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

United States District Court, N.D. California

September 30, 2014


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For American Civil Liberties Union of Northern California, San Francisco Bay Guardian, Plaintiffs: Linda Lye, Michael Temple Risher, LEAD ATTORNEYS, ACLU Foundation of Northern California, Inc., San Francisco, CA.

For Department of Justice, Defendant: Brad Prescott Rosenberg, LEAD ATTORNEY, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC.

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Re: Dkt. Nos. 23, 25

MARIA-ELENA JAMES, United States Magistrate Judge.


On July 31, 2012, Plaintiffs American Civil Liberties Union and San Francisco Bay Guardian filed this lawsuit under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, seeking to compel the release of documents of the United State Attorney's Office for the Northern District of California regarding use of location tracking technology in Northern California. Compl., Dkt. No. 1 at ¶ 1. Pending before the Court are Plaintiffs' and Defendant United States Department of Justice's (the " DOJ" or the " Government" ) cross-motions for partial summary judgment. Dkt. Nos. 23 (Gov. Mot.), 25 (Pl. Mot.). On September 5, 2013, the Court held a hearing on the motions. Having considered the parties' positions, relevant legal authority, and the record in this case, the Court GRANTS IN PART and DENIES IN PART the DOJ's Motion for Partial Summary Judgment, and GRANTS IN PART and DENIES IN PART Plaintiffs' Cross-Motion for Partial Summary Judgment for the reasons set forth below.


On April 13, 2012, Plaintiffs submitted to the DOJ a FOIA request seeking information about the federal government's use of

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location tracking technology to monitor and surveil suspects. Compl. ¶ 3 & Ex. 1; Decl. of John W. Kornmeier (" Kornmeier Decl." ) ¶ 4 & Ex. A, Dkt. No. 23-1. Specifically, Plaintiffs' FOIA request sought the following materials:

1) All requests, subpoenas, and applications for court orders or warrants seeking location information since January 1, 2008.
2) 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.
3) Any documents since January 1, 2008, related to the use or policies of utilizing any location tracking technology, including but not limited to cellsite simulators or digital analyzers such as devices known as Stingray, Triggerfish, AmberJack, KingFish or Loggerhead.
4) 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.

Kornmeier Decl., Ex. A.

Plaintiffs requested expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E), on the grounds that there is an " urgency to inform the public about actual or alleged federal government activity," and also that this is " a matter of widespread and exceptional media interest in which there exists possible questions about the government's integrity which affect public confidence." Compl. ¶ 3 (quoting 28 C.F.R. § 16.5(d)(1)(ii) & (iv)). On April 23, 2012, the DOJ granted Plaintiffs' request for expedited processing. Compl. ¶ 24 & Ex. 3. However, after the DOJ failed to produce responsive documents and did not respond to Plaintiffs' inquiry regarding the status of the FOIA request, Plaintiffs initiated this lawsuit. Compl. ¶ ¶ 25-28. In their Complaint, Plaintiffs assert a claim for wrongful withholding of agency records under FOIA, and seek injunctive relief ordering the DOJ to immediately process the requested records and make them available to Plaintiffs. Id. ¶ ¶ 32-24.

Subsequently, after this lawsuit was filed, counsel for the Government and Plaintiffs conferred numerous times regarding the scope and processing of Plaintiffs' FOIA request. As a result of those discussions, on January 3, 2013, the parties negotiated a Stipulation regarding the processing of Parts 2-4 of Plaintiffs' FOIA request. See Dkt. No. 17, Ex. 1 (Appendix); Kornmeier Decl. ¶ 4. That Stipulation clarified the scope of Parts 2-4 of Plaintiffs' FOIA request and defined the steps that DOJ would take to search for records responsive to those parts of the FOIA request. Dkt. No. 17. There is no dispute that DOJ complied with the requirements of the Stipulation regarding the adequacy of its search for responsive records. Id.

In processing the FOIA request, the Executive Office for United States Attorneys (" EOUSA" ) identified some potentially responsive records that it referred to the DOJ's FOIA/Privacy Act (" FOIA/PA" ) Unit of the Office of Enforcement Operations in the Criminal Division, as those records were authored and maintained by that Division. Kornmeier Decl. ¶ 4; Declaration of John E. Cunningham III (" First Cunningham Decl." ) ¶ 8, Dkt. No. 23-2. EOUSA processed the remaining records. Kornmeier Decl. ¶ 5. With respect to the records referred, on February 27, 2013, the EOUSA, in a two-part referral, referred a total of 535 pages of records to the Criminal Division. First Cunningham Decl. ¶ 8. Part one of EOUSA's referral to the Criminal Division consisted of three documents: the Memo of February 27, 2012 (" CRM One" ), the Memo of July 5, 2012 (" CRM Two" ), and an Electronic

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Communication (" EC" ), including the Memo of September 12, 2008, as an attachment thereto (" CRM Three" ). Id. & Ex. 2. Part two of EOUSA's referral to the Criminal Division consisted of records maintained at USABook, a DOJ intranet site (" CRM Four" and " CRM Five" ). Id. EOUSA requested that the Criminal Division review the documents referred and directly respond to the Northern California ACLU (" ACLU-NC" ). Id. ¶ 8. EOUSA further advised the Criminal Division that a response to ACLU-NC was required by March 23, 2013. Id.

