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FOIA does not shield images of detainee abuse, RCFP argues

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  1. Freedom of Information
The Reporters Committee for Freedom of the Press asked the U.S. Supreme Court Friday to decline review of an appeals…

The Reporters Committee for Freedom of the Press asked the U.S. Supreme Court Friday to decline review of an appeals court decision that found the Freedom of Information Act requires release of images of alleged abuse of detainees in Iraq and Afghanistan carried out by U.S. troops.

In urging the court to allow the lower court rulings to stand, the friend-of-the-court brief filed by the Reporters Committee and 16 other news media organizations argued that FOIA was properly interpreted below and that the Supreme Court need not hear the case because the law is clear and settled.

The U.S. Court of Appeals for the Second Circuit as well as the U.S. District Court in Manhattan ruled that the images are not subject to FOIA’s privacy exemptions.  The courts also found that any potential harm from their release was speculative. The government initially said it would comply with those rulings, calling it “hopeless” to appeal to the Supreme Court. But in May, President Obama abruptly reversed course with little explanation other than stating that high-ranking military officials had advised it would be catastrophic to release the photos.

The brief argued that the law “does not permit the government to hide records from the public for fear of violent or retaliatory action against ‘any individual’ without ‘reasonable’ belief that action would occur. Here, the courts have properly found any retaliatory action to be ‘merely speculative’ and disregarded any potential endangerment without a tie to an identifiable individual.”

“We recognize and appreciate the risks America’s armed forces take in war zones and in other dangerous places abroad,” said Reporters Committee Executive Director Lucy A. Dalglish. “But the government seems to be arguing that the worse American forces behave, the more those actions need to be hidden. That’s not appropriate in a democracy.”

The Reporters Committee has been involved with the case since its outset, filing briefs at the district and appellate courts. Joining the Reporters Committee in this filing is Advance Publications, Inc., the American Society of News Editors, The Associated Press, Cable News Network, Inc., the E.W. Scripps Company, Gannett Co., Inc., the Hearst Corporation, Military Reporters and Editors, the National Press Club, NBC Universal, Inc., the New York Times Company, the Newspaper Association of America, the Newspaper Guild-CWA, the Radio-Television News Directors Association, the Society of Professional Journalists and The Washington Post.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.