Freedom of Information Act lawsuit to inspect the original version of the Haut Report.

	HTML version of lawsuit with links to exhibits
	Adobe Acrobat PDF version of lawsuit with exhibits (1.1 MB)

Note that the Haut Report (part of exhibit 2 to the lawsuit) is on legal size paper.

FREEDOM OF INFORMATION ACT LAWSUIT TO OBTAIN
FOSTER INVESTIGATION PHOTOGRAPHS

Case Documents for Favish v. OIC

August 23, 2004	Order (110 KB) from the District Court granting the OIC's (now the National Archives & Records Administration's) motion for summary judgment regarding the four photos that the District Court and the Ninth Circuit ruled should be made public.
May 20, 2004	Order (59 KB) from the Ninth Circuit remanding the case back to the District Court to enter judgment for the Government (the National Archives & Records Administration).
May 17, 2004	The Supreme Court's orders (57 KB) in case nos. 02-409 and 02-954 denying my petition for rehearing.
May 17, 2004	The Supreme Court's judgment in case no. 02-954 (84 KB), ordering me to pay the Government (the National Archives & Records Administration) $1,704.35 to cover its costs for printing the record.
May 7, 2004	The Supreme Court's judgment in case no. 02-599 (76 KB), ordering me to pay Sheila Foster Anthony and Lisa Foster Moody $300.00 to cover their clerk's costs.
April 23, 2004	My petition for rehearing (62 KB) received by the Supreme Court on this date. The petition is shorter than my full response of April 10 that was posted to my web site because Supreme Court rules limited the petition to 10 smaller-than-standard sized pages. The purpose for the petition was to set the record straight given that the chances of a rehearing are slim to none.
April 10, 2004	My response to the Supreme Court's opinion for the web site.
March 30, 2004	The Supreme Court's opinion.
March 24, 2004	Letter (251 KB) from Office of the Solicitor General notifying the Supreme Court that the OIC terminated operations and its documents, including the photographs at issue in this case, have been transferred to the National Archives and Records Administration. Therefore, the National Archives and Records Administration should be substituted for the OIC as the petitioner in this case.
December 4, 2003	Letter (39 KB) from the Foster Respondents' attorney, James Hamilton, correcting an error in his brief regarding the issue of whether the leaked gun-in-hand photo was in color or black and white.
December 3, 2003	Oral argument before the Supreme Court at 10:00 a.m. The official transcript is here (159 KB). Audio of the 1 hour oral argument is here. (You may have to hold down your control key to download the mpg files.) Less than an hour after the oral argument I held a 25-minute press conference on the Supreme Court steps that was broadcast in its entirety by C-SPAN on its "America and the Courts" program on Saturday, December 6, 2003 at 4:00 p.m. (PT). The program is no longer available on C-SPAN's web site, but may be available on videotape from C-SPAN. The streaming video of the press conference is available at Google Video here: http://video.google.com/videoplay?docid=-7009252526060541658. Also, you can download a 25 MB mpg file of the audio of that press conference here.
October 6, 2003	Order (24 KB) denying the request by the following amicus curiae (friend of the court) organizations to share in my oral argument time.  (I consented to the request): Reporters Committee for Freedom of the Press American Society of Newspaper Editors Radio-Television News Directors Association Society of Professional Journalists Association of Alternative Newsweeklies National Press Club Investigative Reporters and Editors, Inc. National Freedom of Information Coalition
October 2, 2003	DECEPTION BY THE UNITED STATES DEPARTMENT OF JUSTICE I recently noticed that the United States Department of Justice makes a false statement about my involvement in this case. On its website the DOJ states that I filed this case after the United States Court of Appeals for the D.C. Circuit rejected a similar FOIA request in 1999 in another case, Accuracy in Media, Inc. v. National Park Service, for which I served as one of the attorneys. The truth is that my FOIA request was not filed after the appellate decision in Accuracy in Media. In fact, my FOIA request and my FOIA lawsuit were filed before Accuracy in Media filed its FOIA request. My FOIA request was filed January 6, 1997. My complaint (904 KB) was filed March 6, 1997 (my FOIA request is an exhibit). Accuracy in Media’s FOIA request was dated June 6, 1997. Accuracy in Media’s complaint (160 KB) was not filed until September 12, 1997 (the complaint states the date of the FOIA request). In case the DOJ modifies its website, I have preserved the relevant page, as it was on October 2, 2003, here. There are additional falsehoods and misleading statements on the DOJ's website. My FOIA request was not "for the very same photographs" at issue in Accuracy in Media. My request was for the original Polaroid photographs, not copies of those Polaroids, as was the situation in Accuracy in Media. Moreover, I did not file my lawsuit "in the Central District of California, after taking up residence there . . . ." I filed it in 1997 after having lived in California for most of my life. In the November 12, 2002 entry in this table, you will find the document I filed with the Supreme Court explaining how the Solicitor General made similar false statements to the Supreme Court.
