Allan J. FAVISH, Plaintiff-Appellant, v. OFFICE OF INDEPENDENT COUNSEL, Defendant-Appellee, 217 F.3d 1168

Opinion by Judge NOONAN; Partial Concurrence and Partial Dissent by Judge PREGERSON 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 Information Act, 5 U.S.C. § 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. FACTS AND PROCEEDINGS On July 20, 1993, Foster was found dead in Fort Marcy Park.

His death was investigated by the National Park Service and the Federal Bureau of Investigation and by a committee of the House and by a committee of the Senate. See Accuracy in Media v. National Park Service, 194 F.3d 120 (D.C.Cir.1999). It was also investigated twice by the OIC. These inquiries all concluded that Foster committed suicide. Favish is a lawyer not convinced by the reasoning of these prior investigators and skeptical of the thoroughness of their investigations.

On January 6, 1997, he filed his request under the FOIA seeking from the OIC 150 photocopies of photographs compiled for law enforcement purposes. The photos were identified in the request by reference to Hearings Related to Madison Guaranty S & L and the Whitewater Corporation — Washington, D.C. Phase United States Senate, 103d Cong. (1994), with the exception of one photo of a gun in Foster’s hand, identified as having been published by Time, March 18, 1996 and on ABC-TV. Favish sought higher quality copies of these already-published materials and copies of 9 unpublished photos.

He offered to pay for the reproduction. On January 24, 1997, the OIC denied his request, stating that the photos were exempt under 5 U.S.C. § 552(b)(7)(A) (records whose “release could reasonably be expected to interfere with enforcement proceedings”) and under § 552(b)(7)(C) (relating to personal privacy). Favish appealed this decision to a higher level of the agency. On February 19, 1997, the OIC denied his appeal, reiterating the exemptions asserted but not explaining how they applied. On March 6, 1997, Favish filed this suit.

On April 28, 1997, the OIC answered making no reference to any exemption and simply denying that Favish was “entitled to the relief sought.” On January 5, 1998, the OIC filed a Vaughn index referring to the requested material; at the same time the OIC released 118 copies of the requested photos in black and white. Favish withdrew his request with respect to 21 photos. Eleven photos remained in dispute, as did Favish’s request for color versions of the photos released. Both sides moved for

summary judgment. On March 11, 1998 the district court gave

summary judgment to Favish as to his request for color photos, to be paid for by Favish, and as to a photo of Foster’s eyeglasses. As to the 10 remaining photos, the court balanced the privacy interest of members of the Foster family against the public interest served by new copies of the photos, concluded that the public interest was outweighed by the privacy interest, and gave judgment for the OIC. Favish appeals. ANALYSIS A Preliminary Question.

Sua sponte, the court asked whether Favish was collaterally estopped by having been associate counsel for Accuracy in Media, the losing plaintiff in Accuracy in Media, supra. In response, arguing for estoppel, the OIC cited decisions of this circuit where privacy leading to estoppel has been found when a party to a judgment virtually represented “a person now sought to be estopped.” Virtual representation, however, has been based on an express or implied legal relationship that makes the party accountable to the person sought to be estopped. United States v.

Geophysical Corp. of Alaska, 732 F.2d 693, 697 (9th Cir.1984); United States v. ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir.1980). We have not found a case where a client is accountable to its lawyer. The identity of interest between Favish and Accuracy in Media is “an abstract interest in enforcement” of FOIA, an interest insufficient to create privity. ITT Rayonier, Inc., 627 F.2d at 1003. Collateral estoppel does not apply. The Command and Purpose of the Statute.

The alpha and omega of this case is the statute that prescribes the conditions for the release of records of a public agency when a person makes a request of the agency for a record within its possession. The statute in relevant part reads as follows: (

a) Each agency shall make available to the public information as follows: (3)(

A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (

i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed, shall make the records promptly available to any person. 5 U.S.C. § 552(a)(3)(A). Three features of the statutory command are of particular note. The duty to make the information available to the public is mandatory (“shall make”, repeated). The agency response is to be made to any request and to any person (emphasis supplied).

