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American Civil Liberties Union of Northern California v. United States Department of Justice

United States Court of Appeals, Ninth Circuit

January 18, 2018

American Civil Liberties Union of Northern California, Plaintiff-Appellee,
v.
United States Department of Justice, Defendant-Appellant.

          Argued and Submitted December 12, 2016 San Francisco, California

         Appeal from the United States District Court for the Northern District of California D.C. No. 3:12-cv-04008-MEJ Maria-Elena James, Magistrate Judge, Presiding

          H. Thomas Byron III (argued) and Leonard Schaitman, Appellate Staff; Melinda Haag, United States Attorney; United States Department of Justice, Washington, D.C.; for Defendant-Appellant.

          Linda Lye (argued) and Michael T. Risher, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California, for Plaintiff-Appellee.

          Before: Michael Daly Hawkins, Marsha S. Berzon, and Mary H. Murguia, Circuit Judges.

         SUMMARY [*]

         Freedom of Information Act

         The panel affirmed in part, and reversed in part, the district court's order that the United States Department of Justice ("DOJ") produce two documents contained within the USABook, an internal DOJ resource manual for federal prosecutors, in response to the American Civil Liberties Union of Northern California's Freedom of Information Act ("FOIA") request.

         The requested documents related to DOJ's use of electronic surveillance and tracking devices in criminal investigations. DOJ maintained that the USABook sections were exempt from production under FOIA because they were attorney work product, and, alternatively, because they described law enforcement techniques and procedures.

         The panel held that only the limited portions of the USABook documents that present original legal analyses, not purely descriptive and not already incorporated in public documents, to guide federal prosecutors in litigation were properly withheld as attorney work product under FOIA Exemption 5. The panel also held that the withheld documents in this case did not provide details or means of deploying law enforcement techniques that would bring them under FOIA Exemption 7(E). The panel remanded to the district court to determine which portions of the documents may be segregated under Exemption 5 and which must be disclosed.

          OPINION

          BERZON, CIRCUIT JUDGE

         The United States Department of Justice (DOJ) appeals the district court's order that it produce two documents contained within the USABook, an internal DOJ resource manual for federal prosecutors, in response to the American Civil Liberties Union of Northern California's (ACLU-NC) Freedom of Information Act (FOIA or "the Act") request. The documents relate to DOJ's use of electronic surveillance and tracking devices in criminal investigations. DOJ maintains that the USABook sections are exempt from production under FOIA because they are attorney work product, and, alternatively, because they describe law enforcement techniques and procedures. We hold that only the limited portions of the USABook documents that present original legal analyses, not purely descriptive and not already incorporated in public documents, to guide federal prosecutors in litigation were properly withheld as attorney work product under FOIA Exemption 5. We also hold that the withheld documents in this case do not provide details or means of deploying law enforcement techniques that would bring them under FOIA Exemption 7(E). We remand to the district court to determine which portions of the documents may be segregated under Exemption 5 and which must be disclosed.

         I. Background

         ACLU-NC, a civil rights group and local affiliate of the national ACLU, submitted a request for records under FOIA, 5 U.S.C. § 552, to the U.S. Attorney's Office for the Northern District of California.[1] The request sought information regarding the U.S. Attorney's Office's practices regarding obtaining location information from electronic devices for tracking and surveillance purposes. The ACLU-NC request was part of a national ACLU campaign to shed light on the federal government's use of various surveillance technologies in criminal investigations. ACLU-NC also sought to assess whether the government's law enforcement practices in this regard comport with constitutional protections, especially in light of the Supreme Court's decision in United States v. Jones, 565 U.S. 400 (2012). Jones held that installing a Global Positioning System (GPS) device on a suspect's vehicle and using that device for sustained location monitoring constitutes a Fourth Amendment search.

         In its FOIA request, ACLU-NC sought to obtain from the U.S. Attorney's Office for the Northern District of California, in relevant part,

(1) Any template applications or orders that have been utilized by United States Attorneys in the Northern District to seek or acquire location information since January 1, 2008.
(2) Any documents since January 1, 2008, related to the use or policies of utilizing any location tracking technology, including but not limited to cell-site simulators or digital analyzers such as devices known as Stingray, Triggerfish, AmberJack, KingFish or Loggerhead.[2]
(3) Any records related to the Supreme Court's holding in United States v. Jones, excluding pleadings or court opinions filed in the matter in the Supreme Court or courts below.[3]

         ACLU-NC asked for expedited processing of its information request pursuant to 5 U.S.C. § 552(a)(6)(E), [4]citing a "widespread media interest in government surveillance methods using new technology to collect detailed, sensitive, personal information" and an "urgency to inform the public about the scope of the government's practices because of pending legislation on these very issues."

