Soghoian v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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CHRISTOPHER SOGHOIAN, )
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Plaintiff, )
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v. ) Civil Action No. 11-1080 (ABJ)
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UNITED STATES DEPARTMENT OF )
JUSTICE, )
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Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Christopher Soghoian, proceeding pro se, brings this action against defendant
United States Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”).
5 U.S.C. § 552 (2006). Plaintiff seeks an injunction compelling DOJ to release all documents
pertaining to certain federal law enforcement electronic surveillance practices. The parties have
cross-moved for summary judgment [Dkts. # 15, # 17], and the Court has conducted an in
camera review of all of the withheld documents. As discussed below, DOJ has conducted an
adequate search, properly asserted at least one exemption for all withheld documents, and
released all reasonably segregable material. The Court will therefore grant DOJ’s motion for
summary judgment and deny plaintiff’s cross-motion for summary judgment.
I. BACKGROUND
A. Factual Background
Plaintiff is a Washington, D.C.-based graduate fellow and Ph.D. candidate at Indiana
University whose research focuses on “the relationship between law enforcement agencies and
communications companies, such as Internet service providers and telephone carriers.” Compl.
[Dkt. # 1] ¶ 3–4. In the course of his research, plaintiff filed a FOIA request with DOJ on April
14, 2010, seeking records related to certain electronic surveillance practices of federal law
enforcement. Id. ¶ 5. Specifically, plaintiff requested:
a. “Any memos, communications, reports, legal opinions, or other
documents related to the government’s acquisition (either compelled, or
voluntary disclosure by the carrier) of cellular location information
(including but not limited to Call Detail Records) regarding individuals
who are roaming, and thus not using their own carrier’s network, and are
instead using another wireless telecommunications carrier to which the
individual is not a subscriber.” Pl.’s FOIA Request, Ex. 1 to Cunningham
Decl. [Dkt. # 15-2] at 1.
b. “Any memos, email communications, reports, legal opinions, or other
documents related to government requests for location of called parties in
“hybrid” orders – e.g., requests that a carrier provide the government with
subscriber and toll records for each number called by the target including
cell site or location information associated with each call for a particular
period.” Id. at 1–2 (footnote omitted).
c. “Any memos, email communications, reports, legal opinions, or other
documents related to government agents requesting and obtaining non-
content header information (such as “to” and “from” addresses) associated
with individuals’ email communications that have been opened, or are
over 180 days old, based upon a showing of relevance to an ongoing
investigation (and not via a 18 USC 2703(d) order). [A]ny information
regarding refusals by some Internet Service Providers to deliver such
noncontent header information without a 2703(d) order, even for
communications over 180 days old, and any information regarding DOJ’s
response to the refusal by the ISPs.” Id. at 2.
Plaintiff indicated that he was particularly looking for “any information held by the Office of
Enforcement Operations [“OEO”], the Computer Crime [and] Intellectual Property Section
[“CCIPS”]” and that “[t]he scope of this request is anything created between January 1, 2007 and
April 13, 2010.” Id.The DOJ Criminal Division (“CRM”) acknowledged receipt of plaintiff’s request on May
6, 2010, and initiated its search for responsive records in OEO and CCIPS on May 7, 2010. Ex.
2 to Cunningham Decl. The search yielded approximately 186 pages of responsive records from
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CRM, one page from the United States Marshal Service (“USMS”), and approximately 418
pages from the Executive Office for United States Attorneys (“EOUSA”). Ex. 7 to Cunningham
Decl. at 1–2. CRM subsequently referred the records from USMS and EOUSA to those
respective agencies for review and processing. Id. at 2. CRM then learned that a 299-page
manual entitled Searching and Seizing Computers and Obtaining Electronic Evidence in
Criminal Investigations existed, and after EOUSA determined it was publicly available on the
Internet, CRM released the document in full to plaintiff, along with “a few pages that had been
previously withheld.” Cunningham Decl. ¶ 12–13.
