UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KELLY DUDA,
Plaintiff,
v.
Civil Action No. 24 - 1048 (LLA)
UNITED STATES DEPARTMENT OF
JUSTICE, et al.,
Defendants.
REDACTED MEMORANDUM OPINION AND ORDER
Plaintiff Kelly Duda brings this action against the Department of Justice (“DOJ”) and the
Federal Bureau of Investigation (“FBI” or “Bureau”) (collectively, “Defendants”) alleging
violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Mr. Duda seeks materials
related to the investigation of Emmett Till’s murder—as relevant here, a taped interview of
Roy Bryant, one of the men who confessed to killing Mr. Till (the “Bryant Audio”). In
August 2025, the court denied Defendants’ motion for partial summary judgment, granted in part
Mr. Duda’s cross-motion for summary judgment, and permitted Defendants to file a renewed ex
parte motion for partial summary judgment with respect to the application of FOIA
Exemption 7(D) to the Bryant Audio. ECF No. 36. Defendants thereafter filed such a motion,
which the court will refer to as Defendants’ “Ex Parte Motion.” Despite not having access to
Defendants’ motion, Mr. Duda filed a “supplemental reply” “to address the foreseeable harm
analysis that should follow in the event that the Court determines that Exemption 7(D) applies to
some or all of the Bryant Audio,” ECF No. 43, at 1-3, which Defendants have moved to strike, ECF No. 44. For the following reasons, the court denies Defendants’ ex parte motion for partial
summary judgment and grants Defendants’ motion to strike Mr. Duda’s proposed supplement.
I. FACTUAL BACKGROUND
A. The Murder of Emmett Till and Immediate Aftermath
In the summer of 1955, Mr. Till, a fourteen-year-old Black child, was visiting family
(the Wrights) in Money, Mississippi. ECF No. 21-6, at 20-22. 1 On August 24, Mr. Till and a
group of friends went to a local grocery store owned by Roy and Carolyn Bryant, a white married
couple. ECF No. 21-5, at 2; ECF No. 21-6, at 38, 40. Mr. Bryant was outside the state at the time,
so Mrs. Bryant was tending to the store with a relative. ECF No. 21-6, at 39-40. Mr. Till and his
companions visited the store briefly and then left. Id. at 39. Mrs. Bryant subsequently claimed
that Mr. Till, while in the store, had wolf-whistled at her. ECF No. 21-5, at 2, 19; ECF No. 21-6,
at 40.
In the early morning of August 27, Roy Bryant and his half-brother, J.W. Milam,
kidnapped Mr. Till from his relatives’ home. ECF No. 21-6, at 12, 51. The two men, along with
several others, took Mr. Till to a barn belonging to J.W. Milam’s brother. Id. at 25, 89. There,
they brutally beat, shot, and murdered Mr. Till. ECF No. 21-5, at 2; ECF No. 21-6, at 89-90. To
dispose of Mr. Till’s body, Mr. Bryant and Mr. Milam tied a seventy-pound cotton gin fan to
Mr. Till’s neck using barbed wire and submerged him in the Tallahatchie River. ECF No. 21-6,
at 90, 133. Mr. Till’s body was not discovered for four days. Id. at 68.
1
The citations to ECF Nos. 21-3, 21-5, 21-6, 21-7, refer to the ECF-generated page numbers at the top of each page rather than any internal pagination.
2
Almost immediately after Mr. Till’s disappearance, local authorities arrested Mr. Bryant
and Mr. Milam based on eyewitness reports of their suspicious activity. Id. at 67. The two men
stood trial for murder in September 1955. Id. at 81. At trial, Mrs. Bryant testified for the defense
“that [Mr.] Till had propositioned her and physically touched her hand, arm[,] and waist while they
were both inside the store.” ECF No. 21-7, at 3. After four days, both men were acquitted by an
all-white, all-male jury. ECF No. 21-5, at 2. No further attempts to prosecute the crime ever took
place, and no other suspects were ever charged. Id.
Mr. Till was laid to rest in early September 1955. ECF No. 6, at 37. His mother,
Mamie Till Mobley, insisted on an open-casket funeral, which was attended by more than 50,000
people. ECF No. 21-5, at 6. Photographs of the funeral services, including of Mr. Till’s “mutilated
corpse[,] horrified the nation and became a catalyst for the bourgeoning civil rights movement.”
Id. at 6-7. 2
Having been acquitted of the crime, Mr. Bryant and Mr. Milam confessed to the murder
only a few months later. ECF No. 21-5, at 19-21. William Bradford Huie, a journalist, paid
Mr. Milam, Mr. Bryant, and Mrs. Bryant a total of $3,150 for their stories. Id. at 23. Mr. Milam,
Mr. Bryant, and Mrs. Bryant signed releases giving Mr. Huie the right to “to publish, produce,
dramatize, adapt[,] or otherwise present” the story of Mr. Till’s murder based on their statements.
Id. Mr. Huie published an account of Mr. Till’s murder based on their statements in the
2
Mr. Till’s murder took place against the backdrop of significant, racially charged violence in Mississippi. In May 1955, Willie George Washington Lee, a Black minister and the first Black person to register to vote in Humphrey’s County, Mississippi, was shot and killed. ECF No. 21-6, at 16. No one was arrested for or charged with the crime. Id. In August 1955, Lamar Smith, a World War II veteran and advocate for Black voting rights, was murdered on a courthouse lawn in Brookhaven, Mississippi. Id. at 17. Three white men were arrested, but a grand jury did not return any indictments. Id.
3
January 1956 edition of Look magazine. Id. at 18-19. Mr. Huie wrote that both Mr. Bryant and
Mr. Milam assaulted Mr. Till, and Mr. Milam confessed to shooting Mr. Till. Id. at 21. Mr. Huie
also reproduced Mrs. Bryant’s allegations that Mr. Till had “squeezed her hand,” asked “about a
date,” and then grabbed her by the waist. Id. at 19 (internal quotation marks omitted). Mr. Huie’s
article ended by stating that “[t]he majority—by no means all, but the majority—of the white
people in Mississippi 1) either approve[d] of [Mr.] Milam’s action or else 2) they d[id]n’t
disapprove enough to risk giving their ‘enemies’ the satisfaction of a conviction.” Id. at 21.
Mr. Milam passed away in 1980, Mr. Bryant passed away in 1994, and Mrs. Bryant passed away
in 2023. ECF No. 21-6, at 24-25, 115.
B. The FBI’s 2004 Investigation into Mr. Till’s Murder
Almost half a century later, in 2004, the FBI launched a new investigation into Mr. Till’s
murder “in an effort to determine if other individuals were involved in the[] crimes and to bring
forth state indictments against th[o]se individuals if . . . appropriate.” ECF No. 21-6, at 6. 3 By
then, only four known witnesses were still alive: Mrs. Bryant, ECF No. 21-5, at 40; Willie Reed,
who saw Mr. Till in the back of a truck at J.W. Milam’s brother’s farm on the day he was
kidnapped and provided critical testimony at the murder trial, ECF No. 21-6, at 138-40;
Simeon Wright, Mr. Till’s cousin who was with Mr. Till when he was kidnapped, id. at 142-44;
3
At the time of Mr. Till’s murder, Congress had yet to pass any federal hate-crime statutes. ECF No. 21-7, at 3. The FBI initiated its 2004 investigation, in part, to determine whether any individuals could be charged under such statutes. Id.
