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Prison Legal News v. EOUSA, US, Petition, public records, 2010

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NO. ____
In the

Supreme Court of the United States
________________

PRISON LEGAL NEWS,
Petitioner,

v.

EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS,
Respondent.
________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Tenth Circuit
________________
PETITION FOR WRIT OF CERTIORARI
_________________
NEIL S. SIEGEL
DUKE LAW SCHOOL
Box 90360
210 Science Dr.
Durham, NC 27708
(919) 613-7157

PAUL D. CLEMENT
Counsel of Record
BANCROFT PLLC
1919 M St. NW, Suite 470
Washington, DC 20036
pclement@bancroftpllc.com
(202) 234-0090

LANCE WEBER
HUMAN RIGHTS
DEFENSE CENTER
P.O. Box 2420
Brattleboro, VT 05303
(802) 579-1309

ZACHARY D. TRIPP
KING & SPALDING LLP
1700 Pennsylvania Ave. NW
Washington, DC 20006
(202) 737-0500

Counsel for Petitioner
June 14, 2011

i
QUESTION PRESENTED
Whether the Government can refuse to disclose
records by successfully invoking an exemption to the
Freedom of Information Act, 5 U.S.C. § 552, when it
has already disclosed those very same records
elsewhere by placing them in the public domain as
unsealed evidence in a public trial.

ii
CORPORATE DISCLOSURE STATEMENT
Pursuant to Supreme Court Rule 29.6, petitioner
Prison Legal News states that its parent corporation
is the Human Rights Defense Center. No publicly
held corporation owns 10% or more of Human Rights
Defense Center’s stock.

iii
TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
CORPORATE DISCLOSURE STATEMENT............. ii
TABLE OF AUTHORITIES........................................ vi
OPINIONS BELOW ..................................................... 1
JURISDICTION ........................................................... 1
STATUTORY PROVISIONS INVOLVED.................. 1
STATEMENT OF THE CASE ..................................... 2
A. The Freedom of Information Act................. 4
B. Factual Background..................................... 5
C. Procedural History....................................... 9
REASONS FOR GRANTING THE PETITION........ 12
I.

The Circuits Are Split on the Question
Presented.......................................................... 15
A. The Decision Below Conflicts with
the “Public Domain” Doctrine that
the D.C. Circuit and Second Circuit
Embrace ...................................................... 15
B. The
Decision
Below
Squarely
Conflicts with the D.C. Circuit’s
Decision in Davis........................................ 17

II. The
Tenth
Circuit’s
Decision
Misconstrues FOIA and Makes Public
Records Significantly Less Public................... 21
A. The Government Can Waive Any
FOIA Exemption ........................................ 21

iv
B. The
Tenth
Circuit’s
Decision
Threatens to Shield Public Records
from Public View ........................................ 22
C. The
Tenth
Circuit’s
Decision
Particularly Hampers Access to
Audiovisual Evidence................................. 29
III. This Case Is an Ideal Vehicle ......................... 34
CONCLUSION ........................................................... 36
APPENDIX
Appendix A:
Opinion of the court of appeals
(January 11, 2011) ........................................App-1
Appendix B
Order denying rehearing
(March 16, 2011) .........................................App-20
Appendix C
Opinion and Order of the district court
(September 16, 2009) .................................. App-22
Appendix D
Prison Legal News’ FOIA request
(March 12, 2007)............................................App-41
Response denying FOIA request
(May 15, 2007) ...............................................App-44
DOJ
decision
denying
appeal
(November 19, 2007) .....................................App-48

v
Appendix E
Declarations in Support of Prison Legal
News’s Motion for Summary Judgment
Declaration of Henry Schuster,
Producer, 60 Minutes, CBS
(November 19, 2008)................................App-50
Declaration of Alan Prendergast,
Staff Writer, Westword
(November 19, 2008)................................App-56
Declaration of Paul Wright,
Editor, Prison Legal News
(November 20, 2008)................................App-62
Supplemental Declaration of Paul
Wright, Editor, Prison Legal News
(November 20, 2008)................................App-68
Appendix F
Statutory provisions......................................App-70

vi
TABLE OF AUTHORITIES
CASES
Afshar v. Dep’t of State,
702 F.2d 1125 (D.C. Cir. 1983) ........................ 16, 17
Brown v. Plata,
131 S. Ct. 1910 (2011) ........................................ 3, 32
Cottone v. Reno,
193 F.3d 550 (D.C. Cir. 1999) ........................ passim
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) ........................................ passim
Craig v. Harney,
331 U.S. 367 (1947) ................................................ 16
Davis v. U.S. Dep’t of Justice,
968 F.2d 1276 (D.C. Cir. 1992) ...................... passim
Davis v. Dep’t of Justice,
460 F.3d 92 (D.C. Cir. 2006) ...................... 13, 19, 20
Dep’t of Air Force v. Rose,
425 U.S. 352 (1976) ............................................ 4, 22
Farmer v. Brennan,
511 U.S. 825 (1994) .......................................... 30, 33
Fiduccia v. U.S. Dep’t of Justice,
185 F.3d 1035 (9th Cir. 1999).......................... 20, 21
Fitzgibbon v. CIA,
911 F.2d 755 (D.C. Cir. 1990) ................................ 17

vii
Forest Guardians v. FEMA,
410 F.3d 1214 (10th Cir. 2005).............................. 30
FTC v. Standard Fin. Mgmt. Corp.,
830 F.2d 404 (1st Cir. 1987) ............................ 24, 26
Halbert v. Michigan,
545 U.S. 605 (2005) ................................................ 21
In re Application of CBS, Inc.,
828 F.2d 958 (2d Cir. 1987) ................................... 16
Inner City Press/Cmty. on the Move v. Bd. of
Governors of the Fed. Reserve Sys.,
463 F.3d 239 (2d Cir. 2006) ............... 2–3, 12, 15, 17
Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157 (2004) ............................................ 5, 26
New Hampshire v. Maine,
532 U.S. 742 (2001) ................................................ 22
Niagara Mohawk Power Corp. v. U.S. Dep’t of
Energy,
169 F.3d 16 (D.C. Cir. 1999) .................................. 17
Nixon v. Warner Communications, Inc.,
435 U.S. 589 (1978) .......................................... 23–24
Public Citizen v. Dep’t of State,
11 F.3d 198 (D.C. Cir. 1993) .................................. 17
Regan v. Time, Inc.,
468 U.S. 641 (1984) .......................................... 30, 33

viii
Scott v. Harris,
550 U.S. 372 (2007) ............................................ 4, 31
U.S. Dep’t of Justice v. Reporters Committee for
Freedom of the Press,
489 U.S. 749 (1989) ........................................ passim
United States v. Graham,
257 F.3d 143 (2d Cir. 2001) ................................... 34
United States v. Hickey,
767 F.2d 705 (10th Cir. 1985)................................ 24
United States v. LaVallee,
439 F.3d 670 (10th Cir. 2006).................................. 6
United States v. Novaton,
271 F.3d 968 (11th Cir. 2001)................................ 34
Waller v. Georgia,
467 U.S. 39 (1984) .................................................. 25
Watkins v. U.S. Bureau of Customs & Border
Prot.,
___ F.3d ___, No. 09-35996, 2011 WL
1709852 (9th Cir. May 6, 2011)................. 15–16, 20
Wolf v. CIA,
473 F.3d 370 (D.C. Cir. 2007) ................................ 17
STATUTES
5 U.S.C. § 552....................................................... passim
28 U.S.C. § 1254(1) ........................................................ 1

ix
RULES
D. Colo. L. Crim. R. 55.1................................................ 8
Fed. R. Civ. P. 5.2 ........................................................ 25
Fed. R. Crim. P. 49.1 ................................................... 25
OTHER AUTHORITIES
Black’s Law Dictionary (8th ed. 2004) ....................... 23
Robert Boczkiewicz,
Gang Inmates’ Murder Trial Resumes
Today, Pueblo Chieftain, May 31, 2011,
http://www.chieftain.com/news/local/ganginmates-murder-trial-resumes-today/
article_3d76c81a-8b3d-11e0-9b14001cc4c002e0.html ................................................... 6
Bureau of Prisons, Program Statement,
Special Housing Units (June 9, 2011)
http://www.bop.gov/policy/progstat/
5270_010.pdf....................................................... 6, 29
David A. Elder,
Privacy Torts (2002)......................................... 25, 26
Mike McPhee,
Pair May Face Death in Prison Slaying,
Denver Post, Jan. 27, 2001 ...................................... 8

x
Pew Research Ctr.,
Generations and their Gadgets (Feb. 3,
2011),
http://pewinternet.org/~/media//Files/
Reports/2011/.......................................................... 34
Alan Prendergast,
Cowboy Justice, Westword, June 26, 2003,
http://www.westword.com/2003-0626/news/cowboy-justice/ ........................................... 7
Alan Prendergast,
Marked for Death, Westword, May 25, 2000,
http://www.westword.com/2000-0525/news/marked-for-death/...................................... 6
Restatement (Second) of Torts (1976) ............ 23, 25, 26
Samuel Warren & Louis D. Brandeis,
The Right to Privacy,
4 Harv. L. Rev. 193 (1890) ..................................... 25

OPINIONS BELOW
The opinion of the Tenth Circuit Court of Appeals
is reported at 628 F.3d 1243 and is reproduced at
App. 1.
The Tenth Circuit’s unpublished order
denying en banc review is reproduced at App. 20. The
unpublished order of the district court is reproduced
at App. 22.
JURISDICTION
This Court has jurisdiction under 28 U.S.C.
§ 1254(1). The Court of Appeals entered judgment on
January 11, 2011. On February 25, 2011, Prison
Legal News filed a timely petition for rehearing en
banc. On March 16, 2011, the Tenth Circuit denied
en banc review. Prison Legal News timely filed this
petition on June 14, 2011.
STATUTORY PROVISIONS INVOLVED
Exemption 7(C) of the Freedom of Information
Act (“FOIA”) exempts from mandatory disclosure
“records or information compiled for law enforcement
purposes, but only to the extent that the production of
such law enforcement records or information . . . (C)
could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C).
The appendix sets out other pertinent FOIA
provisions. App. 70–73.

2
STATEMENT OF THE CASE
The Tenth Circuit held below that the
Government could successfully rely on a FOIA
exemption to refuse to disclose audiovisual records —
even though the Government had already disclosed
those very same records in open court. The panel
concluded that the Government did not waive its
right to rely on exemption 7(C) by doing such an
about-face; that airing this evidence in open court was
a disclosure of a “limited nature” only to the people in
the courtroom; and that Prison Legal News and the
public would learn little from viewing these materials
first hand when they could read about them second
hand. App. 8–10, 17–19.
This Court should grant certiorari and reverse.
The Tenth Circuit’s decision creates a circuit split on
an important question of federal law — one that goes
to the heart of whether public records are, in fact,
truly available to the public. Under the Tenth
Circuit’s approach, when the Government uses
records as evidence in open court, they are only
temporarily accessible to whomever happens to make
it to court while the trial is ongoing. This decision
thus significantly shrinks the set of people who can
view audiovisual evidence first hand. The D.C.
Circuit and the Second Circuit have adopted the
opposite view, holding that the Government cannot
rely on an otherwise applicable FOIA exemption to
defeat a request for the very same records that it has
already disclosed as unsealed evidence in open court.
See, e.g., Cottone v. Reno, 193 F.3d 550, 553–56 (D.C.
Cir. 1999); Inner City Press/Cmty. on the Move v. Bd.

3
of Governors of the Fed. Reserve Sys., 463 F.3d 239,
248–49 (2d Cir. 2006).
In particular, the decision below squarely
conflicts with Davis v. U.S. Dep’t of Justice, 968 F.2d
1276 (D.C. Cir. 1992). As here, Davis involved a
FOIA request for audiovisual materials that
implicated exemption 7(C). Id, at 1278–79. But
unlike the Tenth Circuit, the D.C. Circuit held that
once the Government played tapes at a public trial,
exemption 7(C) could no longer apply and the
Government was required to disclose those exact
tapes. Id. at 1280. The Tenth Circuit reached the
opposite result below on materially identical facts. It
held that exemption 7(C) prevented release of the
video and photos here — notwithstanding that the
Government had aired those very same records in
open court not once but twice. App. 17–19.
The Tenth Circuit’s cramped view that a public
disclosure of evidence at a public trial is only a
“limited” disclosure to the courtroom audience, App.
10, minimizes the constitutional notion of a public
trial and runs counter to a longstanding tradition of
making public records generally accessible to the
public at large. The decision below thereby threatens
to undermine significantly the ability of the press and
people to learn from past records about “what the
Government [was] up to.” U.S. Dep’t of Justice v.
Reporters Committee for Freedom of the Press, 489
U.S. 749, 780 (1989). Moreover, at a time when
modern technology has given new meaning to the old
adage that a picture is worth a thousand words — as
this Court itself has recognized, see, e.g., Brown v.
Plata, 131 S. Ct. 1910 (2011); Scott v. Harris, 550 U.S.

4
372 (2007) — the Tenth Circuit’s decision makes
these valuable materials particularly difficult for the
public to see. To resolve the split between the circuits
on an important question of federal law, this Court
should grant certiorari and reverse.
A. The Freedom of Information Act
FOIA generally requires every federal agency to
make “promptly available” records that any person
requests. 5 U.S.C. § 552(a)(3)(A). Congress enacted
FOIA to implement “a general philosophy of full
agency disclosure.” Reporters Committee, 489 U.S.
at 754 (quoting Dep’t of Air Force v. Rose, 425 U.S.
352, 360 (1976)). FOIA’s purpose is “crystal clear”:
“[T]o pierce the veil of administrative secrecy and to
open agency action to the light of public scrutiny.”
Rose, 425 U.S. at 361 (quotation marks omitted).
Congress exempted several categories of
documents from FOIA’s disclosure requirements. See
§ 552(b). These exemptions “must be narrowly
construed,” as “disclosure, not secrecy, is the
dominant objective of the Act.” Rose, 425 U.S. at 361.
“Unlike the review of other agency action that must
be upheld if supported by substantial evidence and
not arbitrary or capricious,” FOIA “expressly places
the burden ‘on the agency to sustain its action’ and
directs the district courts to ‘determine the matter de
novo.’” Reporters Committee, 489 U.S. at 755 (quoting
§ 552(a)(4)(B)).
As relevant here, exception 7(C) exempts records
compiled for law enforcement purposes “but only to
the extent” that their production “could reasonably be
expected to constitute an unwarranted invasion of

5
personal privacy.” § 552(b)(7)(C). The “personal
privacy” interest protected by exemption 7(C)
includes that of “surviving family members” with
respect to unpublished images of a “close relative’s
death-scene.” Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 170 (2004). To determine
whether such an invasion is “unwarranted,” courts
must “balance the family’s privacy interest against
the public interest in disclosure.” Id. at 171; see
Reporters Committee, 489 U.S. at 762. “[C]itizens’
right to be informed about ‘what their government is
up to’” is not advanced by “information about private
citizens that . . . reveals little or nothing about an
agency’s own conduct.” Reporters Committee, 489
U.S. at 773. But this right to be informed is advanced
by disclosures that “shed any light on the conduct of
any Government agency or official.” Id.
FOIA Exemption 6 also protects personal privacy.
Its protection is limited, however, to “personnel and
medical files and similar files” and it requires that
the invasion be “clearly” unwarranted. § 552(b)(6).
The Government waived exemption 6 and thus it is
no longer at issue here. App. 5 n.4.
B. Factual Background
1. The United States Penitentiary in Florence,
Colorado (“USP-Florence”) is a high-security prison
that is part of the Florence Federal Correctional
Complex (“FCC”). App. 64 (Wright Decl. ¶ 5). USPFlorence and the FCC have a history of grave security
problems, including inmate-on-inmate violence.
There have been numerous murders in USP-Florence,
and at least three in its “Special Housing Unit,”

6
which is intended to “securely separat[e]” prisoners
“from the general inmate population.” Bureau of
Prisons, Program Statement, Special Housing Units
§ 541.21 (June 9, 2011) (“BOP Statement”); 1 see, e.g.,
Alan Prendergast, Marked for Death, Westword, May
25, 2000; 2 Robert Boczkiewicz, Gang Inmates’ Murder
Trial Resumes Today, Pueblo Chieftain, May 31,
2011. 3 Further, several former correctional officers at
USP-Florence were convicted of federal crimes for
“widespread abuse of prisoners,” including beating
prisoners while they were restrained and “falsif[ying]
. . . records to cover up that abuse.” United States v.
LaVallee, 439 F.3d 670, 677–79 (10th Cir. 2006).
Prison Legal News publishes a legal journal and a
website concerning prisoners’ rights issues, and has
been covering conditions at USP-Florence and the
FCC since 1995. App. 64 (Wright Decl. ¶ 5). 4 Prison
Legal News’ coverage has focused, in particular, on
the “high levels of violence experienced at the prison
complex in Florence.” Id. Other media outlets have
also covered conditions at USP-Florence. The Denver
Westword has published numerous articles covering
inmate-on-inmate violence and reports of officers
abusing prisoners. App. 57–58 (Prendergast Decl.
¶ 5); e.g., Alan Prendergast, Cowboy Justice,

1 http://www.bop.gov/policy/progstat/5270_010.pdf
2 http://www.westword.com/2000-05-25/news/marked-for-

death/

3 http://www.chieftain.com/news/local/gang-inmates-

murder-trial-resumes-today/article_3d76c81a-8b3d-11e0-9b14001cc4c002e0.html
4 http://www.prisonlegalnews.org/

7
Westword, June 26, 2003. 5 60 Minutes aired a
segment on the FCC titled “A Clean Version of Hell.” 6
App. 51 (Schuster Decl. ¶ 2). “Prison Legal News is,”
however, “the only national media outlet that has
regularly reported on these facilities” and conditions
therein. App. 64 (Wright Decl. ¶ 5).
2. On October 10, 1999, two prisoners at USPFlorence, William Concepcion Sablan and Rudy
Cabrera Sablan, brutally murdered their cellmate,
Joey Jesus Estrella. App. 2, 23. The Bureau of
Prisons had assigned the three men, including the
two Sablan cousins, to a single cell in the prison’s
Special Housing Unit. App. 2.
Bureau of Prisons (“BOP”) personnel videotaped
the aftermath of the violent murder. “The first
portion of the video depicts the interior of the shared
cell and the Sablans’ conduct inside the cell” after the
murder. App. 2. This portion of the video captures
the Sablans’ heinous and gruesome mutilation of
Estrella’s body, which was extraordinarily degrading
and disrespectful. Id.; see App. 23–24. “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.” App. 2. “BOP personnel
also took still autopsy photographs of Estrella’s body.”
Id.

