American Civil Liberties Union v. Department of Justice ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN CIVIL LIBERTIES UNION, :
et al., :
:
Plaintiffs, :
:
v. : Civil Action No. 08-1157 (JR)
:
DEPARTMENT OF JUSTICE, :
:
Defendant. :
MEMORANDUM
Plaintiffs American Civil Liberties Union and American
Civil Liberties Union Foundation (“ACLU”) sue the United States
Department of Justice (“DOJ”)under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, et seq., seeking documents pertaining
to the use of cell phone tracking in criminal investigations and
prosecutions.
The ACLU seeks this information to address what it
asserts is a serious, and potentially unconstitutional, invasion
of privacy. The issue in this FOIA action is not one of
constitutional dimensions, however. It is whether the government
has properly invoked certain FOIA exemptions to withhold, in
whole or in part, lists it has compiled identifying criminal
cases by name, case number and court, in which the prosecution
used cell phone records or real-time data to track cell phone
location without a judicial determination of probable cause;
lists of applications for such data; and documents reflecting the
government’s policies, procedures, and practices for obtaining
cell phone records.
The FOIA questions presented are: (1) whether
Exemptions 6 and 7(C) permit withholding the list of case names
and docket numbers of the criminal prosecutions; (2) whether
Exemptions 6 and 7(C) permit withholding the case names and
docket numbers of cases in which applications to obtain cell
phone records were made; (3) whether Exemptions 2 and 7(E) permit
redaction of the templates used by Assistant United States
Attorneys when preparing applications for cell phone tracking
authority; and (4) whether the government’s search for documents
responsive to the ACLU’s FOIA request was adequate.1
1. List of criminal prosecutions
The government invokes FOIA Exemptions 6 and 7(C) to
withhold the case names and docket numbers of 255 criminal
prosecutions in which courts granted applications to obtain cell
phone location data without probable cause determinations. 5
U.S.C. §§ 552(b)(7)(C), (b)(6). The two exemptions overlap -
both (somewhat ironically, considering the Fourth Amendment flag
the ACLU is flying in this case) are meant to protect privacy.
Exemption 7(C) permits withholding when disclosure “could
1
Initially, the ACLU also sought an unredacted version
of a final application to engage in cell phone tracking. Since
the parties completed their summary judgment briefing, the
government has produced a version of the final application with
fewer redactions, to the ACLU’s satisfaction. [# 38].
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reasonably be expected to constitute an unwarranted invasion of
personal privacy,” while Exemption 6 permits withholding only
when disclosure “would constitute a clearly unwarranted invasion
of personal privacy.”2 The proper application of both exemptions
requires a balancing of individual privacy interests against the
public interest. See U.S. Dep’t of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 776 (1989). If an
individual’s privacy interest is implicated, then a FOIA
requestor must show that “(1) the public interest is a
significant one; and (2) the information is likely to advance
that interest.” Harrison v. EOUSA, 377 F.Supp.2d 141, 147
(D.D.C. 2005), citing NAVA v. Favish, 541 U.S. 157, 172 (2003).
In this case, the ACLU argues that the individual
privacy interests implicated by the disclosures it seeks are
minimal. Most of the criminal cases were matters of public
record, it argues, and most of the defendants have already been
publicly linked to criminal activity, diminishing the need to
protect them from further disclosure. The ACLU points to the
cases of some highly-publicized terrorist suspects to demonstrate
that the government’s argument does not pass “the laugh test.”
The ACLU also argues that some criminal defendants may actually
2
Exemption 7(C)also requires that withheld records be
“compiled for law enforcement purposes.” The ACLU concedes that
the records at issue meet that requirement. Exemption 6 pertains
to “personnel and medical files.”
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prefer that the information be released, because it may enable
them to vindicate Fourth Amendment protections.
