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PLN Wins Partial Victory, Attorneys Fees in FOIA Video Tape Suit Against U.S. Attorneys’ Office

by Brandon Sample and Derek Gilna

In a lawsuit brought under the Freedom of Information Act (FOIA), Prison Legal News was awarded attorneys fees by a U.S. District Court in Colorado after the federal government agreed to release some of the records requested by PLN. On appeal, the Tenth Circuit Court of Appeals denied additional relief, ruling that the remaining records, which included graphic crime scene video and autopsy photos of a prisoner murdered at the U.S. Penitentiary in Florence, Colorado, need not be released. The total amount of attorneys fees awarded was $13,779.20.

The Executive Office for United States Attorneys (EOUSA) had withheld all video, audio tapes and transcripts related to the prison murder, but released many of the requested records prior to the appellate court’s decision. The Tenth Circuit ruled that the disclosure of the remaining crime scene materials “could reasonably be expected to constitute an unwarranted invasion of personal privacy of the victim’s family,” citing 5 U.S.C. § 552(b)(7)(C). A motion for rehearing en banc was denied.

Prisoner Joey Jesus Estrella was murdered in his cell by his two cellmates, William Sablan and Rudy Sablan, in October 1999. A Bureau of Prisons (BOP) official filmed the crime scene, including the interior of the cell, Estrella’s mutilated body and the extraction of the Sablans from the cell. Autopsy photos of Estrella’s body were also taken. The Sablans were accused of killing and disemboweling Estrella after getting drunk on homemade wine.

PLN had originally filed a FOIA request for the audiovisual records related to the crime, including the videotapes and autopsy photos that were introduced as evidence at the trial of William Sablan. The EOUSA denied the request, the U.S. Department of Justice (DOJ) denied PLN’s administrative appeal and PLN then filed a complaint in federal court to obtain the records.

The district court entertained cross-motions for summary judgment, and ordered the release of part of the video showing the Sablans’ removal from the cell plus the audio of BOP officials’ voices in the first portion of the video that was not released. [See: PLN, March 2010, p.36]. Both PLN and the EOUSA appealed, but the EOUSA withdrew its appeal and released another part of the video, along with the audio tapes of the first portion of the video, with four of the Sablans’ statements redacted. The only remaining materials withheld by the EOUSA, which were the subject of PLN’s appeal to the Tenth Circuit, included the first part of the video showing the bloody crime scene in the cell, four redactions of the audio from the video and the autopsy photos.

The Court of Appeals, in its de novo review, scrutinized the EOUSA’s use of FOIA exemption 7(C), which allows an agency to exclude from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(B)(7)(C).

In reviewing the facts, the Tenth Circuit found that the “relevant privacy interests are the interests of Estrella’s family.” The appellate court noted the graphic nature of the video and photographs of Estrella’s body, stating the government bore the burden of showing that the requested records fell within a FOIA exemption. PLN argued that the Estrella family had no expectation of privacy because the images were taken in a prison cell and were introduced into evidence at the Sablans’ public trials, and the government did not seek to seal those exhibits during the trials. PLN requested an evidentiary hearing to determine whether Estrella’s family objected to the release of the records.

The Court of Appeals held that Estrella’s “status as a prisoner does not bear on his family’s privacy interest in not having gruesome images of his body publicly disseminated,” citing National Archives, et al. v. Favish, 541 U.S. 157 (2004). The appellate court also ruled that the “family’s failure to object at the time of trial is also not sufficient to waive their own privacy interests under FOIA.” The Tenth Circuit based its decision on the fact that the images “were displayed only twice (once at each 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 these trials.”

The Court of Appeals found that exemption 7(C) was applicable, stating “the test [of exemption] 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.”

PLN argued that disclosure of the records would “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.” PLN’s second argument was that disclosure would help the public understand the prosecution’s decision to seek the death penalty in the Sablans’ murder cases – a decision that significantly increased the cost of their prosecution. While both Sablans were convicted of killing Estrella, the juries declined to sentence them to death.

PLN’s “public domain” argument – that the records had already been released publicly at the Sablans’ trials and thus should be disclosed – had previously been upheld in the D.C. Circuit in Cottone v. Reno, 193 F.3d 550 (D.C. Cir. 1999). However, the Tenth Circuit distinguished Cottone based upon the materials sought. According to the appellate court, “[t]he public domain doctrine is limited and applies only when the applicable exemption can no longer serve its purpose.”

In a footnote, the EOUSA was granted the right to file the unreleased records with the district court, under seal. PLN filed a petition for writ of certiorari on June 14, 2011, seeking review of the Tenth Circuit’s ruling by the Supreme Court and asking the court to resolve the circuit split regarding the public domain doctrine. See: Prison Legal News v. Executive Office for United States Attorneys, 628 F.3d 1243 (10th Cir. 2011).

A number of media and criminal justice organizations joined amicus briefs in support of PLN’s petition, including Allied Daily Newspapers of Washington, Inc., the Associated Press, Pioneer Newspapers, Inc., the Society of Professional Journalists, the Washington Newspaper Publishers Association, the Washington State Association of Broadcasters, Westword, Columbia Legal Services, the Florida Justice Institute, Inc., the Legal Aid Society of New York, the Prison Law Office, Prisoners’ Legal Services, Prisoners’ Legal Services of New York, the Southern Center for Human Rights, the Texas Civil Rights Project, the Uptown People’s Law Center and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

On October 17, 2011, the U.S. Supreme Court denied review in the case without comment. PLN was ably represented in the district and appeals court by Gail Johnson of Brennan and Johnson in Denver, Colorado. The PLN supreme court team consisted of Paul Clement of Bancroft LLC, Zachary Tripp of King and Spalding, Neil Siegel of Duke Law School and Human Rights Defense Center chief counsel Lance Weber. The media amici were represented by Lisa Blatt, Kristin Hicks and Dirk Phillips at Arnold and Porter. The criminal justice amici were represented by Christopher Wimmer and Hillary Richard of the firm Brune and Richard. Prison Legal News and the Human Rights Defense Center are grateful for the top notch legal representation received in this case and the support of the amici, their counsel and our supreme court team.

Additional sources:,Westword

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Prison Legal News v. Executive Office for United States Attorneys