the x-rays fully depict the results of a high-powered rifle shot to the head. In addition, Professor Marshall declared that release of the x-rays would "cause pain and anguish to the members of President Kennedy's immediate family." Thus, the Archives argues, regardless of whether the x-ray photographs depict osseous structure or flesh and blood, they should be exempt from disclosure as disclosure would constitute a "clearly unwarranted invasion of personal privacy".
Finally, the Archives points out, copies of certain x-rays that plaintiff has obtained from the National Archives are available, according to the Chief of the Archival Programs Branch, only because they were published as exhibits by the HSCA. These exhibits do not include the originals of the autopsy related materials, but instead consist, among others, of black and white photographs of x-rays.
More importantly, according to the Archives, the release of these copies by HSCA was contrary to the wishes of the Kennedy family and the ARCA has set forth affirmative steps to recover these copies. See S. Rep. No. 102-328, 102d Cong., 2d Sess. at 22 ("It is intended that the Kennedy autopsy records contained in the HSCA records should be restored to the original collection of such records in the National Archives and treated as Kennedy autopsy records which are exempt from disclosure under the Act.").
Recognizing that different considerations apply to the optical photographs, plaintiff maintains, however, that the Kennedy family's privacy interests in these photographs have also been diminished by prior publication and dissemination. Plaintiff's declarant describes two known sets of photographs in the private possession of researchers,
which have been published in various publications and media. Denying access to these records under the FOIA will not serve to prevent anguish from disclosure because the photographs are already in the public domain, plaintiff contends, citing Department of State v. Washington Post Co., 456 U.S. 595, 603 n.5, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982) ("public nature of information may be a reason to conclude under all the circumstances of a given case, that the release of such information would not constitute a 'clearly unwarranted invasion of personal privacy'"). Moreover, plaintiff contends, the countervailing public interest in disclosure of the records is overwhelming, as his six declarants state.
Finally, the Department of Justice has concluded that the public interest in the autopsy records of Lee Harvey Oswald outweighs any privacy interest under Exemption 6; that conclusion, plaintiff argues, should apply here as well.
As with the x-rays, the Archives asserts, the Kennedy family has a strong privacy interest to be protected from suffering further grief and unnecessary harassment, as explained in the declaration of Professor Marshall. Professor Marshall describes the photographs as "graphic and explicit," and states that any types of public display of the photographs "are certain to cause extreme anguish to the members of the Kennedy family." This privacy interest, the Archives argues, outweighs the minimal public interest in disclosing records that have already been reviewed by a number of government entities and private researchers pursuant to the access provisions of the Deed of Gift.
See e.g, S. Rep. No. 102-328, 102d Cong., 2d Sess., at 21-22 ("Committee believes that there is a compelling justification for protecting the privacy of the Kennedy family from the unwarranted intrusion that would be raised by public disclosure of the autopsy records conveyed by the deed.").
In addition, the Archives argues, the photographs that have been disseminated to the public apparently have come from unauthorized sets of copies. Plaintiff contends that this dissemination shows that there would only be a marginal increase, if any, in anguish resulting from release of "authorized" copies. According to a declaration of Dr. John K. Lattimer, however, the original autopsy photographs, which include "many full-color photographs of President Kennedy's body and exploded head," are far more shocking and lurid than the unauthorized versions which "have thus far been reproduced in the various media forms." Lattimer Decl. at P 8. Dr. Lattimer further states that release of these photographs would have a more "devastating effect" on the Kennedy family than those unauthorized photographs already produced. Id. at P 9. A supplemental declaration of Professor Marshall also states that the publication of these unauthorized photos has been "profoundly upsetting" to the Kennedy family, and the release of any additional materials "will only magnify the grief and suffering and add to the invasion of this family's privacy." Marshall Decl. at P 4. This continued anguish, the Archives contends, is precisely the type of privacy interest that Exemption 6 of the FOIA protects.
Plaintiff contends, nevertheless, that the Archives has not demonstrated how the authorized versions of the photographs differ from those which have been widely circulated. Two of plaintiff's declarants, Dr. Cyril H. Wecht and Dr. Louis P. Kartsonis, have examined the original photographs and contend that disclosure of these already widely disseminated photographs will not constitute an invasion of privacy. Dr. Wecht declares that the original records "are substantially similar to those that have already been reproduced or published by either the government or private individuals." Wecht Decl. at P 2. Dr. Wecht also disagrees with Dr. Lattimer that the original photographs are "far more shocking and lurid" than those printed in books he has reviewed.
Even if the Archives' version of the records are "more shocking and lurid," plaintiff argues, the Archives has failed to rebut the relevance of prior publication in minimizing the privacy interests of the Kennedy family and has failed to discount the public interest in being able to compare the differences between the unauthorized and authorized sets. Therefore, plaintiff argues, the Archives must make a particularized showing that each original record is somehow materially different from the unauthorized copies and must also demonstrate how a "clearly unwarranted" invasion of privacy will occur by the release of each photograph.
In reviewing the evidence presented by the parties, the Court finds that the Kennedy family has a clear privacy interest in preventing the disclosure of both the x-rays and the optical photographs taken during President Kennedy's autopsy. There is also a public interest in releasing the autopsy photographs, which is acknowledged, though minimized, by the Archives. Plaintiff is correct that access under the FOIA is not determined by whether the records sought will provide definitive answers to public debate, nor whether the records have been "judiciously" released to other requesters. However, there can be no mistaking that the Kennedy family has been traumatized by the prior publication of the unauthorized records and that further release of the autopsy materials will cause additional anguish. Moreover, while the Court, and not Congress, must perform the Exemption 6 balancing test, it is also relevant that the ARCA respected the Kennedy family's privacy interest in excluding the autopsy records from the scope of the act.
Therefore, in balancing the two interests, the Court finds that allowing access to the autopsy photographs would constitute a clearly unwarranted invasion of the Kennedy family's privacy. Thus, holding in the alternative, the Court finds that the Archives was justified in withholding the autopsy records under Exemption 6 of the FOIA.
In summary, the Court finds that the autopsy photographs are not agency records under the FOIA for the reasons stated above. Therefore, the Court does not have jurisdiction in this FOIA case and plaintiff's suit must be dismissed. Holding in the alternative, the Court finds that if the photographs are agency records, the Archives was justified in withholding them under Exemption 6 of the FOIA. An appropriate order is filed herewith.
Thomas A. Flannery
UNITED STATES DISTRICT JUDGE
This matter came before the Court on the parties' cross-motions for summary judgment. Upon consideration of the parties' motions, the oppositions, and the replies thereto, and in accordance with the Memorandum Opinion filed herewith, it is this 2nd day of March, 1994, hereby
ORDERED that defendant's motion for summary judgment is granted and it is therefore
ORDERED that plaintiff's case is dismissed.
Thomas A. Flannery
UNITED STATES DISTRICT JUDGE