[00:00:00] Speaker 01:
Case number 18-5068, Michael S. Evans, Appellant versus Federal Bureau of Prisons.

[00:00:07] Speaker 02:
Mr. Holtzblatt for the Amicus Curiae, Mr. Walker for the Appellate.

[00:01:06] Speaker 01:
Good morning.

[00:01:07] Speaker 03:
May it please the court, Ari Holzblatt, appointed amicus for appellant Michael Evans.

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This appeal is about just how thin a record the government can present to a court to justify withholding or not searching for records under FOIA.

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The Bureau of Prisons withheld completely

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a video showing another inmate assaulting Evans with a screwdriver, and it refused to search for records that could show how that screwdriver made it into the prison.

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But it failed to provide various facts needed to establish that withholding or not searching for those records was lawful, leaving the district court with a legally insufficient basis to grant summary judgment.

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Starting with the video,

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My plan is to first address Exemption 7E, then Segregability, and then Exemptions 7C and F.

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Exemption 7E applies only to disclosure of specific and unknown law enforcement techniques or procedures that threaten circumvention of the law.

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The Bureau invoked 7E on two grounds.

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First, it said prisoners might use the video to circumvent surveillance in the FCI Gilmer dining hall.

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But critical facts are missing from the record, namely whether the cameras are hidden,

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and whether footage from even one camera would disclose blind spots.

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The three features on which the government relies aren't enough.

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that the footage shows several different camera angles, that it demonstrates the location of cameras, and that it shows the field of view during the assault.

[00:02:48] Speaker 06:
The government's submission was thin.

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You're absolutely right about that.

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But why isn't it almost self-evident that the tape would show what the government, what the prison

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can see and therefore would also reveal the blind spots, what they can't see.

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I don't know whether there are blind spots in the FCI Gilmer dining hall.

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There are obviously multiple cameras that surveil the dining hall as there were multiple angles shown on this video alone.

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If there are no blind spots, then revealing

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what the cameras here can show would not threaten circumvention.

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Now, it may be that there are blind spots, and it may be that on remand, the government, in its declaration, will be able to substantiate the... Yeah, I understand and I know that we have cautioned that it is not to be the norm for the court to make an in-camera inspection in four-year cases.

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But we never said the court can't.

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good occasion for the court to examine in camera to see whether there were, in fact, blind spots?

[00:04:06] Speaker 03:
Absolutely, Judge Sintel.

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I think that's the, when the, as this court actually said in the Campbell case, where there's a question of this sort about whether the record is sufficient, the solution is for the court to review the documents in camera rather than to

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passively accept an agency's unsubstantiated exemption defense.

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And as Your Honor said, the record here is thin.

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I think that record could either have been supplemented by an adequate declaration that substantiated the threat of circumvention.

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It could also have been supplemented by the court reviewing the video.

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We don't have the video.

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The court didn't have the video, and so we are

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entirely dependent on the Bureau, which does have the video to explain what can be seen here.

[00:05:06] Speaker 06:
A note of why... It's a fair point that perhaps Chief Judge Howell could or should have looked at this more closely.

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But on the other hand, I mean, there's

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There's a little bit of unfairness to her when we have very competent counsel on appeal coming in and making a set of arguments that weren't presented to her below.

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When this issue was teed up to her, the government moved for summary judgment under Exemption 7, your client didn't even contest

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the applicability of the exemption.

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You just said this is segregable and I want the video for a specific purpose which can be controlled.

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It doesn't need to be put out in the public.

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It can be privately viewed.

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So she never had a chance to consider any of that.

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Your Honor, the concern I have is for the law that this circuit will make if it affirms on this record.

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The three features that are in the record, the location of the cameras, the angle of the cameras in the field of view during the assault, are true of all

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video cameras.

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The consequence of affirming on that record is to categorically exempt prison surveillance video.

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That means that video showing excessive force by guards, video showing preventable inmate deaths, denial of medical care would all be withheld.

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There's no Ben 7E.

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And that would frustrate FOIA's purpose, which is to inform citizens about what their government is up to.

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So I think

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In this circumstance, it is incumbent on this court to get the law right in light of the record that is here, and I presume why the court appointed me, Amicus, to present these issues to the court.

[00:07:10] Speaker 02:
I do want to talk, Your Honor, about... I don't read there are 70 paragraphs even saying there are blind spots.

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Am I missing it?

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I don't read the declaration as saying that there were blind spots.

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They were worried about disclosing.

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That's correct, Your Honor.

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The declaration does not say that there are or are not blind spots.

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The methods employed in responding doesn't reference preventing detection, but that could be using other inmates to screen your activities.

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That doesn't mean there's blind spots on the cameras.

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That's right, Your Honor.

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It doesn't say, though, that there are blind spots.

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It just says that they could disclose blind spots.

[00:07:50] Speaker 01:
It doesn't mention blind spots.

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It does not say that there are blind spots.

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It doesn't say there are?

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That's right.

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The government's brief speaks to hypothetical blind spots.

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The record does not speak to blind spots or not blind spots.

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And this is exactly, if there are a concern about blind spots, it's something that could be put in the record.

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It doesn't even reference a concern about disclosing whether or not there are blind spots in the declaration.

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I'm sorry.

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It doesn't even reference, I can see why they might want to say we've got blind, I don't want to say we've got blind spots, I don't want to get out there, they just say, they don't even reference as a 70 interest here, a concern about whether revealing, revealing whether there are or are not blind spots.

[00:08:36] Speaker 03:
That's right, Your Honor.

[00:08:37] Speaker 06:
I do want to address the question about, I mean, they say,

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Location of video cameras, which is not the greatest formulation in the 7E paragraph.

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They also have in paragraph 10, they say the video shows several different camera angles.

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It seems a little bit closer to saying this would expose the range of our field of vision.

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Your Honor, I agree that the field of view during the assault, the camera angle, and the location of the video cameras is revealed by the video.

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That's true of all video.

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All video inherently reveals those three features, but not all video reveals blind spots in a surveillance system, because some surveillance systems successfully surveil the area without blind spots, and some do not.

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And that's where more information is needed

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in a FOIA context where the description has been provided could lead to exempt records or it could describe non-exempt records.

