United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2019 Decided March 10, 2020 

No. 18-5068 

MICHAEL S. EVANS, 

APPELLANT

v. 

FEDERAL BUREAU OF PRISONS, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:16-cv-02274) 

 Ari Holtzblatt, appointed by the court, argued the cause as 

amicus curiae in support of plaintiff-appellant. With him on 

the briefs was Daniel S. Volchok. 

 Johnny H. Walker III, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Jessie K. Liu, 

U.S. Attorney, and R. Craig Lawrence, Assistant U.S. 

Attorney. 
2 

 Before: MILLETT and KATSAS, Circuit Judges, and 

SENTELLE, Senior Circuit Judge. 

 Opinion for the Court filed by Senior Circuit Judge

SENTELLE. 

SENTELLE, Senior Circuit Judge: Michael Evans was a 

federal prisoner when the underlying events leading to the 

current litigation occurred. Evans was stabbed from behind 

with a screwdriver in the prison dining hall. Later, Evans 

submitted a Freedom of Information Act (“FOIA”) request to 

the Federal Bureau of Prisons (the “Bureau”) seeking to 

compel the release of records related to the screwdriver, as well 

as surveillance footage of the episode. The Bureau was unable 

to locate any responsive records related to the screwdriver and 

withheld the surveillance footage asserting various FOIA 

exemptions. After exhausting the administrative appeals 

process, Evans filed suit in district court. The district court 

granted summary judgment in favor of the Bureau. The court 

held that the Bureau’s response to Evans’s request for records 

related to the screwdriver was adequate, and that the Bureau 

justified withholding the surveillance footage in full under 

FOIA Exemptions (b)(7)(C) and (b)(7)(E). Evans filed the 

instant appeal, and we appointed Amicus Curiae to argue on his 

behalf.1

For the reasons that follow, we affirm the district court’s 

grant of summary judgment insofar as it pertains to the 

Bureau’s response to Evans’s request for records related to the 

screwdriver. However, we vacate and remand the judgment to 

1

 Because appellant has fully adopted the briefs and arguments of the 

amicus, we will throughout the opinion attribute those positions to 

the appellant. We thank the amicus for his service to the court. 
3 

the district court as to the Bureau’s withholding of the 

surveillance footage under Exemptions (b)(7)(C) and (b)(7)(E). 

 

I. BACKGROUND

A. Facts and History 

On May 2, 2013, while Evans was incarcerated at Federal 

Correctional Institution (“FCI”) Gilmer in Glenville, West 

Virginia, another inmate stabbed him multiple times with a 

Phillips-head screwdriver in the prison dining hall. Following 

that incident, Evans sued the United States under the Federal 

Tort Claims Act (“FTCA”) and individual officers employed at 

FCI Gilmer under 42 U.S.C. § 1983, alleging in both cases that 

the screwdriver was FCI Gilmer property that the corrections 

officers failed to properly secure. The Bureau disclaimed 

ownership of the tool, and those suits were dismissed. J.A. 58; 

Evans v. United States, No. 3:15-CV-64, 2016 WL 4581339, at 

*2 (N.D. W. Va. Sept. 2, 2016) (“The modified screwdriver 

used in the Plaintiff’s assault was not a [Bureau] tool.”); Evans 

v. Officer Cunningham, No. 2:15-CV-60, 2016 WL 3951157, 

at *6 (N.D. W. Va. July 20, 2016) (noting that the report and 

recommendation from the magistrate showed that the 

screwdriver was “a non-[Bureau] tool, not subject to [Bureau] 

tool-control policies”). 

While those lawsuits were pending, Evans submitted his 

initial FOIA request to the Bureau seeking the following: 

Names, numbers, and addresses to all 

companies that shipped and/or delivered tools, 

recreation equipment, maintenance equipment, 

and machines to Federal Correctional 

Institution–Gilmer in Glenville, West Virginia 

26351, from January 2003, to, June 2013. 
4 

F.C.I.–Gilmer[’]s, Receiving and Departure 

Logs for all tools, recreation equipment, 

maintenance equipment, and machines shipped 

and/or delivered to F.C.I.–Gilmer from January 

2003, to, June 2013. 