5 http://www.westword.com/2003-06-26/news/cowboy-

justice/
6 http://www.cbsnews.com/stories/2007/10/11/60minutes/
main3357727.shtml

8
The Government tried the Sablans separately and
sought the death penalty in each trial. Id. They were
both convicted of first degree murder, but were
sentenced to life imprisonment rather than death.
App. 2–3.
The Sablans’ trials were public and attracted
press coverage. E.g., Mike McPhee, Pair May Face
Death in Prison Slaying, Denver Post, Jan. 27, 2001,
at B1. In both trials, the Government introduced the
full video and autopsy photographs into evidence —
without moving to seal. App. 2. Indeed, rather than
seeking to keep these materials private, the
Government displayed the video and photographs on
“monitors placed for the sole purpose of enabling
members of the public seated in the courtroom
audience to view the images.” Compl. ¶ 33, 47–49;
Answer ¶ 33, 47–49. Prison Legal News was unable,
however, to send a reporter to attend either of the two
trials. “Prison Legal News is a small organization
with a small budget,” and “do[es] not have the ability
to send staff journalists to attend every federal trial
that [it has] an interest in reporting on.” App. 65
(Wright Decl. ¶ 8).
Local court rules required the video and
photographs to remain in the custody of the clerk
during the trials. D. Colo. L. Crim. R. 55.1. “At the
completion of trials, the photographs and video were
returned to the United States Attorneys Office
pursuant to a standard order regarding the custody of
exhibits.” App. 3. The Government still possesses
these records. App. 24.

9
C. Procedural History
1. On March 12, 2007, Prison Legal News sent a
FOIA request to the United States Attorney’s Office
for the District of Colorado, seeking the production of
“the complete videotape” and the autopsy
photographs. App. 42. The request specifically
identified the video as the Government’s Exhibit 20
and the photographs as the Government’s Exhibits
168 through 177D in the trial of William Concepcion
Sablan, United States v. Sablan, No. 00-cr-531-WYD01 (D. Colo. Jan. 22, 2007). Id.
The Executive Office for United States Attorneys
(“EOUSA”) denied the request and the Department of
Justice (“DOJ”) denied Prison Legal News’
subsequent administrative appeal. App. 44–45, 48.
DOJ asserted that the Government had properly
withheld the records pursuant to FOIA exemptions
7(A), 7(B), and 7(C). App. 48–49.
2. On May 20, 2008, Prison Legal News filed a
complaint in the United States District Court for the
District of Colorado, challenging the denial of its
request for the video and photographs.
See
§ 552(a)(4)(B). In response, the EOUSA defended its
refusal to release the records on the basis of
exemptions 6 and 7(C), dropping its reliance on
exemptions 7(A) and 7(B). App. 25–26. The parties
cross-moved for summary judgment. As relevant
here, Prison Legal News argued that, under the
“public domain” doctrine, the Government was
required to disclose these materials because it had
already introduced them as unsealed evidence at a

10
public trial. Prison Legal News Mot. for Summ. J. 3–
4; see Cottone, 193 F.3d at 554–56.
The District Court granted and denied each
motion in part, ordering the Government to disclose
some of the materials but not others. As to the video
itself, the court ordered the Government to disclose
only the second part of the video, that is, the portions
that do not depict Estrella’s body. App. 40. As for the
audio track, the court ordered the Government to
disclose only the audio of BOP officials but to redact
any other audio, including the Sablans’ voices. Id.
The Court affirmed the Government’s refusal to turn
over the autopsy photographs. Id.; see also App. 3 &
n.1.
Prison Legal News appealed. While the appeal
was pending, the EOUSA disclosed the materials
required by the district court’s order. App. 3. The
EOUSA also dropped its reliance on exemption 6.
App. 5 n.4. The only live question on appeal was thus
whether the EOUSA could rely on exemption 7(C) to
resist disclosing: (1) the first portion of the video and
the autopsy photographs, which depict Estrella’s
body; and (2) the redacted audio of the Sablans’ voices
from the second portion of the video, which “pertain to
what [the Sablans] were doing to Estrella’s body.”
App. 14.
3. On January 11, 2011, the Tenth Circuit
dismissed the appeal in part as moot with respect to
materials the EOUSA had released. App. 18–19. It
otherwise affirmed. Id.
First, the court ruled that the Government had
not waived its ability to rely on exemption 7(C), even

11
though it had publicly disclosed the materials in two
separate trials.
“The government cannot waive
individuals’ privacy interests under FOIA.” App. 8.
According to the court of appeals, there was no waiver
because “Estrella’s family members did not take any
affirmative actions to place the images in the public
domain.” App. 9.
Second, the court ruled that, although the
Government used the records as unsealed evidence at
two public trials, it had not made those records truly
public.
Rather, the court characterized the
Government’s display of the records at two public
trials as disclosure of a “limited nature.” App. 10.
“[O]nly those physically present in the courtroom
were able to view the images”; “the images were
never reproduced for public consumption beyond
those trials”; and “the images are no longer available
to the public.” App. 9–10. Accordingly, the court of
appeals concluded that “Estrella’s family retains a
strong privacy interest in the images.” App. 10.
Third, the court concluded that the “public
domain” doctrine did not apply here. The Tenth
Circuit recognized that the D.C. Circuit had held in
broad terms that “materials normally immunized
from disclosure under FOIA lose their protective
cloak once disclosed and preserved in a permanent
public record.” App. 16 (quoting Cottone, 193 F.3d
at 554). But instead of applying Cottone’s rule, the
Tenth Circuit derived a different rule from part of
Cottone’s reasoning. The Tenth Circuit concluded
that the “public domain” doctrine does not apply to
exemption 7(C) because unsealed evidence disclosed
in open court is not “truly public” and thus that

12
exemption could still “fulfill its purposes” of
protecting the family’s privacy. Id. (quotation marks
omitted).
The Tenth Circuit acknowledged that the D.C.
Circuit’s opinion in Davis also involved exemption
7(C). App. 17. But the Tenth Circuit concluded that
Davis “decline[d] to apply the [‘public domain’]
doctrine because of a failure of the plaintiff to
demonstrate with specificity the information that is
in the public domain.” Id.
The court of appeals denied a timely petition for
rehearing and rehearing en banc on March 16, 2011.
App. 20.
REASONS FOR GRANTING THE PETITION
1. This Court should grant certiorari because the
Tenth Circuit’s decision below conflicts with decisions
of the D.C. Circuit and Second Circuit applying the
“public domain” doctrine. It is well-settled in those
circuits that the Government must grant a FOIA
request for records that the Government has
previously disclosed in open court. “[U]ntil destroyed
or placed under seal, tapes played in open court and
admitted into evidence — no less than the court
reporter’s transcript, the parties’ briefs, and the
judge’s orders and opinions — remain a part of the
public domain.” Cottone, 193 F.3d at 554; accord
Inner City Press, 463 F.3d at 249. The Tenth Circuit
adopted a different rule of law. In the Tenth Circuit,
the “public domain” doctrine does not apply where the
Government has invoked FOIA exemption 7(C). App.
17. The court reasoned that exemption 7(C) is not the
Government’s to waive and that its purposes “can still

13
be served” following the disclosure of records as
unsealed evidence in a public trial because such
disclosure is “limited” to “only those physically
present in the courtroom.” App. 10, 17–18. This
decision thus conflicts with decisions of the D.C.
Circuit and Second Circuit and creates a circuit split.
In particular, the decision below squarely
conflicts with Davis. In Davis, the D.C. Circuit
applied the “public domain” doctrine where
exemption 7(C) otherwise would have allowed the
Government to resist disclosing audiovisual records.
968 F.2d at 1279, 1281. To give the requester the
opportunity to show the “exact portions” that the
Government had released into the public domain, the
court remanded. Id. at 1280, 1282. On remand, the
requester carried his burden as to most of the
portions of the tapes, and the Government released
those portions that it still possessed. See Davis v.
Dep’t of Justice, 460 F.3d 92, 96 (D.C. Cir. 2006)
(“Davis IV”). By contrast, under the Tenth Circuit’s
rule — that exemption 7(C) trumps the “public
domain” doctrine, rather than vice versa — there
would have been no remand and no disclosure.
Rather, the court would have held that the
Government did not need to disclose any of the tapes.
Accordingly, the decision below squarely conflicts
with Davis.
2. Certiorari is further warranted because the
decision in this very case misconstrues FOIA and
threatens to shield valuable information from public
view. At the outset, the Tenth Circuit is simply
wrong to hold that the Government cannot waive
exemptions protecting personal privacy. It is well-

14
settled that the Government can waive any FOIA
exemptions, and indeed the Government waived
exemption 6 below.
The decision below also undermines the
longstanding and important principle that unsealed
judicial records are truly matters of public record. In
the Tenth Circuit’s view, evidence used at a public
trial has only been disclosed in a “limited” fashion to
“those physically present in the courtroom.” App. 10.
If that were true, our public record would be
remarkably inaccessible to the public. But it is not
true. Absent a motion to seal, disclosure of materials
at a public trial is a real public disclosure, making
those records part of the permanent public record
that is generally accessible under longstanding
principles. Having disclosed those documents for its
own purposes, the Government is not free to claw
them back from the public domain and to relegate the
public to second-hand reports.
The Tenth Circuit’s view that use of evidence at a
public trial is a “limited” disclosure to the courtroom
audience has particularly pernicious implications for
audiovisual evidence. The Tenth Circuit maintained
that such evidence adds little to the public
understanding, because “[a]ll of the information” was
disclosed in the court transcript or was reported
elsewhere. App. 13. But it is widely understood —
including by the court below in its discussion of the
privacy interests at stake — that “a picture is worth a
thousand words” and that video may pack an even
stronger punch. At a time when audiovisual evidence
is becoming increasingly prevalent and important,

15
this Court should ensure that the public retains its
right to see this evidence for itself.
I.

THE CIRCUITS ARE SPLIT
QUESTION PRESENTED

ON

THE

A. The Decision Below Conflicts with the
“Public Domain” Doctrine that the D.C.
Circuit and Second Circuit Embrace
1. If this case had arisen in the D.C. Circuit or
the Second Circuit, it would have come out the other
way. Under the “public domain” doctrine, “materials
normally immunized from disclosure under FOIA lose
their protective cloak once disclosed and preserved in
a permanent public record.” Cottone, 193 F.3d at 554.
The FOIA requester first bears the burden to
“demonstrat[e]
precisely
which
recorded
conversations were played in open court” and thus are
part of the public domain. Id. at 555. The burden
then shifts to the Government to show that “the
specific tapes or records identified” have been
destroyed or placed under seal. Id. at 556. “[U]ntil
destroyed or placed under seal, tapes played in open
court and admitted into evidence — no less than the
court reporter’s transcript, the parties’ briefs, and the
judge’s orders and opinions — remain a part of the
public domain.” Id. at 554. This doctrine is “firmly
anchored” in the D.C. Circuit. Id. at 553. The Second
Circuit has adopted this same rule of law. Inner City
Press, 463 F.3d at 248–49; see also Watkins v. U.S.
Bureau of Customs & Border Prot., ___ F.3d ___, No.
09-35996, 2011 WL 1709852, at *8 (9th Cir. May 6,
2011) (Rymer, J., concurring in part and dissenting in

16
part) (the “public domain” doctrine is “embraced by
the D.C. Circuit and the Second Circuit”).
These courts have primarily grounded the “public
domain” doctrine in principles of waiver. See, e.g.,
Cottone, 193 F.3d at 553. The rationale is powerful
and straightforward:
The Government cannot
affirmatively release information into the public
domain and then turn around and assert that it
cannot release that very same information because it
is too private. The “public domain” doctrine is also
grounded in the “venerable common-law right to
inspect and copy judicial records,” under which “audio
tapes enter the public domain once played and
received into evidence.” Id. at 554; see, e.g., In re
Application of CBS, Inc., 828 F.2d 958, 959 (2d Cir.
1987). “A trial is a public event. What transpires in
the court room is public property.” Craig v. Harney,
331 U.S. 367, 374 (1947).
If the Tenth Circuit had applied the “public
domain” doctrine, it would have required the
Government to disclose the files that Prison Legal
News requested. It is undisputed that Prison Legal
News identified the exact materials that the
Government “played in open court.” Cottone, 193
F.3d at 555. Indeed, Prison Legal News’ FOIA
request specifically listed the exhibit numbers of each
requested item. App. 42; see also Compl. ¶¶ 23–37,
Answer ¶¶ 23–37. The Government still possesses
these records and they have not been sealed. App. 24.
Accordingly, the records “remain a part of the public
domain.” Cottone, 193 F.3d at 554.

17
The Tenth Circuit dismissed Cottone as limited to
cases involving exemption 3, which protects records
that must be withheld under another statute. App.
16. But that is a limitation of the Tenth Circuit’s own
creation. It is immaterial under Cottone which FOIA
exemption the Government has invoked; what
matters is whether the requester can show that the
Government aired those very same records in open
court. Cottone, 193 F.3d at 554. Furthermore, the
D.C. Circuit and Second Circuit have applied
Cottone’s “public domain” doctrine in cases involving
a wide spectrum of FOIA exemptions — including
exemption 7(C). See, e.g., Public Citizen v. Dep’t of
State, 11 F.3d 198, 201–03 (D.C. Cir. 1993)
(exemption 1); Fitzgibbon v. CIA, 911 F.2d 755, 765
(D.C. Cir. 1990) (exemption 1); Cottone, 193 F.3d at
554–55 (exemption 3); Niagara Mohawk Power Corp.
v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir.
1999) (exemption 4); Inner City Press, 463 F.3d at 253
(exemption 4); Davis, 968 F.2d at 1278–80
(exemptions 3, 7(C), and 7(D)); Wolf v. CIA, 473 F.3d
370, 378–80 (D.C. Cir. 2007) (exemptions 1 and 3);
Afshar v. Dep’t of State, 702 F.2d 1125, 1130–34 (D.C.
Cir. 1983) (exemptions 1 and 3).
B. The Decision Below Squarely Conflicts
with the D.C. Circuit’s Decision in Davis
Crucially, in Davis, the D.C. Circuit applied the
“public domain” doctrine in a setting identical to this
one — yet the two courts reached polar opposite
results.
As here, Davis involved a request for
audiovisual records: undercover recordings that the
Government made during an investigation into
organized crime in New Orleans. 968 F.2d. at 1278.