4
and Wheeler Parker, Jr., who was with Mr. Till at the Bryants’ grocery store and at the Wrights’
home the night of the kidnapping, id. at 146-54. 4
The FBI published a redacted version of its investigative findings on Mr. Till’s murder
(“FBI Report”) in February 2006. ECF No. 21-1, at 7; ECF No. 21-6, at 5. In a section titled
“Roy Bryant’s Admission,” the FBI reported that:
In 1985, an individual, who is now a cooperating witness, but who
was unaffiliated with law enforcement at the time, hereinafter
referred to as [REDACTED], met with Roy Bryant and approached
him about [REDACTED]. [REDACTED] and Bryant rode together
to the Wright home, Bryant’s Meat Market and Grocery[,] and to the
barn where Till had been beaten and killed. During the trip[,]
[REDACTED] was equipped with an audio cassette recorder and
successfully recorded portions of their conversation.
ECF No. 21-1, at 7 (footnote omitted). The FBI Report went on to quote from the recordings. The
Report explained that when asked about the kidnapping of Mr. Till, Mr. Bryant had said that he
and Mr. Milam had planned to “put [Mr. Till’s] ass in the river,” that they had “done whopped the
son of a bitch,” and that “carryin’ him to the hospital wouldn’t have done him no good.” Id. at 7-8.
The Report also reflected that Mr. Bryant had told the cooperating witness: “I’m the only one
who’s livin’ that knows it . . . . That’s all that will ever be known.” Id. at 8. 5
Mr. Duda and other third parties believe the witness to be Luster Bayless, a Hollywood
costume designer who had become interest in making a film about Mr. Till’s murder. ECF
No. 21-7, at 29; see ECF No. 21-3, at 3. Mr. Bayless passed away in February 2022. ECF
4
Mr. Reed passed away in 2013, ECF No. 21-6, at 138-40, and Mr. Wright passed away in 2017, id. at 142-44. Mr. Parker is believed to be the last living witness of Mr. Till’s final days. Id. at 146-64.
5
Writing for The Atlantic magazine, journalist Wright Thompson published an extensive article about Mr. Till’s murder and hypothesized that this audio recording “is likely the only existing description of what happened inside the barn in the final hour of Till’s life.” ECF No. 21-7, at 29.
5
No. 21-3, at 3. In July 2022, in response to a FOIA request, ECF No. 21-1, at 10, the FBI released
a copy of a June 2005 Form FD-71 that documented a call between Mr. Bayless and the FBI, ECF
No. 21-8 ¶ 18.
Specifically, on June 7, 2005, at approximately 10:08 p.m., Mr. Bayless had contacted the
FBI about turning over a recording he had in connection with “the Emmit Teal [sic] case.” ECF
No. 21-8 ¶ 18. Mr. Bayless explained that he had “t[aken] a ride with a gentleman by the name of
Roy Brown [sic] and possesse[d] a tape of the conversation.” Id. The FBI agent who documented
Mr. Bayless’s call on the FBI’s Form FD-71 did not check the box for “Protect Source” but did
report that Mr. Bayless “would like to be protected from anyone who would wish to harm him.”
Id. The officer also noted that Mr. Bayless had given a copy of the recording to the National
Archives and Records Administration (“NARA”). See id.
An FBI agent later
transcribed details from a June 13 interview with Mr. Bayless, referring to him as an “Individual”
and describing the audio he provided as a conversation between Mr. Bryant, a “CONFIDENTIAL
SOURCE,” and a third named individual. Id. Ex. D.
At the end of the investigation, the FBI concluded that it could not pursue any potential
federal charges due to the relevant statutes of limitations. ECF No. 21-5, at 2. But because
additional state charges were still possible, see ECF No. 21-6, at 113, the FBI turned its evidence
over to the Leflore County district attorney’s office, id. at 156. The county empaneled a grand
6
jury, but it did not return any indictments. Id. The FBI subsequently closed its investigation in
December 2007. Id.
C. Mr. Duda’s FOIA Request
Kelly Duda is a freelance journalist “currently exploring the circumstances surrounding the
murder of Emmett Till in connection with a forthcoming journalistic project.” ECF No. 21-3
¶¶ 1-2. In March 2024, Mr. Duda submitted a FOIA request to the FBI for:
1. All audio recordings made by Luster Bayless and provided to
the FBI;
2. The full audio recording(s) from which the FBI Report quotes
portions on page 92 [(i.e., ECF No. 21-6, at 91)];
3. All audio recordings of Roy Bryant;
4. Any and all other audio recordings in the FBI’s file concerning
its investigations into Till’s death.
ECF No. 17, at 2. Mr. Duda also asserted that, as “a representative of the news media, [he was]
only required to pay for the direct cost of [the] duplication of records.” ECF No. 17-2, at 3. He
explained that “[t]his information is being sought in connection with the production of a
journalistic project about Till, which will be available to the public.” Id. Mr. Duda stated,
however, that he was “willing to pay up to $100” for duplication costs. Id. Later that month, the
FBI informed Mr. Duda that it had encountered “unusual circumstances” in processing his request
and would need additional time. ECF No. 17-4, at 2 (quoting 5 U.S.C. § 552(a)(6)(B)(iii)).
II. PROCEDURAL HISTORY
In April 2024, Mr. Duda filed this complaint against Defendants, alleging that they had
violated FOIA by failing to comply with statutory deadlines (Count I), ECF No. 1 ¶¶ 29-36;
unlawfully withholding records (Count II), id. ¶¶ 37-47; and failing to grant Mr. Duda a fee benefit
7
(Count III), id. ¶¶ 48-55. After Defendants filed an answer in May 2024, ECF No. 5, the court
ordered the parties to meet and confer and submit a joint status report on Mr. Duda’s FOIA request,
ECF No. 7.
In June 2024, Defendants reported that they had “identified a body of potentially
responsive documents” totaling roughly “thirty hours of audio that will require processing.” ECF
No. 9, at 1. Defendants anticipated that the FBI would process “approximately thirty minutes per
month[] [at] its standard processing rate for audio.” Id. at 2. Because processing at such a rate
would take at least five years to complete, Mr. Duda sought expedited processing and expressed
particular interest in prioritizing the production of the Bryant Audio. Id. at 2-4.
In July 2024, the court convened a status conference to discuss the parties’ disputes. July 1,
2024 Minute Entry. Based on the representations at the hearing, the court ordered Defendants to
produce, within two weeks, four hours of responsive audio that had already been processed. July 1,
2024 Minute Order. The court also requested a further status report explaining whether Defendants
could more expeditiously process the Bryant Audio. Id. On July 15, Defendants confirmed that
they could prioritize the Bryant Audio (totaling approximately one hour and forty minutes) and
release it to Mr. Duda in two batches: one by the end of August and a second by the end of
September. ECF No. 10, at 2. The court subsequently entered a minute order adopting that
schedule. July 19, 2024 Minute Order.
In the first batch of the Bryant Audio, despite producing forty-four minutes and forty-seven
seconds of the recording, Defendants redacted all but thirty-seven seconds of audio. ECF No. 12,
at 1-2. Mr. Duda subsequently filed a motion to convene a hearing and set a briefing schedule for
summary judgment concerning the Bryant Audio. Id. at 6-7. The court denied the motion to the
8
extent it requested a hearing but granted Mr. Duda’s request to set a briefing schedule with respect
to Defendants’ withholding of large portions of the Bryant Audio. Oct. 28, 2024 Minute Order.
In December 2024, Defendants filed a motion for partial summary judgment, arguing that
their withholdings of the Bryant Audio were proper under FOIA Exemptions 6, 7(C), and 7(D).6
ECF No. 17. In January 2025, Mr. Duda filed a cross-motion for partial summary judgment. ECF
No. 21. In August 2025, the court issued a memorandum opinion and order denying Defendants’
motion and granting Plaintiff’s cross-motion with respect to Exemption 6 and 7(C), and
Defendants’ duty to disclose reasonably segregable, non-exempt information. ECF No. 36, at 28.
