FOIA Request For FBI Investigation Into Emmett Till Murder Will Be Reviewed In Camera
The United States District Court for the District of Columbia (Judge AliKhan) will conduct an in camera review of tapes relating to the FBI investigation into the murder of Emmett Till that are the subject of FOIA litigation
Plaintiff Kelly Duda brings this action against the Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI” or “Bureau”) (collectively, “Defendants”), alleging several violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Mr. Duda seeks the release of audio recordings related to the investigation of Emmett Till’s murder. The parties have now reached an impasse with respect to one of the many recordings at issue in this case: a taped interview of Roy Bryant (“Bryant Audio”), one of the men who confessed to killing Mr. Till. While Defendants continue to process other recordings related to Mr. Duda’s FOIA request, the parties have submitted cross-motions for partial summary judgment with respect to the Bryant Audio. For the reasons explained below, the court concludes that (1) in camera review is required to resolve the parties’ arguments concerning Exemption 7(D), (2) Defendants’ withholdings of the Bryant Audio under Exemptions 6 and 7(C) are improper, and (3) Defendants failed to reasonably segregate and produce non-exempt information in the Bryant Audio. The court will therefore deny both parties’ motions and conduct in camera review with respect to Exemption 7(D), but will deny Defendants’ motion and grant Mr. Duda’s motion with respect to the latter two claims.
The court recounted the story of the initial investigation and subsequent events surrounding the murder
Almost half a century later, in 2004, and at the request of the Greenwood, Mississippi district attorney’s office, 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, most of the other witnesses and individuals with first-hand knowledge of the murder had died. See ECF No. 21-6, at 20-31 (indicating that almost everyone with some connection to the murder and its aftermath was “deceased”). Only four known witnesses were still alive when the FBI opened its 2004 investigation: Mrs. Bryant; Willie Reed, who saw Mr. Till in the back of a truck at Leslie Milam’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 him the moment he was kidnapped, id. at 142-44; 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.
The FBI published a redacted version of its investigative findings (“FBI Report”) in February 2006. See id. 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. Id. at 90.
When asked about the kidnapping of Mr. Till, Mr. Bryant said that they had planned to “put his 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 91. He also told the cooperating witness: “I’m the only one who’s livin’ that knows it . . . . That’s all that will ever be known.” Id.
The witness who recorded this conversation is believed to be Luster Bayless, a Hollywood costume designer who had become interested in making a film about Mr. Till’s murder. ECF No. 21-7, at 29; see ECF No. 21-3, at 3.6 In June 2005, Mr. Bayless contacted the FBI about turning over a recording he had in connection with “the Emmit Teal [sic] case.” ECF No. 21-8 ¶ 18. He further 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’s Form FD-71 documenting his 2005 conversation with the FBI did not have the box for “Protect Source” checked. Id. The form also indicated that Mr. Bayless had given the recording to the National Archives and Records Administration. See id. Mr. Bayless eventually passed away in February 2022. ECF No. 21-3, at 3.
At the end of its 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 jury, but it did not return any indictments. Id. The FBI subsequently closed its investigation in December 2007. Id.
Then
In 2017, historian Timothy Tyson published a book on Mr. Till’s murder and claimed— based on an interview with Mrs. Bryant—that Mrs. Bryant had recanted her story about Mr. Till’s “physical assault” at the grocery store in 1955. ECF No. 21-6, at 116 (“She said with respect to the physical assault on her, or anything menacing or sexual, that that part isn’t true[.]”). Because Mrs. Bryant’s testimony had played such a critical role in securing the acquittals of her husband and Mr. Milam, this revelation prompted the FBI to reopen its investigation into the case. ECF No. 21-7, at 2-3. The FBI interviewed Mrs. Bryant, who was still alive at the time, but she “denied to the FBI that she [had] ever recanted her testimony and provided no information beyond what was uncovered during the previous federal investigation.” Id. at 4. The FBI concluded that there was “insufficient evidence to prove that she ever told [Professor Tyson] that any part of her testimony was untrue.” Id. It also “found no new evidence suggesting that either [Mrs. Bryant] or any other living person was involved in Till’s abduction and murder.” Id. The FBI officially closed its reinvestigation in December 2021. Id. at 2. Mrs. Bryant died a year-and-a-half later. ECF No. 21-6, at 115.
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.
Conclusion
In the interest of efficiency, the court will first proceed with in camera review of the documents supporting Defendants’ invocation of Exemption 7(D). Based on that review, the court will determine whether Exemption 7(D) properly applies. While the court could—in the interim— order the release of non-exempt portions of the Bryant Audio withheld pursuant to Exemptions 6 and 7(C), it concludes that efficiency is best served by requiring Defendants to make one cohesive production of the Bryant Audio after the court has fully resolved all disputed FOIA exemptions. So, even though Defendants will be required to produce at least some previously withheld portions of the Bryant Audio, they are relieved of their obligation to produce additional portions until the court issues a decision on the invocation of Exemption 7(D).