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Case TitleAssociated Press v. United States Department of Defense
DistrictSouthern District of New York
CityFoley Square
Case Number1:2005cv05468
Date Filed2005-06-09
Date Closed2009-04-02
JudgeJudge Jed S. Rakoff
PlaintiffAssociated Press
DefendantUnited States Department of Defense
Documents
Docket
Complaint
Opinion/Order [36]
FOIA Project Annotation: A federal court in New York has ruled that the Defense Department must disclose most of its records concerning detainee abuse allegations at Guantanamo to the Associated Press. Judge Jed Rakoff rejected most of the agency's redactions under Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records) of personally identifying information. Rakoff initially pointed out that the Supreme Court, in Samson v. California, 126 S.Ct 2193 (2006), had recently indicated that prisoners had little expectation of privacy. He noted that "although revelation of abuse by one's captors may cause some limited embarrassment, most people in such a situation â€" especially individuals detained incommunicado without many procedural safeguards â€" would want their plights, and identities, publicized." He found that the AP had made a strong showing of public interest and indicated that "by redacting the identities of the abused detainees, DOD has seriously interfered with the ability of the public to engage in the independent fact-finding necessary to properly evaluate the allegations of abuse and DOD's response to it." He added that it was necessary to have more information about the nationality or religion of detainees in order to provide context to allegations involving detainee-against-detainee abuse. Rakoff found that action memoranda concerning whether a detainee should be transferred to a host country were not protected by Exemption 5 (privileges) because they were neither predecisional nor deliberative. He explained that "the agency's analysis is final, and its decision has been made. There is, therefore, no risk that the public will be misled by premature disclosure of inaccurate information: what the public will learn is that DOD has determined either not to transfer a detainee or to transfer him if adequate assurances are obtained." Rakoff also rejected the agency's attempt to withhold correspondence between detainees and their families which had been provided by the International Red Cross under 10 U.S.C.§ 130c, which provides an exemption for information provided in confidence by a foreign government or international organization. Rakoff found that the exemption did not apply, noting that "the Red Cross delivered these documents directly to the detainees (after allowing DOD a review to ensure that classified or other inappropriate information is not transmitted) and it was the detaineesâ€"not the Red Cross â€" who provided them to the Government (and thereby made them subject to a FOIA request). Furthermore, the ICRC is only vicariously invoking the detainees' interests, and not its own organizational interest in confidentially communicating with the U.S. Government (which would be the sort of interest the statute protects)." Finally, Rakoff found that the privacy of a detainee's wife provided a legitimate basis for withholding the content of one letter under Exemption 6, while another letter did not qualify for such protection.
Issues: Exemption 6 - Invasion of privacy, Exemption 7(C) - Invasion of privacy concerning law enforcement records
Opinion/Order [42]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2005-06-091COMPLAINT against United States Department of Defense. (Filing Fee $ 250.00, Receipt Number 546168)Document filed by Associated Press.(jmi, ) Additional attachment(s) added on 6/13/2005 (jmi, ). (Entered: 06/13/2005)
2005-06-092RULE 7.1 DISCLOSURE STATEMENT. Document filed by Associated Press.(jmi, ) Additional attachment(s) added on 6/13/2005 (jmi, ). (Entered: 06/13/2005)
2005-06-09CASE REFERRED TO Judge Jed S. Rakoff as possibly Similar to 05-cv-3941. (jmi, ) (Entered: 06/13/2005)
2005-06-09Case Designated ECF. (jmi, ) (Entered: 06/13/2005)