As to Exemption 7(D), which applies if the source of the information received either an express or
implied assurance of confidentiality, the court concluded that the source of the Bryant Audio
lacked any implied assurance of confidentiality. ECF No. 36, at 16-19. But the court held that in
camera review of the Bryant Audio and the FBI’s related documentation was necessary to
determine whether the source had received an express assurance of confidentiality. Id. at 16. The
court accordingly instructed Defendants to file a renewed, ex parte motion for partial summary
judgment with respect to withholding the Bryant Audio under Exemption 7(D) and to submit the
documents supporting their assertion of the exemption in camera. Id. at 28. The court further
concluded that Defendants were relieved of their obligation to produce additional portions of the
Bryant Audio until the court decided the renewed motion. Id.
6
FOIA Exemptions 6 and 7(C) permit government agencies to withhold records if disclosing them “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Exemption 7(D), meanwhile, shields law-enforcement records if their disclosure “could reasonably be expected to disclose the identity of a confidential source[;] . . . and, in the case of a record or information compiled by [a] criminal law enforcement authority in the course of a criminal investigation . . . , information furnished by a confidential source.” Id. § 552(b)(7)(D).
9
Following the court’s decision, Defendants have continued to process and send several
batches of non-Bryant-Audio materials to Mr. Duda. See ECF Nos. 37, 45, 48, 49, 52.
Additionally, pursuant to the court’s memorandum opinion and order, Defendants have filed a
renewed, ex parte motion for partial summary judgment. See ECF Nos. 38, 42. Mr. Duda has
filed a supplemental reply brief in support of his motion for partial summary judgment, ECF
No. 43, which Defendants have moved to strike, ECF No. 44. That motion to strike is fully briefed.
ECF Nos. 44, 46, 47.
III. LEGAL STANDARD
“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.
Off. of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). An agency is entitled
to summary judgment if it can demonstrate that no material facts are in dispute, that it conducted
an adequate search for responsive records, and that each record either has been produced or is
exempt from disclosure. Jud. Watch, Inc. v. U.S. Dep’t of Homeland Sec., 59 F. Supp. 3d 184, 189
(D.D.C. 2014). The agency invoking a FOIA exemption bears the burden of demonstrating that
the exemption applies. U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749,
755 (1989). It must provide agency affidavits or declarations that “describe the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir.
2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)).
Even where the requested information falls comfortably within a FOIA exemption, the
agency must still demonstrate that disclosure would result in foreseeable harm. 5 U.S.C.
§ 552(a)(8)(A)(i)(I). To satisfy this burden, the agency must “articulate both the nature of the
10
harm [from release] and the link between the specified harm and specific information contained in
the material withheld.” Reps. Comm. for Freedom of the Press v. Fed. Bureau of Investigation, 3
F.4th 350, 369 (D.C. Cir. 2021) (alteration in original) (quoting H.R. Rep. No. 114-391, at 9
(2016)). The agency must come up with more than “generalized assertions” or “speculative or
abstract fears” of harm. Id. (first quoting Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364,
371 (D.C. Cir. 2020); then quoting S. Rep. No. 114-4, at 4 (2015)). Instead, it “must provide ‘a
focused and concrete demonstration of why disclosure of the particular type of material . . . will,
in the specific context of the agency action at issue, actually impede’ the interests protected by a
FOIA exemption.” Leopold v. U.S. Dep’t of Just., 94 F.4th 33, 37 (D.C. Cir. 2024) (quoting Reps.
Comm. for Freedom of the Press, 3 F.4th at 370).
IV. DISCUSSION
A. Motion to Strike
Defendants have moved to strike Mr. Duda’s supplemental memorandum in support of his
partial motion for summary judgment, contending that it is an impermissible surreply that is
unnecessary given that the court has already resolved the parties’ cross-motions for summary
judgment. ECF No. 44, at 1, 3. Mr. Duda responds that his filing was appropriate because
Defendants, at the court’s direction, filed a renewed ex parte motion for partial summary judgment,
and, while he lacks access to that ex parte filing, he nevertheless “wishe[s] to provide the Court
facts and argument that are relevant to the resolution of the pending dispute.” ECF No. 46, at 1-2.
While surreplies are “generally disfavored,” Kifafi v. Hilton Hotels Ret. Plan, 736 F. Supp. 2d 64,
69 (D.D.C. 2010), aff’d, 701 F.3d 718 (D.C. Cir. 2012), “[i]t is within the court’s authority to grant
leave to file a sur-reply when ‘the party making the motion would [otherwise] be unable to contest
matters presented to the court for the first time in the opposing party’s reply,’” Lopez v. Council
11
on Am.-Islamic Rels. Action Network, Inc., 657 F. Supp. 2d 104, 108 (D.D.C. 2009) (quoting Lewis
v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C. 2001)), aff’d per curiam, 383 F. App’x 1 (D.C. Cir.
2010). “[A] surreply is not a vehicle for rehashing arguments that have already been raised and
briefed by the parties.” Crummey v. Soc. Sec. Admin., 794 F. Supp. 2d 46, 63 (D.D.C. 2011), aff’d
per curiam, No. 11-5231, 2012 WL 556317 (D.C. Cir. Feb. 6, 2012). For a court to conclude that
a surreply is appropriate, the opposing party’s reply must have raised “truly new” arguments.
THEC Int’l-Hamdard Cordova Grp.-Nazari Constr. Co., Ltd. Joint Venture v. Cohen Mohr, LLP,
301 F. Supp. 3d 1, 6 (D.D.C. 2018) (quoting United States ex rel. Pogue v. Diabetes Treatment
Ctrs. of Am., Inc., 238 F. Supp. 2d 270, 277 (D.D.C. 2002)). The court also considers “whether
the movant would be unduly prejudiced were leave to be granted.” Doe v. Exxon Mobil Corp., 69
F. Supp. 3d 75, 85 (D.D.C. 2014) (quoting Banner Health v. Sebelius, 905 F. Supp. 2d 174, 187
(D.D.C. 2012)). Ultimately, “[t]he decision to grant or deny leave to file a sur-reply is committed
to the sound discretion of the court.” Flynn v. Veazey Constr. Corp., 310 F. Supp. 2d 186, 189
(D.D.C. 2004).
Rather than seeking leave to file a supplement or surreply, Mr. Duda simply attaches his
proposed supplement. ECF No. 43. The court is disinclined to grant leave to file to a movant who,
appearing through counsel, failed to argue that he satisfied the applicable legal standard. And the
surreply functionally “rehash[es]” arguments that Mr. Duda made in his previous briefing, namely,
that no foreseeable harm would result from disclosure of the Bryant Audio in light of the Civil
Rights Cold Case Records Collection Act of 2018 (“RCA”), Pub. L. No. 115-426, § 8(a)(2), 132
Stat. 5489, 5501 (2019) (codified at 44 U.S.C. § 2107). Compare ECF No. 43, at 6-7 (arguing that
because Congress, “through the RCA[,] . . . has abrogated confidentiality for deceased confidential
sources in civil rights cold cases[,] . . . there cannot be foreseeable harm under FOIA”), with ECF
12
No. 21, at 24 (arguing that the RCA evinces Congress’s determination that “no foreseeable harm
will come from disclosing the identity of deceased confidential sources in investigations like this
one”), and ECF No. 32, at 14-15 (similar). To the extent that Mr. Duda wishes to alert the court
to the publication of records related to Mr. Till’s death, the court may take judicial notice of
“information posted on official public websites of government agencies.” Arab v. Blinken, 600 F.
