FOIA and the Privacy Rights of the Deceased

The Federal Privacy Act and the Health Insurance Portability and Accountability Act (HIPAA) do a fair job of protecting people's privacy, but there's one law that comes into direct conflict with them: the Freedom of Information Act (FOIA). This law is intended to create government transparency, making it harder for government officials to keep secrets from the citizens they serve. Sometimes, someone files a FOIA request, and the government has to decide if releasing the information violates someone's privacy.

There are several exemptions to FOIA that the government can invoke to avoid releasing information. One allows the government to deny a FOIA request if the request includes "personnel and medical files and similar files that would constitute a clearly unwarranted invasion of personal privacy." This allows the government to tread the line legally between FOIA, HIPAA and the Federal Privacy Act in most cases.

That covers the privacy rights of living people, but what happens after death? The Privacy Act is very clear -- it doesn't apply to dead people. Once you die, your information is no longer protected under that law. However, court precedents have shown that the privacy concerns of surviving family members also weigh on the decision to release information via FOIA. When these cases go to court, judges have ruled against FOIA requests in cases where the release of death-scene photos, autopsy photos or coroner's reports would cause anguish and harm to the deceased person's family. They may allow the information to be released if they feel the information itself is harmless or if many years have passed since the death in question.

HIPAA is just the opposite -- the protection of a person's privacy extends indefinitely, even after death. When someone dies, control over his or her estate passes either to a family member or another executor. The power to make decisions related to medical privacy -- including the ability to give permission for information-sharing under HIPAA -- is transferred as well.

There are a few famous cases that helped establish this area of law in the U.S. One of the most well-known is the case of Vincent Foster, a lawyer who worked for the Clinton administration before committing suicide in 1993. Photographs of the scene where Foster's body was found weren't made public. As a result, several conspiracy theorists suspected a cover-up that involved the Clintons, so they made FOIA requests for the photos. The case, National Records and Archives Administration v. Favish, made it all the way to the Supreme Court. The court ruled unanimously in favor of the government -- and Foster's privacy.

A similar case played out after the death of popular race car driver Dale Earnhardt. A Florida newspaper tried to get access to the autopsy photos, but Florida passed a law banning their release. The lower courts decided against the newspaper, and the Supreme Court refused to hear the case.

What about your electronic accounts? Do they remain private when you die?