Evans v. BOP, No. 18-5068, 2020 WL 1144613 (D.C. Cir. Mar. 10, 2020) (Sentelle, J.)

Evans v. BOP, No. 18-5068, 2020 WL 1144613 (D.C. Cir. Mar. 10, 2020) (Sentelle, J.)

Re:  Request for records concerning screwdriver used to stab requester and surveillance footage of episode

Disposition:  Affirming in part and vacating and remanding in part district court's grant of government's motion for summary judgment

• Procedural Requirements, Proper FOIA Request:  The Court of Appeals for the District of Columbia Circuit "affirm[s] the district court's judgment as it relates to [the requester's] request for screwdriver records."  The court explains that "[n]othing in the record refutes the Bureau's repeated assertions that it knows nothing about the screwdriver and has no records responsive to [the requester's] demands."  The court finds that "[w]hile appellant correctly points out that the Bureau cannot refuse to conduct a search simply because the request is phrased as a question, the more relevant issue, as noted above, is whether [the requester] reasonably described documents that the Bureau has in fact created and retained."  "The request was . . . 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 reasonable amount of effort."  The court finds that "[i]n light of the Bureau's affidavit stating that [institution] officials did not recognize the screwdriver referenced above, it was necessarily unable to produce responsive records."
   
• Exemption 7(C); Exemption 7(E); Procedural Requirements, "Reasonably Segregable" Obligation; Litigation Considerations, "Reasonably Segregable" Requirements:  The Court of Appeals for the District of Columbia Circuit "agree[s] with appellant that the Bureau failed to justify withholding the footage on this record."  Regarding Exemption 7(C), the court holds that "[s]o far as [it] know[s] 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."  The court finds that "[i]f 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."  Moreover, "[e]ven if [the court] [was] to accept the Bureau's current affidavit as adequately bringing the document within the protection of this exemption, [the court] [is] still confronted with the vagueness of the government's claim of inability to segregate unprotected data."  The court notes that "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 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 court also finds that "[t]he 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.'"  "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.'"  "[The court] do[es] not question the government's good faith on this subject."  "However, [the court] do[es] 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."