DoD ORDERED To RELEASE DETAINEE FOIA INFO

In Associated Press v. United States Department of Defense, No. 05 Civ. 3941(JSR)(S.D.N.Y. Jan. 4, 2006)(motion for reconsideration denied Jan. 23, 2006), the U.S. District Court for the Southern District of New York ordered the Department of Defense (DoD) to provide the Associated Press with unredacted transcripts of the Combatant Status Review Tribunals that have been conducted to determine if the detainees held in Guantanamo Bay, Cuba, were properly classified as enemy combatants.

In this case, the Associated Press submitted a Freedom of Information Act (FOIA) request seeking the transcripts of the review tribunals’ hearings. DoD released the transcripts, but redacted the detainees’ identities under FOIA Exemption 6, an exemption that permits the withholding of personal files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Prior to ruling on the applicability of this exemption, the court ordered DoD to ask the detainees whether they wished the redacted information relating to their identities to be released or not.

Of the 317 detainees who were asked, 63 said they wanted the identifying information released, 17 said they did not want the information released, 35 returned the form without a response, and 202 declined to return the form. Based on the small number of negative answers and the fact that nothing in the record indicated that any of the detainees had a reasonable expectation of privacy with respect to the identifying information provided by them in the formal legal proceedings, the Court concluded that DoD had failed to carry its burden to show that the disclosure would constitute a clearly unwarranted invasion of personal privacy. Although DoD also argued that releasing the identities could put the detainees’ families at serious risk of reprisals, the Court held that DoD had failed to come forward “with anything but thin and conclusory speculation to support its claims of possible retaliation.”