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We need more information from the government to be able to distinguish between those two options.

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The records show this is a sort of a cafeteria type area, not cells or hallways.

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Does the record show, I guess my assumption, but it could be ill-informed, is that there are a lot of guards around?

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Does the record show anything about that?

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All the record says is that BOP guards responded to the assault.

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So presumably there were guards either in or outside the dining hall, and they were able to respond to the assault.

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As I said, I wanted to turn to segregated mobility.

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I want to make sure to

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to touch on that.

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The government's other explanation for fully withholding the entire video is that it can't blur the faces in the video and so must withhold all the footage under both Exemption 7C and 7F.

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I think both of the 7C and 7F concerns would be addressed

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If you could blur the images, the only... Assume that the concern is circumvention, law enforcement circumvention because of line stops, just for the sake of argument.

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That would be inherent in the video.

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There'd be no way to segregate

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to protect that piece of information.

[00:11:20] Speaker 03:
Your Honor, I don't believe that all video discloses blind spots.

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Some does and some doesn't.

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I understand.

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But if the court believed that disclosing this video would disclose blind spots, then I agree that segregation... It's a different... I'm going to ask you, if you really want to complete this, would it not be the

[00:11:42] Speaker 04:
likely that at least there could be screenshots that could show the very instances around the time of the alleged incident without revealing anything but blind spots because you're showing only one camera's results if you use something like screenshots.

[00:12:00] Speaker 04:
Absolutely, Your Honor.

[00:12:01] Speaker 04:
That would be ultimate saverability that you could savergate out five or six screenshots or two or three screenshots without revealing anything along with the origin.

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That's correct, Your Honor, and in fact the... As far as the technology, they could bring a 14-year-old to do that.

[00:12:18] Speaker 03:
Your Honor, I agree with you about how easy it would be to do that.

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The declaration does say that there are multiple camera angles shown, and I think one option as well would be to only show video from one of the cameras instead of from multiple cameras.

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then there would be knowledge that there were still other cameras surveilling the dining hall.

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On the segregability question, which I did want to make sure to touch on, this blurring the faces concern, the only explanation the government offers is that they don't have the technology

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to blur the faces.

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That's not the test under this court's law.

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The test for whether the records are inextricably intertwined is one, would they impose significant costs, and there is nothing in the record.

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It would be akin to the government saying that

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It can't redact names and addresses from a document because it doesn't have black markers or Adobe Acrobat.

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This court, I think, would say go buy them.

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And that's what it should say here, unless doing that would impose significant costs.

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If the court doesn't have any further questions, I want to revert.

[00:13:28] Speaker 02:
Sorry.

[00:13:28] Speaker 02:
Go ahead.

[00:13:28] Speaker 02:
Sorry.

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I was going to reserve my time for rebuttal, but if the court has further questions.

[00:13:32] Speaker 02:
We'll give you some time for rebuttal.

[00:13:33] Speaker 02:
I had a question about the

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The other issue, the FOIA request for records involving the screwdriver.

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What I was wondering is, this is an unusual case where there's actually been litigation in another federal court, West Virginia, and ultimately the Fourth Circuit, on the allegations that this was a BOP screwdriver or that it was related to anything the BOP owner did.

[00:13:59] Speaker 02:
And there are actual factual findings in that litigation that whatever this was, it wasn't BOP's.

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They didn't know where it came from.

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It didn't belong to them.

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So why isn't that putting aside the formulation of his amended FOIA request, why wouldn't that just control the answer to whether they did an adequate search if there's already findings that they've got?

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It's not theirs.

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They've got no records.

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Would that not bind us here?

[00:14:31] Speaker 03:
I don't believe it's binding, but I also, the critical fact that's missing in the record here is who the FOIA office spoke to at the prison about whether this was a BOP.

[00:14:43] Speaker 02:
That's what I'm trying to ask is, is that critical when you already have a factual finding and fully litigated, fully litigated issue and litigation involving a very client, I'm sorry, person you represent as amicus in this case, the appellant here,

[00:14:59] Speaker 02:
that it's not, we don't, we already have a finding, there's no one to ask, no matter who you ask, the answers, it's asked and answered already and that is it's not theirs.

[00:15:08] Speaker 02:
It's not one of their tools.

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It's not something they know anything about or have any paperwork about.

[00:15:12] Speaker 02:
Shouldn't that be the end of that?

[00:15:13] Speaker 03:
Well, so Your Honor, and I'm going to get into the weeds of what I think Mr. Evans, who I don't represent, but who I think what his theory is and why I think he would want an opportunity to develop the adequate search record on this issue.

[00:15:26] Speaker 03:
The affidavit that was submitted in that litigation was from the tool officer, the tool room officer.

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Mr. Evans' theory appears to be that this is an accessory to maintenance or recreation equipment.

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And it may be that the person most familiar with maintenance and recreation equipment in the prison is not the tool room officer, but is someone who manages the maintenance and recreation equipment.

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And so what could happen, and I just don't know because Mr. Evans didn't have an opportunity to litigate this issue because this was not the ground that was decided below, is if the government were to submit the affidavit from the tool room officer, Mr. Evans might

[00:16:13] Speaker 03:
Well, I don't think that's an adequate search because what you have to do is ask the person most likely to be familiar with this tool.

[00:16:19] Speaker 03:
What I've said in my request is that it's an accessory to maintenance and recreation equipment.

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I would like you to ask that person.

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And so I think that's the reason why we argued in our brief that the right step here is something to remand, to reverse on the one issue that I think even the Bureau agrees is wrong, which is that requesting existing records in the form of question is still a request for existing records, and then let this other issue, the surge, be developed factually below.

[00:16:51] Speaker 06:
Just back to the video for a second.

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On the question of remedy,

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You made a couple of references to things the district court might do on remand.

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So would you be satisfied if we were to set aside the district court opinion, send it back, and leave open for her the question of whether to ask the government

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for a more elaborate affidavit or view the video in camera or whatever as opposed to just an outright reversal which says turn over the video.

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So I want to be careful how I answer, Your Honor, because I don't represent Mr. Evans.

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And so Mr. Evans filed a fourth brief, a sur-reply, and there was actually a debate below whether he had cross-moved

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for summary judgment or not.

