Duda v. DOJ, No. 24-1048, 2025 WL 2418404 (D.D.C. Aug. 21, 2025) (Alikhan, J.)

Duda v. DOJ, No. 24-1048, 2025 WL 2418404 (D.D.C. Aug. 21, 2025) (Alikhan, J.)

Re: Request for audio recordings related to investigation of Emmett Till’s murder

Disposition:  Granting in part and denying in part defendants’ motion for partial summary judgment; granting in part and denying in part plaintiff’s motion for partial summary judgment

• Exemption 7(D):  “Given the parties’ competing assertions, the court concludes that in camera review is the only way to resolve this [issue].” Regarding a potential implied promise of confidentiality, the court finds that “[Defendant] avers that ‘[t]he FBI was able to determine [that] its investigators granted [the Bryant Audio witness] an express assurance of confidentiality because it located positive indicators in the related records that the individual requested, and was granted, an assurance of confidentiality.’”  “[Plaintiff] counters that [defendant] did not have personal knowledge of – and was not even with the Bureau during – the FBI’s 2004 investigation into Mr. Till’s murder.”  “In [plaintiff’s] view, then, the declaration cannot offer anywhere near the level of ‘detail and specificity’ required to justify a withholding under FOIA.” “[Plaintiff] offers the declaration of [another individual] as a direct rebuttal.”  “[This individual] served in the FBI from 1996 to 2018 and was ‘the case agent who led the FBI’s 2004 investigation into the kidnap and murder of Emmett Till.’”  “By [this individual’s] own telling, ‘[he was] the individual who received [the Bryant Audio] on behalf of the FBI in 2005 and know[s] that the individual who provided this recording is now deceased.’”  “[This individual] further attests that the record evidence seriously undermines Defendants’ assertions of confidentiality.”  “As he explains, and as the FBI’s own investigative report confirms, the person who provided the FBI with the Bryant Audio was a ‘cooperating witness.’”  “A ‘cooperating witness is someone who agrees to assist the government in prosecuting a criminal defendant by providing testimony or other valuable information.’” “According to [this individual], such witnesses ‘know that their identity[ ] and the information they provide[ ] [are] likely to be disclosed if criminal prosecution is pursued.’”  “This sets them apart from ‘confidential informants,’ who ‘do not agree to provide testimony and would expect the FBI to protect their identity.’”  “In a supplemental declaration, [defendant] tries to contest this by contending that the ‘[c]ooperating [w]itness’ designation ‘is a positive indication [that] this individual entered into an official, confidential relationship with the FBI in which he or she would have, by standard FBI practice, been provided with the FBI’s express assurance of confidentiality.’”  “It is unclear, however, if [defendant’s] evidence . . . [of] confidentiality’ is supported by anything beyond ‘positive indicators in the related records.’”
  
  “The biggest problem for Defendants, however, is that their own actions may have already given the game away.”  “If the individual who provided the . . . Audio is indeed [the protected individual], as [plaintiff] asserts, then the FBI’s disclosure of his communications in the Form FD-71 suggests that he did not receive any guarantees of confidentiality.”  “Presumably, the FBI would not reveal the identity of a witness in a public disclosure if that witness asked for, and was granted, an assurance that the Bureau ‘would not divulge the communication.’”  “Conversely, if the . . . Audio witness was not [the protected individual], or if further information reveals that [the individual] was given an express assurance of confidentiality, then Defendants are far likelier to succeed on their Exemption 7(D) argument.”  “If that is the case, the source remains either unknown or confidential and all the grave harms of divulging the identity of a confidential source may justify the exemption.”  “That said, the FBI would still have to reckon with the fact that it revealed statements from the . . . Audio to the public in its 2006 report.” “Specifically, it would need to explain how an express assurance of confidentiality would have allowed some disclosures in 2006, but not other disclosures from the same recording in 2024.” “Other than through in camera review, the court sees no way to cut through the parties’ warring declarations.” “Such review will permit the court to determine the basis for [defendant’s] assertions that express assurances were granted and reach a definitive conclusion on whether the Exemption 7(D) withholdings were proper.”
  
  Regarding a potential implied promise of confidentiality, “[o]n balance . . . the court concludes that the . . . Audio witness did not have an implied assurance of confidentiality.”  As to the first confidentiality factor, “[t]he crime here was clearly a serious one, thus increasing the level of risk to any cooperating individual.”  As to the second factor regarding the source’s relationship to the crime, “[d]efendants claim that the danger was particularly high because the witness ‘was in a position to have close proximity with [one of the perpetrators]’ and that ‘[one of the perpetrators] was unaware that the [witness] was recording the discussions.’”  “As a result, the witness ‘risked harm when cooperating with the FBI because[,] at the time of the recording[,] [he or she] was within the orbit of an individual known to have been involved in a crime of extreme violence.’”  “But this distorts the timeline of events in an attempt to manufacture a sense of danger.”  “While the witness was in close proximity to [the perpetrator] at the time of the recording in 1985, that does not mean he or she was in danger at the time they turned the recording over to the FBI in 2005, well after [the perpetrator] had died.” “By the time the witness decided to come forward with his information, nearly everyone known to be involved in the crime was already dead.”  The court then finds that “[t]he third factor simply asks whether the source was paid for his or her information.”  “There are no indications that that occurred here.”  As to the fourth factor, “[h]ere, as far as the FBI’s report reveals, the interaction between the . . . Audio witness and law enforcement appears to have been fleeting.”  “There are no indications that the source, who was not even associated with law enforcement at the time of the recording, maintained a long-lasting relationship with the FBI.”  “Defendants make no arguments to the contrary.”
   