Supp. 3d 59, 63 n.1 (D.D.C. 2022). Because Mr. Duda did not seek leave and is not entitled to file
a surreply, the court will grant Defendants’ motion to strike the brief. See Est. of Fakhoury v.
Islamic Republic of Iran, No. 21-CV-1218, 2022 WL 3355799, at *4 (D.D.C. Aug. 15, 2022)
(granting a motion to strike a surreply where the plaintiff failed to obtain leave to file the surreply
and used it to raise new arguments).
B. FOIA
While FOIA’s “limited exemptions” play a key role in protecting sensitive information
from the public eye, “disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air
Force v. Rose, 425 U.S. 352, 361 (1976). That said, Exemption 7(D) is considered to “afford[] the
most comprehensive protection of all of FOIA’s law enforcement exemptions.” Billington v. Dep’t
of Just., 301 F. Supp. 2d 15, 22 (D.D.C. 2004). Under Exemption 7(D), an agency may withhold
“records or information compiled for law enforcement purposes” if disclosure of those records
“could reasonably be expected to disclose the identity of a confidential source” or “information
furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). 7 The Exemption 7(D) inquiry
7
“A record is ‘compiled for law enforcement purposes’ so long as there is (1) a rational ‘nexus’ between the record and the agency’s law enforcement duties, and (2) a connection between the subject of the record and a possible security risk or violation of federal law.” Levinthal v. Fed. Election Comm’n, 219 F. Supp. 3d 1, 6 (D.D.C. 2016) (quoting Campbell v. U.S. Dep’t of Just.,
(continued on next page)
13
focuses on the expectations of the source at the time he or she provided information. A source is
“deemed confidential if the source furnished information with the understanding that the FBI
would not divulge the communication except to the extent the Bureau thought necessary for law
enforcement purposes.” U.S. Dep’t of Just. v. Landano, 508 U.S. 165, 174 (1993).
A court must assess assurances of confidentiality on a case-by-case basis; there is
“no[] . . . presumption that a source is confidential within the meaning of Exemption 7(D)
whenever [a] source provides information to [law enforcement] in the course of a criminal
investigation.” Id. at 181. Instead, Exemption 7(D) turns on whether the source of the information
received an express or implied assurance of confidentiality. Id. at 172.
The court concluded in its prior memorandum opinion that “the Bryant Audio witness did
not have an implied assurance of confidentiality.” ECF No. 36, at 17. As for an express assurance
of confidentiality, the court explained that Defendants’ evidence was insufficient to establish that
the witness had in fact received an assurance of confidentiality. Id. at 12-16. The court noted that
the parties’ declarations were contradictory as to whether a “Cooperating Witness” designation by
the FBI suffices to establish that the witness had spoken under an assurance of confidentiality. Id.
at 14-15. But the court explained that “the biggest problem for Defendants” was that, “[i]f the
individual who provided the Bryant Audio is indeed Mr. Bayless, as Mr. Duda asserts, then the
FBI’s disclosure of his communications in the Form FD-71 suggests that he did not receive any
guarantees of confidentiality.” Id. at 15. The court also noted that if Mr. Bayless was indeed the
Bryant Audio witness and he was in fact given an express assurance of confidentiality, that would
164 F.3d 20, 32 (D.C. Cir. 1998)). The parties do not dispute that the Bryant Audio was “compiled for law enforcement purposes.” See ECF No. 21-1, at 13-21.
14
“raise[]—at the very least—an interesting question of whether [the FBI’s] own disclosure
dissolves an assurance of confidentiality.” Id. at 15 n.12.
Having received Defendants’ renewed motion and supplemental materials, the court begins
with the question whether the witness who provided the Bryant Audio—whom the FBI now
confirms was Mr. Bayless, Ex Parte Mot., at 4—“spoke with an understanding that the
communication would remain confidential,” Landano, 508 U.S. at 172, and responses to
Mr. Duda’s previous arguments about confidentiality in light of Defendants’ renewed motion. The
court next assesses whether the FBI waived any assurance of confidentiality by its disclosure of
the Form FD-71. The court then turns to whether disclosure may result in foreseeable harm.
1. Whether Mr. Bayless received an express assurance of confidentiality
In Landano, the Supreme Court explained that although “FOIA does not define the
word . . . confidentiality,” it “is not limited to complete anonymity or secrecy” as a matter of
“common usage.” 508 U.S. at 173. Rather, “[a] statement can be made ‘in confidence’ even if
the speaker knows the communication will be shared with limited others, as long as the speaker
expects that the information will not be published indiscriminately.” Id. The Court “assume[d]
that Congress . . . must have realized that some FBI witnesses would testify at trial.” Id. But the
court rejected that the prospect of future public testimony was sufficient to defeat an assurance of
confidentiality because if Exemption 7(D) was “so limited” as to “cover[] only sources who
reasonably could expect total anonymity[, it] would be, as a practical matter, no exemption at all.”
Id. at 174. The Exemption 7(D) inquiry instead turns on the expectations of the source at the time
he or she spoke; “at the time an interview is conducted, neither the source nor the FBI agent
ordinarily knows whether the communication will be disclosed” at some point in the future. Id.
Thus, “[a] source should be deemed confidential [for purposes of Exemption 7(D)] if the source
15
furnished information with the understanding that the FBI would not divulge the communication
except to the extent the Bureau thought necessary for law enforcement purposes.” Id. 8
“To withhold information under Exemption 7(D) by express assurance of confidentiality,
[Defendants] must present ‘probative evidence that the source did in fact receive an express grant
of confidentiality.’” Campbell v. U.S. Dep’t of Just., 164 F.3d 20, 34 (D.C. Cir. 1998) (quoting
Davin v. U.S. Dep’t of Just., 60 F.3d 1043, 1061 (3d Cir. 1995)). “Such evidence can take a wide
variety of forms, including notations on the face of a withheld document, the personal knowledge
of an official familiar with the source, a statement by the source, or contemporaneous documents
discussing practices or policies for dealing with the source or similarly situated sources.” Id. The
crux of the inquiry is whether the agency has provided a “sufficiently detailed explanation of the
basis for the agency’s conclusion” to “permit meaningful judicial review.” Id.
The court had previously questioned whether a cooperating-witness classification sufficed
to establish that the Bryant Audio witness had an express assurance of confidentiality because the
parties’ declarations appeared to contradict each other. See ECF No. 36, at 14-15. Mr. Duda
provided a declaration from Dale Killinger, the FBI agent who had led the 2004 investigation into
Mr. Till’s murder. See ECF No. 21-8. Mr. Killinger explained that, because cooperating witnesses
8
A “Cooperating Witness” receives less robust protections than a “Confidential Informant[],” whom the government expects not only to provide helpful information once but to continue providing information “regarding felonious criminal activities . . . in the future.” See U.S. Dep’t of Just. Off. of the Inspector Gen., The Federal Bureau of Investigation’s Compliance with the Attorney General Investigative Guidelines 1 (2005), available at https://perma.cc/7484-7PUF. Confidential informants thus “usually can preserve their anonymity,” id. at 64, but specific circumstances may indicate that a Cooperating Witness has availed himself of an expectation of confidentiality. The FBI appears to use “Cooperative Witness” and “Cooperating Witness” interchangeably, even in this case. Compare Napier Decl. ¶ 6 (referring to Mr. Bayless as a “Cooperative Witness”), with id. ¶¶ 12, 16 (noting that he was referred to as a “Cooperating Witness” in his investigative file).