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That being said, in many FOIA cases, what often happens, and it happened, for example, in the Crewe case where a concern about the thinness of the record was the main concern for the court.

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This court remanded, and exactly what you just described, Your Honor, happened, which was that the government was given an opportunity to

[00:18:17] Speaker 04:
There's also a case from 1998, the Summers Green Department of Justice, where it did not involve videos, but it did involve questions of signalability, where the district court had not made a detailed review

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send it back to the district court, refer the proceedings, and ask for the district court to give us a record that explains why it was not significant.

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Even though, under the summary judgment rule, we could theoretically do this ourselves, because we are taking it in notes.

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But in that summary opinion, we did say that summary judgment just wouldn't work that way.

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We really couldn't do this ourselves with any judicial efficiency.

[00:19:10] Speaker 04:
So this would be at least analogous to that, although that involves written documents rather than involves the secret files of Jig or Hoover.

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Where this involves a video tape, it still would be the same kind of principle.

[00:19:21] Speaker 04:
So a remedy, an appropriate remedy could be to send it back to that kind of proceeding, could it not?

[00:19:27] Speaker 04:
I think you're right, Your Honor, yes.

[00:19:28] Speaker 04:
Thank you.

[00:19:43] Speaker 07:
Good morning, Your Honors.

[00:19:43] Speaker 07:
May it please the Court, Johnnie Walker with the United States Attorney's Office on behalf of the Bureau of Prisons.

[00:19:48] Speaker 07:
I would like to take up the issue of blind spots.

[00:19:51] Speaker 07:
I believe Amica seems to assume that unless the Bureau can prove that there are blind spots in its cafeteria, that we have failed to meet our burden under execution.

[00:20:04] Speaker 05:
Yeah, why are you in a good position?

[00:20:05] Speaker 07:
Well, let's start with the 7E test.

[00:20:08] Speaker 07:
We know from Blackwell and from Mayor Brown that it is a low bar.

[00:20:11] Speaker 07:
What the Bureau has to show is that there is a chance of a reasonably expected risk of circumvention of the law.

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Because what we know from the record is that disclosure of the video would reveal multiple camera angles in the dining hall.

[00:20:30] Speaker 07:
We know because Mr. Evans requested all responsive videos of this instance.

[00:20:35] Speaker 04:
Do we know that there are any blind spots?

[00:20:37] Speaker 07:
We don't know that there are blind spots, but what we do know.

[00:20:39] Speaker 04:
In the world, can this be a reasonable reason for it?

[00:20:43] Speaker 04:
The presumption is you have to disclose under point.

[00:20:47] Speaker 04:
You're telling me an exemption, the burden is on you.

[00:20:50] Speaker 04:
So if all you can say is, well, there might be a possibility

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that something could be disclosed.

[00:20:54] Speaker 04:
How does that meet your burden?

[00:20:55] Speaker 07:
What I submit, Your Honor, is that there do not have to be blind spots, because there are multiple cameras.

[00:21:01] Speaker 04:
I'm hearing you submit, but I'm not hearing why.

[00:21:03] Speaker 07:
Well, there are multiple cameras in the dining hall for a reason, because the Bureau surveillance system attempts to capture activity in the dining hall from multiple angles.

[00:21:12] Speaker 07:
If we reveal multiple security angles, even if it does not reveal a blind spot,

[00:21:16] Speaker 07:
It would allow an inmate to direct their activity away from at least those camera angles and thereby create a... So I can show whether the cameras are visible or not?

[00:21:27] Speaker 07:
The record does not show where the cameras are physical.

[00:21:29] Speaker 07:
It is somewhat implied because the declaration says that the videos would reveal the location of the cameras, which indicates, I believe, that the cameras are not visible.

[00:21:43] Speaker 07:
But what is really the concern, and this is expressed in the declaration... Wait, I'm sorry, are not visible?

[00:21:49] Speaker 07:
That's correct, because it does say that it would reveal their location.

[00:21:52] Speaker 07:
But what is really concerning, and this is expressed in the declaration, what is the concern is that revealing the area captured by the cameras would permit an inmate to modify their behavior to avoid detection.

[00:22:04] Speaker 07:
And that doesn't necessarily have to be finding a blind spot.

[00:22:07] Speaker 07:
It could simply be directing activity away from the several camera angles that would be revealed by releasing this record.

[00:22:15] Speaker 00:
Are there guards usually in this room as well?

[00:22:17] Speaker 07:
I'm sorry?

[00:22:18] Speaker 00:
Are there usually guards in this room, or is it kind of a free for all?

[00:22:20] Speaker 07:
There were guards in this case.

[00:22:22] Speaker 07:
We know that there were prison officials who responded.

[00:22:26] Speaker 02:
You have to avoid cameras and guards to have a blind spot.

[00:22:33] Speaker 02:
But we don't know anything about whether guards are there, too.

[00:22:37] Speaker 02:
We do know that there were guards.

[00:22:38] Speaker 02:
How really likely is that you're able to hide conduct?

[00:22:42] Speaker 02:
And it may well be.

[00:22:44] Speaker 02:
But I just don't know what the record is that shows that someone could really circumvent detection.

[00:22:48] Speaker 07:
Under the standard, under the low bar established by Blackwell and Mayor Brown, where we only have to show a chance of a reasonable expected.

[00:22:56] Speaker 04:
Reasonable expectation is what we were to a problem.

[00:22:59] Speaker 07:
A chance of a reasonable expectation.

[00:23:00] Speaker 04:
Can you come in here and say, well, it could be that there are, now how would you distinguish between areas where they would direct their activity in blind spots?

[00:23:08] Speaker 04:
I'm so uncertain what the distinction is.

[00:23:10] Speaker 04:
I want to go ahead and call them blind spots.

[00:23:12] Speaker 04:
But is it sufficient to just come in and say there could be blind spots, therefore we won't reveal?

[00:23:18] Speaker 07:
I think it is sufficient to show, Your Honor, which we have done, that by revealing this video, it would permit a prisoner to at least avoid a substantial number of cameras in the prison dining hall.

[00:23:31] Speaker 07:
There are multiple cameras.

[00:23:32] Speaker 04:
Unless you've got away from all of them, why would it do him any good to avoid a substantial number of them?

