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

United States District Court, N.D. California

June 17, 2015

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant.

ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT Re: Dkt. Nos. 35, 36

MARIA-ELENA JAMES, Magistrate Judge.

INTRODUCTION

Plaintiff American Civil Liberties Union (the "ACLU") filed this lawsuit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking to compel the release of records concerning the federal Government's use of mobile tracking technology known as a cell site simulator[1] or "CSS." Compl. ¶ 1, Dkt. No. 1. Pending before the Court are the parties' cross-motions for summary judgment. Dkt. No. 35 ("Gov. Mot."); Dkt. No. 36 ("Pl. Mot."). Having considered the parties' positions, relevant legal authority, and the record in this case, the Court GRANTS IN PART and DENIES IN PART the Government's Motion and GRANTS IN PART and DENIES IN PART the ACLU's Motion for the reasons set forth below.

BACKGROUND

A. The FOIA Request and Stipulated Search Parameters

On April 11, 2013, the ACLU submitted a FOIA request to the United States Department of Justice's ("DOJ") Criminal Division and the Executive Office for United States Attorneys ("EOUSA") for records "pertaining to the federal government's use of mobile tracking technology commonly known as a StingRay but more generically known as an International Mobile Subscriber Identity or IMSI Catcher." Compl., Ex. 2; Sprung Decl., Ex. A, Dkt. No. 35-2. Specifically, the FOIA request sought the following:

1) Policies, procedures, practices, legal opinions, memoranda, briefs, correspondence (including e-mails) and training materials, template applications, template affidavits in support of applications, template proposed court orders or warrants, and any other document referencing or relating to IMSI catchers;
2) Policies, procedures, practices, legal opinions, memoranda, briefs, correspondence (including e-mails), training materials, and any other document referencing or relating to the Wireless Intercept and Tracking Team of the Federal Bureau of Investigation; and
3) All documents relating to the disclosure to the public and media coverage of [a] May 23, 2011 email attached to [plaintiff's request].

Id. The FOIA request also sought documents identified in response to an earlier FOIA request by Christopher Soghoian from August 1, 2011 (the "Soghoian Request"). Id. The ACLU asked for expedited processing of its request pursuant to 5 U.S.C. § 522(a)(6)(E) on the grounds that this matter is of "widespread and exceptional media interest" in which there exists "possible questions about the government's integrity which affect public confidence." Id.

On July 8, 2013, the ACLU filed the present suit, alleging that the Government had not yet provided a substantive response. Compl. ¶ 3. In a letter dated July 10, 2013, the DOJ granted the ACLU's request for expedited processing. Lye Decl. ¶ 2 & Ex. 18, Dkt. No. 37-15. The parties later enter into a stipulation regarding the scope and processing of the ACLU's request, with some documents to be processed by the EOUSA and others to be process by the Criminal Division. See Dkt. No. 14. Among other things, the stipulation did the following:

• limited the search period to between January 1, 2008 and August 30, 2013;
• limited the search for Parts 1-2 to "final policies, procedures and practices referencing or relating to either IMSI catchers or the Wireless Intercept and Tracking Team of the Federal Bureau of Investigation [FBI]" using agreed-upon search terms;
• limited the search for Part 3 to "documents relating or referring to the disclosure to the public and media coverage pertaining to the May 23, 2011 email[;]"
• provided that the Criminal Division would have its Computer Crime and Intellectual Property Section ("CCIPS") and Electronic Surveillance Unit ("ESU") search for responsive documents within its possession, custody, or control;
• provided that EOUSA's FOIA unit would work with the Criminal Chiefs for the United States Attorney's Offices for ten specified federal districts, as well as the directors and deputy directors of certain other specified EOUSA component offices, to identify responsive documents within their possession, custody, or control; and
• provided that the Government would process all documents identified in response to the Soghoian Request.

Id. at 2-4. Both the Criminal Division and EOUSA have confirmed that they searched for records in compliance with the stipulation, and the ACLU has not contended otherwise. See Sprung Decl. ¶¶ 11-20; Kornmeier Decl. ¶ 5.

B. The Government's Response

In December 2013, EOUSA disclosed one page and informed the ACLU that it was withholding 138 pages in full pursuant to FOIA Exemptions 5, 7(C), and 7(E). Kornmeier Decl. ¶ 5 and Exs. A & B. The Criminal Division disclosed seven pages in part and informed the ACLU it was withholding 209 pages in full pursuant to FOIA Exemptions 5, 6, 7(A), 7(C), 7(E), and 7(F). Sprung Decl. ¶ 24 and Ex. F.

