American Civil Liberties Union v. Usdoj , 880 F.3d 473 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN CIVIL LIBERTIES UNION No. 14-17339
OF NORTHERN CALIFORNIA,
Plaintiff-Appellee, D.C. No.
3:12-cv-04008-
v. MEJ
UNITED STATES DEPARTMENT OF
JUSTICE, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Argued and Submitted December 12, 2016
San Francisco, California
Filed January 18, 2018
Before: Michael Daly Hawkins, Marsha S. Berzon,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Berzon
2 ACLU V. USDOJ
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ACLU V. USDOJ 3
may be segregated under Exemption 5 and which must be
disclosed.
COUNSEL
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.
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
4 ACLU V. USDOJ
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.
1
ACLU-NC submitted its FOIA request in conjunction with the San
Francisco Bay Guardian, an independent newspaper, and the Bay
Guardian was a party to this suit as initially filed. After the case was
appealed, the parties jointly moved to dismiss the Bay Guardian as a party
because the entity no longer publishes a newspaper or otherwise
disseminates information to the public. The district court granted that
order, and we then dismissed the San Francisco Bay Guardian from this
appeal. For simplicity, we refer only to the ACLU-NC as the requestor
and plaintiff in this litigation.
ACLU V. USDOJ 5
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
2
Cell-site simulators are “devices that masquerade as a legitimate cell
phone tower, tricking phones nearby into connecting to the device in order
to log the [identifying] numbers of mobile phones in the area or capture
the content of communications.” See Electronic Frontier Foundation,
Cell-Site Simulators: Frequently Asked Questions,
https://www.eff.org/sls/tech/cell-site-simulators/faq (last visited Aug. 31,
2017).
6 ACLU V. USDOJ
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
3
The FOIA request included a fourth portion, which the district court
bifurcated for summary judgment purposes because it raised distinct
factual and legal questions. Despite this bifurcation, we have jurisdiction
over the government’s appeal of the district court’s grant of partial
summary judgment regarding part of the FOIA request. A “‘final
decision’ in a FOIA case [is] ‘an order by the District Court requiring
release of documents by the Government to the plaintiff, or order denying
the plaintiff’s right to such release.’” In re Steele, 799 F.2d 461, 464 (9th
Cir. 1986) (quoting Green v. Dep’t of Commerce, 618 F.2d 836, 841 (D.C.
Cir. 1980)). “[A]n order compelling disclosure is [therefore] appealable
as a final decision under [28 U.S.C.] § 1291.” Id.
4
Section 552(a)(6)(E)(i) provides: “Each agency shall promulgate
regulations, pursuant to notice and receipt of public comment, providing
for the expedited processing of requests for records—(I) in cases in which
the person requesting the records demonstrates a compelling need; and
(II) in other cases determined by the agency.”
ACLU V. USDOJ 7
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.
8 ACLU V. USDOJ
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 index6 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
5
This motion and the ACLU-NC’s cross-motion were partial because
they related only to three of the four parts of the FOIA request, one part
having been scheduled for separate summary judgment briefing. See note
3, supra.
6
“A ‘Vaughn index’ is a document supplied by government agencies
to opposing parties and the court [in FOIA litigation] that identifies ‘each
document withheld, the statutory exemption claimed, and a particularized
explanation of how disclosure of the particular document would damage
the interest protected by the claimed exemption,’ and the index is designed
to provide reasoning against which the requester can offer effective
advocacy and a basis for the court to reach a reasoned decision.” Hamdan
v. U.S. Dep’t. of Justice, 797 F.3d 759, 769 n.4 (9th Cir. 2015) (quoting
Wiener v. FBI, 943 F.2d 972, 977 (9th Cir. 1991)); see also Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
ACLU V. USDOJ 9
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
10 ACLU V. USDOJ
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 protected by Exemption 5, because they
provide legal theories and strategies for use in criminal
prosecutions.
In compliance with the district court’s order, DOJ
produced the EOUSA template applications for pen registers
and trap and trace devices, and also handed over the
USABook appendix containing sample affidavits, warrants,
ACLU V. USDOJ 11
and orders. DOJ appealed, however, the district court’s order
with respect to the two narrative sections of the USABook,
the Tracking Devices Manual, and the chapter of the
Narcotics Manual on electronic surveillance. After oral
argument, we reviewed the two narrative sections in camera.