[00:23:37] Speaker 02:
Well, I mean... As long as there's a camera on you.

[00:23:40] Speaker 02:
You're in trouble.

[00:23:41] Speaker 06:
Suppose the coverage is perfect.

[00:23:43] Speaker 07:
Well, I mean, we certainly would know that at least if you're able to avoid three camera angles, that's three less camera angles that the Bureau has to investigate and observe criminal activity.

[00:23:54] Speaker 07:
And under the low bar established by Blackwell, I think that... No, they would still have to admit, find out whether it was there or not.

[00:24:02] Speaker 04:
If they've got, say there are four cameras, I don't know if there's four or twelve, but say there are four cameras, even if they know that three of them might not have good coverage at that moment, they still have to go and look.

[00:24:12] Speaker 07:
There certainly would be an investigation.

[00:24:13] Speaker 07:
It would eliminate them, wouldn't it?

[00:24:14] Speaker 07:
Yes.

[00:24:15] Speaker 07:
My point, Your Honor, is that there would be the tools that the Bureau would use in that investigation, at least some of them would be less effective, because the prisoners would be able to avoid detection by a series of cameras.

[00:24:26] Speaker 04:
Wouldn't it still be a good idea for us to have a record on whether or not this is true before we allow summary judgment on the question?

[00:24:35] Speaker 04:
Some re-judgment presupposes that there is no substantial question of material cost.

[00:24:40] Speaker 04:
That's correct, Your Honor.

[00:24:41] Speaker 04:
And you're telling me that the possibility that something could exist is good enough to survive there?

[00:24:46] Speaker 07:
Applying the facts in this record to the low bar set by Blackwell and Mayor Brown, yes, there is enough facts in this record to know that the prisoner will be able to, it's black and white in the declaration, that inmates will be able to modify the behavior to avoid detection by several cameras in the dining hall.

[00:25:05] Speaker 02:
Well, no, it's just to prevent detection.

[00:25:08] Speaker 02:
It doesn't sort of say exactly how they're going to do it, right?

[00:25:11] Speaker 02:
And it doesn't actually assert fines.

[00:25:12] Speaker 02:
I mean, there's a lot of, I think,

[00:25:16] Speaker 02:
It may not be the most rigorous bar in the law, but when you keep emphasizing a low bar and then you say, let's rely on implicit stuff and read between lines, that seems to really dilute your burden to virtually nothing.

[00:25:37] Speaker 07:
Well, I don't mean to do that at all.

[00:25:39] Speaker 07:
I do think it's black and white in the declaration that this would reveal multiple camera angles.

[00:25:44] Speaker 06:
What do you have?

[00:25:47] Speaker 06:
In paragraph 21, which is specific to 7E, you have an assertion the footage also demonstrates the location of video cameras.

[00:26:02] Speaker 06:
That's it.

[00:26:03] Speaker 07:
That's correct.

[00:26:03] Speaker 06:
Well, in the next line, it says... And then I had to rummage around a little bit to find paragraph 10, which is not specific to

[00:26:15] Speaker 06:
but even if we give you that one, that says the video shows several different camera angles.

[00:26:23] Speaker 06:
Just a little bit more, but still a good bit less than what you say in your appellate brief, which is areas under surveillance, and even that doesn't have

[00:26:37] Speaker 06:
a lot of meat to it.

[00:26:39] Speaker 07:
I think that is captured, Your Honor, in the last sentence of paragraph 21, where it says that the release of this information could result in prisoners modifying criminal behavior to prevent detection and circumvention of the methods of law enforcement officers used to discover the existence of and investigate the crime.

[00:26:54] Speaker 02:
That sounds like you're just asserting the legal conclusion that we would then write an opinion granting of holding a 70 exemption.

[00:27:01] Speaker 02:
That sounds like, right, that's the legal test we would do, but we need the facts

[00:27:07] Speaker 02:
to get from these rather thin assertions to that conclusion.

[00:27:14] Speaker 02:
It can't just be that you say, this is a prison.

[00:27:20] Speaker 02:
We watch people.

[00:27:22] Speaker 02:
Therefore, disclosing something will cause them to avoid detection.

[00:27:28] Speaker 02:
There's got to be a little more meat on the bones, doesn't there?

[00:27:30] Speaker 07:
Well, I think the conclusion in the last part of 21.

[00:27:32] Speaker 02:
I'm just saying there does have to be more meat on the bones than just making that conclusion correct.

[00:27:36] Speaker 07:
If all we had was the last paragraph of the last sentence of paragraph 21, I think that your statement would be, I would understand.

[00:27:45] Speaker 06:
So what else do we have?

[00:27:46] Speaker 06:
I'm sorry.

[00:27:47] Speaker 06:
What else do we have besides that sentence plus the two that I read to you?

[00:27:52] Speaker 07:
Well, I think it flows naturally from the two that you had, Judge Casas.

[00:27:55] Speaker 07:
So we know that this would reveal multiple camera angles.

[00:27:58] Speaker 07:
We also know some things that are just sort of knowable and inherent.

[00:28:02] Speaker 07:
We know that this is all of the cameras that captured this particular assault because we produced all the responsive video.

[00:28:09] Speaker 07:
So this is all the cameras that captured this particular assault.

[00:28:12] Speaker 02:
We also know from the nature of- All the ones that capture this assault is not necessarily all the ones that capture activity in this room, to the extent you're worried about disclosing blind spots.

[00:28:20] Speaker 02:
That's correct, Your Honor, but we know that it would be... So then you've actually essentially just said that you wouldn't necessarily disclose blind spots.

[00:28:27] Speaker 02:
You're only going to have the cameras that happen to capture whatever portion of the room this was in.

[00:28:31] Speaker 02:
Those are the only ones that are going to be relevant.

[00:28:33] Speaker 02:
You're not going to show blind spots, because you're not going to disclose the cameras that didn't cover the room, but didn't cover the assault.

[00:28:38] Speaker 07:
Not necessarily, Your Honor.

[00:28:40] Speaker 02:
I thought that's what you just said.

[00:28:41] Speaker 07:
That is not what I just said.

[00:28:42] Speaker 07:
There may not be any other cameras.

[00:28:44] Speaker 07:
And I want to point out that... We don't know.