16
“agree[] to assist the government in prosecuting a criminal defendant by providing testimony or
other valuable information,” those witnesses “know that their identity, and the information they
provided, is likely to be disclosed if criminal prosecution is pursued.” Id. ¶ 12; see ECF No. 36,
at 14-15. Mr. Duda accordingly argued that “[t]he fact that the person who provided the
[Bryant] Audio was identified as a ‘cooperating witness’ reveals nothing about whether he was
promised confidentiality and, if so, what the scope of that agreement was.” ECF No. 21-1, at 19.
Mr. Duda further argued that the FBI’s July 2022 release of the Form FD-71 documenting a
conversation between Mr. Bayless and the FBI constitutes “contrary evidence showing that the
source of the Bryant Audio did not request—and was not provided—an assurance of
confidentiality.” Id. at 17.
For their part, Defendants provided two declarations from Michael G. Seidel, who was the
section chief of the Record/Information Dissemination Section of the FBI’s Information
Management Division. ECF No. 17-1 ¶ 1; see ECF No. 29-1. Mr. Seidel stated that a
“Cooperating Witness” designation “is a positive indication [that an] individual entered into an
official, confidential relationship with the FBI in which he or she would have, by standard FBI
practice, been provided with the FBI’s express assurance of confidentiality.” ECF No. 29-1 ¶ 15.
He further explained that “[t]he FBI was able to determine [that] its investigators granted [the
Bryant Audio witness] an express assurance of confidentiality because it located positive
indicators in the related records that the individual requested, and was granted, an assurance of
confidentiality.” ECF No. 17-1 ¶ 25. Mr. Duda responded that Mr. Seidel’s declarations were
insufficient because Mr. Seidel did not join the FBI until after the agency’s investigation into
Mr. Till’s murder was closed, meaning that he lacked “personal knowledge of whether
[Mr.] Bayless was given an express promise of confidentiality,” and because the declarations
17
otherwise failed to “identify any relevant documents in support of its assertion.” ECF No. 21-1,
at 16.
Given the competing declarations, the court concluded that in camera review was
warranted to evaluate the basis for Mr. Seidel’s assertions that express assurances were granted
and reach a definitive conclusion on whether the Exemption 7(D) withholdings were proper. ECF
No. 36, at 16. In their renewed motion, Defendants again contend that Mr. Bayless provided the
Bryant Audio under an express assurance of confidentiality, arguing that FBI agents’ notations on
contemporaneous documents demonstrate that Mr. Bayless furnished information under an
express assurance of confidentiality Ex Parte Mot., at 4-7. As support, they provide a declaration
from Amie Marie Napier, the FBI Section Chief who oversees the agency’s FOIA unit (“Napier
Declaration”), accompanied by exhibits substantiating their claim, see id. Exs. A to F. Defendants
further argue that the FBI’s July 2022 disclosure of Mr. Bayless’s Form FD-71 does not warrant a
contrary conclusion. Id. at 7-8. Having reviewed the materials, the court concludes that the FBI
had given Mr. Bayless an express assurance of confidentiality before he provided the Bryant Audio
and that the Form FD-71 does not warrant a different conclusion.
a. The FBI’s new declaration and supporting documentation
In their renewed motion, Defendants explain that the FBI officially deemed Mr. Bayless a
“Cooperating Witness” on when it completed what is known as a .
Ex Parte Mot. at 5; see id. Ex. A; Napier Decl. ¶ 6.
Id. Ex. A, at 2. Mr. Bayless was then
18
and a case identification number. Id. Ex. A, at 1. Ms. Napier explains that
the “CW” reference “in an FBI investigative file is a positive indication that the individual entered
into an official, confidential relationship with the FBI in which [the individual] would have been
provided with an express assurance of confidentiality.” Napier Decl. ¶ 16. The FBI also assigned
Mr. Bayless a symbol source number and a confidential source file number, notations that the FBI
assign to “Confidential Human Sources [] who report information to the FBI on a regular basis
under express assurances of confidentiality.” Id.; see Ex Parte Mot. Ex. A; see also id. Ex. D
(describing Cooperating Witness #1 with reference to the same case identification number used on
the ). As Ms. Napier explains, “the FBI did not refer to Mr. Bayless by his true name
within the investigation records” and instead referred “only [to] his assigned permanent source
symbol number to further protect his identity within FBI records.” Napier Decl. ¶ 16; see Ex Parte
Mot. Ex. D (using the confidential file number and using the word “Individual” throughout the
summary in place of Mr. Bayless’s name); id. (describing the Bryant Audio as “a recorded
conversation between a CONFIDENTIAL SOURCE,” Mr. Bryant, and a third named individual).
And when the FBI closed its file on Mr. Bayless in , it again used only his
confidential source number and additionally checked a box indicating that Mr. Bayless’s
relationship was not “ever disclosed outside of the Department of Justice.” Id. Ex. F. Even in
, the agent continued to reference Mr. Bayless only by his permanent source symbol
number. Id. Ex. E.
Taken together, these documents constitute probative evidence that, Mr. Bayless disclosed
the Bryant Audio under an express assurance of confidentiality. While Mr. Duda was correct that
Defendants’ previous evidence failed to “identify any relevant documents in support of its
assertions” of express confidentiality, ECF No. 21-1, at 16, Defendants have now cured that defect
19
by providing specific contemporaneous documents with notations indicating that Mr. Bayless had
been expressly promised confidentiality.
The cases on which Mr. Duda relied in his motion for partial summary judgment only
underscore the court’s conclusion. See ECF No. 21, at 15-17. In Electronic Privacy Information
Center v. Drug Enforcement Agency (“EPIC”), 192 F. Supp. 3d 92 (D.D.C. 2016), the court
concluded that the “government ha[d] failed to meet its burden” of demonstrating an express
assurance of confidentiality where the agency did “not (1) attach declarations from the agents who
extended the promise of confidentiality, (2) produce any FBI document supporting the grant of
confidentiality, or (3) submit evidence of a consistent policy granting confidentiality to designated
sources during the relevant time period.” Id. at 111. The court in EPIC ordered submission of
relevant documents for in camera review, id., just as the court did here, ECF No. 36, at 28.9
Similarly, in Electronic Frontier Foundation v. Department of Justice, No. 15-CV-3186, 2016 WL
7406429 (N.D. Cal. Dec. 22, 2016), the court held that the government failed to meet its burden
where the government provided “no indication it ever told [the sources that] their names would be
held in confidence.” Id. at *14. But here, Defendants have now produced several documents
substantiating their argument that the FBI did in fact grant Mr. Bayless an express assurance of
confidentiality.
Other cases in this district confirm the court’s conclusion. In Clemente v. Federal Bureau
of Investigation, 741 F. Supp. 2d 64 (D.D.C. 2010), the court recognized that “it is the FBI’s
9
The court did not issue a subsequent opinion on the validity of the withholdings pursuant to Exemption 7(D) because the government in that case subsequently withdrew the part of its summary judgment motion that relied on Exemption 7(D) and produced the relevant materials. See Notice of Partial Withdrawal, Elec. Privacy Info. Ctr. v. Drug Enf’t Agency, No. 14-CV-317, ECF No. 41, at 2-4 (D.D.C. Sep. 4, 2018).
