UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE BRADY CENTER TO PREVENT GUN VIOLENCE,

Plaintiff, Case No. 21-CV-0166 (CRC) v.

FEDERAL BUREAU OF INVESTIGATION,

Defendant.

MEMORANDUM OPINION AND ORDER

Gun violence plagues the United States, claiming countless innocent lives every year. In

the aftermath of a mass shooting at the Emanuel AME Church in Charleston, South Carolina, the

Brady Center to Prevent Gun Violence filed a Freedom of Information Act request with the

Federal Bureau of Investigation to learn more about how the FBI conducts background checks on

firearm purchasers. The FBI processed 4,491 pages of records and produced 2,808 pages in

response to that request, but withheld parts of documents under FOIA Exemption 7(E), which

shields records that, if disclosed, would reveal secret law-enforcement techniques.

The Brady Center challenged the FBI’s withholdings in this suit, and both parties now

seek summary judgment. Because the FBI has failed to adequately explain how disclosure could

create a risk of circumvention of the law, the Court will deny both parties’ motions without

prejudice and direct the FBI to either produce the withheld documents or file a renewed motion

for summary judgment with a more detailed explanation of why the withheld records are exempt

from disclosure. I. Background

The FBI conducts background checks on people who purchase firearms from a federally

licensed dealer. To do so, it operates the National Instant Criminal Background Check System

(“NICS”). Gun-control advocates have criticized NICS, claiming that it sometimes lets

individuals ineligible to purchase a firearm slip through the cracks.

Seeking to learn more about how the FBI operates NICS, the Brady Center filed a FOIA

request in October 2019 with the FBI seeking its NICS standard operating procedures (“SOPs”).

After the FBI failed to produce responsive documents within the statutory deadline, the Brady

Center filed this suit. The FBI then proceeded to process the Brady Center’s request. It

processed 4,491 pages and produced 2,808 pages, but withheld parts under various FOIA

exemptions. FBI Statement of Uncontested Fact ¶ 6; Seidel Decl. ¶ 20. At issue here are the

FBI’s withholdings under FOIA Exemption 7(E) across 154 pages of its production. Brady

Center MSJ at 3. That exemption shields from disclosure law-enforcement records that, if

disclosed, would reveal secret law-enforcement techniques. See

(b)(7)(E). The

FBI also withheld other parts of responsive records under other exceptions, but the Brady Center

does not oppose those withholdings. Brady Center MSJ at 4–5. Nor does it challenge the

adequacy of the FBI’s search.

.

The parties filed cross-motions for summary judgment. The Court heard argument on

those motions on February 20, 2025. The motions are ripe for review.

II. Legal Standard

Summary judgment may be granted when the moving party establishes that there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ.

(a). Summary judgment is the typical mechanism to determine whether an agency has met

its FOIA obligations. See, e.g., Jud. Watch, Inc. v. CFPB,

(D.D.C. 2014).

To obtain summary judgment on its invocation of a FOIA exemption, the agency must

first show that the material falls under an enumerated exemption. Larson v. Dep’t of State,

(D.C. Cir. 2009). Agencies can do so by providing sufficiently detailed

declarations.

“Ultimately, an agency’s justification for invoking a FOIA exemption is

sufficient if it appears logical or plausible.” Jud. Watch, Inc. v. DOJ,

(D.C.

Cir. 2013) (quotation marks omitted). Because the primary purpose of FOIA is disclosure,

exemptions are construed narrowly. DiBacco v. U.S. Army,

(D.C. Cir. 2015).

The agency must also demonstrate that it has produced “[a]ny reasonably segregable

portion of a record . . . after deletion of the portions which are exempt[.]”

(b).

Agencies must explain why non-exempt material is not reasonably segregable, and “are entitled

to a presumption that they complied with the obligation to disclose reasonably segregable

material.” Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007).

III. Analysis

The Court will begin with whether the FBI has adequately supported its invocations of

Exemption 7(E). Concluding it has not, the Court will then address next steps in the case.

A. Exemption 7(E)

As relevant here, the FBI withheld four types of information under Exemption 7(E).

First, it withheld “operational directives and guidelines” that “describe non-public FBI law

enforcement procedures and strategies” and “instruct FBI employees on the proper use of these

procedures and strategies.” Seidel Decl. ¶ 36. Second, it held back “the identities of sensitive

investigative databases and database search results located through queries of these non-public

3 databases[.]” Id. ¶ 37. Third, it redacted “the identity of FBI units involved in the compilation

of the NICS SOPs.” Id. ¶ 42. And fourth, it withheld “the methods the FBI uses to collect and

analyze information it obtains for firearm background check determinations.” Id. ¶ 44.