18
As here, the Government invoked exemption 7(C) to
protect the privacy of third parties who were recorded
or mentioned on the tapes: the defendants, their
coconspirators, and others mentioned as being under
Mafia influence. Id. at 1278–79, 1281. As here, the
Government had played the tapes in open court as
unsealed evidence, although in Davis it had played
only segments of the tapes (and only played them
once). Id. And as here, the tapes were no longer
physically available at court; they were in the
Government’s possession. Id.
Unlike the court below, however, the D.C. Circuit
applied the “public domain” doctrine. The D.C.
Circuit held that “the government cannot rely on an
otherwise valid exemption claim to justify
withholding” records where the requester has carried
his burden of showing that the Government has
already released that “specific information” into the
“public domain.” Id. at 1279. “But for the publication
of the tapes,” the D.C. Circuit underscored, exemption
7(C) would have blocked their disclosure.
Id.
Because the requester had not had the opportunity to
show which “exact portions” of the tapes had been
played at trial, the court remanded. Id. at 1279,
1282. On remand, the requester carried this burden
by “produc[ing] docket entries and transcripts”
showing that the Government had played at trial 158
of the 163 segments he requested. Davis IV, 460 F.3d
at 96. The Government in turn released every one of

19
those segments that it still possessed. Id. 7 Faced
with an indistinguishable scenario, the Tenth Circuit
below reached the opposite result, holding that the
Government could rely on exemption 7(C) even after
airing the exact same records in a public trial.
The Tenth Circuit dismissed Davis as merely
“declin[ing] to apply the [‘public domain’] doctrine
because of a failure of the plaintiff to demonstrate
with specificity the information that is in the public
domain.” App. 17. But the D.C. Circuit did not
“decline to apply” the “public domain” doctrine in
Davis; its application of that doctrine was essential to
the outcome of the case. Indeed, the D.C. Circuit
made clear that the prior publication of the tapes
altered the outcome by stating that exemption 7(C)
would apply “[b]ut for the publication of the tapes.”
Davis, 968 F.2d at 1279. If the D.C. Circuit had
“declined to apply” the “public domain” doctrine, it
would have ruled that the Government correctly
denied the FOIA request as a whole and left it at
that. Instead, the D.C. Circuit remanded to give the
requester the opportunity to show which exact
segments the Government had played at trial — and
after remand the Government disclosed these
segments. Id. at 1282; Davis IV, 460 F.3d at 96. In
Davis, the “public domain” doctrine thus made all the
difference.

7 The Government continued to assert exemption 7(C) as to

the five segments that Davis did not show had been played at
trial, leading to a series of further appeals. See Davis IV, 460
F.3d at 96–97.

20
This sequence of events would never have
occurred under the Tenth Circuit’s rule. If the D.C.
Circuit had applied the Tenth Circuit’s rule, it would
have affirmed — not remanded — in Davis.
Conversely, if the Tenth Circuit had followed Davis, it
would have reversed — not affirmed — the judgment
below. Because Prison Legal News did “demonstrate
with specificity” that the precise information it
requested had been played in open court, Davis would
have required disclosure. App. 17. Accordingly,
Davis and the decision below squarely conflict. 8

8 The Ninth Circuit has decided a case with similar facts,
but it is too ambiguous to squarely implicate the split. In
Fiduccia v. U.S. Dep’t of Justice, 185 F.3d 1035 (9th Cir. 1999),
the Ninth Circuit held that the Government could rely on
exemption 7(C) to reject a request for a trove of documents about
an FBI search, where “some documents relating to the search
[were] necessarily public in various courthouses.” Id. at 1047.
Fiduccia can be read as rejecting an all-or-nothing request that,
simply because some of the trove’s contents were public, the
Government must turn over all of its contents. Or it can be read
as rejecting a request for public documents that failed to identify
which documents were public. On these readings, Fiduccia is
uncontroversial and does not implicate the split here. But
Fiduccia can also be read as rejecting a request for specificallyidentified documents that the Government placed into the public
record. This reading would put Fiduccia on the Tenth Circuit’s
side of the split, but it would also be in tension with the Ninth
Circuit’s subsequent decision in Watkins, 2011 WL 1709852 at
*7–*8. Given the ambiguity, Fiduccia is best viewed as not part
of the split.

21
II. THE
TENTH
CIRCUIT’S
DECISION
MISCONSTRUES
FOIA
AND
MAKES
PUBLIC RECORDS SIGNIFICANTLY LESS
PUBLIC
The Tenth Circuit’s decision not only opens a
circuit split, but also is profoundly wrong. Under the
Tenth Circuit’s approach, records that the
Government uses in open court cannot truly be
considered part of the public record. They are not in
fact generally available to the public, but instead can
only be seen by the people who happen to access them
while the Government is still using them to support a
prosecution. The question presented thus goes to the
heart of what it means for a trial and judicial record
to be “public.”
A. The Government Can Waive Any FOIA
Exemption
First, the Tenth Circuit was wrong to conclude
that the Government did not waive exemption 7(C)
because it “cannot waive individuals’ privacy interests
under FOIA.”
App. 8.
This reasoning
misunderstands that exemption 7(C) is the
Government’s to assert or waive, not the family’s.
FOIA gives the Government — not third parties —
“the option” of asserting or waiving an exemption “if
it so chooses.” Rose, 425 U.S. at 361 (quotation marks
omitted); see also Halbert v. Michigan, 545 U.S. 605,
637 (2005) (“Legal rights, even constitutional ones,
are presumptively waivable.”).
Indeed, the
Government recognized that it is free to waive
exemptions that protect individuals’ privacy interests
by waiving exemption 6 below. See App. 5 n.4. If the

22
Government had also waived exemption 7(C), either
as a litigation decision or by failing to assert it,
Estrella’s family would have been unable to object to
the release of the materials or to sue the Government
or Prison Legal News for invasion of privacy. Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975).
Control over exemption 7(C) thus rests firmly with
the Government.
The real question is not whether the Government
can waive exemption 7(C); it is whether the
Government does in fact waive exemption 7(C) when
it discloses records in open court. Basic principles of
equity dictate that the Government cannot take a
position in one court and then do a nearly 180-degree
reversal to prevail in another. E.g., New Hampshire
v. Maine, 532 U.S. 742, 750 (2001). The Government
thus waived its own right to contend that the video
and photos here were too private to disclose when it
disclosed them publicly twice.
B. The Tenth Circuit’s Decision Threatens
to Shield Public Records from Public
View
1. The Tenth Circuit clearly erred in holding that
exemption 7(C) prevents disclosure when the
Government has previously disclosed the exact same
records in open court. The crux of the Tenth Circuit’s
ruling was that the Government made only a
“limited” disclosure to those “physically present in the
courtroom[s]” when it put the video and photos into
the public record at trial.
App. 10.
That
fundamentally subverts the notion of a public trial.
Once unsealed materials are introduced in a public

23
trial, the documents are part of the public domain,
generally available to the public under longstanding
principles. The Government cannot claw them back,
shielding them from access that would otherwise be
available at court. Once the disclosure occurs, the
press is free to report — either contemporaneously or
years later — without fear of invasion of privacy
liability. By the same logic, the Government may no
longer successfully invoke exemption 7(C).
“[M]atters of public record” are, by definition,
public. Restatement (Second) of Torts § 652D cmt. b.
(1976). A “public record” is “[a] documentary account
of past events, usu[ally] designed to memorialize
those events,” that is “generally open to view by the
public.” Black’s Law Dictionary 1301 (8th ed. 2004).
“Public records by their very nature are of interest to
those concerned with the administration of
government, and a public benefit is performed by the
reporting of the true contents of the records by the
media.” Cox Broadcasting, 420 U.S. at 495. “With
respect to judicial proceedings in particular,” the free
availability of public records to the press “serves to
guarantee the fairness of trials” and “bring[s] to bear
the beneficial effects of public scrutiny upon the
administration of justice.” Id. at 492.
Because public records must be available to the
public to fulfill their purposes, there is a “venerable”
common-law right “to inspect and copy public records
and documents, including judicial records and
documents.” Cottone, 193 F.3d at 554; Nixon v.
Warner Communications, Inc., 435 U.S. 589, 597
(1978). The right to access public records is grounded
in an informed citizenry’s need “to keep a watchful

24
eye on the workings of public agencies” and to
“preserv[e] the integrity of the law enforcement and
judicial processes.” Nixon, 435 U.S. at 598; United
States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985).
That concern is at its pinnacle “in cases where the
government is a party.” FTC v. Standard Fin. Mgmt.
Corp., 830 F.2d 404, 410 (1st Cir. 1987). “[I]n such
circumstances, the public’s right to know what the
executive branch is about coalesces with the
concomitant right of the citizenry to appraise the
judicial branch.”
Id.
Under the common-law,
unsealed evidence thus is ordinarily not limited only
to those who see it in the courtroom; it is
presumptively available to the public at large. Of
course, the common-law right of access is “not
absolute.” Nixon, 435 U.S. at 598. Trial courts have
discretion to deny access that would, inter alia,
“gratify private spite or promote public scandal” with
“no corresponding assurance of public benefit.” Id. at
599, 603 (quotation marks omitted). But this case is
far removed from that situation. There is a strong
public interest in disclosure of the evidence here
because the Government relied on it in two capital
cases, and it also sheds light on the Government’s
abject failure to protect federal inmates in its care
from extreme violence. See infra 29–30, 32–33.
Indeed, the “public’s right to know” the contents
of public records is so important that the First
Amendment flatly prohibits the Government from
“expos[ing] the press to liability for truthfully
publishing information released to the public in
official court records.” Cox Broadcasting, 420 U.S.
at 496. Absolute First Amendment protection for
reporting on matters of public record extends even

25
where reporting would significantly expand the
audience for material that would have been
profoundly private — for example, the name of a
deceased rape victim — but for its inclusion in the
public record. Id. at 471, 496.
The common-law rule is similar. “There is no
liability” for invasion of privacy “when the defendant
merely gives further publicity to information about
the plaintiff that is already public.” Restatement
§ 652D cmt. b.; cf. Samuel Warren & Louis D.
Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193,
196 (1890). Only “if the record is one not open to
public inspection” can there be an actionable invasion
of privacy. Restatement §652D cmt. b. Quite simply,
a person “has no objectively reasonable expectation of
privacy in matters in the public domain.” David A.
Elder, Privacy Torts § 3:5 (2002) (quotation marks
and footnote omitted).
To be sure, the Government has the tools to use
sensitive materials in court while preventing public
disclosure. Most obviously, the Government can
redact, move to seal records in whole or part, or even
close the courtroom for part of the proceedings. See
Fed. R. Crim. P. 49.1(a), (d), (f); Fed. R. Civ. P. 5.2(a),
(d). Those tools, however, are subject to procedural
protections, constitutional limits, and the strict
oversight of a judicial officer, who is able to balance
all the interests at stake. See, e.g., Waller v. Georgia,
467 U.S. 39, 48–50 (1984). The Tenth Circuit’s
approach effectively relegates that ex ante balancing
of interests to an ex post determination by an
executive branch official deciding whether to invoke a
FOIA exemption.

26
The Tenth Circuit’s holding undermines the value
of public judicial records by making them available to
a much narrower portion of the populace. Under its
rule, only a select few — those with the time and
resources to make it to court — can learn first hand
“what the executive branch is about” or “appraise the
judicial branch”; the opportunity ends as soon as the
trial is over and the Government retakes possession
of its exhibits. Standard Fin. Mgmt., 830 F.2d at 410.
At that point, the Tenth Circuit’s decision effectively
removes the records from the public domain, and the
public can never access them ever again.
The Tenth Circuit’s decision is so at odds with our
constitutional and common-law traditions that it
leads to anomalous results. To be sure, “the statutory
privacy right protected by Exemption 7(C) goes
beyond the common law and the Constitution.”
Favish, 541 U.S. at 170. But it is not “reasonable” to
expect that disclosing records in response to a FOIA
request will constitute an “unwarranted invasion of
personal privacy,” § 552(b)(7)(C), when the
Government has already fully aired those records
twice, thereby eliminating any “objectively reasonable
expectation of privacy” that the common law
otherwise would have protected in those records,
David A. Elder, Privacy Torts § 3:5 (2010); accord
Restatement § 652D cmt. b. Disclosure of unsealed
judicial records is also not “unwarranted,” as it
advances the values of “guarantee[ing] the fairness of
trials” and “bring[ing] to bear the beneficial effects of
public scrutiny upon the administration of justice.”
Cox Broadcasting, 420 U.S. at 492. Conversely,
allowing privacy concerns to trump public scrutiny in
this context would allow the Government to invoke

27
the former to avoid disclosure of materials that shed
light on the Government’s own shortcomings and thus
subject it to adverse publicity or embarrassment.
2. The Tenth Circuit read this Court’s decision in
Reporters Committee as supporting its cramped
conception of the “public domain.” App. 9–11. But
Reporters Committee cuts the other way. Reporters
Committee held that the Government could rely on
exemption 7(C) to refuse FOIA requests for “rap
sheets” — compilations of the history of arrests and
convictions of individuals. 489 U.S. at 780. The
Court defined information as “private” if it is “not
freely available to the public.” 489 U.S. at 763–64
(quotation marks omitted). And rap sheets fit the
bill: They had always been treated as “nonpublic
documents.” Id. at 753, 764–65. Rap sheets in turn
compiled arrest data that was itself not public, id. at
754 n.2; see also id. at 767, as well as information
that was public but scattered in “courthouse files,
county archives, and local police stations throughout
the country,” id. at 764. In holding that exemption
7(C) applied to rap sheets, Reporters Committee thus
established a clear rule: FOIA does not guarantee
access to government compilations that have always
remained private, simply because some of the
compiled data is publicly available elsewhere.
Reporters Committee undermines, rather than
supports, the Tenth Circuit’s position. Prison Legal
News is not asking for records that have never been
made freely available.
Nor is it asking for a
compilation of publicly available but otherwise
scattered data in an effort to avoid the trouble of
compiling the data itself. Prison Legal News is

28
instead asking for exactly the same records that the
Government made “freely available to the public” in
open court.
Id. at 764.
Moreover, Reporters
Committee underscores the key point that
“courthouse files” are public records even if they
contain countless items implicating privacy interests
and the public faces practical burdens accessing
them. Under the definition this Court applied in
Reporters Committee, the materials here are public,
not private.
Reporters Committee also stressed that the public
does not gain a better understanding of “what their
Government is up to” “by disclosure of information
about private citizens . . . that reveals little or nothing
about an agency’s own conduct.” Id. at 773; see id.
at 774. The invasion of privacy associated with a
third party’s request for law enforcement records is
thus unwarranted “when the request seeks no ‘official
information’ about a Government agency, but merely
records that the Government happens to be storing.”
Id. at 780. But here, Prison Legal News seeks records
that speak to “what the government [was] up to” as
prison warden, as prosecutor, and in its courts. See
App. 12–13; infra Part II.C.
Lastly, whereas in Reporters Committee the
Government consistently kept the requested records
private, the Government’s behavior here is strikingly
inconsistent: The Government initially made the
video and photographs “available to the general
public” in two courts without seeking to place the
materials under seal either time. 489 U.S. at 759.
Further, the Government frequently discloses directly
to the press unsealed audiovisual evidence that it

29
relies on in court, including surveillance videos
depicting inmate-on-inmate murders. See App. 69
(Wright Supp. Decl. ¶ 4). But now, the Government
is refusing to make these records available at all,
contending that they are too private to share.
Reporters Committee thus confirms that the D.C.
Circuit was correct in Davis and therefore that the
Tenth Circuit was wrong to conclude that the records
here need not be released.
C. The
Tenth
Circuit’s
Decision
Particularly
Hampers
Access
to
Audiovisual Evidence
1. The Tenth Circuit acknowledged that there is a
public interest in learning about the contents of the
video and photos here. App. 12–13. These materials
“shed . . . light on,” and draw attention to, “what [the]
government is up to” when operating prisons,
prosecuting crimes, and adjudicating them in courts.
Reporters Committee, 489 U.S. at 773. “[P]rison
officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners.” Farmer v.
Brennan, 511 U.S. 825, 833 (1994) (quotation marks
omitted). And one would expect the Bureau of
Prisons to keep violent crimes to a minimum in the
Special Housing Unit, which is supposed to be
particularly secure. See BOP Statement § 541.21.
But the video and photographs here depict a horrific
inmate-on-inmate attack that bespeaks a total
breakdown in prison security.
Moreover, the
brutality underscores the severity of the problem of
violence in federally-run prisons more broadly.
Finally, these materials also shed light on, and draw

30
attention to, the Government’s decision as prosecutor
to seek the death penalty in two separate trials; the
evidence that it relied on in those two prosecutions;
and the rejection of the death penalty in the courts.
The Tenth Circuit nonetheless found that the
video and photographs would not “add anything new
to the public understanding” of these important
matters because the events they depict had already
been “discussed in detail at trial and reported in the
press.” App. 12. “All of the information” bearing on
the Government’s conduct was “already publicly
known.” App. 13. Indeed, the panel analogized
Prison Legal News’ request to a group’s request for an
electronic copy of map coordinates that the group
already possessed in hardcopy format. Id. (citing
Forest Guardians v. FEMA, 410 F.3d 1214, 1219
(10th Cir. 2005)).
The Tenth Circuit missed the point. Prison Legal
News does not seek sterile “information” that
duplicates what it knows, like the coordinates in
Forest Guardians.
Prison Legal News seeks
photographs and a video showing a horrific crime
committed in the most secure cellblock in a highsecurity federal prison.
This crime has been
described many times, including by the courts below.
But “[t]he adage that ‘one picture is worth a thousand
words’ reflects the common-sense understanding that
illustrations are an extremely important form of
expression for which there is no genuine substitute.”
Regan v. Time, Inc., 468 U.S. 641, 678 (1984)
(Brennan, J., concurring in part and dissenting in
part). The communicative force of a video may be
even more potent. “Video evidence is always the best