20
practice to assign source symbols to informants only if those individuals report information to the
FBI on a regular basis pursuant to an express grant of confidentiality.” Id. at 87 (internal quotation
marks and citation omitted). The court deemed that “averment [] sufficient to demonstrate that
those informants [with source symbols] qualify as” confidential sources, whose disclosures to the
FBI were properly withheld under Exemption 7(D). Id.; see Shapiro v. Dep’t of Just.,
No. 12-CV-313, 2020 WL 3615511, at *33 (D.D.C. July 2, 2020), aff’d in part, remanded in part
sub nom. Shapiro v. U.S. Dep’t of Just., 40 F.4th 609 (D.C. Cir. 2022) (concluding that “[a]
document containing a CW designation . . . constitutes probative evidence that an express
assurance of confidentiality was given”); Boehm v. Fed. Bureau of Investigation, 948 F. Supp. 2d
9, 33-34 (D.D.C. 2013) (concluding that designations of “Protected Identify [sic],” “Cooperating
Witness,” and “Cooperating Source” sufficed to demonstrate “that the information withheld was
from confidential sources” and thus properly withheld under Exemption 7(D) (internal quotation
marks omitted)); Amuso v. U.S. Dep’t of Just., 600 F. Supp. 2d 78, 99 (D.D.C. 2009) (crediting the
FBI declarant’s explanation that “all symbol numbered sources are given an express grant of
confidentiality” and concluding on that basis that “the information provided by [] symbol
numbered sources” was properly withheld under Exemption 7(D) (internal quotation marks and
citation omitted)).
b. Responding to Mr. Duda’s arguments in light of the new evidence
In his motion for partial summary judgment, Mr. Duda made three arguments that
Mr. Bayless either was not given an express assurance of confidentiality or that it has since expired.
He argued that the FBI’s disclosure of the June 2005 Form FD-71 reflects that the FBI had not
provided an assurance of confidentiality, ECF No. 21-1, at 17-18, that the disclosure of the FBI
report “reveals to the public precisely the information that Bayless provided,” id. at 18, and that
21
the Bryant Audio source’s identity “has become widely known to the public through the Atlantic
article” and based on Mr. Bayless’s daughter’s email to Mr. Duda, id. at 19. The court addresses
each in turn.
Mr. Bayless’s Form FD-71. As explained supra pp. 22-23, in July 2022, the FBI released
a copy of a June 7, 2005 Form FD-71 that documented a call between Mr. Bayless and the FBI.
ECF No. 21-8 ¶ 18. On the form, which contained no redactions, the FBI agent who had taken
Mr. Bayless’s call noted that Mr. Bayless wanted to “turn over” a recording he had made in which
Mr. Bryant confessed to killing Mr. Till. Id. The agent did not check the box on the Form FD-71
for “Protect Source” but did report that the Mr. Bayless “would like to be protected from anyone
who would wish to harm him.” Id. ¶ 18-19. In seeking partial summary judgment, Mr. Duda
argued that the Form FD-71 constitutes “contrary evidence showing that the source of the
Bryant Audio did not request—and was not provided—an assurance of confidentiality” because
the box for “Protect Source” was not checked. ECF No. 21-1, at 10, 17-18 (quoting ECF No. 21-8
¶ 19); see ECF No. 21-8 ¶¶ 19-20. As support, Mr. Duda relied on Mr. Killinger’s statement in
his declaration that, “[t]he fact that the Protect Identity box was not checked on this FD-71 reveals
that Mr. Bayless did not request his identity be protected when speaking to the FBI on June 7,
2005.” ECF No. 21-8 ¶ 20.
On the record then before it, the court was inclined to agree that the Form FD-71 was
relevant to the confidentiality analysis. ECF No. 36, at 15. The court explained that “[i]f the
individual who provided the Bryant Audio is indeed Mr. Bayless . . . , then the FBI’s disclosure of
his communications in the Form FD-71 suggests that he did not receive any guarantees of
confidentiality,” because “[p]resumably, the FBI would not reveal the identity of a witness in a
public disclosure if that witness asked for, and was granted, an assurance that the Bureau ‘would
22
not divulge the communication.’” Id. at 15 (quoting Landano, 508 U.S. at 174). But on the record
now before it, the court understands that Mr. Bayless was given an express assurance of
confidentiality after the Form FD-71 was completed, and, accordingly, the Form FD-71 is not
relevant evidence—let alone “contrary evidence”—bearing on the question of confidentiality.
As Ms. Napier explains, Form FD-71 is an intake form that the FBI “[o]ften” fills out when
a person calls with a tip or complaint after normal business hours. Napier Decl. ¶ 8. The “Protect
Source” box exists “to indicate if the individual’s identity should be incorporated into FBI systems,
as some Complainants and Tipsters prefer not to be contacted again or have their identities placed
in FBI record keeping systems.” Id. Thus, the agent’s failure to check the “Protect Source” box
on Mr. Bayless’s Form FD-71 indicates merely that “[Mr.] Bayless did not wish to be anonymous
to the FBI and did not object to [the] entry of his information into FBI records and databases.” Id.
¶ 9 (emphasis added).
When Mr. Bayless contacted the FBI on June 7, 2005, he lacked any official confidential
relationship with the FBI. Cf. Ex Parte Mot. Ex. A (opening cooperating witness file on
Mr. Bayless on ). The unchecked “Protect Identity” box on his Form FD-71 is thus
wholly consistent with Defendants’ argument that the FBI later granted Mr. Bayless an express
assurance of confidentiality. 10 By , when the FBI opened its investigative file, it labeled
10
What is more, the court is skeptical that the Form FD-71 even supports the limited proposition that Mr. Bayless did not seek an assurance of confidentiality at the time he initiated contact with
(continued on next page)
23
that Mr. Duda seeks to argue that the FBI Report suggests that any confidentiality assurance was
“intended by all parties to expire after a certain time,” id. (quoting Irons v. Fed. Bureau of
Investigation, 880 F.2d 1446, 1448 (1st Cir. 1989)), the D.C. Circuit has made clear that “Congress
has not established a time limitation for exemption 7(D) and it would be both impractical and
inappropriate for [a] [c]ourt to do so,” Keys v. U.S. Dep’t of Just., 830 F.2d 337, 347 (D.C. Cir.
1987) (internal quotation marks and citation omitted).
The article in The Atlantic and Mr. Bayless’s daughter. Finally, Mr. Duda pointed to an
article in The Atlantic discussing Mr. Bayless and an email from Mr. Bayless’s daughter indicating
that Mr. Bayless had turned over the Bryant Audio as evidence that the FBI never extended an
assurance of confidentiality to Mr. Bayless. ECF No. 21-1, at 19. But those records have little
import because Exemption 7(D) turns on the understanding of the source at the time he or she
spoke. See Landano, 508 U.S. at 171. The article in The Atlantic never indicates that the writer
or anyone he spoke with had knowledge of Mr. Bayless’s relationship to the FBI, see generally
ECF No. 21-7, at 7-43, nor does Mr. Duda provide any evidence that Mr. Bayless’s daughter was
aware of the precise contours of her father’s relationship with the FBI.
2. Waiver through the Form FD-71
In its previous opinion, the court independently questioned whether, if Mr. Bayless had
disclosed the Bryant Audio under an express assurance of confidentiality, the FBI’s subsequent
disclosure of the Form FD-71 “dissolve[d] an[y] assurance of confidentiality.” ECF No. 36, at 15
n.12. The court can now answer that question in the negative.