The agency response is to be made promptly (no need for emphasis on this term aimed at the sluggishness all too characteristic of bureaucracies). The words of a' statute are, of course, dead weights unless animated by the purpose of the statute. The purpose of this statute is to shed light “on an agency’s performance of its statutory duties.” United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-73, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

The statute is a commitment to “the principle that a democracy cannot function unless the people are permitted to know what their government is up to.” Id. (internal quotations omitted). The statute’s “central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny.” Id. at 774. 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 Foster’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. Third, in its answer to Favish’s complaint, the OIC specifically referred to his request for a new copy of the photo published in Time, March 18, 1996 and on ABC-TV and stated that the OIC was “without sufficient information or knowledge 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 disseminated” 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.

In the proceedings before the district court, although not in its answer, the OIC invoked this exemption: (

b) This

section does not apply to matters that are (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (

C) could reasonably be expected to constitute an unwarranted invasion of personal privacy.... 5 U.S.C. § 552(b)(7)(C). Here four terms are significant: “production”, that is, the release of the records, is what must be expected to have the undesired result; “expected,” meaning what may be predicted with probability by a reasonable person, that is, the standard is objective; “unwarranted”, that is, unjustified by the purpose of the statute; and “privacy”, that is, a right held dear in our democracy. The root meaning of privacy has perhaps been best expressed in the

article that launched its legal career. The principle is “that of an inviolate personality.” Samuel D. Warren and Louis D. Brandéis, The Right To Privacy, 4 Harv. L.Rev. 193, 205 (1890). The statutory term, it is worth adding, is modified by “personal” and is phrased as “privacy”, not “privacy interest.” The statutory command coupled with the statutory exemption requires “balancing” of the personal privacy expected by a reasonable person to be invaded by the production of the records against the public purpose served by release. Reporters Committee, 489 U.S. at 776, 109 S.Ct. 1468.

Deference to the determination of the agency that the exemption applies is not due; the burden of the proof that the request may be properly denied because of an exemption rests with the agency. The court “shall determine the matter de novo.” § 552(a)(4)(B). The “burden is on the agency to sustain its action.” Id. 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 compliance 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 argument 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).

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 speculate and argue again, a right of public scrutiny that can be denied only if the relevant statutory exemption applies.

The exemption invoked now is the privacy of “the Foster family members.” The OIC relies on a declaration made under oath by Sheila Foster Anthony, Foster’s sister, that release of the photos “would set off another round of intense scrutiny by the media,” leading the family to be “the focus of conceivably unsavory and distasteful media coverage.” The family members who would be distressed by this feared coverage are identified by Anthony as Foster’s mother, his children, herself, and Foster’s widow.

Strictly speaking, it is not “the production” of the records that would cause the harms suggested by the declaration but their exploitation by the media including publication on the Internet. But the statutory reference to what may “reasonably be expected” encompasses the probable consequences of the release. A preliminary question for decision is whether these consequences would invade the personal privacy of persons protected by the exemption. The question is not free from difficulty due to the imprecision of the statutory phrase.

The statute does not identify whose personal privacy may not be unjustifiably invaded. The statute therefore leaves open the possibility that the exemption does extend to others than the person to whom the information relates, although as a matter ' of first impression “personal” might seem to refer only to that person. As it happens, the question is not one of first impression in the courts. Release of the photos of the body of the assassinated president has been held to invade the privacy of members of the Kennedy family. Katz v.

National Archives & Records Administration, 862 F.Supp. 476, 485 (D.D.C.1994), aff'd on other grounds, 68 F.3d 1438 (D.C.Cir.1995). Release of a tape of the last conversation of the astronauts on the Challenger has been blocked because it would invade the privacy of their families. See New York Times Company v. National Aeronautics and Space Administration, 920 F.2d 1002, 1009-10 (D.C.Cir.1990) and 782 F.Supp. 628 (D.D.C.1991) (on remand).

It could, no doubt, be suggested that the president or the astronauts so tragically destroyed were special cases, leading to special solicitude for the feelings of their families. That would be a constricted reading of the precedents. What the cases point to is a zone of privacy in which a spouse, a parent, a child, a brother or a sister preserves the memory of the deceased loved one. To violate that memory is to invade the personality of the survivor. The intrusion of the media would constitute invasion of an aspect of human personality essential to being human, the survivor’s memory of the beloved dead.

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 privacy caused by the release of records made for law enforcement 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 biological systems of the body achieve. Taken in either sense, balancing seems to require the exercise of discernment in a particular case. Our standard of review of such a question has 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. We do not, however, have before us all the relevant facts.

The OIC represents that the 10 withheld photographs are “graphic, explicit, and extremely upset» ting.” That description 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 a 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 camera 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 consistent with this opinion.