Case Detail

FOIA Project Annotation: A federal court in New York has ruled, in a case brought by the Associated Press, that photographs of detainees held at Guantanamo can be withheld under Exemption 1 (national security). However, Judge Jed Rakoff also indicated that Exemption 6 (invasion of privacy) did not provide a basis for withholding weight and height information. The Defense Department submitted an affidavit from Paul Rester, Director of the Joint Intelligence Group, JTF-Guantanamo, who testified that "the detainees will not provide useful intelligence if they fear retaliation against themselves or their families: Cooperating subjects simply will not provide information if they believe that, in so doing, they will jeopardize their safety or that of their families and loved ones." Based on this testimony, Rakoff noted that "what was arguably absent from DOD's original submission to this Court on this issue was the 'reasonably specific detail' supporting Rester's assertions. . . Based on [its] review and the particularized detail offered therein, the Court is satisfied that. . . official public disclosure of such photographs would both increase the risk of retaliation against the detainees and their families and exacerbate the detainees' fears of reprisal, thus reducing the likelihood that detainees would cooperate in intelligence-gathering efforts and there remains a strong national security interest in withholding these photographs even though there has been limited unofficial disclosure of detainee photographs." Turning to the weight and height information, Rakoff pointed out that "in prior cases involving height and weight information, courts have frequently found that the privacy interest in the non-disclosure of this information is quite weak. In the instant case, DOD has not made any particularized showing that disclosure of this information is likely to led to retaliation, harassment, or embarrassment. Indeed the immediate impetus for AP's request for this information â€" i.e., investigation of detainee's hunger strikes â€" suggests that at least some detainees would welcome having this information disclosed." He added that "there is a clear public interest in obtaining this information so as to assess, not only DOD's conduct with respect to the hunger strikes at Guantanamo, but more generally DOD's care and (literally) feeding of the detainees. Obviously, weight information only takes on significance when paired with corresponding information on height, hence the need for both. . . The information requested here plainly addresses [the operations and activities of government], and more than outweighs the modest privacy interest, if any, here proffered by DOD."
Issues: Exemption 1 - Harm to national security, Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2006-03-13	1	COMPLAINT against United States Department of Defense. (Filing Fee $ 250.00, Receipt Number 572498)Document filed by Associated Press.(laq, ) (Entered: 03/13/2006)
2006-03-13		SUMMONS ISSUED as to United States Department of Defense. (laq, ) (Entered: 03/13/2006)
2006-03-13	2	RULE 7.1 DISCLOSURE STATEMENT. Document filed by Associated Press.(laq, ) (Entered: 03/13/2006)
2006-03-13		Magistrate Judge Frank Maas is so designated. (laq, ) (Entered: 03/13/2006)
2006-03-13		Case Designated ECF. (jeh, ) (Entered: 03/14/2006)
2006-03-14	3	NOTICE OF CASE REASSIGNMENT to Judge Jed S. Rakoff. Judge Denise L. Cote no longer assigned to the case. (jeh, ) Additional attachment(s) added on 3/14/2006 (jeh, ). (Entered: 03/14/2006)
2006-03-14		Minute Entry for proceedings held before Judge Jed S. Rakoff : Telephone Conference held on 3/14/2006. (db, ) (Entered: 03/15/2006)
2006-03-15	4	AFFIDAVIT OF SERVICE of Summons and Complaint. United States Department of Defense served on 3/13/2006, answer due 5/12/2006. Service was accepted by Civil Division Service Agent. Document filed by Associated Press. (Schulz, David) (Entered: 03/15/2006)
2006-04-03		Minute Entry for proceedings held before Judge Jed S. Rakoff : Pretrial Conference held on 4/3/2006. (sac, ) (Entered: 04/04/2006)
2006-04-20	5	TRANSCRIPT of proceedings held on 4/3/2006 before Judge Jed S. Rakoff. (jar, ) (Entered: 04/20/2006)
2006-04-26	6	ANSWER to Complaint. Document filed by United States Department of Defense.(Normand, Sarah) (Entered: 04/26/2006)
2006-05-11	7	MOTION for Summary Judgment. Document filed by United States Department of Defense. Responses due by 5/22/2006 Return Date set for 5/31/2006 10:00 AM. (Normand, Sarah) (Entered: 05/11/2006)
2006-05-11	8	DECLARATION of Sarah S. Normand in Support re: 7 MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Attachments: # 1 # 2 )(Normand, Sarah) (Entered: 05/11/2006)
2006-05-11	9	DECLARATION of Karen L. Hecker in Support re: 7 MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Attachments: # 1 # 2 # 3 # 4 )(Normand, Sarah) (Entered: 05/11/2006)
2006-05-11	10	DECLARATION of Paul B. Rester in Support re: 7 MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 05/11/2006)
2006-05-11	11	DECLARATION of Richard B. Jackson in Support re: 7 MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Attachments: # 1 # 2 # 3 )(Normand, Sarah) (Entered: 05/11/2006)
