Gun Owners of Am. v. Fed. Bureau of Investigation

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GUN OWNERS OF AMERICA, INC., et al., Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

Civil Action No. 22-3379 (JEB)

United States District Court, District of Columbia

January 18, 2024

MEMORANDUM OPINION

JAMES E. BOASBERG Chief Judge.

Plaintiffs Gun Owners of America and Gun Owners Foundation hold themselves out as non-profit organizations dedicated to educating the public on and conducting activities in defense of the Second Amendment and the right to keep and bear arms. Through a Freedom of Information Act request, they sought among other things, surveillance video taken by the Federal Bureau of Investigation during the civil unrest in Kenosha Wisconsin, in August 2020. When the Bureau withheld the video responsive to their request, Plaintiffs brought this suit. The FBI now moves for summary judgment, arguing that the non-public portion of the video is exempt from disclosure pursuant to Exemption 7(E) of FOIA. As the Court agrees, it will grant the Motion.

I. Background

Because Plaintiffs filed no opposition to the instant Motion for Summary Judgment, the Court accepts as true all of Defendant's supported factual assertions. See Fed.R.Civ.P. 56(e)(2); Winston & Strawn, LLP v. McLean, 843 F.3d 503, 509 (D.C. Cir. 2016).

On November 29, 2021, Plaintiffs submitted a three-part FOIA request to the FBI, seeking video recordings it took: (a) during the Kenosha, Wisconsin, riots in August 2020, (b) at or near the location of the 2020 Virginia Citizens Defense League Lobby Day, and (c) during the January 6, 2021, events at the United States Capitol. See ECF No. 13-2 (Declaration of Michael Seidel), Exh. A (Plaintiffs' FOIA Request).

On December 9, 2021, the FBI denied part (a) of Plaintiffs' request on the ground that the records were exempt under 5 U.S.C. § 552(b)(7)(A). See Seidel Decl., Exh. B (Defendant's Letter Denying Plaintiffs' Request Dated December 9, 2021). Plaintiffs appealed this decision to the Department of Justice, Office of Informational Policy, which thereafter directed the FBI to process the requested records. See id., Exh. E (Letter Remanding Plaintiffs' Request). As Defendant did not produce the requested material, Plaintiffs filed the present suit on November 3, 2022. See ECF No. 1 (Compl.). The Bureau then informed Plaintiffs that there were over 32 hours of aerial-surveillance video responsive to part (a) of the request. See ECF No. 12 (Joint Status Report), ¶ 3. The FBI asserted, however, that except for an 83-second clip of the video released in court at the criminal trial of Kyle Rittenhouse, which the FBI agreed to release, the responsive material identified was exempt from disclosure, this time, pursuant to 5 U.S.C. § 552(b)(7)(E) and other potential exemptions. See Seidel Decl., Exh. L (Defendant's Letter Denying Plaintiffs' Request Dated May 4, 2023); Joint Status Report, ¶ 4. The FBI now moves for summary judgment, and Plaintiffs have filed no opposition.

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). In the event of conflicting evidence on a material issue, the court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). When the non-movant fails to file an opposition, the court may not treat the motion as conceded. See Winston & Strawn, 843 F.3d at 506. Rather, “a district court must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.” Id. (quoting Grimes v. Dist. of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015)). In doing so, the court may, however, accept the moving party's uncontested assertions of fact as true. See Fed.R.Civ.P. 56(e)(2).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Defenders of Wildlife v. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears the ultimate burden of proof. See Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). The court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. Analysis

Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B); Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).

“Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure' . . . .” Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).

The parties have agreed that, at this stage, the only applicable FOIA exemption the Court needs to consider is 7(E). See Joint Status Report, ¶ 7. To that exemption the Court now turns, following which it addresses foreseeable harm and segregability.

A. Exemption 7(E)

Exemption 7 authorizes the Government to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information” meets one of six requirements. See 5 U.S.C. § 552(b)(7); see also Keys v. Dep't of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987) (“[Exemption 7] exempts such documents from disclosure only to the extent that production of the information might be expected to produce one of six specified harms.”). The fifth subparagraph - 7(E) - permits withholding if production “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). In order to properly invoke Exemption 7(E), then, the agency must satisfy two requirements: it must show first that the record was compiled for lawenforcement purposes and second that production would disclose either techniques and procedures for law-enforcement investigations or guidelines for law-enforcement investigations that would risk circumvention of the law. The Court will look at each requirement in turn.

1. Law-Enforcement Purposes

There is little doubt as to the first. A record is compiled for law-enforcement purposes if it “was created or acquired in the course of an investigation related to the enforcement of federal laws,” and “the nexus between the investigation and one of the agency's law enforcement duties is based on information sufficient to support at least a colorable claim of its rationality.” Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996) (cleaned up).

The FBI has satisfied that burden. To start, because the Bureau is a criminal lawenforcement agency, courts apply “a more deferential attitude” towards its claims of law- enforcement purposes in light of the “generally accurate assumption that federal agencies act within their legislated purposes.” Pratt v. Webster, 673 F.2d 408, 418 & n.25 (D.C. Cir. 1982); Blanton v. Dep't of Justice, 63 F.Supp.2d 35, 44 (D.D.C. 1999).

As the agency's appended declaration makes clear, the FBI compiled the video record at issue as part of the response to a request by the Kenosha County Sheriff's Office for assistance in handling the violence that erupted after a shooting in Kenosha in August 2020. See Seidel Decl., ¶ 22. This was undertaken pursuant to the FBI's “assistance to law enforcement function,”...