II. Discussion
FOIA was enacted “to pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976) (internal quotation marks and citation omitted). The
Act “is premised on the theory that in order for democracy to
function properly, citizens must have access to government
information, particularly where access might be ‘needed to
check against corruption and to hold the governors
accountable to the governed.’” Pac. Fisheries Inc. v. United
States, 539 F.3d 1143, 1147 (9th Cir. 2008) (quoting John
Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)).
To that end, FOIA “ attempts to create a judicially
enforceable public right to secure [official] information from
possibly unwilling official hands.” Rose, 425 U.S. at 361
(quoting EPA v. Mink, 410 U.S. 73, 80 (1973)).
Implementing that right, FOIA mandates that government
agencies make their internal records available to the public,
subject to nine enumerated exemptions. See 5 U.S.C.
§ 552(a)–(b).
FOIA’s enumerated exemptions reflect a recognition that
“legitimate governmental and private interests could be
harmed by release of certain types of information.” John Doe
Agency, 493 U.S. at 152 (quoting FBI v. Abramson, 456 U.S.
615, 621 (1982)). At the same time, FOIA’s “exemptions do
not obscure the basic policy that disclosure, not secrecy, is the
12 ACLU V. USDOJ
dominant objective of the Act.” Rose, 425 U.S. at 361.
Consistent with this objective, the only exemptions are the
ones listed in the statute, and they are to be narrowly
construed. Id. Moreover, the government has the burden of
justifying withholding under any of FOIA’s exemptions.
Hamdan, 797 F.3d at 772.
DOJ maintains it properly withheld the two sections of
the USABook because they fall within the ambit of two of
FOIA’s statutory exemptions, Exemptions 5 and 7(E). We
address each exemption in turn.
A.
i.
Exemption 5 of FOIA authorizes the government to
withhold from release, as relevant here, “inter-agency or
intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation
with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5
encompasses records “normally privileged in the civil
discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 149 (1975). These include records that would be
protected in litigation by the attorney work-product, attorney-
client, and deliberative process privileges. See id. at 150–54.
DOJ maintains that the withheld portions of the USABook
are attorney work product.
The attorney work-product privilege protects from
discovery in litigation “mental impressions, conclusions,
opinions, or legal theories of a party’s attorney” that were
“prepared in anticipation of litigation or for trial.” Fed. R.
Civ. P. 26(b)(3). The privilege was first recognized in
ACLU V. USDOJ 13
Hickman v. Taylor, 329 U.S. 495 (1947), and is codified in
Federal Rule of Civil Procedure 26(b)(3).7
As Hickman recognized, shielding from discovery
materials prepared “with an eye toward the anticipated
litigation” protects the integrity of adversarial proceedings by
allowing attorneys to prepare their thoughts and impressions
about a case freely and without reservation. 329 U.S. at 498,
510–11. The privilege ensures that litigants cannot proceed
“on wits borrowed from the adversary,” id. at 516 (Jackson,
J., concurring), and “prevent[s] exploitation of a party’s
efforts in preparing for litigation.” Holmgren v. State Farm
Mut. Auto. Ins. Co., 976 F.2d 573, 576 (9th Cir. 1992)
(quoting Admiral Ins. Co. v. U.S. Dist. Court for Dist. of
Ariz., 881 F.2d 1486, 1494 (9th Cir. 1989)).
“To qualify for work-product protection, documents must:
(1) be ‘prepared in anticipation of litigation or for trial’ and
(2) be prepared ‘by or for another party or by or for that other
party’s representative.’” United States v. Richey, 632 F.3d
559, 567 (9th Cir. 2011) (quoting In re Grand Jury Subpoena,
357 F.3d 900, 907 (9th Cir. 2004)).8 We apply this general
7
The attorney work-product privilege also applies in criminal
proceedings. United States v. Nobles, 422 U.S. 225, 236 (1975). The
Federal Rules of Criminal Procedure protect government documents more
broadly, providing that the rules “do[] not authorize the discovery or
inspection of reports, memoranda, or other internal government documents
made by an attorney for the government or other government agent in
connection with investigating or prosecuting the case.” Fed. R. Crim. P.
16(a)(2).
8
The attorney work-product privilege is a qualified privilege. A party
seeking discovery can overcome the privilege by showing that she “has
substantial need for the materials . . . and cannot, without undue hardship,
obtain their substantial equivalent by other means.” Fed. R. Civ. P.
14 ACLU V. USDOJ
rule to each type of information contained in the withheld
USABook sections in turn.