After reviewing the remaining records, CRM determined that the other responsive
records should be withheld pursuant to FOIA Exemptions found in 5 U.S.C. § 552(b)(2), (5), (6),
(7)(C), and (7)(E). Ex. 7 to Cunningham Decl. 1 CRM notified plaintiff of its findings on March
28, 2011. Id. EOUSA conducted a similar search and determined, upon review of the records
referred from CRM, that all pages should be withheld pursuant to FOIA Exemption (b)(3) for
documents exempted from disclosure by statute. Boseker Decl. [Dkt. # 15-3] ¶ 12. EOUSA
relied on the statutory authority of Federal Rule of Civil Procedure 6(e) (prohibiting the
disclosure of records that pertain to a Federal Grand Jury); 18 U.S.C. § 2705(b) (2006) (where
law enforcement has a warrant for access to stored communications, a court may order the
electronic communications service provider not to notify any other person); 18 U.S.C. § 3123(b)
(2006) (contents of an order for a pen register or tap and trace devices issued for ongoing
criminal investigations); and 18 U.S.C. § 3103(a) (2006) (grounds for search warrant under
Federal Rule of Criminal Procedure 41(b)). Boseker Decl. ¶ 13–15; Def.’s Statement of Material
Facts Not in Dispute (“Def.’s SMF”) [Dkt. # 15-1] ¶ 15. EOUSA also cited FOIA Exemptions
1 The Court notes that CRM no longer relies on section 552(b)(2). Cunningham Decl. ¶ 13
n. 4.
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contained in 5 U.S.C. § 552(b)(2), (5), (7)(C), and (7)(E) as authority for withholding the
documents. Boseker Decl. ¶¶ 17–27. 2
B. Procedural Background
Plaintiff filed a timely appeal of EOUSA’s decision on April 12, 2011, Ex. C to Boseker
Decl., and CRM’s decision on April 16, 2011. Def.’s SMF ¶ 12. DOJ’s Office of Information
Policy (“OIP”), which is responsible for appeals of FOIA decisions, acknowledged receipt of
plaintiff’s EOUSA appeal on April 25, 2011, Ex. D. to Boseker Decl., and received his CRM
appeal on April 16, 2011. Ex. 8 to Cuningham Decl. Plaintiff, however, filed his complaint in
this Court on June 13, 2011, before OIP had issued a decision on either appeal. Compl. at 1; Ex.
9 to Cunningham Decl. Following the filing of plaintiff’s complaint, OIP notified plaintiff that
the appeals were closed on September 6, 2011. Ex. 9 to Cunningham Decl.
On February 6, 2012, DOJ moved for summary judgment. See Mem. in Supp. of Def.’s
Mot. for Summ. J. (“Def.’s Mem.”) [Dkt. # 15]. In support of its motion, DOJ attached the
affidavits of John E. Cunningham, III, an attorney in the FOIA/Privacy Act Unit of CRM, and
John F. Boseker, an attorney advisor in EOUSA who handles FOIA matters. Plaintiff cross-
moved for summary judgment on April 10, 2012, arguing that DOJ improperly withheld
documents under FOIA exemptions (5) and (7)(E) and that it has failed to segregate non-exempt
material. See Mem. in Supp. of Pl.’s Cross-Mot. for Summ. J. (“Pl.’s Mem.”) [Dkt. # 17] at 7.
II. STANDARD OF REVIEW
The purpose of FOIA is to require the release of government records upon request and to
“ensure 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.” NLRB v. Robbins
2 The Court notes that EOUSA no longer relies on section 552(b)(2). Boseker Decl. ¶ 12.
4
Tire & Rubber Co., 437 U.S. 214, 220, 242 (1978). At the same time, Congress recognized “that
legitimate governmental and private interests could be harmed by release of certain types of
information and provided nine specific exemptions under which disclosure could be refused.”
FBI v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d
918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress between the public’s
right to know and the government’s legitimate interest in keeping certain information
confidential.”). The Supreme Court has instructed that “FOIA exemptions are to be narrowly
construed.” Abramson, 456 U.S. at 630.
To prevail at the summary judgment phase in a typical FOIA action, an agency must
satisfy two elements. First, the agency must demonstrate that it has made “a good faith effort to
conduct a search for the requested records, using methods which can be reasonably expected to
produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990). “[A]t the summary judgment phase, an agency must set forth sufficient information in its
affidavits for a court to determine if the search was adequate.” Nation Magazine, Wash. Bureau
v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), citing Oglesby, 920 F.2d at 68. Such
agency affidavits attesting to a reasonable search “are afforded a presumption of good faith[,]”
Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004), and “can be
rebutted only ‘with evidence that the agency’s search was not made in good faith.’” Id., quoting
Trans Union LLC v. FTC, 141 F. Supp. 2d 62, 69 (D.D.C. 2001). Second, an agency must show
that “materials that are withheld . . . fall within a FOIA statutory exemption.” Leadership
Conference on Rights v. Gonzales, 404 F. Supp. 2d 246, 252 (D.D.C. 2005). After asserting and
explaining its exemptions, an agency must release “[a]ny reasonably segregable portion of a
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record” and provide it to the requesting party, “after deletion of the portions which are exempt.”
