The Department of Defense ("DOD") appeals from a judgment of the United States District Court for the Southern District of New York (Rakoff, J.) granting the Associated Press ("AP") summary judgment in large part and ordering DOD to disclose (1) detainee identifying information contained in records of DOD's investigations of detainee abuse at Guantanamo Naval Bay in Cuba by United States military personnel and by other detainees, and (2) identifying information of detainees' family members contained in personal letters to two detainees submitted to an Administrative Review Board, based on the district court's finding that the privacy exemptions in the Freedom of Information Act ("FOIA") did not apply. We hold that the detainees and their family members do have a measurable privacy interest in their identifying information and that the AP has failed to show how the public interest would be served by disclosure of this information. We conclude that the identifying information is exempt from disclosure under the FOIA privacy exemptions.
The opinion of the court was delivered by: Hall, Circuit Judge
BEFORE: WINTER, HALL, Circuit Judges, KRAVITZ, District Judge.*fn1
The Department of Defense ("DOD") appeals from a judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, J.) granting the Associated Press ("AP") summary judgment in large part and ordering DOD to disclose identifying information of Guantanamo Bay detainees contained in DOD records documenting allegations of abuse by military personnel and by other detainees, and identifying information of family members contained in personal letters sent to two detainees and submitted by those detainees to Administrative Review Boards ("ARB")*fn2 pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006). The district court found that the privacy exemptions in FOIA did not protect that information from disclosure, concluding that the detainees and their family members had no cognizable privacy interest and that the public interest in disclosure was great. We hold that the detainees and their family members do have a measurable privacy interest in the nondisclosure of their identifying information in these records and that the AP has failed to show how the public interest would be further served by disclosure of their identities. We conclude that the FOIA privacy exemptions protect this information from disclosure. We reverse.
This case arises out of two FOIA requests submitted to DOD by AP, seeking documents related to detainee treatment at Guantanamo Bay. The first was made on November 16, 2004, and requested, inter alia, copies of documents containing allegations or accounts of mistreatment of detainees by U.S. military personnel since January 2002, including any disciplinary action taken, and copies of documents containing allegations of detainee-against-detainee abuse. A subsequent January 18, 2005 request was made for documents related to ARB hearings, including (1) transcripts of testimony; (2) written statements and other documents provided by detainees; (3) affidavits submitted by witnesses to the ARBs; (4) allegations against the detainees; and (5) explanations of decisions made to release or transfer detainees.
AP filed a complaint on June 9, 2005 to compel DOD to produce the requested documents. DOD responded by producing 1,400 pages of documents, many of which had extensive redactions. DOD moved for summary judgment on February 23, 2006, and AP cross- moved for summary judgment on March 3, 2006.*fn3 By the time the motions were addressed by the district court, the dispute had narrowed to four categories of redaction: (1) identifying information of detainees who allege abuse by DOD personnel, which DOD had redacted pursuant to FOIA Exemptions 6 and 7(C);*fn4 (2) identifying information of detainees involved in allegations of detainee-against-detainee abuse, which DOD had redacted pursuant to Exemptions 6 and 7(C); (3) identifying information of detainees in transfer-release documents, which DOD had redacted pursuant to Exemptions 5 and 6; and (4) identifying information of detainees' family members in correspondence sent to detainees and submitted by the detainees in their ARB proceedings, which DOD had redacted pursuant to Exemptions 3 and 6.