[00:28:48] Speaker 02:
We don't have any facts.

[00:28:50] Speaker 07:
We don't know that for sure.

[00:28:52] Speaker 07:
We know at least that we have all the cameras they captured.

[00:28:54] Speaker 02:
You all know.

[00:28:55] Speaker 02:
We just, the court wasn't told.

[00:28:58] Speaker 02:
Your client, maybe not you personally, but your client, no, actually does know, but didn't bother to include that information in the declaration.

[00:29:05] Speaker 07:
We at least know, well, yeah, they included the information that there are multiple camera angles.

[00:29:10] Speaker 07:
We know inherently that it would be all the camera angles that captured this assault.

[00:29:13] Speaker 07:
And we know inherently from the nature of video footage, they would reveal both the angle and the outer boundaries captured by each of those cameras.

[00:29:22] Speaker 07:
And that is really what is of concern.

[00:29:24] Speaker 02:
But that's not, to be clear, first of all,

[00:29:27] Speaker 02:
Anytime you have a video camera, it's going to disclose what it surveyed, what it saw.

[00:29:33] Speaker 02:
So when you say video camera's in the view, that's really just showing one thing as far as I'm concerned, not two things.

[00:29:41] Speaker 02:
And then as you said, what you collected in response to this FOIA request, sensibly, was only the video cameras that showed anything about the assault.

[00:29:53] Speaker 02:
Is there any assertion here that says that will disclose all the video cameras in this area?

[00:29:58] Speaker 07:
No, Your Honor, but I think to clear the test established by Blackwell and Mayor Brown, we don't have to show that the disclosure will completely render ineffective the Bureau's detection devices and its security system.

[00:30:13] Speaker 07:
By revealing multiple of the camera angles, it at least substantially weakens

[00:30:17] Speaker 07:
the robustness of its surveillance system.

[00:30:21] Speaker 07:
There are multiple cameras in this dining hall for a reason.

[00:30:23] Speaker 02:
If it's not revealing what's not covered.

[00:30:24] Speaker 07:
I'm sorry?

[00:30:25] Speaker 02:
If it's not revealing, if it doesn't, if what is responsive to this FOIA request is not going to reveal what's covered in this room as a whole, then I guess I'm not quite understanding how it's going to reveal.

[00:30:38] Speaker 07:
Well, say what's responsive to a FOIA request will... I suppose the answer would be

[00:30:45] Speaker 06:
The prisoners know to a certainty that parts of the room are covered and that leaves open the possibility that other parts aren't.

[00:30:56] Speaker 06:
They're better off in the other parts.

[00:30:58] Speaker 07:
It would at least permit a prisoner to modify their behavior so that it would avoid detection by the camera.

[00:31:06] Speaker 06:
But wouldn't that, I mean, seems like that should be the kind of thing that you have to explain if it's true.

[00:31:16] Speaker 07:
Well, I think it is inherent in the nature of the video that would be revealed.

[00:31:21] Speaker 07:
It would obviously reveal what the particular camera angles captured.

[00:31:26] Speaker 02:
Where does this declaration explain why Judge Santel's suggestion about sacred mobility couldn't be undertaken, that you could show

[00:31:36] Speaker 02:
specific screenshots or zoom in enough so that you wouldn't be showing the outer limits of the camera angle.

[00:31:43] Speaker 02:
Where is that addressed in this declaration on segregability?

[00:31:47] Speaker 07:
It doesn't say that.

[00:31:48] Speaker 07:
A screenshot would still certainly reveal the outer boundaries of the area captured by the camera.

[00:31:54] Speaker 04:
One camera at one moment.

[00:31:57] Speaker 04:
Is that really revealing anything that you've got a right to keep from the public?

[00:32:03] Speaker 04:
I mean, FOIA assumes that you're going to be disclosed.

[00:32:05] Speaker 04:
you have to come up with something good enough to fit one of these enumerated extensions and saying that, well, a screenshot wouldn't show the things that aren't in the screenshot.

[00:32:16] Speaker 04:
Is that really a good enough explanation to get out of your employee obligations?

[00:32:20] Speaker 07:
Yes, Your Honor, because it would reveal the angle of that camera and the outer boundaries of that camera.

[00:32:25] Speaker 04:
And we're going in the direction that there are other cameras, and certainly the ability to focus and change the amount of information revealed

[00:32:34] Speaker 04:
about even the boundaries of that camera, if that were enough by itself, which is a good question.

[00:32:40] Speaker 04:
But don't you need a whole lot more on the record before we can find any kind of will?

[00:32:48] Speaker 04:
Does this have any kind of fit with the exemption?

[00:32:50] Speaker 07:
I frankly am not sure how we could conduct that segregation without, because what Mr. Evans asked for... Well, that's just perhaps an in-camera review by the judge.

[00:33:00] Speaker 04:
A detailed explanation of whatever this explanation is you're talking about, about whether it would reveal areas that you won't call blind spots, but to which inmates could direct their activity that I would call blind spots.

[00:33:12] Speaker 04:
It's explaining whether those exist or what the chances are of their existing.

[00:33:18] Speaker 04:
You really don't see those things as possible?

[00:33:21] Speaker 04:
Come on.

[00:33:22] Speaker 07:
I think, frankly, Your Honor, that would require some modification of the request by Mr. Evans, because what we have is that he has requested all video that captured that particular instance.

[00:33:32] Speaker 04:
Is it really unusual for the result to be, in a 40 case, a limited grant of what the person's asking for, not a full grant?

[00:33:41] Speaker 04:
Does he really have to modify it now into what the court could modify it in an order?

[00:33:46] Speaker 07:
Well, I mean, because what he has requested is all of the responsive video.

[00:33:50] Speaker 04:
Yeah, sure.

[00:33:51] Speaker 04:
And the court could say, no, I'm going to order a segregability done, and you're only going to get part of it.

[00:33:58] Speaker 04:
What's the problem with the court doing that?

[00:33:59] Speaker 04:
He doesn't have to change his...

[00:34:01] Speaker 04:
application for a court to order a federal release.

[00:34:05] Speaker 07:
That happens all the time.

[00:34:07] Speaker 07:
I don't see how the Bureau itself could determine which part of that.