September 24, 2003	Reply brief (90 KB) on the merits for the OIC.
September 24, 2003	Reply brief (8.2 MB) on the merits for Sheila Foster Anthony and Lisa Foster Moody.
August 27, 2003	Order (31 KB) granting Lisa Foster Moody's and Sheila Foster Anthony's motion to extend their time to file a reply brief to September 24, 2003.
August 27, 2003	Order (31 KB) granting the OIC's motion to extend its time to file a reply brief to September 24, 2003.
August 25, 2003	Order (28 KB) granting the OIC's motion to share 10 of its 30 minutes of oral argument time with the attorney representing Lisa Foster Moody and Sheila Foster Anthony, and granting Teresa Earnhardt's motion for leave to file an amicus curiae (friend of the court) brief.
August 22, 2003	Amicus curiae (friend of the court) brief (89 KB) in support of my position by the Silha Center for the Study of Media Ethics and Law at the School of Journalism and Mass Communication at the University of Minnesota.
August 22, 2003	Amicus curiae (friend of the court) brief (374 KB) in support of my position by the following organizations: Reporters Committee for Freedom of the Press American Society of Newspaper Editors Radio-Television News Directors Association Society of Professional Journalists Association of Alternative Newsweeklies National Press Club Investigative Reporters and Editors, Inc. National Freedom of Information Coalition
August 21, 2003	Motion by press organizations to have 5 of my 30 minutes of oral argument time (56 KB) by the following organizations (I consented): Reporters Committee for Freedom of the Press American Society of Newspaper Editors Radio-Television News Directors Association Society of Professional Journalists Association of Alternative Newsweeklies National Press Club Investigative Reporters and Editors, Inc. National Freedom of Information Coalition
August 18, 2003	Amicus curiae (friend of the court) brief (75 KB) in support of my position by the Association of American Physicians & Surgeons and Eagle Forum Education & Legal Defense Fund.
August 8, 2003	Request (53 KB) for consent to the filing of an amicus curiae (friend of the court) brief in support of my position by the Association of American Physicians & Surgeons and Eagle Forum Education & Legal Defense Fund. (I consented.)
August 6, 2003	My brief (166 KB) on the merits to the Supreme Court. The citations in the brief to the Excerpts of Record or "ER" for short, are to pages from the compilation of documents that were presented to the lower courts. See the table entry for May 30, 2001 for copies of those documents, which comprise the evidence in this case.
August 6, 2003	Request (125 KB) for consent to the filing of an amicus curiae (friend of the court) brief in support of my position by Professor Jane E. Kirtley of the Silha Center for the Study of Media Ethics and Law at the School of Journalism and Mass Communication at the University of Minnesota. (I consented.)
July 18, 2003	Motion  (6.3 MB) for leave to file amicus curiae (friend of the court) brief and brief of amicus curiae Teresa Earnhardt.
July 18, 2003	The brief (11.1 MB) on the merits for Sheila Foster Anthony and Lisa Foster Moody.
July 18, 2003	The joint appendix (577 KB) for the merits hearing.
July 18, 2003	The OIC's brief (164 KB) on the merits.
June 4, 2003	My response (59 KB) to Hogan & Hartson's second letter requesting to file a friend of the court brief on behalf of the widow of Dale Earnhardt.
June 4, 2003	The second letter (90 KB) from the law firm of Hogan & Hartson, representing the widow of Dale Earnhardt. The letter requests my consent to the filing of a friend of the court brief in my case.
