Gary Brown, III v. FBI

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 14, 2025 Decided July 15, 2025

No. 23-5244

GARY SEBASTIAN BROWN, III,

APPELLANT

v.

FEDERAL BUREAU OF INVESTIGATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-01639)

Joshua M. Wesneski, appointed by the court, argued the

cause as amicus curiae in support of appellant. With him on

the briefs were Chloe S. Fife and Zachary D. Tripp, appointed

by the court.

Gary Sebastian Brown III, pro se, argued the cause and

filed the briefs for appellant.

Sarah N. Smith, Attorney, U.S. Department of Justice,

argued the cause for appellee. With her on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General, and Mark B. Stern, Attorney. Kenneth A. Adebonojo

2

and Jane M. Lyons, Assistant U.S. Attorneys, entered

appearances.

Before: RAO and WALKER, Circuit Judges, and GINSBURG,

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WALKER.

WALKER, Circuit Judge: Gary Sebastian Brown, III filed a

Freedom of Information Act request with the FBI for “witness

accounts, narratives, or statements” related to the 2015 terrorist

attack in San Bernardino, California. JA 16. Brown

contends that the FBI’s search was inadequate, and that the FBI

improperly withheld responsive information. The district

court granted summary judgment for the FBI. Because the

FBI’s search was adequate and its redactions were consistent

with FOIA, we affirm.

I. Background

On November 7, 2019, Brown sent a FOIA request to the

FBI for “any witness accounts, narratives, or statements

provided by witnesses from an incident which occurred on

December 2nd, 2015 at the Inland Regional Center in San

Bernardino, CA.” JA 16. “Of particular importance” to

Brown were “any descriptions of the perpetrators such as, the

number of attackers, their behavior, apparel, equipment, and

any other details regarding their appearance.” Id.

A few weeks later, the FBI sent Brown 19 pages it had

previously released in response to a similar FOIA request.

The FBI explained that it provided the previously released

documents in “an effort to” fulfill Brown’s request “as

expeditiously as possible,” and that Brown could request “an

additional search” if the provided records were unsatisfactory.

3

JA 19. Brown was unsatisfied, so he requested an additional

search “consistent with [his] original request.” JA 22-23.

The FBI conducted a new search and located responsive

records. But because the resulting records were law-

enforcement records related to a pending investigation, the FBI

invoked FOIA Exemption 7(A) and declined to release them.

See 5 U.S.C. § 552(b)(7)(A) (exempting from disclosure “law

enforcement records” that “could reasonably be expected to

interfere with enforcement proceedings”).

Brown pursued an administrative appeal. That appeal

was unsuccessful, so in June 2021, Brown filed a pro se action

in district court. Then, in May 2022, the FBI determined that

its investigation into the San Bernadino attack “was no longer

pending,” and that Exemption 7(A) “was no longer

applicable.” JA 57. So it released a tranche of records to

Brown and moved for summary judgment.

The FBI attached a 42-page declaration to its summary

judgment motion, which explained how the FBI conducted its

search and its rationales for applying various FOIA

exemptions. The declaration stated that the FBI searched its

Central Records System for “Inland Regional Center,” the

location of the attack. JA 62. The FBI then filtered the

results for witness interviews, which it understood to be the

object of Brown’s request. That yielded 411 pages. Pursuant

to various FOIA exemptions, the FBI redacted many of those

pages and withheld one entirely. It also withheld four

duplicative pages. In total, the FBI provided Brown 406

pages.

The district court granted summary judgment for the FBI.

Brown appealed. We appointed Joshua M. Wesneski as an

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amicus to present arguments in favor of Brown’s position.1

II. Analysis

The Freedom of Information Act requires agencies to

disclose records upon request unless one of FOIA’s

exemptions applies. 5 U.S.C. § 552. Brown argues that the

FBI’s search was inadequate because it construed his request

too narrowly, and that the FBI misused Exemptions 6, 7(C),

and 7(D) to withhold records. Our review of the district

court’s grant of summary judgment is de novo. Kowal v.

United States Department of Justice, 107 F.4th 1018, 1027

(D.C. Cir. 2024).

A. Adequacy of the FBI’s Search

FOIA requires agencies to make “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. United States Department of Army,

920 F.2d 57, 68 (D.C. Cir. 1990). “An agency need not

‘search every record system’ or ‘demonstrate that all

responsive documents were found and that no other relevant

documents could possibly exist.’” Watkins Law & Advocacy,

PLLC v. United States Department of Justice, 78 F.4th 436,

442 (D.C. Cir. 2023) (quoting Oglesby, 920 F.2d at 68).

