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Army denies military transcripts under privacy exemption

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  1. Freedom of Information
The U.S. Army is being sued in federal district court after denying a military widow access to the court transcripts…

The U.S. Army is being sued in federal district court after denying a military widow access to the court transcripts in the murder trial of her husband's alleged killer, citing privacy concerns of the military personnel involved in the trial. In a complaint filed Jan. 19, Siobhan Esposito requested complete transcripts from the court-martial of Staff Sgt. Alberto B. Martinez.

Esposito requested the transcript of the audio recordings of the trial of Martinez, who was acquitted in military court in 2008. Esposito's husband, Capt. Phillip T. Esposito, was murdered in Tikrit, Iraq, in 2005 when a Claymore mine, a remote-control-operated explosive used by the U.S. military that shoots a pattern of steel balls when detonated, was placed on his office window. Martinez offered to plead guilty in 2006 in exchange for the prosecution not seeking the death penalty, but that request was denied.

Esposito believes the trial was rife with bias during jury selection and in the rulings made by the judge, resulting in the acquittal. The names are important because they are military officers and high-ranking noncommissioned officers who were derelict in their duties, she said. "I can't fight for change if I don't have the records," she said.

Because Martinez was acquitted, the U.S. Army was not required to and did not prepare a complete transcript of the proceedings. While she was present for the trial, Esposito wants the transcripts "for justice . . . so no family has to experience what I have . . . had to endure," she said.

"Understanding what went wrong in my husband’s case will allow me to propose changes to the Army and its administration of justice that will help to ensure that similar tragedies like the murder of my husband and the acquittal of the soldier accused of killing him will not happen again," Esposito added.

After her request, Esposito was provided a partial transcript of the trial with the promise of the remainder. However, upon inspection, Esposito discovered that the transcript had been redacted of information that was clearly stated in open court. "I was infuriated and incredulous," Esposito said.

The names of witnesses, attorneys and the judge were removed from the transcript, said Eugene Fidell, attorney for Esposito and a military justice expert. Fidell and his client, whom he began working with during Martinez's trial, were surprised by the redactions, he said. "If a person on a witness stand is asked to 'state your name and address,' that is a public record. Period."

"The identity of the judge and names of the attorneys, no way can that be secret," Fidell added.

In the denial letter sent to Esposito, the Army claimed that revealing the names would violate the personal privacy of the military personnel named in court, citing Exemption 6 of the federal Freedom of Information Act. That exemption allows for the withholding of information that would "constitute a clearly unwarranted invasion of personal privacy."

Even though the names were said in open court, the Army contends that not only are transcripts not necessarily public records, but those that participate in court proceedings do not necessarily give up their right to privacy. Esposito contends, however, that not only were the names said in open court, but the Army released the names of attorneys, judge and witnesses in a press release prior to the trial. The Associated Press account of Martinez's acquittal includes names of witnesses and on-the-record comments from the chief prosecutor at Fort Bragg, N.C., where the trial took place.

In addition, the Army cited a heightened privacy interest in this case because, referencing a 2008 district court case, "by virtue of the nature of their work, military personnel, and their civilian counterparts, possess protectable privacy interests in their identities."

Esposito's interest, in contrast, is slight, the U.S. Army said. Releasing the names of those involved in the trial "would not shed any additional light on the government operations or activities," and "would not further add to the public's understanding of government operations," the denial letter said. However, Esposito insists that the names are key because she's looking for justice and to right the wrongs that she believes occurred in this trial.

"I want to see that the errors that were made are exposed," she said. Esposito needs the names so she can demand accountability from "the men that heard [Martinez] issue death threats against my husband and failed to report it." Martinez was also charged with and acquitted of the murder of First Lt. Louis E. Allen.

Esposito believes the Army is trying to cover up its errors. Fidell believes the system is fundamentally flawed. While technically being subject to the same standards as traditional court, military courts are rife with problems over access, he said. "They do not have the same open file requirements and it's a real problem," Fidell said.

Fidell suggested that maybe Esposito was looking for closure. When asked, she said, "I'm not sure if there is ever such a thing when you lose a loved one like my daughter and I have. But I do believe that it is worth it to attempt to prevent similar tragedies from happening in the future."

The case was filed in the federal district court in Washington, D.C.