Nat'l Pub. Radio, Inc. v. FBI, No. 18-03066, 2021 WL 1668086 (D.D.C. Apr. 28, 2021) (Nichols, J.)
Nat'l Pub. Radio, Inc. v. FBI, No. 18-03066, 2021 WL 1668086 (D.D.C. Apr. 28, 2021) (Nichols, J.)
Re: Request for videos depicting ballistics tests of certain types of ammunition
Disposition: Granting defendants' motion for reconsideration; granting defendants' motion for summary judgment
- Exemption 7(F): "The Court . . . concludes that the FBI has adequately justified withholding the videos because their release 'could reasonably be expected to endanger the life or physical safety of any individual,' . . . and thus that they are properly withheld under Exemption 7(F)." "[The] new details provide the Court with the basis for the FBI's Exemption 7(F) argument that was lacking in the first round of briefs." "Before, the Court had only the FBI's conclusory statements asserting that the videos could 'inform criminals as to the ability of different types of ammunition to harm individuals' and 'enable criminals to make informed decisions on how best to injure others through the use of specific types of ammunition.'" "But the initial briefs and declarations provided no specific explanation of how those risks could materialize, and the Court was left to base its decision on generalized and conclusory assertions." "In its new declarations, the FBI finally connects the dots: the videos at issue provide a comprehensive 'library' that would 'provide criminals a playbook for which bullet damage patterns seem more significant than others . . . thus educating their selection of ammunition to be use[d] during . . . violent encounters.'" "And the FBI's research also has implications for the safety of its own agents: the FBI utilizes such research to make decisions regarding 'weapons and protective gear.'" "Because the videos portray the FBI's data-gathering efforts regarding bullets' 'ability to inflict the most effective wound to a human adversary,' . . . they could allow nefarious actors to select ammunition that would 'inflict greater damage to their intended target [or] law enforcement officer[s] responding to crime scenes' . . . ."
- Exemption 7(E): "Although the Court is not required to address the applicability of a second exemption after it has found withholding proper under the first, . . . it also reconsiders its prior conclusion regarding the FBI's 7(E) assertion." "The Court . . . concludes that the FBI has provided a 'reasonably detailed justification' for withholding the videos under Exemption 7(E)." The court finds that "the FBI has described the ballistics tests depicted in the videos at issue, explained why it uses such tests, asserted that several aspects of the tests are not publicly known, and given a reasonable explanation for how disclosure could possibly help criminals to act badly." "[Plaintiff's] claim that the FBI has already published the settings for its ballistics tests is unpersuasive." "Although the FBI conceded at oral argument that the gelatin blocks used for the tests are widely used and available to the public, it argues that several other aspects of the tests – including the camera settings and the angles from which ammunition is released – are not." "[T]he FBI protects the 'projectile technology' displayed within the videos with non-disclosure agreements when contracting for the ballistics tests." Additionally, the court finds that "[plaintiff] cannot claim a 'public-domain exception' to FOIA exemptions because it has not located the exact same records in public circulation – it merely claims that ballistics videos have generally been admitted into evidence." "More important, there is a qualitative difference between the use of individual videos at trial and production of a compilation of every single video the FBI has made." Regarding circumvention, the court finds that "[i]n addition to its explanations regarding criminals' lethality, discussed above, the FBI contends that the full library of videos 'would arm adversaries with the foundational information about the offensive and defensive capabilities of law enforcement,' . . . and that those adversaries could use the information contained in the videos 'to circumvent the law by modifying the types of ammunition they use when dealing with law enforcement,' . . . ." "More specifically, the FBI contends that the subset of ammunition tested by the FBI would assist criminals trying to identify the specific types of ammunition that are most effective in a firefight."
- Litigation Considerations, Vaughn Index/Segregability: The court holds that "[plaintiff's] contention that the FBI should be required to provide individual justifications for withholding each video does not make sense here, as the FBI is withholding each video on the same ground (and because production of all of the videos together would create a risk of harm as described in the declarations . . . ." "For the purposes of the withholdings in this case, all of the videos are the same; they merely recreate the same tests using different kinds of ammunition." "Here, the FBI's reason for withholding one video is the same as for all the others, and – to the extent that NPR argues that the FBI should distinguish each responsive video – differentiating among the videos (e.g., by type of ammunition tested) may effectively disclose some of the exempt material."
- Litigation Considerations, "Reasonably Segregable" Requirements: The court relates that "[t]he FBI has asserted that it 'is unable to reasonably segregate any of [the videos] for release as these videos consist wholly of ballistics testing, . . . how the FBI investigates the use of particular types of ammunition[,] and the performance capabilities of certain types of ammunition and their ability to wound.'" "In any event, it is unclear how the FBI would segregate or redact a video when the content NPR is seeking is the content that poses a risk."