Petition for Writ of Certiorari — Gary Sebastian Brown, III, Petitioner v. Federal Bureau of Investigation

Supreme Court briefNov 28, 2025

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3fn tlje Supreme Court of tlje SIniteb

States;

Supreme Court, U.S.

FILED

NOV 2 8 2025

OFFICE OF THE CLERK

GARY SEBASTIAN BROWN III

Petitioner, Pro Se

THE FEDERAL BUREAU OF INVESTIGATION

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Gary Sebastian Brown III

12296 NW Barnes Rd. 476

Portland, OR

97229

gaiysebastianbrowniii@gmail.com

(971) 219-0293

QUESTIONS PRESENTED

The Freedom of Information Act embodies a

presumption of disclosure. In 2016, Congress enacted

the FOIA Improvement Act, 5 U.S.C. § 552(a)(8)(A),

which requires an agency, before withholding, to

determine that disclosure of the particular

information would foreseeably harm an interest

protected by a FOIA exemption (or that disclosure is

prohibited by law) and to release all reasonably

segregable nonexempt material. The Act was intended

to promote transparency and curb reflexive use of

exemptions

requiring

context-specific

justifications.

Exemption

7(D)

protects

“records

information compiled for law-enforcement purposes”

to the extent disclosure “could reasonably be expected

to disclose the identity of a confidential source,” or

information furnished by such a source. Congress

enacted this provision to preserve source anonymity

and cooperation in criminal and analogous

investigations,

including

protection

against

retaliation, harassment, or intimidation.

Whether, after the FOIA Improvement Act of

2016, an agency invoking Exemption 7(D)

must, in addition to establishing that the

exemption applies, separately demonstrate

that disclosure of the particular information

would foreseeably harm an interest protected

by that exemption.

II.

Whether Exemption 7(D) permits withholding

consistent with FOIA’s 2016 foreseeable-harm

requirement when the agency’s asserted risk is

recognition of a witness’s account by other

victims, witnesses, or investigators—rather

than by members of the public, co-conspirators,

or other adversaries involved in • an

investigation.

PARTIES TO THE PROCEEDING

Petitioner is Gary Sebastian Brown III,

Appellant in the proceedings below.

Respondent is the Federal Bureau

Investigation, Appellee in the proceedings below.

TABLE OF CONTENTS

Page

Opinions below......................................................2

Jurisdiction............................................................ 2

Statutory provisions involved............................ 2

Introduction.......................................................... 2

Statement of the case.......................................... 5

A. Legal background.............................. 5

B. Factual and procedural

Background.......................................... 7

Reasons for Granting the Petition.................... 16

A. The decision below is wrong....'........ 18

1. The FOIA Improvement

Act of 2016 serves an

Important democratic

Interest.............................................19

2. The facts of this case aptly

demonstrate why Exemption

7(D) necessarily falls within

the ambit of the FIA..................... 22

3. The court of appeals reasons

for upholding the FBI’s decision

to withhold do not withstand

scrutiny............................................28

B. The questions presented warrant

Review.................................................... 37

Conclusion...............................................................44

Appendix A - Court of appeals opinion

(July 15th, 2025)................ la

Appendix B — District court opinion

(August 18th, 2023).......... 13a

Appendix C - Order on motion to amend

(October 23rd, 2023).......... 58a

Appendix D - Order denying rehearing

(August 29th, 2025). 59a

iii

TABLE OF AUTHORITIES

Page

Cases:

Dep’t of the Air Force v. Rose,

425 U.S. 352, (1976)

Human Rts. Def. Ctr. v. U.S. Park Police,

23-5236, (D.C. Cir. Jan. 24, 2025)

Leopold v. U.S. Dep’t ofJustice, 94 F.4th 33

94 F.4th 33, (D.C. Cir. 2024)

Machado Amadis v. U.S. Dep’t ofState,

971 F.3d 364, (D.C. Cir. 2020)

Reps. Comm, for Freedom of the Press v. FBI,

3 F.4th 350, (D.C. Cir. 2021)

14, 20, 32, 35

U.S. Dep’t ofJustice v. Reporters Comm, for

Freedom of the Press,

489 U.S. 749, (1989)

Statutes:

5 U.S.C. § 552(a)(8)(A)

Page

2, 5, 6, 17, 18

5 U.S.C. § 552(a)(3)(A)

5, 31, 37, 38, 40

5 U.S.C. § 552(a) (8) (A) (i)

5 U.S.C. § 552(a)(4)(B)

5 U.S.C. § 552(b)

5 U.S.C. § 552(b)(7)(D)

12, 16, 20, 23

Secondary authorities:

Page

S. Rep. No. 114-4, (2015)

3fn tlje Supreme Court of tlje (Hrnteti

States;

No.

GARY SEBASTIAN BROWN III

Petitioner, Pro Se

THE FEDERAL BUREAU OF INVESTIGATION

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OFAPPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Gary Sebastian Brown III, proceeding pro se,

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is

unpublished and is available at Brown v. FBI, No. 235244, 2025 WL 1933347 (D.C. Cir. July 15, 2025). The

memorandum opinion and order of the district court

is unpublished and is available at Brown v. FBI, No.

21-cw01639 (RBW), 2023 WL 5333210 (D.D.C. Aug.

18, 2023).

JURISDICTION

The judgment of the court of appeals was

entered on July 15, 2025. The petition for rehearing

and rehearing en banc was denied on August 29, 2025,

and the mandate issued on September 8, 2025. This

Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Freedom of

Information Act and The FOIA Improvement Act of

2016 are set forth in an appendix to this petition.

INTRODUCTION

Congress strengthened FOIA in 2016 by adding

a substantive “foreseeable harm” requirement: an

agency may withhold information only if it both (1)

establishes that a statutory exemption applies and (2)

reasonably foresees that disclosure of that

information would harm an interest that the

exemption protects, while releasing all reasonably

segregable material. 5 U.S.C. § 552(a)(8)(A). This case

presents a clean vehicle to clarify that requirement’s

operation in lawenforcement files under Exemption

7(D).

Petitioner submitted a FOIA request to the FBI

seeking witness accounts describing the perpetrators

of the December 2nd, 2015 mass shooting in San

Bernardino California.1 More specifically, the request

was for witness descriptions of the perpetrators

during the conduct of the attack. The FBI produced

much of the narrative accounts but redacted the

requested descriptions. The asserted risk was not

public exposure or danger from adversaries. Rather,

the government argued that, because witness

descriptions of the perpetrators are “singular,” other

participants in the incident or investigation: fellow

victims or witnesses and assigned investigators

already familiar with their stories and associated

identities, could attribute an account to a particular

witness. The agency explained at oral argument that,

“this was “a workplace” shooting, that “the witnesses

knew each other” and “worked with one of the

suspects,” and that the narratives described “what

they did during the attack, how they responded.”