In the course of briefing their motions for summary judgment, the parties exchanged additional information and some additional documents, narrowing the focus of their dispute as to the Criminal Division documents. See generally Suppl. Sprung Decl. & Suppl. Lye Decl. On February 3, 2015, the Court requested that the parties submit a joint statement clarifying the scope of the ACLU's remaining challenges. Dkt. No. 43. The Order also gave the Government an opportunity to submit additional declarations or evidence supporting asserted exemptions. Id. The ACLU was likewise given the opportunity to submit additional declarations as needed. Id.

The parties responded with a joint statement on March 3, 2015. Dkt. No. 46. The Government submitted an additional declaration in support of the Criminal Division documents, but stated that "with respect to the EOUSA templates, defendant rests on the Vaughn descriptions for these documents and the Declaration of John Kornmeier submitted with defendant's opening motion for summary judgment (ECF No. 35-1)." Jt. Stmnt. at 23.

As it stands, in the dispute with the EOUSA, the ACLU seeks two different set of legal templates described more fully below. Id. at 21-23. In the dispute with the Criminal Division, the issue is whether it should produce: (1) templates or "go-bys" relating to applications and proposed orders for authorization to use CSS and related technology; (2) legal guidance memoranda, including an email with an attached description of how CSS is utilized by law enforcement; (3) an excerpt from the USA Book, a DOJ agency manual; and (4) a sealed search warrant and supporting application and affidavit. See id. at 1-21.

C. Hearing and In Camera Review

On April 2, 2015, the Court held a hearing on this matter. Dkt. No. 50. Much of the parties' arguments involved comparing this case to a prior order in the related case, Am. Civil Liberties Union of N. Cal. v. Dep't of Justice (" ACLU I "), ___ F.Supp.2d ___, 2014 WL 4954277, at *9 (N.D. Cal. Sept. 30, 2014), which involved the same parties and a similar subject matter. The Government has appealed that Order. See ACLU I, No. 12-CV-04008-MEJ (N.D. Cal.), Dkt. No. 66. At the hearing, the Court asked the parties whether they would consider staying this case pending the outcome of the related action. See Dkt. No. 50. The parties both agreed that they preferred a ruling on this case before the Court of Appeals decides ACLU I. See id.

The parties agreed, however, to allow the Government to submit the EOUSA documents as well as a sampling of the Criminal Division documents for the Court's in camera review. Id. Consequently, the Court ordered Documents 3 and 4 from the Kornmeier Declaration to be lodged with the Court, as well as the following documents from the Third Sprung Declaration: CRM-Lye-39451-39484 (only the portion containing the sealing order); CRM-Lye-2541 (USA Book); and internal memorandum at CRM-Lye-2948, CRM-Lye-3818-3825, CRM-Lye-9853-9897, CRM-Lye-15311-15316, CRM-Lye-28119-28126, CRM-Lye-34065-34066, and CRM-Lye-17543-17544. Dkt. No. 49. Additionally, the Court asked the Government to submit a list of documents that it proposed the Court should view as a representative sample of the Criminal Division templates. Id. The Court gave the ACLU the opportunity to respond if it believed that other or additional documents should be submitted. Id.

The Government submitted its proposed list on April 17, 2015. Dkt. No. 51. The ACLU did not file a response. Accordingly, the Court ordered that the Government lodge with the Court the documents it proposed on its list. Dkt. No. 52. This sample of documents includes the following: CRM-Lye-9002-9010; CRM-Lye-9011-9019; CRM-Lye-00015173-00015181; CRM-Lye-00015200-00015207; CRM-Lye-00031754-00031777; and CRM-Lye-00038268-00038270. Id. According to the Government, these documents are substantially similar to other withheld documents. See Dkt. No. 51 at 1-2 n.1-5. The Government has timely lodged all documents for the Court's in camera review. Now, having had the opportunity to conduct an in camera review of the above-referenced documents, the Court issues the following Order.

LEGAL STANDARD

A. The FOIA Statutory Scheme

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) (quoting Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 775 (1989)). This purpose is accomplished by "permit[ting] access to official information long shielded unnecessarily from public view and attempt[ing] to create a judicially enforceable public right to secure such information from possibly unwilling official hands." EPA v. Mink, 410 U.S. 73, 80 (1973). Such access "ensure[s] an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). 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) (citations and internal marks omitted).

At the same time, FOIA contemplates that some information can legitimately be kept from the public through the invocation of nine "Exemptions" to disclosure. See 5 U.S.C. § 552(b)(1)-(9). "These limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 7-8 (2001) (citation omitted). "Consistently with this purpose, as well as the plain language of the Act, the strong presumption in favor of disclosure places the ...


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