5 U.S.C. § 552(b).
Once a FOIA request has been processed, a plaintiff is required to exhaust all
administrative remedies before bringing an action to compel disclosure of documents. See 28
C.F.R. § 16.9(c) (2012); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Failure to exhaust
such remedies bars the lawsuit. See Banks v. DOJ, 813 F. Supp. 2d 132, 138–39 (D.D.C. 2011)
(granting agency’s motion for summary judgment in FOIA action where plaintiff failed to file an
administrative appeal before filing the lawsuit); Schwaner v. Dep’t of Army, 696 F. Supp. 2d 77,
81 (D.D.C. 2010) (same). A plaintiff is deemed to have exhausted his administrative remedies
with respect to his FOIA request when an agency “fails to comply with the applicable time limit
provisions” of FOIA. 5 U.S.C. § 552(a)(6)(C)(i). The agency has twenty days to make an initial
determination, and following an administrative appeal of a FOIA decision, twenty days to make
a determination on the appeal. 5 U.S.C. § 552(a)(6)(A)(i)–(ii).
The district court reviews the agency's action de novo, and “the burden is on the agency
to sustain its action.” 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d
724, 738 (D.C. Cir. 1981). Once the case comes to court, “FOIA cases are typically and
appropriately decided on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12
(D.D.C. 2009). In any motion for summary judgment, the Court “must view the evidence in the
light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and
eschew making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546
F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). However, where a plaintiff has not provided evidence that an agency acted in bad faith,
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“a court may award summary judgment solely on the basis of information provided by the
agency in declarations.” Moore, 601 F. Supp. 2d at 12.
While the same legal framework applies in every case, where a plaintiff proceeds pro se,
“the Court must take particular care to construe the plaintiff’s filings liberally, for such
complaints are held ‘to less stringent standards than formal pleadings drafted by lawyers.’”
Cheeks v. Fort Myer Constr. Co., 722 F. Supp. 2d 93, 107 (D.D.C. 2010), quoting Haines v.
Kerner, 404 U.S. 519, 520–21 (1972).
III. ANALYSIS
A. DOJ has complied with its obligations under FOIA.
Although DOJ relies on several exemptions as grounds for withholding the responsive
documents, plaintiff challenges only the withholdings under Exemptions 5 and 7(E). Pl.’s Mem.
at 7. Plaintiff also contends that even if the challenged or conceded exemptions apply, DOJ has
failed to release all segregable material. Id. The Court must determine whether DOJ’s search for
responsive records was adequate, whether DOJ properly asserted FOIA exemptions for the
withheld documents, and whether DOJ released all reasonably segregable material.
1. DOJ’s search for responsive records was adequate.
An agency moving for summary judgment in a FOIA request must first demonstrate that
it made a good faith effort to search for responsive materials in a manner “reasonably expected to
produce the information requested.” Oglesby, 920 F.2d at 68. Where agency affidavits assert
that a reasonable search was conducted, the agency is entitled to a presumption of good faith.
Defenders of Wildlife, 314 F. Supp. 2d at 8. “An agency fulfills its obligations under FOIA if it
can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all
relevant documents.’” Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir.
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1999), quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). “To meet its burden,
the agency may submit affidavits or declarations that explain in reasonable detail the scope and
method of the agency’s search.” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83,
91 (D.D.C. 2009) (“Defenders of Wildlife II”). However, “the issue to be resolved is not whether
there might exist any other documents possibly responsive to the request, but rather whether the
search for those documents was adequate.” Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir.
1984). The process of conducting an adequate search for documents requires “both systemic and
case-specific exercises of discretion and administrative judgment and expertise,” and it is “hardly
an area in which the courts should attempt to micromanage the executive branch.” Schrecker v.
DOJ, 349 F.3d 657, 662 (D.C. Cir. 2003) (internal quotation marks and citation omitted).
