McWatters v. ATF, No. 20-1092, 2024 WL 687966 (D.D.C. Feb. 20, 2024) (Chutkan, J.)

McWatters v. ATF, No. 20-1092, 2024 WL 687966 (D.D.C. Feb. 20, 2024) (Chutkan, J.)

Re:  Request for recording which captures nightclub fire and surrounding events that killed 100 people at a concert in West Warwick, Rhode Island in February 2003

Disposition:  Granting defendant’s renewed motion for summary judgment; denying plaintiff’s renewed cross-motion for summary judgment; denying plaintiff’s motion for reconsideration

• Exemption 6; Exemption 7(C):  “Because ATF relies on both Exemptions 6 and 7(C), the court need not consider Exemption 6 separately.”  “The court thus finds that ATF has properly withheld the first four minutes of the last segment of the recording under FOIA Exemption 7(C) and will grant summary judgment to ATF.”  First, the court finds that “ATF has established a sufficient and significant privacy interest in the withheld recording segment.”  “ATF sufficiently described the privacy interests of the surviving family members of the deceased, who can be heard on the final segment of the recording.”  “Family 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.”  “Here, ATF found ‘strong survivor privacy interests at stake with respect to the four minutes in which human breathing, and perhaps gasping for air, can still be discerned upon a careful review.’”  “The court agrees and has already determined that legitimate privacy interests would be invaded by releasing a recording of the last moments of an individual’s life.”  “The content of those last moments – whether voices, screams, or final breaths – does not alter this analysis.”  “He now cites Supreme Court and Circuit authority that he claims requires the agency to ‘link the record(s) at issue’ to ‘specifically identifiable person(s).’”  “He argues that ATF fails this test because it did not make ‘any reliable connection between the alleged non-verbal human sounds’ on the withheld segment of the recording and ‘any specific person(s).’”  “While it is true that conjecture regarding a pool of some 600 people did not pass muster under Exemption 6, it is equally true that the final moments of the seven astronauts aboard the Challenger were sufficiently protected by Exhibit 6, without any requirement or indication that each noise on that recording be attributable to a specific astronaut.”  “Plaintiff’s request is more analogous to [the Challenger situation]; there is no dispute that the individual heard on the last segment of the tape was one of 100 identified individuals who perished in the fire, and common sense indicates that a smaller number – the individual who carried the tape recorder and those in his immediate vicinity – are most likely the individuals heard on the recording.”  “The families of those individuals, like the families of the Challenger astronauts, are radically more likely to suffer pain upon disclosure than any of the 600 individuals in [another case] whose personal medical diagnoses could not be determined on the base of the disclosure alone.”  “ATF has demonstrated a privacy interest that might be invaded by disclosure.”  “With respect to Plaintiff’s challenge to ATF’s audio review of the final segment and his assertion that ATF’s audio analysis ‘does not properly support’ its conclusion that the withheld segment contains faint sounds of human life, . . . Plaintiff overlooks ATF’s sworn statement that at least one digital media professional also reviewed the segment and concurred with the declarant’s evaluation.”  “That statement, and ATF’s conclusion that faint human sounds are audible, is entitled to a presumption of good faith . . . .”  “Plaintiff introduced no evidence of the agency’s bad faith and presents no authority for his argument that ATF was required to utilize specialized filtering or processing tools.”
  
  Regarding the public interest, the court relates that “[plaintiff] seeks the recording to ‘evaluate’ ATF’s ‘investigation and resulting report’ of the Station Nightclub fire ‘in order to facilitate better fire investigations and fire safety recommendations.’”  “Plaintiff also submitted a declaration by a ‘highly respected fire investigation expert[ ]’ . . . who was previously employed by the National Institute for Standards and Technology (‘NIST’) as a fire prevention engineer.”  “[The expert] states his belief that significant public interests support release of ‘the complete audio file’ of the fire in order to ‘assist with additional public oversight of the investigation of this incident[ ] by allowing professional analysis of the only complete audio time line of that fire . . . .’”  “Neither declarant states a public interest more specific than having the information for its own sake.”  “In the same way that the voice inflections and background noises contained on the recording of the Challenger shuttle’s last minutes did not ‘contribute significantly’ to the public’s understanding of NASA’s operations or conduct, the moments captured on the first half of the withheld segment will not contribute significantly to understanding ATF’s investigation.”  “Plaintiff’s declaration suggests that he expects to find something in the tape that ATF missed.”  “But Plaintiff’s speculation is insufficient to state a significant public interest – on his theory, any law enforcement record would serve the public interest because it, too, would allow the public to ‘evaluate’ an investigation and resulting report.”  “Even assuming Plaintiff’s speculations were correct, he acknowledges that ‘a record which captures the complete and continuous fire incident from start to finish has a significantly higher value for a comprehensive investigation and analysis of this fire incident than more limited “snap shots” of random portions of a fire incident.’”  “But by that logic, the ‘snapshot’ provided by the four-minute segment he seeks would not serve the public interest potentially found in a ‘complete record’ of the fire.”  “Because [plaintiff] has again failed to demonstrate a public interest in the recording’s disclosure, the court ‘need not linger over the balance; something, even a modest privacy interest, outweighs nothing every time.’”
  
  Regarding foreseeable harm, the court finds that “the ‘breathing and gasping sounds’ in the withheld portion of the final segment are ‘no different than those ATF’s declarant heard’ in the second segment of the recording, and the court has already found that both raise significant privacy interests and would cause reasonably foreseeable harm to the interests protected by Exemption 7(C).”  “ATF’s declarant stated that the withheld portion of the final segment of the recording ‘would bring renewed anguish and unnecessary suffering to the surviving family members of the victims.’”  “This specific harm is sufficient where the recording and the tragic fire it captures occurred approximately 20 years ago, and thus many of the family members of the deceased are likely still alive and would suffer from its release.”
   
• Litigation Considerations:  In rejecting plaintiff’s motion for reconsideration, the court holds that “Plaintiff may disagree with the court’s conclusion, but accusing the court of an ‘error of reasoning,’ rather than an error of apprehension, does not constitute a patent misunderstanding of the facts warranting reconsideration.”