[00:34:10] Speaker 04:
I mean, we can't make the decisions for Mr. Evans with particular screen shots or... We have federal ability things all the time that the agency suggests or that the court orders.

[00:34:18] Speaker 04:
There's nothing unusual about this, Hampton, you know that.

[00:34:21] Speaker 02:
But here the whole of what he has requested... No, but the rule for you is disclose the maximum that you can without revealing

[00:34:31] Speaker 02:
information that will disclose what you're concerned about.

[00:34:33] Speaker 02:
The maximum.

[00:34:34] Speaker 02:
So it doesn't that he has to come in and say, here's the minimum I want.

[00:34:38] Speaker 02:
You have to disclose the maximum, and anything you don't disclose, you will have to justify as implicating this interest.

[00:34:45] Speaker 02:
And what happens is agencies go, we can give you 70 percent, and here's how we can do it.

[00:34:52] Speaker 02:
The rest we have to withhold because it creates risks of circumvention of law enforcement.

[00:34:57] Speaker 02:
So I think, I don't mean to speak for Judge Chantel, that's all he's saying that you should do is what agencies do all the time.

[00:35:04] Speaker 07:
If I may respond, Judge Mollutt.

[00:35:06] Speaker 07:
Of course.

[00:35:06] Speaker 07:
I think the problem is the whole of what he has requested is exempt.

[00:35:10] Speaker 07:
And I don't see how the Bureau could take the problem.

[00:35:13] Speaker 02:
Every segregability case under FOIA

[00:35:16] Speaker 02:
is given someone less than the whole of what they ask for.

[00:35:19] Speaker 07:
I understand.

[00:35:20] Speaker 07:
But I don't see how the Bureau could take it upon itself to determine which particular screenshots or which particular cropped areas would be of interest to Mr. Evans.

[00:35:29] Speaker 04:
I also... My question was of interest to Tim or not.

[00:35:31] Speaker 04:
It's whether it fits your exemption or not.

[00:35:33] Speaker 04:
You keep trying to point to the burden back the other way.

[00:35:36] Speaker 04:
You're supposed to be able to show that it fits the exemption.

[00:35:39] Speaker 04:
You don't care what he's interested in.

[00:35:41] Speaker 04:
That's not the question for you or the court.

[00:35:45] Speaker 07:
I understand, Judge Santel.

[00:35:47] Speaker 07:
I will note that we have a number of other exemptions that we've claimed over the video.

[00:35:51] Speaker 07:
The court need only find one or more.

[00:35:52] Speaker 04:
Well, I want to ask you about one element of this.

[00:35:54] Speaker 04:
Certainly, Your Honor.

[00:35:55] Speaker 04:
As far as the personal invasion of interest to privacy, is there really an interest to privacy

[00:36:03] Speaker 04:
intentionally shows only the presence of a person at a place where they are known to be anyway.

[00:36:08] Speaker 07:
That's not all it shows, Your Honor.

[00:36:09] Speaker 07:
This shows a prisoner-on-prisoner assault, an officer response.

[00:36:14] Speaker 04:
Yes, yes, yes.

[00:36:15] Speaker 04:
Prisoner-on-prisoner assault is something that really goes to what FOIA is designed for.

[00:36:20] Speaker 04:
It shows what the government is up to.

[00:36:23] Speaker 04:
Then the public will know whether the prison has made an appropriate response.

[00:36:29] Speaker 04:
Forget about that for the moment, as far as the other individuals, and about the 70 or more that you mentioned in your brief, I think.

[00:36:36] Speaker 04:
Is there really an invasion of their privacy when all of these inmates are known to be in that dining room, they're seen by each other and the guards?

[00:36:44] Speaker 04:
Is their privacy really invaded?

[00:36:47] Speaker 07:
I think absolutely, Your Honor.

[00:36:48] Speaker 07:
I think there is a big difference, for a couple of reasons.

[00:36:51] Speaker 07:
Number one is there's a big difference in the privacy that a person makes, someone not knowing that they are present in prison.

[00:36:57] Speaker 07:
I think there is a much deeper invasion of privacy, so there would be an image of that person in the jumpsuit in the prison dining hall.

[00:37:04] Speaker 07:
The other reason is that this court's case law

[00:37:07] Speaker 07:
holds quite clearly.

[00:37:08] Speaker 02:
Sorry, just to be clear, so the privacy interest, I don't know what it would have to do, does it have to do with that they're in a dining hall, or it's just you say the image of them in a prison uniform?

[00:37:17] Speaker 07:
It's much more evasive just to show the image of the person present in the system, present in the prison, rather than just a result of the BOP inmate.

[00:37:27] Speaker 02:
The other reason, though, I think is much more important.

[00:37:28] Speaker 02:
Sorry, if I could just show up.

[00:37:29] Speaker 02:
So that assumes that you're disclosing faces, identifiable faces.

[00:37:37] Speaker 07:
I think, well, another point there.

[00:37:39] Speaker 02:
You have images in paragraph 19.

[00:37:42] Speaker 07:
Right, they're images of persons.

[00:37:45] Speaker 02:
Well, does images mean identifying?

[00:37:48] Speaker 07:
Yes, I think a person can be, I think a person can be identified.

[00:37:50] Speaker 02:
Well, an image could be the back of the head, could be the side of the head.

[00:37:54] Speaker 07:
That doesn't make it unidentifiable.

[00:37:57] Speaker 07:
I think a person, particularly.

[00:37:58] Speaker 02:
So you have to show, don't you have to show that it's, they were, these 70 plus people were gonna be individually identifiable?

[00:38:06] Speaker 07:
No, Your Honor, because I think it flows naturally that an image of a person allows that person to be identified.

[00:38:13] Speaker 02:
Is the image of my back an image?

[00:38:17] Speaker 07:
To someone who knows you, I think an image of your back would be identifiable to you.

[00:38:21] Speaker 07:
And these are inmates who live in an environment with each other on a day-to-day basis.

[00:38:26] Speaker 07:
They probably see each other in this dining hall every day.

[00:38:29] Speaker 07:
And I think, yes, an inmate could identify another inmate from their back, perhaps because of body type, perhaps because of tattoo, perhaps because of haircut.

