UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


ACCURACY MEDIA INC

v.

NATL PARK SVC


98-5535a

D.C. Cir. 1999


*	*	*


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


* * *


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 




__________

n 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


[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


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


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.