May 29, 2003	My response (84 KB) to Hogan & Hartson's request to file a friend of the court brief on behalf of the widow of Dale Earnhardt.
May 28, 2003	Letter (136 KB) from the law firm of Hogan & Hartson, representing the widow of Dale Earnhardt. The letter requests my consent to the filing of a friend of the court brief in my case.
May 5, 2003	Order by the United States Supreme Court granting the petition for a writ of certiorari in case no. 02-954. This is the government's petition. However, by granting this petition, the Court will review all of the issues necessary to decide whether the OIC has the right to withhold any of the ten Polaroids that are the subject of the dispute. This is because Supreme Court Rule 14 (1) (a) states, in part: "The statement of any question presented is deemed to comprise every subsidiary question fairly included therein. Only the questions set out in the petition, or fairly included therein, will be considered by the Court." The government's statement of the question presented in its petition is: "Whether the Office of Independent Counsel properly withheld, under Exemption 7(C), photographs relating to the death of former Deputy White House Counsel Vincent Foster." This statement is broad enough to cover all of the issues that I raised in my petition as well as the issues raised in the other two petitions. The status of all three petitions are listed here.
April 4, 2003	Reply brief of petitioner Office of Independent Counsel in 02-954 (60 KB). Here is a direct link to the Supreme Court's docket for the case.
March 31, 2003	Reply brief of petitioners Sheila Foster Anthony and Lisa Foster Moody in 02-599 (2.6 MB). Here is a direct link to the Supreme Court's docket for the case.
March 21, 2003	Favish's opposition to the petitions for certiorari by the OIC (case 02-954) and the two Foster family members (case 02-599) (368 KB). Responses to certiorari petitions are optional, but the Court specifically requested that I file responses to the other two petitions.
January 21, 2003	Brief of respondents Sheila Foster Anthony and Lisa Foster Moody in opposition to the Solicitor General's petition for certiorari in case 02-954 (1.8 MB). Here is a direct link to the Supreme Court's docket for the case.
January 21, 2003	Reply brief of petitioners Sheila F. Anthony and Lisa F. Moody regarding their petition for certiorari in case 02-599 (2.3 MB). Here is a direct link to the Supreme Court's docket for the case.
December 20, 2002	The petition for certiorari by the Solicitor General and the DOJ for the OIC (242 KB). The Supreme Court docket number is 02-954. Current case information is available from the Supreme Court Clerk's Automated Response System at (202) 479-3034. Case status also is available at the Supreme Court's Website. Here is a direct link to the Supreme Court's docket for the case.
December 20, 2002	The brief for the federal respondent by the Solicitor General and the DOJ for the OIC in response to the petition for certiorari by Sheila Foster Anthony and Lisa Foster Moody (89 KB). The Supreme Court docket number is 02-599. Current case information is available from the Supreme Court Clerk's Automated Response System at (202) 479-3034. Case status also is available at the Supreme Court's Website. Here is a direct link to the Supreme Court's docket for the case.
December 16, 2002	Brief of the OIC in opposition to my petition for certiorari (400 KB).
November 12, 2002	My response to the Solicitor General's application for an extension of time to file a petition for certiorari (100 KB). In the response, I establish that Solicitor General Olsen made false and misleading statements to the United States Supreme Court.
November 4, 2002	The application to the United States Supreme Court for an extension of time to file a petition for certiorari by Theodore B. Olson, Solicitor General of the United States (259 KB). In the application, Solicitor General Olsen made false and misleading statements to the United States Supreme Court.
October 16, 2002	The petition for certiorari by Sheila Foster Anthony and Lisa Foster Moody (1.1 MB). I did not include the appendix because it consists of the prior decisions in the case and the declarations of Ms. Anthony and Ms. Moody, which are already on the web site. A few days later this petition was replaced with a new petition that corrected a few minor errors in the appendix portion of the original petition. The original petition is on this web site. The Supreme Court docket number is 02-599. Current case information is available from the Supreme Court Clerk's Automated Response System at (202) 479-3034. Case status also is available at the Supreme Court's Website. Here is a direct link to the Supreme Court's docket for the case.
October 15, 2002	The brief of Sheila Foster Anthony and Lisa Foster Moody in opposition (284 KB) to my petition for certiorari.
