---------- Forwarded message ----------
Date: Wed, 12 Jul 2000 18:37:35 -0400 (EDT)
From: [EMAIL PROTECTED]
Here are some extracts I pulled from the opinion in 9th Circuit
Court of Appeals Case (Favish V OIC) published today, 7/12.
As I understand it, the District Court judge is merely required
to examine the photos in question to determine whether they
should be released. Prior to this point the Disrict Court judge
had ruled (summary judgment -- no trial on the merits was held)
that Allan had no cash and had dismissed same. Allan appealed
that decision and the opinon released today by the 9th Circuit
court of Appeals is the result.
---------------------------------------------------------------
Office of the Circuit Executive
U.S. Court of Appeals for the Ninth Circuit
---------------------------------------------------------------
Case Name:
FAVISH V OIC Case Number:Date Filed:98-5559407/12/00
---------------------------------------------------------------
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLAN J. FAVISH,
No. 98-55594
Plaintiff-Appellant,
D.C. No.
v.
CV-97-01479-WDK
OFFICE OF INDEPENDENT COUNSEL,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
William D. Keller, District Judge, Presiding
Argued and Submitted
November 1, 1999--Pasadena, California
Filed July 12, 2000
Before: Harry Pregerson, John T. Noonan, and
Diarmuid F. O'Scannlain, Circuit Judges.
Opinion by Judge Noonan;
Partial Concurrence and Partial Dissent by Judge Pregerson
_________________________________________________________________
COUNSEL
Allan J. Favish, pro se, Tarzana, California, for the plaintiff-
appellant.
7939
Leon W. Weidman, Jan L. Luymes, Assistant United States
Attorneys, Santa Ana, California., for the defendant-appellee.
_________________________________________________________________
OPINION
NOONAN, Circuit Judge:
Allan J. Favish appeals the judgment of the district court
granting summary judgment to the Office of Independent
Counsel (the OIC) in his action under the Freedom of Infor-
mation Act, 5 U.S.C. S 552 (1999) (the FOIA). Favish seeks
10 photos relating to the death of Vincent W. Foster, Jr., the
Deputy Counsel to the President. Holding the OIC has not
established that the photos fall within the privacy exemption
of the FOIA, we reverse the judgment of the district court and
remand for further proceedings.
===================================
Extracts from Majority Opinion culled by Sprunt:
XXXXXXXXXXXXXXXX
==============
The Statutory Exemption Invoked. First, the OIC denied
Favish's request on one ground that made no sense, viz, that
release of the photos would interfere with law enforcement
proceedings. It took over a year for the OIC to abandon this
position. The bulk of the photos requested were already in the
public domain. How higher quality photos released to Favish
would interfere with law enforcement was not and has not
been explained by an agency under a statutory duty to comply
promptly with a freedom of information request.
Second, after the OIC did release new copies of the 118
photos it had withheld without adequate explanation, it did
not release them in color, nor did it release a new copy of Fos-
ter's eyeglasses. The OIC has now released copies in color
and a new copy of the eyeglasses photo, thanks to the order
of the district court. Not appealing that order, the OIC tacitly
admits that it had no legal right to withhold this material.
7943
Third, in its answer to Favish's complaint, the OIC specifi-
cally referred to his request for a new copy of the photo pub-
lished in Time, March 18, 1996 and on ABC-TV and stated
that the OIC was "without sufficient information or knowl-
edge to form a belief as to the truth of the allegations" that the
photo had been published in the forms alleged. This denial
was on its face implausible. How could the OIC not discover,
with a modicum of diligence, whether a photo published in
national news media had not come from its files? But the OIC
did not abandon this posture in the ensuing litigation. In its
brief on this appeal, the OIC declared that it did not concede
that the photo had come from its files and added that Favish's
argument "that the photograph already has been widely dis-
seminated" should, therefore, be rejected. Only on appeal in
this court, at oral argument, did counsel for the OIC state that
it was true that the OIC possessed the photo referred to in
Favish's request.
================
Application of the Statute. Favish's request focuses on how
the OIC conducted its investigation of Foster's death. So
doing, his request is in complete conformity with the statutory
purpose that the public know what its government is up to.
Nothing in the statutory command conditions agency compli-
ance on the requesting party showing that he has knowledge
of misfeasance by the agency, although at times evidence of
such knowledge has been referred to as enhancing the
urgency of the request. See Hunt v. FBI, 972 F.2d 286, 289
(9th Cir. 1992). Favish, in fact, tenders evidence and argu-
ment which, if believed, would justify his doubts; but it is not
the function of the court in a FOIA proceeding to weigh such
evidence or adjudicate such arguments. See Washington Post
Co. v. U.S. Dep't of Health and Human Services, 865 F.2d
320, 325 (D.C. Cir. 1989).
7945
Nothing in the statutory command shields an agency from
disclosing its records because other agencies have engaged in
similar investigations. To anyone familiar with famous cases
in the Old World or in the New it is a feature of famous cases
that they generate controversy, suspicion, and the desire to
second guess the authorities. The continuing discussion of the
assassination of President Kennedy may suffice to make the
point. The statute establishes a right to look, a right to specu-
late and argue again, a right of public scrutiny that can be
denied only if the relevant statutory exemption applies.