Names and pictures of all tools, recreation 

equipment, maintenance equipment, and 

machines shipped and/or delivered to F.C.I.–

Gilmer, from January 2003, to, June 2013. 

A copy of the video footage of the May 02, 2013 

incident of Michael Evans being assaulted in the 

inmate dining area at F.C.I.–Gilmer. 

J.A. 8–9. The Bureau responded that it would cost 

approximately $14,320 to process Evans’s request. Id. at 10. 

Due to the high cost, the Bureau allowed Evans the opportunity 

to reformulate his request. Id. 

Evans took advantage of that opportunity. In an apparent 

attempt to narrow his request for records related to the 

screwdriver, he included a picture of the tool and stated that 

the screwdriver may have been a[] maintenance 

accessory tool that came with recreation, or 

maintenance equipment. I would like the name 

of the company that made the tool, along with 

the phone number and mailing address of the 

company. I would like to know what is the tool 

used for and what equipment it came with, and 

when that equipment was delivered to F.C.I. 

Gilmer in Glenville, WV 26351. 
5 

Id. at 38–39. Additionally, he again sought surveillance 

footage of the incident. Id. 

The Bureau contacted FCI Gilmer officials for assistance 

in locating responsive materials. Id. at 43. This time, the 

Bureau located the prison-surveillance footage but withheld it 

from disclosure under FOIA Exemptions (b)(2), (b)(7)(C), 

(b)(7)(E), and (b)(7)(F). Id. As to any records pertaining to the 

screwdriver, the Bureau responded that, because the FCI 

Gilmer officials did not recognize the screwdriver or know 

from where it originated, they were “unable to ascertain what 

records to search.” Id. 

Evans appealed the Bureau’s decision to the Office of 

Information Policy (“OIP”). OIP determined that the 

surveillance footage was properly withheld under Exemptions 

(b)(7)(C), (b)(7)(E), and (b)(7)(F). Id. at 51. It also stated that 

the Bureau “does not have the capability to segregate images 

potentially responsive to [Evans’s] request from the images of 

third parties on video recordings.” Id. at 52. Thus, it justified 

withholding the entire video under Exemption (b)(7)(C). Id. 

As to the requests related to the screwdriver, OIP explained that 

“FOIA does not require federal agencies to answer questions 

or create records in response to a FOIA request, but rather is 

limited to requiring agencies to provide access to reasonably 

described, nonexempt records.” Id. Accordingly, OIP 

affirmed the Bureau’s response to Evans’s requests. Id. 

Evans filed this action in the district court. Evans claimed 

that the Bureau’s response to his request for records related to 

the screwdriver was inadequate because he did not ask the 

Bureau to answer questions or conduct research but, instead, 

reasonably described the records sought. Evans also objected 

to the Bureau’s withholding the video footage. He argued that 

none of the claimed exemptions applied, and that at least some 
6 

portion of the footage is segregable and that the Bureau must 

possess the technological capability to segregate it. 

The Bureau moved for summary judgment, relying on a 

declaration filed by Sharon Wahl, a paralegal from the Beckley 

Consolidated Legal Center at the Federal Correctional 

Institution in Beckley, West Virginia. The district court first 

determined that Evans’s request related to the screwdriver 

“indeed call[ed] for responses to inquiries.” Evans v. Fed. 

Bureau of Prisons, No. 16-2274, 2018 WL 707427, at *3 

(D.D.C. Feb. 5, 2018). The district court emphasized that 

Evans “expected the [Bureau] to identify [the screwdriver’s] 

manufacturer, to provide the manufacturer’s phone number and 

mailing address, to specify the tool’s use and to explain how 

and when a particular screwdriver found its way to FCI 

Gilmer.” Id. Thus, the district court upheld the Bureau’s 

nondisclosure of records related to the screwdriver. 

