Michael Evans v. BOP ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2019 Decided March 10, 2020
No. 18-5068
MICHAEL S. EVANS,
APPELLANT
v.
FEDERAL BUREAU OF PRISONS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-02274)
Ari Holtzblatt, appointed by the court, argued the cause as
amicus curiae in support of plaintiff-appellant. With him on
the briefs was Daniel S. Volchok.
Johnny H. Walker III, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
2
Before: MILLETT and KATSAS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Michael Evans was a
federal prisoner when the underlying events leading to the
current litigation occurred. Evans was stabbed from behind
with a screwdriver in the prison dining hall. Later, Evans
submitted a Freedom of Information Act (“FOIA”) request to
the Federal Bureau of Prisons (the “Bureau”) seeking to
compel the release of records related to the screwdriver, as well
as surveillance footage of the episode. The Bureau was unable
to locate any responsive records related to the screwdriver and
withheld the surveillance footage asserting various FOIA
exemptions. After exhausting the administrative appeals
process, Evans filed suit in district court. The district court
granted summary judgment in favor of the Bureau. The court
held that the Bureau’s response to Evans’s request for records
related to the screwdriver was adequate, and that the Bureau
justified withholding the surveillance footage in full under
FOIA Exemptions (b)(7)(C) and (b)(7)(E). Evans filed the
instant appeal, and we appointed Amicus Curiae to argue on his
behalf.1
For the reasons that follow, we affirm the district court’s
grant of summary judgment insofar as it pertains to the
Bureau’s response to Evans’s request for records related to the
screwdriver. However, we vacate and remand the judgment to
1
Because appellant has fully adopted the briefs and arguments of the
amicus, we will throughout the opinion attribute those positions to
the appellant. We thank the amicus for his service to the court.
3
the district court as to the Bureau’s withholding of the
surveillance footage under Exemptions (b)(7)(C) and (b)(7)(E).
I. BACKGROUND
A. Facts and History
On May 2, 2013, while Evans was incarcerated at Federal
Correctional Institution (“FCI”) Gilmer in Glenville, West
Virginia, another inmate stabbed him multiple times with a
Phillips-head screwdriver in the prison dining hall. Following
that incident, Evans sued the United States under the Federal
Tort Claims Act (“FTCA”) and individual officers employed at
FCI Gilmer under 42 U.S.C. § 1983, alleging in both cases that
the screwdriver was FCI Gilmer property that the corrections
officers failed to properly secure. The Bureau disclaimed
ownership of the tool, and those suits were dismissed. J.A. 58;
Evans v. United States, No. 3:15-CV-64, 2016 WL 4581339, at
*2 (N.D. W. Va. Sept. 2, 2016) (“The modified screwdriver
used in the Plaintiff’s assault was not a [Bureau] tool.”); Evans
v. Officer Cunningham, No. 2:15-CV-60, 2016 WL 3951157,
at *6 (N.D. W. Va. July 20, 2016) (noting that the report and
recommendation from the magistrate showed that the
screwdriver was “a non-[Bureau] tool, not subject to [Bureau]
tool-control policies”).
While those lawsuits were pending, Evans submitted his
initial FOIA request to the Bureau seeking the following:
Names, numbers, and addresses to all
companies that shipped and/or delivered tools,
recreation equipment, maintenance equipment,
and machines to Federal Correctional
Institution–Gilmer in Glenville, West Virginia
26351, from January 2003, to, June 2013.
4
F.C.I.–Gilmer[’]s, Receiving and Departure
Logs for all tools, recreation equipment,
maintenance equipment, and machines shipped
and/or delivered to F.C.I.–Gilmer from January
2003, to, June 2013.
Names and pictures of all tools, recreation
equipment, maintenance equipment, and
machines shipped and/or delivered to F.C.I.–
Gilmer, from January 2003, to, June 2013.
A copy of the video footage of the May 02, 2013
incident of Michael Evans being assaulted in the
inmate dining area at F.C.I.–Gilmer.
J.A. 8–9. The Bureau responded that it would cost
approximately $14,320 to process Evans’s request. Id. at 10.