“[T]he sufficiency of the agency’s identification or retrieval procedure” must be
“genuinely in issue” in order for summary judgment in the agency’ favor to be inappropriate
based on the adequacy of the search. Weisberg v. DOJ, 627 F.2d 365, 370 (D.C. Cir. 1980),
quoting Founding Church of Scientology v. NSA, 610 F.2d 824, 836 (D.C. Cir. 1979). A plaintiff
“cannot rebut the good faith presumption” afforded to an agency’s supporting affidavits “through
purely speculative claims about the existence and discoverability of other documents.” Brown v.
DOJ, 742 F. Supp. 2d 126, 129 (D.D.C. 2010), quoting SafeCard Servs., Inc. v. SEC, 926 F.2d
1197, 1200 (D.C. Cir. 1991).
The government has additional responsibilities in cases involving pro se plaintiffs. A
defendant’s motion for summary judgment must give notice to plaintiff in “a short and plain
statement that any factual assertion in the movant’s affidavits will be accepted by the district
judge as being true unless the plaintiff submits his own affidavits or other documentary evidence
contradicting the assertion.” Neal v. Kelly, 963 F.2d 453, 456–57 (D.C. Cir. 1992) (internal
8
citation omitted); Cudzich v. INS, 886 F. Supp. 101, 105 (D.D.C. 1995); see also Fed. R. Civ. P.
56(e); LCvR 7(h).
Here, DOJ met its obligation to inform plaintiff of his responsibility to contradict the
assertions in its motion. See Def.’s Mot. for Summ. J. at 1. Plaintiff’s own motion for summary
judgment does not challenge the adequacy of DOJ’s search for documents; rather, it focuses on
the argument that DOJ improperly asserted certain FOIA exemptions. See Pl.’s Mem. at 7–17;
see also Def.’s Reply at 2. In light of the representations in DOJ’s declarations as well as the
fact that plaintiff was properly notified but did not challenge the adequacy of the search, the
Court is satisfied that DOJ has established that it conducted an adequate search for responsive
documents. 3
2. DOJ has properly asserted FOIA Exemption 5 for all withheld documents
and properly asserted Exemption 7(E) for some withheld documents.
The next question for the Court to consider is whether the documents in question were
properly withheld. Leadership Conference on Rights, 404 F. Supp. 2d at 252. Plaintiff contends
that DOJ has improperly relied on FOIA Exemption 5, 5 U.S.C. § 552(b)(5), and Exemption 7(E),
3 Because the applicable standard of review is de novo, the Court notes that even if plaintiff
had challenged the adequacy of the search, it would still find that DOJ’s search was made in
good faith, thorough, and reasonably calculated to locate responsive documents. After plaintiff’s
original request, CRM searched the records of OEO and CCIPS, which were the sections directly
responsible for “resolv[ing] unique legal and investigative issues raised by emerging computer
and telecommunications technologies and train[ing] federal, state, and local law enforcement
personnel.” Cunningham Decl. at ¶ 9. In addition to being the most competent sections of DOJ
to address plaintiff’s request, his original FOIA request specifically sought records from OEO
and CCIPS. See Ex. 1 to Cunningham Decl. As a result of the search, CRM identified over 600
pages of responsive records in OEO and CCIPS, including approximately 186 pages from CRM
itself, one page from USMS, and approximately 418 pages from EOUSA. Cunningham Decl.
¶ 10. CRM then referred the EOUSA records to that agency for processing. Id. ¶ 11.
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id § 552(b)(7)(E), in withholding fourteen documents. Pl.’s Mem. at 7. 4 Specifically, plaintiff
challenges DOJ’s reliance on Exemptions 5 and 7(E) for withholding documents listed as
Documents 1, 2, and 5–14 on CRM’s Vaughn index [Dkt. # 22-2], and Documents 3 and 4 on
EOUSA’s Vaughn index [Dkt. # 22-1]. Pl.’s Mem. at 7 n.2. 5
The agency bears the burden of justifying the decision to withhold records under FOIA’s
statutory exemptions. 5 U.S.C. § 552(a)(4)(B). A court may, however, grant summary judgment
based solely on information provided in an agency’s affidavits or declarations if they “describe
the documents and the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”
Casey, 656 F.2d at 738. Such affidavits or declarations “are accorded a presumption of good
faith[.]” SafeCard Servs., Inc., 926 F.2d at 1200. Although an agency may be entitled to
summary judgment based solely on information in its affidavits or declarations, a court may also
conduct an in camera review of disputed records. See Ray v. Turner, 587 F.2d 1187, 1195 (D.C.