As explained above, the DOJ Criminal Division withheld
two portions of the USABook: a section of the Tracking
Devices Manual and a chapter of the Federal Narcotics
Manual entitled “Electronic Surveillance- Non-Wiretap.”
The Criminal Division’s Vaughn index describes the content
of the Tracking Devices Manual as follows: “Provides
guidance to federal prosecutors/case agents re[garding]
electronic surveillance and tracking devices. Text covers the
following: Preface; Roadmap/FAQs; Part 1. – Obtaining
Location Information from Wireless Carriers; Part II: Mobile
Tracking Devices; Part III: Telematics Providers (OnStar,
etc.);9 Appendix.”10 The Vaughn index describes the Federal
26(b)(3)(A)(ii). The qualified nature of the privilege, however, does not
translate into the FOIA context. Exemption 5 “establish[es] a discrete
category of exempt information,” FTC v. Grolier Inc., 462 U.S. 19, 27
(1983), and privileges materials not “normally” available to parties in
litigation, id. at 26 (quoting Sears, 421 U.S. at 149). As a result, although
a party to particular litigation may be able to overcome the privilege by
showing need and hardship, “that does not remove the documents from the
category of the normally privileged” which are protected by Exemption
5. Id. at 28.
9
Telematics refers to telecommunications systems integrated into
automobiles. These include “GPS navigation, integrated hands-free
cellphones, wireless communications and automatic driving assistance
systems. . . . General Motor’s OnStar was the first to combine GPS with
roadside assistance and remote diagnostics.” Definition of Telematics, PC
Magazine, http://www.pcmag.com/encyclopedia/term/52693/telematics
(last visited December 28, 2017).
10
As noted, DOJ released this Appendix in compliance with the
district court’s order. The Appendix itself is not in the appellate record.
According to the Vaughn index, the Appendix included, for example, a
ACLU V. USDOJ 15
Narcotics Manual similarly: “Provides guidance to federal
prosecutors/case agents re[garding] electronic surveillance
and tracking devices. Text discusses electronic tracking
devices- generally and cellular telephone location
information.”
Based on DOJ’s descriptions, including in its briefing and
argument before this court, and confirmed by our in camera
review, we observe that both withheld sections of the
USABook contain three distinct types of information:
(1) technical information about electronic surveillance
technologies, (2) considerations related to seeking court
authorization for obtaining location information, and (3) legal
background and arguments related to motions to suppress
location information in later criminal prosecutions.
ii.
As to technical information, Cunningham explains that
the “USABook . . . identifies factual information regarding
specific types of investigative techniques employed in current
and past criminal investigations.” The Criminal Division’s
Vaughn index more specifically indicates that the document
contains sections regarding obtaining location information
from wireless carriers, mobile tracking devices, and
telematics providers.
template for a model “affidavit in support of [an] application for
authorization to obtain location data” concerning targeted cell phones; a
model “sealed warrant in support of [an] application for authorization to
obtain location data” from a targeted cell phone; form language for use in
requesting future cell-site location information concerning targeted cell
phones; and a model “application for an order authorizing the installation
and use of a pen register and trap/trace device on a” targeted cell phone.
16 ACLU V. USDOJ
The technical information about electronic surveillance
techniques contained in the USABook is not attorney work
product. The function of such information is to inform
investigators and prosecutors about available technologies
that may be relevant to conducting a criminal investigation.
Such technical information assists investigators in the
conduct of their investigations. It does not include the
“mental impressions, conclusions, opinions, or legal theories
of a party’s attorney” that were “prepared in anticipation of
litigation or for trial.” Fed. R. Civ. P. 26(b)(3). Because this
category of information is not attorney work product, it does
not fall under Exemption 5 and must be disclosed.
iii.
The portions of the USABook documents that discuss ex
parte applications for judicial approval of the use of particular
surveillance techniques and methods present a closer
question. Our in camera review confirms that these portions
of the documents contain two distinct types of material:
(1) instructions and guidance to federal investigators and
prosecutors regarding the type of court authorization they can
pursue to obtain particular types of electronic surveillance
information and (2) legal arguments in support of this
authorization.
Instructions to investigators on securing court
authorization to obtain location information about a suspect,
including the type of authorization required, are not attorney
work product, as they can serve a non-adversarial purpose.
