American Civil Liberties Union of Northern California, Plaintiff-Appellee,
United States Department of Justice, Defendant-Appellant.
and Submitted December 12, 2016 San Francisco, California
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
Thomas Byron III (argued) and Leonard Schaitman, Appellate
Staff; Melinda Haag, United States Attorney; United States
Department of Justice, Washington, D.C.; for
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.
of Information Act
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.
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.
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.
BERZON, CIRCUIT JUDGE
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.
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. 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.
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,
(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.
(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
asked for expedited processing of its information request
pursuant to 5 U.S.C. § 552(a)(6)(E), 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."
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
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.
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.
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.
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.
then filed a motion for partial summary judgment, arguing
that the withheld documents were subject to FOIA Exemptions 5
and 7(E). 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 describing briefly the
format and content of the withheld records and the
justifications for withholding.
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
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.
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.
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
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 ...