=================================
[4] We hold as a matter of law that the personal privacy in
the statutory exemption extends to the memory of the
deceased held by those tied closely to the deceased by blood
or love and therefore that the expectable invasion of their pri-
vacy caused by the release of records made for law enforce-
ment must be balanced against the public purpose to be served
by disclosure.
Balancing is one of the most pervasive and most elusive
metaphors in the law. We do not literally balance, because
what is being brought into a comparison has no weight. To
many, balancing sounds like assigning hypothetical weights.
To others, it may suggest the kind of equilibrium the biologi-
cal systems of the body achieve. Taken in either sense, bal-
ancing seems to require the exercise of discernment in a
particular case. Our standard of review of such a question has
7947
been carefully set out in Schiffer v. The FBI , 78 F.3d 1405
(9th Cir. 1996). Where facts are not in dispute, we review de
novo as a matter of law the district court's determination of
"whether a document fits within one of FOIA's prescribed
exemptions." See id. at 1409.
[5] We do not, however, have before us all the relevant
facts. The OIC represents that the 10 withheld photographs
are "graphic, explicit, and extremely upsetting. " That descrip-
tion is not true of the photo already published in Time and on
television, showing a hand holding a gun. It may be true of
the remaining 9 photos. But no court has ever seen them. The
district court has discretion to decide an FOIA case on the
basis of affidavits, and affidavits are in some cases sufficient.
Quinon v. F.B.I., 86 F.3d 1222,1229 (D.C. Cir. 1996). But
when the agency affidavits are insufficiently detailed, in cam-
era review is appropriate. Id. at 1228. Balancing without a
knowledge of what the photos show would be an exercise in
the air. Accordingly, we return the case to the district court to
examine the photos in camera and to balance the effect of
their release on the privacy of the Foster family against the
public benefit to be obtained by their release.
Conclusion. The judgment of the district court is
REVERSED and the case REMANDED for proceedings con-
sistent with this opinion.
============================
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
The single judge who dissented (in part) stated in his opinion
that he thought Allan should be able to obtain a high quality
color copy of the "Hand with the gun" photo published in Time and
by ABC-TV News. . . . .
One of the curious aspects of that photo's presumed "leaking" and
the publication of the photo by ABC-TV News, TIME, Reuters, and
others. Given the family is so upset re the possible publication
of the photos Allan is requesting, why was there no effort on the
family's part (that I know of anyway) to have the person who
leaked the gun in hand photo to the major media? For that matter
why did the government not pursue and penalize the person (what
he did was clearly a crime)?
The answer, I believe, is that the photo was leaked at the time
it was leaked in order to refute the claim that the "crime scene"
photographs did not turn out. Thus, I believe that those within
the investigation made the decision to illegally leak the photo
because it suited their purposes.
The government (or at least one of its agents with access to the
photo in question) obviously did not care at that time about
legalities or about the feelings of the Foster family, though the
government in this case includes an affidavit from Sheila Foster
Anthony giving the reasons why Allan should not be able to obtain
the photos in question.
Where was Sheila in 1994 -- why was there no civil prosecution of
Time and ABC News for (inter alia) receiving stolen government
property, violating the rights of the Foster Family, etc.?
Maybe the family DID undertake efforts along these lines -- all I
know is that I am not aware of any such efforts. If anyone knows
otherwise, I'd be glad to hear from them.
Warm regards,
Hugh S.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF: <[EMAIL PROTECTED]>
*Mike Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~ <[EMAIL PROTECTED]>
The Best Way To Destroy Enemies Is To Change Them To Friends
Shalom, A Salaam Aleikum, and to all, A Good Day.
=================================================================
<A HREF="http://www.ctrl.org/">www.ctrl.org</A>
DECLARATION & DISCLAIMER
==========
CTRL is a discussion & informational exchange list. Proselytizing propagandic
screeds are unwelcomed. Substance�not soap-boxing�please! These are
sordid matters and 'conspiracy theory'�with its many half-truths, mis-
directions and outright frauds�is used politically by different groups with
major and minor effects spread throughout the spectrum of time and thought.
That being said, CTRLgives no endorsement to the validity of posts, and
always suggests to readers; be wary of what you read. CTRL gives no
credence to Holocaust denial and nazi's need not apply.
Let us please be civil and as always, Caveat Lector.
========================================================================
Archives Available at:
http://peach.ease.lsoft.com/archives/ctrl.html
<A HREF="http://peach.ease.lsoft.com/archives/ctrl.html">Archives of
[EMAIL PROTECTED]</A>
http:[EMAIL PROTECTED]/
<A HREF="http:[EMAIL PROTECTED]/">ctrl</A>
========================================================================
To subscribe to Conspiracy Theory Research List[CTRL] send email:
SUBSCRIBE CTRL [to:] [EMAIL PROTECTED]
To UNsubscribe to Conspiracy Theory Research List[CTRL] send email:
SIGNOFF CTRL [to:] [EMAIL PROTECTED]
Om