Because of that pre-existing familiarity, they argued,

“those accounts, if revealed, could identify” which co

worker supplied which statement, “someone could

identify, oh, you know, this is Bob’s account because it

says during the attack, I ran into the closet with

Harry and Susie. That’s the sort of information that

could identify a witness.” (Oral Arg. Tr. 26-27.)

The court of appeals treated it as doubtful that

a separate foreseeable-harm showing was required

under Exemption 7(D) but accepted the FBI’s

rationale for withholding under an unarticulated

standard of “singularity.” The court found that the

intrinsic “singularity” of a witness’s description of a

1 Such descriptions may be found at:

https://www.youtube.com/watch?v=TwTYja7GXcY

https://www.youtube.com/watch?v=74CYZTlmnzU

perpetrator was sufficient reason for the FBI to

anticipate that witnesses’ identities would be revealed

to one another through release of the disputed

portions of the records. And that witness’s recognition

of one another’s stories and associated identities could

lead to retaliation or harassment, presumably from

each other.

That approach conflicts with the statute

Congress enacted. The FOIA Improvement Act makes

the harm step distinct from exemption coverage and

requires

record-specific,

interest-tethered

explanation tied to the actual substantive content of

the record withheld, followed by a segregability

analysis. Treating insider attribution as harm

collapses

that

analysis:

recognition

among

participants is an inherent feature of any eyewitness

narrative, so “foreseeable harm” would then become

intrinsic whenever narratives are distinctive, of which

they invariably are. The result is a categorical veto

over an entire class of records which, throughout the

entirety of FOIA’s history, have never before been

exempt. Such an outcome wholly reverses the

meaning and purpose of the FOIA Improvement Act,

leading to an outcome in stark contradiction to

Congress’s intent.

The questions here are purely legal, outcome

determinative, and recur across law-enforcement

records. FOIA litigation is concentrated in the D.C.

Circuit, whose rulings shape nationwide agency

practice and sister circuit methodologies; the decision

below therefore carries national consequences. The

record is simple: large swathes of witness narratives

were released, but the exact information requested:

witness descriptions of the perpetrators during the

attack, was precisely what was withheld. The

government’s rationale turned on “singularity”

leading to attribution among non-adversarial insiders

rather than risk from the public, adversarial

participants in the investigation, or adversaries

generally.

After nearly a decade of percolation in the lower

courts, this petition provides an excellent opportunity

and clean vehicle within which this court may clarify

for the first time the FOIA Improvement Act’s

meaning and purpose. It asks the Court to confirm

that the FOIA Improvement Act’s foreseeability

requirement applies with full force to Exemption 7(D),

and that insider recognition, without a re cord-specific

showing of harm to the confidentiality interest 7(D)

protects, cannot justify withholding where segregable

information can be disclosed.

STATEMENT OF THE CASE

A. Legal background

1. The Freedom of Information Act requires

federal agencies to “make [agency] records

promptly available to any person” upon

request,

subject

carefully

defined

exemptions. 5 U.S.C. § 552(a)(3)(A). In

litigation, “the burden is on the agency to

sustain its action,” including any decision to

withhold information in whole or in part. Id. §

552(a)(4)(B). FOIA thus establishes a

presumption of disclosure, placing on the

government the obligation to justify any

departure from that presumption.

2. In 2016, Congress amended FOIA through the

FOIA Improvement Act, adding a substantive

limitation on withholding. Under 5 U.S.C. §

552(a)(8)(A), an agency “shall withhold

information” only if it (I) “reasonably foresees

that disclosure would harm an interest

protected by an exemption described in

subsection (b),” or (II) determines that

“disclosure is prohibited by law.” Id. §

552(a)(8)(A)(i). The same provision directs

agencies to “consider whether partial disclosure

of information is possible” and to “take

reasonable steps necessary to segregate and

release nonexempt information.” Id.

552(a)(8)(A)(ii). This requirement operates in

addition to the traditional task of establishing

that a claimed exemption applies: agencies

must both bring the information within a

statutory exemption and articulate how

disclosure

of that

information would

foreseeably harm the interest that exemption

protects

(unless

separate

statute

independently bars disclosure).

3. Independently of the 2016 amendment, FOIA

has long required agencies to release

nonexempt material contained within records

that also include exempt information. Section

552(b) provides that “[a]ny reasonably

segregable portion of a record shall be provided

to any person requesting such record after

deletion of the portions which are exempt.” 5

U.S.C. § 552(b). Courts reviewing FOIA

withholdings must therefore ensure that

agencies have carried out this segregability

obligation and have not withheld nonexempt

portions merely because they appear in records

that also contain exempt material.

4. Exemption 7(D) applies to “records or

information compiled for law enforcement

purposes” to the extent that disclosure “could

reasonably be expected to disclose the identity

of a confidential source,” including specified

governmental entities and private institutions,

and, in the case of records compiled in a

criminal

lawful

national'security

intelligence

investigation,

“information

furnished by a confidential source.” 5 U.S.C. §

552(b)(7)(D). The exemption is designed to

protect the government’s ability to obtain

information in sensitive investigations by

safeguarding the anonymity of sources who

provide information with an express or implied

assurance of confidentiality and by shielding

the information they furnish when disclosure

would effectively identify them.

The core harms that Exemption 7(D)

addresses are the risks that disclosure will

subject confidential sources to retaliation,

intimidation, harassment, or other adverse

consequences because of their cooperation with

law enforcement, and the corresponding

chilling effect on future sources who might

otherwise come forward. By protecting

confidential sources and the identifiable

information they provide from public exposure

to such risks, Exemption 7(D) seeks to preserve

the flow of information necessary to criminal

and analogous investigations, while operating

within FOIA’s broader structure of a

presumption of disclosure and mandatory

release of reasonably segregable, nonexempt

material.

B. Factual and procedural background

1. On November 7, 2019, Petitioner submitted

a narrow FOIA request to the FBI seeking,

“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. This was a high

profile massacre involving some 14 dead

and 22 injured, allegedly committed by

Tashfeen Malik and Syed Farook.

Specifically, I am seeking accounts,

narratives,

and

statements

from

witnesses who were located in the

conference room where the attack mainly

took place. Of particular importance to

this requester are any descriptions of the

perpetrators such as, the number of

attackers, their behavior, apparel,

equipment, and any other details

regarding their appearance.”

2. On November 25, 2019, the FBI sent

Petitioner 19 pages that had previously

been released and said it would “conduct a

further search for responsive records”,’ on

December 12, 2019, Petitioner asked for an

“additional

search”;

the

Bureau

acknowledged receipt on January 3, 2020.

On February 26, 2020, the FBI denied the

request in full under Exemptions 7(A) and

7(E) because of a then-pending enforcement

proceeding; after Petitioner followed up on

July 15, 2020, the FBI resent the same

denial on July 29, 2020. Petitioner filed an

administrative appeal on September 17,

2020, and the Department of Justice’s Office

of Information Policy affirmed on December

1, 2020.

