Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, January 6, 2006

U. S. District Judge Rejects DOD Claim that Releasing Detainee Names Would Invade Privacy

United States District Judge Jed Rakoff has told attorneys for the Bush administration that revealing the names of Guantanamo Bay detainees would not violate their privacy, taking the government that much closer to identifying more 500 prisoners who have not been charged, some after more than 3 years in detention. In another ruling in the series of proceedings begun in November 2004 to obtain the names of persons detained filed by the Associated Press Rakoff said that the "the Department of Defense produced redacted copies of the transcripts and related documents, removing the names of the detainees and certain other “identifying information,” such as internment serial numbers, names and home locales of the detainees and their families, information tending to reveal the nationalities or countries of origin of the detainees, and names of other persons identified or otherwise referenced by the detainees.... "

"No claim was made, then or thereafter, that these redactions were prompted by considerations of national security or the like. Rather, the sole basis given for the redactions was so-called “Exemption 6,” which exempts from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. [Sec.] 552 (b)(6). Contending that Exemption 6 justified each and all of the redactions, the Department of Defense then moved for summary judgment in its favor. To aid the Court in resolving the motion, the Court, by Memorandum Order dated August 29, 2005, directed the Department of Defense to ask each detainee whether he wished his identifying information to be released to the Associated Press or not. See also Memorandum Order dated September 26, 2005 (denying reconsideration). Specifically, each detainee was provided with a form (suitably translated into the detainee's native tongue) which stated as follows:

You have previously appeared before a United States military tribunal and made statements that were written down in the form of a transcript. The Associated Press, an international news organization, has asked the United States to release copies of those transcripts, so that it can report on the proceedings. The United States has released large portions of those transcripts, but has held back information about your name and identity, believing that the release of such information may be dangerous to you and your family. Before deciding whether this was proper, the Court that is hearing this dispute would like to know your preference.
Therefore, please check one of the two boxes below, indicating whether or not you want to release identifying information about yourself.
- Yes, I want the identifying information about myself released to the Associated Press.
- No, I do not want the identifying information about myself released to the Associated Press.
Of the 317 detainees who received the form, 63 checked “Yes,” 17 checked “No,” 35 returned the form without checking either response, and 202 declined to return the form. See Declaration of Dale T. Vitale, dated Oct. 28, 2005, at ¶ 4; Supplemental Declaration of Dale T. Vitale, dated Dec. 19, 2005, at ¶ 2.

Against this background, the defendant's motion for summary judgment is now ripe for determination. The relevant legal standards are well established.... Applying these standards to the record on the instant motion, the Court concludes that the Department of Defense has failed to carry its burden. The only privacy interest it purports to assert under Exemption 6 is that of the detainees; but of the 317 detainees in issue, only 17 have asserted a desire to have their identifying information kept confidential. Moreover, so far as the record here discloses, none of the detainees-not even these 17-had a reasonable expectation of privacy with respect to the identifying information they provided. Most of the information was provided by them in formal legal proceedings before a tribunal, and nothing in the record before the Court suggests that they were informed that the proceedings would remain confidential in any respect. Thus, this case is starkly different from Ray, supra, in which the Supreme Court, in approving the redactions of certain identifying information under Exemption 6, substantially grounded its decision on the fact that the repatriated Haitian “boat people” who provided the information had expressly been promised confidentiality by the U.S. Government and had plainly relied on that promise. ...Here, by contrast, the record on this motion evidences no such promise, express or implied.

The Department of Defense argues, nonetheless, that Ray supports its position because of language in that decision suggesting that the unidentified Haitians there who had agreed to talk to the U.S. Government after being returned to Haiti had a reasonable fear that they and their families would face embarrassment and retaliation if their identities were made known and their privacy left unprotected. See id. at 176-77. But this “derivative” harm-if cognizable at all under Exemption 6, see id. at 179-83 (Scalia, J., concurring on the ground that the majority opinion's references to such harm are pure dicta)-was premised on fears so well founded that the U.S. Government not only had demanded that Haiti not so retaliate but also had monitored the situation by interviewing the returned Haitians under strict promises of confidentiality. Here, by contrast, the Department of Defense has failed to come forward on this motion with anything but thin and conclusory speculation to support its claims of possible retaliation. Even under the relaxed evidentiary standards that might arguably apply in these unusual circumstances, such a meager and unparticularized showing is inadequate to meet the standards either of Rule 56 or of FOIA. See Halpern v. FBI, 181 F.3d 279, 293 (2d Cir.1999) (to justify application of an exemption under FOIA, government must provide sufficient specificity to permit meaningful judicial review). Even less does it satisfy the heavier burden under Exemption 6 to show that disclosure would in fact constitute a clearly unwarranted invasion of personal privacy. In short, the Department of Defense has failed on this motion to establish, by undisputed admissible evidence, any cognizable privacy interest on the part of the detainees that would warrant the across-the-board application of Exemption 6 the defendant here seeks."  Read the entire ruling on Westlaw at 2006 WL 13042 (S.D.N.Y.); it is not yet available today on LEXIS.

Read more in an AP article by Larry Neumeister here.

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