2005-06-09SUMMONS ISSUED as to United States Department of Defense, U.S. Attorney and U.S. Attorney General. (jmi, ) (Entered: 06/13/2005)
2005-06-143SUMMONS RETURNED EXECUTED. Document filed by Associated Press. United States Department of Defense served on 6/9/2005, answer due 8/8/2005. Service was accepted by intake clerk, USAO/SDNY. (Schulz, David) (Entered: 06/14/2005)
2005-06-17Minute Entry for proceedings held before Judge Jed S. Rakoff : Telephone Conference held on 6/17/2005. (kw, ) (Entered: 06/22/2005)
2005-06-214NOTICE OF CASE ASSIGNMENT to Judge Jed S. Rakoff. Judge Unassigned no longer assigned to the case. (laq, ) (Entered: 06/21/2005)
2005-06-21Magistrate Judge Gabriel W. Gorenstein is so designated. (laq, ) (Entered: 06/21/2005)
2005-06-21Mailed notice to the attorney(s) of record. (laq, ) (Entered: 06/21/2005)
2005-06-21CASE ACCEPTED AS RELATED TO 1:05-cv-3941. (laq, ) (Entered: 06/21/2005)
2005-07-065STIPULATION AND ORDER: regarding the discovery issues between the parties. Defendant's time to respond to the complaint is extended to 8/31/05. (Signed by Judge Jed S. Rakoff on 7/1/05) (kw, ) (Entered: 07/07/2005)
2005-07-06Set Answer Due Date purs. to 5 Stipulation and Order as to United States Department of Defense answer due on 8/31/2005. (kw, ) (Entered: 07/07/2005)
2005-08-02Minute Entry for proceedings held before Judge Jed S. Rakoff : Telephone Conference held on 8/2/2005. (jco, ) (Entered: 08/10/2005)
2005-08-306ANSWER to Complaint. Document filed by United States Department of Defense.(Wolstein, Elizabeth) (Entered: 08/30/2005)
2005-08-307CERTIFICATE OF SERVICE of Answer served on David A. Schulz, Esq. on 8/30/05. Service was made by Mail. Document filed by United States Department of Defense. (Wolstein, Elizabeth) (Entered: 08/30/2005)
2006-01-268ORDER that the portion of the Court's Opinion of 1/23/06 in 05-3941 that requies the deft to furnish plntf with unredacted transcripts and related documents is hereby stayed until 2/23/06, as further set forth in this document. (Signed by Judge Jed S. Rakoff on 1/25/06) (cd, ) (Entered: 01/26/2006)
2006-02-139NOTICE OF APPEARANCE by Sarah Sheive Normand on behalf of United States Department of Defense (Normand, Sarah) (Entered: 02/13/2006)
2006-02-2210FIRST MEMORANDUM OF LAW in Support Motion for Summary Judgement . Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 02/23/2006)
2006-02-2211FILING ERROR - WRONG PDF FILE ASSOCIATED WITH DOCKET ENTRY - DECLARATION of Sarah S. Normand in Support (MOTION FOR SUMMARY JUDGMENT). Document filed by United States Department of Defense. (Normand, Sarah) Modified on 2/23/2006 (kg. (Entered: 02/23/2006)
2006-02-2312FIRST MOTION for Summary Judgment. Document filed by United States Department of Defense. Responses due by 3/3/2006 Return Date set for 3/9/2006 05:00 PM. (Normand, Sarah) (Entered: 02/23/2006)
2006-02-2313DECLARATION of Karen L. Hecker in Support re: 10 Memorandum of Law in Support. Document filed by United States Department of Defense. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 )(Normand, Sarah) (Entered: 02/23/2006)
2006-02-23***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - PDF ERROR. Note to Attorney Sarah Normand to RE-FILE Document 11 Declaration in Support. (kg) (Entered: 02/23/2006)
2006-02-2414DECLARATION of Sarah S. Normand in Support re: 12 FIRST MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Normand, Sarah) (Entered: 02/24/2006)
2006-03-0115FIRST MEMORANDUM OF LAW in Support re: 12 FIRST MOTION for Summary Judgment. (Corrected) . Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 03/01/2006)
2006-03-0316CROSS MOTION for Summary Judgment. Document filed by Associated Press. Responses due by 3/9/2006 (Schulz, David) (Entered: 03/03/2006)
2006-03-0317MEMORANDUM OF LAW in Support re: 16 CROSS MOTION for Summary Judgment. and in Opposition to Defendant's Motion for Summary Judgment . Document filed by Associated Press. (Schulz, David) (Entered: 03/03/2006)
2006-03-0318DECLARATION of Adam J. Rappaport in Support re: 16 CROSS MOTION for Summary Judgment.. Document filed by Associated Press. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K)(Schulz, David) (Entered: 03/03/2006)
