Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
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On Appeal Expands Expression
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This decision grew out of a habeas proceeding brought by Abu Dhiab, a Guantanamo detainee who has challenged the practice of forced cell extractions and forced feeding at Guantanamo. Included in the evidence are 28 videos of Dhiab being subjected to forced cell extraction or forced feeding. The videos were submitted to the court under seal as classified materials. A coalition of media organizations challenged the sealing, arguing that under the Constitution and the common law the public had a right to see the materials once they were submitted as part of the adjudicatory process. The District Court granted the Motion to Unseal the Videotape Evidence.
Hearst Corporation, Inc., ABC, Inc., Associated Press, Bloomberg L.P., CBS Broadcasting, Inc., The Contently Foundation, Dow Jones & Company, Inc., First Look Media, Inc., Guardian US, The McClatchy Company, National Public Radio, Inc., The New York Times Company, Reuters America LLC, Tribune Publishing Company, LLC, USA TODAY, and The Washington Post intervened in Dhiab’s case, and sought to unseal twenty-eight videotapes that depicted Dhiab’s forced cell extractions and forced feedings by the government.
To protest his indefinite incarceration at Guantanamo, Dhiab began a long-term hunger strike. In response, the Government nasogastrically fed Dhiab against his will, and videotaptaped his cell extractions and forced feedings. The government classified the videotapes, claiming that they “could reasonably be expected to cause serious damage to national security if disclosed.” The movants requested that the videotapes be unsealed under the First Amendment’s implicit right to access public information (as guarantee by free speech, freedom of the press, and the right to petition the government). In order to deny the right to access court proceedings and documents, the government must demonstrate a compelling reason.
A 2-part test is applied to determine whether proceedings and documents are subject to the public’s right to access. Under the first prong, the Court asks whether there is a history of access to the proceeding. Under the second prong, the Court considers whether public access “plays a significant positive role in the functioning of the particular process in question.” Even if both questions are answered in the affirmative, the right to access is a limited one, and records should only be released when it is demonstrated that there is an “overriding interest based on findings that disclosure is essential to preserve higher values.” Additionally, to keep judicial records under seal, the government has the burden of demonstrating what kind of information requires protection and why. In justifying why the information should remain sealed, the government must provide specific reasons tailored to the case at hand. Finally, the party seeking to keep information sealed must show a “substantial probability” of harm to an “overriding interest.”
The government provided five reasons to justify why the videotapes should not be released: (1) the videos could aid the development of counter-measures to forced cell extractions; (2) depictions of camp infrastructure in the videos could allow detainees or others to disrupt the camp; (3) detainees might respond to release of the videos by deliberately trying to behave in such a way that necessitates greater use of the forced-cell extractions; (4) the videos could “inflame Muslim sensitivities overseas” or be used as propaganda; and (5) release of the videotapes could subject Mr. Dhiab to “public curiosity,” which would be counter to the Geneva Conventions.
The case is now on appeal. Oral argument is scheduled for May 8, 2015. See U.S. Court of Appeals for the District of Columbia Circuit, Case No. 14-5299.
Despite the narrowly tailored justifications provided by the government, the District Court did not find that there was a “substantial probability” of harm to a compelling interest. The Court rejected the government’s claim that disclosure would allow detainees to defeat forced extractions, encourage acting out, prompt violence abroad, and violate Geneva Conventions on “public curiosity.” The judge found that the statements in the declaration were “unacceptably vague, speculative, lack specificity, and are just plain implausible.” The Court concluded that allowing the threat of violence abroad to suppress transparency in a U.S. court would be a type of “heckler’s veto” and she rejected the government’s attempt to frame the issue as involving the Geneva Conventions.
The Court granted the motion to unseal the videotapes, with specific restrictions.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
As mentioned in the Court’s Opinion, a court has never ordered disclosure of classified information over the Government’s opposition in relation to a case about a Guantanamo Bay detainee. The Court nevertheless noted, “—to be clear—that does not mean that in a given factual situation no court has the discretion to do so if warranted. Quite the contrary. Our Court of Appeals has stated that it is the judiciary’s responsibility, when ruling on an issue as overwhelmingly important as diminution of our precious First Amendment rights, to ensure that classification of the items in question, i.e., the FCE videos, is proper.”
Thus, this Opinion is monumental because this is the first time a Court has granted access to classified information over the government’s obejeciton in a Guanatamo Bay detainee case. In addition to rejecting the government’s justifications as valid, the Court recognized that the public disclosure of this information would aid in making Guantanamo Bay proceedings transparent to the public.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“The public’s right of access, once established, is a qualified one. Limits on the public’s right to access judicial records are appropriate only upon the demonstration of an ‘overriding interest based on findings that closure is essential to preserve higher values.’ The [overriding] interest [must] be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”
Established a 2-part test to determine when the public has a right to access a court proceeding and documents: (1) “whether there is a history of access to the proceeding,” and (2) whether public access “plays a significant positive role in the functioning of the particular process in question.”
Clarifying that “[i]t is the court, not the Government, that has discretion to seal a judicial record, which the public ordinarily has the right to inspect and copy.”
To maintain records under seal, the Government must provide an “explanation tailored to the specific information at issue” rather than “spare, generic assertions of the need to protect information.”
Established a two-part test to govern the sealing of judicial records in detainee cases: “1) a specific, tailored rationale for protecting a general category of information, and 2) a precise designation of each particular item of information that purportedly falls within the category described.”
One of the parties in this case made reference to the Geneva Conventions, but the Court rejected the notion that the case implicated the Geneva Conventions.
Case significance refers to how influential the case is and how its significance changes over time.
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