3. Petitioner then filed suit in the U.S. District

Court for the District of Columbia on June

16, 2021. When, in May 2022, the FBI

determined the referenced enforcement

proceeding was no longer pending, it

reopened processing and on July 29, 2022

produced 406 pages with five pages

withheld in full, invoking, among other

provisions, Exemption 7(D) for witnessprovided information.

4. From the outset of merits briefing, the

Bureau’s declarant (Section Chief Michael

Seidel) explained that some witness

information was “specific, detailed,” and

“singular in nature,” available to “only a few

individuals,” such that disclosure “could be

used to identify confidential sources,”

especially by “those familiar with the events

described.” He further asserted that release

would “forever eliminate that source as a

means of obtaining information,” chill other

sources, and risk retaliation or backlash

against witnesses and their families.

5. In moving for summary judgment, the FBI

pressed Exemption 7(D) on an impliedconfidentiality theory, arguing that the

violent, terrorism-related character of the

crime, the witnesses’ proximity, and the

“singular” nature of certain accounts

permitted withholding both identifying

details and the underlying narrative

information itself. The district court granted

summary judgment on August 18, 2023.

Against that, Plaintiff argued in district

court that 7(D) was applied overbroadly and

without the statute’s required causal

showing^ witness descriptions of the

perpetrators

are

not

“identifying

information” about the witnesses and, as a

matter of segregability, those non

identifying perpetrator descriptions must be

released even if other portions are redacted.

He asked the court to conduct in camera

review,

emphasized

that

FOIA’s

foreseeable-harm requirement demands

more than labels or generalized invocations,

and showed that the FBI had already

disclosed granular, situational details far

more likely to identify witnesses than

generic descriptions of the shooters

(undercutting the Bureau’s claim that

releasing perpetrator descriptions would

reveal sources).

Plaintiff further explained that the FBI’s

privacy-dignity rationale and “singularity”

theory conflated names/identifiers with

narrative content about suspects; the

foreseeable-harm showing must articulate a

concrete, non-speculative Enk between

disclosure of a particular description and a

risk of identifying a particular witness,

which the record did not supply. He also

pointed to

instances where

entire

paragraphs were withheld as supposedly

“inextricably intertwined” with identifiers,

even when the interview text made plain the

exchange

concerned

pre-incident

observations such as those of a vehicle, and

the actual attack itself, arguing that such

blanket redactions lacked a lawful nexus to

7(D) and violated FOIA’s segregability

command.

6. In its August 18, 2023 memorandum

opinion, the district court adopted the

Bureau’s implied-confidentiality theory

under Exemption 7(D), crediting the Seidel

declaration’s account of the “highly violent

nature of the mass shooting” and the

witnesses’ proximity to the suspects to

conclude that “anyone cooperating with a

law enforcement investigation concerning

this terrorist act would want and expect

confidentiality,” and thus that the FBI

properly withheld the names, identifying

personal

data,

and

investigative

information provided by sources who

received

implied

assurances

confidentiality. (App. B, [48a])

The court then made the pivotal move

that drives the dispute here: because it

found “there is no question—nor is there

any dispute from the plaintiff—that the

FBI’s sources were confidential, and that

the information was compiled during a

criminal investigation,” it held that “the

content at issue, namely, the descriptions of

the shooters, is irrelevant to the analysis of

the propriety of the withholdings under

Exemption 7(D).” (App. B, [51a])

That framing short-circuited any inquiry

into whether non-identifying portions of

witness narratives (e.g., descriptive details

of the perpetrators) could be disclosed

without

revealing

source

identities,

effectively collapsing the 7(D) analysis into

the implied-confidentiality finding itself.

Against that backdrop, the court did not

conduct

distinct

foreseeable-harm

assessment under the FOIA Improvement

Act with respect to the 7(D) withholdings,

even though § 552(a)(8)(A)(i) now requires

agencies to “reasonably foresee” harm to an

interest protected by the exemption.

Brown moved to alter or amend on

September 15, 2023, squarely pressing the

omission: he argued the court was required,

after the 2016 amendments, to perform a

separate foreseeable-harm analysis for

Exemption 7(D) and to address segregability

of non-identifying narrative content. The

government’s opposition did not dispute

that § 552(a)(8)(A)(i) applies; instead, it

contended that, “when invoking [Exemption

7(D)], an agency need not establish much

more than the fact of disclosure to establish

foreseeable harm,” a position Brown

characterized as incompatible with the

statute’s requirement of a record-specific

harm rationale beyond mere applicability of

the exemption.

Brown noticed his appeal on October 19,

2023, and the district court held a post

judgment hearing on October 23, 2023, after

which it denied the motion. (App. C,

[59a])During

those

post-judgment

proceedings, the court indicated that, if a

separate foreseeable-harm analysis were

required, it would not undertake it on a Rule

59(e) motion and that correction, if any,

would come from the court of appeals,

remarking, “if I was wrong, I guess the

Court of Appeals will tell me.”

Finally, although the opinion recited

that the Bureau satisfied “segregability” by

attesting it reviewed and released all non-

exempt material, the ruling did not grapple

with Brown’s specific contention that

descriptions of the perpetrators could be

segregated from any source-identifying

details because, under the court’s “content is

irrelevant” view of 7(D), such narrative

substance was treated as categorically

beyond reach once implied confidentiality

was found.

7. In the court of appeals, the FBI filed a

motion for summary affirmance on March 5,

2024. Petitioner opposed on March 16, 2024,

pressing (among other issues) that

Exemption 7(D) does not trump FOIA’s

separate foreseeable-harm requirement and

that the Bureau’s “singularity” rationale

was too generalized to justify categorical

redactions of witness descriptions. The

government replied on April 25, 2024. On

June 6, 2024, the motions panel denied

summary affirmance and appointed amicus

curiae to address the proper application of

the FOIA Improvement Act’s foreseeable harm standard.

8. On the merits, Petitioner and amicus

argued that after the 2016 Act, agencies

invoking 7(D) must do more than establish

source

confidentiality-they

must

“specifically and thoughtfully” articulate

how disclosure of the particular withheld

information would foreseeably harm

interests protected by Exemption 7(D), and

they must segregate non-harmful, non

identifying portions, such as generic shooter

descriptors,

details.

from

genuinely

identifying

9. The FBI countered that Seidel’s declaration

satisfied the two-step Leopold/Reporters

Committee2 framework by tying harms,

such as loss of source cooperation and risk of

retaliation, to “singular,” circumstancespecific witness information (e.g., precise

location or actions during the attack) that

could

attributed

particular

individuals. Petitioner responded that this

showing still failed to explain why witness

descriptions of the perpetrators’ appearance

could not be segregated and released and

emphasized that long, paragraph-length

blocks had been withheld wholesale.

