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Judge orders release of detainee information

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NEWS MEDIA UPDATE   ·   NEW YORK   ·   Freedom of Information   ·   Sep. 21, 2006

NEWS MEDIA UPDATE   ·   NEW YORK   ·   Freedom of Information   ·   Sep. 21, 2006

Judge orders release of detainee information

  • For the second time this year, the AP successfully forced the Defense Department to turn over personally identifying information on detainees being held at Guantanamo Bay.

Sep. 21, 2006  ·   A federal judge today ordered the release of names and other identifying information in documents detailing abuse at Guantanamo Bay, rejecting the government’s argument that the information should remain secret to protect the privacy interests of detainees at the U.S. prison camp in Cuba.

In a lawsuit brought by The Associated Press, U.S. District Court Judge Jed S. Rakoff in New York City ordered everything sought by the news organization released except the address of a single detainee’s wife.

The ruling brings to an end a two-year quest by the AP to obtain names of detainees who had been subject to abuse and information related to detainees who had been released or transferred to prisons in other countries.

“The Department of Defense has made it virtually impossible for anyone to check the accuracy or thoroughness of what is going on in Guantanamo,” AP attorney David A. Schulz told The New York Times. “The public is supposed to be able to determine these things for itself.”

In November 2004, the AP filed a Freedom of Information Act request seeking documents on detainee abuse allegations lodged against Defense Department personnel, as well as documents related to any detainee-on-detainee abuse.

The AP also sought transcripts and evidence used in administrative hearings used to determine if individuals should continue to be detained. Finally, the AP asked for documents describing the final decision of whether to release or transfer detainees to another country.

The Defense Department turned over more than 1,400 documents in response to this request, but they were heavily redacted and devoid of personally identifying information.

Specifically, the department redacted the names and other information in eight files concerning alleged misconduct, stating the release would constitute an “unwarranted invasion” of the personal privacy of the detainees and thus exempt under FOIA.

Rakoff rejected that argument, stating the government had not met the legal test to withhold information, which requires privacy concerns to outweigh the public’s interest in knowing. Rakoff ruled the detainee’s personal privacy interests “purportedly here asserted on their behalf by their captors” were “minimal” and far outweighed by the public interest in “disclosing government malfeasance.”

“Although revelation of abuse by one’s captors may cause some limited embarrassment, most people in such a situation – especially individuals detained incommunicado without many procedural safeguards – would want their plights, and identities, publicized,” he wrote.

The Defense Department also withheld personally identifying information in documents relating to decisions to release or transfer detainees, citing a FOIA exception for “predecisional” intra-agency deliberations. Rakoff rejected the department’s argument that the documents were predecisional because the department needed approval from another country before it could carry out the release or transfer.

The only piece of information the court allowed the department to conceal was the address of a detainee’s family member contained in a private letter. Using the same balancing test described above, Rakoff found an expectation of privacy in the letter that outweighed the AP’s interest in learning the wife’s identity.

This is the AP’s second victory this year in a FOIA dispute with the Defense Department. In January, the same judge ordered the department to release unredacted hearing transcripts in which individual detainees had challenged their continued detention at Guantanamo.

(The Associated Press v. U.S. Dep’t of Defense; Media Counsel: David A. Schulz, Levine, Sullivan, Koch & Schulz, New York)NW

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