The FOIA/PA Unit received EOUSA's referral and began processing the three memoranda and the sections of USABook that had been referred to it. Id. FOIA/PA Unit personnel conducted a line by line review of the CRM One, CRM Two, CRM Three, and the sections of USABook (CRM Four and CRM Five), to determine whether any FOIA exemptions were applicable to the information contained therein and, if so, whether any nonexempt information could be segregated and released to the requester. Id. ¶ 9.

Based on the FOIA/PA Unit's review, it determined that CRM One could be released in part, with 2 pages released in full, 2 pages released with certain redactions pursuant to FOIA Exemptions 5 and 7(E)[1], and 53 pages withheld in full pursuant to FOIA Exemptions 5 and 7(E). Id. ¶ 10.

The FOIA/PA Unit determined that CRM Two could be released in part, with 1 page released with certain redactions pursuant to FOIA Exemptions 5 and 7(E), and 53 pages withheld in full pursuant to Exemptions 5 and 7(E). Id.

The FOIA/PA Unit concluded that one-hundred and sixteen pages of records comprising CRM Three, CRM Four, and CRM Five needed to be withheld in full pursuant to FOIA Exemptions 5, (b) 6, 7(C) and 7(E). Id. Finally, it determined that 304 pages of records are non-responsive, because they relate to such matters as electronic surveillance, pen register, and trap and trace applications generally. Id.

On March 22, 2013, EOUSA and the Criminal Division separately released what they characterized as responsive, non-exempt records to Plaintiffs. Kornmeier Decl. ¶ 5 & Ex. B; First Cunningham Decl. ¶ 11 & Ex. 3. Specifically, EOUSA indicated that 41 pages were being released in full, and 18 pages were being withheld in full pursuant to FOIA Exemption 5. Kornmeier Decl. Ex. B.

By letter dated March 22, 2013, the Criminal Division notified Plaintiffs of the Criminal Division's disclosure determinations. First Cunningham Decl. ¶ 11 & Ex. 3. Specifically, it notified Plaintiffs that 2 pages were released in full, 3 pages were released in part, and 530 pages were withheld in full pursuant to FOIA exemptions 5, 6, 7(C), and 7(E). Id.¶ 11 & Ex. 3. Concomitantly, it provided Plaintiffs with copies of the redacted CRM One and the redacted CRM Two. Id.

The parties have now filed motions for partial summary judgment with respect to the documents produced and withheld in response to Parts 2, 3, and 4 of Plaintiffs' FOIA request. Dkt. Nos. 23, 25. In their Motion, Plaintiffs assert that the DOJ has unlawfully withheld documents and challenge its assertion of privileges as to the documents withheld. The Government, however, maintains that in processing Plaintiffs' FOIA request, the DOJ properly

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withheld, in whole or in part, records except from disclosure under FOIA.


A. The FOIA Statutory Scheme

Congress enacted FOIA to " clos[e] the loopholes which allow agencies to deny legitimate information to the public." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 150 (1989), 109 S.Ct. 2841, 106 L.Ed.2d 112 (citations and quotations omitted). The FOIA's " core purpose" is to inform citizens about " what their government is up to." Yonemoto v. Dep't of Veterans Affairs, 686 F.3d 681, 687 (9th Cir. 2012) (citing Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. at 775 (citation omitted)). " Consistently with this purpose, as well as the plain language of the Act, the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents." United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991).

B. Summary Judgment Standard in FOIA Cases

" Summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved." Nat'l Res. Def. Council v. U.S. Dep't of Def., 388 F.Supp.2d 1086, 1094 (C.D. Cal. 2005) (quoting Mace v. EEOC, 37 F.Supp.2d 1144, 1146 (E.D. Mo. 1999)) (internal quotations omitted). The underlying facts and possible inferences are construed in favor of the FOIA requester. Id. at 1095 (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350, 227 U.S.App.D.C. 253 (D.C. Cir. 1983)). Because the facts are rarely in dispute in a FOIA case, the Court need not ask whether there is a genuine issue of material fact. Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996). The standard for summary judgment in a FOIA case generally requires a two-stage inquiry. See Animal Legal Def. Fund. v. U.S. Food & Drug Admin., 2013 WL 4511936, at *3 (N.D. Cal. Aug. 23, 2013).

To carry their burden on summary judgment, " agencies are typically required to submit an index and 'detailed public affidavits' that, together, 'identify[ ] the documents withheld, the FOIA exemptions claimed, and a particularized explanation of why each document falls within the claimed exemption.'" Yonemoto, 686 F.3d at 688 (quoting Lion Raisins v. Dep't of Agric., 354 F.3d 1072, 1082 (9th Cir. 2004)) (modification in original). These submissions--commonly referred to as a Vaughn index --must be from " affiants [who] are knowledgeable about the information sought" and " detailed enough to allow court to make an independent assessment of the government's claim [of exemption]." Id. (citing Lion Raisins, 354 F.3d at 1079; 5 U.S.C. § 552(a)(4)(B)).

Under the first step of the inquiry, the Court must determine whether the agency has met its burden of proving that it fully discharged its obligations under FOIA. Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985) (citing Weisberg, 705 F.2d at 1350-51). In the second stage of the inquiry, the Court examines whether the agency has proven that the information that it withheld falls within one of the nine FOIA exemptions. 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (" The burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document." ); Dobronski v. FCC, 17 F.3d 275, 277 (9th Cir. 1994).

The government may submit affidavits to satisfy its burden, but " ...

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