10. The court heard argument on January 14,

2025, and on July 15, 2025, it affirmed. In

doing so, the panel agreed that witnesses

provided information “under implied

assurances of confidentiality” in light of the

nature of the ISIS’inspired mass-casualty

attack and the witnesses’ proximity to the

events, and it credited the Bureau’s

2 See Leopold v. U.S. Dep’t ofJustice, 94 F.4th 33, 37 (D.C. Cir.

2024) (holding that whether a record falls within a FOIA

exemption and whether withholding is permissible under the

FOIA Improvement Act’s foreseeable-harm standard are

distinct, consecutive inquiries” and requiring an “independent

and meaningful showing of harm); Reporters Comm. for

Freedom of the Press v. FBI, 3 F.4th 350, 369-72 (D.C. Cir.

2021) (rejecting “boilerplate and generic” assertions and

requiring a “focused and concrete demonstration” of how

disclosure of the specific information at issue would foreseeably

harm an exemption-protected interest).

“singular information” rationale as a basis

to withhold portions of witness narratives

under 7(D). The panel further concluded

that the FBI had “adequately explained”

foreseeable harm from disclosing witnesses’

descriptions of the shooters, both the risk of

retaliation/backlash and the harm to the

FBI’s ability to cultivate and rely on

confidential sources, rejecting the request to

remand for a fresh, express foreseeableharm analysis by the district court. (App. A,

[la])

11. On August 1, 2025, Petitioner filed a

Petition for Panel Rehearing and Rehearing

En Banc. In that filing, Petitioner argued

that, as to Exemption 7(D), the panel

misapprehended both the record and FOIA’s

foreseeable-harm inquiry. Not by failing to

apply it, but by treating non-harm as if it

were harm. Petitioner explained that he had

repeatedly disclaimed any interest in

witnesses’ names or personal identifiers and

sought only narrative descriptions of the

shooters, so the panel’s contrary suggestion

inflated the risk of harm by recasting a

narrowly tailored request for perpetrator

descriptions as if it targeted identifying

details about the witnesses themselves.

Petitioner further contended that, by

crediting the FBI’s theory that any

“singular” piece of narrative information

could expose a source to retaliation or

backlash, the panel effectively accepted

speculative “could happen” scenarios and

generalized fears of reprisals as sufficient,

even though FOIA, as construed in cases

such as Reporters Committee, requires a

concrete account of how disclosure of the

specific, non-identifying descriptions at

issue would result in reasonably foreseeable

harm, not merely how it might lead to some

hypothetical risk. Building on the record

below, Petitioner argued that the FBI’s

claims

about

uniqueness,

potential

identification,

and possible

reprisals

remained untethered to any particular

description of the shooters and therefore did

not amount to a legally cognizable “harm”

under 5 U.S.C. § 552(a)(8)(A)(i), and that

allowing such an expansive “singularity”

theory to stand would swallow FOIA’s

segregability requirement by permitting

agencies to withhold even purely descriptive

third-party information solely because it

appears in a confidential witness narrative.

12. On August 29, 2025, the court denied panel

rehearing and, separately the same day,

denied rehearing en banc,’ the mandate

issued on September 8, 2025. (App. D, [60a61a])

Reasons for Granting the Petition

This court should correct the decision below

because it undercuts Congress’s 2016 reforms and, if

left standing, will effectively nullify the FOIA

Improvement Act for Exemption 7(D). FOIA now

requires agencies not only to bring withheld material

within an exemption, but also to “reasonably foresee”

harm to the specific interest that exemption protects

and to release all reasonably segregable nonexempt

information. 5 U.S.C. § 552(a)(8)(A). The D.C. Circuit

nonetheless held that, for “information furnished by a

confidential source” under Exemption 7(D), it is

“doubtful” that the FBI needed to articulate any harm

beyond Congress’s decision to create the exemption,

and it accepted a sweeping “singularity” theory under

which any distinctive narrative detail in a witness’s

account is inherently harmful and may be

categorically withheld even where, as here, the only

asserted risk is that other victims, witnesses, or

investigators might recognize which colleague’s

account is which, and where the underlying FOIA

request seeks only witness’s descriptions of the

perpetrators, which have no rational link to

identification of the witnesses. (App. A, [12a]) That

approach collapses the foreseeable-harm inquiry into

the mere applicability of 7(D), disregards FOIA’s

segregability command, and transforms a targeted

protection for confidential sources into a broad secrecy

privilege over eyewitness narratives in lawenforcement files. Because FOIA litigation is

concentrated in the D.C. Circuit, its “doubtful” view of

the FOIA Improvement Act’s reach, and its

endorsement of insider-recognition as a sufficient

harm under Exemption 7(D), will shape nationwide

agency practice and substantially weaken a central

transparency reform. This case, with a clean record

and a stark mismatch between the harms Congress

contemplated and the harms the court of appeals

accepted, is an ideal vehicle for the Court to clarify

that the FOIA Improvement Act’s foreseeable-harm

requirement applies with full force to Exemption 7(D)

and cannot be satisfied by generic or non-cognizable

theories of harm.

The decision below is wrong

The court of appeals’ ruling is irreconcilable

with the FOIA Improvement Act’s text and with any

sensible understanding of Exemption 7(D). FOIA now

requires that, in addition to establishing that an

exemption applies, an agency must “reasonably

foresee that disclosure would harm an interest

protected by” that exemption and 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.” 5 U.S.C. §

552(a)(8)(A). The panel recited that standard but then

declared that, for “information furnished by a

confidential source” under Exemption 7(D), it was

“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.” (App. A, [12a]) In

practice, that treats the very existence of Exemption

7(D)’s second clause as sufficient to satisfy the

separate foreseeable-harm requirement Congress

added in 2016.

The nature of the “harm” the panel accepted

confirms the problem. The FBI did not contend that

releasing the disputed material would enable

members of the public, hostile outsiders, or any

adversarial participant in the investigation to identify

and retaliate against witnesses. Instead, relying on

the Seidel declaration, the court emphasized that

much of the information the witnesses provided is

singular in nature and could be attributed to them ‘by

those familiar with the events described,”’ and

concluded that disclosure “could subject these

individuals, as well as their families, to retaliation or

backlash.” (App. A, [10a]) The only audience “familiar

with the events described” here consists of co-workers,

fellow victims, and investigators, individuals who

already know who was present, who spoke to the FBI,

and, in many cases, who did what during the attack.

The opinion identifies no way in which releasing

descriptions of the perpetrators would newly expose

any witness to identification by the public, co

conspirators, gangs, terrorist networks, or other

adversaries.

In short, the decision below reads the FOIA

Improvement Act out of Exemption 7(D) precisely

where its discipline is most needed. By suggesting it

is “doubtful” that any separate harm showing is

required once information is “furnished by a

confidential source,” and by treating insider

recognition among non-adversaries as if it were

equivalent to retaliation by hostile outsiders, the court

transforms a targeted protection for confidential

sources into a broad secrecy privilege over eyewitness

narratives. And by accepting, without rational

explanation, that generic descriptions of perpetrators’

appearance can be treated as uniquely identifying and

uniquely dangerous, while more revealing contextual

details are released, the decision illustrates exactly

why Congress insisted that agencies demonstrate a

real, record-specific, and cognizable harm before

withholding.