Due to the high cost, the Bureau allowed Evans the opportunity
to reformulate his request. Id.Evans took advantage of that opportunity. In an apparent
attempt to narrow his request for records related to the
screwdriver, he included a picture of the tool and stated that
the screwdriver may have been a[] maintenance
accessory tool that came with recreation, or
maintenance equipment. I would like the name
of the company that made the tool, along with
the phone number and mailing address of the
company. I would like to know what is the tool
used for and what equipment it came with, and
when that equipment was delivered to F.C.I.
Gilmer in Glenville, WV 26351.
5
Id. at 38–39. Additionally, he again sought surveillance
footage of the incident. Id.The Bureau contacted FCI Gilmer officials for assistance
in locating responsive materials. Id. at 43. This time, the
Bureau located the prison-surveillance footage but withheld it
from disclosure under FOIA Exemptions (b)(2), (b)(7)(C),
(b)(7)(E), and (b)(7)(F). Id. As to any records pertaining to the
screwdriver, the Bureau responded that, because the FCI
Gilmer officials did not recognize the screwdriver or know
from where it originated, they were “unable to ascertain what
records to search.” Id.Evans appealed the Bureau’s decision to the Office of
Information Policy (“OIP”). OIP determined that the
surveillance footage was properly withheld under Exemptions
(b)(7)(C), (b)(7)(E), and (b)(7)(F). Id. at 51. It also stated that
the Bureau “does not have the capability to segregate images
potentially responsive to [Evans’s] request from the images of
third parties on video recordings.” Id. at 52. Thus, it justified
withholding the entire video under Exemption (b)(7)(C). Id.As to the requests related to the screwdriver, OIP explained that
“FOIA does not require federal agencies to answer questions
or create records in response to a FOIA request, but rather is
limited to requiring agencies to provide access to reasonably
described, nonexempt records.” Id. Accordingly, OIP
affirmed the Bureau’s response to Evans’s requests. Id.Evans filed this action in the district court. Evans claimed
that the Bureau’s response to his request for records related to
the screwdriver was inadequate because he did not ask the
Bureau to answer questions or conduct research but, instead,
reasonably described the records sought. Evans also objected
to the Bureau’s withholding the video footage. He argued that
none of the claimed exemptions applied, and that at least some
6
portion of the footage is segregable and that the Bureau must
possess the technological capability to segregate it.
The Bureau moved for summary judgment, relying on a
declaration filed by Sharon Wahl, a paralegal from the Beckley
Consolidated Legal Center at the Federal Correctional
Institution in Beckley, West Virginia. The district court first
determined that Evans’s request related to the screwdriver
“indeed call[ed] for responses to inquiries.” Evans v. Fed.
Bureau of Prisons, No. 16-2274, 2018 WL 707427, at *3
(D.D.C. Feb. 5, 2018). The district court emphasized that
Evans “expected the [Bureau] to identify [the screwdriver’s]
manufacturer, to provide the manufacturer’s phone number and
mailing address, to specify the tool’s use and to explain how
and when a particular screwdriver found its way to FCI
Gilmer.” Id. Thus, the district court upheld the Bureau’s
nondisclosure of records related to the screwdriver.
It then ruled that the Bureau properly withheld the footage
under Exemptions (b)(7)(C) and (b)(7)(E). As to Exemption
(b)(7)(F), however, the district court found that the Bureau
failed to justify withholding the footage under that exemption.
Id. at 6. Additionally, the court deferred to Wahl’s declaration
in holding that no portion of the video was segregable and, even
if it were, the Bureau lacks the technological capability to
segregate it. Id. Accordingly, the district court granted the
Bureau’s motion for summary judgment.
For the reasons that follow, we affirm the district court’s
ruling as to the screwdriver, but not as to the withholding of the
videotapes under Exemptions (b)(7)(C) and (b)(7)(E) and the
Bureau’s ability to segregate the footage. We take no issue
with the district court’s holding as to Exemption (b)(7)(F).
7
B. Legal Framework
As the Supreme Court stated in Department of Air Force
v. Rose, FOIA was enacted “to pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny.” 425 U.S. 352, 361 (1976) (quoting Rose v. Dep’t of
Air Force, 495 F.2d 261, 263 (2d Cir. 1974)). However,
“Congress realized that legitimate governmental and private
interests could be harmed by release of certain types of
information.” FBI v. Abramson, 456 U.S. 615, 621 (1982).
