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

United States District Court, N.D. California

July 13, 2015

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

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT AND CRM-LYE-17543-17544; ORDER RE: REQUEST FOR CLARIFICATION Re: Dkt. Nos. 35, 36, 54, 55

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 or "CSS." Compl. ¶ 1, Dkt. No. 1. On June 17, 2015, the Court issued an Order on the parties' cross-motions for summary judgment, [1] ruling on all but one of the withheld documents, CRM-Lye-17543-17544, an email that, according to the Government, contains both public and non-public text. See Dkt. No. 53 ("Order") at 22. In its Order, the Court requested a declaration from the Government indicating which portion of CRM-Lye-17543-17544 is non-public and presently withheld. Id. Having received the Government's response (Fourth Sprung Decl., Dkt. No. 54), the Court GRANTS the ACLU's Motion and DENIES the Government's Motion with respect to CRM-Lye-17543-17544 for the reasons set forth below.

The parties have also recently brought to the Court's attention that its June 17 Order did not appear to address all of the disputed documents. See Jt. Clarification Stmnt., Dkt. No. 55. The documents about which the parties request clarification are all Criminal Division "Templates" as referred to in Peter Sprung's Third Declaration, Paragraph 8, Dkt. No. 47. The Court has reviewed the parties' joint statement, and while the Court considered all the Templates discussed therein, the Court's June 17 Order inadvertently left out the Templates' identification numbers.

Accordingly, below, the Court clarifies its previous Order with respect to those documents. Additionally, the Court has thoroughly re-examined those Templates with the supporting materials, and while the Court's conclusions as to those documents largely remain the same, the Court has slightly modified its findings for some of the Templates, as described below. The Conclusion of this Order contains the complete list of documents that the Government may withhold and the documents that it must produce.

BACKGROUND

A full background can be found in the Court's June 17 Order on the parties' cross-motions for summary judgment. See Order at 1-5.

LEGAL STANDARD

In considering the Government's claimed FOIA exemptions with respect to CRM-Lye-17543-17544 and the above-mentioned Templates, the Court applies the same legal standard contained in its June 17 Order on the parties' motions for summary judgment. See Order at 5-7.

DISCUSSION

A. CRM-Lye-17543-17544

The Government argues that it properly withheld CRM-Lye-17543-17544, which it describes as "an email message dated August 22, 2012 from an ESU attorney to another Criminal Division attorney containing the Criminal Division's legal advice on how law enforcement may use its own equipment to obtain location information for a particular wireless device." Third Sprung Decl. ¶ 15. "The email describes the technology, what type of legal process is necessary, and what type of information the device can gather." Id. The Vaughn Index describes this document as "EMAIL. Subject: N/A Re: Attached description and guidance on how cell site simulators and related technologies are utilized and implemented by law enforcement." Vaughn Index at 134, Dkt. No. 35-7 (emphasis in original). The Government withheld the email under the attorney work product, the deliberative process, and the attorney-client privileges of Exemption 5, as well as Exemptions 6 and 7(C). Third Sprung Decl. ¶ 15. It also acknowledges, however, that the document "excerpts text of a document in the public domain, which has been released to Plaintiff." Id.

The Court reviewed the document in camera, however, as it was not evident which portion of the document the Government had withheld, the Court ordered the Government to "file a declaration... indicating which portion of the document is non-public and presently withheld." Order at 22. The Government timely responded, filing the Fourth Declaration of Peter C. Sprung. Dkt. No. 54. Mr. Sprung's latest declaration attaches as Exhibit A a copy of the portion of CRM-Lye-17543-17544 containing the text that is public and not withheld. Id. ¶ 2 & Ex. A.

The Court now considers whether the Government properly withheld the non-public portions of ...


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