Instead, our inquiry focuses on “whether the agency’s search

was reasonable based on the specific information requested and

the agency’s efforts to produce that information.” Kowal, 107

F.4th at 1027; see also Meeropol v. Meese, 790 F.2d 942, 956

(D.C. Cir. 1986) (“adequacy is measured by the reasonableness

of the effort in light of the specific request”).

1

Mr. Wesneski has ably discharged his duties, and we thank him and

the other Amicus counsel of record for their assistance.

5

Brown argues that the FBI construed his request for

“witness accounts, narratives, or statements” too narrowly by

searching only for witness interviews. JA 16. We disagree.

Although we have said that “an agency . . . has a duty to

construe a FOIA request liberally,” Nation Magazine,

Washington Bureau v. United States Customs Service, 71 F.3d

885, 890 (D.C. Cir. 1995), an agency is required only “to read

[the request] as drafted,” Miller v. Casey, 730 F.2d 773, 777

(D.C. Cir. 1984). In addition, a FOIA requester bears the

burden of “reasonably describ[ing]” the records he seeks, 5

U.S.C. § 552(a)(3)(A), in a manner that “the agency is able to

determine precisely what records are being requested.”

Kowalczyk v. Department of Justice, 73 F.3d 386, 388 (D.C.

Cir. 1996) (cleaned up). Consistent with these principles,

“[a]gencies have the discretion to construe requests

reasonably.” Kowal, 107 F.4th at 1028.

Here, the FBI had to translate Brown’s request for

“witness accounts, narratives, or statements” into agency

parlance. Given the context of Brown’s request — seeking

records related to an FBI investigation — the FBI construed

Brown’s request against the backdrop of its standard

investigative practices. It determined that the information

Brown sought — “witness accounts, narratives, or

statements” — would have been captured through formal

witness interviews and memorialized on FD-302 forms.2 So

it crafted its search accordingly.

Brown believes that a broader search could have

uncovered “records of 911 calls,” “logs and audio records of

police radio communications,” and “raw recordings of witness

2

“FD-302s are internal FBI forms in which evidence is often

documented, usually the results of FBI interviews.” JA 140.

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interviews.” Appellant Br. 43. But Brown’s speculation as

to what other records the FBI may possess — particularly those

which would have been generated by other law enforcement

agencies — “is insufficient to demonstrate” that the FBI’s

search was “inadequate.” Kowal, 107 F.4th at 1029 (citing

SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir.

1991)). Moreover, our inquiry turns on the reasonableness of

the FBI’s approach — not “whether there might exist any other

documents possibly responsive to the request.” Weisberg v.

United States Department of Justice, 745 F.2d 1476, 1485

(D.C. Cir. 1984).

Brown is, of course, free to “submit a second, more

specific FOIA request.” Kowal, 107 F.4th at 1028. But

because the FBI’s search was reasonable, we hold that it

satisfies FOIA.

B. The FBI Properly Withheld Information

Next, Brown challenges the FBI’s invocation of

Exemptions 6, 7(C), and 7(D) to withhold certain records. We

uphold an agency’s reliance on a FOIA exemption if the

agency “describes the justifications for withholding the

information with specific detail, demonstrates that the

information withheld logically falls within the claimed

exemption, and is not contradicted by contrary evidence in the

record or by evidence of the agency’s bad faith.” Judicial

Watch, Inc. v. United States Department of Defense, 715 F.3d

937, 940-41 (D.C. Cir. 2013) (cleaned up).

Additionally, an agency may withhold information under

one of these exemptions “only if . . . the agency reasonably

foresees that disclosure would harm an interest protected by”

the relevant exemption, or if “disclosure is prohibited by law.”

5 U.S.C. § 552(a)(8)(A). To satisfy that requirement, the

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agency must “articulate both the nature of the harm from

release and the link between the specified harm and specific

information contained in the material withheld.” Reporters

Committee for Freedom of the Press v. FBI, 3 F.4th 350, 369

(D.C. Cir. 2021) (cleaned up).

1. Exemptions 6 & 7(C)

The FBI relied on Exemptions 6 & 7(C) to withhold

personal information about FBI employees, other federal and

local government personnel, and third parties. 3 On appeal,

Brown challenges only the FBI’s withholding of names and

identifying information about: (1) third-party sources; (2) third

parties merely mentioned; and (3) third-party victims.

