It may be possible to force President Obama's hand in releasing the postmortem photograph of Osama bin Laden, say lawyers with extensive knowledge of the Freedom of Information Act. President Obama's decision to withhold the photo Wednesday sparked widespread debate, with journalists and pressure groups threatening to file FOIAs to retrieve the image. The Associated Press has now gone ahead and done just that. It might work.
Yesterday Daniel Metcalf, the former chief of the Department of Justice's Office of Information and Privacy, told Gawker's John Cook that odds are better than even that a FOIA lawsuit could succeed. "If someone brought a FOIA complaint seeking the photo, and the government had improperly classified it, I think the government would lose," said Metcalf, who has experience with more than 500 FOIA and Privacy Act lawsuits. According to Metcalf, government agencies, not the White House, are compelled to release photographs under a FOIA request and the Navy SEALs worked under the CIA and the Department of Defense, which are subject to the FOIA unless the photograph was classified. Metcalf says the government doesn't have good rationale to classify a simple corpse photo because it doesn't easily fit into how federal law defines covert action.
Today, in reference to the Associated Press's FOIA request for the video of bin Laden's deep sea burial, a former Justice Department lawyer told The Guardian it was possible but would be a tough fight. "It's not inconceivable a court is going to say ... release them," said Scott Hodes, a former Freedom of Information and Privacy Act lawyer. "I think the government will fight because it's made its decision." According The National Law Journal's Jenna Greene [subscription required] it all comes down to who has the photo. National security law expert Mark Zaid tells her what Metcalf told John Cook: the White House is exempt from FOIA requests but the DoD and the CIA are not. If the White House maintains every photo, the case is closed and nobody has a shot at getting it. But if the photo is in the hands of either of these deparments, it's vulnerable to a FOIA suit. And Cook makes a credible argument that this could be the case:
Digital images are sticky. If the photos were delivered digitally from Pakistan or Afghanistan to Langley, Va. and Washington, D.C., there could be any number of government servers or devices that retained copies. It would take a coordinated—and possibly illegal—effort to destroy every digital trace of such images at the Department of Defense and CIA. If any such traces remain, they're FOIAble.
Photo by Reuters