National Archives and Records Administration v. Favish (02-954), United States v. Flores-Montano (02-1794) and Bedroc Limited v. United States (02-1593)

March 31, 2004 Supreme Court Update
Greetings Court fans!

The Court issued two unanimous opinions yesterday and one opinion today.
I'll begin with National Archives and Records Administration v. Favish (02-954), a FOIA case with an interesting factual backdrop. Remember Vince Foster? He was deputy counsel to the President when he was found dead in a park outside Washington, D.C. The Park Police -- followed by 5 separate investigations -- concluded that Foster committed suicide, but there are some out there who continue to believe he was murdered. To support the murder theory, Favish submitted a FOIA request to the government, seeking to obtain copies of photographs taken of Vince Foster's body in the park. The Supreme Court held unanimously (opinion by Kennedy) that the photos can be withheld from Favish under FOIA exemption 7(C), which excuses from disclosure records "compiled for law enforcement purposes" if their production "could reasonably be expected to constitute an unwarranted invasion of personal privacy." To reach this conclusion, the Court first had to consider whether Foster's family has a privacy interest in the photos. Favish argued that exemption 7(C) only protects a right to personal privacy, defined narrowly as the right to control information about oneself. The Court rejected this argument. While the concept of personal privacy in exemption 7(C) certainly includes the right to control information about oneself, it is not limited to that information. Exemption 7(C) is worded broadly, especially when compared with exemption 6, which also protects "private" information. Moreover, the fact that the exemption refers to "personal" privacy does not prevent Foster's family from invoking that exemption. They seek to avoid the publicity and sensationalist intrusion into their own privacy that would accompany the release of the photos. In this desire to direct and control disposition of the deceased and to limit attempts to exploit pictures of the deceased, the Foster family falls squarely within case law and tradition that protect the right of families to do just that. Because the Court has previously interpreted exemption 7(C) as going beyond the common law, it would be anomalous to hold here that it provides less protection than the common law. Having concluded that exemption 7(C) extends to the Foster family, Kennedy turned his attention to deciding whether release of the photos could constitute an "unwarranted" intrusion into their privacy. In other words, is there a public interest in disclosure that outweighs the Foster family's interest in privacy? In this case, the lower court had answered "yes," based solely on Favish's assertion of government misfeasance and impropriety in the investigation. But if mere assertions of government misfeasance were enough, then the protection of personal privacy in exemption 7(C) would be meaningless. Going forward, if the public interest asserted is an attempt to show that government officials acted improperly, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged impropriety might have occurred. Favish cannot meet that standard here, so the photos are protected from disclosure.
Next, in United States v. Flores-Montano (02-1794), the Court unanimously upheld a border search of a gas tank that yielded 81 pounds (!) of marijuana. The Ninth Circuit held that the search violated the Fourth Amendment, but (you guessed it!) the Court (per Rehnquist) reversed. Basically, at the border, anything goes. The government has a special interest in preventing the entry of unwanted persons (read: terrorists) and effects so searches at the border are reasonable "simply by virtue of the fact that they occur at the border." Dispensing with Flores-Montano's counter-arguments, the Chief held (1) that Flores-Montano does not have a reasonable privacy interest in his fuel tank at the border, and (2) that the disassembly and reassembly of the gas tank was not a deprivation of property. (This was a Chief opinion, so this brief summary mirrors the brevity of the opinion.) Breyer filed a three sentence concurrence to note that the customs service keeps track of border searches and this should minimize any concern that gas tank searches might be undertaken in an abusive manner.
Finally, in another Chief opinion -- although this one far from unanimous -- the Court held in Bedroc Limited v. United States (02-1593) that sand and gravel are not valuable minerals reserved to the United States under the Pittman Act. For those of you still reading after that introduction, the Pittman Act (1919) was designed to encourage settlement of Nevada. Under that act, settlers could obtain land patents subject to the reservation of all coal and "other valuable minerals" to the United States. The question here is whether sand and gravel qualify as valuable minerals reserved to the US. Six Justices said no, although there was no majority opinion. The plurality (Rehnquist for himself, O'Connor, Scalia and Kennedy) noted that in a previous case, Watt v. Western Nuclear, the Court had held that a reservation of "minerals" in a different statute included gravel. The Pittman Act is different, however, because it only applies to "valuable" minerals. In 1919, sand and gravel were abundant in Nevada and thus commercially worthless. Hence they were not "valuable" minerals reserved to the US. Justice Thomas (joined by Scalia) concludes that sand and gravel are not valuable minerals, but he would not distinguish the Watt case. He doesn't think the "valuable" modifier is significant and so would interpret the Pittman Act and the Act at issue in Watt consistently to conclude that sand and gravel are not minerals. Stevens (joined by Souter and Ginsburg) dissented. Based in large part on the legislative history of the Pittman Act, he would hold that the Pittman Act should be interpreted consistently with the Watt act as reserving sand and gravel to the United States.
That's all for this week. Thanks for reading!
Sandy
From the Appellate Practice Group at Wiggin and Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at www.wiggin.com.