Lawyers who specialize in FOIA work say that while such requests will almost certainly be denied initially, there’s a chance that the plaintiffs could prevail in court.
“Theoretically, they could win,” said Scott Hodes, who from 1998 to 2002 was the acting unit chief of the Federal Bureau of Investigation’s Freedom of Information/Privacy Act Section’s litigation unit and is now a solo practitioner in Washington. “It will not be an easy decision. There are reasons on both sides.”
FOIA requires that all federal agency records be accessible to the public unless there exists a specific exemption – and there are nine, covering everything from trade secrets to the location of wells. The most applicable in this case would be those dealing with national security.
But first, there’s a major threshold question, said national security law expert Mark Zaid, who heads his own five-lawyer firm in Washington. That is, who has the photos?
The pictures, presumably, were taken by operatives from the Defense Department’s Navy Seals or the Central Intelligence Agency – both subject to FOIA as federal agencies. The White House, however, is exempt from FOIA requests.
“Under FOIA, agencies are not required to retrieve documents that are no longer in their possession,” Zaid said. “If the White House has all the copies, [the photos] are no longer subject to FOIA. That would be the smart way to hold on to them.”
Alternately, the agencies could claim that the photos fall under one FOIA exemption, which covers records “to be kept secret in the interest of national defense or foreign policy and are in fact properly classified.”
One issue, Zaid said, is that the raid is not secret. “Releasing the photos would not reveal the operation. That’s been done,” he said. “Can the photos by themselves be classified? The government may have a hard time arguing this.”
Hodes noted that the Defense Department tried to stop the release of photos at Abu Ghraib prison, arguing that they could be inflammatory and cause riots in the Middle East or retaliation against American soliders. A different FOIA exemption protects law enforcement information that “could reasonably be expected to endanger the life or physical safety of any individual.”
“The rationale here could be similar,” Hodes said. “Except in this case, the majority of American people don’t think we’ve done anything wrong.”
Jenna Greene can be contacted at email@example.com.