@Info.Policy: Is there privacy after death?

Robert Gellman

In March, the Supreme Court decided a Freedom of Information Act case involving photos of Vince Foster, a Clinton White House aide who committed suicide. The principal issue was whether relatives of deceased individuals have a protectable privacy interest.

Foster is dead, so his privacy interest was not at stake. Generally under the FOIA, dead people have no protectable privacy interest. But the court did not totally exclude the possibility that a dead individual might have a privacy interest.

Privacy for the dead has a recent precedent. The Health Insurance Portability and Accountability Act provides that the right of privacy in health information lasts beyond death until the end of the universe. That's more than a bit silly.

The court held that the FOIA recognizes surviving family members' right to personal privacy with respect to images of a close relative's death scene. This isn't entirely new ground for the FOIA.

A living individual can disclose personal information that would embarrass family members, and the family cannot assert a right of privacy to stop it. Somehow, however, at the instant of death, the family acquires a right of privacy that didn't exist before. I don't buy it.

What will the courts do when surviving relatives start suing each other over disclosures about the recently departed? It won't be pretty.

Nevertheless, the result is understandable. The justices may have looked at this case and considered their own circumstances. Change a few facts, and photos of dead justices could be at issue.

Admirably, the court tried to narrow the decision to a surviving family's interest in death scene photos. Even better were statements confirming important FOIA features:
  • Citizens generally should not be required to explain why they seek information.

  • Requesters need no preconceived idea of the uses the data might serve.

  • Information can be used as requesters choose.

  • Disclosure does not depend on the identity of the requester.

The restatement of these principles by the court is valuable. The ruling on privacy rights of surviving relatives may be narrow enough to be mostly irrelevant. The part of the opinion that weighed the public interest against those privacy rights might not make a lot of sense, but it is so limited as to be generally harmless. I hope.

Overall, the court didn't do much damage to the FOIA, and it reconfirmed some basic FOIA doctrine. It could have been much worse. We will have to see how agencies expand the ruling. It's already an issue with photos of coffins returning from Iraq.

The Foster ruling may not make that much sense, but I would be happier to see courts go out of their way to support privacy for the records of everyday life, not oddball photos of dead celebrities and political figures.

Robert Gellman is a Washington privacy and information policy consultant. E-mail him at rgellman@netacc.net.

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