                  19

  Although the Earnhardt case is the most-publicized example
of a state legislature exempting autopsy photographs or reports
from open-records laws, other states have acted similarly. See,
e.g., 2002 S.C. Acts 350; Ind. Code Ann. § 5-14-3-4(a)(11)
(2003); Wyo. Stat. Ann. § 16-4-203(d)(i) (1977).10
  Legislatures have the authority to restrict public access to ma-
terials such as autopsy or death scene photographs if they deter-
mine that public policy so requires. Presumably, if courts are
compelled to order the disclosure of material that some find dis-
turbing because of a legislature's failure to foresee the conse-
quences of its open-records laws, the legislature will act to change
the law. But it is not the role of the courts to do so, sua sponte.
E.g., Seastrunk v. Burns, 772 F.2d 143, 151 (5th Cir. 1985)
("[E]ven where a legislative choice of policy is perceived to have
been unwise or simply not the optimum choice . . . federal courts
must defer to that legislative judgment.").

IV. RECOGNIZING "SURVIVOR PRIVACY" UNDER
    FOIA WOULD CREATE PRECEDENT FOR FUR-
    THER EXPANSION OF STATUTORY EXEMPTIONS
    THAT WOULD FRUSTRATE THE FUNDAMENTAL
    PURPOSE OF THE STATUTE.
  The finding of a "survivor privacy" interest under FOIA would
do more than slightly adjust the calculus of disclosure. It would
completely reverse the underlying presumptions of the Act in
situations where first-person privacy interests have been waived,
diminished by public-official status, or extinguished by death.
  FOIA is founded upon a presumption of disclosure of govern-
ment records. Rose, 425 U.S. at 360-36; Vaughn v. Rosen,
484 F.2d 820, 823 (D.C. Cir. 1973). If no valid personal pri-
vacy interest exists (in the absence of other applicable exemp-
  10
     Some states, however, have declined to exempt autopsy records and/or
photographs from open-records laws. See, e.g., A.B. 604, 2001-2002 Assem-
bly (Wis. 2002); H.B. 77, 2002 Leg., Reg. Sess. (Ky. 2002).
                                 20

tions), the government must disclose the records. Where a valid
privacy interest is found, however, the dynamic is reversed. The
requester must then show not only that the documents will serve
a public interest, but that they will serve the narrowly-drawn
public interest defined by this Court in Reporters Committee as
revealing "what the government is up to." 489 U.S. at 773. Such
a radical change should not be made without a showing of Con-
gressional intent to do so.

    A. "Survivor privacy" easily could evolve into a gener-
        alized "family privacy" interest.
  A "survivor privacy" right could significantly alter the disclo-
sure equation in cases involving public officials or cases in which
the subject of the records somehow has waived his privacy in-
terest. See, e.g., Nixon v. Adm'r of Gen. Servs., 433 U.S.
425 (1977); Lesar, 636 F.2d 472; Diamond, 707 F.2d 75. If
family members who survive a deceased individual who is the
subject of a government record also have a valid privacy interest
in preventing disclosure of that record, it is only logical that fam-
ily members of a still-living subject of government records would
have an interest in preventing disclosure. Thus, even in situa-
tions where an individual has waived his privacy interest, the
government could withhold documents on the basis of family
members' privacy rights, unless the requester could provide evi-
dence of a strong public interest as defined by this Court in Re-
porters Committee.
  The circuit courts whose decisions are implicated in the instant
case tailored their "survivor privacy" exemption to address only
the interests of family members in avoiding graphic or emotion-
ally disturbing images of a deceased loved one. Accuracy in
Media, 194 F.3d 120; Favish, 217 F.3d 1168. That does not
mean, however, that future courts would continue to limit appli-
cation of family privacy interests to such a situation. Indeed, the
disclosure of records, such as photos, videotape or audiotape
of a loved one engaged in illegal or immoral acts would almost
                                     21