31
evidence available, when it is available.” App. 65
(Wright Decl. ¶ 8). For example, the infamous video
of the Rodney King beating was undoubtedly
“discussed in detail at trial and reported in the press.”
App. 12. But it was not “discuss[ions]” of this
“information” that had such a profound impact on the
public’s understanding of the government’s activities
— it was seeing the video itself.
The Tenth Circuit’s failure to recognize the
stronger public interest in viewing audiovisual
evidence over a dry written record is particularly
striking because the court recognized the flip side of
the same coin: a dry record is less invasive of privacy
than photos and video.
“Although descriptive
information about what the images contain may now
be widely available,” the court wrote, “there is a
distinct privacy interest in the images themselves.”
App. 10. By taking the unique impact of audiovisual
evidence into account only on one side of the balance,
the court rendered a decision that was sure to be out
of balance.
2. This Court’s own conduct confirms the
importance of giving the public access to video and
photographs. For example, in Scott v. Harris, 550
U.S. 372 (2007), the lower court suggested that a
driver who was fleeing from police was “cautious and
controlled,” but this Court found that the “[t]he
videotape [told] quite a different story.” Id. at 379–
80. “[W]hat we see on the video more closely
resembles a Hollywood-style car chase of the most
frightening sort . . . .” Id. But rather than leaving
readers with only that colorful prose, this Court
attached the videotape to its opinion “to allow the

32
videotape to speak for itself.”
Id. at 379 n.5.
Similarly, in Brown v. Plata, 131 S. Ct. 1910 (2011),
this Court described conditions in California’s
prisons, but it recognized that the public’s
engagement and understanding might be incomplete
unless the public could see those conditions first
hand. Accordingly, the Court attached a series of
photographs to its opinion. Id. at 1924 & Appx. B, C.
Prison Legal News primarily seeks the video and
photographs here so that it can report from first-hand
materials on this crime, which is emblematic of the
Bureau of Prisons’ inability to quell violence in the
prisons it operates. See App. 62–64 (Wright Decl.
¶¶ 1, 5–6). If Prison Legal News also publishes the
video and photos here so that its readers can draw
their own conclusions from them, some readers may
choose not to look. By all accounts, they depict an
extraordinarily violent and depraved crime, and
viewing these materials will be too much for many
people. But “[i]n this instance as in others reliance
must rest upon the judgment of those who decide
what to publish or broadcast” as well as the judgment
of potential viewers regarding what to watch. Cox
Broadcasting, 420 U.S. at 496. No one will be forced
to view these materials.
The violence these materials depict also cannot be
dismissed as gratuitous or incidental to the public
interest in disclosure — the violence is the story.
When Government officials engage in affirmative acts
of violence, such as beating a prisoner or a suspect, it
is obvious that the violence weighs strongly in favor of
disclosure, not against. The situation is no different if
violence ensues because the Government fails to

33
protect federal prisoners who by necessity must
depend on the Government for protection.
See
Farmer, 511 U.S. at 833. The public is aware that,
notwithstanding the Government’s duty to protect
prisoners, inmate-on-inmate violence is a persistent
problem in federal prisons. But it is particularly
appalling that a crime this brutal could occur under
the Government’s watch in the most secure cellblock
in a high-security prison. The video and photographs
make this point far more powerfully than a dry record
ever could.
The public is also aware that the Government
sought the death penalty in two separate trials and
that the video and photographs were central to the
Government’s case both that the Sablans were guilty
and that they deserved the ultimate penalty. But the
public also knows that the two juries that viewed this
evidence rejected the death penalty and instead
sentenced the Sablans to life imprisonment. The
public cannot fully evaluate the Government’s
judgment as a prosecutor or the conduct of the courts
and juries in two death-penalty prosecutions — and
might be less inclined to train their focus on these
important matters — without seeing the video and
photographs first hand.
The second-hand
descriptions that are available here are “no genuine
substitute” for the originals. Regan, 468 U.S. at 678.
3. The Tenth Circuit’s view that reading about
the video and photographs is roughly equivalent to
seeing them not only contradicts widely shared
understandings and practices, but it also has serious
practical consequences.
Due to technological
advances, video and photographs are increasingly

34
being collected and used as evidence. Tens of millions
of Americans carry cellphones that can take photos
and video and upload them to the internet. See Pew
Research Ctr., Generations and their Gadgets 8 (Feb.
3, 2011). 9 And making a copy of a video or a
photograph is now as easy as copying any other
computer file.
FOIA is a valuable tool for the press and public
to access these materials first hand. In many courts,
once a criminal trial is complete, transcripts and
other documents remain in the court’s possession, but
audiovisual evidence is often returned to the
Government.
E.g., App. 9–10; United States v.
Novaton, 271 F.3d 968, 992 (11th Cir. 2001); United
States v. Graham, 257 F.3d 143, 152 n.5 (2d Cir.
2001). The Tenth Circuit’s position — that the
Government can use audiovisual records in open
court to secure a conviction, but then rely on
exemption 7(C) to resist disclosure of those records
when the trial is over — makes it more difficult for
the public to see audiovisual evidence at a time when
it is becoming increasingly important to public
understanding of “what the Government is up to.”
Reporters Committee, 489 U.S. at 780.
III. THIS CASE IS AN IDEAL VEHICLE
This case is an excellent vehicle for resolving the
circuit split here. First, this case stands or falls on
the difference between the Tenth Circuit’s rule and

9 http://pewinternet.org/~/media//Files/Reports/2011/

PIP_Generations_and_Gadgets.pdf

35
the rule applied in the D.C. Circuit and Second
Circuit. The Tenth Circuit held that the Government
could rely on exemption 7(C) to resist disclosure here.
But if the Tenth Circuit had followed Davis, the
Government could not have relied on this exemption.
Prison Legal News requested exactly the same
materials that the Government used publicly at trial,
and thus under Davis the Government “cannot rely
on an otherwise valid exemption claim to justify
withholding [that] information.” Davis, 968 F.2d at
1279 (quotation marks omitted).
Second, the only question in this case is the
question presented.
Although the Government
invoked exemption 6 and other exemptions in the
district court, it waived those arguments on appeal.
App. 5 n.4.
The Government’s waiver makes
exemption 7(C) the Government’s only defense
against disclosure. This is therefore an ideal vehicle
for resolving a conflict between the circuit courts on
an important question of federal law.

36
CONCLUSION
For the foregoing reasons, this Court should grant
the petition for certiorari.
RESPECTFULLY SUBMITTED
NEIL S. SIEGEL
DUKE LAW SCHOOL
Box 90360
210 Science Dr.
Durham, NC 27708
(919) 613-7157

PAUL D. CLEMENT
Counsel of Record
BANCROFT PLLC
1919 M St. NW, Suite 470
Washington, DC 20036
pclement@bancroftpllc.com
(202) 234-0090

LANCE WEBER
HUMAN RIGHTS
DEFENSE CENTER
1037 Western Ave.
P.O. Box 2420
Brattleboro, VT 05303
(802) 579-1309

ZACHARY D. TRIPP
KING & SPALDING LLP
1700 Pennsylvania Ave. NW
Washington, DC 20006
(202) 737-0500

June 14, 2011

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES
Appendix A
Opinion of the court of appeals
(January 11, 2011) .......................................App-1
Appendix B
Order denying rehearing
(March 16, 2011) ........................................App-20
Appendix C
Opinion and Order of the district court
(September 16, 2009) .................................App-22
Appendix D
Prison Legal News’ FOIA request
(March 12, 2007) ........................................App-41
Response denying FOIA request
(May 15, 2007) ...........................................App-44
DOJ decision denying appeal
(November 19, 2007)..................................App-48
Appendix E
Declarations in Support of Prison
Legal News’s Motion for Summary
Judgment
Declaration of Henry Schuster,
Producer, 60 Minutes, CBS
(November 19, 2008) ............................App-50
Declaration of Alan Prendergast,
Staff Writer, Westword
(November 19, 2008) ............................App-56

Declaration of Paul Wright,
Editor, Prison Legal News
(November 20, 2008) ............................App-62
Supplemental Declaration of Paul
Wright, Editor, Prison Legal News
(November 20, 2008) ............................App-68
Appendix F
Statutory provisions ..................................App-70

App-1
Appendix A
United States Court of Appeals,
Tenth Circuit
________
NO. 09-1511
________
PRISON 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.
Jan. 11, 2011.
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

App-2
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

App-3
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, ordering the 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
1

As to the second portion of the video, the district court
further ordered images of the Sablans’ genitalia to be obscured.
On appeal, PLN does not challenge that aspect of the order.

App-4
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
2

PLN and EOUSA have differing interpretations of the
district court’s order. PLN views the district court’s order as not
requiring EOUSA to release the audio track accompanying the
second portion of the video and therefore appeals the denial of
the audio track. EOUSA interpreted the district court’s order to
require release of the audio accompanying the second portion of
the video. Because EOUSA has now released that portion of the
audio, we need not decide the issue.
3 In addition to the audio track accompanying the second
portion of the video, about which the parties dispute whether
the order required release, EOUSA also released audio from
the first portion that the parties agree was not required to be
released by the district court’s order as it went beyond the
statements of the BOP officials.

App-5
as the district court. Herrick v. Garvey, 298 F.3d
1184, 1190 (10th Cir. 2002). As part of this review,
this court has con ducted 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 or information compiled for law
4

The government does not rely on Exemption 6 in this
appeal. The balancing under Exemption 7(C) is more protective
of privacy interests than under Exemption 6, which applies to
personnel, medical, and similar records rather than law
enforcement records. Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 165–66, 124 S. Ct. 1570, 158 L.Ed.2d 319
(2004); see 5 U.S.C. § 552(b)(6), (b)(7)(C). Because there is no
dispute the records at issue here constitute law enforcement
records, and because Exemption 7(C) is broader than
Exemption 6, an Exemption 6 analysis is, in any event,
unnecessary.

App-6
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.

5

The government has not argued that either Estrella’s own
privacy interests or the Sablans’ privacy interests are
implicated.

App-7
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

App-8
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 images of 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 independent interests.
Estrella’s status as a prisoner only has the potential
to affect his own, and not his family’s, privacy
interests.
Estrella’s family did not waive their privacy
interests in the video and photographs as a result of
the government’s use of these materials at the
Sablans’ trials. The government cannot waive
individuals’ privacy interests under FOIA. See
Sherman v. U.S. Dep’t of Army, 244 F.3d 357, 364 &
n.12 (5th Cir. 2001) (holding the government’s prior
disclosure of requested information could not waive
individual’s privacy interests under Exemption 6
and collecting cases involving Exemption 7(C)). As
such, neither the government’s conduct in
introducing the records nor its failure to have them
admitted under seal is relevant to a waiver analysis.

App-9
The family’s failure to object at the time of trial
is also not sufficient to waive their own privacy
interests under FOIA. An individual can waive his
privacy interests under FOIA when he affirmatively
places information of a private nature into the
public realm. For example, when Ross Perot made
public statements concerning his offer to assist
government agencies with certain law enforcement
matters, he waived any privacy interest he had in
his name appearing on records concerning those
matters. Nation Magazine v. U.S. Customs Serv., 71
F.3d 885, 896 (D.C. Cir. 1995). In contrast, Estrella’s
family members did not take any affirmative actions
to place the images in the public domain.
That the video and photographs were, at the
time of the trials, displayed publicly, may impact
the family’s expectation of privacy in those
materials but does not negate it. In Reporters
Committee, the Supreme Court held that even
though criminal conviction information was publicly
available in individual court records, individuals
still maintained a privacy interest in compilations of
such information that would otherwise be difficult to
assemble. 489 U.S. at 762–63, 109 S. Ct. 1468. As
the Court explained, “the fact that an event is not
wholly private does not mean that an individual has
no interest in limiting disclosure or dissemination of
the information.” Id. at 770, 109 S. Ct. 1468
(quotations omitted). Reporters Committee thus
requires an examination whether, as a practical
matter, the extent of prior public disclosure has
eliminated any expectation in privacy.
Here, the images are no longer available to the
public; they were displayed only twice (once at each

App-10
Sablan trial); only those physically present in the
courtroom were able to view the images; and the
images were never reproduced for public
consumption beyond those trials. Although
descriptive information about what the images
contain may now be widely available, there is a
distinct privacy interest in the images themselves.
See N.Y. Times Co. v. NASA, 920 F.2d 1002, 1006
(D.C. Cir. 1990) (en banc) (recognizing the
possibility of family’s privacy interest in an
audiotape of Space Shuttle Challenger astronauts’
voices just prior to their death even when transcript
had already been publicly released), remanded to
782 F.Supp. 628 (D.D.C.1991) (concluding the
audiotape was exempt from disclosure on that
basis). A member of the public would have to go to
even greater lengths to see the images at issue in
this case than to access the individual criminal
records considered difficult to compile in Reporters
Committee. Because of the limited nature of the
prior public disclosure, we conclude Estrella’s family
retains a strong privacy interest in the images.
PLN’s suggestions that the government was
required to offer evidence of the family’s objection
and that the district court improperly made findings
regarding the particular harm the family would
suffer are incorrect. Exemption 7(C) covers records,
the release of which “could reasonably be expected”
to be an unwarranted invasion of privacy interests.
5 U.S.C. § 552(b)(7)(C). By its plain language, the
test is an objective one and does not depend on the
affected individuals’ statements of objection or their
personal views of the harm they might suffer.
Likewise, the district court’s observation that

App-11
release of the records “could impede the family’s
ability to mourn Mr. Estrella’s death in private and
achieve emotional closure” is a proper statement of
the general type of harm the Supreme Court
recognized as implicating a legitimate privacy
concern in Favish. See 541 U.S. at 168, 124 S. Ct.
1570.
The determination of a privacy interest in the
requested images does not end the Exemption 7(C)
inquiry. The privacy interest at stake must be
weighed against the public interest in disclosure.
Only
if
disclosure
would
constitute
an
“unwarranted” invasion of personal privacy can the
records properly be withheld under Exemption 7(C).
See Reporters Comm., 489 U.S. at 771, 109 S. Ct.
1468. The Supreme Court has defined the relevant
public interest narrowly, and we therefore consider
only the public’s interest in obtaining information
likely to contribute to its understanding of an
agency’s performance of its duties. Id. at 773, 109
S. Ct. 1468.
Here, PLN argues the first portion of the video
and the autopsy photographs will aid the public’s
understanding of agency activities in two ways.
First, it contends the records will shed light on the
BOP’s performance of its duty to protect prisoners
from violence perpetrated by other prisoners,
including its obligations to provide adequate
conditions of confinement and to prevent prisoners
from falling under the influence of alcohol and other
prohibited substances. Second, it argues that if the
records are released, the public will better
understand the prosecutor’s decision to seek the

App-12
death penalty against the Sablans, a decision
significantly increasing the cost of prosecution.
While the BOP’s protection of prisoners and the
government’s discretionary use of taxpayer money
may be matters of public interest, there is nothing
to suggest the records would add anything new to
the public understanding. See Forest Guardians v.
FEMA, 410 F.3d 1214, 1219 (10th Cir. 2005)
(concluding release of requested records would not
add to the public’s knowledge about the agency’s
performance because the information was already
available). The video does not begin until Estrella
has already been murdered and therefore does not
depict any BOP conduct prior to Estrella’s death.
The second portion of the video depicting BOP
personnel interacting with the Sablans to extract
them from the cell has now been released in full. All
statements made by BOP personnel in the first
portion of the video have also been released in an
audio file. At oral argument, the parties indicated
that the length of time between the beginning of the
video and the time BOP personnel extracted the
Sablans from the cell is publicly known. Thus, all
aspects of the video documenting BOP’s response to
the situation have been fully disclosed.
PLN’s argument that the video may shed light on
the conditions of confinement also rings hollow, as
the size of the cell and conditions therein are public
knowledge because they were discussed in detail at
trial and reported in the press. The Sablans’ state of
intoxication, about which PLN also argues there is a
public interest, has likewise been discussed in the
media. To the extent their behavior in the video can
add anything to the understanding of the Sablans’

App-13
state of intoxication, that behavior can be observed
in the second portion of the video, now released.
The same problem plagues PLN’s argument that
the public would benefit in understanding the
prosecutor’s decision to seek the death penalty in
the Sablans’ trials. All of the information PLN
claims would shed light on the issue, including the
heinous nature of the mutilation of Estrella’s corpse,
is already publicly known. The images at issue were
viewed by members of the media at the Sablan
trials, and the media widely reported on the
contents of the video and photographs.
PLN argues that news media reporting on the
video and photographs is not the same as the ability
of the media to provide the video and photographic
images to the public. Nonetheless, to the extent any
additional information can be gained by release of
the actual images for replication and public
dissemination, the public’s interest in that
incremental addition of information over what is
already known is outweighed by the Estrella
family’s strong privacy interests in this case. Thus,
any additional disclosure would be an unwarranted
invasion of the family’s personal privacy.
D. Redacted Audio
EOUSA also withheld from PLN certain
segments of the audio track accompanying the first
portion of the video. Those segments amount to four
statements made by the Sablans. PLN argues no
portion of the audio track is exempt and the district
court erred in ordering EOUSA to release only the
portions of the audio containing statements made by
BOP officials.