Even if we view the portions of the USABook containing
such instructions as serving both a non-litigation and a
litigation purpose, recognizing that criminal investigations
often do lead to prosecutions, the documents do not satisfy
ACLU V. USDOJ 17
this circuit’s “because of” test for such so-called “dual
purpose documents.” See In re Grand Jury Subpoena,
357 F.3d at 907 (internal quotation marks omitted). When a
document was not prepared exclusively for litigation, it
“should be deemed prepared ‘in anticipation of litigation’ and
thus eligible for work product protection . . . if ‘in light of the
nature of the document and the factual situation in the
particular case, the document can be fairly said to have been
prepared or obtained because of the prospect of litigation.’”
Id. (quoting Charles Alan Wright, Arthur R. Miller, and
Richard L. Marcus, 8 Federal Practice & Procedure § 2024
(2d ed. 1994)). A dual purpose document is considered
“prepared or obtained because of the prospect of litigation”
if it “would not have been created in substantially similar
form but for the prospect of . . . litigation.” Id. at 907–08
(internal quotations omitted) (quoting United States v.
Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998)).
The portions of the USABook that provide instructions to
investigators regarding obtaining court authorization for
electronic surveillance would have been created in
“substantially similar form” regardless of whether those
investigations ultimately lead to criminal prosecutions. See
id. Of course, all criminal investigations can potentially lead
to litigation, and the authorization necessary to obtain certain
types of evidence is commonly disputed in the context of
motions to suppress in criminal proceedings. But the fact that
litigation may arise in which the legal sufficiency of the
authorization to obtain evidence is disputed does not change
the fact that the government must instruct its staff about how
to conduct criminal investigations regardless of whether those
investigations lead to later prosecutions.
18 ACLU V. USDOJ
Moreover, protecting DOJ’s instructions to investigators
and prosecutors about matters not prepared “because of” the
prospect of litigation would not serve the core purpose of the
attorney work-product privilege, which is “to encourage
effective legal representation within the framework of the
adversary system by removing counsel’s fears that his
thoughts and information will be invaded by his adversary.”
Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 775 (D.C. Cir.
1978). The “focus on the integrity of the trial process is
reflected in the specific limitation of the [work-product]
privilege to materials ‘prepared in anticipation of litigation or
for trial.’” Id. (footnote omitted). “[M]aterials serving no
cognizable adversarial function, such as policy manuals,
generally would not constitute work product.” Nat’l Ass’n of
Criminal Def. Lawyers v. Dep’t of Justice Exec. Office for
United States Attorneys, 844 F.3d 246, 255 (D.C. Cir. 2016).
In contrast, the portions of the USABook that present
legal arguments supporting the agency’s positions on the type
of authorization necessary to obtain electronic information
are attorney work product. These portions of the documents
reflect the legal theories of DOJ’s attorneys. They are
included in the USABook to assist prosecutors faced with
defending in court the government’s position on the
authorization necessary to obtain certain types of evidence.
See Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d
124, 127 (D.C. Cir. 1987) (holding that internal agency
memoranda that “advise the agency of the types of legal
challenges likely to be mounted against a proposed program,
potential defenses available to the agency, and the likely
outcome” are attorney work product properly withheld under
Exemption 5 of FOIA). Although these issues may arise first
in ex parte proceedings, similar legal issues recur at trial in
the context of motions to suppress.
ACLU V. USDOJ 19
The ACLU argues that the general legal analyses
contained in the USABook about court authorization for
electronic surveillance are not exempt under FOIA as
attorney work product because they are not directed at any
particular case or claim. The ACLU posits that when the
government acts to enforce the law as a prosecutor or
investigator, FOIA’s Exemption 5 protects only attorney
work product developed in anticipation of a specific claim in
a particular case.
We do not find this argument persuasive as a broad,
inflexible proposition, though it has some force as one factor
in assessing whether a particular document is work product
and therefore within FOIA Exemption 5. We have never
held, either within the FOIA context or in litigation generally,
that attorney work product must be prepared in anticipation
of specific litigation to be privileged, and we decline to do so
here. Like attorneys preparing for a specific case, agency
attorneys anticipating potentially recurring legal issues must
be free to “work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel.”
Hickman, 329 U.S. at 510.
At the same time, not every document prepared by a DOJ
attorney can be withheld on the basis that the agency may
some day become involved in related litigation. The
Department of Justice is, after all, charged with the
enforcement of our criminal laws. In fulfilling that
responsibility, agency attorneys almost always anticipate
litigation in some general sense. As the D.C. Circuit has
observed, “the prospect of future litigation touches virtually
any object of a prosecutor’s attention, and . . . the work
product exemption, read over-broadly, could preclude almost
all disclosure from an agency with substantial responsibilities
20 ACLU V. USDOJ
for law enforcement.” SafeCard Servs., Inc. v. SEC, 926 F.2d
1197, 1203 (D.C. Cir. 1991) (internal citation and quotation
marks omitted). So, in holding that the privilege protects
detailed legal analysis regarding frequent litigating positions
of a law enforcement agency, we do not suggest that any
document prepared by a DOJ lawyer is privileged.