certainly cause pain and humiliation to family members, whether
or not the subject of the record was alive.
   The dangers of such a broad application are particularly sig-
nificant in the context of the privacy interests of public officials.11
In such cases, a requester ordinarily would have to show only a
modest public interest to overcome an official's diminished pri-
vacy interest. If, however, family members of these public offi-
cials could claim privacy interests in avoiding embarrassment or
humiliation that could result from disclosure of records concern-
ing their loved ones, the requester would be forced to present
clear evidence of a Reporters Committee public interest strong
enough to overcome the family members' undiluted privacy in-
terests in order to compel disclosure. As a result, the general
presumption of disclosure under FOIA would be dramatically
curtailed.
   Moreover, as a result of such an interpretation, FOIA would
treat records concerning individuals who were married or had
living relatives differently from records concerning individuals who
were unmarried or had no living family members. Such an in-
equality in application is neither sensible nor appropriate in light
of the Act's fundamental policy of full disclosure.




  11
     Despite the Petitioner's assertions to the contrary, it is well accepted
that public officials' privacy interests are reduced by virtue of their posi-
tions. See, e.g., Lesar, 636 F.2d 472 (holding that FBI agents' privacy inter-
ests related to their work activities are diminished); New York Times v.
Sullivan, 376 U.S. 254 (1964). Judge Starr also advocated such an approach
in his dissent in Reporters Comm. for Freedom of the Press v. Dep't of
Justice, 831 F.2d 1124, 1129 (D.C. Cir. 1987) (stating that, for guidance in
fleshing out the balance between privacy interests and public interest "it
seems sensible . . . to draw upon the substantial body of defamation law
dealing with public personages").
                                   22

    B. The recognition of "survivor privacy" would greatly
         increase the government's burden under FOIA and
         could lead to unjustified withholding of records that
         should be disclosed.
  Under FOIA, the burden is on the agency to justify withhold-
ing. If this Court recognizes a "survivor privacy" interest, the
burden of determining whether the survivors of deceased indi-
viduals are themselves alive or dead would fall on the govern-
ment. Schrecker v. Dep't of Justice, 217 F. Supp.2d 29, 36
(D.C. Cir. 2002) ("An agency must make a reasonable effort to
account for the death of a person on whose behalf the FBI in-
vokes exemption 7(C).") (internal quotation marks omitted).
  It requires a considerable expenditure of resources to deter-
mine whether named parties in requested files are alive or dead.
See, e.g., Diamond, 532 F. Supp. at 77 n.2 (finding that the
FBI, as part of "extensive search," reviewed nearly 200,000
pages of documents to determine whether named parties had
waived privacy interests through death, public disclosure, or
consent); Campbell v. Dep't of Justice, 193 F. Supp.2d 29, 40
(D.D.C. 2001) (finding that the FBI employed 100-year test,12
a publication entitled Who Was Who, and "general institutional
knowledge" to determine whether individuals were dead or
alive); Schrecker, 217 F. Supp.2d at 37 (using Campbell meth-
odologies as well as Social Security Death Index when social
security number of person was known).
  Recognizing "survivor privacy" means taking an exponentially
more costly step. Once a named party is found to be dead, the
government will be forced to determine whether "those tied closely
to the deceased by blood and love" are themselves alive or dead.
Favish, 217 F.3d at 1173. This task is not as simple as merely
reading an obituary. At a minimum, for example, if an individual
  12
     The 100-year test assumes that individuals who would be more than
100 years old are dead for the purposes of balancing private versus public
interests. Campbell, 193 F. Supp.2d at 40.
                                    23