It then ruled that the Bureau properly withheld the footage 

under Exemptions (b)(7)(C) and (b)(7)(E). As to Exemption 

(b)(7)(F), however, the district court found that the Bureau 

failed to justify withholding the footage under that exemption. 

Id. at 6. Additionally, the court deferred to Wahl’s declaration 

in holding that no portion of the video was segregable and, even 

if it were, the Bureau lacks the technological capability to 

segregate it. Id. Accordingly, the district court granted the 

Bureau’s motion for summary judgment. 

For the reasons that follow, we affirm the district court’s 

ruling as to the screwdriver, but not as to the withholding of the 

videotapes under Exemptions (b)(7)(C) and (b)(7)(E) and the 

Bureau’s ability to segregate the footage. We take no issue 

with the district court’s holding as to Exemption (b)(7)(F). 

 
7 

B. Legal Framework 

As the Supreme Court stated in Department of Air Force 

v. Rose, FOIA was enacted “to pierce the veil of administrative 

secrecy and to open agency action to the light of public 

scrutiny.” 425 U.S. 352, 361 (1976) (quoting Rose v. Dep’t of 

Air Force, 495 F.2d 261, 263 (2d Cir. 1974)). However, 

“Congress realized that legitimate governmental and private 

interests could be harmed by release of certain types of 

information.” FBI v. Abramson, 456 U.S. 615, 621 (1982). 

Accordingly, FOIA exempts nine categories of records from 

disclosure, 5 U.S.C. § 552(b), seeking “to establish a general 

philosophy of full agency disclosure unless information is 

exempted under clearly delineated statutory language,” NLRB 

v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1976) (quoting S. 

Rep. No. 89-813, at 3 (1965)). 

Relevant to this appeal, Exemption (b)(7) allows an 

agency to withhold 

records or information compiled for law 

enforcement purposes, but only to the extent 

that the production of such law enforcement 

records or information . . . (C) could reasonably 

be expected to constitute an unwarranted 

invasion of personal privacy [or] . . . (E) would 

disclose techniques and procedures for law 

enforcement investigations or prosecutions, or 

would disclose guidelines for law enforcement 

investigations or prosecutions if such disclosure 

could reasonably be expected to risk 

circumvention of the law. 

5 U.S.C. § 552(b)(7). Additionally, “[a]ny reasonably 

segregable portion of a record shall be provided to any person 
8 

requesting such record after deletion of the portions which are 

exempt under this subsection.” Id. § 552(b). “[N]on-exempt 

portions of a document must be disclosed unless they are 

inextricably intertwined with exempt portions.” Mead Data 

Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. 

Cir. 1977). 

When an agency identifies responsive records but 

withholds them under one of the FOIA exemptions, it bears the 

burden of demonstrating that the records were properly 

withheld. See Summers v. Dep’t of Justice, 140 F.3d 1077, 

1080 (D.C. Cir. 1998). To meet this burden, the agency can 

submit affidavits that “show, with reasonable specificity, why 

the documents fall within the exemption.” Hayden v. Nat’l Sec. 

Agency/Cent. Sec. Service, 608 F.2d 1381, 1387 (D.C. Cir. 

1979). 

 

Under FOIA, an agency is only obligated to release 

nonexempt records if it receives a request that “reasonably 

describes such records.” 5 U.S.C. § 552(a)(3)(A). “A request 

reasonably describes records if ‘the agency is able to determine 

precisely what records are being requested.’” Kowalczyk v. 

Dep’t of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting 

Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982)). In light 

of FOIA’s pro-disclosure purpose, an agency has “a duty to 

construe a FOIA request liberally.” Nation Magazine, Wash. 

Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 

1995). Thus, an agency may not refuse to comply with a FOIA 

request simply because the request is phrased in the form of a 

question. See Yagman v. Pompeo, 868 F.3d 1075, 1081 (9th 

Cir. 2017) (“The flaw of Yagman’s FOIA request is its 

vagueness, not the way in which he framed it.”). Instead, the 

agency should determine whether, construing the request 

liberally, “it in fact has created and retained” responsive 
9 

records. Kissinger v. Reporters Comm. for Freedom of the 

Press, 445 U.S. 136, 152 (1980). 

If the agency determines that it does not possess any 

records responsive to a FOIA request, it bears the burden of 

demonstrating the adequacy of its search. See Reporters 

Comm. for Freedom of the Press v. FBI, 877 F.3d 399, 402 

(D.C. Cir. 2017). The agency meets its burden if it shows that 

“it made a good faith effort to conduct a search for the 

requested records, using methods which can be reasonably 

expected to produce the information requested.” Oglesby v. 

U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). 

Again, the agency may make this showing “by submitting ‘[a] 

reasonably detailed affidavit, setting forth the search terms and 

the type of search performed, and averring that all files likely 

to contain responsive materials (if such records exist) were 

searched.’” Reporters Comm. for Freedom of the Press, 877 

F.3d at 402 (quoting Oglesby, 920 F.2d at 68). 

II. SUMMARY JUDGMENT

We review the district court’s grant of summary judgment 

de novo. Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994). 

Summary judgment may be granted only when the moving 

party, in this case the Bureau, is able to show that there is “no 

genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). 

In this case, that would require the Bureau to establish beyond 

factual dispute that its failure to produce responsive records 

comes outside the mandate of FOIA either by virtue of the 

nonexistence of the records or by a factually indisputable right 

to protection under one of the statutory exemptions. 

We will affirm the grant of summary judgment if, viewing 

the record in the light most favorable to the nonmovant, there 

are no genuine disputes of material fact and the movant is 
10 

entitled to judgment as a matter of law. Id. “[T]he vast 

majority of FOIA cases can be resolved on summary 

judgment.” Brayton v. Office of Trade Representative, 641 

F.3d 521, 527 (D.C. Cir. 2011). In the FOIA context, 

“[s]ummary judgment may be granted on the basis of agency 

affidavits if they contain reasonable specificity of detail rather 

than merely conclusory statements, and if they are not called 

into question by contradictory evidence in the record or by 

evidence of agency bad faith.” Gallant, 26 F.3d at 171 (quoting 

Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980)). 

Otherwise put, agency affidavits that are “‘relatively detailed 

and non-conclusory, and . . . submitted in good faith’. . . are 

accorded a presumption of good faith.’” SafeCard Servs., Inc. 

v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (first alteration 

in original) (quoting Ground Saucer Watch, Inc. v. CIA, 692 

F.2d 770, 771 (D.C. Cir. 1981)). 

 

III. ANALYSIS

A. Screwdriver Records 

We first address appellant’s argument that the Bureau’s 

response to the request for records related to the screwdriver 

was inadequate because it reasonably described the records 

sought and did not ask the Bureau to create new records or 

answer questions. We disagree and affirm the decision of the 

district court. Nothing in the record refutes the Bureau’s 

repeated assertions that it knows nothing about the screwdriver 

and has no records responsive to Evans’s demands. 

Appellant argues that by framing the requests related to the 

screwdriver as seeking answers to questions and thus refusing 

to conduct a search in the first place, the Bureau shirked its 

responsibility to conduct a search for the records under FOIA. 

Appellant asserts that, even if the request was phrased as a 
11 

question, the Bureau may only refrain from producing 

documents “if doing so would require creating a new record.” 

Amicus Curiae Br. in Support of Plaintiff-Appellant at 34. 

Further, appellant contends that the initial request and the 

reformulated request should be construed together. Because 

the Bureau estimated the cost to conduct a search in response 

to his initial request, appellant argues that it necessarily 

understood the request and believed responsive documents to 

exist. Thus, his narrower reformulated request could have been 

satisfied with production of the same types of records. Even 

if Evans’s original and reformulated requests are read together, 

they are insufficient. 