Our holding is consistent with the law of the D.C. Circuit.
That court considered and rejected a specific-claim
requirement in a similar context in National Association of
Criminal Defense Lawyers v. Department of Justice Executive
Office for United States Attorneys, 844 F.3d 246 (D.C. Cir.
2016). National Association of Criminal Defense Lawyers
involved a request under FOIA to DOJ to release the Federal
Criminal Discovery Blue Book, “a manual created by [DOJ]
to guide federal prosecutors” in conducting discovery in
criminal prosecutions. Id. at 249. Like the requested
documents in this case, the Discovery Blue Book provides
general guidelines to prosecutors, addresses recurring issues
in criminal cases, and was not created for any specific case.
Applying the same “because of” test that governs in this
circuit, the D.C. Circuit determined that the Discovery Blue
Book was prepared in anticipation of litigation, and so
properly withheld under FOIA Exemption 5, because it
provided practical, “how-to” advice regarding discovery
during litigation. Id. at 251–52.
Like ACLU-NC here, the organization that submitted the
FOIA request in National Association of Criminal Defense
Lawyers argued that the Discovery Blue Book was not
exempt under FOIA because it “was not prepared in
anticipation of litigating a specific claim or case.” Id. at 252.
Interpreting its prior cases, the D.C. Circuit rejected that
argument, holding that “there is no general, overarching
ACLU V. USDOJ 21
requirement that a governmental document can fall within the
work-product privilege only if prepared in anticipation of
litigating a specific claim.” Id. at 253. The court concluded
that because the Discovery Blue Book “is aimed directly for
use in (and will inevitably be used in) litigating cases,” “[i]ts
disclosure . . . risks revealing DOJ’s litigation strategies and
legal theories regardless of whether it was prepared with a
specific claim in mind.” Id. at 254.
At the same time, the D.C. Circuit recognized that in
some circumstances “the existence (or non-existence) of a
specific claim [is] salient . . . as a means of identifying
whether documents ha[ve] been prepared at a time when
litigation was sufficiently in mind” to warrant work-product
protection. Id. at 255. We agree with that caveat as well.
Without it, routine DOJ communications to its many staff
attorneys concerning new legal developments—essentially,
continuing legal education messages—would become work
product, immune from both civil discovery and FOIA
disclosure. But even with that substantial caveat regarding
generic legal material, we conclude that the sections of the
USABook that detail DOJ’s developed legal arguments
regarding the process of obtaining court authorization for
certain forms of location data fall within Exemption 5.
iv.
As to portions of the USABook that contain legal
background and analyses concerning suppression motions:
Material that simply lists relevant case law and recites case
holdings is not protected by the attorney work-product
privilege or Exemption 5. These sections provide objective
descriptions of cases and so more closely resemble continuing
legal education resources for DOJ attorneys than attorney
22 ACLU V. USDOJ
work product. Unless a given portion of the document here
at issue contains some original analysis—particularized
arguments, strategies, or tactics generated in anticipation of
litigation, even if not for a particular claim—it cannot claim
the protection of Exemption 5.
In contrast, the portions of the USABook that contain
legal analyses and specific arguments that DOJ attorneys can
make in response to suppression motions are attorney work
product, and so are covered by Exemption 5. Like the
sections presenting legal arguments regarding the necessary
authorization for certain investigative techniques, these
sections reflect the drafting attorney’s mental impressions and
analysis and were prepared in anticipation of recurring
challenges in litigation. For the reasons discussed above, no
specific claim is necessary for such legal analyses to
sufficiently anticipate litigation and thus warrant attorney
work-product protection.
v.
The district court held the Criminal Division documents
not to be attorney work product at all. We remand for the
district court to conduct a segregability analysis in
accordance with this opinion. See 5 U.S.C. § 552(b) (“Any
reasonably segregable portion of a record shall be provided
to any person requesting such record after deletion of the
portions which are exempt under this subsection.”). Further
briefing from the parties and in camera review by the district
court could aid in that process.