“To justify a withholding under Exemption 7(E), the FBI must demonstrate that: (1) the

records were compiled for law enforcement purposes; (2) the redacted information would

disclose techniques and procedures for law enforcement investigations or prosecutions, or would

disclose guidelines for law enforcement investigations or prosecutions; and (3) the release of the

requested information might create a risk of circumvention of the law.” Shapiro v. DOJ,

, 115 (D.D.C. 2019) (cleaned up). These criteria impose a “relatively low bar” on

the FBI, though it cannot simply offer conclusory explanations to support its withholdings.

Kolbusz v. FBI, No. 17-cv-319-EGS-GMH,

, at *24 (D.D.C. Feb. 17, 2021).

The Brady Center does not dispute that the first prong is met here. Nor could it, because

the requested documents were compiled to enable the FBI to perform background checks.

Next, the Court has little trouble concluding that the withheld material, if disclosed,

would reveal secret law-enforcement techniques or methods. “The phrase ‘techniques and

procedures’ . . . refers to how law enforcement officials go about investigating a crime.”

Whittaker v. DOJ, No. 18-cv-1434-APM,

, at *2 (D.D.C. June 21, 2019)

(quoting Allard K. Lowenstein Int’l Human Rights Proj. v. Dep’t of Homeland Sec.,

(2d Cir. 2010)). Here, the FBI explains that the withheld information includes (1)

guidelines that “not only describe non-public FBI law enforcement procedures and strategies, but

also instruct FBI employees on the proper use of these procedures and strategies”; (2) database

information that could reveal the scope of the databases and the information at the FBI’s disposal

when conducting background checks; (3) the units involved in compiling the procedures; and (4)

4 the methods by which FBI collects information. Seidel Decl. ¶¶ 36, 37, 42, 44. With access to

those instructions, the FBI explains, readers could understand “the standards the FBI follows

when conducting firearm background checks,” the resources and information the FBI brings to

bear in these investigations, the units involved, and the methods it employs.

All that

information plainly reveals how the FBI goes about conducting a background check.

The Brady Center contends that the background check system cannot itself be the

technique or procedure for purposes of invoking Exemption 7(E). See Brady Center MSJ at 16.

This argument does not hold up because the FBI’s methods for conducting a background check

fall well within any ordinary understanding of the phrase “techniques and procedures for law

enforcement investigations[.]” See

(b)(7)(E). Indeed, the Brady Center’s own

complaint and FOIA requests describe the requested documents as “related to the National

Instant Criminal Background Check System (“NICS”) standard operating procedures[.]” Compl.

¶ 2; Compl. Ex. A at 1.

The Brady Center’s cases do not move the needle. Those cases largely involved FOIA

requests for the results of law enforcement investigations, rather than the documents describing

the procedures for conducting them. See Mays v. DEA,

(D.C. Cir. 2000)

(drug investigation results); Campbell v. DOJ,

(D.C. Cir. 1998) (results of FBI

investigation into James Baldwin); Nat’l Pub. Radio v. FBI,

, 5 (D.D.C. 2021)

(ballistics tests results); Davis v. FBI,

(D.D.C. 2011) (results of

investigation into plaintiff); see also Brady Center MSJ at 16–17 (citing those cases). In those

types of cases, courts have held that agencies must explain how the results of an investigation

may reveal its methods. See Whittaker,

, at *2 (“Disclosing the results of

Plaintiff’s [background check] would not necessarily reveal how the FBI ‘goes about’ collecting

5 information returned from such inquiries.”). But here, the FBI has established that disclosing the

withheld information—again, contained within the FBI’s standard operating procedures—would

reveal techniques and procedures for law enforcement investigations.

The Brady Center also argues that Exemption 7(E) does not shield the FBI’s background

check methods because the NICS is widely reported on in the press. Brady Center MSJ at 43–

44; see Myrick v. Johnson,

(D.D.C. 2016) (“Exemption 7(E) is

properly invoked for information and techniques that are secret and ‘not generally known to the

public.’” (quoting Nat’l Sec. Archive v. FBI,

(D.D.C. 1991)). But the

FBI’s declaration specifies that the withheld material includes nonpublic information. Seidel

Decl. ¶¶ 36, 37, 42, 44. That attestation is entitled to a presumption of good faith, SafeCard

Servs., Inc. v. SEC,

(D.C. Cir. 1991), and the Brady Center has not

purported to rebut that presumption by directly linking any of the redactions to official materials

in the public record.