         Shortly after submitting the FOIA request, ACLU-NC received a notice from the U.S. Attorney's Office for the Northern District of California stating that the request had been forwarded to DOJ; DOJ processes all FOIA requests received by U.S. Attorney's Offices. Soon thereafter, the Executive Office for United States Attorneys (EOUSA or "the Office"), a department within DOJ, in turn acknowledged receipt of the request and informed ACLU-NC that it would expedite processing.

         Several months passed during which ACLU-NC received no further communication from DOJ regarding its request. After inquiring about the status of the request and receiving no response, ACLU-NC commenced this action.

         The complaint alleged that DOJ had wrongfully withheld agency records under FOIA and requested that the court order DOJ to process its request for information expeditiously. DOJ admitted in its answer that it had not produced any documents or otherwise responded to the FOIA request.

         The parties then conferred extensively regarding the processing of the document request. Their discussions resulted in a stipulation clarifying, with respect to the portions of the request relevant here, (1) the scope of the request, and (2) the procedures DOJ would follow to identify responsive documents in the possession of the U.S. Attorney's Office for the Northern District of California.

         EOUSA completed a search for responsive documents within a few months, in accordance with the stipulation. The Office identified potentially responsive records authored by that division. It also flagged other potentially responsive records authored and maintained by DOJ's Criminal Division and referred those records to that division for it to make a decision regarding disclosure. The two DOJ Divisions then separately released to ACLU-NC some responsive documents and withheld others, claiming statutory exemptions for the withheld documents. EOUSA released 41 pages in full and withheld 18 pages in full. The Criminal Division released 2 pages in full, 3 pages in part, and withheld 530 pages.

         DOJ then filed a motion for partial summary judgment, arguing that the withheld documents were subject to FOIA Exemptions 5 and 7(E).[5] In support of its motion, DOJ filed declarations by John Kornmeier, an attorney advisor with EOUSA, and John E. Cunningham III, a trial attorney with the FOIA/Privacy Act Unit of the Office of Enforcement Operations in DOJ's Criminal Division. The declarations explained each division's rationales for withholding certain records. Along with the declarations, the DOJ Divisions each produced a Vaughn index[6] describing briefly the format and content of the withheld records and the justifications for withholding.

         The DOJ declarations and Vaughn indices reveal that the agency withheld portions of seven distinct documents. EOUSA withheld a document containing template applications and orders for the use of pen registers and trap and trace devices, as well as select slides from a PowerPoint presentation containing DOJ's interpretations of the law governing the use of location tracking devices. EOUSA maintained both documents were properly withheld under FOIA Exemption 5, which exempts attorney work product from disclosure.

         The Criminal Division withheld three legal memoranda analyzing the implications of two relevant cases-United States v. Jones, 565 U.S. 400 (2012), and In re Application, 534 F.Supp.2d 585 (W.D. Pa. 2008)-on the agency's use of GPS tracking and other investigative techniques. The three memoranda additionally provided guidance on the making of requests for historical cellular telephone location information.

         The Criminal Division also withheld two sections of the USABook that were responsive to ACLU-NC's FOIA request. The USABook is an internal DOJ resource manual for federal prosecutors found on DOJ's intranet site. As Cunningham explained, the "USABook functions as a legal resource book or reference guide for federal prosecutors." Among many other matters, the USABook addresses the use of electronic surveillance and tracking devices. The two pertinent sections of the USABook DOJ withheld were: (1) The "Tracking Devices Manual, " which consists of both a narrative section and an appendix containing sample affidavits, warrants, and court orders regarding authorization to obtain cellular phone location data, and (2) a chapter of the Federal Narcotics Manual titled "Electronic Surveillance-Non-Wiretap." The Criminal Division maintained that these two pertinent but withheld sections of the USABook are shielded from disclosure by FOIA Exemption 5 because they are attorney work product, and, alternatively, by FOIA Exemption 7(E), which protects records compiled for law enforcement purposes that reveal investigative techniques and procedures. ACLU-NC filed a cross-motion for partial summary judgment, arguing the claimed FOIA exemptions did not apply.

         Based on the agency declarations and the Vaughn index, the district court granted in part and denied in part both the ACLU-NC's and DOJ's partial motions for summary judgment. The district court ordered DOJ to release the template applications and orders for use of pen registers and trap and trace devices withheld by EOUSA and the two sections of the USABook withheld by the Criminal Division. These records functioned like agency manuals, the district court concluded, providing general guidance on obtaining location tracking information and not anticipating any specific case, and so were improperly withheld under Exemption 5. The district court also held the withheld sections of the USABook are not protected by Exemption 7(E), because the documents describe in general terms publicly known surveillance techniques.

         Conversely, the district court granted DOJ's motion for summary judgment with respect to (1) the EOUSA PowerPoint presentation slides on legal issues arising from the use of location tracking devices; and (2) the three Criminal Division legal memoranda analyzing the implications of recent case law regarding GPS location tracking. These documents were determined to be attorney work product ...


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