Case Detail

FOIA Project Annotation: A federal court in New York has ruled that most portions of the videos taken of the forced-feeding of Mohammad Salameh, who was convicted for his role in the 1993 terrorist attack against the World Trade Center, by the Bureau of Prisons are protected by Exemption 6 (invasion of privacy), Exemption 7(C) (invasion of privacy concerning law enforcement records), Exemption 7(E) (investigative methods or techniques), and Exemption 7 (F) (harm to person) in response to FOIA requests from investigative journalist Aviva Stahl, but that the agency has not shown that it conducted a segregability analysis to determine if non-exempt portions of the videos could be separated and disclosed. As a result of a hunger strike Salameh began in 2015, his health deteriorated enough to require two medical interventions to force-feed him. Both episodes required Salameh to be physically restrained and fed intravenously. Stahl requested Salameh's medical records as well as videotapes of any involuntary medical treatment. By the time Judge Brian Cogan of the Eastern District of New York ruled on her suit, the only issue remaining was disclosure of the videos. Cogan first addressed whether the records qualified as law enforcement records under the threshold standard for Exemption 7. He noted that "they relate to an integral part of the execution of sentences. . .Salameh's hunger strikes threatened BOP's ability to fulfill its 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." Cogan found Exemption 7(F) applied to portions of the videos. He noted that "the videos also show 'protective gear,' 'security equipment,' and how the staff used the 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." Cogan observed that 7(F) also protected the identities of the prison staff that appeared in the videos, noting that "releasing the names and titles of the staff in the video could reasonably be expected to expose them to retaliation or reprisals." Having found those portions of the video protected by Exemption 7(F), Cogan indicated that "the fact that segments of the videos fall within an exemption does not mean that the entirety does so as well." He explained 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 Salameh undergo involuntary medical treatment, and implementing that treatment." Rejecting the agency's objections that medial staff could be identified, Cogan indicated that "that conclusion does not change simply because segregating non-exempt information will require some video editing." He pointed out that "because editing is routine and inexpensive, an agency cannot credibly claim that it lacks access to this technology. And if acquiring this software would stand in the way of complying with FOIA, no video would ever be disclosed." Rejecting the agency's claim that exempt information was inextricably intertwined with non-exempt information, Cogan observed that "but defendants' conclusory assertions do not make that showing, so I cannot conclude that Exemption 7(F) covers the entirety of the videos. If defendants wish to withhold the remaining portion, they must look to another exemption." Although Cogan concluded that Exemption 7(C) applied, he pointed out that "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 have redacted a written document. If defendants wish to withhold the remainder of the video, they once again must look elsewhere." Cogan also rejected the agency's Exemption 7(E) claims. He noted 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." Cogan concluded by telling the agency that it needed to either supplement its affidavits to justify the exemption claims to the portions of the videos he had found were not exempt or the agency could provide the videos for in camera review.
Issues: Exemption 7(F) - Harm to safety of any person, Segregability, Choice of format - Burdensome

Date Filed	Doc #	Docket Text
2019-07-17	1	COMPLAINT against Department of Justice, Federal Bureau of Prisons filing fee $ 400, receipt number ANYEDC-11673641 Was the Disclosure Statement on Civil Cover Sheet completed -Yes,, filed by Aviva Stahl. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons) (Ginsberg, Betsy) (Entered: 07/17/2019)