With all that said, the Court agrees with the Brady Center on the third prong. The FBI’s

explanation of how disclosing the withheld materials would enable individuals to circumvent the

law is lacking. Of course, as a general matter, revealing law-enforcement methods can enable

individuals to counteract them. But here, the FBI has not fully explained how revealing these

methods could logically create such a risk. Is the FBI concerned that releasing these

background-check procedures would enable someone to hide their past criminal convictions or

other disqualifying events? How might they do that, when convictions and other transgressions

are public record? Or is the concern that prohibited purchasers could avoid detection by altering

where or how they make a purchase? If so, how? To the extent there are past examples of

6 people dodging positive hits in these ways, such details, while not required, would be helpful for

the Court to understand the risks that disclosure would create.

For a more concrete example, consider SOP 12.2, titled “Contact List and Global Address

Book.” See Brady Center MSJ Ex. 17. The FBI redacted law enforcement directives and

database information from that SOP. Id.; see Seidel Decl. ¶¶ 36–37. As best the Court can tell

from the unredacted portions, that SOP appears to describe the steps the FBI takes to update a list

containing contact information for state and federal agencies used during background checks.

Brady Center MSJ Ex. 17. But it is not at all clear to the Court how a person could use

information about how the FBI performs such a basic administrative task to then evade the FBI’s

background check system. The FBI’s declaration offers no explanation.

As another example, the FBI also redacted the names of certain databases that it queries

when conducting a background check. Seidel Decl. ¶ 37. The FBI claims that “[k]nowing the

database names makes the original source data an attractive target for compromise” and offers

“potential firearms prohibited persons the opportunity to corrupt or destroy information stored

within these databases.” Id. ¶ 40. But the FBI does not explain how merely knowing a

database’s name—and a non-public database, at that—could compromise that database’s

security. Contrast that threadbare justification with the FBI’s explanation for why it withheld

internal FBI phone numbers, fax numbers, and email addresses. See id. ¶ 34. The FBI explained

there that it withheld such information because criminals could use it to “appear as if they are

from official law enforcement agencies” and “elicit sensitive information” from agents. Id. That

kind of specific explanation is precisely what FOIA requires but is lacking in the FBI’s

explanation of why database names must be withheld in the name of cybersecurity.

7 The FBI also redacted the names of FBI units involved in compiling these SOPs. Seidel

Decl. ¶ 42. But how does knowing that, hypothetically, a narcotics unit helped compile the

SOPs enable an individual to buy a gun he could not otherwise obtain? Do the SOPs somehow

reveal limitations in the various units’ capabilities? Again, the FBI’s declaration is light on

details.

At oral argument, counsel for the FBI analogized the agency declaration in this case to

those offered in two of the Court’s prior cases: Touarsi v. DOJ,

(D.D.C.

2015), and Davis v. FBI, No. 18-cv-86-CRC,

(D.D.C. July 3, 2019). Both of

those cases, however, involved FOIA cases brought by individuals who were investigated by the

government for misconduct and later sought the results and methods of those investigations. See

Touarsi,

; Davis,

, at *1. Once those methods are out in

the public, others could, as the agencies explained, change their behavior to avoid the FBI’s

methods for detecting wrongdoing. See Touarsi, 78 F. Supp. 3d at 348–49; Davis,

, at *10. For example, if disclosure would reveal the locations of any FBI security

cameras, then criminals could simply avoid those cameras. All that is entirely logical, which is

why the Court granted summary judgment to the agencies in those cases. Here, by contrast, the

FBI fails to explain how someone could, for example, use any knowledge gained from the

withheld materials to hide prior convictions or other disqualifying transgressions from the FBI’s

background checks when records of those events may not be easily modified by would-be

lawbreakers.

Because the FBI’s declaration does not fully answer any of the questions identified

above, it has not supplied the necessary logical link for this Court to conclude that all of its

8 withholdings are necessary to avoid a risk of circumvention of the law. The Court therefore

must deny the FBI’s motion for summary judgment as to these disputed withholdings.

B. Next Steps

When courts find that an agency has failed to justify its claimed FOIA exemptions, their

typical practice is to deny both parties’ motions for summary judgment without prejudice and

instruct the agency to either produce the withheld portions or file supplemental declarations to

fill the gaps identified by the Court. Kolbusz,

, at *27 (collecting authorities).

The Brady Center opposes giving the agency another bite at the apple, arguing that this case has

been pending for long enough and that the Court should instead review the withholdings in

camera. Brady Center Reply Br. at 24–25.

The Court will follow the ordinary course. “Congress left the matter of in camera

inspection to the discretion of the district court[.]” Ray v. Turner,

(D.C.

Cir. 1978). Here, the Court is not convinced that in camera review would advance the ball. The

Court has little familiarity with how individuals might exploit the withheld material to illegally

obtain guns—indeed, that is the whole problem with the FBI’s summary-judgment briefing. In

camera review without further explanation from the FBI of the risks that disclosure would create

is therefore unlikely to fill in the gaps that the Court identified above.