The FOIA Improvement Act of 2016

serves an important democratic

interest

FOIA has always been a transparency

statute designed to let citizens know “what their

Government is up to,” not a secrecy default that

agencies relax at their discretion. U.S. Dep’t of

Justice v. Reporters Comm, for Freedom of the

Press, 489 U.S. 749, 773 (1989). From its

inception, FOIA embodied a “strong presumption

in favor of disclosure,” with “disclosure, not

secrecy,” as its “dominant objective.” Dep’t of the

Air Force v. Rose, 425 U.S. 352, 361 (1976). But

by the time Congress enacted the FOIA

Improvement Act of 2016, it had become clear that

this presumption was being steadily eroded in

practice. Agencies were invoking exemptions

reflexively, particularly discretionary ones, and

offering only generic, across-the-board assertions

of harm. Congress responded by codifying a

substantive “foreseeable harm” requirement to

curb excessive withholding and restore FOIA’s

democratic function.

The FOIA Improvement Act did not merely

tweak procedures; it added a cross-cutting

constraint on every exemption. Under 5 U.S.C. §

552(a)(8)(A)(i), an agency must now do two

distinct things before withholding: (1) show that

the information falls within a statutory exemption,

and also (2) “reasonably foresee that disclosure

would harm an interest protected by” that

exemption, or else point to a separate legal bar to

disclosure. This change was expressly conceived

as a “countermeasure against excessive

withholding,” compelling agencies to release

information unless they can “articulate both the

nature of the harm [from release] and the link

between the specified harm and specific

information contained in the material withheld.”

Reps. Comm, for Freedom of the Press v. FBI, 3

F.4th 350, 369 (D.C. Cir. 2021) (internal quotation

marks omitted); see also Human Rts. Def. Ctr. v.

U.S. Park Police, 23-5236, slip op. at 10-11 (D.C.

Cir. Jan. 24, 2025) (reaffirming that the FIA

requires a “particularized inquiry into what sort of

foreseeable harm would result from the material’s

release”).

Congress’s aim was not abstract. The

legislative history reflects concern that agencies

were treating exemptions, especially those

protecting

deliberations,

law-enforcement

interests, or third-party information, as virtually

self-executing, invoking them whenever they could

withhold rather than when they needed to. The

Senate Report quoted by the D.C. Circuit

underscores that “speculative or abstract fears” are

no longer enough; agencies must identify a

concrete harm that will “likely result” from

disclosure of the specific information at issue. S.

Rep. No. 114-4, at 3, 8 (2015). In practical terms,

the Act reorients FOIA back toward its democratic

core: disclosure is the rule, and exemptions are

narrow, justified departures from that rule. Justified

not only by satisfying exemption text, but by a real,

articulable risk to the interest Congress actually

meant that exemption to protect.

That structure matters acutely in the lawenforcement context. FOIA is often the only tool

by which the public can scrutinize how agencies

investigate major incidents, allocate responsibility,

and communicate with the public. Congress

understood that transparency about investigative

files promotes accountability, helps the public

evaluate whether law-enforcement institutions are

functioning properly, and guards against the very

secrecy that can erode trust in the aftermath of

high-profile events. By imposing a foreseeableharm requirement that applies even when an

exemption’s literal terms are met, the FOIA

Improvement Act ensures that agencies cannot

convert law-enforcement exemptions into

permanent black boxes. Instead, they must

distinguish between material whose disclosure

would genuinely threaten protected interests and

non-identifying, segregable information, such as

neutral descriptions of perpetrators, that can safely

be released without undermining those interests.

The decision below undermines that

congressional design. Rather than treating the

FOIA Improvement Act as a meaningful, secondstep safeguard, the D.C. Circuit characterized its

application to Exemption 7(D) as “doubtful,” and

accepted a theory of harm so attenuated that

virtually any narrative detail furnished by a

confidential source becomes categorically

withholdable. In doing so, it blunts the very reform

Congress enacted to restore FOIA’s presumption

of openness and preserve the statute’s role as a tool

of democratic oversight. This case therefore

presents not just a technical dispute about one

exemption, but a concrete test of whether the FOIA

Improvement Act’s foreseeable-harm requirement

will operate as Congress intended, or be read out of

the statute in the very context where it is most

needed.

The facts of this case aptly demonstrate

why Exemption 7(D) necessarily falls

within the ambit of the FIA

Exemption 7(D) was never written

as a freestanding secrecy mandate. It is

one of the nine discretionary exemptions

listed in § 552(b), and the FOIA

Improvement Act makes clear that all

such discretionary exemptions are now

constrained by the same threshold rule:

an agency “may withhold information

under this section only if the agency

reasonably foresees that disclosure

would harm an interest protected by an

exemption” or disclosure is prohibited by

law. 5 U.S.C. § 552(a)(8)(A)(i). Nothing in

the text of the FOIA Improvement Act

carves out Exemption 7(D), or its

“information furnished by a confidential

source” clause, from that requirement.

Nor does Exemption 7(D) itself purport

to override the later-enacted “only if’

limitation. The natural reading is that

7(D) continues to define what category of

information may be protected (identity of

a confidential source and information

furnished by such a source), while the

FOIA Improvement Act now governs

wAenthat otherwise-eligible information

may in fact be withheld: only where the

agency can articulate a concrete, nonspeculative harm to the interests 7(D)

was meant to protect, and only as to the

specific information withheld.

The decision below nonetheless

treats the second clause of Exemption

7(D) as effectively exempt from the FOIA

Improvement Act’s discipline. After

correctly reciting that agencies 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,” the

panel turns to Exemption 7(D) and

declares that it is “difficult to imagine a

criminal investigation” in which the

interest underlying 7(D) “would not be

applicable,” because 7(D) “categorically

exempts from disclosure ‘information

furnished by a confidential source’” in

criminal investigations. (App. A, [11a])

On that basis, the court concludes:

“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.’” (App. A, [12a])

That reasoning effectively reads the

FOIA Improvement Act out of the

statute for Exemption 7(D): the

categorical nature of the category is

treated as a substitute for the post-2016

requirement of a record-specific harm

analysis, even though Congress used

broad “only if the agency reasonably

foresees” language with no exception for

any particular exemption or clause.

This case cleanly demonstrates

why Exemption 7(D) cannot be placed

outside the FOIA Improvement Act in

that way. At oral argument, government

counsel did not claim that release of

Petitioner’s requested material would

expose witnesses to public retaliation,

danger from perpetrators or coconspirators, or any other adversarial

threat. Instead, they offered a very

narrow theory of harm tied to the

workplace setting of the San Bernardino

shooting- because the incident occurred

at a workplace where “the witnesses

knew each other” and “worked with one

of the suspects,” the FBI feared that if

witness accounts were disclosed, insiders

might recognize each other’s narratives

from

contextual

detail.