Accordingly, FOIA exempts nine categories of records from
disclosure, 5 U.S.C. § 552(b), seeking “to establish a general
philosophy of full agency disclosure unless information is
exempted under clearly delineated statutory language,” NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1976) (quoting S.
Rep. No. 89-813, at 3 (1965)).
Relevant to this appeal, Exemption (b)(7) allows an
agency 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 . . . (C) could reasonably
be expected to constitute an unwarranted
invasion of personal privacy [or] . . . (E) 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). Additionally, “[a]ny reasonably
segregable portion of a record shall be provided to any person
8
requesting such record after deletion of the portions which are
exempt under this subsection.” Id. § 552(b). “[N]on-exempt
portions of a document must be disclosed unless they are
inextricably intertwined with exempt portions.” Mead Data
Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C.
Cir. 1977).
When an agency identifies responsive records but
withholds them under one of the FOIA exemptions, it bears the
burden of demonstrating that the records were properly
withheld. See Summers v. Dep’t of Justice, 140 F.3d 1077,
1080 (D.C. Cir. 1998). To meet this burden, the agency can
submit affidavits that “show, with reasonable specificity, why
the documents fall within the exemption.” Hayden v. Nat’l Sec.
Agency/Cent. Sec. Service, 608 F.2d 1381, 1387 (D.C. Cir.
1979).
Under FOIA, an agency is only obligated to release
nonexempt records if it receives a request that “reasonably
describes such records.” 5 U.S.C. § 552(a)(3)(A). “A request
reasonably describes records if ‘the agency is able to determine
precisely what records are being requested.’” Kowalczyk v.
Dep’t of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting
Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982)). In light
of FOIA’s pro-disclosure purpose, an agency has “a duty to
construe a FOIA request liberally.” Nation Magazine, Wash.
Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir.
1995). Thus, an agency may not refuse to comply with a FOIA
request simply because the request is phrased in the form of a
question. See Yagman v. Pompeo, 868 F.3d 1075, 1081 (9th
Cir. 2017) (“The flaw of Yagman’s FOIA request is its
vagueness, not the way in which he framed it.”). Instead, the
agency should determine whether, construing the request
liberally, “it in fact has created and retained” responsive
9
records. Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 152 (1980).
If the agency determines that it does not possess any
records responsive to a FOIA request, it bears the burden of
demonstrating the adequacy of its search. See Reporters
Comm. for Freedom of the Press v. FBI, 877 F.3d 399, 402
(D.C. Cir. 2017). The agency meets its burden if it shows that
“it made a good faith effort to conduct a search for the
requested records, using methods which can be reasonably
expected to produce the information requested.” Oglesby v.
U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
Again, the agency may make this showing “by submitting ‘[a]
reasonably detailed affidavit, setting forth the search terms and
the type of search performed, and averring that all files likely
to contain responsive materials (if such records exist) were
searched.’” Reporters Comm. for Freedom of the Press, 877
F.3d at 402 (quoting Oglesby, 920 F.2d at 68).
II. SUMMARY JUDGMENT
We review the district court’s grant of summary judgment
de novo. Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994).
Summary judgment may be granted only when the moving
party, in this case the Bureau, is able to show that there is “no
genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a).
In this case, that would require the Bureau to establish beyond
factual dispute that its failure to produce responsive records
comes outside the mandate of FOIA either by virtue of the
nonexistence of the records or by a factually indisputable right
to protection under one of the statutory exemptions.
We will affirm the grant of summary judgment if, viewing
the record in the light most favorable to the nonmovant, there
are no genuine disputes of material fact and the movant is
10
entitled to judgment as a matter of law. Id. “[T]he vast
majority of FOIA cases can be resolved on summary
judgment.” Brayton v. Office of Trade Representative, 641
F.3d 521, 527 (D.C. Cir. 2011). In the FOIA context,
“[s]ummary judgment may be granted on the basis of agency
affidavits if they contain reasonable specificity of detail rather
than merely conclusory statements, and if they are not called
into question by contradictory evidence in the record or by
evidence of agency bad faith.” Gallant, 26 F.3d at 171 (quoting
Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980)).
