UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GUN OWNERS OF AMERICA, INC., et al.,

Plaintiffs, v. Civil Action No. 22-3379 (JEB) FEDERAL BUREAU OF INVESTIGATION,

Defendant.

MEMORANDUM OPINION

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,

(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

(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

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

(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.

2 See Anderson v. Liberty Lobby, Inc.,

(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,

(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,

. Rather, “a district court must always determine for itself whether the record and

any undisputed material facts justify granting summary judgment.”

(quoting Grimes v. Dist.

of Columbia,

(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,

(D.D.C. 2009); Bigwood v.

U.S. Agency for Int’l Dev.,

(D.D.C. 2007). In FOIA cases, the agency

bears the ultimate burden of proof. See Dep’t of Justice v. Tax Analysts,

, 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,

(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,

(D.C.

Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA,

(D.C. Cir. 1981)).

3 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,

(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.,

(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.”

(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order

the production of records that an agency improperly withholds. See

(a)(4)(B);

Dep’t of Justice v. Reporters Comm. for Freedom of the Press,

(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.,

(quoting

(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,

(D.C. Cir. 2002) (quoting Dep’t of State v. Ray,

(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.

4 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

(b)(7); see also Keys

v. Dep’t of Justice,

(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.”

(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 law-

enforcement 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,

(D.C. Cir. 1996) (cleaned up).

The FBI has satisfied that burden. To start, because the Bureau is a criminal law-

enforcement agency, courts apply “a more deferential attitude” towards its claims of law-

5 enforcement purposes in light of the “generally accurate assumption that federal agencies act

within their legislated purposes.” Pratt v. Webster,

, 418 & n.25 (D.C. Cir. 1982);

Blanton v. Dep’t of Justice,

(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,” as

prescribed by the Attorney General’s Guidelines for Domestic FBI Operations promulgated

pursuant to

, 534.

¶¶ 21–22. 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.

Defendant easily clears the first hurdle.

2. Guidelines, Techniques, and Procedures

The FBI next asserts that disclosure would both reveal law-enforcement guidelines,

techniques, or procedures “generally unknown to the public,” Albuquerque Pub. Co. v. Dep’t of

Justice,

(D.D.C. 1989), and that it could “reasonably be expected to risk

circumvention of the law.”

(b)(7)(E).

While the Government faces a “low bar” to show that it has properly withheld documents

containing law-enforcement techniques and procedures, Blackwell v. FBI,

(D.C.

Cir. 2011), it must nevertheless provide a “relatively detailed justification” that permits the

reviewing court to make a meaningful assessment of the withholdings. Strunk v. Dep’t of State,

(D.D.C. 2012) (quoting Mead Data Central, Inc., v. Dep’t of Air Force,

(D.C. Cir. 1977)). “Generic portrayals of categories of documents and

6 vaguely formulated descriptions will not suffice.” Am. Immigration Council v. Dep’t of

Homeland Sec.,

(D.D.C. 2013). In sum, the Government must provide

sufficient facts and context to allow the reviewing court to “deduce something of the nature of

the techniques in question.” Clemente v. FBI,

(D.D.C. 2010).

The FBI plainly satisfies this burden via the Seidel Declaration. The declarant, the

Section Chief of the FBI’s Record/Information Dissemination Section, 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. See Seidel Decl., ¶ 27. 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.”

¶¶ 30–32.

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. Id., ¶ 27.

They could also use aircraft tail numbers and information about fuel capacities and surveillance-

camera capabilities to track FBI surveillance and avoid detection. Id., ¶¶ 31–32. The FBI thus

provides ample justification for withholding the aerial-surveillance video under Exemption 7(E).

B. Foreseeable Harm

The Court next examines whether the FBI satisfies the related foreseeable-harm

requirement under

(a)(8)(A)(i)(I). That section allows an agency to withhold

information only if it “reasonably foresees that disclosure would harm an interest protected by”

one of the FOIA exemptions. See

(a)(8)(A)(i)(I). To pass muster, the agency

7 must “articulate both the nature of the harm and the link between the specified harm and specific

information contained in the material withheld.” Reps. Comm. for Freedom of the Press v. FBI,

(D.C. Cir. 2021) (cleaned up). 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. See 100 Reps. v. Dep’t of State,

(D.D.C. 2022) (explaining that foreseeable-harm requirement is similar and does not heighten

Exemption 7(E)’s circumvention-of-law requirement); Buzzfeed, Inc. v. Dep’t of Homeland

Sec.,

, 148 n.1 (D.D.C. 2022) (“[N]o further foreseeable harm analysis is

needed because Exemption 7(E) by its own terms already requires that an agency show a risk of

foreseeable harm.”) (cleaned up). The Court thus finds that the FBI fulfills the foreseeable-harm

requirement.

C. Segregability

Finally, the Court considers the issue of segregability. FOIA requires that “[a]ny

reasonably segregable portion of a record . . . be provided to any person requesting such record

after deletion of the portions which are exempt.”

(b). Accordingly, “non-exempt

portions of a document must be disclosed unless they are inextricably intertwined with exempt

portions.” Mead Data,

. While the Government is “entitled to a presumption that

[it] complied with the obligation to disclose reasonably segregable material,” Hodge v. FBI,

(D.C. Cir. 2013), this presumption of compliance does not obviate its obligation to

carry its evidentiary burden and fully explain its decisions on segregability. See Mead Data,

. The agency must provide “a detailed justification and not just conclusory

statements to demonstrate that all reasonably segregable information has been released.”

Valfells v. CIA,

(D.D.C. 2010) (internal quotation marks omitted); see

8 also Armstrong v. Exec. Office of the President,

(D.C. Cir. 1996) (determining

Government affidavits explained nonsegregability of documents with “reasonable specificity”).

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. See Seidel Decl., ¶

34; see also NPR v. FBI,

, 16 (D.D.C. 2021) (“[I]t is unclear how the FBI

would segregate or redact a video when the content [plaintiffs are] seeking is the content that

poses a risk.”). 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 the Seidel 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. See

Seidel Decl., ¶ 28. 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.

The Court therefore finds that the non-public video was properly withheld in full.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendant’s Motion for Summary

Judgment. A separate Order consistent with this Opinion will be issued this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge

Date: January 18, 2024

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