Counsel

explained that witnesses described

“what they did during the attack, how

they responded,” and gave the example

that an account might say “I ran into the

closet with Harry and Susie,” allowing

co-workers to say “this is Bob’s account.”

(Oral Arg. Tr. 26-27.)

That is the entire articulated

harm: not identification of confidential

sources by the public or by adversaries,

but mutual recognition among witnesses

and investigators who already know

each

other,

already

know

who

cooperated, and already know the rough

contents of each other’s stories.

Precisely

because

the

government’s own explanation is so

incredulous, it highlights the necessity of

applying the FOIA Improvement Act’s

foreseeable-harm

requirement

Exemption 7(D). The protected interest

recognized in 7(D) is preservation of

confidentiality to avoid retaliation,

harassment, intimidation, and chilling of

future cooperation, not the elimination of

any possibility that insiders might be

able to tell which familiar co-worker gave

which familiar account. The “harm” the

FBI posits in this record is at most a form

of attribution: enabling people who

already know that “Bob,” “Harry,” and

“Susie” are witnesses to match particular

pages of the file to those known

individuals. It is not a new disclosure of

the identity of a confidential source to

people who lack that knowledge,’ it is not

an exposure of confidential sources to

perpetrators, co-conspirators, or the

public,’ and the FBI has never offered any

reason to think that co-workers or

investigating agents would retaliate

against one another or that future

witnesses would be deterred from

cooperating because other victims might

recognize

their stories.

the

government’s own description of the

scenario, the identities of the witnesses

and the fact of their cooperation are

already fully known within the

workplace and investigative community.

The challenged redactions add only the

question “whose account is this?” in an

official file. Not, “who cooperated?” or

“who talked to the FBI?” Under the FOIA

Improvement Act,

that

sort

incremental, insider-only attribution is

too attenuated from any cognizable 7(D)

interest to qualify as “reasonably

foreseeable” harm.

The nature of the withheld

material puts the mismatch between

Exemption 7(D)’s purpose and the FBI’s

theory of harm in even starker relief.

Petitioner

sought

only

witness

descriptions

the

perpetrators’

appearance, simple witness descriptions

of the shooters, not gory details,

emotional narratives, or intimate

personal

histories.

The

Bureau

nonetheless redacted exactly those

perpetrator-description sentences while

leaving in place far more situationally

specific

information

about where

particular employees were, how they

moved through the building, and what

they did at particular moments before

and after the attack. As Petitioner told

the panel, those remaining details “are

far more likely” to enable an insider to

recognize whose account is whose than a

bare description of the shooters’

appearances.

Yet

the

FBI

treated

the

perpetrators’

descriptions

the

uniquely dangerous material and the

panel accepted that premise without any

explanation of how describing a shooter’s

clothing, build, or facial hair could itself

foreseeably disclose the identity of a

confidential source to anyone who does

not already know it, or give rise to the

type of retaliation or chilling that 7(D)

was enacted to prevent.

If the FOIA Improvement Act does

not apply to this kind of Exemption 7(D)

claim or if, as the decision below

suggests, it is automatically satisfied

whenever the second clause of 7(D) is

invoked, then agencies may always

withhold non-identifying eyewitness

accounts on the theory that some insider

could, in some sense, “recognize” them.

That would re-create, under a different

label, exactly the categorical regime

Congress thought it had displaced in

2016- so long as information was

furnished by a confidential source,” it

would be deemed inherently harmful and

presumptively secret. By contrast, giving

full effect to § 552(a)(8)(A) in the

Exemption 7(D) context would not

deprive 7(D) of force. It would simply

require what the statute already

demands^ that an agency withholding

information furnished by a confidential

source explain how disclosure of the

particular material (as distinct from the

mere fact that it came from such a

source) would foreseeably harm the

concrete interests 7(D) protects. This

case, with its unusually clear record

about what the FBI fears (“this is Bob’s

account”) and what Petitioner seeks

(necessarily non-identifying perpetrator

descriptions), is an ideal vehicle for

resolving that question and for

confirming that Exemption 7(D), like

every other discretionary exemption,

operates within, not outside, the FOIA

Improvement Act’s “foreseeable harm”

framework.

3. The court of appeals reasons for upholding

the FBI’s decision to withhold do not

withstand scrutiny

The decision below recites the FOIA

Improvement Act’s standard but then

effectively nullifies it in the Exemption 7(D)

context. The panel correctly acknowledged

that, after the 2016 amendments, an agency

invoking a FOIA exemption “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.’” (App. A, [7a])

Yet when it turned to Exemption

7(D), the court treated that requirement as

satisfied

generalized,

categorical

assertions that any “singular” narrative

detail furnished by a confidential source is

inherently dangerous to disclose. (App. A,

[12a]) On that basis, it upheld redactions of

witness descriptions of the shooters even

though the FBI never supplied a record

specific explanation of how disclosure of

those descriptions would foreseeably harm

the interests that Exemption 7(D) protects.

Petitioner did not contest that the

witnesses here were “confidential sources”

within the meaning of Exemption 7(D). The

panel found the exemption “met because

witnesses provided information to the FBI

‘under

implied

assurances

confidentiality,’” relying on “the nature of

the crime — a gruesome, ISIS’inspired

terrorist attack — and the witnesses’

‘proximity ... to the investigative subjects

and events they described.’” (App. A, [9a])

Petitioner accepts that premise. The

controversy arises at the next step: having

established that the witnesses were

confidential sources, what more, if anything,

must the FBI show to withhold specific

portions of their statements under FOIA’s

post-2016 framework? The panel’s answer,

little or nothing, cannot be reconciled with

the text of § 552(a)(8)(A).

The opinion’s core 7(D) holding rests

on two propositions. First, that “much of the

information the witnesses provided is

singular in nature and could be attributed

to them ‘by those familiar with the events

described,’” such that disclosure “could

subject these individuals, as well as their

families, to retaliation or backlash.” (App. A,

[10a])

Second, that the FBI faces a “twofold”

harm from disclosure ■ (1) retaliation against

these witnesses and their families, and (2)

diminished

cooperation

future

investigations, because witnesses “are more

likely to ‘hedge or withhold information’ if

they believe ‘their cooperation with the FBI

will later be made public.’” (App. A, [11a])

Those are textbook examples of the

abstract, category-level concerns that

Congress sought to discipline with the FOIA

Improvement Act. They are not tied to any

concrete account of how releasing the

narrow class of information at issue,

descriptions of the shooters’ appearance and

behavior, would enable an adversarial actor

identify,

retaliate

against,

meaningfully

chill

any

particular

confidential source.