2019-07-19		Case Assigned to Judge Brian M. Cogan. Please download and review the Individual Practices of the assigned Judges, located on our website . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Davis, Kimberly) (Entered: 07/19/2019)
2019-07-19	2	In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf . You may withhold your consent without adverse substantive consequences . Do NOT return or file the consent unless all parties have signed the consent. (Davis, Kimberly) (Entered: 07/19/2019)
2019-07-19	3	This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Davis, Kimberly) (Entered: 07/19/2019)
2019-07-19	4	Summons Issued as to Department of Justice, Federal Bureau of Prisons, U.S. Attorney and U.S. Attorney General (Davis, Kimberly) (Entered: 07/19/2019)
2019-07-29	5	SCHEDULING ORDER: Initial Status Conference is set for 9/9/2019 at 10:45 AM in Chambers 704S. SEE ATTACHED MANDATORY REQUIREMENTS FOR THE CONFERENCE. Ordered by Judge Brian M. Cogan on 7/29/2019. (Weisberg, Peggy) (Entered: 07/29/2019)
2019-08-07	6	SUMMONS Returned Executed by Aviva Stahl. Department of Justice served on 8/6/2019, answer due 8/27/2019; Federal Bureau of Prisons served on 8/6/2019, answer due 8/27/2019. (Ginsberg, Betsy) (Entered: 08/07/2019)
2019-09-03	7	NOTICE of Appearance by Farzin Franklin Amanat on behalf of All Defendants (aty to be noticed) (Amanat, Farzin) (Entered: 09/03/2019)
2019-09-03	8	Letter MOTION for Extension of Time to File Answer re 1 Complaint, respectfully seeking, with the consent of the plaintiff, a two week extension from 9/5/19 to 9/19/19 to answer the complaint. Respectfully submitted by Department of Justice, Federal Bureau of Prisons. (Amanat, Farzin) (Entered: 09/03/2019)
2019-09-04		ORDER granting 8 defendants' motion for an extension of time to file their answer until 9/19/2019. The Initial Status Conference will proceed as previously scheduled for 9/9/2019 at 10:45 am in Chambers 704S. Ordered by Judge Brian M. Cogan on 9/4/2019. (Weisberg, Peggy) (Entered: 09/04/2019)
2019-09-04	9	Letter Joint Letter in Connection with Status Conference by Aviva Stahl (Ginsberg, Betsy) (Entered: 09/04/2019)
2019-09-09		Minute Entry and Order for Initial Status Conference held before Judge Brian M. Cogan on 9/9/2019. Counsel for both sides present. By 9/16/2019, the parties shall file a proposed scheduling order for this case. (Weisberg, Peggy) (Entered: 09/09/2019)
2019-09-12	10	NOTICE by Aviva Stahl Letter enclosing Law Student Appearance Forms for Court's Signature (Attachments: # 1 Law Student Intern Appearance Forms) (Ginsberg, Betsy) (Entered: 09/12/2019)
2019-09-13	11	ORDER dated 9/12/19 granting Law Student Intern Appearance Form re 10 Notice(Other) filed by Aviva Stahl. ( Ordered by Judge Brian M. Cogan on 9/12/2019 ) (Guzzi, Roseann) (Entered: 09/13/2019)
2019-09-16	12	STIPULATION and Proposed Scheduling Order signed by both parties, per the Court's September 9 Order by Aviva Stahl (Ginsberg, Betsy) (Entered: 09/16/2019)
2019-09-16	13	SCHEDULING ORDER dated 9/16/19 re 12 Stipulation filed by Aviva Stahl. ( Ordered by Judge Brian M. Cogan on 9/16/2019 ) (Guzzi, Roseann) (Entered: 09/16/2019)
2019-09-18	14	ANSWER to 1 Complaint, by All Defendants. (Amanat, Farzin) (Entered: 09/18/2019)
2019-10-25	15	Proposed Scheduling Order Joint Stipulation and Proposed Order Narrowing the Issues to be Addressed on Summary Judgment and Proposing Summary Judgment Briefing Schedule. by Aviva Stahl (Ginsberg, Betsy) (Entered: 10/25/2019)
2019-10-25	16	ORDER dated 10/25/19 re 15 Joint Stipulation and Proposed Order Narrowing the Issues to be Addressed on Summary Judgment and Proposing Summary Judgment Briefing Schedule. *The parties should understand that the Court considers this as absurdly lengthy briefing schedule for the issues in this case and neither side should even ask for any further extensions absent extraordinary circumstances. ( Ordered by Judge Brian M. Cogan on 10/25/2019 ) (Guzzi, Roseann) (Entered: 10/25/2019)
2019-12-20	17	MOTION for Summary Judgment by Department of Justice, Federal Bureau of Prisons. (Attachments: # 1 Notice of Motion, # 2 Declaration of James Phelps, # 3 Exhibit A to Phelps Declaration: BOP PS 5562.05 Hunger Strikes, # 4 Exhibit B to Phelps Declaration: BOP PS 5566.06 Use of Force and Application of Restraints, # 5 Declaration of Erika Fenstermaker, # 6 Exhibit A to Fenstermaker Declaration (BOP Public Information Data for Mohammad Salameh), # 7 Exhibit B to Fenstermaker Declaration (Plaintiff's FOIA Request), # 8 Exhibit C to Fenstermaker Declaration (BOP Acknowledgment), # 9 Exhibit D to Fenstermaker Declaration (BOP Response Letters to FOIA Request), # 10 Exhibit E to Fenstermaker Declaration (Vaughn Index)) (Amanat, Farzin) (Entered: 12/20/2019)
