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No privacy violation if detainee identities revealed

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NEWS MEDIA UPDATE   ·   NEW YORK   ·   Freedom of Information   ·   Jan. 9, 2006

NEWS MEDIA UPDATE   ·   NEW YORK   ·   Freedom of Information   ·   Jan. 9, 2006

No privacy violation if detainee identities revealed

  • Detainees at the U.S.-run Guantanamo Bay prison have no expectation of personal privacy, a federal judge ruled in a Freedom of Information Act lawsuit.

Jan. 9, 2006  ·   A federal judge in Manhattan has rejected government claims of privacy as a reason to withhold identities of nearly 500 Guantanamo Bay prison camp detainees, bringing that information another step closer to release.

In the latest phase of a months-long battle by The Associated Press for the names of detainees held pending determination of whether they are “enemy combatants,” U.S. District Judge Jed S. Rakoff was not persuaded by the government’s argument that the inmates’ privacy would be violated by releasing their names. Rakoff had previously ordered the government to survey the detainees and ask whether they wanted to identify themselves — 63 of the 317 who received the form said they would like to be identified.

Regardless of their wishes regarding identification, “none of the detainees . . . had a reasonable expectation of privacy with respect to the identifying information they provided,” Rakoff said in his six-page opinion issued Jan. 4. “Nothing in the record before the Court suggests that they were informed that the proceedings would remain confidential in any respect,” he added.

Rakoff has “clearly not accepted the government’s position,” said David A. Schulz, AP’s attorney. AP initially asked the government for access to documents related to the detainees’ military hearings on their “enemy combatant” status in November 2004, but when the request had not been addressed by April 2005, the wire service sued under the Freedom of Information Act. “The AP believed there is a very compelling public interest in knowing who is there and what the government is doing with them,” Schulz said.

The government eventually released transcripts of 558 tribunals conducted by the Department of Defense in 2004, but redacted information regarding the detainees’ identities. The government cited Exemption 6, the personal privacy exemption, of the FOI Act as its basis for withholding the identities.

Rejecting the privacy claim, Rakoff noted that the government failed to meet its burden of showing that releasing information would “constitute a clearly unwarranted invasion of personal privacy.” He stopped short of ordering release of the names, stating that additional proceedings are necessary in the district court.

The Defense Department has petitioned the court to reconsider. If the court will not reconsider, the government will have to decide whether to release the names or provide a case-by-case showing that each detainee has a privacy interest that would be violated by the release of his or her identifying information, as required under the judge’s order, Schulz said.

(Associated Press v. Dep’t of Defense; Media counsel: David A. Schulz, Levine Sullivan Koch & Schulz, New York, N.Y.)CZ

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