App-14
The district court, stating that access to records
under FOIA was limited to records that shed light
on governmental activity, concluded that only the
statements of government officials fell within the
ambit of FOIA’s disclosure requirement. FOIA’s
disclosure requirement, however, has no such
limitation. Rather, under FOIA, agencies are
required to release any requested agency records
unless they fall within one of the exemptions. U.S.
Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 150–
51, 109 S. Ct. 2841, 106 L.Ed.2d 112 (1989). The
district court thus incorrectly permitted EOUSA to
withhold portions of the audio without deciding
whether those portions were exempt from
disclosure.
This court may nonetheless affirm on any ground
that is supported in the record and raised on appeal.
Pullman v. Chorney, 712 F.2d 447, 449 (10th Cir.
1983). As the government represented at oral
argument and verified by in camera examination,
the redacted statements of the Sablans pertain to
what they were doing to Estrella’s body. The
government made clear at oral argument that these
statements were also withheld under Exemption
7(C) on the same grounds as the images discussed
above.
For the same reasons that Estrella’s family has
an interest in not being subjected to the public
display of gruesome images of their deceased
relative, they also have a privacy interest in the
voices of the perpetrators themselves describing the
heinous acts in progress. Like the images, these
audio recordings add little or nothing to the large
amount of public knowledge about the crimes and

App-15
the government’s response to them. The Sablans’
voices describing their actions are part and parcel of
the images of corpse mutilation. Because the same
considerations apply to these audio records as to the
images, the statements were properly withheld
under Exemption 7(C).
E. The Public Domain Doctrine
PLN urges us to hold that, under the public
domain doctrine, even if the records here are exempt
they must nonetheless be released because they
were previously introduced at the Sablans’ trials.
The public domain doctrine, a doctrine applied by
the D.C. Circuit, comes into play once a court has
concluded that a record falls within an exemption to
disclosure under FOIA. It allows a court, in certain
circumstances, to disregard that otherwise
applicable exemption based on a prior public release
of the requested materials. See Cottone v. Reno, 193
F.3d 550, 554 (D.C. Cir. 1999).
PLN relies primarily on Cottone v. Reno for its
argument that the public domain doctrine overrides
the application of any FOIA exemption when
records are introduced as unsealed exhibits at a
public trial. 6 193 F.3d at 550. In Cottone, the D.C.
6

Many of the other cases on which PLN relies for its
argument that the public domain doctrine should apply here,
including decisions of this court, are inapposite. Rather than
concluding records are exempt but under the public domain
doctrine must be released anyway, those cases recognize that in
some circumstances the public availability of information
renders the exemption inapplicable at the outset. See, e.g.,
Trentadue v. Integrity Comm., 501 F.3d 1215, 1236 (10th Cir.
2007) (concluding there was no privacy interest in certain
readily available information and the records therefore did not

App-16
Circuit held that “materials normally immunized
from disclosure under FOIA lose their protective
cloak once disclosed and preserved in a permanent
public record.” Id. at 554. The justification for the
D.C. Circuit’s rule under FOIA’s statutory
framework, however, is critical to understanding
when the doctrine applies. The D.C. Circuit
explained that “the logic of FOIA mandates that
where information requested is truly public, then
enforcement of an exemption cannot fulfill its
purposes.” Id. (internal quotation and citation
omitted).
In Cottone, the requester sought tape recordings
of wiretapped conversations that had been
introduced at a public trial. Id. at 552–53.
Recordings obtained by wiretap may be withheld
under FOIA Exemption 3, which protects records
that must be withheld under another statutory
provision—in Cottone, the Omnibus Crime Control
and Safe Streets Act of 1968. Id. at 554. Once the
tapes in Cottone were played at a public trial, the
purpose of the Exemption 3 statute could no longer
be fulfilled because the government had already
revealed the intercepted information. See id. at 555.
Importantly, there was no argument in Cottone that
any additional interest attached to the tape

fall within Exemption 7(C)); Herrick v. Garvey, 298 F.3d 1184,
1193–94 (10th Cir. 2002) (holding records did not qualify as
exempt confidential commercial information under Exemption
4 because the information was not actually confidential);
Anderson v. Dep’t of Health & Human Servs., 907 F.2d 936, 952
(10th Cir. 1990) (same as Herrick). Thus, these cases do not
provide support for PLN’s position.

App-17
recordings, which had already been disclosed and
thus easily disseminated further.
By contrast, the purpose of Exemption 7(C) in
this case remains intact despite the government’s
use of the records at a public trial. The nature of the
family’s strong privacy interest in the photographs,
video, and accompanying audio is distinct from
information about what those images and recordings
contain. The Sablans’ conduct is already publicly
known and written descriptions have been widely
republished. Enforcement of Exemption 7(C) here
would not protect any privacy interest that might
exist merely in a description of the conduct. As
discussed above, however, the actual images have
been viewed by a limited number of individuals who
were present in the courtroom at the time of the
trials. Thus, enforcement of Exemption 7(C) can still
protect the privacy interests of the family with
respect to the images and recordings because they
have not been disseminated. Aside from Cottone,
every case cited by PLN in support of its reading of
the public domain doctrine declines to apply the
doctrine because of a failure of the plaintiff to
demonstrate with specificity the information that is
in the public domain. See, e.g., Davis v. U.S. Dep’t of
Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992).
The public domain doctrine is limited and applies
only when the applicable exemption can no longer
serve its purpose. Given that the public domain
doctrine appears nowhere in the statutory text of
FOIA, only the failure of an express exemption to
provide any protection of the interests involved
could justify its application. Even if this court
adopted the public domain doctrine, it would not

App-18
defeat Exemption 7(C)’s applicability in this matter
because the purposes of Exemption 7(C) can still be
served.
Finally, we reject PLN’s suggestion that
admission of certain records at trial is different from
other types of public disclosures under FOIA.
Without doubt, the public has some common law
rights to court records and such rights protect
important interests in public adjudications. See
United States v. McVeigh, 119 F.3d 806, 811–12
(10th Cir. 1997); see also Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 55
L.Ed.2d 570 (1978). Nonetheless, we have no
occasion to decide whether the autopsy photographs
and death-scene video were properly removed from
the public record or whether those records should
have been available for public copying. 7 The claim
presented here is a claim brought under FOIA and,
for the purposes of FOIA, the only relevant fact
about the trial is the extent of disclosure. 8
IV.Conclusion
For the foregoing reasons, this court DISMISSES
AS MOOT the portion of PLN’s appeal that pertains
to records already released and AFFIRMS the

7

The same is true for PLN’s claim, if such a claim can be
made, under the First Amendment. See United States v.
Gonzales, 150 F.3d 1246, 1256 (10th Cir. 1998).
8 We likewise decline PLN’s invitation to examine the
various United States Attorneys’ Offices’ policies on the public
release of videos it uses at trial. To the extent PLN feels the
policy is inconsistently applied, it is a matter to be taken up
with the executive branch or with Congress.

App-19
judgment of the district court in all other respects. 9
EOUSA’s motion to strike the amicus brief filed by
media organizations is DENIED.

9

EOUSA’s motion to file the requested records under seal,
having been previously provisionally granted, is now
permanently GRANTED, but only to the extent of the
unredacted full-length video, the unredacted audio track
accompanying the videotape, the autopsy photographs, and the
unredacted transcript of the audio track. All other materials
are to be maintained on the public docket. This court orders
that EOUSA confer with the clerk of this court to arrange for
the permanent sealing of only the designated records and that
PLN then confirm with the clerk that the proper records are
unsealed.

App-20
Appendix B
United States Court of Appeals,
Tenth Circuit
________
NO. 09-1511
________
PRISON LEGAL NEWS,
Plaintiff–Appellant,
V.
EXECUTIVE OFFICE FOR UNITED STATES
ATTORNEYS,
Defendant–Appellee.
60 Minutes, et al., Amici Curiae.
Filed: March 16, 2011
________
ORDER
________
Before MURPHY, McKAY, and TYMKOVICH,
Circuit Judges.
Appellant’s petition for rehearing is denied.
The petition for rehearing en banc was
transmitted to all of the judges of the court who are
in regular active service. As no member of the panel
and no judge in regular active service on the court
requested that the court be polled, that petition is
also denied.

App-21
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk

App-22
Appendix C
United States District Court,
District of Colorado
________
CIVIL ACTION NO. 08-CV-01055-MSK-KLM
________
PRISON LEGAL NEWS,
V.

Plaintiff,

EXECUTIVE OFFICE FOR UNITED STATES
ATTORNEYS,
Defendant.
Filed: September 16, 2009
_________________________________________________________________________

OPINION AND ORDER DIRECTING RELEASE OF SOME
REQUESTED INFORMATION AND DENYING
RELEASE OF OTHER INFORMATION
Honorable Marcia S. Krieger
THIS MATTER comes before the Court pursuant
to (1) Defendant Executive Office for United States
Attorneys’ (the “Executive Office”) Motion for
Summary Judgment (#18) and supporting brief
(#19), to which Plaintiff Prison Legal News
responded (#22) and (2) Prison Legal News's Motion
for Summary Judgment (#20), to which Executive
Office responded (#21), and Prison Legal News later
supplemented with a Supplemental Declaration

App-23
(#25). Having considered the same and other
pertinent portions of the record, the Court
FINDS and CONCLUDES that
I.

Jurisdiction

The Court has subject
pursuant to 28 U.S.C. § 1331.

matter

jurisdiction

II. Issue Presented
In this action, Prison Legal News seeks
disclosure under the Freedom of Information Act
(“FOIA”) 1 of certain video and photographic records
that were used in the prosecution of a federal death
penalty case. The Executive Office maintains that
the records are not subject to disclosure because they
fall within two enumerated exemptions in FOIA.
Therefore, the sole issue presented in this case is
whether, as a matter of law, the records requested
are properly withheld under an enumerated
exemption in FOIA. 2
III. Material Facts
On October 10, 1999, William Sablan and Rudy
Sablan murdered Joey Jesus Estrella in their shared
prison cell at the United States Penitentiary in
Florence, Colorado (“USP-Florence”). The Bureau of
Prisons (“BOP”) videotaped William and Rudy
Sablan’s actions after the murder, which tape
1

Particularly, 5 U.S.C. § 552(a)(4)(B).
Although the parties have submitted cross motions for
summary judgment, the only issue presented to the Court is for
a legal determination on the application of FOIA exemptions.
No material facts are in dispute. Therefore, the Court construes
the cross motions for summary judgment as motions for
determination of legal issues on undisputed facts.
2

App-24
displays William Sablan’s mutilation and handling
of Mr. Estrella’s body and internal organs and his
purported drinking of Mr. Estrella’s blood.
Inevitably, the video also shows the numerous
physical injuries that were inflicted on Mr. Estrella.
The video also depicts the BOP’s removal of William
and Rudy Sablan from the cell, their initial physical
exams, and their placement in four-point restraints
in separate cells.
In separate trials, the government prosecuted
William and Rudy Sablan for Mr. Estrella’s murder.
See 00-cr-00531-WYD-1 (William Sablan); 00-cr00531-WYD-2 (Rudy Sablan). During the trials, the
video and autopsy photographs were introduced as
evidence and played for the courtroom audience.
After the trials, all exhibits were returned to the
parties pursuant to court policy and order by Judge
Wiley Y. Daniel. The United States Attorney’s Office
for the District of Colorado is currently in possession
of the records at issue—the video and autopsy
photographs.
On March 12, 2007, Prison Legal News sent a
FOIA request to the U .S. Attorney’s Office seeking
disclosure of the video and the “still photographs of
the body of” Mr. Estrella 3 that were used in the
trials. The Executive Office denied the request in full
on May 15, 2007. Prison Legal News’s
administrative appeal was denied on November 19,
2007. This lawsuit followed.

3

The parties appear to be in agreement that this request
was in reference to the autopsy photographs.

App-25
IV. Analysis
FOIA provides for public access to government
agency records. See 5 U.S.C. § 552. Access, however,
is permitted only with respect to information that
sheds light on the government’s performance of its
duties. Forest Guardians v. U.S. Fed. Emergency
Mgmt. Agency, 410 F.3d 1214, 1217 (10th Cir. 2005).
There is a strong presumption for disclosure under
FOIA and the statute’s provisions are broadly
construed to effectuate this goal. Trentadue v.
Integrity Comm., 501 F.3d 1215, 1226 (10th Cir.
2007). Nevertheless, FOIA includes nine exemptions
which permit government agencies to withhold
requested records. See 5 U.S.C. § 552(b). These
exemptions are construed narrowly; the federal
agency resisting disclosure bears the burden of
justifying the application of an exemption. See
Trentadue, 501 F.3d at 1226. In addition, to keep
with the purpose of facilitating disclosure, FOIA
requires governmental agencies to delete or redact
any “reasonably segregable portion” that falls within
an exemption and disclose the remainder of the
record. See 5 U.S.C. § 552(b). Whether, and to what
degree, a particular record is covered by an
exemption is a question of law. See Trentadue, 501
F.3d at 1226. When an agency withholds documents
under an exemption, the district courts have
jurisdiction to review the application of the
exemption de novo. See 5 U.S.C. § 552(a)(4)(B).
The exemptions asserted by the Executive Office
in this case are Exemption 6 and Exemption 7(C),
which excuse disclosure of:

App-26
(6) personnel and medical files and similar
files the disclosure of which would constitute a
clearly unwarranted invasion of personal
privacy [(“Exemption 6”)];
(7) records or information complied for law
enforcement purposes, but only to the extent
that the production of such law enforcement
records or information ... (C) could reasonably
be expected to constitute an unwarranted
invasion of personal privacy [(“Exemption
7(C”)].
Under Exemption 6, the term “similar files” is
construed broadly and generally incorporates all
information that applies to a particular individual.
Trentadue, 501 F.3d at 1232 (citing U.S. Dep’t of
State v. Wash. Post Co., 456 U.S. 595, 602, 102 S. Ct.
1957, 72 L.Ed.2d 358 (1982)). The privacy interest
protected by Exemption 6 is an “individual’s control
of information concerning his or her person.” U.S.
Dep’t of Defense v. Fed. Labor Relations Auth., 510
U.S. 487, 500, 114 S. Ct. 1006, 127 L.Ed.2d 325
(1994) (hereinafter “FLRA ”).
Although similar to Exemption 6, Exemption 7(C)
provides greater protection for privacy interests.
U.S. Dep’t of Justice v. Reporters Comm. for Freedom
of the Press, 489 U.S. 749, 756, 109 S. Ct. 1468, 103
L.Ed.2d 774 (1989). The statutory language
demonstrates this disparity in breadth. Exemption 6
covers disclosures that “would constitute” a “clearly
unwarranted” invasion of privacy, whereas
Exemption 7(C) extends to disclosures that “could

App-27
reasonably be expected” to constitute
“unwarranted” invasion of privacy. 4

an

To determine whether and to what degree either
exemption authorizes the government to withhold
disclosure, a court must balance the public interest
in disclosure with the private interest at stake. See
id. at 776. The public interest in disclosure is that
which contributes to the public’s understanding of
government actions or operations. See FLRA, 510
U.S. at 495 (quoting id. at 775). When privacy
interests are at stake, the requesting party must
demonstrate a sufficient reason for disclosure by
showing that (i) the public interest sought to be
advanced is a significant interest and (ii) disclosure
would likely advance the articulated public interest.
See Nat’l Archives & Records Admin. v. Favish, 541
U.S. 157, 172, 124 S. Ct. 1570, 158 L.Ed.2d 319
(2003). If the public interest asserted is to show
negligence or improper action by government
officials, more than conclusory allegations of
government misconduct is required. See id. at 174.
The requesting party is required to make a
meaningful evidentiary showing of the misconduct
such that a reasonable person would believe that the
alleged misconduct occurred.
The Supreme Court has recognized that with
regard to “death scene images” the personal privacy
rights under FOIA include those of the family of the
deceased. Id. at 170. Death scene images include
those records that reflect a death, the scene of a
4

These two differences in the statutory language were the
products of specific amendments to the statute. Reporters
Comm., 489 U.S. at 756.

