Stahl v. DOJ, No. 19-4142, 2021 WL 1163154 (E.D.N.Y. Mar. 26, 2021) (Cogan, J.)

Stahl v. DOJ, No. 19-4142, 2021 WL 1163154 (E.D.N.Y. Mar. 26, 2021) (Cogan, J.)

Re:  Request for videos of inmate convicted for 1993 terrorist attacks on the World Trade Center receiving food and rehydration through intravenous therapy and nasogastric tube

Disposition:  Granting defendants' motion for summary judgment in part; denying plaintiff's motion for summary judgment in part; reserving judgment on remainder of motions

• Exemption 7, Threshold:  The court holds that "[the videos] relate to an integral part of the execution of sentences, namely, the BOP's statutory obligation to 'provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States.'"  "[The inmate's] hunger strikes threatened the BOP's ability to fulfill those obligations."  "The BOP responded with the 'involuntary medical treatment' and 'calculated use of force,' and it compiled the videos to document those actions and to guard against allegations of impropriety."  "Under a commonsense understanding, therefore, the videos were 'compiled for law enforcement purposes' within the meaning of Exemption 7."
   
• Exemption 7(F); Procedural Requirements, "Reasonably Segregable" Obligation & Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "Exemption 7(F) covers several segments of the videos."  "First, it applies to the extent that the videos reveal the BOP's procedures for removing prisoners from their cells."  "According to defendants' declarations, the videos describe 'the specific procedures that will be taking place during the calculated use of force, including the order in which specific security measures will be conducted.'"  "The videos also show 'protective gear,' 'security equipment,' and how the staff use that equipment to restrain an inmate, remove him from a cell, and move him to another part of the prison."  "Disclosing this information would enable inmates to circumvent the procedures, threatening the BOP's ability to perform them safely."  "Thus, to the extent the videos show these procedures described above, the videos fall within Exemption 7(F)."  "Second, the exemption prevents disclosure of the staff's names, titles, and responsibilities."  "Although [the inmate] was not the requester in this case, his criminal history still cautions against identifying the staff in the videos."  "The Court cannot ignore that [the inmate] helped orchestrate a terrorist attack that killed six people and sought to kill thousands more."  "He also has connections to international terrorist organizations."  "Releasing the names and titles of the staff in the video could reasonably be expected to expose them to retaliation or reprisals."  "To the extent the videos reveal this information, they fall under Exemption 7(F)."  "[The court] further conclude[s] that, for these segments, any non-exempt information is not 'reasonably segregable' from the exempt information."  "Without the information regarding the procedures or the staff members' identities and responsibilities, these segments 'will be of little or no value.'"
  
  However, the court finds that "there is another, reasonably segregable portion that Exemption 7(F) does not reach:  the segment that shows medical staff conducting the physical examination, ordering that [the inmate] undergo involuntary medical treatment, and implementing that treatment ('the remaining portion')."  "The remaining portion does not raise the concerns that justify withholding the other portions of the video under Exemption 7(F)."  "First, disclosing how the BOP performs a physical examination, orders that an inmate undergo involuntary medical treatment, and implements that treatment could not 'reasonably be expected to endanger the life or physical safety of any individual' in the same way as disclosing the procedures for a cell extraction."  "By defendants' own account, the 'involuntary medical treatment' is a last resort, reserved for instances in which an inmate's health has deteriorated to such an extent that the inmate needs immediate medical attention."  "Defendants have not shown that, in such a state, an inmate could reasonably be expected to have the strength to resist in a way that would endanger BOP staff."  "Additionally, much of the remaining portion shows the events that unfold after an inmate is restrained."  "Second, to the extent the remaining portion reveals the staff's identities, that information is 'reasonably segregable' from non-exempt information."  The court explains that "just as defendants could redact an individual's name from a document, they could blur the faces of the medical staff, crop the videos, or even isolate screenshots."  "Although defendants insist that 'the BOP does not have the technical capacity to edit or redact exempt information,' other courts have roundly rejected this argument – and for good reason."  "At all levels of government, video technology has become commonplace, seen everywhere from the officer’s bodycam to the prison's security camera."  "Video-editing software has necessarily followed suit."  "Because editing is routine and inexpensive, an agency cannot credibly claim that it lacks access to this technology."  "And if acquiring this software could stand in the way of complying [with] FOIA, no video would ever be disclosed."  "Of course, acquiring technology can sometimes be infeasible or prohibitively expensive."  "In these instances, 'excision of exempt information would impose significant costs,' rendering the exempt and non-exempt information 'inextricably intertwined.'"  "But defendants' conclusory assertions do not make that showing, so [the court] cannot conclude that Exemption 7(F) covers the entirety of the videos."
   
• Exemptions 6 & 7(C); "Reasonably Segregable" Obligation & Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds that "[t]he staff here face more than harassment and embarrassment – they face reprisals and retaliation."  "Once again, [the court] cannot ignore the gravity of [the inmate's] crimes or his ties to international terrorism."  The court also finds that "[f]or segments of the video, plaintiff cannot make [the public interest] showing."  "In large part, plaintiff addresses whether the public has a right to be informed about what actions the government takes."  "But it does not always follow that the public has a right to be informed of who in the government takes those actions."  "The government employees here are career officials, not publicly accountable policymakers or elected officials."  "[The court] hold[s] that the identifying information in the remaining portion falls under only Exemption 7(C)."  "At this point, however, defendants are no better off than under Exemption 7(F). Defendants have not explained why they cannot edit the video to obscure the identities of BOP staff, just as they could redact a written document."
   
• Exemption 7(E):  "[The court] . . . hold[s] that, on the evidence defendants have submitted, Exemption 7(E) does not apply to the remaining portion of the videos."  The court finds that "defendants have not explained, even at the most general level, what the BOP could have been 'investigating' or 'prosecuting' while recording the remaining portion."  "Nor have they explained why disclosure would compromise their ability to perform investigations or prosecutions."  "Instead, they insist that they can withhold the videos because they have classified them as 'evidence.'"  "But evidence of what?"  "Defendants have no answer to this fundamental question."  The court relates that "[defendants] repeatedly characterize the procedures as 'medical treatment.'"  "But here, as in most cases, medical treatment does not relate to 'investigations.'"  "In their final efforts to circumvent the statutory text, defendants take increasingly broad positions."  "They first argue that disclosure would 'undermine the security of the institution.'"  "But disclosure can undermine security without revealing techniques and procedures for 'investigations' or 'prosecutions' – that is why Congress provided a separate exemption for information that 'could reasonably be expected to endanger the life or physical safety of any individual.'"  The court also relates that "Defendants next argue that disclosure would impede the BOP's 'ability to fulfill its mission as a law enforcement agency.'"  "As we have seen, however, 'law enforcement' goes beyond 'the investigation and prosecution of offenses,' . . . and also reaches 'the execution of sentences in criminal cases' . . . ."  "The remaining portion arose in that second context, not the first."  "Defendants cannot avail themselves of this distinction at the threshold analysis, only to abandon it later on."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "defendants have demonstrated that the remaining portion contains some exempt information, but their submissions leave open questions as to whether that information is 'reasonably segregable' from non-exempt information."  "In these circumstances, [the court] cannot make the segregability findings that would allow [it] to grant summary judgment in favor of plaintiff or defendants."  "[The court] will therefore reserve judgment on the parties’ motions to the extent they concern the remaining portion of the videos."