Otherwise put, agency affidavits that are “‘relatively detailed
and non-conclusory, and . . . submitted in good faith’. . . are
accorded a presumption of good faith.’” SafeCard Servs., Inc.
v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (first alteration
in original) (quoting Ground Saucer Watch, Inc. v. CIA, 692
F.2d 770, 771 (D.C. Cir. 1981)).
III. ANALYSIS
A. Screwdriver Records
We first address appellant’s argument that the Bureau’s
response to the request for records related to the screwdriver
was inadequate because it reasonably described the records
sought and did not ask the Bureau to create new records or
answer questions. We disagree and affirm the decision of the
district court. Nothing in the record refutes the Bureau’s
repeated assertions that it knows nothing about the screwdriver
and has no records responsive to Evans’s demands.
Appellant argues that by framing the requests related to the
screwdriver as seeking answers to questions and thus refusing
to conduct a search in the first place, the Bureau shirked its
responsibility to conduct a search for the records under FOIA.
Appellant asserts that, even if the request was phrased as a
11
question, the Bureau may only refrain from producing
documents “if doing so would require creating a new record.”
Amicus Curiae Br. in Support of Plaintiff-Appellant at 34.
Further, appellant contends that the initial request and the
reformulated request should be construed together. Because
the Bureau estimated the cost to conduct a search in response
to his initial request, appellant argues that it necessarily
understood the request and believed responsive documents to
exist. Thus, his narrower reformulated request could have been
satisfied with production of the same types of records. Even
if Evans’s original and reformulated requests are read together,
they are insufficient.
While appellant correctly points out that the Bureau cannot
refuse to conduct a search simply because a request is framed
as a question, the more relevant issue, as noted above, is
whether Evans reasonably described documents that the
Bureau has in fact created and retained. See Kowalczyk, 73
F.3d at 388. This turns, at least in part, on whether the
screwdriver was prison property in the first place. But the
Bureau has claimed in this case and in prior related proceedings
that it did not own the screwdriver and that Evans’s
assumptions to the contrary are flawed. Appellee’s Br. at 11;
Evans, 2016 WL 4581339, at *2; Cunningham, 2016 WL
3951157, at *6.
In fact, when Evans included the picture of the screwdriver
in his reformulated request, the Bureau sent the photo to FCI
Gilmer officials who responded that they did not recognize the
screwdriver, leaving them “unable to ascertain what records to
search.” J.A. 43; Evans, 2016 WL 4581339, at *2;
Cunningham, 2016 WL 3951157, at *6. The request was thus
presented to professional employees of the Bureau who are
familiar with the subject area of the request, but those officials
were unable to determine what records to search with a
12
reasonable amount of effort. See Dale v. IRS, 238 F. Supp. 2d
99, 104 (D.D.C. 2002).
Moreover, even when the two requests are construed
together, the reality is that Evans’s reformulated request
fundamentally altered his initial request. In an effort to reduce
the costs of responding to his request, Evans abandoned his
broad requests for shipping logs, delivery logs, and
maintenance equipment information over a span of ten years.
Instead, he narrowed his request to seek only documents
specifically related to a particular screwdriver. Indeed, records
not containing information related to that screwdriver might
not have been considered responsive to Evans’s request. In
light of the Bureau’s affidavit stating that FCI Gilmer officials
did not recognize the screwdriver referenced above, it was
necessarily unable to produce responsive records.
Appellant has provided us with no reason to doubt the
veracity of the prison officials’ response, nor has he presented
anything to convince us that the screwdriver must have been
prison property. As far as we know, it is entirely plausible that
the prison officials did not recognize the screwdriver because
it was not prison property. Prisoners are capable of smuggling
contraband into prison, including weapons and other materials.