App-28
death, or pertain to graphic details surrounding a
death. For example, death scene images in which
families of the deceased have a privacy interest have
included suicide scenes, the deceased’s last words
(Challenger explosion), JFK’s autopsy photographs,
and MLK’s assassination. In recognizing the privacy
interest of family members in such records, the
Supreme Court examined cultural traditions and
common law which respect a family’s right to control
the disposition of the body of a loved one as well as
posthumous photographs of the deceased. Cultural
norms and common law traditions recognize a
family’s need to honor and mourn their loved one
without interference from the public. Indeed, the
Supreme Court reasoned that “personal privacy”
must include a family’s privacy rights, otherwise
perpetrators of crimes could use FOIA to obtain and
publish the death scene images of their victims, an
untenable result.
However, one circuit has held that the
government’s reliance on an otherwise applicable
exemption may be precluded if the information
sought was admitted as evidence in a criminal trial.
See Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir.
1999).
A. Autopsy Photographs
Prison Legal News seeks disclosure of the
autopsy photographs of Mr. Estrella’s body. The
Executive Office claims that the photographs have
been properly withheld under either Exemption 6 or
Exemption 7(C). As Exemption 7(C) is broader than
Exemption 6, the Court will begin its analysis with
Exemption 7(C).

App-29
As a threshold matter, there is no disagreement
between the parties that the autopsy photographs
were compiled for law enforcement purposes as
required by Exemption 7(C). On one side of the
balancing test, the public interest in disclosure of the
autopsy photographs is limited. Prison Legal News
articulates the public interests as: (i) allowing the
public to be fully informed about the circumstances
of Mr. Estrella’s murder; and (ii) allowing the public
to scrutinize the circumstances under which the
government pursued the death penalty.
With respect to the first articulated interest, the
Court observes that the espoused public interest
does not necessarily concern a governmental
activity. The circumstances of a murder, even one
that occurs in a federal penitentiary, do not alone
infer a governmental activity. In this case, there is
nothing that directly links the circumstances of Mr.
Estrella’s murder to a governmental activity. Prison
Legal News offers nothing more than vague
suggestions that perhaps a governmental employee,
practice, or policy had something to do with the
murder. It suggests that the BOP did not provide
suitable living quarters for the three inmates or was
negligent in protecting Mr. Estrella from his
cellmates. Such suggestions are insufficient to
demonstrate a governmental activity that warrants
disclosure of government information. How the BOP
responded to Mr. Estrella’s murder is arguably a
governmental activity, but that takes the Court to
the second justification.
The government’s request for imposition of the
death penalty is clearly a governmental activity.
However, Prison Legal News does not tie the autopsy

App-30
photographs to this decision. There is no showing
that some aspect of the photographs caused,
influenced,
or
particularly
impacted
the
government’s decision to seek the death penalty. The
photographs depict the nature of Mr. Estrella’s
injuries, but they do not reveal the factors that the
government considered in determining that the
death penalty was a proper punishment. Therefore,
disclosure would at most provide a glimpse into the
government’s decision to seek the death penalty.
Assuming, without determining, that the autopsy
photographs did have some relationship to the
government’s decision to seek the death penalty, it is
also important to note that the jury in each criminal
case rejected the government’s request. Had the
death penalty been imposed against either William
or Rudy Sablan, the public’s interest in
understanding why it was requested and upon what
evidence the jury based its determination could be
quite significant. Here, however, the public’s interest
is diminished because the death penalty was not
imposed. Under these circumstances a showing of
the importance of the public interest and how it ties
to the autopsy photographs must be more nuanced
and specific. In the absence of such a showing, the
Court finds that the public interest in the autopsy
photographs to be small.
On the other side of the balancing analysis is the
family’s privacy interest. In this case, it is
significant. 5 Mr. Estrella’s sister and aunt are close
5

The Court finds Prison Legal News’s suggestion that Mr.
Estrella’s family has no privacy interest in the autopsy
photographs because they did not submit affidavits asserting

App-31
relatives that hold a privacy right in the
photographs of his autopsy. The autopsy
photographs show, in detail, the exceptionally
heinous nature of Mr. Estrella’s injuries. Given the
graphic nature of the photographs, public
dissemination of these images could impede the
family’s ability to mourn Mr. Estrella’s death in
private and achieve emotional closure.
Balancing the family’s strong privacy interest
against the public’s interest in disclosure to evaluate
the government’s choice to pursue the death penalty,
the Court concludes that the disclosure could
reasonably result in an unwarranted invasion of
privacy. Therefore, the Court finds that Exemption
7(C) applies to the autopsy photographs. 6
B. Video
Prison Legal News also seeks disclosure of the
video depicting the treatment of Mr. Estrella’s body
following his murder. The Executive Office again
asserts that both Exemption 6 and Exemption 7(C)

this right unpersuasive. Exemption 7(C) does not require an
assertion of the right to privacy, but protects against disclosure
that could “reasonably be expected to constitute an
unwarranted invasion of personal privacy.” The Court also
concludes that Mr. Estrella’s family did not waive its privacy
rights by not objecting to the government’s use of the video and
autopsy photographs in the trials. It was the government’s, not
the family’s, decision to use the materials at trial and,
therefore, such use did not waive the family’s privacy interests.
See Sherman v. U.S. Dep’t of the Army, 244 F.3d 357, 364 (5th
Cir. 2001).
6 Because Exemption 7(C) applies, analysis of Exemption 6
is not necessary.

App-32
justify its withholding of the video. The Court begins
with an analysis of Exemption 7(C).
Again, there is no disagreement between the
parties that the video was created for law
enforcement purposes as required by Exemption
7(C). After in camera review of the video, the Court
finds that the video can be divided into two distinct,
segregable portions: (i) William and Rudy Sablan’s
actions within the prison cell (“Section One”) and (ii)
the BOP’s treatment of William and Rudy Sablan
during and after their removal from the cell
(“Section Two”). 7 Mr. Estrella’s body and injuries are
clearly visible in Section One; they are completely
omitted in Section Two.
As
to
Section
Two,
the
analysis
is
straightforward. Section Two falls within the scope
of FOIA because it depicts the government’s
operations with respect to dealing with William and
Rudy Sablan following the murder. In addition,
there is no family privacy interest at issue because
these are not death scene images. There are,
however, portions in Section Two that depict William
or Rudy Sablan’s genitalia. As to these portions, the
Sablans have a privacy interest. See Poe v. Leonard,
282 F.3d 123, 138-39 (2d Cir. 2001). In the absence
of any apparent public interest relative to views of
the Sablans’ genitalia, the Court concludes that
disclosure of the video without obscuring their
7

Section One runs from the beginning of the video up
through time-code 15:52 of the entire video. Section Two runs
from time-code 15:52 through the end of the video. Time-code
15:52 occurs at approximately 3:52:07 a.m. as identified in the
video.

App-33
genitalia could reasonably be expected to constitute
an unwarranted invasion of their personal privacy.
Therefore, with the exception of the portions of
Section Two depicting the genitalia of William and
Rudy Sablan, 8 the Court concludes that no
exemption excuses the release of Section Two.
With respect to Section One, the Court’s analysis
is similar to that applied with regard to the autopsy
photographs. Prison Legal News argues that
disclosure would allow the public to scrutinize the
BOP’s operations at USP-Florence, the size of the
prison cell, the alleged intoxication of William and
Rudy Sablan, the lack of a timely response by the
BOP, the sharp weapon used in mutilating Mr.
Estrella’s body, and the government’s decision to
pursue the death penalty. Of these articulated public
interests, only the size of the cell, the timeliness of
the response of BOP officials, and the government’s
decision to seek the death penalty relate to
governmental activity. Although at least some of
these are arguably significant interests that would
be advanced by release of the video, others are not so
clear. For example, the size of the cell is not unique
to the video, and the response time is not apparent
from the video, alone, because it does not reveal
when BOP authorities became aware of the activities
in the cell. As to these aspects, Prison Legal News
offers little justification for disclosure—merely an
insinuation of governmental action/inaction. As to
the treatment of Mr. Estrella’s body, as noted
8

The portions of Section Two that depict William or Rudy
Sablan’s genitalia should be electronically or otherwise
obscured to preserve their privacy interests.

App-34
earlier, the jury’s rejection of the government’s
request for imposition of the death penalty reduces
public interest in the decision. In addition, the
horrendous manner in which the murder occurred
which creates a public interest also is the
characteristic that most greatly impacts the privacy
interest of Mr. Estrella’s family.
Mr. Estrella’s family has a strong privacy interest
similar to that which they have in the autopsy
photographs. The video includes graphic images of
Mr. Estrella’s body and injuries, which, in many
ways, are more graphic than the autopsy
photographs because the video was taken at the
scene with the perpetrators present and continuing
to act and comment. Indeed, the video depicts
William Sablan’s brutal treatment of Mr. Estrella’s
body following the murder. As noted earlier, public
display or dissemination of these images would
likely interfere with the family’s ability to mourn
Mr. Estrella’s death and achieve emotional closure.
The Court concludes that upon balancing the
factors, the asserted public interests do not outweigh
the family’s privacy interest. Therefore, with respect
to Section One, the Court concludes that Exemption
7(C) is applicable. 9
Although
neither
party
has
addressed
segregation of the audio track from the video track,
the Court addresses this issue as part of its de novo
review. After close in camera review, the Court finds
that the only audio portion evidencing governmental
activity is that accompanying Section One. As to this
9

Therefore, analysis of Exemption 6 is not necessary.

App-35
section, it is the statements of BOP officials that
reflect governmental action; the statements by
William and Rudy Sablan fail to shed light on the
government’s activities. Because Mr. Estrella’s
family has no privacy interest in statements by BOP
officials, the statements are not subject to either
Exemption 6 or 7(C). Accordingly, the statements of
BOP officials in Section One are subject to disclosure
under FOIA.
C. Public Domain
Notwithstanding any exemption, Prison Legal
News argues that the video and autopsy
photographs entered the public domain when they
were admitted as evidence at the Sablan trials.
Because they entered the “public domain”, Prison
Legal News contends that no exemption applies.
Prison Legal News bases this argument upon the
opinion of the D.C. Circuit in Cottone v. Reno, 193
F.3d 550, 554 (D.C. Cir. 1999). Due to
distinguishable facts, the Court finds the reasoning
in Cottone unpersuasive.
As in this case, in Cottone, evidence presented in
a criminal trial was later sought through a FOIA
request. Mr. Cottone was convicted, then requested
copies of documents and tape recordings that
mentioned his name, including wiretap tapes used at
his trial. The government disclosed many documents
and two tape recordings, which it heavily redacted.
The government claimed Exemption 3 10 excused
10

Exemption 3 excuses disclosure for matters that are:
specifically exempted from disclosure by statute (other
than section 552b of this title), provided that such
statute (A) requires that the matters be withheld from

App-36
disclosure of certain wiretap tape recordings because
Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 (“Title III”) required secrecy of
intercepted material. Mr. Cottone argued that the
government had waived Exemption 3 by playing the
tape recordings at his trial. He characterized the
presentation of the evidence at trial as it having
been placed in the “public domain”.
The D.C. Circuit observed that Exemption 3 and
Title III would ordinarily excuse the disclosure of the
wiretapped recordings under FOIA. The D.C. Circuit
referred to the wiretap evidence as having entered
the “public domain”, but it essentially reasoned that
when the government made the information public
by presenting it at trial, there was no purpose for
maintaining its secrecy. Essentially, the government
had waived its right to assert a secrecy interest or
obligation under Exemption 3.
Cottone is limited by its facts and its reasoning.
First, and most importantly, Cottone concerns only
Exemption 3, which addresses governmental
obligations to maintain confidentiality of certain
information. Exemption 3 does not address
individual privacy rights. The court in Cottone dealt
with two competing public interests—the public
interest in disclosure and the public interest in
maintaining the secrecy of certain governmental
information. It did not address a balancing between
the public in such a manner as to leave no discretion on
the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to
be withheld[.]
5 U.S.C. § 552(b)(3).

App-37
a public interest in disclosure and individual privacy
rights such as those of family members in materials
that reflect the death of their beloved. Second,
implicit in Cottone is an underlying notion that the
government could waive its right or extinguish its
obligation to keep information secret through its
prosecutorial actions. The court did not address, nor
did it need to address, whether the government in its
prosecutorial capacity can waive or extinguish
privacy rights of individuals. As to this issue, Prison
Legal News has not cited and the Court is not aware
of any court that has determined that the public
domain doctrine as applied in Cottone trumps
personal privacy interests under FOIA. Indeed, the
Fifth Circuit has declined to extend the Cottone
reasoning in this way. See Sherman v. U.S. Dep’t of
the Army, 244 F.3d 357, 364 n. 13 (5th Cir. 2001).
With these limitations, Cottone offers little
guidance to this Court. It simply does not stand for
the proposition asserted by Prison Legal News that
once evidence is presented at trial, that it has
entered the public domain and therefore all privacy
interests
under
FOIA
are
extinguished.
Undoubtedly, there could be circumstances where
information is so public that it might negate a
personal privacy exemption under FOIA. 11 One could
imagine, for example, death scene material that has
become so widespread in the media or on the
internet that maintaining the privacy interest of a
deceased’s family is impractical. One could also
imagine that a person with a privacy interest could
waive such interest by voluntarily disclosing death
11

Or it could eliminate the need for a FOIA request.

App-38
scene material to the media or voluntarily testifying
with regard to it during a trial or another legal
proceeding.
There has been no showing in this case, however,
of such circumstances. It does not appear that the
autopsy photographs or the video entered the public
domain except as part of the Sablan trials and trial
record. With regard to that record, the government
may have waived it’s right to assert an interest in
confidentiality of the information, but one cannot
assume that it waived the individual privacy rights
of Mr. Estrella’s family. Ordinarily, family members
of a murder victim do not decide whether a trial
occurs nor control the selection of the evidence to be
admitted. Therefore, the presentation of evidence in
which they have a privacy right at a criminal trial
would not automatically constitute a waiver of their
rights. Indeed, no showing of any waiver by Mr.
Estrella’s family has been made.
Even assuming that some waiver had been
shown, this Court would nevertheless be cautious in
concluding that presentation of evidence in a
criminal trial would automatically vitiate individual
privacy rights under a FOIA exemption. In Reporters
Comm., 489 U.S. at 763-70, the Supreme Court
recognized that privacy interests are not necessarily
extinguished by previous limited public disclosure.
Reporters Comm. addressed disclosure of an
individual’s
“rap
sheet”—the
government’s
comprehensive compilation of public criminal records
on a particular individual. The Supreme Court
reasoned that because the passage of time and/or the
limited circumstances of the earlier disclosure could
result in the information being forgotten, it was

App-39
possible for an individual to maintain a privacy
interest in the information regardless of the previous
disclosure.
Therefore,
the
Supreme
Court
categorically concluded that further disclosure of the
rap sheets could reasonably be expected to invade
the individual’s privacy, notwithstanding that the
information was otherwise publicly available.
Here, the scope of the public exposure associated
with a criminal trial is vastly different from the
public exposure that can result from the release of
the same information pursuant to FOIA. A trial is of
limited duration, and once completed, the evidence
presented becomes part of the trial record. This
record may never have public exposure, and even
under the worst of circumstances—a reversal of a
conviction and subsequent retrial—the death scene
evidence would have public exposure only for a
limited time and a limited purpose. In contrast, the
release of death scene material through FOIA is
absolute, unrestrained, and perpetual. Once
released, the information can be publically
displayed, by multiple persons, in multiple venues,
and on multiple occasions. A decedent’s family would
have no expectation that the exposure would
necessarily end.
For these reasons, the Court concludes that use of
the autopsy records and video at the Sablan trials
does not negate the application of Exemption 7(C).
IT IS THEREFORE ORDERED that:
(1) Defendant Executive Office for United States
Attorneys’ Motion for Summary Judgment
(#18) is GRANTED IN PART AND DENIED
IN PART.