2019-12-20	18	Letter to Judge Cogan transmitting courtesy copies of 17 Government's Motion for Summary Judgment, with supporting papers. With the physical copy of the letter being delivered to Chambers, we are also submitting, ex parte and under seal, a DVD containing the videos at issue in this case, for the Court's in camera review should it so choose. The 16 Stipulation and Order entered on October 25 directed the Government to make this ex parte submission and provided that no further motion was necessary to authorized the sealed filing. Respectfully submitted by Department of Justice, Federal Bureau of Prisons (Attachments: # 1 Cover Sheet for Sealed Filing of DVD) (Amanat, Farzin) (Entered: 12/20/2019)
2020-02-10	19	Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment by Aviva Stahl. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Aviva Stahl, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Declaration of Mohammad Salameh, # 7 Declaration of Betsy Ginsberg, # 8 Exhibit A, # 9 Exhibit B) (Ginsberg, Betsy) (Entered: 02/10/2020)
2020-02-10	20	Letter Enclosing courtesy copy of Summary Judgment papers (also sent by overnight mail) and requesting oral argument by Aviva Stahl (Ginsberg, Betsy) (Entered: 02/10/2020)
2020-02-11		SCHEDULING ORDER: re 20 . Oral Argument on defendants' motion for summary judgment and plaintiff's cross motion for summary judgment is set for 3/2/2020 at 9:30 AM in Courtroom 8D South. Ordered by Judge Brian M. Cogan on 2/11/2020. (Clarke, Melonie) (Entered: 02/11/2020)
2020-02-21	21	MOTION for Leave to File Excess Pages : Under 16 the briefing schedule in this FOIA action, the Government's second brief is due this coming Monday, February 24. As this brief is both a reply in support of 17 the Government's motion for summary judgment and an opposition to 19 Plaintiff's cross-motion for summary judgment, it is not clear whether the Court's ten page limit for replies or 25 page limit for opposition briefs applies. Regardless, having substantially drafted the brief, it appears that the Government will need approximately 20 pages to address all of the issues raised in Plaintiff's brief and its attachments. If the Court's page limit for replies rather than oppositions applies to this brief, then the Government respectfully moves for leave to submit excess pages and asks that its limit be 20 rather than 10 pages. Respectfully submitted by Department of Justice, Federal Bureau of Prisons. (Amanat, Farzin) (Entered: 02/21/2020)
2020-02-21		ORDER re: 21 . The Court enters the following ruling: 1) the Government's brief in opposition and reply in support of its motion may exceed the page limit, not to exceed 20 pages; 2) plaintiff may file a 10-page reply brief in support of the cross-motion by 3/9/2020; 3) oral argument is reset to 3/24/2020 at 4:30 in Courtroom 8D South. Ordered by Judge Brian M. Cogan on 2/21/2020. (Weisberg, Peggy) (Entered: 02/21/2020)
2020-02-24	22	REPLY in Support re 17 MOTION for Summary Judgment and in Opposition to 19 Plaintiff's Cross-Motion for Summary Judgment. Respectfully filed by Department of Justice, Federal Bureau of Prisons. (Attachments: # 1 Declaration (Supplemental Declaration of James Phelps), # 2 Phelps Exhibit C, # 3 Phelps Exhibit D, # 4 Phelps Exhibit E, # 5 Phelps Exhibit F, # 6 Phelps Exhibit G, # 7 Phelps Exhibit H, # 8 Declaration (Supplemental Declaration of Erika Fenstermaker)) (Amanat, Farzin) (Entered: 02/24/2020)
2020-03-09	23	REPLY in Support re 19 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment , 22 Reply in Support,, 17 MOTION for Summary Judgment , REPLY to Response to Motion re 19 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment , 17 MOTION for Summary Judgment , RESPONSE in Opposition re 19 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment , 17 MOTION for Summary Judgment , REPLY in Opposition re 19 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment , 22 Reply in Support,, 17 MOTION for Summary Judgment filed by Aviva Stahl. (Ginsberg, Betsy) (Entered: 03/09/2020)