While appellant correctly points out that the Bureau cannot 

refuse to conduct a search simply because a request is framed 

as a question, the more relevant issue, as noted above, is 

whether Evans reasonably described documents that the 

Bureau has in fact created and retained. See Kowalczyk, 73 

F.3d at 388. This turns, at least in part, on whether the 

screwdriver was prison property in the first place. But the 

Bureau has claimed in this case and in prior related proceedings 

that it did not own the screwdriver and that Evans’s 

assumptions to the contrary are flawed. Appellee’s Br. at 11; 

Evans, 2016 WL 4581339, at *2; Cunningham, 2016 WL 

3951157, at *6. 

In fact, when Evans included the picture of the screwdriver 

in his reformulated request, the Bureau sent the photo to FCI 

Gilmer officials who responded that they did not recognize the 

screwdriver, leaving them “unable to ascertain what records to 

search.” J.A. 43; Evans, 2016 WL 4581339, at *2; 

Cunningham, 2016 WL 3951157, at *6. The request was thus 

presented to professional employees of the Bureau who are 

familiar with the subject area of the request, but those officials 

were unable to determine what records to search with a 
12 

reasonable amount of effort. See Dale v. IRS, 238 F. Supp. 2d 

99, 104 (D.D.C. 2002). 

Moreover, even when the two requests are construed 

together, the reality is that Evans’s reformulated request 

fundamentally altered his initial request. In an effort to reduce 

the costs of responding to his request, Evans abandoned his 

broad requests for shipping logs, delivery logs, and 

maintenance equipment information over a span of ten years. 

Instead, he narrowed his request to seek only documents 

specifically related to a particular screwdriver. Indeed, records 

not containing information related to that screwdriver might 

not have been considered responsive to Evans’s request. In 

light of the Bureau’s affidavit stating that FCI Gilmer officials 

did not recognize the screwdriver referenced above, it was 

necessarily unable to produce responsive records. 

Appellant has provided us with no reason to doubt the 

veracity of the prison officials’ response, nor has he presented 

anything to convince us that the screwdriver must have been 

prison property. As far as we know, it is entirely plausible that 

the prison officials did not recognize the screwdriver because 

it was not prison property. Prisoners are capable of smuggling 

contraband into prison, including weapons and other materials. 

See, e.g., Bame v. Dillard, 637 F.3d 380, 385 (D.C. Cir. 2011) 

(noting that “[s]muggling of money, drugs, weapons, and other 

contraband is all too common an occurrence” in detention 

facilities (quoting Bell v. Wolfish, 441 U.S. 520, 559–60 (1979) 

(alteration in original))). Without any evidence beyond 

unfounded claims speculating that the screwdriver was prison 

property or that the Bureau’s response should not otherwise be 

accorded the presumption of good faith, the Bureau’s efforts to 

identify the screwdriver by contacting prison officials and its 

statement that it was unable to conduct a search for responsive 

records because the prison officials did not possess such a tool 
13 

are sufficient to support the grant of summary judgment. See 

SafeCard Servs., Inc., 926 F.2d at 1200. Accordingly, we 

affirm the district court’s judgment as it relates to Evans’s 

request for screwdriver records. 

B. Surveillance Footage 

Next, we turn to appellant’s contention that the Bureau 

failed to justify withholding the surveillance footage under 

FOIA Exemptions (b)(7)(C) and (b)(7)(E), and that, even if 

withholding was proper, at least some portion of the video was 

segregable. On these points, we agree with appellant that the 

Bureau failed to justify withholding the footage on this record. 

Accordingly, we vacate the district court’s judgment as to those 

issues and remand for further proceedings. 

We begin the analysis of the Bureau’s claimed exemptions 

regarding the entirety of the videotape with the underlying 

principles stated above. That is, the congressional philosophy 

in the adoption of FOIA favors disclosure, not concealment. 