• Exemption 6; Exemption 7(C):  “[T]he court concludes that Defendants’ invocation of Exemptions 6 and 7(C) to redact all mentions of third parties in the . . . Audio was unreasonable.”  “Regardless of the court’s ultimate ruling on Exemption 7(D), Defendants have withheld other portions of the . . . Audio pursuant to Exemptions 6 and 7(C).”  “Here, the disputed withholdings under Exemptions 6 and 7(C) entirely concern ‘the names and other identifying information of third parties merely mentioned in the audio recordings.’”  First, the court finds that “in their reply brief . . . Defendants . . . obfuscate the precise methodology employed by the FBI to ascertain life-or-death status in this case.”  “They explain that, ‘[i]n the instant context of an audio recording where . . . there is no specific date of birth for the FBI to analyze,’ the FBI ‘presumed individuals were deceased based on the 100-year rule.’”  “The obvious problem with this method, however, is that it requires a birth date as a baseline.”  “Without one, the agency cannot even begin to guess whether the individual is dead or alive.” “Defendants contend that the D.C. Circuit has repeatedly upheld the 100-year rule.”  “That is true enough, but even the Circuit has identified the precise problem that plagues Defendants here.”  “The Court has stressed that the rule only works ‘[w]hen birth dates are provided in responsive records.’”  “The FBI’s problem is further compounded by the fact that ‘the names mentioned in the audio recording lack clear identifiers,’ leaving the FBI with ‘insufficient information . . . to allow [it] to conduct a reasonable search within open source databases or internal records.’”  “Without more, it appears as though the agency was simply guessing as to life-or-death status.”  “That cannot be enough, especially when virtually everyone else with a known connection to Mr. Till’s murder is already known to be dead.”  “But even assuming that the third parties appearing in the Bryant Audio are still alive, this does not end the matter.”  “The court must still determine if their privacy interests outweigh the public’s interest in shedding light on agency action.”  “On this score, the court agrees with [plaintiff].” “According to [defendant’s] declarations, the FBI determined that the relevant privacy interests prevailed each time a third party’s voice or name ‘c[ould] be heard in the background of the audio recordings.’”  “But while these individuals still retain some interest in not appearing in a law-enforcement record, it is unlikely that every single mention of a third party in the . . . Audio would constitute an unwarranted invasion of privacy, especially if those mentions were only in passing or carried no incriminating implication.”  “This is especially so given that ‘the names mentioned in the audio recording lack clear identifiers,’ to the point that not even the FBI could ‘conduct a reasonable search’ for their identities.”  “It is unclear how these individuals can hold significant privacy interests when even the FBI – our country’s leading investigative agency – cannot find enough useful information to tie these names or voices to any identifiable person who is alive today.” “For the same reasons, Defendants cannot ‘concretely’ show that disclosure would result in foreseeable harm.” “Of course, there is always a generalized fear that being associated with law enforcement in any form could generate public backlash or stigma.”  “But merely speculating that such harms will befall these difficult-to-identify third parties is not enough to defeat FOIA’s primary purpose of shedding light on government activities when the countervailing public interest is strong.”  “Here, the weight on the other end of the scale is a hefty one.”  “The murder of Emmett Till is one of the most consequential acts of racial violence in American history.”  “Because [plaintiff] seeks information that would shed light on the FBI’s handling of this historically consequential crime, disclosure could ‘reveal much about the diligence of the FBI’s investigation and the DOJ’s exercise of its prosecutorial discretion:  whether the government had the evidence but nevertheless pulled its punches.’”
   
• Litigation Considerations, Evidentiary Showing, “Reasonable Segregable” Showing: “Because the assertions in Defendants’ affidavits create reasonable doubt on segregability, the court holds that Defendants have not satisfied their obligation to disclose non-exempt portions of the . . . Audio.”  [Defendant’s] declarations contain just three paragraphs on segregability and assert that, of the one hour and forty minutes of . . . Audio, only thirteen minutes and fifty-four seconds were not exempt.”  “Of those roughly fourteen minutes, about one minute comprised audio that had already been released, and the remaining thirteen minutes were ‘white noise.’” “In total, then, out of the approximately 100 minutes of . . . Audio, only a single substantive minute was non-exempt.”  “As [plaintiff] persuasively argues, ‘[t]o the extent redaction were deemed necessary [under Exemption 7(D)], the FBI could readily disclose the portions of the . . . Audio containing the source’s voice that do nothing to reveal his [or her] identity or, in the alternative, with modulation as a redaction method.’” “At the very least, Defendants must be able to ‘explain why the possibility of some similar method of segregability is unavailable.’”  “As for the withholdings justified under Exemptions 6 and 7(C), it is also unclear why the FBI could not simply redact any mention of a third party (assuming that those third parties’ privacy interests override the weighty public interests at play . . . ).”