See, e.g., Bame v. Dillard, 637 F.3d 380, 385 (D.C. Cir. 2011)
(noting that “[s]muggling of money, drugs, weapons, and other
contraband is all too common an occurrence” in detention
facilities (quoting Bell v. Wolfish, 441 U.S. 520, 559–60 (1979)
(alteration in original))). Without any evidence beyond
unfounded claims speculating that the screwdriver was prison
property or that the Bureau’s response should not otherwise be
accorded the presumption of good faith, the Bureau’s efforts to
identify the screwdriver by contacting prison officials and its
statement that it was unable to conduct a search for responsive
records because the prison officials did not possess such a tool
13
are sufficient to support the grant of summary judgment. See
SafeCard Servs., Inc., 926 F.2d at 1200. Accordingly, we
affirm the district court’s judgment as it relates to Evans’s
request for screwdriver records.
B. Surveillance Footage
Next, we turn to appellant’s contention that the Bureau
failed to justify withholding the surveillance footage under
FOIA Exemptions (b)(7)(C) and (b)(7)(E), and that, even if
withholding was proper, at least some portion of the video was
segregable. On these points, we agree with appellant that the
Bureau failed to justify withholding the footage on this record.
Accordingly, we vacate the district court’s judgment as to those
issues and remand for further proceedings.
We begin the analysis of the Bureau’s claimed exemptions
regarding the entirety of the videotape with the underlying
principles stated above. That is, the congressional philosophy
in the adoption of FOIA favors disclosure, not concealment.
To exercise the exceptions warranted by the statute, the
government bears the burden of proving the applicability of the
statutory exemption. See Summers, 140 F.3d at 1080. With
respect to the claimed exemption under (b)(7)(C), in order to
be entitled to summary judgment, the Bureau needed to
establish beyond any genuine dispute that the disclosure of the
withheld records “could reasonably be expected to constitute
an unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C) (emphasis added). As discussed above, an
agency claiming a FOIA exemption may carry this burden by
the production of affidavits. Hayden, 608 F.2d at 1387.
However, we remind the government that such “affidavits must
show, with reasonable specificity, why the documents fall
within the exemption.” Id. Further, we have long held that
“[t]he affidavits will not suffice if the agency’s claims are
14
conclusory, merely reciting statutory standards, or if they are
too vague or sweeping.” Id. The affidavit relied upon by the
Bureau fails on all counts. It lacks specificity; it is conclusory;
and it recites statutory language without demonstrating its
applicability to the information withheld.
More specifically, statutory Exemption (b)(7)(C) requires
that, to be exempted, information must “constitute an
unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C). With respect to that claimed exemption, the
Bureau stated that the “footage contained the images of
approximately 70 or more other individuals” and, thus,
disclosure of the footage “may constitute an unwarranted
invasion of privacy.” J.A. 27 (emphasis added). This will not
do. To shelter otherwise responsive data under the protection
of Exemption (b)(7)(C) by the terms of the statute, the
government agency must show that the disclosure “could
reasonably be expected to constitute an . . . invasion of personal
privacy,” and that this invasion is “unwarranted.” 5 U.S.C.
§ 552(b)(7)(C). The language of the affidavit that the
disclosure of the video recording “may” constitute an
unwarranted invasion is far too vague and unspecific to remove
all factual issue as to whether it could reasonably be expected
to invade personal privacy and that such invasion would be
unwarranted.
So far as we know from the current affidavit, all
information that would be revealed is that seventy or so inmates
were eating a meal in a place where they were not only
expected to be, but were required by law to reside. It is true
that we have discouraged serial summary judgment motions
after the government’s first loss. See Maydak v. U.S. Dep’t of
Justice, 218 F.3d 760, 769 (D.C. Cir. 2000). We recognize,
however, that responding to a request for videotape rather than
printed data may have been a novel experience for the Bureau.
15
Therefore, it may be that on remand, the district court will
permit more flexibility than in the customary case. It is further
possible that the Bureau will be no more able to make a
showing entitling it to withholding than it has so far. That of
course leaves open the possibility that the court might grant a
summary judgment in favor of Evans. Unusual as it may be,
this may be the rare FOIA case that results in a trial in which
the court would have to find facts as to the applicability of the
exemptions.
If in possible further proceedings, the Bureau is able to
produce additional evidence supporting this claimed
exemption, it needs to do so with specificity and without
vagueness in such a fashion that the courts can say with
confidence that the statutory standard has been met. In other
words, as we stated above, the government may carry its
burden by the introduction of affidavits, but only if “affidavits
. . . show, with reasonable specificity, why the documents fall
within the exemption.” Hayden, 608 F.2d at 1387.