To exercise the exceptions warranted by the statute, the 

government bears the burden of proving the applicability of the 

statutory exemption. See Summers, 140 F.3d at 1080. With 

respect to the claimed exemption under (b)(7)(C), in order to 

be entitled to summary judgment, the Bureau needed to 

establish beyond any genuine dispute that the disclosure of the 

withheld records “could reasonably be expected to constitute 

an unwarranted invasion of personal privacy.” 5 U.S.C. 

§ 552(b)(7)(C) (emphasis added). As discussed above, an 

agency claiming a FOIA exemption may carry this burden by 

the production of affidavits. Hayden, 608 F.2d at 1387. 

However, we remind the government that such “affidavits must 

show, with reasonable specificity, why the documents fall 

within the exemption.” Id. Further, we have long held that 

“[t]he affidavits will not suffice if the agency’s claims are 
14 

conclusory, merely reciting statutory standards, or if they are 

too vague or sweeping.” Id. The affidavit relied upon by the 

Bureau fails on all counts. It lacks specificity; it is conclusory; 

and it recites statutory language without demonstrating its 

applicability to the information withheld. 

 

More specifically, statutory Exemption (b)(7)(C) requires 

that, to be exempted, information must “constitute an 

unwarranted invasion of personal privacy.” 5 U.S.C. 

§ 552(b)(7)(C). With respect to that claimed exemption, the 

Bureau stated that the “footage contained the images of 

approximately 70 or more other individuals” and, thus, 

disclosure of the footage “may constitute an unwarranted 

invasion of privacy.” J.A. 27 (emphasis added). This will not 

do. To shelter otherwise responsive data under the protection 

of Exemption (b)(7)(C) by the terms of the statute, the 

government agency must show that the disclosure “could 

reasonably be expected to constitute an . . . invasion of personal 

privacy,” and that this invasion is “unwarranted.” 5 U.S.C. 

§ 552(b)(7)(C). The language of the affidavit that the 

disclosure of the video recording “may” constitute an 

unwarranted invasion is far too vague and unspecific to remove 

all factual issue as to whether it could reasonably be expected 

to invade personal privacy and that such invasion would be 

unwarranted. 

So far as we know from the current affidavit, all 

information that would be revealed is that seventy or so inmates 

were eating a meal in a place where they were not only 

expected to be, but were required by law to reside. It is true 

that we have discouraged serial summary judgment motions 

after the government’s first loss. See Maydak v. U.S. Dep’t of 

Justice, 218 F.3d 760, 769 (D.C. Cir. 2000). We recognize, 

however, that responding to a request for videotape rather than 

printed data may have been a novel experience for the Bureau. 
15 

Therefore, it may be that on remand, the district court will 

permit more flexibility than in the customary case. It is further 

possible that the Bureau will be no more able to make a 

showing entitling it to withholding than it has so far. That of 

course leaves open the possibility that the court might grant a 

summary judgment in favor of Evans. Unusual as it may be, 

this may be the rare FOIA case that results in a trial in which 

the court would have to find facts as to the applicability of the 

exemptions. 

If in possible further proceedings, the Bureau is able to 

produce additional evidence supporting this claimed 

exemption, it needs to do so with specificity and without 

vagueness in such a fashion that the courts can say with 

confidence that the statutory standard has been met. In other 

words, as we stated above, the government may carry its 

burden by the introduction of affidavits, but only if “affidavits 

. . . show, with reasonable specificity, why the documents fall 

within the exemption.” Hayden, 608 F.2d at 1387. 

Even if we were to accept the Bureau’s current affidavit as 

adequately bringing the document within the protection of this 

exemption, we are still confronted with the vagueness of the 

government’s claim of inability to segregate unprotected data. 

As we discussed with the government at oral argument, if we 

assume that the video record does constitute an unwarranted 

invasion of privacy as to individuals in the record, it is not at 

all clear from the government’s affidavit why it cannot 

segregate the portions of the record that do not do so. More 

specifically, we live in an era in which teenagers regularly send 

each other screenshots from all sorts of video media. 