2006-03-0319RULE 56.1 STATEMENT. Document filed by Associated Press. (Schulz, David) (Entered: 03/03/2006)
2006-03-1320FIRST REPLY MEMORANDUM OF LAW in Support re: 12 FIRST MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 03/13/2006)
2006-03-1321RESPONSE in Opposition re: 16 CROSS MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 03/13/2006)
2006-03-1322REPLY AFFIDAVIT of Karen L Hecker in Support re: 12 FIRST MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit exhibit b# 3 Exhibit exhibit C# 4 Exhibit exhibit d# 5 Exhibit exhibit e# 6 Exhibit exhibit f# 7 Exhibit exhibit g# 8 Exhibit exhibit h# 9 Exhibit exhibit i)(Normand, Sarah) (Entered: 03/13/2006)
2006-03-1323REPLY AFFIDAVIT of Sarah Normand in Support re: 12 FIRST MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Attachments: # 1 Exhibit exhibit a# 2 Exhibit exhibit b# 3 Exhibit exhibit c)(Normand, Sarah) (Entered: 03/13/2006)
2006-03-14Minute Entry for proceedings held before Judge Jed S. Rakoff : Telephone Conference held on 3/14/2006. (db, ) Modified on 3/15/2006 (db, ). (Entered: 03/15/2006)
2006-03-2024REPLY MEMORANDUM OF LAW in Support re: 16 CROSS MOTION for Summary Judgment.. Document filed by Associated Press. (Schulz, David) (Entered: 03/20/2006)
2006-04-12Minute Entry for proceedings held before Judge Jed S. Rakoff : Oral Argument held on 4/12/2006 re: 16 CROSS MOTION for Summary Judgment. filed by Associated Press,. (dle, ) (Entered: 04/14/2006)
2006-05-0925TRANSCRIPT of proceedings held on 4/12/2006 before Judge Jed S. Rakoff. Court Reporter: Sounthern District Court Reporters. (jmi, ) (Entered: 05/09/2006)
2006-05-2326TRANSCRIPT of proceedings held on 04/12/06 before Judge Jed S. Rakoff. (es, ) (Entered: 05/23/2006)
2006-08-2227SECOND MOTION for Summary Judgment. Document filed by United States Department of Defense. Responses due by 9/12/2006 Return Date set for 9/26/2006 11:30 AM. (Normand, Sarah) (Entered: 08/22/2006)
2006-08-2228DECLARATION of Charles D. Stimson in Support re: 27 SECOND MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Attachments: # 1 # 2 )(Normand, Sarah) (Entered: 08/22/2006)
2006-08-2229DECLARATION of Rear Admiral Harry B. Harris, Jr. in Support re: 27 SECOND MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Attachments: # 1 # 2 # 3 # 4 )(Normand, Sarah) (Entered: 08/22/2006)
2006-08-2230DECLARATION of Colonel David A. Smith in Support re: 27 SECOND MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Attachments: # 1 )(Normand, Sarah) (Entered: 08/22/2006)
2006-08-2231DECLARATION of Karen L. Hecker in Support re: 27 SECOND MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Attachments: # 1 # 2 # 3 # 4 # 5 )(Normand, Sarah) (Entered: 08/22/2006)
2006-08-2232FILING ERROR - WRONG PDF FILE ASSOCIATED WITH DOCKET ENTRY - MEMORANDUM OF LAW in Support re: 27 SECOND MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Normand, Sarah) Modified on 8/29/2006 (kkc, ). (Entered: 08/22/2006)
2006-08-2533SECOND MEMORANDUM OF LAW in Support re: 27 SECOND MOTION for Summary Judgment. Corrected Memorandum of Law in Support of Defendant's Partial Motion For Summary Judgement with REspect to Withholdings In Sample Pre-arb Transfer/Release Documents . Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 08/25/2006)
2006-09-11Minute Entry for proceedings held before Judge Jed S. Rakoff : Telephone Conference held on 9/11/2006. (cd, ) (Entered: 09/15/2006)
2006-09-1234MEMORANDUM OF LAW in Opposition re: 27 SECOND MOTION for Summary Judgment.. Document filed by Associated Press. (Schulz, David) (Entered: 09/12/2006)
2006-09-1235AFFIDAVIT of David A. Schulz in Opposition re: 27 SECOND MOTION for Summary Judgment.. Document filed by Associated Press. (Schulz, David) (Entered: 09/12/2006)
2006-09-2036OPINION AND ORDER:# 93707 This one instance aside, AP's motion for summary judgment is hereby granted, and DOD's counter-motion denied, in all other respects. Accordingly, all redactions from all materials here in issue, save the one involving the wife of detainee b(2), must be removed, and the unredacted documents must be furnished to AP within one week of the date hereof. (Signed by Judge Jed S. Rakoff on 9/20/06) (js, ) Modified on 9/21/2006 (pr, ). (Entered: 09/21/2006)