The D.C. Circuit has held that “the concept of ‘waiver’ does not apply to the
FOIA Exemption 7(D),” adopting as persuasive then-Judge Breyer’s First Circuit opinion. Parker
v. Dep’t of Just., 934 F.2d 375, 380 (D.C. Cir. 1991) (citing Irons, 880 F.2d at 1448-57). It noted
25
that the text of Exemption 7(D) “says nothing at all about waiver” and that Exemption 7(D)
protects information from a confidential source without any room for interest-balancing. Id. It
also cited as persuasive “clear and unambiguous” legislative history showing that “Congress
sought to provide a broad exemption.” Id. And it concluded that the First Circuit’s rejection of
waiver was “both persuasive and consistent with the interpretation of [the D.C. Circuit] and the
other circuits.” Id. Courts in this Circuit have thus continually recognized that, “with limited
exceptions not applicable here, the concept of waiver does not apply to withholdings made
pursuant to Exemption 7(D).” Shem-Tov v. Dep’t of Just., 531 F. Supp. 3d 102, 116 (D.D.C. 2021)
(footnote omitted) (rejecting a plaintiff’s argument that public disclosure of “some or all of the
information at issue or the identity of the [source]” could “waive the protection afforded to the
confidential information and source by Exemption 7(D)”); see Brown v. Fed. Bureau of
Investigation, No 21-CV-01639, 2023 WL 5333210, at *16 (D.D.C. Aug. 18, 2023), aff’d, 143
F.4th 481 (D.C. Cir. 2025), cert. denied, 146 S. Ct. 1608 (2026).
The Parker Court reserved the question whether a source’s “actual testimony waives the
right to nondisclosure,” differentiating two unpublished cases from other districts in which courts
held that a known informant’s public testimony constituted waiver. 934 F.2d at 380-81. And
another court in this district concluded that two sources had waived “any assurances of
confidentiality . . . by writing books about their experiences as confidential FBI informants.”
Blanton v. U.S. Dep’t of Just., 63 F. Supp. 2d 35, 49. Here, there is no analogous evidence that
Mr. Bayless himself waived his confidentiality interest. “Indeed, one reason that the caselaw
requires an unambiguous waiver by the confidential source itself is to avoid precisely the type of
speculation that Plaintiff employs about whether news articles and other public sources might—or
might not—already reveal the confidential material at issue.” Shem-Tov, 531 F. Supp. 3d at 116
26
n.6. The court is sympathetic to Mr. Duda’s contention that Exemption 7(D)’s application feels
strained in a case where the source is dead and the investigation is closed. But “[d]eath of a
confidential source . . . is not relevant under exemption 7(D).” Campbell, 164 F.3d at 33 n.14. 11
3. Foreseeable Harm
Even after establishing that Exemption 7(D) applies, Defendants bear the burden of
demonstrating that disclosure of the requested documents would result in foreseeable harm.
5 U.S.C. § 552(a)(8)(A)(i)(I). The agency must “articulate both the nature of the harm [from
release] and the link between the specified harm and specific information contained in the material
withheld.” Reps. Comm. for Freedom of the Press, 3 F.4th at 369 (alteration in original) (quoting
H.R. Rep. No. 114-391, at 9).
11
In addressing foreseeable harm in the partial summary judgment briefing, Mr. Duda raised the related argument that Mr. Bayless’s identity has “entered the public domain” and thus “may be disclosed notwithstanding any assurance of confidentiality” because “the FBI has already released a document disclosing his identity”—that is, the Form FD-71. ECF No. 21-1, at 23. While the D.C. Circuit has recognized that “the government cannot rely on an otherwise valid exemption to justify withholding information that . . . is in the ‘public domain,’” the plaintiff bears “the burden of showing that there is a permanent public record of the exact portions he wishes.” Davis v. U.S. Dep't of Just., 968 F.2d 1276, 1279-80 (D.C. Cir. 1992) (quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)). This is an exacting requirement: “[c]ourts are forbidden ‘from prying loose from the government even the smallest bit of information that is properly’ withheld.” Kowal v. U.S. Dep’t of Just., 107 F.4th 1018, 1030 (D.C. Cir. 2024) (quoting Afshar, 702 F.2d at 1130) (holding that even where “wiretapped conversations were made public at [a] trial,” the plaintiff could not obtain “the FBI’s narrative summary of those conversations” because the summary was not the “exact” record in the public domain (internal quotation marks and citation omitted)). Here, while Mr. Duda points to the Form FD-71 documenting that Mr. Bayless had called the FBI to explain that he had materials related to Mr. Till’s murder, including recordings of Mr. Bryant, see ECF No. 21-1, at 24-25, Mr. Duda has not demonstrated “that there is a permanent public record of the exact portions he wishes,” namely, a record showing that Mr. Bayless did in fact turn over the Bryant Audio. The public domain exemption is thus inapplicable to the identity of the Bryant Audio’s source, and it is even further afield as it concerns the Bryant Audio itself.
27
Defendants make no arguments as to foreseeable harm in their renewed motion for
summary judgment, see generally Ex Parte Mot., which is understandable given the odd posture
of this case. And the court had no occasion to address foreseeable harm in its last opinion given
its holding that that a determination on Exemption 7(D) required in camera review. See ECF
No. 36, at 16, 27-28. Accordingly, the court will rely on the parties’ previous arguments about
foreseeable harm from the cross-motions for partial summary judgment. ECF No. 17, at 15-16;
ECF No. 21-1, at 22-25; ECF No. 29, at 17. Defendants there explained that the FBI routinely
relies on confidential sources and argued that any revelation endangering a confidential source’s
identity has a “chilling effect on the activities and cooperation of other sources.” ECF No. 17,
at 12; see Napier Decl. ¶ 18 (declaring that such a “chilling effect” would “diminish[] the FBI’s
capabilities in gathering useful information in its investigation”). Defendants relatedly contended
that any disclosure “would display an unwillingness by FBI to honor its assurance of
confidentiality” and “greatly hinder FBI’s ability to recruit and maintain sources willing to provide
accurate and relevant information pertaining to criminal activities.” ECF No. 17, at 13 (citing ECF
No. 17-1 ¶ 26).
In response, Mr. Duda claimed that Defendants’ assertions of harm centered on witness
deterrence are too generalized or “boilerplate” to satisfy the government’s burden. ECF No. 21-1,
at 23. To be sure, the D.C. Circuit has previously noted that the government fails to carry its
burden when it merely “submit[s] a series of boilerplate and generic assertions that release of any
[withheld] material would necessarily chill.” Reps. Comm. for Freedom of the Press, 3 F.4th
at 370. But the Court has more recently recognized that “the FBI has an institutional interest in
ensuring witness cooperation in future investigations, not just its investigation” into the instant
crime. Brown v. Fed. Bureau of Investigation, 143 F.4th 481, 488 (D.C. Cir. 2025), cert. denied,
28
146 S. Ct. 1608 (2026). In Brown, the Court affirmed the FBI’s withholdings under
Exemption 7(D) related to several witnesses who had provided information related to a 2015
terrorist attack. Id. at 484, 489. The Court explained that the foreseeable harm was “twofold.” Id.
at 488. First, “disclosure would create a risk of harm for witnesses” by exposing them to “reprisal
and retaliation.” Id. “Second,” the Court credited the FBI’s statement that “disclosure would
undermine the efficacy of future witness interviews.” Id. The Court found it “difficult to imagine
a criminal investigation in which that interest would not be applicable” and expressed “doubt[]
that the FBI needed to articulate any harm beyond the harm already identified in Congress’s
decision to create a special exemption for ‘information furnished by a confidential source.’” Id.
at 488-89 (quoting 5 U.S.C. § 552(b)(7)(D)).
Cases like Brown do not doom Mr. Duda’s argument, however, because Mr. Duda has
convincingly explained that this case presents an anomalous situation where Defendants’ general
statements about the chilling effects of disclosure are insufficient to establish foreseeable harm.
