NPR, Inc. v. FBI, No. 18-03066, 2020 WL 5095526 (D.D.C. Aug. 28, 2020) (Nichols, J.)
NPR, Inc. v. FBI, No. 18-03066, 2020 WL 5095526 (D.D.C. Aug. 28, 2020) (Nichols, J.)
Re: Request for collection of videos depicting ballistics tests of certain types of ammunition
Disposition: Granting plaintiff's motion for summary judgment; granting in part and denying in part defendant's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court holds that "[h]aving answered each of [plaintiff's] specific objections, the FBI has sufficiently demonstrated that its search was 'a good faith effort . . . using methods which can be reasonably expected to produce the information requested,' . . . and is entitled to summary judgment on that question." The court relates that "[plaintiff] lodged seven objections to [defendant's] declaration." "[Plaintiff] argues that the declaration does not identify (1) why other components were unlikely to have responsive records; (2) any search for records within the Firearms/Toolmarks Unit; (3) the search terms used; (4) whether uniform search terms were used across databases; (5) 'the connectors or Boolean logic operators' used in the search; (6) the systems or software used; or (7) who conducted the search." The court relates that "[defendant] clarified some of those issues in a second declaration" and "explains how a Supervisory Special Agent assigned to the Ballistics Research Facility personally searched the Facility's shared network drives and a standalone desktop computer and manually watched each video to locate responsive records."
- Exemption 7(E): The court holds that "[t]he FBI may not withhold the records under Exemption 7(E)." First, the court notes that "[plaintiff] does not contest . . . that the recordings were 'compiled for law enforcement purposes.'" Second, the court addresses plaintiff's argument that "Exemption 7(E) cannot apply to ballistics tests results because Congress created 'an explicit carve-out' for that category of records." The court relates that plaintiff references "[t]he Conference Report on the FOIA Amendments of 1974 [which] contains the following explanatory language discussing changes to Exemption 7(E): 'The conferees wish to make clear that the scope of this exception against disclosure of "investigative techniques and procedures" should not be interpreted to include routine techniques and procedures already well known to the public, such as ballistics tests, fingerprinting, and other scientific tests or commonly known techniques.'" However, the court finds that "Exemption 7(E)'s text creates no carve-out for ballistics tests, and the Court will not infer one based on legislative history." "In any case, there is nothing in the Conference Report or the cases to suggest that even if ballistics tests were outside the exemption's scope, a comprehensive set of all FBI tests on a particular type of ammunition – conducted not just to submit as evidence in individual criminal trials but as part of a systematic research and development program – would be subject to such a carve-out." "In interpreting other FOIA exemptions, courts have recognized that the amalgamation of many records may create a rationale for withholding that does not exist when each record is considered individually." The court relates that "[t]he FBI argues that the release of all 97 videos might permit savvy watchers to intuit certain lessons about the ways in which the FBI tests ammunition, selects particular rounds for specific missions, or thinks about what sorts of rounds to purchase for its agents – lessons that one or two videos would not convey on their own." "The Conference Report is unhelpful in answering those questions, and the Court declines to consider it."
Third, the court finds that "[defendant's] Declarations and the FBI's briefs are certainly full of conclusory statements about the risk of disclosure, but they provide the Court with little concrete information about how a nefarious actor might translate the information in the videos into actionable intelligence about FBI tactics, techniques, and procedures." "Having viewed the videos, the Court concludes that the FBI's assertion of risks is unfounded." "Each video lasts no more than a few seconds and depicts a bullet striking a gelatin block in slow motion." "The videos do not contain any sensitive government information that might distinguish them from ballistics tests conducted in any other laboratory, and the Court is unable to discern any appreciable risk that the videos' 'disclosure could reasonably be expected to risk circumvention of the law.'"
- Exemption 7(F): "The Court need not discuss the Parties' arguments about the class of individuals who might be at elevated risk of harm, however, because, as with Exemption 7(E) above, the FBI has not justified its assertions that the videos contain any information bad actors might use to harm anyone." "The FBI has therefore not demonstrated that the videos are subject to Exemption 7(F)."