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02-954 National Archives and Records Administration v. Favish

By: dmc-admin//April 5, 2004//

02-954 National Archives and Records Administration v. Favish

By: dmc-admin//April 5, 2004//

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Favish’s contention that Exemption 7(C)’s personal privacy right is confined to the right to control information about oneself is too narrow an interpretation of Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, which held that the personal privacy concept must encompass an individual’s control of information about himself, but had no occasion to consider whether those whose personal data are not in the requested materials also have a recognized privacy interest under the exemption. It did explain, however, that Exemption 7(C)’s concept of privacy is not a limited or cramped notion. The exemption is in marked contrast to Exemption 6, which requires withholding of personnel and medical files only if disclosure would constitute a clearly unwarranted invasion of personal privacy. Exemption 7(C)’s comparative breadth.it does not include clearly and uses could reasonably be expected to constitute instead of would constitute, is no drafting accident, but is the result of specific amendments to an existing statute. Because law enforcement documents often have information about persons whose link to the official inquiry may be the result of mere happenstance, there is special reason to protect intimate personal data, to which the public does not have a general right of access in the ordinary course. The modifier “personal” before “privacy” does not bolster Favish’s view that the family has no privacy interest in a decedent’s pictures. Foster’s relatives invoke that interest to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility, not for the sake of Foster’s reputation or some other interest personal to him. It is proper to conclude that Congress intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and cultural traditions. This does not mean that the family is in the same position as the individual who is the disclosure’s subject. However, this Court has little difficulty in finding in case law and traditions the right of family members to direct and control disposition of a deceased’s body and to limit attempts to exploit pictures of the deceased’s remains for public purposes. The well-established cultural tradition of acknowledging a family’s control over the body and the deceased’s death images has long been recognized at common law. In enacting FOIA and amending Exemption 7(C) to extend its terms, Congress legislated against this background and the Attorney General’s consistent interpretation of the exemption. The exemption protects a statutory privacy right that goes beyond the common law and the Constitution, see id., at 762, n. 13. It would be anomalous to hold in this case that the statute provides less protection than does the common law. The statute must also be understood in light of the consequences that would follow from Favish’s position. Since FOIA withholding cannot be predicated on the requester’s identity, violent criminals, who often make FOIA requests, would be able to obtain autopsies, photographs, and records of their deceased victims at the expense of surviving family members’ personal privacy.

37 Fed.Appx 863, reversed and remanded.

Kennedy, J.

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