McWatters v. ATF, No. 20-1092, 2022 WL 3355798 (D.D.C. Aug. 15, 2022) (Chutkan, J.)

McWatters v. ATF, No. 20-1092, 2022 WL 3355798 (D.D.C. Aug. 15, 2022) (Chutkan, J.)

Re:  Request for recording of February 20, 2003 fire at Station nightclub in West Warwick, Rhode Island inadvertently created by attendee who perished

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

• Exemption 6; Exemption 7, Threshold & Exemption 7(C):  “The court . . . finds that ATF has properly withheld the records under FOIA Exemption 7(C) and will grant summary judgment to ATF on this issue.”  “Because Exemption 7(C) requires a lower threshold for withholding records than Exemption 6, which contemplates a ‘clearly unwarranted invasion’ of privacy, the court addresses Exemption 7(C) first.”  The court finds that “[t]he parties do not dispute that the recording was compiled for a law enforcement purpose, and the agency has made this showing.”
  
  Regarding the privacy interests, the court relates that “ATF invokes what it terms the ‘survivor privacy’ doctrine, asserting the ‘privacy interests of surviving family members of persons who have perished under tragic circumstances.’”  “ATF also raises the specific privacy interests of the attendee’s family members because ‘the recording, . . . all too tragically, captures the final moments of his life.’”  The court finds that “[f]amily members of decedents have a right to personal privacy with respect to images and audio of their close relative’s final moments.”  “The release of audio recordings of a ‘beloved family member immediately prior to that family member’s death’ infringes that right, because it may cause additional pain, disruption to peace of mind, additional anguish, or annoyance or harassment.”  The court relates that “[plaintiff] responds by offering the Declaration of an audio engineer who states that it would be impossible to determine ‘the actual individual personal identities of specific persons from the sounds of human suffering that one would expect to be captured on this type of audio recording.’”  The court finds that “[plaintiff] does correctly point out that there must be more than just a ‘mere possibility’ of a threat to privacy implicated in a record's disclosure.”  “But ATF has met the standard of a ‘mere possibility’ of harm; it has identified some specific voices on the recordings, and the identi[t]ies of those who perished in the fire are known.”  “The court is unaware of any authority requiring ATF to individually identify each victim from their last moments, the court does not find that ATF was required to undergo such an analysis.”  “Thus, ATF has adduced legitimate privacy interests that would be invaded by the release of the recording.” 
  
  Regarding the public interest, the court relates that “[plaintiff] represents that the public interest lies in ‘encourag[ing] the ATF, (and other federal agencies) to adopt and improve fire safety laws and measures to, in order to prevent future catastrophic fire incidents, save lives.’”  “But [the court finds that] it is not clear how the recording will assist in advancing the public interest related to ATF’s performance of its duties.”  “While [plaintiff] invokes ATF in his declaration, he makes no connection between the recording’s contents and ATF’s performance of its duties . . . .”  “The court therefore finds that [plaintiff] has failed to demonstrate a public interest in the recording’s disclosure.” 
  
  “The court thus turns to the balancing test.”  “Here, the families of the many victims heard on the recording, including members of [the band] and the attendee who made the recording, have a significant privacy interest in nondisclosure.”  “By contrast, [plaintiff] has failed to state a public interest.”  “Without any such interest, the court ‘need not linger over the balance; something, even a modest privacy interest, outweighs nothing every time.’”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court relates that “no information is provided as to segregation efforts for the last 8 minutes of the recording, when no human voices are audible, or if that portion of the recording is itself exempt under Exemption 7(C).”  “Because ATF provided at least some information as to segregability, the court will order ATF to provide additional information as to segregability and whether the final 8 minutes of the recording might also be exempt, and to file a renewed motion for summary judgment.”