[00:38:36] Speaker 07:
But yes, an image of a person from any angle could be identified.

[00:38:38] Speaker 02:
And your argument as to why you can't, let's assume it's identifying all 70

[00:38:45] Speaker 02:
people that were in the areas, actually identifying them to the public.

[00:38:51] Speaker 02:
Because I think the interest is identification to the public, not to people who saw you there and already knew you were there, right?

[00:38:57] Speaker 07:
Well, it's to everyone.

[00:38:59] Speaker 02:
Public.

[00:39:00] Speaker 07:
Right.

[00:39:00] Speaker 02:
Including the people.

[00:39:01] Speaker 02:
The other prisoners already knew Joe was there, right?

[00:39:05] Speaker 02:
The answer we got on why you couldn't blur or block anything out was BOP doesn't have the technological capability?

[00:39:16] Speaker 07:
That's correct.

[00:39:17] Speaker 07:
It does not have the technological capability.

[00:39:20] Speaker 02:
Really?

[00:39:22] Speaker 02:
I mean, as Judge Santel said, my daughter will come over and do it for us.

[00:39:26] Speaker 02:
She'll put a cat face on everybody if you want.

[00:39:30] Speaker 02:
This is as easy as can be these days.

[00:39:33] Speaker 02:
And I noticed that the appeal was taken to the Justice Department's Office of Information and Privacy.

[00:39:39] Speaker 02:
Are you going to tell me that the Justice Department is not capable of blurring a face in a video?

[00:39:47] Speaker 07:
That's what our declaration says, Your Honor.

[00:39:49] Speaker 07:
I mean, that does take a particular technology that the BOP does not have.

[00:39:53] Speaker 02:
I know that the district court has affirmed... Would it be sufficient under FOIA to say, here's the documents we requested, we can't turn any of the documents over because we don't have black markers?

[00:40:10] Speaker 07:
No, certainly not.

[00:40:11] Speaker 02:
Because you'd be expected to go spend some de minimis amount of money to buy the black markers or the Adobe nowadays, right?

[00:40:17] Speaker 02:
Or come up with some other means of... Whereas it's showing here that the acquisition of the technology needed to blur faces or block them out was not something readily available to BOP.

[00:40:30] Speaker 02:
Either it is part of the Justice Department, which I have to believe

[00:40:35] Speaker 02:
has this technology, or that they could acquire it at virtually no cost.

[00:40:42] Speaker 02:
That is not in the record, Your Honor.

[00:40:47] Speaker 07:
All that the record says is that, and I think this meets the requirement for a reasonably detailed declaration, but it does say that they do not have the data.

[00:40:56] Speaker 02:
But that would be the same thing.

[00:40:57] Speaker 02:
We don't have any markers.

[00:41:00] Speaker 02:
And that would be sufficient in your view, then.

[00:41:02] Speaker 07:
I think that situation is a little more unbelievable given the

[00:41:05] Speaker 02:
I'm not sure in this day and age it is.

[00:41:07] Speaker 07:
I take your point, Your Honor.

[00:41:11] Speaker 07:
I wanted to get back.

[00:41:12] Speaker 07:
I have one more response to Judge Santel, if I may just take a moment.

[00:41:15] Speaker 07:
The other reason that this is protected privacy information, Your Honor, is this court's case law holds that in law enforcement records, the identities of witnesses, law enforcement personnel.

[00:41:25] Speaker 04:
I'm aware of that.

[00:41:25] Speaker 04:
OK.

[00:41:26] Speaker 04:
And so that's what we have.

[00:41:26] Speaker 04:
Well, that does not say that under any and all circumstances, the mere showing of an image is enough to be an unwarranted invasion of privacy.

[00:41:32] Speaker 04:
I don't think it does.

[00:41:34] Speaker 04:
I understand they're in line with what you can take out that says it's showing you an image.

[00:41:39] Speaker 07:
It's certainly identifying, and I think under this court's case law, identifying information in a law enforcement record is necessarily implicates a privacy interest.

[00:41:52] Speaker 02:
Well, I think it's necessarily when you're talking about people who have an interest in not being associated with law enforcement or associated with criminal activity, associated with investigations.

[00:42:01] Speaker 02:
That's witnesses on the outside, maybe victims.

[00:42:06] Speaker 02:
The cases where I've seen it is the privacy interest in just not being associated with this whole thing the government is doing, which seems to me a little bit of a stretch to say that's going to apply to people

[00:42:19] Speaker 02:
in prison.

[00:42:20] Speaker 07:
But again, Your Honor, it's not just people in prison.

[00:42:22] Speaker 07:
There was an actual law enforcement situation captured by the video, and that's why it's responsive.

[00:42:27] Speaker 07:
There was an inmate on inmate assault.

[00:42:28] Speaker 07:
There was officer intervention.

[00:42:30] Speaker 07:
There are witnesses to that inmate on inmate assault.

[00:42:32] Speaker 02:
But the witnesses were all inmates?

[00:42:34] Speaker 02:
Or I'm sorry, you're saying the witnesses were private people or inmates?

[00:42:36] Speaker 07:
The witnesses are inmates and possibly other prison personnel.

[00:42:39] Speaker 07:
But the interest is, I mean, even though they're prisoners, they are witnesses in a law enforcement situation identified in a law enforcement record, and that gets rise to a privacy entry.

[00:42:48] Speaker 04:
You'd like us, if you're talking about the precedent we'll be making about prison regulation, you'd like us to pre-impress as it is, go ahead and do what you want to, and nobody's going to be able to tell because we can be compelled to tell because we're protecting their privacy.

[00:43:05] Speaker 04:
Can three inmates do that one?

[00:43:07] Speaker 04:
No, Your Honor, I mean, well, the purpose of FOIA is to find out what the government is up to, even when there's a privacy interest that can be overcome if there's an evidentiary showing... And what the government is up to in this case, or what he's asking us to find out is what the government is up to, is are they shielding the identity of somebody who committed a serious crime?

[00:43:24] Speaker 07:
I think based on the claims in his lawsuit, he said in his FOIA request that he wants this to support his lawsuit.

[00:43:30] Speaker 07:
He is claiming that the Bureau of Prisons acted negligently in responding to the assault and in disciplining him following the assault.