Presumably, most of these teenagers have fewer resources than 

the United States government. It is not at all clear why the 

government could not at least isolate some screenshots that 
16 

would meet the same sort of segregability standards typically 

applied to printed material. 

The government further does not explain why it cannot by 

use of such techniques as blurring out faces, either in the video 

itself or in screenshots, eliminate unwarranted invasions of 

privacy. The same teenagers who regale each other with 

screenshots are commonly known to revise those missives by 

such techniques as inserting cat faces over the visages of 

humans. While we do not necessarily advocate that specific 

technique, we do hold that the government is required to 

explain why the possibility of some similar method of 

segregability is unavailable if it is to claim the protection of the 

exemption. 

The Bureau’s affidavit supporting its claim to protection 

of the data under Exemption (b)(7)(E) suffers from the same 

shortcomings as the other exemption claim. The Bureau 

argued that releasing the footage “would reveal the specific law 

enforcement methods employed in responding [to] and/or 

conducting the investigation into the prohibited conduct” and 

would “demonstrate[] the location of video cameras.” J.A. 27. 

Thus, prisoners could “modify[] their criminal behavior to 

prevent detection and circumvent the methods law enforcement 

officers use to discover the existence of and investigate the 

conduct of prisoners.” Id. 

We do not question the government’s good faith on this 

subject. However, we do note its vagueness and lack of 

specificity. For example, the affidavit does not even make 

clear whether the location of video cameras would be visible to 

inmates in the prison dining hall. Moreover, it does not address 

the field of view of any or all of the cameras so as to reveal 

potential blind spots—a concern first raised in the Bureau’s 

briefs. And it is not possible from the words of the affidavit to 
17 

determine whether the government is actually describing 

anything in the way of technique or placement of cameras that 

is sufficient to overcome the statutory presumption in favor of 

disclosure. Summary judgment on this issue would require that 

the Bureau show that there is no genuine dispute as to whether 

the placement and visibility of cameras is such that exposure of 

the video recording would in fact provide any new information 

not already available through observation by prisoners 

physically present in the dining room. Even if exposure of the 

cameras’ field of view would result with respect to some 

cameras, the affidavit does not establish that it would make an 

exempt exposure if only the views from one specific camera 

were shown; that is to say one camera location of which is 

readily visible, for example. Similarly, as to law enforcement 

techniques, if all the Bureau is able to show is that, when a 

prisoner does something violent, guards respond to the location 

of the violence and take action to control the prisoner, that is 

not likely to fall within the exemption. 

We understand that the Bureau may be concerned that if an 

affidavit were more detailed and specific, it might reveal 

information protected by the FOIA exemptions. This is not an 

insurmountable problem. True, we have many times reminded 

litigants that it is not necessary for district courts to conduct an 

in camera inspection in every FOIA case. Quiñon v. FBI, 86 

F.3d 1222, 1228 (D.C. Cir. 1996) (“[I]n camera review should 

not be resorted to as a matter of course.”). However, this case 

may constitute an exceptional circumstance warranting such 

inspection if the Bureau continues to insist on the applicability 

of this exemption after remand. Indeed, as the present record 

is not sufficient to support summary judgment, such an 

examination by the court may be necessary should this case 

result in a rare FOIA trial. That is, in such a trial, the district 

court would need to make findings of fact as to the exemptions, 

and it is difficult to see how this could be done without more 
18 

than what the Bureau has offered in the affidavit. In summary, 

the agency’s declaration is too unspecific on its own to 

establish that withholding the footage under the exemptions is 

justified. 

IV. CONCLUSION 

We enter a judgment affirming the district court as to the 

responses concerning the screwdriver. However, as to the 

responses concerning the video recording, we vacate the 

judgment granted by the district court and remand the matter 

for further proceedings. 

So ordered.