We recognize that the work-product privilege “shields
both opinion and factual work product from discovery” and
that ordinarily “if a document is covered by the attorney
ACLU V. USDOJ 23
work-product privilege, the government need not segregate
and disclose its factual contents.” Pacific Fisheries, 539 F.3d
at 1148; accord Judicial Watch, Inc. v. U.S. Dep’t of Justice,
432 F.3d 366, 372 (D.C. Cir. 2005) (holding that when
documents constitute attorney work product “the entire
contents of the[] documents—i.e., facts, law, opinions, and
analysis—are exempt from disclosure under FOIA”). By
contrast, where only portions of the documents are covered
by the privilege, the non-exempt parts may be appropriately
segregated and disclosed. Compare Nat’l Ass’n of Criminal
Def. Lawyers, 844 F.3d at 257 (“[T]here may . . . be cases in
which a record containing some amount of work product also
contains . . . segregable, non-exempt material subject to
disclosure.”), with Judicial Watch, 432 F.3d at 370 (“Each of
the nine documents, in its entirety, is work product. There are
no non-work product parts of the emails. In other words,
there are no segregable parts.”).
Here, the requested excerpts of the USABook only
partially consist of work product exempt from disclosure. As
discussed above, the sections of the document specifically
addressing legal arguments relating to surveillance
authorization, or considerations and strategies for litigating
suppression motions, are shielded from disclosure. But
substantial portions of the USABook contain technical
information and general resources for staff attorneys
concerning legal developments. Unlike the sections that
specifically address legal arguments, these sections are not
attorney work product.
The segregable sections of these documents are therefore
quite unlike factual material intertwined with legal analysis
in a document prepared by an attorney in anticipation of
litigating a specific case. See, e.g., Judicial Watch, 432 F.3d
24 ACLU V. USDOJ
at 367–68, 370 (holding each of the nine disputed emails
about a possible DOJ amicus filing in a particular case was,
in its entirety, non-segregable work product). Where the
requested document is generic, pertaining to a broad class of
future cases, it should generally be easier to separate material
that is exempt from material that is non-exempt. In
documents created for specific litigation, in contrast, non-
exempt material may be so closely intertwined with
information pertaining to the specific case that the two
categories of material cannot be easily separated.
In National Association of Criminal Defense Lawyers, for
instance, the D.C. Circuit remanded to the district court to
assess whether there were “logically divisible sections” of
non-exempt material in the 500-page discovery manual for
U.S. Attorneys (the Discovery Blue Book) that could be
reasonably segregated. 844 F.3d at 257 (instructing the
district court to see whether “nonexempt statements of
policy” were segregable from non-exempt material). Because
the Discovery Blue Book was not prepared for a specific
lawsuit but rather as a generic resource for all future
litigation, it was possible for some portions—but not
others—to be prepared in anticipation of litigation and thus
exempt from disclosure.
So too here; the USABook is a generic resource rather
than a case-specific work product, and the portions of it not
prepared in anticipation of litigation may be segregable from
those that were. Consistent with our discussion in Part II.A.iv
supra, broad recitations of case holdings and summaries of
applicable law, if segregable, must be disclosed. Only
analytic portions bearing upon, and prepared in advance of,
litigation are exempt.
ACLU V. USDOJ 25
Our holding is consistent with the principle that “[t]he
focus of the FOIA is information, not documents, and an
agency cannot justify withholding an entire document simply
by showing that it contains some exempt material.” Mead
Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260
(D.C. Cir. 1977). Accordingly, we order the segregation of
the portions of the USABook sections that are not exempt as
attorney work product.
vi.
The ACLU-NC argues that even if the withheld portions
of the USABook are attorney work product, they must be
disclosed because they constitute DOJ’s “working law.”
The Supreme Court has recognized a “working law”
exception to Exemption 5. The exception has been applied
only to documents that would otherwise be exempt under the
deliberative process privilege, which DOJ does not invoke
here. And the premises underlying the working law
exception have no application in the attorney work-product
context.
The deliberative process privilege protects the internal
decision making processes of government agencies, including
“documents ‘reflecting advisory opinions, recommendations
and deliberations comprising part of a process by which
governmental decisions and policies are formulated.’” Sears,
421 U.S. at 150 (quoting Carl Zeiss Stiftung v. V. E. B. Carl
Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). The working
law exception places a boundary on the deliberative process
privilege, requiring disclosure of “opinions and
interpretations which embody the agency’s effective law and
policy” and “have the force and effect of law.” Id. at 153
26 ACLU V. USDOJ
(internal quotations omitted). The distinction rests on the
consideration that “the public is vitally concerned with the
reasons which . . . suppl[ied] the basis for an agency policy
actually adopted,” id. at 152, and is consistent with the
“strong congressional aversion to secret agency law”
reflected in FOIA. Id. at 153 (internal quotations and
alterations omitted) (citing Davis, The Information Act: A
Preliminary Analysis, 34 U. Chi. L. Rev. 761, 797 (1967)).
