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Associated Press v. United States Dep't of Defense

September 20, 2006

ASSOCIATED PRESS, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF DEFENSE, DEFENDANT.



The opinion of the court was delivered by: Jed S. Rakoff, U.S.D.J.

OPINION AND ORDER

This is the second chapter in the ongoing attempts of the Associated Press ("AP") to obtain from the U.S. Department of Defense ("DOD") basic information about the people housed in the detention facility at Guantanamo Bay, Cuba. See Associated Press v. U.S. Dep't of Def., 410 F. Supp. 2d 147 (S.D.N.Y. 2006) ("AP I"). As before, the Court finds that AP is entitled to nearly all the information it seeks.

In AP I, AP obtained, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., basic identifying information about the detainees. AP I, 410 F. Supp. 2d at 147. In the instant action, AP seeks, pursuant to FOIA requests made on November 16, 2004 and January 25, 2005: (a) documents containing allegations or accounts of detainee mistreatment by DOD personnel, and documents identifying resulting disciplinary action; (b) documents containing allegations or accounts of detainee-against-detainee abuse; (c) documents containing details and explanations of the decisions made to release or transfer detainees from Guantanamo; and (d) certain documents relating to hearings of the Administrative Review Boards (the "ARBs") held in Guantanamo Bay, Cuba,*fn1 including transcripts of the proceedings, written statements and other documents provided by detainees, witness affidavits, and documents provided to each detainee stating the basis for his detention as an enemy combatant.*fn2 See FOIA request dated 11/16/04, attached as Ex. A to Declaration of Adam Rappaport dated March 3, 2006 ("Rappaport Decl."); FOIA request dated 1/25/05, attached as Ex. B to Rappaport Decl. In response to these requests, DOD eventually produced approximately 1400 pages of documents, but with extensive redactions. See Hecker Decl. ¶¶ 5, 8-10. The parties subsequently narrowed their dispute, so that only four categories of redaction remain in issue. Now, on the parties' cross-motions for summary judgment, the Court finds that it is able to resolve these remaining disputes as a matter of law, as follows:

(a) Identifying information of detainees who allege abuse by DOD personnel. From the records of disciplinary actions taken against DOD personnel for detainee abuse, DOD has redacted, purportedly pursuant to FOIA Exemptions 6, 5 U.S.C. § 552(b)(6), and 7(c), 5 U.S.C. § 552(b)(7)(c), the names and other identifying information of the detainees who made the allegations of abuse that led to the discipline. Specifically, there are eight files in which such redactions appear. See Hecker Decl. ¶ 8.

The first file concerns alleged misconduct in May 2002 involving interactions between an agitated detainee and a guard at the detention hospital. The file contains a letter reprimanding the commander of the military police battalion for failing to establish a positive leadership climate, and the investigative inquiry into the allegations that led to the discipline. The inquiry documents include statements by the subject of the investigation and military witnesses. See id. ¶ 8a.

The second file concerns an investigation into alleged misconduct in September 2002. The file contains a form reflecting the non-judicial punishment imposed on a soldier for assault based on his attempt to spray a disruptive detainee with a water hose, and the soldier's statement concerning the incident. See id. ¶ 8b.

The third file concerns an investigation into alleged misconduct in October 2004. The file contains the non-judicial punishment imposed on a soldier for assault after he struck a detainee on the mouth with his fist as he tried to subdue the detainee, and the investigative inquiry into the allegations that led to the discipline. The inquiry documents include statements by the subject of the investigation and military witnesses. See id. ¶ 8c.

The fourth file concerns an investigation into alleged misconduct in March 2003, in which a guard was alleged to have inappropriately used pepper spray on a detainee. The file contains a draft court-martial charge sheet for an assault charge, a non-judicial punishment form for the same allegation, the commander's recommendation regarding discipline, and the investigatory inquiry into the allegations that led to the discipline. The inquiry documents include statements by the subject of the investigation and military witnesses, as well as the standard operating procedures for pepper spray. See id. ¶ 8d.

