Gun Owners of Am., Inc. v. FBI, No. 22-3379, 2024 WL 195829 (D.D.C. Jan. 18, 2024) (Boasberg, C. J.)

Gun Owners of Am., Inc. v. FBI, No. 22-3379, 2024 WL 195829 (D.D.C. Jan. 18, 2024) (Boasberg, C. J.)

Re:  Request for surveillance video taken by the FBI during the civil unrest in Kenosha, Wisconsin, in August 2020

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 7, Threshold:  The court finds that, “[t]o start, because the Bureau is a criminal law-enforcement 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.’”  “[T]he 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.”  “This was undertaken pursuant to the FBI’s ‘assistance to law enforcement function[]’ . . . .”  “The agency’s aerial surveillance conducted in this context thus meet the law-enforcement purposes test because it was related to the enforcement of federal laws and had a rational nexus to the FBI’s law-enforcement duties.”

• Exemption 7(E):  The court finds that “[t]he FBI . . . provides ample justification for withholding the aerial-surveillance video under Exemption 7(E).”  “[Defendant] explains that releasing the aerial-surveillance video would disclose details about the FBI’s surveillance program unknown to the public, including the ‘dates, times and locations chosen for surveillance’ and the specific areas where the FBI chose to focus and zoom in on.”  “The non-public video, he further explains, could also be combined with publicly available information to identify FBI surveillance aircraft, thus allowing ‘adversaries to ascertain the fuel capacities of the aircraft’ and the ‘surveillance camera capabilities.’”  “Disclosure of the FBI surveillance-program practices, moreover, would be reasonably expected to risk circumvention of the law.”  “Criminal and national-security adversaries could use the non-public information to adjust their behaviors and avoid aerial surveillance.”  “They could also use aircraft tail numbers and information about fuel capacities and surveillance-camera capabilities to track FBI surveillance and avoid detection.”
  
  Additionally, “[t]he Court . . . finds that the FBI fulfills the foreseeable-harm requirement.”  “In the context of Exemption 7(E), because the exemption already requires a showing of risk of circumvention of the law, no further foreseeable-harm analysis is necessary.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements; Waiver and Discretionary Disclosure, Waiver:  “The Court . . . finds that the non-public video was properly withheld in full.”  “The FBI here has provided sufficient justifications for its claim that, but for the already released 83-second clip, the video is nonsegregable.”  “First, any seemingly non-exempt portions of the video – beyond the clip already released – are so inextricably intertwined with the exempt parts that their disclosure would still reveal details of the FBI’s law-enforcement techniques such as aerial-camera capabilities and locations of surveillance.”  “Second, the fact that 83 seconds of the video were previously disclosed in public at the criminal trial of Kyle Rittenhouse does not undermine the FBI’s nonsegregability argument.”  “As [defendant’s] Declaration explains, although the 83-second clip ‘risked circumvention [of law] to some degree,’ it does not provide enough information to criminals and adversaries to discern the details of the FBI’s surveillance practices given its short length.”  “Disclosure of additional footage, however, would provide ‘a holistic view of the scope of FBI aerial surveillance operations’ that adversaries could use to circumvent the law.”