From the Fall 2005 issue of The News Media & The Law, page 27.
Far be it from us to suggest that Freedom of Information Act litigators forum shop, but as more and more FOI Act requesters are left licking bureaucracy-inflicted wounds at the courthouse, decisions by two federal district court judges in New York City make deliciously good sense. They rejected the government’s silly refusals to release pictures or information about prisoners detained by American forces at Guantanamo Bay, Cuba, and in Iraq to protect the detainees’ “privacy.”
We hope more FOI Act cases go to the Big Apple.
The Department of Defense claimed that giving The Associated Press names of the collectively and speculatively labeled “enemy combatants,” many of whom had been held in captivity in Guantanamo Bay for several years, would be a “clearly unwarranted invasion of their personal privacy.” Judge Jed Rakoff, sensing that the detainees themselves might not share that view, ordered the government to ask them. The government protested that there were “material logistical impediments” to this approach, but Rakoff ruled in late September that the court was “entirely unpersuaded” that the military could not perform the simple task of asking the detainees: yes or no. After all, he noted, they are a captive audience. (Associated Press v. Department of Defense)
In a separate case, the American Civil Liberties Union sued the Defense Department when it refused, for “privacy” reasons, to release pictures showing torture of detainees at Abu Ghraib, even when individual identities were obscured. Judge Alvin Hellerstein did not buy that disclosure of those redacted pictures would intrude upon the privacy of the tortured. He also made short work of the government’s claim that disclosure would “violate the Geneva Conventions” that protect prisoners of war from “insults and public curiosity.”
Ordered to make the disclosures, the government came back to Hellerstein with a new argument. These torture pictures are so awful, so incendiary, that terrorists could use them for propaganda, inciting further hate against the United States, it said. If the pictures aren’t exempt for privacy reasons (Exemption 6), exempt them because release could endanger life or physical safety (Exemption 7f), the government argued.
Hellerstein, too, was entirely unpersuaded. He said disclosure would implicate core values of the FOI Act, “a means for citizens to know what their government is up to.” He wrote:
“The interest at stake arises from pictures of flagrantly improper conduct by American soldiers — forcing prisoners under their charge to pose in a manner that compromised their humanity and dignity … . Publication of the photographs is central to the purposes of FOIA because they initiate debate, not only about the improper and unlawful conduct of American Soldiers, ‘rogue’ soldiers, as they have been characterized, but also about other important questions as well — for example, the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-martialed for perpetrating the wrongs; the poor training that did not create patterns of proper behavior and that failed to teach or distinguish between conduct that was proper and improper; the regulations and orders that governed the conduct of military forces engaged in guarding prisoners; the treatment of prisoners in other areas and places of detention.”
The judge continued: “Suppression of information is the surest way to cause its significance to grow and persist. Clarity and openness are the best antidotes, either to dispel criticism if not merited or, if merited, to correct such errors as may be found. … Our struggle to prevail [in Iraq and Afghanistan] must be without sacrificing the transparency and accountability of government and military officials. These are the values FOIA was intended to advance, and they are at the very heart of the values for which we fight in Afghanistan and Iraq.” (ACLU v. Department of Defense)
The Reporters Committee for Freedom of the Press, joined by other media groups, filed a friend-of-the-court brief on behalf of the ACLU.
Judge Hellerstein’s 50-page opinion did not give the ACLU everything it wanted, but he explained with care why FOI case precedent — some of it questionable — dictated his findings.
Government litigators fought hard before both Rakoff and Hellerstein asking the judges to look twice at the cases, but the jurists held fast.
Under the FOI Act, a requester can sue where he lives, where the records are located or in Washington, D.C.
If there is a choice, I’ll take Manhattan.
We’ve seen some changes since earlier columns this year:
Delaware journalism professor Ralph Begleiter settled his lawsuit against the Defense Department. The government’s photos of the return of military coffins to Dover Air Force Base in Delaware are now disclosed, and faces of the honor guards accompanying them are no longer blacked out.
Also, the U.S. Marshals Service has retracted its instruction to FOI officers to ignore the 1996 ruling in the U.S. Court of Appeals in Cincinnati (6th Cir.) that the privacy exemptions to the FOI Act do not protect mug shots of federal suspects from disclosure. The Akron Beacon Journal and the Detroit Free Press separately litigated the issue this summer and won.