Monday, September 22, 2008

ACLU wins Freedom of Information battle over war records

The American Civil Liberties Union sued the Department of Defense which would not turn over photographs of the abusive treatment of prisoners in Iraq and Afghanistan, along with those "rendered" to other countries that use torture. The Second Circuit has agreed with the ACLU that these photographs are not exempt from the Freedom of Information Act.

The case is ACLU v. Department of Defense, decided on September 22. The Iraq war has been fertile ground for litigation. This time around, it concerns controversial pictures which raised outrage when American soldiers were photographed abusing Iraqi prisoners. But, since we're at war, the government raises the defense that releasing these photographs would endanger soldiers and civilians in Iraq and Afghanistan. True, the Freedom of Information Law contains an exemption, § 552(b)(7)(F) for law enforcement records that could reasonably be expected to endanger “any individual.” The government is using that defense here, as well as the argument that FOIL protects the privacy of the prisoners depicted in the photographs. The Court of Appeals is not buying it.

The Court has to weigh the open-government philosophy of FOIL with the exceptions outlined in that statute. The notes that "Exemption 7(F) justifies withholding any law enforcement records that 'could reasonably be expected to endanger the life or physical safety of any individual.'” What does "any individual" mean under the statute? Does it include soldiers and civilians? Can it include a large class of people that cannot be identified, or specific individuals? The government argues for the "large class of people" interpretation, but the Second Circuit disagrees, reasoning:

The plain language of the phrase “endanger the life or physical safety of any individual” connotes a degree of specificity above and beyond that conveyed by alternative phrases such as “endanger life or physical safety.” It is true that the statute does not read “any named individual,” and we thus understand it to include individuals identified in some way other than by name -- such as, for example, being identified as family members or coworkers of a named individual, or some similarly small and specific group. This does not, however, mean that the “individual” contemplated by exemption 7(F) need not be identified at all, or may be identified only as a member of a vast population. To the contrary, the legislature’s choice to condition the exemption’s availability on danger to an individual, rather than danger in general, indicates a requirement that the subject of the danger be identified with at least reasonable specificity.

Accordingly, the Court holds that to justify withholding documents under this exemption, the government must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual." The government does not meet that burden in this case.

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