Criminal defendants are not without privacy rights in
the FOIA context, see Judicial Watch v. DOJ, 365 F.3d 1108, 1125
(D.C. Cir. 2004), and the public nature of court records does not
eliminate their interest in avoiding further disclosure, see
Harrison, 377 F.Supp.2d at 148; see also Reporters Committee, 489
U.S. at 770. The ACLU correctly points out, however, that
Exemption 7(C) offers its greatest protection when disclosure
would “involve the privacy interests of individuals who were
uncharged suspects of investigations or who were merely mentioned
in records.” The government does cite several decisions of other
judges of this court finding that Exemption 7(C) protected
criminal case names and numbers from disclosure, [#32] at 2-5,
but each of those decisions is distinguishable for one reason or
another. For example, as the ACLU observes, Judge Lamberth’s
decision in Harrison v. Executive Office for United States
Attorneys, 377 F.Supp.2d 141 (D.D.C. 2005), “may have been
motivated by the identity of the requester [an inmate] and the
creepy nature of his request [for every case prosecuted by a
certain magistrate judge when he was a prosecutor].”
In striking the appropriate balance in this case, I
will allocate a greater privacy interest to persons who were
acquitted, or whose cases were dismissed or sealed (and remain
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under seal), and a considerably lesser privacy interest to
persons who were convicted, or who entered public guilty pleas.
The public’s interest in the release of this
information, the ACLU asserts, is in “understanding to what
extent and to what end the government is engaged in cell phone
tracking, to what extent these surveillance activities lead to
prosecutions, and to what extent these prosecutions are
successful.” [#29] at p. 17. The argument is that cell phone
usage is ubiquitous (or, perhaps, pandemic), and that the public
has the right to examine the government’s use of cell phone
tracking. [#35] at p. 7. It may be true that the public has a
substantial interest in the subject of cell phone tracking – in
knowing what Big Brother is “up to” – but the ACLU provides only
a meager explanation of just how the release of case names and
docket numbers will advance that interest. It explains only that
“[c]urrently the public has no idea who is prosecuted as a result
of cell phone tracking, or for what kinds of crimes. The case
names and docket numbers are necessary in order to be able to see
to what uses this surveillance is being put,” [#29] at p. 17-18,
and “[b]ecause the vast majority of applications and orders
remain under seal and published decisions exist in only a handful
of districts, plaintiffs need the requested information to access
court proceedings,” id. at 18 (emphasis added). In other words
(not the ACLU’s words), having case names and numbers would make
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it easier to find and pursue the juiciest cases - the ones that
would best illustrate the Fourth Amendment argument the ACLU is
apparently developing. The easier it becomes to pursue such
follow-up investigations, however, the more likely it is that
unwarranted invasions of personal privacy will occur.
Weighing the privacy interests of individuals who have
been criminally prosecuted against the public interest that could
be served by the disclosure of the case names and numbers the
ACLU seeks, I find that the public interest in “what the
government is up to” outweighs the privacy interests of persons
who have been convicted of crimes or have entered public guilty
pleas; but that the privacy interests of persons who have been
acquitted, or whose cases have been sealed and remain under seal,
or whose charges have been dismissed, outweigh the public
interest in disclosure of their names and case numbers.
2. Case names and docket numbers in applications
The ACLU also seeks the case names and docket numbers
included in applications requesting use of cell phone records,
which the government has redacted, also under Exemptions 6 and
7(C). The ACLU concedes that case names are exempt from
disclosure if they would lead to release of personally
identifiable information about surveillance targets who have yet
to be prosecuted. But, the government contends, after case names
are redacted, nothing would be left but variants of the phrase
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“In re: Application for Cell Site Authority.” I will not order
the government to make such a meaningless production. As for
docket numbers on Documents 22, 27 and 67: the ACLU assumes that
the cases represented by those documents are sealed and argues
that release of their docket numbers would not reveal any
identifying information. Disclosure of docket numbers could
reveal surveillance targets yet to be prosecuted, however –
either because the cases are not actually sealed, or because the
ACLU’s promised motion to unseal could be successful. The
redactions from the applications pursuant to Exemption 7(C) are
proper.