The FBI’s theory, as endorsed by the

panel,

focuses

entirely

insider

recognition^ that co-workers, fellow victims,

or investigators “familiar with the events

described” might infer, from situational

detail, which colleague’s account they are

reading.

But those insiders already know both

the identities of the witnesses and the broad

outlines of their stories; the fact of

cooperation is not being revealed to them for

the first time by FOIA. Treating such

recognition as “disclosure of the identity of a

confidential source” within the meaning of

Exemption 7(D), much less as “foreseeable

harm” for purposes of § 552(a)(8)(A),

stretches both concepts beyond their

statutory compass. Congress enacted 7(D) to

prevent public exposure and adversarial

targeting

sources,

retaliation,

intimidation, harassment, and the chilling

of future cooperation, not to preverit other

participants in the same workplace from

recognizing familiar accounts of a shared

trauma. If recognition by those who already

know each other’s identities counts as

disclosure and harm, then the foreseeable harm step collapses into the mere fact that

a confidential source has spoken at all.

That overbreadth is especially stark

in this case because the withheld material is

several steps removed from anything that

could plausibly identify a witness.

Petitioner repeatedly disclaimed any

interest in witnesses’ names, biographical

details,

obviously

identifying

circumstances,

and

sought

only

“descriptions of the perpetrators such as,

the number of attackers, their behavior,

apparel, equipment, and any other details

regarding their appearance.”

The panel nevertheless upheld the

Bureau’s wholesale redaction of those

perpetrator-description sentences on the

theory that “many of the witness accounts

contain ‘singular’ descriptions of the

shooters that could be attributed to specific

witnesses,” while crediting the Bureau’s

claim that it had left in “certain non

singular descriptions of the shooters” as

proof that its redactions stopped at the line

of necessity. (App. A, [11a])

What the court never did was ask the

question FOIA requires: what is the

rational, record-specific link between a

particular description of the perpetrators

(“three shooters,” “black clothing,” “body

armor,” and the like) and a reasonably

foreseeable risk of retaliation or harassment

by an adversary who does not already know

the witness’s identity? Generalized fears

that

some

unsympathetic

observer

somewhere “could” reverse-engineer a

source’s identity from the mere fact that

they saw a well-publicized attack from a

particular vantage point are precisely the

sort of speculative harms that Reporters

Committee held insufficient! an 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.” The

panel recited that standard but declined to

enforce it. (App. A, [7a])

The opinion’s treatment of “singular”

information underscores the problem. The

panel repeatedly distinguishes between

“singular” and “non-singular” descriptions

of the shooters, using that undefined label

as the fulcrum for its approval of the

redactions. Yet it never articulates any legal

or factual standard for what qualifies as

“singular,” how singularity is to be assessed,

or why that attribute alone suffices to

transform otherwise non-identifying thirdparty information about suspects into

wholly withholdable “information furnished

by a confidential source.” As a result,

“singular” becomes an ipse dixit, whatever

the FBI chose to redact is assumed to be

singular and therefore inherently harmful,

and whatever it happened to leave

unredacted is cited as evidence of its

restraint. Petitioner, for his part, pointed

out that long blocks of text about the attack

and the perpetrators had been withheld

while nearby, far more situationally specific

material remained; the opinion disposes of

those concerns by faulting him for having

“offered no material reason to doubt the

FBI,” effectively shifting the statutory

burden of justification back onto the

requester. (App. A, [11a])

Nor is this a case in which the

requester “offered no material reason to

doubt” the Bureau’s assertions. At every

stage of the litigation, Brown squarely

attacked the rationality of the FBI’s claimed

harms and the causal link between the

particular information withheld (witness

descriptions of the shooters) and any

cognizable risk under Exemption 7(D). In

the district court, he argued that the

Bureau’s “singular”-event theory was

speculative and internally incoherent,

pointing out that members of the public

purportedly being able to identify witnesses

from generic perpetrator descriptions, is a

concern that is “irrational” and unsupported

by evidence, and if instead the FBI meant

that other witnesses or participants might

recognize each other, those insiders would

already need “intimate knowledge of what

that person had observed” and so would

already know who the witnesses were,

defeating any claim of new harm from

disclosure. He also showed, with concrete

record citations, that the Bureau had

released extensive, highly situational

narrative detail, arrival times, seating,

movements through the building, that is far

more likely to permit insider recognition

than the bare perpetrator descriptions he

requested, and argued that this empirical

mismatch

undercut

the

agency’s

justificatory story.

On appeal, his opening brief

reiterated that under the FBI’s own

definition of “identifying data,” the

surrounding context makes it “difficult to

believe” that entire blocks of narrative are

“inextricably intertwined” with such data

and emphasized that there is “no rational or

cognizable causal nexus” between generic

descriptions of clothing and appearance and

the ability to “extrapolate” witness

identities. His reply made the same point

even more starkly, explaining that while

each witness may have said something

“singular,” it would be “extraordinary” to

think their descriptions of the shooters were

“so singular, that one could derive their

residential

address

from

it,”

and

characterizing that line of reasoning,

attributed by the government to the Seidel

declaration, as one “this court should reject.”

In his petition for rehearing, he

distilled the point: to identify a witness

based on a narrative, one must already

“possess specific knowledge of who was

involved,” so the only people who could ever

match statements to witnesses are fellow

victims, confidants, or investigators who

already know “which information comes

from which witness,” meaning the supposed

risk of “retaliation or harassment” from

disclosure is both circular and non-existent.

Brown and appointed amicus also invoked

this Court’s and the D.C. Circuit’s own FOIA

jurisprudence, citing decisions such as Reps.

Comm, for Freedom of the Press v. FBI, 3

F.4th 350, 369 (D.C. Cir. 2021) and Machado

Amadis v. U.S. Dep’t ofState, 971 F.3d 364,

371 (D.C. Cir. 2020) for the basic proposition

that

the

FOIA

Improvement

Act

“foreclosets] the withholding of material

unless the agency can articulate both the

nature of the harm from release and the link

between the specified harm and specific

information contained in the material

withheld,” and argued that the FBI had

never supplied that record-specific link for

the perpetrator descriptions at issue here.

On this record, the suggestion that Brown

failed to give the court any concrete basis to

question

the

Bureau’s

foreseeability

showing cannot be reconciled with his actual

submissions, which repeatedly exposed the

logical and evidentiary gaps in the

government’s theory.

The court’s own discussion of the

FOIA Improvement Act confirms that it has,

in substance, read the foreseeable-harm

requirement out of Exemption 7(D). After

noting that agencies may withhold only if

they “reasonably foresee that disclosure

would harm an interest protected by” the

relevant exemption, and that they must

connect the harm to “specific information,”

the panel concludes its 7(D) analysis by

declaring that “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.’” (App. A, [12a])

That statement is not a stray aside! it

is the capstone of the court’s reasoning. It

invites agencies and lower courts to treat

Exemption 7(D)’s categorical language as

self-executing

for

foreseeable-harm

purposes—precisely the position the

government disclaimed in this case,3 and

precisely the result Congress sought to

avoid when it added § 552(a)(8)(A).