[00:43:38] Speaker 04:
Yes, and would not that be what the government's up to?

[00:43:41] Speaker 04:
Yes, but... And if they're not up to that, then disclosure will be that they're not up to that.

[00:43:45] Speaker 04:
But this seems to be classic FOIA-type information.

[00:43:49] Speaker 07:
The problem, Your Honor, is that under Favish, he has to make a specific evidentiary showing that there was, in fact, or that a reasonable person could.

[00:43:58] Speaker 07:
Before he gets for him?

[00:43:59] Speaker 07:
Absolutely, Your Honor.

[00:44:01] Speaker 02:
No, Favish was different, because this is a balancing test, which the district court didn't do.

[00:44:05] Speaker 02:
What you had in Favish was that there had already been extensive disclosures, extensive studies, extensive reports.

[00:44:13] Speaker 02:
And it was in that context when someone said, well, I still don't believe it all.

[00:44:17] Speaker 02:
I want to see it.

[00:44:18] Speaker 02:
But the Supreme Court said, you've got to come up with something more.

[00:44:23] Speaker 07:
I hesitate to disagree with your honor on the meaning of Favish.

[00:44:27] Speaker 07:
But my understanding is that Favish creates, as this court has interpreted it, there is an evidentiary showing that must be made where the public interest asserted is discovering government malfeasance or negligence.

[00:44:42] Speaker 02:
There must be an evidentiary showing from which a- He just wants to show what if he takes out the world of malfeasance.

[00:44:47] Speaker 02:
He wants to see what happened.

[00:44:49] Speaker 05:
Yeah.

[00:44:49] Speaker 02:
He wants to see what the government did.

[00:44:51] Speaker 02:
He was busy getting stabbed at the time.

[00:44:53] Speaker 02:
He'd like to see what the guards were doing.

[00:44:55] Speaker 02:
Maybe it'll make him feel very appreciative and want to send thank you notes to the guards.

[00:44:59] Speaker 07:
I think that gets into precisely the problem that Favish sought to avoid.

[00:45:05] Speaker 07:
What Favish sought to avoid was the ability to simply articulate anything and then overcome.

[00:45:10] Speaker 02:
The whole point of FOIA is you don't have to have any.

[00:45:12] Speaker 02:
You can have good reason, bad reason, no reason at all.

[00:45:14] Speaker 02:
You submit a FOIA request.

[00:45:16] Speaker 02:
What happened in Favish was the balancing, right?

[00:45:19] Speaker 02:
privacy interests that were identified.

[00:45:22] Speaker 02:
And then what was asserted as a public interest on the other side was, well, I want to test, I don't believe what the government's telling me.

[00:45:31] Speaker 02:
That's my public interest.

[00:45:32] Speaker 02:
I want to see that private information to show that the government's not telling me the truth.

[00:45:39] Speaker 02:
in the face of already substantial disclosures, studies, reports, and investigations by the government.

[00:45:46] Speaker 02:
Here you're trying to say it's an upfront burden before we even ask the district court to do balancing.

[00:45:51] Speaker 02:
There was no balancing here.

[00:45:54] Speaker 02:
So it seems to me you're moving the goalposts.

[00:45:57] Speaker 07:
I think when the interest is asserted is that we want to show government negligence, and that's what Mr. Evans says asserted.

[00:46:04] Speaker 04:
Wait a minute.

[00:46:05] Speaker 04:
The general rule is for a four-year request, you don't have to show any reason at all.

[00:46:09] Speaker 04:
Congress created a right to get that information.

[00:46:12] Speaker 04:
That's your right.

[00:46:13] Speaker 04:
You don't have to show any reason.

[00:46:14] Speaker 04:
Before we get into the question of what the reasons are is when there's a balancing or when we're talking about the fee waiver.

[00:46:21] Speaker 04:
Now, the fee waiver is what the public interest is.

[00:46:23] Speaker 04:
And on the balancing, but as far as the initial right,

[00:46:28] Speaker 04:
before the exemptions come into question.

[00:46:30] Speaker 04:
He doesn't have to have any reason for one.

[00:46:32] Speaker 04:
He just wants to know what the government's up to.

[00:46:34] Speaker 04:
That's what Congress created.

[00:46:35] Speaker 04:
You said that yourself.

[00:46:36] Speaker 07:
I acknowledge that's the general FOIA.

[00:46:37] Speaker 07:
I think that the case law has created a different test to overcome the substantial privacy interest under... In the balancing test.

[00:46:46] Speaker 04:
Yeah, that's the balancing.

[00:46:47] Speaker 04:
When you get to that point, then it's when you get the question about

[00:46:52] Speaker 04:
what you're talking about, what his interest is in it.

[00:46:55] Speaker 04:
But even here, there is a public interest, not just his private interest.

[00:47:00] Speaker 04:
Public interest, if the Bureau of Prisons is not handling inmate misconduct and serious crime by inmates correctly, then there's a public interest in knowing that.

[00:47:11] Speaker 00:
Or there's an interest in knowing that they're doing a crackerjack job.

[00:47:14] Speaker 07:
But there must be an evidentiary showing from which a reasonable person could believe that that might have occurred under the case law.

[00:47:21] Speaker 01:
All right.

[00:47:23] Speaker 01:
All right.

[00:47:23] Speaker 07:
Thank you very much.

[00:47:24] Speaker 00:
Thank you, Your Honors.

[00:47:28] Speaker 00:
Please affirm.

[00:47:28] Speaker 00:
Mr. Holzfeld, do you have any time left?

[00:47:31] Speaker 00:
I'll give you two minutes, Mr. Holzfeld.

[00:47:35] Speaker 03:
Your Honors, I'm happy to answer any questions, but otherwise I'm actually happy to waive those bottles.

[00:47:39] Speaker 03:
So if there are no questions, but if there are, I'm happy to answer them.

[00:47:44] Speaker 02:
All right, Mr. Holzberg, you were appointed by the court to represent the appellant as amicus, repellent, repellent arguments in this case, and we thank you for your assistance.

[00:47:53] Speaker 03:
Thank you, Your Honor.

[00:47:53] Speaker 03:
Thank you, court.

[00:47:55] Speaker 02:
The case is submitted.