3. Application templates
The government has produced templates used to make
applications for cell phone tracking authority but has redacted
them pursuant to Exemptions 2 and 7(E). Some of the redactions
withhold material that is claimed to be “high 2" exempt, a
category that covers “predominantly internal” documents whose
disclosure would “significantly risk[] circumvention of agency
regulations or statutes.” See Crooker v. Bureau of Alcohol,
Tobacco, & Firearms, 670 F.2d 1051, 1073 (D.C. Cir. 1981). The
other redactions invoke Exemption 7(E), which allows the
government to withhold documents that are compiled for law
enforcement purposes and that “would disclose techniques and
procedures for law enforcement investigations or prosecutions, or
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would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to
risk circumvention of law.” 5 U.S.C. § 552(b)(7)(E).
The ACLU attacks the government’s Vaughn index as
conclusory and requests in camera review of the documents.
Although I agree that in camera review of twelve documents would
not be unduly burdensome, I find the government’s Vaughn
descriptions to be an adequate basis for my decision.
Documents 2, 69, and 71 are described as guides or
samples that AUSAs use in drafting applications, orders and
declarations to obtain authorization for cell phone monitoring.
These documents are not final applications or orders, so it is
quite evident that they are “predominantly internal.” And, the
government provides adequate affidavit support for its argument
that release of the redacted information would risk circumvention
of the law because it would reveal information about how co-
conspirators can be identified, the conditions under which cell
phone tracking would not work, and details about the conditions
necessary for cell phone tracking to be effective – precisely the
kind of information that Exemption 2 is intended to cover. Second
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Declaration of Karen M. Finnegan,[#32-1] at ¶ 11; Crooker, 670
F.2d at 1054.
The remaining template redactions3 are said to contain
information on law enforcement techniques that are not readily
available to the public, so that redaction is permissible under
Exemption 7(E). As the government correctly points out, the
first prong of Exemption 7(E) permits withholding of information
that would disclose techniques and procedures for law enforcement
investigations or prosecutions without a showing risk of
circumvention. 5 U.S.C. § 552(b)(7)(E); see also Peter S.
Herrick’s Customer & Int’l Trade Newsletter v. U.S. Customs &
Border Prot., 2006 WL 1826185, at *7 (D.D.C. June 30, 2006).4
The redacted information reveals limitations of the law
enforcement techniques, details about what the cell phone records
can capture, and uses of the records that are not obvious or
3
Portions of Documents 2-3, 26-29, 32-34, and 68-71.
4
The ACLU argues that PHE, Inc. V. DOJ, 983 F.2d 248(D.C. Cir. 1993) requires a showing of risk of circumvention to
apply Exemption 7(E). I agree with the government’s reading of
the case, as the records at issue in PHE were primarily
guidelines and fell under the second prong of the exemption.
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well-known. [#32-1] at ¶ 15. The government has appropriately
applied Exemption 7(E).
4. Adequacy of the searches
The ACLU requests that the government conduct further
searches for final versions of 13 draft documents.5 The original
request sought “Policies, procedures, and practices followed to
obtain mobile phone location information for law enforcement
purposes.” [#29] at p. 9. That language does not cover specific
applications or orders for particular cases, and the government
reasonably so construed it.
Did the defendant make “a good faith effort to conduct
a search for the requested records, using methods which can be
reasonably expected to produce the information requested”?
Nation Magazine v. U.S. Customs Service, 71 F.3d 885, 890 (D.C.
Cir. 1995). The affidavit of Karen Finnegan that describes the
search adequately demonstrates that the search was reasonable.
[#32-1] at ¶ 5. The fact that the search did not yield final
versions of certain draft documents does not render the search
itself inadequate. Final versions may not exist, and, even if
they do, a search need not yield every document to be adequate.
5
The ACLU also sought the “Hodor” and “Kischer”
declarations, which are components of the application package the
government usually submits when it seeks cell phone tracking
authority. Since the parties completed their summary judgment
briefing, the government has produced both documents, to the
ACLU’s satisfaction.
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Nation Magazine, 71 F.3d at 892, n. 7. The ACLU erroneously
argues that it was the government’s burden to show that a more
extensive search would be unduly burdensome. That is not the
rule where, as here, the government has conducted a search that
fully addresses the scope of the request. See id. at 891.
An appropriate order accompanies this memorandum.
JAMES ROBERTSON
United States District Judge
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