The fifth file concerns an investigation into alleged misconduct in April 2003, in which a guard was alleged to have struck a detainee, failed to properly secure a detainee's cell, and been disrespectful to his superior officer. The file contains the non-judicial punishment imposed on the guard for assault, dereliction of duty and disrespect toward a commissioned officer, and the investigatory inquiry into the allegations that led to the discipline. The inquiry documents include the findings and recommendations of the investigating officer, statements by the guard and other military witnesses, the legal advice provided to the commander regarding the investigation, and the recommendations of various commanders regarding the discipline that should be imposed. See id. ¶ 8e.

The sixth file concerns an investigation into alleged misconduct in January 2004, in which a guard was alleged to have verbally harassed a detainee and splashed a cleansing product in his face. The file contains the non-judicial punishment imposed on the guard for assault and violation of a military regulation, and the investigatory inquiry into the allegations that led to this discipline. The inquiry documents include the findings and recommendations of the investigating officer, statements by the guard and other military witnesses, the legal advice provided to the commander regarding the investigation, and the recommendations of various commanders regarding the discipline that should be imposed. See id. ¶ 8f.

The seventh file concerns an investigation into alleged misconduct in March 2004, in which guards were alleged to have mistreated a detainee by not taking him to a restroom promptly enough. The file contains the findings and recommendations of the investigating officer, statements by the guard and other military witnesses, the legal advice provided to the commander regarding the investigation, and the recommendations of various commanders regarding the investigation. See id. ¶ 8g.

The eighth file concerns an investigation into alleged mistreatment in April 2003, in which interrogators were alleged to have mistreated a detainee during an interrogation. The file contains a letter reprimanding the Director of the Joint Intelligence Group, the findings and recommendations of the investigating officer, statements by the interrogators and other military witnesses, medical records of the detainee, the legal advice provided to the commander regarding the investigation, and the recommendations of various commanders regarding the discipline that should be imposed. See id. ¶ 8h.

From each of these eight files, DOD has redacted the names and other identifying information of the detainees involved in the incidents in question. In support of these redactions, the Government relies on FOIA Exemptions 6 and 7(c). Exemption 6 exempts from disclosure those "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."

5 U.S.C. § 552(b)(6). These eight files here in issue are "similar files" under the broad definition set forth by the Supreme Court in United States Dep't of State v. Wash. Post Co., 456 U.S. 595, 601-03 (1982); see also Wood v. FBI, 432 F.3d 78, 87 n.6 (2d Cir. 2005), and a few of the documents are actually medical records, see Hecker Decl. ¶¶ 8h, 17c. Similarly, Exemption 7(c) exempts from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7). The records here in issue - records of investigations to determine whether to charge U.S. military personnel with misconduct - were compiled for law enforcement purposes, i.e., enforcing the Uniform Code of Military Justice. Cf. Aspin v. Dep't of Def., 160 U.S. App. D.C. 231 (D.C. Cir. 1973) (holding that a Commission Report, the end product of an investigation "primarily directed toward discovering and toward obtaining evidence of possible offenses under the Uniform Code of Military Justice ... with a view toward prosecution if warranted," was an "investigatory file compiled for law enforcement purposes" within the meaning of Exemption 7).

Exemptions 6 and 7(c) both require the Court to balance the privacy interest and the public interest. Exemption 7(c) affords more protection to privacy interests than Exemption 6: under Exemption 6 information may be withheld only if its disclosure "would constitute a clearly unwarranted expectation of personal privacy" (emphasis supplied), whereas under Exemption 7(c), information may be withheld if it "could reasonably be expected to constitute an unwarranted invasion of personal privacy." See Nat'l Archives & Records Admin v. Favish, 541 U.S. 157, 165-66 (2004). On the specific facts, here, however, it is hard to see that any substantial privacy interest is involved. This is not like the situation of, say, a whistleblower, whose anonymity is protected to avoid retaliation. Here, the detainees' identities were fully known to both the personnel they accused and the personnel who responded to the accusations.

Moreover, as the Supreme Court re-emphasized just this past June in holding that parolees have a severely diminished expectation of privacy, prisoners have even less of a privacy right. See Samson v. California, 126 S. Ct. 2193, 2197 (2006), citing Hudson v. Palmer, 468 U.S. 517, 530 (1984), ...


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