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The U.S. Department of Defense cannot claim a privacy exemption for Guantanamo detainees under the Freedom of Information Act, a federal judge has ruled. Southern District Judge Jed S. Rakoff found Wednesday that The Associated Press was entitled to names of detainees and certain other “identifying information” as part of its efforts to obtain transcripts of proceedings at the detention center. The issue for Rakoff in Associated Press v. Department of Defense, 05 Civ. 3941, was Exemption 6 of the act, 5 U.S.C. �552(b)(6), which exempts from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” “In short, the Department of Defense has failed on this motion to establish, by undisputed admissible evidence, any cognizable privacy interest on the part of the detainees that would warrant the across-the-board application of Exemption 6 the defendant here seeks,” Rakoff said. The Associated Press filed suit in April seeking transcripts of hearings in which the Defense Department sought to determine which detainees should be properly classified as “enemy combatants,” a designation that allows the government to indefinitely hold an individual without trial. The department produced transcripts after the suit was filed, but the transcripts and related documents contained numerous redactions, including the names of detainees and their internment serial numbers, as well as information that could reveal the country of origin or the nationality of detainees. “No claim was made, then or thereafter, that these redactions were prompted by considerations of national security or the like,” Rakoff said. “Rather, the sole basis given for the redactions” was Exemption 6, and the department used that exemption to seek summary judgment. On Aug. 29, Rakoff directed the Department of Defense to poll the detainees and ask each one whether he wanted to have his personal information released to The Associated Press or not. The notice sent to detainees stated, “The United States has released large portions of those transcripts, but has held back information about your name and identity, believing that the release of such information may be dangerous to you and your family.” It then gave the detainees the option of checking a box “yes” or “no” on the release of the information. Of the 317 detainees who were sent the survey, 63 checked yes, 17 checked no, 35 returned the form without checking either response and 202 elected not to return the form. Rakoff said that, under the U.S. Supreme Court case of United States Department of State v. Ray, 502 U.S. 164 (1991), the government’s burden under Exemption 6 is heavier than the standard applicable to other exemptions because the government must show that disclosure would constitute a “clearly unwarranted” invasion of personal privacy. And that burden, the judge said, was not met. “The only privacy interest it purports to assert under Exemption 6 is that of the detainees; but of the 317 detainees in issue, only 17 have asserted a desire to have their identifying information kept confidential,” he said. “Moreover, so far as the record here discloses, none of the detainees — not even these 17 — had a reasonable expectation of privacy with respect to the identifying information they provided.” There also was nothing in the record that showed the detainees were informed that the proceedings against them remained confidential in any way. “Thus, this case is starkly different from Ray�in which the Supreme Court, in approving the redactions of certain identifying information under Exemption 6, substantially grounded its decision on the fact that the repatriated Haitian ‘boat people’ who provided the information had expressly been promised confidentiality by the U.S. Government and had plainly relied on that promise,” Rakoff said. “Here, by contrast, the record on this motion evidences no such promise, express or implied.” Haitians who agreed to talk to the U.S. government in Ray had fears that “were so well founded that the U.S. Government not only demanded that Haiti not so retaliate but also had monitored the situation by interviewing the returned Haitians under strict promises of confidentiality,” he said, a far cry from the “thin and conclusory speculation to support claims of possible retaliation,” in this case. David A. Schulz of Levine, Sullivan, Koch & Schulz represented The Associated Press. Assistant U.S. Attorney Elizabeth Wolstein represented the Department of Defense.

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