September 11, 2002	My petition for certiorari (175 KB) to the United States Supreme Court was filed on September 11, 2002 and placed on the docket September 13, 2002. The main portion of this document is in the first 17 pages. The rest is an appendix consisting of prior court decisions in the case. The margins of the document are unusually wide because the hard copy is printed on paper smaller than letter size paper, pursuant to Supreme Court rules. It is unknown when the Court will decide whether to hear the case. The Supreme Court docket number is 02-409. Current case information is available from the Supreme Court Clerk's Automated Response System at (202) 479-3034. Case status also is available at the Supreme Court's Website. Here is a direct link to the Supreme Court's docket for the case.
September 5, 2002	Ninth Circuit's order (17 KB) granting the motion to stay the mandate.
August 21, 2002	The motion for stay of the mandate (819 KB) to the Ninth Circuit by one of Foster's two sisters and his former wife.
August 20, 2002	The OIC's motion for stay of the mandate (371 KB). In a few days the Ninth Circuit is scheduled to issue a "mandate," which means that it would send the case back to the district court. Once that happened, the government would soon have to release the four photographs. If the "mandate" is stayed, then the case stays in the Ninth Circuit and the photos remain unreleased while the Solicitor General decides whether to ask the United States Supreme Court to hear the case.
August 16, 2002	The Ninth Circuit's order (41 KB) denying a rehearing by the three-judge panel who decided the case and denying a rehearing by the entire Ninth Circuit. The rehearing request was made by the OIC and one of Foster's two sisters and his former wife.
July 22, 2002	The petition for rehearing (2.4 MB) to the Ninth Circuit by one of Foster's two sisters and his widow.
July 22, 2002	The petition for rehearing (2.4 MB) to the Ninth Circuit by the OIC.
June 6, 2002	An order (101 KB) from the Ninth Circuit deciding the appeal. Unlike the decision in Appeal I, this order will not be published in the law libraries. Of the ten Polaroids of Foster's body at the park that are at issue, the court held that 4 of the 10 should be released to the public. The court did not inspect the original Polaroids, but did inspect copies. The 4 ordered released are described in an FBI evidence receipt (120 KB) as: "VF's body - focusing on rt. side shoulder/arm" "Right hand showing gun & thumb in guard" "VF's body focusing on right side & arm" "VF's body - focus on Top of head thru heavy foliage" The district court had ordered (145 KB) a fifth Polaroid released, entitled "VF's body looking down from top of berm," but the Ninth Circuit ordered that Polaroid to be withheld. The 5 Polaroids ordered withheld by the district court, and now the Ninth Circuit, are described as:  "VF's body - focusing on face" "VF's body taken from below feet" "VF's body - focus on head & upper torso" "VF's face - looking directly down into face" "VF's face - Taken from right side focusing on face & blood on shoulder" (this Polaroid is the alleged "neck wound" Polaroid written about my Christopher Ruddy and Ambrose Evans-Pritchard)
June 4, 2002	An order (62 KB) from the Ninth Circuit stating that the judges are dispensing with oral argument because they do not believe it is necessary. They do not say whether they will examine the original photos. The order states that the case was submitted on the briefs and record on May 20, 2002.
February 22, 2002	A letter and declaration (313 KB) from the DOJ and OIC stating that they are enclosing, under seal, color copies of the 10 photos for the court's ex parte in camera review in response to the Ninth Circuit's instructions and that they will bring the original photos to the oral argument for the court's inspection pursuant to the court's instructions.
November 9, 2001	The OIC's reply brief (2 MB) in support of its appeal to block release of the 10 photos.
October 24, 2001	The reply/answering brief (548 KB) by one of Foster's two sisters and his widow in support of their appeal to block release of the 10 photos.
October 12, 2001	The Ninth Citcuit grants my motion to have Appeal II heard by the same three judges who heard Appeal I: Judges Pregerson, Noonan and O'Scannlain.
October 9, 2001	My reply/answering brief (158 KB) in my appeal to obtain public release of the five photos withheld by the district court and protect the district court's decision to release the other five photos. This brief includes an addendum of newly acquired documents relating to the x-ray machine.