Specifically, Mr. Duda contended that the RCA “already abrogated confidentiality for deceased
sources in civil rights cold case investigations.” ECF No. 32, at 2. Defendants hang their hats on
the argument that disclosure will chill future witnesses, but in so doing, Defendants assume that
the FBI can otherwise credibly promise witnesses that their identities and disclosures will remain
confidential forever. See ECF No. 29, at 11. If Congress has abrogated confidentiality for
witnesses like the Bryant Audio source under the RCA, it has already constrained the FBI’s ability
to make such promises. Put simply, no additional chill can result from Mr. Duda’s request if
Congress has already abrogated the relevant source’s confidentiality.
The court concludes that, through the RCA, Congress has abrogated any assurance of
confidentiality that the FBI has made to any source in a “civil rights cold case,” including the
29
source of the Bryant Audio—and Defendants make no argument to the contrary. To begin, the
RCA defines a “civil rights cold case record” as a record that:
(A) is related to a civil rights cold case; and
(B) was created or made available for use by, obtained by, or
otherwise came into the possession of—
(i) the Library of Congress;
(ii) the National Archives;
(iii) any executive agency;
(iv) any independent agency;
(v) any other entity of the Federal Government; or
(vi) any State or local government, or component thereof,
that provided support or assistance or performed work in
connection with a Federal inquiry into a civil rights cold
case.
§ 2(3), 132 Stat. at 5489-90 (internal quotation marks omitted). The FBI is indisputably an
“executive agency” for purposes of the RCA, but even if the FBI could attempt to argue otherwise,
it would nevertheless fall within the RCA’s capacious definition of “any other entity of the Federal
Government.” Id. 12
The RCA then directs that “civil rights cold case records” be “transmitted” to NARA and
tasks NARA with “mak[ing] available to the public” all such records. § 3(b), (e)(1)(A), 132 Stat.
at 5491. Defendants do not dispute that the RCA covers records relating to the FBI’s investigation
of the murder of Mr. Till. See generally ECF No. 29. In fact, NARA has already released various
12
Additionally, as explained above, the Form FD-71 indicates that Mr. Bayless provided the Bryant Audio to NARA directly. ECF No. 21-8 ¶ 18. If this is correct, the Bryant Audio is covered by the RCA twice over. See § 2(3)(B)(ii), 132 Stat. at 5489. Indeed, because the FBI turned over its evidence to Leflore County District Attorney’s office, see ECF No. 21-6, at 156, then the Bryant Audio may be covered by the RCA thrice over, see § 2(3)(B)(vi), 132 Stat. at 5490.
30
records related to Mr. Till’s murder “pursuant to the [RCA].” Records Related to Emmett Louis
Till, 2023-2025, National Archives and Records Administration. 13
The RCA contains provisions to protect confidential information, § 4(B)(2), 132 Stat.
at 5494, but none applies to the Bryant Audio. As relevant here, the RCA permits “postponement”
of the disclosure of civil rights cold case records if “disclosure would clearly and demonstrably be
expected to . . . reveal the name or identity of a living individual who provided confidential
information to the United States” and “pose a substantial risk of harm to that individual.”
§ 4(B)(2), 132 Stat. at 5493-94 (emphasis added). The FBI does not dispute that both Mr. Bryant
and the source of the Bryant Audio are deceased, see ECF No. 21-1, at 25 (Mr. Duda stating that
“the source of the [Bryant Audio] is deceased”); ECF No. 29-1 ¶ 10 (admitting that “the persons
that Plaintiff alleges are known to be deceased are, indeed, deceased”); accordingly, the RCA
provides no basis to postpone disclosure of the Bryant Audio. Indeed, the RCA requires NARA
to engage in periodic review of postponed records to decide whether to continue the
postponement—effectively guaranteeing posthumous publication. § 5(h), 132 Stat. at 5496.
What is more, the RCA specifically contemplates reducing the scope of most FOIA
exemptions. The RCA contains a provision directing that “when this Act requires transmission of
a record to [NARA] or public disclosure, it shall take precedence over any other law . . . , judicial
decisions construing such law, or common law doctrine that would otherwise prohibit such
transmission or disclosure.” § 9(a)(1), 132 Stat. at 5502. In so doing, the RCA singles out one
FOIA exemption that continues to apply—that is, where the FOIA exemption would prevent
disclosure notwithstanding the RCA, providing that the “Act shall not require the public disclosure
13
Available at https://perma.cc/6LAF-A79Y.
31
of information that is exempt from disclosure under [FOIA Exemption 6, which applies to
personnel and medical files].” § (9)(a)(2), 132 Stat. at 5502; see 5 U.S.C. § 552(b)(6). This
demonstrates that Congress contemplated the interaction between the RCA’s disclosure
requirements and FOIA’s exemptions, and it determined that the RCA trumps FOIA
Exemption 7(D). See TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (“Where Congress explicitly
enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied,
in the absence of evidence of a contrary legislative intent.” (quoting Andrus v. Glover Constr. Co.,
446 U.S. 608, 616-17 (1980)). The RCA also reaffirms individuals’ right to seek records under
FOIA, § 9(b), 132 Stat. at 5502, again suggesting that Congress crafted the RCA to maximize
disclosure save a few enumerated exceptions.
Defendants offer no real substantive response to Mr. Duda’s argument about the RCA. In
their partial summary judgment briefing, they made a fleeting statement that the RCA “is a separate
statute not at issue here” and that “[t]he issues here are determined pursuant to the FOIA, not some
other statute.” ECF No. 29, at 11-12. But this is wholly unresponsive to the relevant question:
whether Defendants “reasonably foresee[] that disclosure would harm” the FBI’s interest in
protecting its confidential sources. 5 U.S.C. § 552(a)(8)(A)(i)(I). Because the RCA abrogates
confidentiality for witnesses in civil rights cold cases, the FBI cannot make the type of unreserved
assurances of confidentiality that it may be able to make in other contexts. As a result, Defendants
cannot show that disclosure here would weaken the strength of the FBI’s promises. The
D.C. Circuit has previously recognized that where the “FBI is obligated by law to provide
information” to another part of the government, the agency cannot cite general chilling effects as
a foreseeable harm of disclosure. Reps. Comm. for Freedom of the Press, 3 F.4th at 370-71. As
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Mr. Duda aptly put it: “the harm (if any) the FBI fears has already occurred by force of law—and
would not accrue as a result of the disclosure of the records at issue here.” ECF No. 32, at 15.
While FOIA Exemption 7(D) provides no room for judicial balancing in the threshold
decision whether the exemption applies, the foreseeable-harm requirement “impose[s] an
independent and meaningful burden on agencies.” Reps. Comm. for Freedom of the Press, 3 F.4th
at 369 (alteration in original) (quoting Ctr. for Investigative Reporting v. U.S. Customs & Border
Prot., 436 F. Supp. 3d 90, 106 (D.D.C. 2019)). Defendants bear the burden of demonstrating
foreseeable harm, but their generalized contention that any disclosure “would display an
unwillingness by FBI to honor its assurance of confidentiality,” ECF No, 17, at 13, cannot be
squared with Congress’s specific abrogation of confidentiality for deceased witnesses in civil
rights cold cases.
V. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendants’ Motion to Strike, ECF
No. 44, is GRANTED, and Plaintiff’s Supplement, ECF No. 43 is STRICKEN from the record.
It is further ORDERED that Defendant’s Renewed, Ex Parte Partial Motion for Summary
Judgment is DENIED. And it is further ORDERED that (1) Defendants shall file, under seal, a
proposed redacted version of the order for the public docket on or before October 9, 2026; and
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(2) the parties shall meet and confer and file a joint status report on or before October 26, 2026,
proposing next steps concerning the Bryant Audio.
SO ORDERED.
LOREN L. ALIKHAN
United States District Judge
Date: September 25, 2026
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