This case therefore presents an

unusually clean vehicle to address the

question presented. There is no dispute that

the witnesses were confidential sources or

that Exemption 7(D) applies in its threshold

sense. The only contested issue is whether,

once that threshold is crossed, the FOIA

Improvement Act still requires the

government to show that disclosure of the

particular information withheld here,

descriptions of the perpetrators, would

3 The government itself rejected this position at oral argument

JUDGE RAO- So, is it the Government's position that it's

required for the second part of 7(D) to do this sequential

foreseeable harm inquiry, because, because the way that that

part of 7(D) is written is very categorical; and, and the, and the

foreseeable harm here that's articulated is linked to, arguably,

a different exemption, right, which is revealing the identity of a

confidential source. So, so I'm wondering if it's even required for

the Government to make this sequential determination for an

exemption like 7(D)?

MS. SMITH- We have not argued that the FOIA Improvement

Act doesn't apply to 7(D) or part of 7(D). The, Exemption 3 is

the only exemption that's expressly exempted from that

requirement. So, we haven't argued that it doesn't apply. Oral

Arg. Tr. 27

foreseeably harm the interests 7(D)

protects. The D.C. Circuit’s answer is

effectively

“no”:

upheld

broad

withholdings based on speculative insider

recognition and generic invocations of

future chilling, and then announced its

“doubt” that any further harm showing is

required for “information furnished by a

confidential source.”

That reasoning cannot be squared

with the statute’s text or with the court of

appeals’ own articulation of the foreseeable harm standard, and it threatens to convert

Exemption 7(D) into a blanket secrecy

provision for any eyewitness narrative,

regardless of content, context, or actual risk.

The questions presented warrant review

The questions presented go to the core of

Congress’s 2016 recalibration of FOIA and will affect

thousands of law-enforcement cases going forward.

Before the FOIA Improvement Act, an agency could

prevail simply by showing that requested information

fell within one of the nine exemptions. Congress

concluded that this practice had led to overusing the

FOIA exemptions that allow, but do not require,

information to be withheld and therefore added a

separate “foreseeable harm” requirement in §

552(a)(8)(A). Agencies must now articulate both the

nature of the harm from release and the link between

the specified harm and specific information contained

in the material withheld and may not rely on mere

speculative or abstract fears or generalized assertions.

This case squarely presents whether that requirement

applies with full force when an agency invokes

Exemption 7(D), and what counts as a cognizable

“harm” in that context.

First, the decision below invites courts and

agencies to treat Exemption 7(D) as effectively selfexecuting and largely immune from the FOIA

Improvement Act. After reciting the statutory

standard and this Court’s own circuit precedent

requiring a record-specific articulation of harm, the

panel nevertheless held that, because Congress

created a “special exemption for ‘information

furnished by a confidential source,’” it was “doubtful

that the FBI needed to articulate any harm beyond

the harm already identified in Congress’s decision” to

enact Exemption 7(D). (App. A, [12a]) That reasoning

does more than resolve a single case. It signals to

agencies that, whenever Exemption 7(D) is invoked,

they may satisfy § 552(a)(8)(A) simply by pointing to

the exemption’s subject matter, rather than by

identifying how disclosure of the particular

information at issue would foreseeably harm a 7(D)

interest in the specific factual setting. Whether a

court may effectively nullify Congress’s 2016

amendment for an entire exemption, especially one as

frequently invoked as 7(D), is a question of recurring

and exceptional importance.

Second, the case cleanly presents the

downstream question whether the kind of “harm” the

FBI asserted here satisfies FOIA’s post-2016

standard. The Bureau did not claim that releasing

bare descriptions of the shooters’ appearances would

lead members of the public, co-conspirators, or other

adversaries to identify and retaliate against

witnesses. Instead, as the record reflects, its theory

focused on insiders: that “those already in the know”

at the workplace, other victims, witnesses, or

investigators “familiar with the events described,”

might recognize which account belonged to which

colleague. Petitioner and appointed amicus explained

that this concern is circular: anyone able to match a

narrative to a particular witness must already know

who the witnesses are and what they reported, so

disclosure cannot “reveal” identities to them in any

meaningful sense or expose them to new risks. The

panel nonetheless treated this insider'recognition

scenario as sufficient foreseeable harm, even in a

closed investigation involving long-dead perpetrators,

and even though the remaining unredacted records

already allow those insiders to reconstruct who said

what. Whether FOIA permits withholding based on

such an abstract and fully “baked-in” notion of harm,

untethered to any realistic risk of retaliation or

chilling in future cases, is precisely the kind of

statutory-interpretation question this Court should

resolve.

Third, this case offers an unusually clean

vehicle to decide both questions. There is no dispute

that the witnesses were confidential sources within

the meaning of Exemption 7(D); Petitioner conceded

as much and emphasized that the personally

identifying information of witnesses should not be

released and has never sought names or direct

identifiers. The only controversy is whether, assuming

Exemption 7(D) is satisfied at step one, FOIA still

requires the government to show a non-speculative,

record-specific risk of harm from releasing

descriptions of the perpetrators, and whether the

FBI’s insider-recognition rationale meets that

standard. The issue was pressed and passed upon,

fully preserved and litigated in the district court, in

the court of appeals, and in a petition for rehearing,

where Petitioner and amicus repeatedly invoked §

552(a)(8)(A) and argued that the Bureau’s

singularity” theory fails to articulate any concrete

harm beyond recognition by those who already know

the witnesses’ identities. There are no disputed facts

that could complicate review! what remains is a pure

question of law about how the 2016 amendment

operates in the 7(D) context.

Finally, the precedential stakes extend well

beyond this case. The D.C. Circuit is the primary

forum for FOIA litigation, and its decisions often serve

as de facto national guidance for agencies and district

courts. Petitioner’s rehearing filings explain that the

panel’s approach “erects a new categorical

withholding doctrine in contravention of the FOIA

Improvement Act,” by allowing agencies to withhold

all narrative accounts” whenever they can invoke a

nebulous risk of “singularity,” effectively collapsing

the foreseeable-harm test into Exemption 7(D) itself.

If left unreviewed, the decision will encourage

agencies to treat all “information furnished by a

confidential source” as per se harmful, precisely the

reflexive secrecy Congress sought to curb in 2016.

Clarifying that § 552(a)(8)(A) applies fully to

Exemption 7(D) and that insider recognition, standing

alone, is not a cognizable “foreseeable harm” will

restore the balance Congress struck between

protecting confidential sources and preserving FOIA’s

presumption of disclosure.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Signed,^

On this 23™day of November 2025.

Gary Sebastian Brown III

Pro se

IDEPST

12296 NW Barnes Rd. #476

Portland, OR

97229

(971) 219-0293

garysebastianbrowniii@gmail.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.