App-40
(2) Prison Legal News’s Motion for Summary
Judgment (#20) IS GRANTED IN PART AND
DENIED IN PART.
(3) Defendant Executive Office shall disclose to
Plaintiff Prison Legal News only (i) the
portion of the video that does not depict Mr.
Estrella’s body (Section Two—all portions
after time-code 15:52) except it shall
electronically or otherwise obscure the video
portion showing William Sablan or Rudy
Sablan’s genitalia and (ii) the audio of BOP
officials in the remaining portion of the video
(Section One—all portions prior to time-code
15:52).
(4) This Order having resolved all issues in this
case, the Clerk of the Court is directed to
close the case.
Dated this 16th day of September, 2009
BY THE COURT:
Marcia S. Krieger
United States District Judge

App-41
Appendix D
EXHIBIT A-2
PRISON LEGAL NEWS
Dedicated to Protecting Human Rights
2400 NW 80th Street #148, Seattle WA 98117
206-246-1022 fax 206-505-9449
_________________________________________________________________________

www.prisonlegalnews.org
pwright@prisonlegalnews.org
Reply to Vermont Office:
Prison Legal News
972 Putney Road, PMB 251
Brattleboro, VT 05301
802-257-1342
March 12, 2007
Kurt J. Bohn
U.S. Attorney’s Office
1225 Seventeenth Street #700
Denver, CO 80202
RE: Freedom of Information Act Request for
video/photos related to the Oct. 10, 1999
death of Joey Jesus Estralla and
subsequent cell extraction of William
and Rudy Sablan
Dear Mr. Bohn:
On behalf of Prison Legal News, a monthly
publication that reports on prison, jail and
corrections-related issues, I am making a formal

App-42
request under the Freedom of Information Act (5
U.S.C. § 552, et seq.) for the following public records:
The complete videotape and/or the DVD
created therefrom taken by USP Florence staff
related to the October 10, 1999 death of Joey
Jesus Estrella at USP Florence, listed as
Exhibit No. 20 on an Exhibit List dated Jan.
22, 2007 that was filed by the U.S. Attorney’s
Office in USA v. Sablan, U.S. District Court
for Colorado, Case No. 1:00-cr-00531-WYD.
We are further requesting still photographs of
the body of Joey Jesus Estrella, listed as
Exhibits 168 through 177D, inclusive, on an
Exhibit List dated Jan. 22, 2007 that was filed
by the U.S. Attorney’s Office in USA v.
Sablan, U.S. District Court for Colorado, Case
No. 1:00-cr-00531-WYD.
If this public record request involves any charges,
please advise me prior to said charges being
incurred, for authorization. Please note that Prison
Legal News, as a news media agency, is hereby
requesting a waiver of all charges for producing the
requested records. The district court, in Prison
Legal News v. Lappin, 436 F. Supp. 2d 17 (D.D.C.
2006), held that we are a media entity entitled to the
waiver of FOIA fees. That is a final, unappealed
order.
If you claim the records requested in this letter
are not public records, or if you claim a privilege not
to disclose such records, please advise what
information this pertains to and why you claim it is
not a public record or why it is privileged or
confidential. Please cite the relevant sections of the

App-43
FOIA which you believe support the exemption from
disclosure. I expect all public records for which you
do not claim an exemption or privilege to be
produced as requested in this letter. If an exemption
or privilege is asserted, the validity of said claim will
be resolved in the appropriate legal forum.
Please respond to this request within 20 days of
receipt of this letter. Failure to respond to this
request by April 1, 2007 will be considered a denial
of my public records request and I will duly take
appropriate action. If you need additional time in
which to produce the records, please advise in
writing so the request for an extension of time may
be considered.
If you are not the records custodian for the
requested records, please forward this letter to the
appropriate records custodian for a response as set
forth herein and notify me accordingly, including the
name of the person or department to which this
request was forwarded.
Thank you for your time and attention to this
matter. If you have any questions or comments or
require additional information, please do not
hesitate to contact me at the above e-mail or phone
number. Please reply to the Vermont address above.
I look forward to your reply.
Sincerely,
Paul Wright
Editor, PLN

App-44
EXHIBIT A-3
May 15, 2007
U.S. Department of Justice
Executive Office for United States Attorneys
Freedom of Information/Privacy Act Staff
600 E Street, N.W., Room 7300
Washington, D.C. 20530
202-616-6757
Fax 202-616-6478

_________________________________________________________________________

Requester:

Paul Wright

Request Number: 07-903
Subject of Request: USA v. Sablan (Exhibits)
Dear Requester:
Your request for records under the Freedom of
Information Act/Privacy Act has been processed.
This letter constitutes a reply from the Executive
Office for United States Attorneys, the official
record-keeper for all records located in this office and
the various United States Attorneys’ Offices.
To provide you the greatest degree of access
authorized by the Freedom of Information Act and
the Privacy Act, we have considered your request in
light of the provisions of both statutes.
The records you seek are located in a Privacy Act
system of records that, in accordance with
regulations promulgated by the Attorney General, is
exempt from the access provisions of the Privacy Act.
28 CFR § 16.81. We have also processed your
request under the Freedom of Information Act and
are making all records required to be released, or

App-45
considered appropriate for release as a matter of
discretion, available to you. This letter is [ ] partial
[X] full denial.
Enclosed please find:
page(s) are being released in full (RIF);
page(s) are being released in part (RIP);
page(s) are being withheld in full (WIF). The
redacted/withheld documents were reviewed
to determine if any information could be
segregated for release.
The exemption(s) cited for withholding records or
portions of records are marked below. An enclosure
to this letter explains the exemptions in more detail.
Section 552

Section 552a

[ ](b)(1)

[ ](b)(4)

[X](b)(7)(B)

[X](j)(2)

[ ](b)(2)

[X](b)(5)

[X](b)(7)(C)

[ ](k)(2)

[X](b)(3)

[ ](b)(6)

[X](b)(7)(D)

[ ](k)(5)

CourtSealed

[X](b)(7)(A)

[ ](b)(7)(E)

[ ]_______

_______

[ ](b)(7)(F)

[ ] In addition, this office is withholding grand
jury material which is retained in the District.
[ ] A review of the material revealed:
page(s) originated with another
[ ]
government component.
These records were
found in the U.S. Attorney’s Office files and
may or may not be responsive to your request.
These records will be referred to the following

App-46
component(s) listed for review and direct response to
you:
[ ] There are public records which may be
obtained from the clerk of the court or this office,
upon specific request. If you wish to obtain a copy of
these records, you must submit a new request.
These records will be provided to you subject to
copying fees.
[

] See additional information attached.

This is the final action this office will take
concerning your request.
You may appeal my decision to withhold records
in this matter by writing within sixty (60) days from
the date of this letter, to:
Office of Information and Privacy
United States Department of Justice
Flag Building, Suite 570
Washington, D.C. 20530
Both the envelope and letter of appeal must be
clearly marked “Freedom of Information Act/Privacy
Act Appeal.”
After the appeal has been decided, you may have
judicial review by filing a complaint in the United
States District Court for the judicial district in which
you reside or have your principal place of business;
the judicial district in which the requested records
are located; or in the District of Columbia.

App-47
Sincerely,
William G. Stewart II
Acting Assistant Director
Enclosure(s)

App-48
EXHIBIT 3-B
U.S. Department of Justice
Office of Information and Privacy
_________________________________________________________________________

Telephone: (202) 514-3642
Washington, D.C. 20530

November 19, 2007

Mr. Paul Wright
Prison Legal News
No. 251
972 Putney Road
Brattleboro, VT 05301
RE: Appeal No. 07-1937
Request No. 07-903
KAH:CG
Dear Mr. Wright:
You appealed from the action of the Executive
Office for the United States Attorneys (EOUSA) on
your request for access to records pertaining to the
matter of USA v. Sablan, U.S.D.C. No. 1:00-CR00531 WYD. I regret the delay in responding to your
appeal.
After carefully considering your appeal, and
following discussions between EOUSA and a
member of staff, I am affirming, on partly modified
grounds, EOUSA’s action on your request. EOUSA
properly withheld certain information that is
protected from disclosure under the Freedom of
Information Act pursuant to:
5 U.S.C. § 552(b)(7)(A), which concerns
records or information compiled for law

App-49
enforcement purposes the release of which
could reasonably be expected to interfere with
enforcement proceedings;
5 U.S.C. § 552(b)(7)(B), which concerns
records or information compiled for law
enforcement purposes the release of which
could reasonably be expected to deprive a
person of a right to a fair trial or an impartial
adjudication; and
5 U.S.C. § 552(b)(7)(C), which concerns
records or information compiled for law
enforcement purposes the release of which
could reasonably be expected to constitute an
unwarranted invasion of the personal privacy
of third parties.
If you are dissatisfied with my action on your
appeal, you may seek judicial review in accordance
with 5 U.S.C. § 552(a)(4)(B).
Sincerely,
Janice Galli McLeod
Associate Director

App-50
Appendix E
EXHIBIT 1
United States District Court,
District of Colorado
________
CIVIL ACTION NO. 08-CV-01055-MSK-KLM
________
PRISON LEGAL NEWS,
V.

Plaintiff,

EXECUTIVE OFFICE FOR UNITED STATES
ATTORNEYS,
Defendant.
_________________________________________________________________________

DECLARATION OF HENRY SCHUSTER IN
SUPPORT OF PRISON LEGAL NEWS’S MOTION FOR
SUMMARY JUDGMENT
I, Henry Schuster, pursuant to 28 U.S.C. § 1746,
declare under penalty of perjury as follows:
1. Since January 2007, I have worked as a
Producer for CBS’s Sunday evening television
magazine show, 60 Minutes. For twenty-five years
prior to that, I was at CNN, most recently as Senior
Investigative Producer. I am the co-author of a
nonfiction book, Hunting Eric Rudolph: An Insider’s
Account of the Five-Year Search for the Olympic
Bomber (Berkley, 2005). I have covered a number of

App-51
court cases in my career as a television producer,
including federal criminal cases.
2. In October 2007, 60 Minutes aired a segment I
produced about the federal “Supermax” prison in
Florence, Colorado, U.S. Administrative Maximum
(ADX), titled “A Clean Version of Hell.” This
segment took many months of investigative and
production work on the part of me and my
colleagues. Although the murder of federal inmate
Joey Estrella by William and Rudy Sablan occurred
in USP Florence and not at ADX, the Sablans were
transferred to ADX after the Estrella murder, and
thus I paid particular attention to their federal
criminal cases because of my work on ADX. Our
segment on ADX included the first-ever footage from
inside the prison since it opened. This was seen by
millions of Americans and generated a strong
reaction, indicating that there is a great deal of
public interest in conditions inside federal prisons.
3. As a television journalist, I have a continuing
interest which, as noted, I believe is shared by the
public in the operations of, conditions at, and events
occurring in the Bureau of Prisons’ maximum and
high security prisons such as ADX and USP
Florence. I am aware, for example, that two inmates
were killed by guards at USP Florence earlier this
year.
4. I believe the Estrella murder raises issues
that are important to the public interest. When a
murder can be committed in a cell within a prison
such as USP Florence that is supposed to be a highsecurity federal facility—presumably one of the best

App-52
secured facilities in the U.S.—that is a matter of
significant public concern. Access to the videotape
showing the aftermath of the Estrella murder would
help journalists and the public scrutinize the
workings of the Bureau of Prisons and its facility at
USP Florence.
5. As a long-time producer of television news, I
am keenly aware of the differences between
communicating information in writing and
communicating information via televised video
images. Based on my lengthy experience in the
television news industry, it is my opinion that there
simply is no substitute for the power of video footage.
For example, 60 Minutes recently obtained and aired
video footage of a mentally ill inmate in a Michigan
state prison who was placed in physical restraints
over a period of time in his bed before he died. That
segment, too, generated strong reaction. Of course
journalists can write about something like that, but
being able to show the public actual videotaped
footage is completely different and vastly superior.
Indeed, to some extent, videotape allows the public
to form their own opinions based on the raw data,
unmediated by a journalist.
6. In my opinion, there are many ways in which
release of the videotape of the Estrella murder scene
and the Sablans’ conduct following the murder would
help inform the public about the operations of the
BOP. The crowded nature of the small cell would be
best communicated via videotape. Whether William
and/or Rudy Sablan were intoxicated at the time of
the murder is also something that could be informed
by scrutiny of the video of their conduct soon after

App-53
the killing. The videotaped images of the cell
extraction of the Sablans by BOP staff would also
inform the public about the workings of the BOP.
7. In my opinion, the release of this videotape
and the Estrella autopsy photographs would also
inform the public about the federal government's
decision to seek the death penalty (unsuccessfully)
against William and Rudy Sablan. Federal capital
prosecutions are necessarily expensive, and
journalists and the public have an interest in
accessing information that would shed light on the
circumstances underlying the government’s decision
to pursue the death penalty against William and
Rudy Sablan.
8. In my extensive experience as a television
news journalist, once something has been shown or
played in open court, it is routinely released to the
media. This has been true even in cases that involve
national security. For example, in 2002, I covered a
RICO trial in Charlotte, North Carolina against
alleged members of Hezbollah involving allegations
of tobacco smuggling and terrorism. There, the
government showed footage of the tobacco smuggling
and played videos obtained from the defendants;
once these were played in open court, they were
released to the media. Similarly, in 2005, an
American citizen named Hamid Hayat was
interrogated by the FBI after his return from
Pakistan, and the interrogation sessions were
recorded. Mr. Hayat was tried in federal court in
California on charges of providing material support
for terrorism and making false statements to federal
agents. Portions of the 2005 interrogation were

App-54
played in court, and the tapes were entered into the
record in that case. The Court made sure that the
entire set of interrogations was released to the news
media. The U.S. Attorney’s Office made no objection
to that release, to my knowledge, and in fact assisted
in the release of the material. The release of the
Hayat interrogation tapes also illustrates the
principle that the value of media access to primary
materials extends beyond the potential to broadcast
and publish those materials; it was important for my
team (I was then employed by CNN) to have access
to the Hayat interrogation tapes when we
subsequently interviewed Hayat’s family members
in Pakistan. Similarly here, I believe the release of
the records sought by Prison Legal News in this case
could be important not just for the educative value
presented by the prospect of broadcasting and
publishing the materials themselves but also to
allow journalists to do a better job crafting and
executing their investigative reporting regarding
violence within BOP facilities.
9. Another example that comes to mind is the
recent federal criminal trial of Senator Ted Stevens.
In that case, once the wiretap recordings were
played in open court in Senator Stevens’s trial, they
were released to the media within hours.
10. Based on my knowledge of these and other
cases, I believe that the government’s position in
refusing to produce materials shown in open court
during the Sablan trials to be an inexplicable and
disappointing departure from standard practice.
Indeed, I am surprised that the government would
take this position when it has voluntarily released

App-55
analogous materials shown or played in open court
in cases involving matters of national security. In my
opinion, the government’s assertion of the privacy
interests of the Estrella family as grounds for
declining to produce the requested materials is
unfounded. The government apparently seeks
exemption from disclosure in every case involving a
criminal act, which would be an exemption from
disclosure that is breathtaking in scope and
unprecedented in practice, in my opinion and
experience.
I declare under penalty of perjury that the
foregoing is true and correct.
DATED: November 19, 2008
/s/ Henry Shuster
Henry Schuster
Producer, 60 Minutes, CBS

App-56
EXHIBIT 2
United States District Court,
District of Colorado
________
CIVIL ACTION NO. 08-CV-01055-MSK-KLM
________
PRISON LEGAL NEWS,
V.

Plaintiff,

EXECUTIVE OFFICE FOR UNITED STATES
ATTORNEYS,
Defendant.
_________________________________________________________________________

DECLARATION OF ALAN PRENDERGAST IN
SUPPORT OF PRISON LEGAL NEWS’S MOTION FOR
SUMMARY JUDGMENT
I, Alan Prendergast, pursuant to 28 U.S.C.
§ 1746, declare under penalty of perjury as follows:
1. For the past 28 years, I have been a
professional journalist based in Denver, Colorado. I
am the author of a nonfiction book, The Poison Tree:
A True Story of Family Violence and Revenge
(Putnam, 1986). My work has appeared in a variety
of regional and national publications, including the
New York Times, the Los Angeles Times, USA
Today, Rolling Stone, and Outside. For the past
decade, I have also taught journalism courses as a
visiting instructor at Colorado College, a private
liberal arts college in Colorado Springs.

