Access to Public Information
Company Doe v. Public Citizen
Closed Contracts Expression
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The Center for Constitutional Rights (“CCR”) filed a Freedom of Information Act (“FOIA”) request to gain access to videos and photographs of a high-profile detainee imprisoned at Guantanamo Bay, Cuba. On appeal, the Second Circuit Court of Appeals affirmed the U.S. District Court’s decision and its findings that the photographs and videos are exempt from the FOIA. Consequently, the Court denied the CCR’s request to access the information.
The CCR, a non-profit organization, filed a FOIA request to gain access to photographs and videos taken of Mohammed al-Qahtani, a Guantanamo detainee. The videos show al-Qahtani in his cell, at debriefings, and during a forced cell extraction. The CCR sought the videos to assist them in legal claims that al-Qahtani had been tortured. The government declined to release the videos under FOIA, claiming that Exemption 1, a national security exemption, applied. The government argued that the videos would be used for propaganda abroad and would incite violence and retaliation against Americans. In response, the CCR contended that there was no secret to protect because al-Qahtani’s treatment has been widely reported.
The FOIA is a federal law that permits the full or partial dislosure of previously unreleased government information and documents. FOIA Exemption 1 permits the non-disclosure of records that are properly authorized by Executive order to be kept secret in the interest of “national defense or foreign policy.” 5 U.S.C. § 552(b)(1).
The issue that the Court of Appeals addressed was whether FOIA Exemption 1 applied in this specific situation, as the parties disputed whether the information sought fell under Exemption 1. The parties specifically disputed whether the “unauthorized disclosure of the [Responsive Records] reasonably could be expected to result in damage to national security,” defined as “harm to the national defense or foreign relations of the United States … taking into consideration such aspects of the information as the sensitivity, value, utility, and provenance of that information.”
The Court of Appeals upheld the government’s right to withhold the videos. The court noted that the government itself has described al-Qahtani’s treatment as torture and that he is a high-profile inmate. The court reasoned that the risk of propaganda and violence was higher than it might be in other cases, making the FOIA exemption more apt.
The CCR filed a Petition for Writ of Certiorari with the U.S. Supreme Court in December 2014. The U.S. Supreme Court denied CCR’s Petition in March 2015.
The Court of Appeals determined that because the requested information has heightened al-Qahtani’s prominence, domestically and internationally, there is an increased likelihood that the official release of images of al-Qahtani—even images that do not depict abuse or mistreatment—could be exploited by extremist groups as tools to recruit or to incite violence.
Subsequently, the Court concluded that there was a reasonable possibility that the government’s release of the images of al-Qahtani would be singularly susceptible to use by extremist groups to incite anti-American hostility. The Court opined that this hostility, in turn, could reasonably be expected to damage the national security of the United States. As such, the Court of Appeals found that the District Court properly classified the Responsive Records Exemption 1, and affirmed the lower court’s decision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Court made clear in its Opinion that the decision was directed only to the facts of this particular case, this case is problematic because it paves the way for more materials to be considered exempt under the FOIA. This case will likely be used in the future to further narrow access to information, and particularly so for materials related to national security.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
All federal district courts within the Second Circuit court of Appeals are required to follow the decision.
Likely persuasive outside of the jurisdiction.
Let us know if you notice errors or if the case analysis needs revision.