Prison Legal News v. Executive Office for U.S. Attorneys

Decision Date11 January 2011
Docket NumberNo. 09-1511,09-1511
Citation628 F.3d 1243
PartiesPRISON LEGAL NEWS, Plaintiff-Appellant, v. EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant-Appellee. 60 Minutes, The Associated Press, Westword, The American Society of News Editors, The Association of Capitol Reporters and Editors, The Society of Professional Journalists, and The American Civil Liberties Union of Colorado, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Gail K. Johnson, Johnson & Brennan, PLLC, Boulder, CO, for Appellant.

Jonathan H. Levy, Appellate Attorney, Civil Division (Tony West, Assistant Attorney General, David M. Gaouette, United States Attorney, and Douglas N. Letter, Appellate Attorney, Civil Division, with him on the brief), Department of Justice, Washington, D.C., for Appellee.

Mark G. Walta, Walta, Gehring, Harms & Dingle LLC, Denver, CO, and Scott L. Shuchart, Jerome N. Frank Legal Services Organization, Yale Law School, New Haven, CT, on the brief for Amici Curiae.

Before MURPHY, McKAY, and TYMKOVICH, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Prison Legal News ("PLN") appeals the partial grant of summary judgment to the Executive Office for United States Attorneys ("EOUSA") exempting from mandatory disclosure under the Freedom of Information Act ("FOIA") video depicting the aftermath of a brutal prison murder and autopsy photographs of the victim. Exercising jurisdiction under 28 U.S.C. § 1291, this court DISMISSES AS MOOT the portion of the appeal pertaining to records that have now been released by EOUSA, and AFFIRMS the district court's order as to the remaining portions of the withheld records because the disclosure of the death-scene images in this case "could reasonably be expected to constitute an unwarranted invasion of personal privacy" of the victim's family. 5 U.S.C. § 552(b)(7)(C).

II. Background

In October 1999, William Sablan and Rudy Sablan, two prisoners at the United States Penitentiary in Florence, Colorado, murdered their cellmate, Joey Jesus Estrella. Bureau of Prisons ("BOP") personnel filmed the aftermath of Estrella's death. The first portion of the video depicts the interior of the shared cell and the Sablans' conduct inside the cell, including the mutilation of Estrella's body. The audio of the first portion contains both the Sablans' voices and prison officials' voices. The second portion of the video depicts BOP personnel extracting the Sablans from the cell and does not contain any images of Estrella's body. BOP personnel also took still autopsy photographs of Estrella's body.

The Sablans were tried separately on first degree murder charges and the United States sought the death penalty in both cases. At each trial, the video, with audio, and autopsy photographs of Estrella's body were introduced as evidence and shown in open court to the jury and to the public audience. The exhibits were not sealed. Both of the Sablans were convicted and in each case a sentence of life in prison was imposed. At the completion of trial, the photographs and video were returned to the United States Attorneys Office pursuant to a standard order regarding the custody of exhibits.

PLN is an organization that publishes a legal journal concerning prisoners' rights issues. PLN filed a request under FOIA for the videotape and autopsy photographs introduced as evidence at William Sablan's trial. EOUSA denied the FOIA request in full and the Department of Justice denied PLN's subsequent administrative appeal. Thereafter, PLN filed a complaint in district court alleging EOUSA's withholding of the requested records under FOIA was improper.

The parties filed cross-motions for summary judgment. EOUSA argued the autopsy photographs and video taken after Estrella's death were properly withheld under FOIA Exemptions 6 and 7(C) based on the privacy interests of Estrella's family. The district court granted in part and denied in part each party's motion, orderingthe release of the second portion of the video plus the audio of BOP officials' voices in the first portion of the video.1

Both parties filed notices of appeal, but EOUSA subsequently voluntarily dismissed its appeal. In conjunction with the dismissal, EOUSA released the second portion of the video, including the accompanying audio, and the audio track only of the first portion with four of the Sablans' statements deleted. 2 At oral argument, the parties agreed EOUSA had released more than the district court order required.3 The materials EOUSA continues to withhold are now limited to the first portion of the video, four redactions of the audio accompanying the first portion of the video, and the autopsy photographs. PLN's appeal as to all other materials, which have now been released, is moot. See Anderson v. U.S. Dep't of Health & Human Servs., 3 F.3d 1383, 1384 (10th Cir.1993) (noting that once requested records are released, FOIA claims as to those records are moot).