Exemption 7(C) permits agencies to withhold “records or

information compiled for law enforcement purposes” when the

release of such records “could reasonably be expected to

constitute an unwarranted invasion of personal privacy.”

5 U.S.C. § 552(b)(7)(C). To invoke this exemption, an

agency must find that the privacy interests at stake outweigh

any public interest in disclosure. SafeCard Services, 926 F.2d

at 1205.

Brown does not challenge the FBI’s balancing of the

public interest in disclosure. Instead, he argues that the harms

3

Exemption 6 covers “personnel and medical files and similar files

the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy.” 5 U.S.C. § 552(b)(6). “When, as

here, the request is for records compiled for law enforcement

purposes, the information protected by Exemption 6 is a subset of

that protected by Exemption 7(C), so we need only analyze the

latter.” Kowal, 107 F.4th at 1030.

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the FBI identified are not reasonably foreseeable and that the

redactions were overbroad. We disagree.

First, the FBI detailed the foreseeable harms three separate

groups could experience from disclosure.

• As for third-party sources, the FBI explained that

because association with an FBI investigation “can

carry an extremely negative connotation,” disclosure

of sources’ identities “could subject these individuals

to harassment or embarrassment, undue public

attention, or unwanted inquiries for information

related to their assistance.” JA 78, 79. Even worse,

sources “could also be targeted for retaliation by

investigative subjects, those sympathetic to

investigative subjects, or by those who simply

disparage cooperation with law enforcement.” JA

79.

• As for third parties merely mentioned, the FBI

explained that disclosure of their identities could

subject them “to possible harassment or criticism and

focus derogatory inferences and suspicion” on those

“tangentially mentioned in conjunction with FBI

investigative efforts.” JA 79-80.

• And as for third-party victims, the FBI explained that

it withheld identifying information to avoid inflicting

“unsolicited and unnecessary attention” on victims, to

protect their “dignity and privacy,” and to avoid

“forc[ing] them to relive traumatic events.” JA 80-

81.

With those explanations, the FBI identified reasonably

foreseeable harms linked to the disclosure of the personally

identifiable information the FBI withheld.

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Second, Brown points to certain paragraph-long redactions

and contends that those redactions cannot possibly contain only

personally identifiable information. Appellant Br. 25-27; see

also 5 U.S.C. § 552(a)(8)(A)(ii)(II) (agencies must “take

reasonable steps necessary to segregate and release nonexempt

information”). But Brown misunderstands the nature of the

redactions. As the district court explained, the FBI invoked

additional exemptions “on nearly every page where [Brown]

has challenged the use of Exemption 7(C).” Brown v. FBI,

No. 21-cv-01639, 2023 WL 5333210, at *13 (D.D.C. Aug. 18,

2023). Those other exemptions — particularly

Exemption 7(D), discussed below — justify the longer

redactions.

Therefore, we conclude that the FBI properly invoked

Exemptions 6 and 7(C).

2. Exemption 7(D)

Brown also challenges the FBI’s invocation of

Exemption 7(D). That exemption permits the FBI to withhold

“records or information compiled for law enforcement

purposes” that “could reasonably be expected to disclose the

identity of a confidential source” and, in criminal

investigations, the “information furnished by a confidential

source.” 5 U.S.C. § 552(b)(7)(D). Here, the exemption is

met because witnesses provided information to the FBI “under

implied assurances of confidentiality.” Appellee Br. 28.

The FBI adequately explained why all the witnesses had a

reasonable expectation of confidentiality. Because of the

nature of the crime — a gruesome, ISIS-inspired terrorist

attack — and the witnesses’ “proximity . . . to the investigative

subjects and events they described,” it is “reasonable to infer”

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that sources would not want to be publicly associated with the

attack. JA 85, 86; United States Department of Justice v.

Landano, 508 U.S. 165, 179 (1993) (“the character of the crime

at issue” and “the source’s relation to the crime” “may be

relevant to determining whether a source cooperated with the

FBI with an implied assurance of confidentiality”).

Moreover, much of the information the witnesses provided is

singular in nature and could be attributed to them “by those

familiar with the events described.” JA 85. Thus, disclosure

of the information the witnesses provided “could subject these

individuals, as well as their families, to retaliation or

backlash.”4 JA 86.

The FBI also adequately explained how disclosure of

witnesses’ descriptions of the shooters would cause

foreseeable harm to the FBI’s interest in protecting the identity

of confidential sources.5 That harm is twofold.