Cir. 1978). Here, both the documents themselves and the Court’s in camera review of them
support the claimed exemptions.
4 Plaintiff does not challenge that reliance on FOIA Exemptions 3, 6, and 7(C) was
appropriate for portions of CRM Documents 1–2, 5–14, as well as EOUSA Documents 3–4.
Pl.’s Reply to Def.’s Mot. for Summ. J. (“Pl.’s Reply”) [Dkt. # 24] at 1 n.1. The Court analyzes
these documents to see whether they are protected from disclosure by the other asserted
exemptions (Exemptions 5 and 7(E)), and based on the applicable exemption, whether they are
segregable. Plaintiff does not challenge CRM Documents 3–4 or EOUSA Documents 1–2 at all.
Id.5 DOJ released EOUSA Document 1 in full, Def.’s Reply at 2, because it is available in the
public domain. Def.’s Mem. ¶ 9. Plaintiff does not challenge the withholding of CRM
Documents 3 and 4 (drafts of an OEO manual) or EOUSA Document 2 (information regarding
cases filed under seal). Pl.’s Reply at 1 n.1.
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a. Documents were properly withheld under Exemption 5.
Exemption 5 allows agencies to withhold records where the requested documents include
“inter-agency or intra-agency memorandums or letters which 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). In determining
whether a document was properly withheld under Exemption 5, a court must ensure that the
document satisfies two conditions: (1) “its source must be a Government agency, and [(2)] it
must fall within the ambit of a privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8 (2001). These privileges include the attorney work product and
deliberative process privileges. Id. Because the documents originated from CRM and EOUSA,
which are sections within the Department of Justice, plaintiff does not contest that the sources of
the records were government agencies. See Pl.’s Mem. at 7–8. The Court therefore will examine
only the second prong of the standard articulated in Klamath: whether the withheld documents
are protected by the claimed privilege. 532 U.S. at 8. After conducting an in camera review of
DOJ’s withheld documents, the Court concludes that DOJ properly asserted Exemption 5.
i. DOJ properly asserted the attorney work product privilege.
Plaintiff contends that DOJ has improperly invoked the attorney work product doctrine
because it did not identify the specific litigation for which the withheld documents were prepared.
Pl.’s Mem. at 10. Plaintiff does not challenge the documents individually but generally advances
this argument with respect to all withheld documents. Id. at 7–8.
Based on an in camera review of the documents and of DOJ’s Vaughn index and
declarations, the Court is satisfied that the documents were properly withheld under Exemption 5
on work product grounds because they were prepared by attorneys in anticipation of litigation.
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The records at issue include internal presentations and discussions among DOJ attorneys that
analyze the legal precedents and statutes applicable to the various methods of obtaining evidence
from cell phones themselves and from phone carriers. See, e.g., Cunningham Decl. ¶ 17
(explaining that the purpose of the lectures was “to discuss with Assistant U.S. Attorneys issues
that might arise if they selected certain investigative techniques and how that might impact their
ability to establish their case.”). The D.C. Circuit has explained that the government is permitted
to withhold such records under the attorney work product privilege, including documents
“advis[ing] 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.” Delaney, Migdail,
& Young, Chartered v. IRS, 826 F.2d 124, 127 (D.C. Cir. 1987). While plaintiff correctly notes
that the documents in question do not relate to any specific claim or litigation, Pl.’s Mem. at 11,
the D.C. Circuit has not construed the privilege so narrowly as to protect only work product
related to specific cases currently in litigation. See Delaney, 826 F. 2d at 127 (rejecting a
“blanket rule” that work product privilege applies only to specific claims and litigation); Schiller
v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992) (noting that work product protection “extends to
documents prepared in anticipation of foreseeable litigation, even if no specific claim is
contemplated[]”); Hunt v. U.S. Marine Corps, 935 F. Supp. 46, 52 (D.D.C. 1996) (quoting
Schiller).
Here, the legal strategies and issues addressed in the withheld documents are protected
because they relate to foreseeable litigation arising out of the government’s criminal
investigations. Cunningham Decl. ¶¶ 19–20. CRM Documents 1 and 5–9 are presentations
discussing legal strategies in investigations involving electronic surveillance. Id. ¶ 20. Some of
these slides also contain the handwritten notes of the attorneys who made the presentations. Id.