Nor does the case’s lengthy pendency necessitate in camera review. While this case may

be four years old, the delays are partially attributable to the large volume of records involved—

4,491 pages of them—and ordinary delays associated with the consultation process. The FBI

also processes many requests that take up its limited resources. To be sure, the Court agrees that

the public has an interest in learning about how the FBI operates NICS. But this case has already

largely vindicated that interest. The parties dispute only a small fraction of the FBI’s

9 production—154 out of 2,808 pages, or about 5%. See Brady Center Resp. to FBI Statement of

Undisputed Fact ¶ 6. The Brady Center is free to use the remaining 95% to serve its public-

education and advocacy missions, and the Brady Center gives the Court no reason to conclude

that the disputed 5% will make or break its ability to pursue its goals. And, as the Brady Center

points out, the FBI’s operation of the NICS has featured in other litigation and in media

reporting. It has also been the subject of multiple Department of Justice Inspector General

reports. See Office of the Inspector General, Audit of the Handling of Firearms Purchase

Denials Through the National Instant Background Check System (Sept. 2016), available at

https://oig.justice.gov/reports/2016/a1632.pdf; Brady Center MSJ Ex. 22 (2004 report). So the

public has other means of learning more about the NICS and its potential flaws. While those

alternative sources do not affect the Brady Center’s entitlement to the records it seeks, they

confirm that short-circuiting the agency-review process is unnecessary at this time.

The Court will, however, order additional proceedings in this case on an expedited

timeline with the admonition that this will be the FBI’s final opportunity to justify its

withholdings. Within 30 days of the Court’s entry of this opinion and order, the FBI shall either

disclose the withheld portions of the SOPs or renew its motion for summary judgment. If it

renews its motion, it shall include supplemental declarations that explain, in greater detail, how

disclosing the withheld material would create a risk of criminals circumventing the law. To be

clear, the FBI need not meet the “highly specific burden of showing how the law will be

circumvented[.]” Mayer Brown LLP v. IRS,

(D.C. Cir. 2009). It need only

“demonstrate logically how the release of the requested information might create a risk of

circumvention[.]”

(cleaned up). So while the FBI does not have to spell out every possible

pathway to criminality that disclosure might illuminate, it must give the Court more to work with

10 and explain the specific risks the FBI is concerned about and how disclosure would create those

risks. The Court refers the FBI to its prior discussion of the shortcomings of its current

declaration for guidance on what any supplemental declarations should include. Such material

can, where appropriate, be filed under seal (subject to an appropriate protective order) or even ex

parte if the material is particularly sensitive. See Arieff v. U.S. Dep’t of the Navy,

, 1470–71 (D.C. Cir. 1983) (discussing standard for filing sealed, ex parte declarations).

But given the default presumption in favor of public access to court records, the Court urges the

FBI to file its supplemental declaration publicly to the extent possible.

Finally, three additional housekeeping matters. First, the Brady Center contests the FBI’s

segregability analysis. Brady Center MSJ at 37. The Court will reserve ruling on that issue until

after the FBI renews its motion, as the FBI may choose to alter its withholdings.

Second, the Brady Center does not contest the FBI’s withholding of (1) privileged

information under Exemption 5 and (2) FBI secure fax numbers, internal email addresses, and

nonpublic phone numbers under Exemption 7(E). Brady Center MSJ at 3–4. The Court will

therefore grant summary judgment to the FBI as to those withholdings.

Third, the Court will deny as moot the Brady Center’s motion for expedition and motion

for oral argument.

IV. Conclusion

For these reasons, it is hereby

ORDERED that [51] Defendant’s Motion for Summary Judgment is GRANTED IN

PART and DENIED WITHOUT PREJUDICE IN PART. It is further

ORDERED that [58] Plaintiff’s Cross-Motion for Summary Judgment is DENIED

WITHOUT PREJUDICE. It is further

11 ORDERED that [66] Plaintiff’s Motion to Expedite is DENIED AS MOOT. It is further

ORDERED that [67] Plaintiff’s Motion for Oral Argument is DENIED AS MOOT. It is

further

ORDERED that Defendant shall either produce the withheld portions of the requested

records or renew its motion for summary judgment by March 24, 2025. It is further

ORDERED that if Defendant chooses to renew its motion, it shall include a

supplemental declaration describing in greater detail the risk of circumvention of the law.

Plaintiff shall file a combined cross-motion for summary judgment and opposition to

Defendant’s motion by April 23, 2025. Defendant shall file a combined reply in support of its

motion and opposition to Plaintiff’s cross-motion by May 14, 2025. Plaintiff shall file a reply in

support of its cross-motion by May 28, 2025.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: February 20, 2025

12