Supreme Court refuses FOIA war crimes case

Corinna Zarek | Freedom of Information | Feature | December 16, 2008

The Supreme Court will not review the issue of whether documents provided to the Defense Department by outside contractors related to the creation of military war crimes commissions should be released under the Freedom of Information Act.

The National Institute of Military Justice asked to see records detailing discussions of the procedures used to try accused terrorists, but in January the U.S. Court of Appeals upheld a district court decision that the records are exempt from release under FOIA Exemption 5. The exemption is intended to protect "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

The group argued that because the government had sought advice from outside consultants, including former high-ranking government officials and academics, Exemption 5 would not apply because those individuals were not within an agency. The appeals court had held that release of documents detailing the decision-making process of inmates at Guantanamo Bay would "inhibit frank discussion of policy matters and likely impair the quality of decisions" by agencies.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief urging the Court to review the case.