2006-05-11	12	MEMORANDUM OF LAW in Support re: 7 MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 05/11/2006)
2006-05-22	13	FILING ERROR - DEFICIENT DOCKET ENTRY - MEMORANDUM OF LAW in Opposition re: 7 MOTION for Summary Judgment.. Document filed by Associated Press. (Schulz, David) Modified on 5/24/2006 (gf, ). (Entered: 05/22/2006)
2006-05-22	14	DECLARATION of Andrew Selsky in Opposition re: 7 MOTION for Summary Judgment.. Document filed by Associated Press. (Attachments: # 1 )(Schulz, David) (Entered: 05/22/2006)
2006-05-23	15	MEMORANDUM OF LAW in Opposition re: 7 MOTION for Summary Judgment.. Document filed by Associated Press. (Schulz, David) (Entered: 05/23/2006)
2006-05-31		Minute Entry for proceedings held before Judge Jed S. Rakoff : Status Conference held on 5/31/2006. The Court scheduled oral argument for June 9th at 6:00 p.m. (jco, ) (Entered: 06/05/2006)
2006-06-05	16	REPLY MEMORANDUM OF LAW in Support re: 7 MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 06/05/2006)
2006-06-05	17	REPLY AFFIDAVIT of Deputy Secretary of Defense Gordon R. England in Support re: 7 MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 06/05/2006)
2006-06-05	18	REPLY AFFIDAVIT of Karen L. Hecker in Support re: 7 MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 06/05/2006)
2006-06-05	19	REPLY AFFIDAVIT of Richard B. Jackson in Support re: 7 MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 06/05/2006)
2006-06-05	20	REPLY AFFIDAVIT of Paul B. Rester in Support re: 7 MOTION for Summary Judgment.. Document filed by United States Department of Defense. (Normand, Sarah) (Entered: 06/05/2006)
2006-06-08	21	REPLY MEMORANDUM OF LAW in Opposition re: 7 MOTION for Summary Judgment.. Document filed by Associated Press. (Schulz, David) (Entered: 06/08/2006)
2006-07-06	22	TRANSCRIPT of proceedings held on 6/9/06 before Judge Jed S. Rakoff. (jbe, ) (Entered: 07/06/2006)
2006-07-10	23	RESPONSE in Support re: 7 MOTION for Summary Judgment. Supplemental Submission in Further Support of Motion for Partial Summary Judgment . Document filed by United States Department of Defense. (Attachments: # 1 # 2 # 3 # 4 # 5 )(Normand, Sarah) (Entered: 07/10/2006)
2006-07-17	24	RESPONSE in Opposition re: 7 MOTION for Summary Judgment. Response to Supplemental Submission . Document filed by Associated Press. (Schulz, David) (Entered: 07/17/2006)
2006-08-17		Minute Entry for proceedings held before Judge Jed S. Rakoff : Telephone Conference held on 8/17/2006. (cd, ) (Entered: 08/21/2006)
2006-11-21	25	TRANSCRIPT of proceedings held on 10/4/2006 before Judge Jed S. Rakoff. (jar, ) (Entered: 11/21/2006)
2006-11-21		Minute Entry for proceedings held before Judge Jed S. Rakoff : Interim Pretrial Conference held on 11/21/2006. (dle, ) (Entered: 11/30/2006)
2006-11-28	26	MEMORANDUM AND OPINION # 93984.... Accordingly, the Court grants DOD's motion to with- hold the photographs of past and present detainees purs to Exemption 1.....; In sum, DOD's motion is granted as to the detainee photographs and denied as to the detainee height and wright information. DOD is hereby directed to furnish the latter information to AP by no later than December 11, 2006. (Signed by Judge Jed S. Rakoff on 11/27/06) (djc, ) Modified on 11/29/2006 (rw, ). (Entered: 11/28/2006)
2006-12-04	27	STIPULATION AND ORDER: that portion of the Order directing DOD to provide the Height and Weight Information to AP is stayed until 1/26/07, on the condition that DOD begin processing the Height and Weight Information notwithstanding entry of the stay. In the event that DOD takes an appeal of the Order, it will take no action in the Court of Appeals to delay the disposition of its pending appeal in AP v. DOD, 05cv5468(JSR). (Signed by Judge Jed S. Rakoff on 12/3/06) (db, ) (Entered: 12/05/2006)
2007-01-16	28	ORDER: The defendant's motion for summary judgment, Court document number 7, was granted in part and denied in part by Court document number 26. The Clerk of the Court is hereby directed to terminate Court document number 7. (Signed by Judge Jed S. Rakoff on 1/16/2007) (lb) (Entered: 01/17/2007)
2007-02-02	29	STIPULATION AND ORDER by and between undersigned counsel for the parties, that 1. DOD shall produce the Height and Weight Information to AP by no later than March 16, 2007. 2. The Stay shall continue in effect throught March 16, 2007. SO ORDERED. (Signed by Judge Jed S. Rakoff on 2/1/2007) (jmi) (Entered: 02/05/2007)
2007-02-07	30	NOTICE 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)
2007-04-25	31	STIPULATION AND ORDER OF DISMISSAL the United States shall pay to the "Associated Press" the sum of $20,000.00 in attorney's fees and litigation costs, pursuant to 5 U.S.C. 552(a)(4)(E), which sum AP and it counsel, Levine Sullivan Koch & Schulz, LLP, agree to accept as full payment of any attorney's fees and costs AP has incurred or will incur in this action for services performed up to the date of this stipulation and order. (Signed by Judge Jed S. Rakoff on 4/23/2007) (jmi) (Entered: 04/26/2007)
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