III. Discussion
A. Standard of Review

When the underlying facts of a FOIA case are undisputed and a district court has granted summary judgment in favor of a government agency, we review the district court's legal conclusion that the requested records are exempt from disclosure de novo, applying the same standard as the district court. Herrick v. Garvey, 298 F.3d 1184, 1190 (10th Cir.2002). As part of this review, this court has conducted an in camera inspection of the requested records.

B. FOIA Overview

Congress enacted FOIA to "open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quotation omitted). To promote government accountability, "disclosure, not secrecy, is the dominant objective of the Act." Id. Recognizing, however, certain instances in which disclosure would harm legitimate interests, Congress exempted from FOIA's disclosure mandate nine categories of records. Trentadue v. Integrity Comm., 501 F.3d 1215, 1225-26 (10th Cir.2007); 5 U.S.C. § 552(b). The government bears the burden of demonstrating the requested records fall within one of FOIA's enumerated exemptions, which we construe narrowly in favor of disclosure. Trentadue, 501 F.3d at 1226.

Relevant here, Exemption 7(C) 4 allows an agency to withhold "records orinformation compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). We therefore first determine whether there is a personal privacy interest at stake, and, if so, balance the privacy interests against the public interest in disclosure. See U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

C. Autopsy Photographs and Video

We consider the autopsy photographs and the images from the first portion of the video together. We agree with the district court that the same considerations apply to both sets of images, and the parties have briefed the issues as such.

The parties agree that the relevant privacy interests are the interests of Estrella's family.5 The Supreme Court recently considered a privacy claim under FOIA concerning photographs of the body of Vincent Foster, Jr., deputy counsel to President Clinton, at the scene of his death. Favish, 541 U.S. at 161, 124 S.Ct. 1570. Tracing the types of personal privacy interests protected under FOIA, the Court held that Exemption 7(C) recognizes "family members' right to personal privacy with respect to their close relative's death-scene images." Id. at 170, 124 S.Ct. 1570.

EOUSA has identified members of Estrella's family whose interests are at stake. Moreover, based on this court's in camera review of the autopsy photographs and the first portion of the video at issue in this appeal, the records unquestionably reflect death-scene images. The photographs depict close-up views of the injuries to Estrella's body and the first portion of the video prominently features Estrella's body on the floor of the prison cell. If anything, the privacy interest in these images is higher than the privacy interest in the photographs at issue in Favish. The photographs in Favish depicted the victim of an apparent suicide, see id. at 161, 124 S.Ct. 1570, but the images did not involve grotesque and degrading depiction of corpse mutilation as do the images at issue here. Additionally, the images in Favish were all still photographs, whereas the video at issue here depicts corpse mutilation as it occurs. The privacy interest of the victim's family in images of this nature is high.

PLN argues, however, that in the circumstances of this case, Estrella's family has no privacy interest. PLN first asserts that because Estrella was a prisoner and the images were taken in a prison cell, Estrella himself had no expectation of privacy and his family likewise can have none. Second, PLN contends that the use of the photographs and video at the Sablans' trial, combined with the family's failure to object to the introduction of the evidence in open court, effectively constituted a waiver of the privacy interests at stake. Finally, PLN urges this court to require an evidentiary showing that Estrella's family objects to the release of these images or otherwise will be harmed.

Any diminishment of Estrella's expectation of privacy as a result of his status as a prisoner does not bear on his family's privacy interest in not having gruesome imagesof his body publicly disseminated. As the Supreme Court stated in Favish, family members have a right to personal privacy "to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility, not for the sake of the deceased." Id. at 166, 124 S.Ct. 1570. Accordingly, contrary to PLN's contention that any privacy interest of Estrella's family is derivative of Estrella's own privacy interest, family members' privacy interests under FOIA are...

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