September 12, 2001	The OIC's opening brief (4.9 MB) in support of its appeal to block release of the 10 photos.
September 11, 2001	The opening brief (2.5 MB) by one of Foster's two sisters and his former wife in support of their appeal to block release of the 10 photos.
May 30, 2001	My opening brief (235 KB) in my appeal to obtain public release of the five photos withheld by the district court. In addition, I filed a 750-page three volume document called the Excerpts of Record. This consists of copies of the relevant documents that were filed in the district court that should be read by the Court of Appeal. When I cite to these documents in my briefs the pages of the Excerpts of Record are referred to as "ER". I have created 11 Adobe Acrobat PDF files that have all of the most relevant pages from the Excerpts of Record that are cited in the briefs. Note that two of the "ER" files should be printed on legal size paper. Also note that additional evidence was submitted to the Court of Appeal that was attached as an addendum to my brief to the Ninth Circuit on October 9, 2001. er_1.pdf (295 KB) Pages are letter size (8.5 x 11 inches) Contains Excerpts of Record Title Page, Index, and pages 42-45 er_2.pdf (172 KB) Pages are legal size (8.5 x 14 inches) Contains Excerpts of Record pages 46-47 er_3.pdf (2.8 MB) Pages are letter size (8.5 x 11 inches) Contains Excerpts of Record pages 48-111 er_4.pdf (3.2 MB) Pages are letter size (8.5 x 11 inches) Contains Excerpts of Record pages 112-177 er_5.pdf (3.7 MB) Pages are letter size (8.5 x 11 inches) and in color Contains Excerpts of Record pages 178-179 er_6.pdf (2.3 MB) Pages are letter size (8.5 x 11 inches) Contains Excerpts of Record pages 180-228 er_7.pdf (3.1 MB) Pages are letter size (8.5 x 11 inches) Contains Excerpts of Record pages 237-44, 277, 298-315, 332, 344-77 er_8.pdf (3.3 MB) Pages are letter size (8.5 x 11 inches) Contains Excerpts of Record pages 408-73 er_9.pdf (1.8 MB) Pages are letter size (8.5 x 11 inches) Contains Excerpts of Record pages 496, 555-57, 600-22, 632-33 er_10.pdf (159 KB) Pages are legal size (8.5 x 14 inches) Contains Excerpts of Record pages 634-35 er_11.pdf (1.8 MB) Pages are letter size (8.5 x 11 inches) Contains Excerpts of Record pages 636-671, 713
March 5, 2001	Federal district court judge William Keller denied my motion to compel testimony from former OIC prosecutor Miquel Rodriguez and his former assistant, Lucia Rambusch. However, the judge also denied the motions by the OIC and Vincent Foster's former wife and one of his sisters to reverse his January 11 decision that 5 of the 10 disputed Polaroids must be made public. The bottom line: I will be appealing the decision to withhold 5 of the 10 photos and the prohibition on obtaining the testimony of Rodriguez and Rambusch. I expect the OIC and Foster's two relatives will appeal the decision to release the other 5 photos. It could be 1-2 years before the Ninth Circuit decides the case.
February 26, 2001	The reply (678 KB) by one of Foster's two sisters and his former wife in support of their motion to alter the judgment.
February 26, 2001	The OIC's reply (1.7 MB) in support of its motion to alter the judgment.
February 24, 2001	My reply (23 KB) to the OIC's opposition to my motion to compel testimony from former OIC prosecutor Miquel Rodriguez and his former OIC assistant Lucia Rambusch.
February 20, 2001	The OIC's opposition (2.4 MB) to my motion to compel testimony from former OIC prosecutor Miquel Rodriguez and his former OIC assistant Lucia Rambusch regarding allegations of illegal conduct by OIC and FBI personnel as to one or more of the photos at issue in this case.
February 16, 2001	My opposition (117KB) to the motions by the OIC and two members of the Foster family (exhibits omitted from online version).
January 29, 2001	The motion (1.2MB) by one of Foster's two sisters and his former wife to alter the judgment.
January 29, 2001	The OIC's motion (3 MB) to alter the judgment.