who was the subject of a record died, an agency would be faced
with first determining who that person's loved ones and close
relations were. Second, the agency would need to determine
which of these individuals were tied closely enough to the de-
ceased to have a "survivor privacy" interest. Third, the agency
would need to determine if these individuals were still alive and,
if so, whether they object or consent to release of the records.
   Rather than undertaking such exhaustive searches, agencies
would instead be likely to err on the side of caution and to with-
hold all records concerning deceased individuals, whether iden-
tifiable surviving relatives existed at all. The case of Outlaw v.
Dep't of the Army, 815 F. Supp. 505 (D.D.C. 1993), illustrates
this problem. In Outlaw, a former army sergeant convicted by
court-martial of murder and who had served his sentence sought
to clear his name through analysis of death scene photographs of
the victim.13 The Department of the Army denied the sergeant
access to the pictures on the basis of Exemptions 6 and 7(C).
The district court ordered release of the photographs, finding
that the government's "concern for the privacy of the decedent's
surviving relatives has not extended to an effort to locate them to
determine whether they object to the release." Id. at 505. And,
as the court noted, "Most important, there is no showing by
defendant that, as of now, there are any surviving relatives of the
deceased, or if there are, that they would be offended by the
disclosure." Id. Nevertheless, costly and time-consuming liti-
gation resulted from the government's decision to withhold this
information.
  If this Court recognizes a "survivor privacy" exemption to
FOIA, such scenarios would become commonplace. An agency

  13
     The Petitioner's Brief raises the specter of "child molesters, rapists,
murderers, and other violent felons" requesting images of their victims.
Pet'r Br. at 29. Congress considered providing authority to the Attorney
General to limit requests by felons, but failed to pass such an amendment.
S. Rep. No. 221, at 29 (1983).
                                24

would withhold records, even from a requester seeking to un-
cover government illegality, fraud, or waste. Although FOIA
places the burden "on the agency to sustain its action," 5 U.S.C.
§ 552(a)(4)(B), an agency could always claim that its search for
survivors continues in perpetuity, delaying disclosure indefinitely
lest it disclose information that implicates the "survivor privacy"
interest of an overlooked relative or loved one. In such a case,
the requester, for all practical purposes, would bear the burden
of disproving the existence of some hypothetical third-party
survivor's privacy interest. Such a result directly contradicts the
language and intent of the statute.
  If this Court recognizes "survivor privacy," government agen-
cies will require guidance far beyond a holding that the personal
privacy of 7(C) "extends to the memory of the deceased held by
those tied closely to the deceased by blood or love." Favish,
217 F.3d at 1173. In determining the breadth of "survivor pri-
vacy," these agencies will need to be not only historians and
genealogists, but sociologists as well. How "close" does "tied
closely" mean? How is "family" defined? Does a deadbeat dad
have a "survivor privacy" interest because he is "tied by blood"
to the deceased? Does a domestic partner have this interest
because she is "tied by love"? Would a fiancée? Would an ex-
husband? Do the biological parents of an adopted child have a
"survivor privacy" interest? The Court would spur massive liti-
gation because the government would wish to sound the depths
of "survivor privacy." If public policy dictates the creation of
such a privacy interest, it should be undertaken only through
informed, carefully-drafted and explicit legislation.

                         CONCLUSION
  "Survivor privacy" is a legal concept without support in the
plain meaning of FOIA's statutory text, in the legislative history,
or in common law or Constitutional notions of privacy. That has
not prevented some lower courts from creating an independent
privacy interest for survivors of deceased individuals mentioned
                                 25

or depicted in government records. The impetus for such rulings
is obvious. Cases where "survivor privacy" arises often are
freighted with emotion, and it is difficult to fault the judicial in-
stinct to shield innocents from emotional distress. However,
courts have long resisted allowing claims based purely on emo-
tional harm. Moreover, the potential emotional harm that might
be caused by adhering to the language and intent of a statute is
not a sufficient basis for this Court to create exemptions for fam-
ily members or loved ones where Congress did not provide them.
  This Court has the opportunity in this case to reaffirm FOIA's
fundamental presumption that government records must be avail-
able to the public, and to revitalize the central idea that any ex-
emptions must be both specifically drawn and narrowly con-
strued.
  This Court should rule that no such thing as "survivor privacy"
exists under the federal Freedom of Information Act. To that
end, this Court should affirm the decision of the Ninth Circuit
ordering disclosure of four photographs, and reverse that court's
decision to withhold six others.
  Respectfully submitted,
JANE E. KIRTLEY
Counsel of Record
SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW
School of Journalism and Mass Communication
University of Minnesota
111 Murphy Hall
206 Church Street, SE
Minneapolis, MN 55455
(612) 625-9038
COUNSEL FOR AMICUS CURIAE
August 21, 2003