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CRM Document 2, an internal manual produced by OEO, also contains legal guidance for
attorneys conducting investigations. Id. ¶ 19. The document employs language stating that
“OEO recommends” certain legal approaches and strategies over others, which falls squarely
within the standard for attorney work product discussed in Delaney, 826 F.2d at 127. See also
Martin v. DOJ, 488 F.3d 446, 455 (D.C. Cir. 2007) (holding that memos containing “extensive
legal analyses of potential claims” are protected by the work product privilege). Although there
is a handwritten notation on the document indicating that the document is a printed version of an
online manual, the Cunningham Declaration states that the manual “is made available only to
law enforcement personnel, and was written by OEO attorneys for use by those investigators.”
Cunningham Decl. ¶ 19. 6 The Court finds that these documents are covered by the attorney
work product privilege because they present the legal strategies of the DOJ attorneys who will be
required to litigate on behalf of the government. See Delaney, 826 F.2d at 127. Moreover, the
documents that include handwritten notes are also protected by the privilege because they
contain the “mental impressions, conclusions, opinions, or legal theories” of the attorneys. See
Hickman v. Taylor, 329 U.S. 495, 508 (1947). These documents are therefore protected by the
work product doctrine and exempt from disclosure under FOIA Exemption 5.
The availability of the privilege is even clearer where documents relate to specific
litigation. CRM Documents 10 and 14 are emails among attorneys discussing particular search
6 Cunningham also noted that while this manual covers similar subject matter as a manual
entitled “Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal
Investigations,” which was available to the public, id. ¶ 12, CRM Document 2 “is different than
that which is available to plaintiff” and that “[i]n creating the publicly available manual, CRM
attorneys were careful to withhold details that would jeopardize law enforcement techniques
while still making available to the public an explanation of the more general issues.” Id. ¶ 19.
This statement supports DOJ’s reliance on Exemption 7(E), which the Court discusses in greater
detail below.
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warrants and investigations. Cunningham Decl. ¶¶ 26, 28. Similarly, EOUSA Documents 3 and
4 are emails among attorneys discussing legal theories and recommendations in specific sealed
cases. Boseker Decl. ¶¶ 17–19; EOUSA’s Vaughn Index. The emails contained in EOUSA
Documents 3 and 4 are properly excluded under the work product doctrine because they include
the attorney’s mental impressions of sealed cases. See NLRB v. Sears, Roebuck, & Co., 421 U.S.
132, 154 (1975) (“Whatever the outer boundaries of the attorney’s work-product rule are, the
rule clearly applies to memoranda prepared by an attorney in contemplation of litigation which
set forth the attorney’s theory of the case and his litigation strategy.”); see also Coastal States
Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980) (explaining that where a
specific claim has arisen and is subject to litigation, the government may sustain the work
product privilege).
The emails in EOUSA Documents 3 and 4 also include attachments that were properly
withheld under Exemption 3, which allows exemption from disclosure by statutory enactment,
because the cases were filed under seal pursuant to Federal Rule of Criminal Procedure 6(e). See
Boseker Decl. ¶¶ 13–14. Therefore, CRM Documents 10 and 14 and EOUSA Documents 3 and
4 are protected in full from disclosure.
ii. DOJ properly asserted the deliberative process privilege.
DOJ contends that all withheld documents are also protected from disclosure under
Exemption 5 because of the deliberative process privilege. Def.’s Mem. at 19, 22, 33. The
deliberative process privilege “enhance[s] ‘the quality of agency decisions’ by protecting open
and frank discussion among those who make them within the Government.” Klamath, 532 U.S.
at 8–9, quoting Sears, 421 U.S. at 151. An agency asserting this privilege must show that the
document withheld is both “[p]re-decisional” and “deliberative.” Jordan v. DOJ, 591 F.2d 753,
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774 (D.C. Cir. 1978), overruled on other grounds by Crooker v. Bureau of Alcohol, Tobacco &
Firearms, 591 F.2d 753 (D.C. Cir. 1981). A document is pre-decisional if it is “[a]ntecedent to
the adoption of an agency policy[,]” id., and deliberative if it “makes recommendations or
expresses opinions on legal or policy matters.” Id., citing Vaughn v. Rosen, 523 F.2d 1136, 1144
(D.C. Cir. 1975). Ultimately, “Exemption 5, properly construed, calls for disclosure of all
opinions and interpretations which embody the agency’s [e]ffective law and policy, and the
withholding of all papers which reflect the agency’s group thinking in the process of working out
its policy and determining what its law shall be.” Id., quoting Sears, 421 U.S. at 153.