On September 20, 2006, the district court granted AP's motion for summary judgment in large part and denied DOD's counter-motion, holding that AP "is entitled to nearly all the information it seeks." First, it ruled that Exemptions 6 and 7(C) did not apply to identifying information of detainees who allege abuse by DOD personnel because "the privacy interest is minimal and the public interest is great" such that "disclosure of this information would constitute neither a clearly unwarranted [under Exemption 6], nor an unwarranted [under Exemption 7(C)] invasion of personal privacy." At issue were eight files from investigations into detainee mistreatment by military personnel in which DOD had redacted the names and other identifying information of the detainees involved. The district court explained that Exemptions 6 and 7(C) require the court to balance the privacy interest and public interest; it found that it was "hard to see that any substantial privacy interest is involved" because the detainees' identities were fully known to the personnel they accused and to the personnel who responded to the accusations. It further explained that detainees, like other prisoners, have minimal privacy rights, and surmised moreover that "individuals detained incommunicado without many procedural safeguards . . . would want their plights, and identities, publicized." The district court based the latter conclusion on the fact that three former detainees had issued a report in 2004 alleging that they had been beaten and mistreated in Guantanamo; other detainees had conveyed such abuse allegations to the public through their attorneys; and still other detainees had participated in hunger strikes to protest alleged abuse. Against what it determined to be a minimal privacy interest, the district court weighed the "considerable public interest in learning more about DOD's treatment of identifiable detainees, whether they have been abused, and whether such abuse has been properly investigated." It found that AP had made a showing of evidence "that would warrant belief by a reasonable person that the alleged Government impropriety might have occurred." Thus, it concluded that because the public interest is great and the privacy interest minimal, the redactions had to be removed and the identifying information disclosed.
Second, the district court concluded that identifying information of detainees involved in allegations of detainee-against-detainee abuse did not fall under Exemptions 6 and 7(C). The documents at issue were reports of allegations of detainee-against-detainee abuse recorded by military personnel. In considering the privacy interest of the detainees, the district court first found that the interest of the detainees alleging abuse was minimal because their purpose in making the allegations was "to bring them to light." Although the court commented that the privacy interest of detainees against whom allegations of abuse were made "might be slightly more weighty," it reiterated that prisoners have modest privacy rights. The district court also pointed out that the government had "failed to make a particularized showing of why any given one of [the detainees] has a material privacy interest in keeping his identity secret." It therefore concluded that any privacy interest was "substantially outweighed by the public interest in knowing more about the context in which DOD was called upon to evaluate the allegations," reasoning further that this inquiry could only be explored if the particulars about the person whose conduct was in question were known. Specifically, the district court explained that without the names, AP would not know the detainees' nationalities or religions; without that information it would be impossible to scrutinize DOD's conduct.
Third, the district court found that identifying information of detainees in transfer-release documents did not fall under Exemptions 5 and 6 and must be disclosed.*fn5 The district court reasoned that Exemption 5, which exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency," 5 U.S.C. § 552(b)(5), did not apply to the transfer-release documents because they do not fall within the scope of the deliberative process privilege. It also concluded that Exemption 6 did not apply because the government did not offer more than "conclusory speculation" that disclosure of the information could subject detainees and their family members to harm.
On the final issue, the district court held, with one exception, that the redacted identifying information of detainees' family members contained in their letters submitted by the detainees at their ARB proceedings, did not fall under Exemptions 3 or 6. Exemption 3 protects from disclosure matters that are "specifically exempted from disclosure by statute . . . provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). The district court reasoned that while 10 U.S.C. § 130c is an applicable withholding statute,*fn6 the documents did not arguably or logically fall within its scope and thus did not fall under Exemption 3.
As to Exemption 6's applicability to the family members' identifying information, the district court found this to be "a closer call." In its previous decision in Associated Press v. U. S. Dep't of Def., 410 F. Supp. 2d 147, 150, 152 (S.D.N.Y. 2006) ("AP I"),*fn7 the district court had stated that third parties have little expectation of privacy in information disclosed at the ARB proceedings, but it had invited DOD to make a "particularized showing" that a specific detainee had retained a reasonable expectation of privacy with respect to a specific item of information.
In the current case, the district court analyzed such evidence presented by the government. As to Detainee b(1), the district court found that there was no indication that the detainee's testimony would invite retaliation from the Taliban where he had testified that his involvement with the Taliban was at a lower level than charged. As to Detainee b(2), the court found that the government had met its burden to show that he had retained a reasonable expectation of privacy. Detainee b(2), in his testimony before the ARB, had said he "despised" the Taliban; he was also reluctant to share a letter from his wife before the ARB. Thus, as to Detainee b(2), the district court upheld DOD's redaction of the detainee's wife's identifying information from her letter.*fn8
DOD appeals from the district court's decision, but challenges only its rulings with respect to (1) redaction of identifying information in records relating to allegations of detainee mistreatment and detainee-against-detainee abuse; and (2) redaction of identifying information of detainees' family members.