App-57
2. Since 1995, I have worked as a staff writer at
Westword, a Denver weekly newspaper with a
circulation of approximately 100,000. During that
time, I have written extensively on criminal justice
matters and particularly corrections issues at a local,
state, and federal level.
3. I have also participated in several panel
discussions addressing prison reporting and access
issues at national conferences sponsored by
professional journalism associations, including those
hosted by Investigative Reporters and Editors (IRE),
the Society of Professional Journalists (SPJ), and the
Association of Alternative Newspapers (AAN).
4. Several of my articles reporting on conditions
of confinement within the U.S. Bureau of Prisons
have been finalists or winning entries in national
journalism awards competitions; one is featured in a
recently published anthology, The Best American
Crime Reporting 2008.
5. In May 2000, Westword published the first of
what would become a series of articles and blogs
authored by me dealing with inmate-on-inmate
violence and security problems at the U.S.
Penitentiary in Florence, Colorado (USP Florence).
One of the events examined in that article was the
1999 murder of Joey Estrella in the USP Florence
Special Housing Unit (SHU). Because the Bureau of
Prisons (BOP) is notoriously reluctant to release any
but the barest of details concerning any homicide
that occurs inside one of its facilities, I relied to a
great extent on public records and court documents
in my initial reporting on the Estrella murder.
However, it was apparent even at that point, many

App-58
years before either William or Rudy Sablan would be
brought to trial, that the circumstances of Estrella’s
death raised several matters of public interest and
concern regarding the operation of the USP Florence
SHU. These circumstances included, for example: (i)
the high level of alcohol found in Estrella’s body; (ii)
the presence of three inmates in a cell designed to
hold one (as well as the fact that two of the inmates
were related to each other and had a history of
assaulting other prisoners); (iii) the sharp weapon
used to remove organs from the victim’s body; and
(iv) the apparent lack of timely supervision that
allowed this evisceration to take place. These
circumstances all presented serious questions about
prison safety, BOP policy, and staff training.
6. As I proceeded further in reporting on these
issues, I discovered other contemporaneous incidents
of violence in the USP Florence SHU, including at
least one other cellmate-on-cellmate homicide. I also
learned that the U.S. Department of Justice was
investigating certain BOP employees assigned to the
USP Florence SHU for allegedly falsifying reports,
assaulting inmates, and self-inflicting injuries to
provide a pretext for the assaults—a development
that seemed not entirely unconnected to the failure
of staff to respond to Estrella’s efforts to seek
assistance before and during his own fatal attack.
7. I eventually learned that BOP employees had
recorded sound and images of Estrella’s cellmates,
William and Rudy Sablan, as well as of Estrella’s
body, in the aftermath of the murder. However, in
reporting on the Estrella murder, I was forced to rely
on secondhand accounts from sources who had some
knowledge of the recordings, as the materials were

App-59
not released to the media. Like any journalist who
prizes accuracy, context, and thoroughness, I would
strongly prefer to have access to primary source
materials in a situation such as this one, rather than
being forced to rely on the possibly faulty
recollections of secondary witnesses. Given the total
lack of comment or official cooperation from the
BOP, access to such materials is critical.
8. Over the past eight years, federal prosecutors
have brought William and Rudy Sablan to trial,
unsuccessfully seeking the death penalty in each
instance. Prosecutors also brought charges against
numerous employees of USP Florence for assaulting
inmates and falsifying documents and secured a few
convictions. But many questions remain unanswered
about operations at USP Florence and possible staff
complicity in the Estrella murder, in part because
the BOP refuses to address these issues.
9. It is my understanding that the video record
made by BOP staff of the Sablans’ words and
behavior after the Estrella murder was introduced
as an exhibit and played in open court by the
government on at least two occasions, first at
William Sablan’s trial and then at Rudy Sablan’s
trial. It is also my understanding that some or all of
the Estrella autopsy photographs were introduced
into evidence and shown in open court at each of
these trials. Unfortunately, I was not able to be
present in court when these exhibits were shown in
open court. My employer, Westword, does not have
the resources necessary to allow one staff writer to
sit through the entirety of two lengthy death penalty
trials.

App-60
10. I believe that public release of the materials
requested by Prison Legal News in this case would
advance the public interest in many ways.
11. It should be noted that public interest and
concern about operations at USP Florence is
ongoing. I have published several reports in recent
years regarding claims of inadequate staffing, gangrelated violence, and other operational issues at USP
Florence. For example, an inmate uprising at USP
Florence in April 2008 resulted in officers firing on
prisoners and killing two of them. The facility is, to
quote one of my reports, “a deeply dysfunctional
prison with a violent history,” and the Estrella
homicide warrants particular examination in light of
the ongoing problems at USP Florence.
12. The release of the exhibits shown in open
court would provide journalists and the public with a
better understanding of Estrella’s killers and the
conditions, motivations, and other circumstances
that led to their horrific actions. It may also provide
some insight into their physical and mental
condition when staff arrived—if, for example, they
were intoxicated, which apparently remains a
matter of some dispute.
13. These records would also provide journalists
and the public with a better understanding of the
conditions of confinement experienced by the
Sablans and Estrella in terms of the cramped
quarters resulting from the fact that the BOP had
triple-celled these inmates at the time of Estrella’s
murder.
14. These records may also shed some light on
staff comments and reaction to the homicide and

App-61
regarding
the
larger
issues
surrounding
management and operational failures at USP
Florence at the time.
15. Furthermore, public release of the materials
could possibly help to answer unresolved questions
about how inmates in the most secure unit of one of
the highest security prisons in the federal system
obtained the weaponry, opportunity, intoxicants,
leisure, and will to commit such a gruesome crime.
16. Finally, the records would significantly
contribute to the public’s understanding of the
operations of the U.S. Department of Justice with
respect to the authorization of federal death penalty
prosecutions against William and Rudy Sablan.
17. In my opinion, these are all significant
matters of public interest and concern that would be
well-served by the release of the entire video record
and autopsy photographs sought by Prison Legal
News in this case.
I declare under penalty of perjury that the
foregoing is true and correct.
DATED: November 19, 2008
/s/ Alan Prendergast
Alan Prendergast
Staff Writer, Westword

App-62
EXHIBIT 3
United States District Court,
District of Colorado
________
CIVIL ACTION NO. 08-CV-01055-MSK-KLM
________
PRISON LEGAL NEWS,
V.

Plaintiff,

EXECUTIVE OFFICE FOR UNITED STATES
ATTORNEYS,
Defendant.
_________________________________________________________________________

DECLARATION OF PAUL WRIGHT IN
SUPPORT OF PRISON LEGAL NEWS’S MOTION FOR
SUMMARY JUDGMENT
I, Paul Wright, pursuant to 28 U.S.C. § 1746,
declare under penalty of perjury as follows:
1. I am the editor of Prison Legal News, the
Plaintiff in this case. Prison Legal News is a
501(c)(3) non-profit organization that, via a monthly
legal journal as well as on its website, reports news
and provides analysis concerning prisoners’ rights
issues, prisoners’ rights litigation, and other news
about prison issues. I have been the editor of Prison
Legal News since its founding in 1990. Prison Legal
News’s subscribers include judges, lawyers,
academics, journalists, libraries, law schools,

App-63
universities, prison and jail officials, and prisoners,
among others.
2. According to its non-profit charter, Prison
Legal News’s mission includes educating the public
about prison conditions. In its national coverage of
detention issues, Prison Legal News frequently uses
public records laws to obtain information about
prison and jail operations. A lack of transparency
and government accountability are common
problems around the nation, and Prison Legal News
has had to resort to litigation to obtain records to
which it was entitled, See Prison Legal News v.
Washington Dep’t of Corrections, 115 P.3d 316
(Wash. 2005) (holding that Prison Legal News is
entitled to records of medical misconduct and neglect
by prison employees); Prison Legal News v. Lappin,
436 F. Supp. 2d 17 (D.D.C. 2006) (holding that
Bureau of Prisons wrongly denied Prison Legal
News a fee waiver for production of records of
settlement payments resulting from prison condition
litigation). Prison Legal News has the ability to
disseminate the information it gleans from its FOIA
requests to an audience specifically interested in
prison and jail conditions and litigation.
3. In response to the FOIA request that I
submitted on behalf of Prison Legal News to the U.S.
Attorney’s Office for the District of Colorado seeking
disclosure of the videotape and autopsy photographs
that were shown at William Sablan’s federal
criminal trial (later designated by the government
“Request No. 07-903”), I received a two-page
response from the Executive Office for United States
Attorneys (EOUSA) date-stamped May 15, 2007 (but
not received by me until June 13, 2007 via facsimile).

App-64
A true and correct copy of that response is attached
hereto as Exhibit 3-A.
4. On behalf of Prison Legal News, I filed an
administrative appeal of EOUSA’s denial of Request
No. 07-903 (later designated by the government
“Appeal No. 07-1937”). The U.S. Department of
Justice's Office of Information and Privacy denied
the appeal in a single-page letter date-stamped
November 19, 2007. A true and correct copy of that
appeal denial is attached hereto as Exhibit 3-B.
5. Prison Legal News has been covering the
federal prison complex in Florence, Colorado, since it
opened in 1995. Prison Legal News’s coverage of the
U.S. Administrative Maximum facility (ADX) and
the U.S. Penitentiary (USP Florence) in particular
has been extensive. Prison Legal News is the only
national media outlet that has regularly reported on
these facilities. Our coverage includes the high levels
of violence experienced at the prison complex in
Florence.
6. The murder of Joey Estrella by his cellmates
at USP Florence is emblematic of that high level of
violence. Even in context of prison murders, the
Estrella murder was unusually violent. The level of
negligence by Bureau of Prisons (BOP) staff and/or
their lack of supervision is also extremely unusual.
For journalists, it is important to have access to
primary source materials where available, rather
than being forced to rely on descriptions by others of
events.
7. Based on my years of experience reporting on
local, state and federal detention facilities around
the county, the BOP is renowned for its lack of

App-65
transparency. Within media circles, the BOP is
notorious for being hostile to media requests for
documents or information that would shed light on
its operations and functions. In my view, this makes
access to the primary videotape and autopsy
photographs from the Estrella murder all the more
important.
8. Prison Legal News is a small organization
with a small budget relative to other national
magazines. We do not have the ability to send staff
journalists to attend every federal trial that we have
an interest in reporting on. One of key means by
which we are able to maintain our far-ranging
coverage of prison-related litigation around the
country is through making FOIA requests and
receiving primary documents and material through
FOIA disclosures. Video evidence is always the best
evidence available, when it is available.
9. In my opinion, these materials implicate
several aspects of public interest. First, the further
disclosure of these materials to the public would
shed light on the level of security within the
segregation unit at USP Florence. It is my
understanding that this murder occurred under
circumstances in which three inmates were placed
together in what was essentially designed to be an
isolation cell for solitary confinement.
10. Second, in my view, the public has an interest
in being able to assess whether the Sablans were
drunk on alcohol at the time of the murder.
11. Third, I believe that the public has an interest
in investigating the nature of the weapons used in
Estrella’s killing and how they were obtained.

App-66
12. Fourth, the release of the materials would
shed light on BOP staff response to the assault and
murder of Estrella. Several inmates have been
murdered at the Florence prison complex since it
opened. The government has an obligation to keep
prisoners in its care safe from harm. It is in the
public’s interest to be able to analyze and assess the
response by BOP staff to the Estrella murder.
13. Fifth, federal capital prosecutions are
relatively rare. The fact that the federal government
sought the death penalty against both Sablan
cousins and then failed to secure a death verdict
against either of them despite enormous expense is
another matter of public concern. Disclosure of the
materials sought in this case would shed light on the
prosecutorial decision to seek the death penalty
against the Sablans.
14. Sixth, I believe there is a public interest in
being completely and correctly informed about the
circumstances surrounding the Estrella murder and
its aftermath. There was a lot of speculation and
rumors about what actually happened after the
murder, including rumors of cannibalism by one of
the Sablans. Indeed, BOP staff was quoted in the
media saying that one of Sablans had taken a bite
out of Estrella’s liver. Allowing journalists and the
public to view the videotape and autopsy photos
themselves could help dispel any unfounded rumors
or incorrect speculations. One of critical roles of the
media is to provide the public with concrete facts so
that we do not devolve into a society awash in
unsubstantiated rumor and gossip.

App-67
I declare under penalty of perjury that the
foregoing is true and correct.
DATED: November 20, 2008
/s/ Paul Wright
Paul Wright
Editor, Prison Legal News

App-68
UNITED STATES DISTRICT COURT,
District of Colorado
________
CIVIL ACTION NO. 08-CV-01055-MSK-KLM
________
PRISON LEGAL NEWS,
V.

Plaintiff,

EXECUTIVE OFFICE FOR UNITED STATES
ATTORNEYS,
Defendant.
_________________________________________________________________________

SUPPLEMENTAL DECLARATION OF PAUL WRIGHT
IN SUPPORT OF PRISON LEGAL NEWS’S
MOTION FOR SUMMARY JUDGMENT
I, Paul Wright, pursuant to 28 U.S.C. § 1746,
declare under penalty of perjury as follows:
1. I am the editor of Prison Legal News, the
Plaintiff in this case. I previously submitted a
declaration in support of Prison Legal News’s Motion
for Summary Judgment on November 20, 2008.
2. On Friday, January 23, 2009, I learned that
the federal government recently released to the
Chicago Tribune a surveillance video depicting an
inmate-on-inmate murder in Chicago’s downtown
federal prison. A true and correct copy of the website
page from the Chicago Tribune where the video is

App-69
available is attached hereto. 1 I have reviewed the
article and the video on the Chicago Tribune’s
website.
3. The article on the Chicago Tribune’s website
explains that this surveillance video “was provided
to the Tribune by the U.S. Attorney.”
4. The article on the Chicago Tribune’s website
further explains that on Tuesday (January 20, 2009),
the video was played in court during the trial of the
inmate who is charged with having murdered the
other inmate. The date of the article on the Chicago
Tribune’s website is January 21, 2009. Thus, it
appears that within one day of having played the
surveillance video in open court, the U.S. Attorney’s
Office for the Northern District of Illinois provided
the surveillance video to the media. This is
consistent with my general experience as a
journalist that once an exhibit has been introduced
in open court, it is routinely released to the media
(where there is media interest in the exhibit).
I declare under penalty of perjury that the
foregoing is true and correct.
DATED: January 27, 2009
/s/ Paul Wright
Paul Wright
Editor, Prison Legal News

1

See
http://www.chicagotribune.com/news/local/chimcc_deathjan21,0,2833043.story.

App-70
Appendix F
The Freedom of Information Act, 5 U.S.C. § 552,
provides in pertinent part:
Public information; agency rules, opinions,
orders, records, and proceedings
(a) Each agency shall make available to the
public information as follows:
*****
(3)(A) Except with respect to the records made
available under paragraphs (1) and (2) of this
subsection, and except as provided in subparagraph
(E), each agency, upon any request for records which
(i) reasonably describes such records and (ii) is made
in accordance with published rules stating the time,
place, fees (if any), and procedures to be followed,
shall make the records promptly available to any
person.
*****
(b) This section does not apply to matters that
are—
(1)(A) specifically authorized under criteria
established by an Executive order to be kept
secret in the interest of national defense or
foreign policy and (B) are in fact properly
classified pursuant to such Executive order;
(2) related solely to the internal personnel
rules and practices of an agency;

App-71
(3) specifically exempted from disclosure by
statute (other than section 552b of this title), if
that statute—
(A)(i) requires that the matters be withheld
from the public in such a manner as to leave
no discretion on the issue; or
(ii) establishes particular criteria for
withholding or refers to particular types of
matters to be withheld; and
(B) if enacted after the date of enactment
of the OPEN FOIA Act of 2009, specifically
cites to this paragraph.
(4) trade secrets and commercial or financial
information obtained from a person and
privileged or confidential;
(5)
inter-agency
or
intra-agency
memorandums or letters which would not be
available by law to a party other than an agency
in litigation with the agency;
(6) personnel and medical files and similar
files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law
enforcement purposes, but only to the extent that
the production of such law enforcement records or
information (A) could reasonably be expected to
interfere with enforcement proceedings, (B)
would deprive a person of a right to a fair trial or
an impartial adjudication, (C) could reasonably
be expected to constitute an unwarranted
invasion of personal privacy, (D) could reasonably
be expected to disclose the identity of a

App-72
confidential source, including a State, local, or
foreign agency or authority or any private
institution which furnished information on a
confidential basis, and, in the case of a record or
information
compiled
by
criminal
law
enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful
national security intelligence investigation,
information furnished by a confidential source,
(E) would disclose techniques and procedures for
law enforcement investigations or prosecutions,
or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure
could
reasonably
be
expected
to
risk
circumvention of the law, or (F) could reasonably
be expected to endanger the life or physical safety
of any individual;
(8) contained in or related to examination,
operating, or condition reports prepared by, on
behalf of, or for the use of an agency responsible
for the regulation or supervision of financial
institutions; or
(9) geological and geophysical information and
data, including maps, concerning wells.
*****
(f) For purposes of this section, the term—
(1) “agency” as defined in section 551(1) of this
title includes any executive department, military
department,
Government
corporation,
Government controlled corporation, or other
establishment in the executive branch of the
Government (including the Executive Office of

App-73
the President), or any independent regulatory
agency; and
(2) “record” and any other term used in this
section in reference to information includes—
(A) any information that would be an
agency record subject to the requirements of
this section when maintained by an agency in
any format, including an electronic format;
and
(B) any information described under
subparagraph (A) that is maintained for an
agency by an entity under Government
contract, for the purposes of records
management.
*****



 

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