The requirement that an agency’s working law be disclosed
is in essence an extension of FOIA’s affirmative requirement
that agencies index and make available to the public “final
opinions . . . made in the adjudication of cases” and
“statements of policy and interpretations which have been
adopted by the agency.” 5 U.S.C. § 552(a)(2).
No similar rationale justifies extending the working law
exception to the attorney work-product privilege as
incorporated in Exemption 5. Moreover, the Supreme Court
has held that any final agency opinion or policy interpretation
“subject to the affirmative disclosure requirement of
§ 552(a)(2) [i]s nevertheless shielded from disclosure under
Exemption 5 [if] it contain[s] a privileged attorney’s work
product.” Fed. Open Mkt. Comm. of Fed. Reserve Sys. v.
Merrill, 443 U.S. 340, 360 n.23 (1979) (citing Sears,
421 U.S. at 160). We agree with the D.C. Circuit that the
same rule extends to working law, and that an agency
therefore “need not segregate and release agency working law
from [documents] withheld in their entirety pursuant to the
attorney work product privilege.” Tax Analysts v. IRS,
294 F.3d 71, 76 (D.C. Cir. 2002) (affirming and adopting the
reasoning of Tax Analysts v. IRS, 152 F. Supp. 2d 1, 18–25
(D.D.C. 2001), which held that, under Merrill, “as long as . . .
documents . . . were prepared in anticipation of litigation or
ACLU V. USDOJ 27
for trial, they can be withheld, including any agency working
law that they may contain”).
vii.
Finally, we note that DOJ has frequently and recently
litigated questions regarding the type of court authorization
necessary to obtain various types of electronic surveillance
information, both in the context of ex parte government
applications for court authorization and motions to suppress
location evidence at trial. See, e.g., United States v.
Carpenter, 819 F.3d 880, 883 (6th Cir. 2016), cert. granted,
137 S. Ct. 2211 (U.S. June 5, 2017) (No. 16-402) (reviewing
denial of motion to suppress cell-site data obtained from a
service provider pursuant to a court order under the Stored
Communications Act, 18 U.S.C. § 2703(d)); In re Application
of U.S. for an Order Directing a Provider of Elec. Commc’n
Serv. to Disclose Records to Gov’t, 620 F.3d 304, 305 (3d
Cir. 2010) (government application pursuant to 18 U.S.C.
§ 2703(d) for a court order compelling a cellular phone
provider to provide historical cellular tower data). The
Tracking Devices manual was drafted in August 2009 and
was last revised in 2011. Because of the age of the
documents, DOJ may have presented the legal positions and
arguments contained in those internal documents in court
filings.
“[M]aterials normally immunized from disclosure under
FOIA lose their protective cloak once disclosed and preserved
in a permanent public record.” Cottone v. Reno, 193 F.3d
550, 554 (D.C. Cir. 1999). Accordingly, the district court on
remand should determine whether DOJ has officially
acknowledged and publicly disclosed the litigating positions
reflected in the withheld portions of the USABook. To the
28 ACLU V. USDOJ
extent DOJ has made its litigating positions public, the
purposes of Exemption 5 would not be served by withholding
documents recommending those positions. “The ‘logic of
FOIA’ postulates that an exemption can serve no purpose
once information . . . becomes public.” Id. at 555 (quoting
Niagra Mohawk Power Corp. v. U.S. Dep’t of Energy,
169 F.3d 16, 19 (D.C. Cir. 1999)).
B.
Because we hold that some portions of the USABook are
not exempt as attorney work product under Exemption 5, we
now address DOJ’s argument that the documents also fall
within the scope of Exemption 7(E).
Exemption 7(E) protects from disclosure “records or
information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement
records of information . . . would disclose techniques and
procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the
law.” 5 U.S.C. § 552(b)(7)(E). The statutory requirement
that the government show that disclosure “could reasonably
be expected to risk circumvention of the law” applies only to
guidelines for law enforcement investigations or
prosecutions, not to techniques and procedures. Hamdan,
797 F.3d at 778 (citing Allard K. Lowenstein Int’l Human
Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678, 681
(2d Cir. 2010)). The documents at issue here contain both
descriptions of “techniques and procedures” and “guidelines
for law enforcement investigations or procedures,” so we
consider both categories.