First, as discussed above, disclosure would create a risk of

4

Brown cites Landano for the uncontroversial proposition that there

is no presumption that “all FBI sources” are “confidential.” 508

U.S. at 174. To the extent this argument is preserved, it doesn’t help

Brown. The Landano Court emphasized that although there is no

“prophylactic rule protecting the identities of all FBI criminal

investigative sources,” id. at 180-81, “the Government often can

point to” “circumstances in which an implied assurance of

confidentiality fairly can be inferred,” id. at 179. It has done so

here.

5

Amicus also argues that the district court failed to address

foreseeable harm, and that we should remand to the district court to

evaluate that requirement in the first instance. But our review is de

novo, and “we can affirm a district court judgment on any basis

supported by the record.” Smith v. Lanier, 726 F.3d 166, 169 (D.C.

Cir. 2013) (quoting Carney v. American University, 151 F.3d 1090,

1096 (D.C. Cir. 1998)). So a remand is not necessary.

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harm for witnesses. Many of the witness accounts contain

“singular” descriptions of the shooters that could be attributed

to specific witnesses — thereby exposing those witnesses to

reprisal and retaliation. JA 86. Brown speculates that the

FBI’s redactions are overly broad and omit more than just

singular descriptions. But Brown has offered no material

reason to doubt the FBI, and bolstering the FBI’s credibility is

the fact that it did not redact certain non-singular descriptions

of the shooters. See, e.g., JA 241, 254.

Second, the FBI explained that disclosure would

undermine the efficacy of future witness interviews — “one of

the FBI’s most important means of collecting

information” — because witnesses are more likely to “hedge

or withhold information” if they believe “their cooperation

with the FBI will later be made public.” JA 84, 85. Amicus

questions how one could “deter cooperation with an

investigation that has concluded.” Amicus Br. 39. But that

framing is too narrow: The FBI has an institutional interest in

ensuring witness cooperation in future investigations, not just

its investigation into the San Bernadino attack.

Amicus points out that the FBI has invoked an interest in

ensuring future witness cooperation “in numerous other cases

involving Exemption 7(D) but arising under entirely different

facts.” Amicus Reply Br. 17. But that in no way belies the

FBI’s invocation of the same interest here. Rather, it is

difficult to imagine a criminal investigation in which that

interest would not be applicable. Perhaps that’s why

Exemption 7(D) categorically exempts from disclosure

“information furnished by a confidential source” in criminal

investigations, 5 U.S.C. § 552(b)(7)(D), unlike other FOIA

exemptions that require fact-specific inquiries to determine

whether a specific interest would be served by withholding

records, cf., e.g., id. § 552(b)(6) (requiring a finding that

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disclosure of “personnel and medical” records “would

constitute a clearly unwarranted invasion of personal

privacy”); id. § 552(b)(7)(A) (requiring a finding that

disclosure of “law enforcement records” could “interfere with

enforcement proceedings”). Accordingly, we are doubtful

that the FBI needed to articulate any harm beyond the harm

already identified in Congress’s decision to create a special

exemption for “information furnished by a confidential

source.” Id. § 552(b)(7)(D).

We therefore conclude that the FBI validly withheld

information under Exemption 7(D).

C. In Camera Review

Finally, Brown argues that the district court should have

reviewed the redactions in camera. We review a district

court’s denial of in camera review for abuse of discretion.

ACLU v. United States Department of Defense, 628 F.3d 612,

626 (D.C. Cir. 2011).

As Brown acknowledges, district courts have “broad

discretion” in determining whether to order in camera review.

Appellant Br. 20 (quoting Spirko v. U.S. Postal Service, 147

F.3d 992, 996 (D.C. Cir. 1998)); see also 5 U.S.C.

§ 552(a)(4)(B) (permitting, but not requiring, district courts to

conduct in camera review in FOIA cases). Here, the FBI

provided a detailed declaration explaining why it invoked

various exemptions; there is no evidence of bad faith; and

neither Brown nor Amicus has identified anything in the record

that contradicts the FBI’s declaration. Cf. ACLU, 628 F.3d at

626 (not an abuse of discretion to deny in camera review absent

“contradict[ion] in the record” or “evidence . . . of agency bad

faith”). So the district court did not abuse its discretion in

denying in camera review.

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III. Conclusion

Because the FBI reasonably construed Brown’s request

and appropriately withheld records exempt from disclosure, we

affirm the district court.

So ordered.