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A federal judge Wednesday accused the government of dragging its feet in producing documents for a lawsuit questioning the treatment of detainees in U.S. custody. Criticizing what he called the “glacial pace” of the response by the Department of Defense and other government agencies to Freedom of Information Act requests, Southern District of New York Judge Alvin K. Hellerstein ordered immediate compliance with a plan to speed the handover of materials. He said that “further delays in disclosure or providing justification for not disclosing would subvert the intent of FOIA.” The judge’s comments, made in an opinion released Wednesday, came in a case brought in July by the American Civil Liberties Union, the Center for Constitutional Rights and three other public interest groups. The organizations claimed there was “growing evidence of systematic abuse” of prisoners. The groups filed a FOIA request last October seeking information from federal agencies on the treatment and deaths of detainees in U.S. custody and the transfer of detainees to countries known to employ torture or other illegal interrogation methods. They made little headway in getting information and filed suit. Judge Hellerstein said that with the exception of the Civil Rights Division of the Department of Justice and the Department of Homeland Security, which “responded fully” to plaintiffs’ request, little or no action had been taken. “As of today, eleven months later, with small exception, no documents have been produced by defendant; no documents have been identified; no exemptions have been claimed; and no objections have been stated,” Hellerstein said in his opinion, which followed a Sept. 10 hearing on how to proceed. Earlier, at an Aug. 12 hearing on the plaintiffs’ motion for a preliminary injunction, the government said the agencies were responding “as soon an practicable.” Therefore, Hellerstein lacked jurisdiction to hear the case, the government said. The judge disagreed, held that jurisdiction was proper, found the government had failed to respond to the FOIA requests and ordered the government to produce the requested documents or a log identifying specific claims for exemptions. The parties were told to agree to a schedule for production by Aug. 30. But Judge Hellerstein said “defendants made scant production” and the parties could not agree on a schedule, leading to the Sept. 10 hearing on how to proceed. At the hearing, the government suggested it provide the documents on a rolling basis, with completion some time next year. It also said timely production was not an easy task. Many of 17,000 to 20,000 documents sought by the plaintiffs are classified and must be examined line by line by agencies lacking the resources to do the job quickly, the government said. Hellerstein noted that Congress has recognized the difficulty of always meeting FOIA’s requirement that government agencies process requests within 20 days. But Congress has also recognized that “delay in complying with FOIA requests may be ‘tantamount to denial,’” the judge noted. NATIONAL SECURITY The government raised “important issues of national security” about some of the materials, he said. But he added, “Merely raising national security concerns cannot justify unlimited delay. “The information the plaintiffs have requested are matters of significant public interest. Yet the glacial pace at which defendant agencies have been responding to plaintiffs’ requests shows an indifference to the commands of FOIA, and fails to afford the accountability of government that the act requires,” the judge wrote. “If the documents are more of an embarrassment than a secret, the public should know of our government’s treatment of individuals captured and held abroad.” The judge ordered the government to produce or identify all relevant documents by Oct. 15. Any that cannot be identified because they are classified, he said, will be identified in camera in light of the justification for the classified status of the document. A status conference in the case was scheduled for Oct. 25. Jennifer Ching of Gibbons Del Deo Dolan Griffinger & Vecchione in Newark, N.J., represented the ACLU and the plaintiffs pro bono. Assistant U.S. Attorney Sean Lane represented the government.

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