ACLU V. USDOJ 29
“Exemption 7(E) only exempts investigative techniques
not generally known to the public.” Rosenfeld v. U.S. Dep’t
of Justice, 57 F.3d 803, 815 (9th Cir. 1995). If an agency
record discusses “the application of [a publicly known
technique] to . . . particular facts,” the document is not
exempt under 7(E). Id. But if a record describes a “specific
means . . . rather than an application” of deploying a
particular investigative technique, the record is exempt from
disclosure under FOIA. Hamdan, 797 F.3d at 777–78.
Likewise, records that provide a “detailed, technical analysis
of the techniques and procedures used to conduct law
enforcement investigations” may properly be withheld under
Exemption 7(E). Bowen v. FDA, 925 F.2d 1225, 1228–29
(9th Cir. 1991).
Applying these standards, we held in Hamdan that the
Federal Bureau of Investigation (FBI) properly withheld
agency records that described specific means of carrying out
surveillance and conducting credit searches, even though
those general techniques are well known to the public.
Hamdan, 797 F.3d at 777–78. The documents were exempt,
we reasoned, because they revealed specific information
about law enforcement methods of locating and apprehending
suspects not publicly known and, if revealed, would
compromise the ability of the FBI to use those techniques.
Id. at 778. We similarly held in Bowen v. FDA that details
about how law enforcement agents trace cyanide tampering
could properly be withheld under Exemption 7(E), even
though general information about tracing as an investigative
method was known to the public. 925 F.2d at 1229. In
contrast, we held in Rosenfeld that records disclosing the use
of a particular individual’s identity to make a pretext phone
call merely described the application of a generally known
30 ACLU V. USDOJ
investigative technique and so were not subject to Exemption
7(E). 57 F.3d at 815.
In this case, the DOJ Criminal Division maintains that the
withheld portions of the USABook “discuss such non-public
details as where, when, how, and under what circumstances
electronic surveillance, tracking devices and non-wiretap
electronic surveillance investigative techniques are used,”
information which “could provide individuals with
information that would allow them to violate the law while
evading detection by federal law enforcement.” We cannot
agree with the government as to Exemption 7(E).
The contested documents describe generally methods for
using various technologies to obtain a suspect’s location
information, including from wireless carriers, mobile tracking
devices, vehicle telematics systems, and Internet Protocol (IP)
addresses. These are all publicly known investigative
techniques. The documents provide basic technical
information about each surveillance method, describe the
legal authorization necessary for obtaining location
information, and describe legal arguments related to that
acquisition. But, as our review of the documents confirms,
they lack any “detailed, technical analysis” of these
investigatory techniques. See Bowen, 925 F.2d at 1228.
Although we must “give considerable deference to agency
affidavits made in apparent good faith,” Hamdan, 797 F.3d at
772, based on our in camera review we conclude that the
documents do not contain non-public details regarding the use
of these surveillance techniques. Accordingly, unlike in
Hamdan and Bowen, the withheld documents in this case do
not reveal details or means of deploying law enforcement
techniques that would bring them within the ambit of
Exemption 7(E).
ACLU V. USDOJ 31
The documents also constitute “guidelines for law
enforcement investigations and prosecutions” in that they
provide instructions to investigators and prosecutors
regarding how to lawfully obtain electronic location
information. Such guidelines are only protected by
Exemption 7(E) if their disclosure would present a risk of
circumvention of legitimate government surveillance, and the
law, by wrongdoers. See 5 U.S.C. § 552(b)(7)(E). These
documents do not present such a risk. Apart from providing
publicly known, basic technical information about
surveillance techniques, the two disputed sections of the
USABook guide prosecutors on the legal steps necessary to
use such techniques in their investigations and prosecutions.
Such information about how the government obtains
authorization to collect that information and how it defends
its collection in later litigation may be of use to a lawyer
litigating against the agency, but it provides no relevant
information that would assist criminals in conforming their
behavior to evade detection or circumvent the law. As
disclosure of the guidelines cannot reasonably be expected to
risk circumvention of the law, the guidelines are not exempt
under 7(E).
III. Conclusion
For the foregoing reasons, we AFFIRM in part and
REVERSE in part the decision of the district court and
REMAND for further proceedings consistent with this
opinion.