Even if we were to accept the Bureau’s current affidavit as
adequately bringing the document within the protection of this
exemption, we are still confronted with the vagueness of the
government’s claim of inability to segregate unprotected data.
As we discussed with the government at oral argument, if we
assume that the video record does constitute an unwarranted
invasion of privacy as to individuals in the record, it is not at
all clear from the government’s affidavit why it cannot
segregate the portions of the record that do not do so. More
specifically, we live in an era in which teenagers regularly send
each other screenshots from all sorts of video media.
Presumably, most of these teenagers have fewer resources than
the United States government. It is not at all clear why the
government could not at least isolate some screenshots that
16
would meet the same sort of segregability standards typically
applied to printed material.
The government further does not explain why it cannot by
use of such techniques as blurring out faces, either in the video
itself or in screenshots, eliminate unwarranted invasions of
privacy. The same teenagers who regale each other with
screenshots are commonly known to revise those missives by
such techniques as inserting cat faces over the visages of
humans. While we do not necessarily advocate that specific
technique, we do hold that the government is required to
explain why the possibility of some similar method of
segregability is unavailable if it is to claim the protection of the
exemption.
The Bureau’s affidavit supporting its claim to protection
of the data under Exemption (b)(7)(E) suffers from the same
shortcomings as the other exemption claim. The Bureau
argued that releasing the footage “would reveal the specific law
enforcement methods employed in responding [to] and/or
conducting the investigation into the prohibited conduct” and
would “demonstrate[] the location of video cameras.” J.A. 27.
Thus, prisoners could “modify[] their criminal behavior to
prevent detection and circumvent the methods law enforcement
officers use to discover the existence of and investigate the
conduct of prisoners.” Id.
We do not question the government’s good faith on this
subject. However, we do note its vagueness and lack of
specificity. For example, the affidavit does not even make
clear whether the location of video cameras would be visible to
inmates in the prison dining hall. Moreover, it does not address
the field of view of any or all of the cameras so as to reveal
potential blind spots—a concern first raised in the Bureau’s
briefs. And it is not possible from the words of the affidavit to
17
determine whether the government is actually describing
anything in the way of technique or placement of cameras that
is sufficient to overcome the statutory presumption in favor of
disclosure. Summary judgment on this issue would require that
the Bureau show that there is no genuine dispute as to whether
the placement and visibility of cameras is such that exposure of
the video recording would in fact provide any new information
not already available through observation by prisoners
physically present in the dining room. Even if exposure of the
cameras’ field of view would result with respect to some
cameras, the affidavit does not establish that it would make an
exempt exposure if only the views from one specific camera
were shown; that is to say one camera location of which is
readily visible, for example. Similarly, as to law enforcement
techniques, if all the Bureau is able to show is that, when a
prisoner does something violent, guards respond to the location
of the violence and take action to control the prisoner, that is
not likely to fall within the exemption.
We understand that the Bureau may be concerned that if an
affidavit were more detailed and specific, it might reveal
information protected by the FOIA exemptions. This is not an
insurmountable problem. True, we have many times reminded
litigants that it is not necessary for district courts to conduct an
in camera inspection in every FOIA case. Quiñon v. FBI, 86
F.3d 1222, 1228 (D.C. Cir. 1996) (“[I]n camera review should
not be resorted to as a matter of course.”). However, this case
may constitute an exceptional circumstance warranting such
inspection if the Bureau continues to insist on the applicability
of this exemption after remand. Indeed, as the present record
is not sufficient to support summary judgment, such an
examination by the court may be necessary should this case
result in a rare FOIA trial. That is, in such a trial, the district
court would need to make findings of fact as to the exemptions,
and it is difficult to see how this could be done without more
18
than what the Bureau has offered in the affidavit. In summary,
the agency’s declaration is too unspecific on its own to
establish that withholding the footage under the exemptions is
justified.
IV. CONCLUSION
We enter a judgment affirming the district court as to the
responses concerning the screwdriver. However, as to the
responses concerning the video recording, we vacate the
judgment granted by the district court and remand the matter
for further proceedings.
So ordered.