2020-03-12	24	Letter Alerting Court to Supplemental Authority (Evans v. Federal Bureau of Prisons, --- F.3d ----, 2020 WL 1144613 (D.C. Cir. March. 10, 2020) (Sentelle, J.)) issued after filing of Plaintiff's Reply Brief by Aviva Stahl (Ginsberg, Betsy) (Entered: 03/12/2020)
2020-03-12		Set/Reset Hearing: Oral Argument previously set at 4:30 pm on 3/24/2020 is reset to 10:00 am in Courtroom 8D South. (Weisberg, Peggy) (Entered: 03/12/2020)
2020-03-18	25	MOTION to Adjourn Conference (Oral Argument on Cross Motions for Summary Judgment) currently set for Monday March 23 by Aviva Stahl. (Ginsberg, Betsy) (Entered: 03/18/2020)
2020-03-18		ORDER granting 25 Motion to Adjourn Conference. Oral Argument is adjourned to 4/30/2020 at 11:00 in Courtroom 8D South. Ordered by Judge Brian M. Cogan on 3/18/2020. (Weisberg, Peggy) (Entered: 03/18/2020)
2020-04-21	26	Consent MOTION to Adjourn Conference /Request that Court Decide Cross Motions for Summary Judgment on Paper Submissions by Aviva Stahl. (Ginsberg, Betsy) (Entered: 04/21/2020)
2020-04-22		ORDER granting 26 Motion to Adjourn Conference. Oral Argument scheduled for 4/30/2020 is cancelled. Ordered by Judge Brian M. Cogan on 4/22/2020. (Weisberg, Peggy) (Entered: 04/22/2020)
2020-07-14	27	NOTICE of Appearance by Kathleen Anne Mahoney on behalf of All Defendants (aty to be noticed) (Mahoney, Kathleen) (Entered: 07/14/2020)
2020-07-15	28	MOTION to Withdraw as Attorney by Department of Justice, Federal Bureau of Prisons. (Amanat, Farzin) (Entered: 07/15/2020)
2020-07-15		ORDER granting 28 Motion to Withdraw as Attorney. Attorney Farzin Franklin Amanat terminated. Ordered by Judge Brian M. Cogan on 7/15/2020. (Weisberg, Peggy) (Entered: 07/15/2020)
2021-03-26	29	MEMORANDUM DECISION AND ORDER dated 3/26/21 Defendants' motion for summary judgment 17 is granted in part, and plaintiff's motion for summary judgment 19 is denied in part. ( Ordered by Judge Brian M. Cogan on 3/26/2021 ) (Guzzi, Roseann) (Entered: 03/26/2021)
2021-03-29		SCHEDULING ORDER: A status conference by telephone will be held on 4/15/2021 at 10:30 am to discuss the schedule for the supplemental memoranda as set forth in the Court's Memorandum Decision and Order. Parties will use the toll-free number 888-684-8852, access code 6427877# and security code 4142#. Ordered by Judge Brian M. Cogan on 3/29/2021. (Weisberg, Peggy) (Entered: 03/29/2021)
2021-04-05		Set/Reset Hearing Time: Telephonic status conference set for 10:30 am on 4/15/2021 is reset to 3:30 pm. Parties will use the toll-free number 888-684-8852, access code 6427877# and security code 4142#. (Weisberg, Peggy) (Entered: 04/05/2021)
2021-04-15		Minute Entry and Order for Status Conference held on 4/15/2021 before Judge Brian M. Cogan. Counsel for both sides appeared by telephone. The Court set the following briefing schedule: defendants shall submit their supplemental briefing, if any, by 5/13/2021; plaintiff's supplemental briefing due 6/2/2021; defendants' reply due 6/9/2021. (Weisberg, Peggy) (Entered: 04/15/2021)
2021-05-13	30	Letter to Honorable Brian M. Cogan enclosing Defendants' supplemental submission by Department of Justice, Federal Bureau of Prisons (Mahoney, Kathleen) Modified on 6/3/2021 (Weisberg, Peggy). (Entered: 05/13/2021)
2021-05-13	31	MEMORANDUM in Support Supplemental Memorandum of Law in Further Support of Defendants' Motion for Summary Judgment filed by All Defendants. (Mahoney, Kathleen) (Entered: 05/13/2021)
2021-05-13	32	DECLARATION of John Baumchen by Department of Justice, Federal Bureau of Prisons (Mahoney, Kathleen) (Entered: 05/13/2021)
2021-05-13	33	DECLARATION of J. Relvas by Department of Justice, Federal Bureau of Prisons (Mahoney, Kathleen) (Entered: 05/13/2021)
2021-06-02	34	MEMORANDUM in Support Supplemental Memorandum in Further Support of Plaintiff's Cross Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment filed by Aviva Stahl. (Attachments: # 1 Declaration of Erica Berenstein) (Ginsberg, Betsy) (Entered: 06/02/2021)
2021-06-09	35	REPLY in Support re 33 Declaration, 31 Memorandum in Support, 32 Declaration Defendants' Supplemental Reply in Further Support of Defendants' Motion for Summary Judgment filed by All Defendants. (Mahoney, Kathleen) (Entered: 06/09/2021)
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