2006-09-21Minute Entry for proceedings held before Judge Jed S. Rakoff : Telephone Conference held on 9/21/2006. (jar, ) (Entered: 09/26/2006)
2006-09-2637REPLY MEMORANDUM OF LAW in Support re: 27 SECOND MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 09/26/2006)
2006-09-2638REPLY AFFIDAVIT of Karen L. Hecker in Support re: 27 SECOND MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Attachments: # 1 )(Normand, Sarah) (Entered: 09/26/2006)
2006-11-2039NOTICE OF APPEAL from 36 Memorandum & Opinion. Document filed by United States Department of Defense. (nd, ) (Entered: 11/21/2006)
2006-11-21Transmission of Notice of Appeal to the District Judge re: 39 Notice of Appeal. (nd, ) (Entered: 11/21/2006)
2006-11-21Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 39 Notice of Appeal. (nd, ) (Entered: 11/21/2006)
2006-11-21Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 14 Declaration in Support of Motion filed by United States Department of Defense,, 22 Reply Affidavit in Support of Motion, filed by United States Department of Defense,, 23 Reply Affidavit in Support of Motion filed by United States Department of Defense,, 7 Certificate of Service Other filed by United States Department of Defense,, 1 Complaint filed by Associated Press,, 24 Reply Memorandum of Law in Support of Motion filed by Associated Press,, 32 Memorandum of Law in Support of Motion filed by United States Department of Defense,, 27 SECOND MOTION for Summary Judgment. filed by United States Department of Defense,, 12 FIRST MOTION for Summary Judgment. filed by United States Department of Defense,, 31 Declaration in Support of Motion filed by United States Department of Defense,, 6 Answer to Complaint filed by United States Department of Defense,, 2 Rule 7.1 Corporate Disclosure Statement filed by Associated Press,, 35 Affidavit in Opposition to Motion filed by Associated Press,, 34 Memorandum of Law in Opposition to Motion filed by Associated Press,, 16 CROSS MOTION for Summary Judgment. filed by Associated Press,, 5 Stipulation and Order, 4 Notice of Case Assignment/Reassignment, 17 Memorandum of Law in Support of Motion filed by Associated Press,, 37 Reply Memorandum of Law in Support of Motion filed by United States Department of Defense,, 18 Declaration in Support of Motion, filed by Associated Press,, 11 Declaration in Support filed by United States Department of Defense,, 8 Order,, 19 Rule 56.1 Statement filed by Associated Press,, 39 Notice of Appeal filed by United States Department of Defense,, 30 Declaration in Support of Motion filed by United States Department of Defense,, 10 Memorandum of Law in Support filed by United States Department of Defense,, 15 Memorandum of Law in Support of Motion filed by United States Department of Defense,, 9 Notice of Appearance filed by United States Department of Defense,, 28 Declaration in Support of Motion filed by United States Department of Defense,, 29 Declaration in Support of Motion filed by United States Department of Defense,, 20 Reply Memorandum of Law in Support of Motion filed by United States Department of Defense,, 13 Declaration in Support filed by United States Department of Defense,, 38 Reply Affidavit in Support of Motion filed by United States Department of Defense,, 33 Memorandum of Law in Support of Motion, filed by United States Department of Defense,, 36 Memorandum & Opinion,, 21 Response in Opposition to Motion filed by United States Department of Defense,, 3 Summons Returned Executed as to USA filed by Associated Press, were transmitted to the U.S. Court of Appeals. (nd, ) (Entered: 11/21/2006)
2006-12-0540STIPULATION AND ORDER by and between undersigned counsel for the parties, that the portion of the Order directing DOD to provide the Covered Infromation to AP is stayed pending resolution of DOD's appeal, on the conditions that (a) DOD will seek to delay its appeal in this case as part of the Government's consideration of appeal in AP v. DOD, 06 Civ. 1939(JSR)(AP III), and (b)DOD will seek an expedited briefing schedule in the Court of Appeals in connection with its appeal of the Order, such that DOD's opening brief would be due on January 10, 2007. (Signed by Judge Jed S. Rakoff on 12/5/2006) (jmi, ) (Entered: 12/06/2006)