January 19, 2001	The motion (35 KB) to insure that any photos produced by the OIC are the pristine originals. The motion asks the court to compel the testimony of former OIC prosecutor Miquel Rodriguez and his former OIC assistant Lucia Rambusch regarding allegations of illegal conduct by OIC and FBI personnel as to one or more of the photos at issue in this case. The exhibits to the draft are omitted from this online version, but the pertinent portions are quoted in the motion.
January 11, 2001	In a two-page order (145 KB) the federal district court orders the OIC to release five original Polaroids of Vincent Foster's body as it laid in Fort Marcy Park.
October 13, 2000	The transcript of the hearing at which the OIC's attorney said that the OIC did not want to show the district court judge the original photos, but instead wanted to show him copies. The judge rejected that position and ordered the originals to be produced to him. The OIC's attorney also said that the OIC did not want to release the original of the "gun-in-hand" photo. This was despite the fact that the OIC's only basis for arguing that the photo be withheld was that it was "graphic, explicit, and extremely upsetting," and the Ninth Circuit ruled that the OIC's description was "not true". At this hearing I also told the judge I intended to file a motion to compel testimony as described above in my January 19, 2001 motion.
July 12, 2000	The decision by the United States Court of Appeals for the Ninth Circuit ordering the OIC to produce nine Polaroid photos of Vincent Foster's body in Fort Marcy Park to the district court judge for his inspection. The decision also ordered the "gun in hand" photo to be released to the public. The decision also said that "Favish, in fact, tenders evidence and argument which, if believed, would justify his doubts" about the official conclusion.
November 16, 1999	My Opposition Memorandum of Authorities Regarding Collateral Estoppel and my Declaration (82 KB). This was required because during the oral argument before the Ninth Circuit on November 1, 1999, one of the judges raised an issue that had never been raised before in the case. He wondered whether my work as an attorney for a law firm in representing another party in another case that was similar to this case in some respects should preclude my right to pursue this case as a party. This involves a legal doctrine known as collateral estoppel. In the Ninth Circuit's decision this issue was resolved in my favor.
November 1, 1999	Streaming Real Audio of oral argument (46 minutes).
October 27, 1999	Article about upcoming oral argument.
September 28, 1999	The Ninth Circuit schedules oral argument for Monday, November 1, 1999, at 1:30 p.m., in Courtroom 2, at the Richard H. Chambers U.S. Court of Appeals Building, 125 S. Grand Ave., Pasadena, CA 91105; tel. (626) 583-7000.
June 21, 1999	Appellant filed a copy of the "no exit wound" FBI memo described above with the Ninth Circuit and asked the court to take judicial notice of it. The memo was not publicly available when the district court made its decision. This will allow the Ninth Circuit and the parties to cite to the FBI memo.
August 31, 1998	Appellant's Reply Brief (92 KB).
June 14, 1998	Newly Released Color Photographs
April 13, 1998	Appellant's Opening Brief (186 KB).
March 9, 1998	Summary Judgment Decision (651 KB) Judge William Keller of the Federal District Court for the Central District of California, in Los Angeles, ruled: 1. The OIC does not have to release the 10 photos that show parts of Foster's body as it lay in Fort Marcy Park. (Those 10 photos are among those listed on an FBI evidence receipt (120 KB). 2. The OIC does have to release the photo of Foster's eyeglasses on the ground at Fort Marcy Park. 3. The OIC does have to produce color copies for all photos it releases to me, and has released to me, if the originals were in color.
March 9, 1998	Transcript of Summary Judgment Hearing
March 5, 1998	The OIC's Declaration of Sheila Foster Anthony (a sister of Vincent Foster) (175 KB).
March 2, 1998	Plaintiff's Reply to the OIC's Opposition to Plaintiff's Motion for Summary Adjudication of Issues (145 KB).
February 23, 1998	The OIC's Opposition to Plaintiff's Motion for Summary Adjudication of Issues (1.3 MB) (without exhibits).
February 11, 1998	Plaintiff's Motion for Summary Adjudication of Issues  (190 KB) (without exhibits).  Plaintiff's Motion for Summary Adjudication of Issues (8.75 MB) (WITH exhibits).
January 5, 1998	Declaration of the Associate Independent Counsel Darrell M. Joseph
July 9, 1997	Transcript of Mandatory Status Conference
March 6, 1997	Complaint (904 KB)