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Detainees' names must be disclosed under federal FOI Act

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    NMU         WASHINGTON, D.C.         Freedom of Information         Aug 2, 2002    

Detainees’ names must be disclosed under federal FOI Act

  • The federal government cannot categorically withhold the names of the hundreds of persons it has detained in connection with the events of September 11, Judge Gladys Kessler of the federal district court in Washington, D.C., ruled Aug. 2 in a decision that clearly limited the circumstances in which individual names can be kept secret, but allows the government to keep secret information about arrests, release and detention.

Names of persons detained in connection with the government’s terrorist investigations must be released under the Freedom of Information Act to the Center for National Securities Studies and 27 other civil rights and public interest organizations, including the Reporters Committee for Freedom of the Press, a federal district court judge ruled Aug.2, allowing the government only to keep certain names secret under specific circumstances.

However, the government may continue to withhold dates and locations of arrests, detentions and release of the detainees.

Judge Gladys Kessler rejected the government’s claim that it must withhold names of most of the detainees for privacy or safety reasons. She balanced public and privacy interests and acknowledged some legitimate concerns about safety of individual detainees, but ruled that except where individuals themselves choose to “opt out” from disclosure for privacy or safety reasons, the names must be released.

She cited broad public interests in disclosure. “The government’s power to arrest and hold individuals is an extraordinary one,” she said, noting the requesting groups’ “grave concerns” over the abuse of this power ranging from denial of counsel and consular notification, to discriminatory and arbitrary detention, to the failure to file charges for prolonged periods to their mistreatment in custody.

The judge rejected entirely the government’s claim that release of the names could interfere with its investigation. She said the government failed to show that disclosure of the names could deter cooperation or enable terrorist groups to map its investigation or help terrorists create false and misleading evidence.

She refused to allow the government to rely upon grand jury secrecy interests to withhold the names of material witnesses, saying the government did not show that disclosure of the identities would reveal some “secret aspect of the grand jury’s investigation.”

And finally she rejected the broad withholding of names under court order. If names are withheld under court order, the specific order would have to be shown her, she said.

The judge did allow the government to keep secret dates and locations of arrest, detention and release of the detainees, accepting that that information could interfere with an investigation or endanger individuals. She rejected arguments that the First Amendment calls for disclosure of these details. While it may be true that the fact of an individual’s arrest has always been public, there is no “tradition of accessibility” attached to these details, she wrote.

The judge also ordered the names of detainees’ lawyers released.

(Center for National Security Studies v. U.S. Department of Justice; Attorney: Kate Martin, Washington, D.C.) RD

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© 2002 The Reporters Committee for Freedom of the Press

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