Many who have independently examined the evidence, most of which consists of investigative documents released by the government or obtained through The Freedom of Information Act (FOIA), question the official conclusions, believing that Foster was likely murdered and that, however he came to grief, he did not die at Fort Marcy Park by a shot from the revolver found in his hand.
Government Counsels Fiske and Starr released the two primary official reports on the Foster death in June 1994 and October 1997. Attorney Allan Favish, skeptical of the official conclusions about Foster's death, sued the Office of Independent Counsel (OIC) in Federal District Court for release of certain photos taken by government investigators of Foster's body and its immediate surroundings, after having been denied the photos by the OIC.
After first holding that a deceased person's close family members may assert a privacy interest under FOIA with respect to a relative's death-scene images in an attempt to block the release of "records or information compiled for law enforcement purposes," provided the release "could reasonably be expected to constitute an unwarranted invasion of personal privacy," the Supreme Court rejected the strict standard advocated by the Government and Foster family members that they claimed was applicable to the mandatory balancing of a privacy interest and the public's general right of disclosure under FOIA.
That strict standard (the law of the District of Columbia Circuit until this opinion) required FOIA requesters to establish "compelling evidence" of government "illegality" in order to obtain a document after a valid privacy exemption had been asserted.
In a victory for advocates of openness in government, the Supreme Court agreed with Favish and established a far more lenient standard in cases when there is a privacy interest recognized by FOIA where:
One need only recall how easy it is to obtain a judgment in court these days that a defendant has been "negligent" in some way (let alone merely that he "might have been negligent"), to understand just how lenient the new Supreme Court standard actually is.
However, the Court then held, without supporting its factual finding by discussing, or even describing, the specific evidence raised by Favish in his brief, that "Favish has not produced any evidence that would warrant a belief by a reasonable person that the alleged government impropriety might have occurred [Emphasis Supplied]" thereby reversing the Ninth Circuit Court of Appeals decision requiring the release of four requested photographs and remanding the case to the District Court with instructions to grant the OIC's motion for summary judgment.
The author believes that, had the Court provided even a summary recitation of the evidence Favish submitted, readers of its opinion would find it impossible to conclude that the lenient standard set by the Court had not been satisfied by Favish many times over. Virtually all the evidence submitted appears in documents created by the government itself in the course of its investigation. Evidence of government negligence (and worse) is, in the author's opinion, voluminous. Readers can examine the evidence at
One indication of the degree to which the Court failed to examine the evidence provide by Favish appeared during oral argument on December 3, 2003. Justice Scalia asked an attorney arguing on behalf of the Foster family about Favish's claim that a government medical document had been altered (in an apparent attempt to shift the wound track of the bullet to one typical of an intra-oral gunshot suicide from one inconsistent with a gunshot suicide).
The family's attorney responded to Justice Scalia's question: "Judge Starr's report [on the Foster death] was quite thorough, it was over 110 pages. He answered this question about the - the - medical report."
However, Starr's report on the Foster death does not even mention the alteration, let alone "answer" Favish's contention that the document was altered. Starr's report (itself entirely public) does refer to the document, but there is no explanation (or mention) of the alteration.
When his turn came to speak, Favish told the Justices:
Faced with two attorneys making totally contradictory statements, the Court did. . . nothing. Blank out. The document itself had been provided to the Court and can be viewed at http://www.allanfavish.com/hautna.pdf. The copy of the same document held by the Starr OIC was altered a second time, in an apparent effort to "clean up" the sloppiness that made the first alteration obvious (See Favish's website).
The author believes that a fair examination of the evidence submitted to the Supreme Court by Favish would indicate that he more than met the new Supreme Court standard: "The requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred [Emphasis Supplied]." Readers are invited to decide for themselves!
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