2007-02-0741NOTICE OF CHANGE OF ADDRESS by David A.. Schulz on behalf of Associated Press. New Address: Levine Sullivan Koch & Schulz, L.L.P., 321 West 44th Street, Suite 510, New York, New York, USA 10036, 212-850-6100. (Schulz, David) (Entered: 02/07/2007)
2007-08-1042MEMORANDUM AND ORDER: Accordingly, the Court hereby grants DOD's motion for partial summary judgment and directs that the redactions here approved be applied pro tanto to such other similar pre-ARB documents as are subsequently supplied. Counsel are directed to jointly call chambers, by no later than August 16, 2007 at 5 p.m., to schedule further proceedings herein. So Ordered. (Signed by Judge Jed S. Rakoff on 8/9/07) (js) (Entered: 08/13/2007)
2007-08-2243ENDORSED LETTER addressed to Judge Jed S. Rakoff from David A. Schulz dated 8/20/07 re: Because AP currently would be obligated to file its fee requests in both AP I and AP II within 14 days after entry of judgment in this action, the parties propose to prepare a stipulated order that will permit any fee requests to be filed within thirty (30) days after final disposition of the pending appeal. ENDORSEMENT: The stipulation is approved, and no further document is required unless the parties so desire. Based on this letter (which the Clerk is directed to docket), the Clerk is directed to enter final judgment closing this case on the basis of the Courts prior rulings, without prejudice to the Courts future consideration of attorneys fees. (Signed by Judge Jed S. Rakoff on 8/21/07) (tro) (Entered: 08/23/2007)
2007-08-22Transmission to Judgments and Orders Clerk. Transmitted re: 43 Endorsed Letter, to the Judgments and Orders Clerk. (tro) (Entered: 08/23/2007)
2007-08-2344CLERK'S JUDGMENT in favor of Associated Press against United States Department of Defense. For the reasons stated in the Court's Memo Endorsed Order, dtd 8/21/2007, and the Court's Order, dtd 8/9/2007, the case is closed on the basis of the Court's prior rulings, w/o prejudice to the Court's future consideration of attys fees. (Signed by J. Michael McMahon, Clerk on 8/23/07) (jf) Modified on 8/24/2007 (lan). (Entered: 08/23/2007)
2009-02-27Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 2/27/2009. (mro) (Entered: 03/03/2009)
2009-03-0445MANDATE of USCA (Certified Copy) as to 39 Notice of Appeal filed by United States Department of Defense USCA Case Number 06-5352-cv. Ordered, Adjudged and Decreed that the judgment of the District Court is REVERSED in accordance with the opinion of this court. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 2/27/2009. (nd) (Entered: 03/04/2009)
2009-03-04Transmission of USCA Mandate/Order to the District Judge re: 45 USCA Mandate,. (nd) (Entered: 03/04/2009)
2009-03-06Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 3/6/2009. (mro) (Entered: 03/09/2009)
2009-04-0246STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: (1) The United States shall pay to the "Associated Press" the sum of $27,000.00 in attorneys' fees and litigation costs, pursuant to 5 USC § 552(a)(4}(E), which sum AP and its counsel, Levine Sullivan Koch & Schulz, LLP, agree to accept as full payment of any attorneys' fees and costs AP has incurred or will incur in this action for services performed up to the date of this Stipulation and Order. (2) Nothing in this Stipulation and Order shall constitute an admission on the part of DOD and/or the United States that DOD's initial decision not to release the Identifying Information lacked a reasonable basis. (3) This action is hereby dismissed with prejudice; provided, however. that the Court shall retain jurisdiction over any issues that may arise relating to this Stipulation and Order. (4) The parties understand and agree that this Stipulation and Order contains the entire agreement between them, and that no statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect. (Signed by Judge Jed S. Rakoff on 4/1/09) (db) Modified on 4/17/2009 (db). (Entered: 04/02/2009)
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