Office of Independent Council v. Favish
Allan Favish, a California attorney representing the group Accuracy in Media, filed a Freedom of Information Act (FOIA) request seeking photographs taken during the police investigation of the death of Vincent Foster, deputy counsel to former President Bill Clinton. The photos were requested as part of an effort by Favish to investigate what he believed was a cover-up of the murder of Foster, despite findings by the Office of Independent Counsel (OIC) that the death was a suicide. Extensive lower court proceedings resulted in the release of a number of photos and the withholding of others. After a remand from the court of appeals, the district court concluded that the public interest in five of the photographs outweighed the privacy interest of the Foster family. The appeals court affirmed in an unpublished opinion for all but one of the photographs. The question before the Supreme Court is whether the OIC properly withheld those photos relating to Foster’s death because their release would produce “an unwarranted invasion of personal privacy” under exemption 7(C) of FOIA.
Doe v. Chao, reviewing decision at 306 F.3d 170 (4th Cir. 2002)
The Department of Labor (DOL) adjudicated a group of miners’ black lung compensation claims. The DOL used the miners’ Social Security numbers (SSNs) as their claim identifiers, and then disclosed the SSNs in public documents dealing with the claims. The miners filed complaints against the Secretary of Labor, contending that their rights to privacy under the Constitution and the federal Privacy Act (5 USC § 552) had been violated by this public disclosure. The district court ordered the DOL to stop the practice of publicly disclosing the SSNs and the DOL agreed to do so. The district court also held that proof of actual damages was necessary to recover damages under the Privacy Act, and that only one plaintiff, Buck Doe, had done so by proving emotional distress. On appeal, the Fourth Circuit held that in order to recover damages under the Privacy Act, a person must show actual harm from the violation. This was despite the fact, as the plaintiffs claimed, that the Act provides for statutory damages of not less than $1000 for persons who have suffered an “adverse effect” from an agency’s willful or intentional violation or the law. 5 USC 552a(g)(4). (The court also held that Buck Doe’s showing of emotional distress was too minor and thus reversed the damages award to him). The Supreme Court has agreed to review the question of whether actual damages must be proven in order to obtain a statutory damages award for violation of the Privacy Act.