Plaintiff argues that DOJ has improperly asserted the deliberative process privilege under
Exemption 5 by withholding records that are “final opinions or contain purely factual
information.” Pl.’s Mem. at 8. Based on both DOJ’s declarations and in camera review, the
Court rejects this contention.
CRM Documents 11, 12, and 13 are protected by the deliberative process privilege.
Document 11 contains draft material for an OEO manual and analysis and commentary by DOJ
attorneys. The document is deliberative because attorneys are considering and debating
language that will ultimately be embodied in a policy manual. The same is true for Document 12,
which contains draft language regarding guidance on obtaining search warrants. Likewise,
Document 13 contains draft material and commentary on guidance on obtaining location
information from wireless carriers. These documents are pre-decisional because they were drafts
that had not yet been adopted as agency policy at the time they were written. See Jordan, 591
F.2d at 774 (stating that the deliberative process privilege applies to “communications . . . that
are actually antecedent to the adoption of an agency policy”). They are also deliberative,
because they were “part of the agency give-and-take of the deliberative process by which the
15
decision itself is made.” Id. at 774, quoting Vaughn, 523 F.2d at 1144. Therefore, they are
properly withheld under Exemption 5.
b. Some documents were properly withheld under Exemption 7(E).
Plaintiff also challenges DOJ’s reliance on Exemption 7(E) as grounds for withholding
records from disclosure. Pl.’s Mem. at 13. Exemption 7(E) excludes from disclosure:
[R]ecords or information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement records or
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); see also Blackwell v. FBI, 680 F. Supp. 2d 79, 92 (D.D.C. 2010)
(upholding FBI’s withholding of information regarding procedures used in the forensic
examination of computers on the ground that “disclosure potentially would aid others in
circumventing future FBI investigations”). The agency justification “need not parrot the
statutory language” in applying the correct standards to its FOIA exemption. Morley v. CIA, 508
F.3d 1108, 1129 (D.C. Cir. 2007) (holding that it was a sufficient justification under Exemption
7(E) to state that documents could “provide insight into the security clearance process” and that
the agency need not use the “risk circumvention” language in order to have applied the correct
standard).
Plaintiff does not dispute that DOJ’s documents regarding electronic surveillance are not
“records compiled for law enforcement purposes” that would “disclose techniques and
procedures for law enforcement investigations or prosecutions.” He does, however, argue that
DOJ fails to describe how release of these documents “would lead to circumvention[.]” Pl.’s
Mem. at 13. Plaintiff also alleges that Exemption 7(E) only exempts certain investigative
techniques not known to the public and that defendant has failed to show that the records
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describe techniques not generally known to the public. Id. DOJ argues that “[t]he information
contained in [the withheld material] describes the various legal and investigative techniques that
should be considered by investigators and Assistant United States Attorneys in conducting their
criminal investigations. Disclosure of this . . . information could provide criminals the
information necessary to evade or thwart detection[.]” Def.’s Mem. at 21.
After conducting an in camera review, the Court agrees that CRM Documents 1 and 5–9
meet the applicable standard. Knowing what information is collected, how it is collected, and
more importantly, when it is not collected, is information that law enforcement might reasonably
expect to lead would-be offenders to evade detection. See, e.g., Blackwell, 680 F. Supp. 2d at 92.
CRM Documents 10 and 14 relate to advice and guidance given in connection with
particular investigations. CRM’s Vaughn Index. Similarly, EOUSA Documents 3 and 4 relate
to advice and guidance given by DOJ attorneys in the course of active criminal investigations.
See EOUSA’s Vaughn Index. It is reasonable to conclude that where law enforcement seeks
advice on electronic surveillance techniques, “[d]isclosure of even general guidance might reveal
investigative techniques and considerations that could assist criminals in developing their own
techniques for evading detection.” Cunningham Decl. ¶ 26. This explanation is sufficient to
shield the documents from disclosure under Exemption 7(E). See Morley, 508 F.3d at 1129.
Therefore, Exemption 7(E) provides independent grounds for the withholding of records also
found to be exempt under Exemption 5.
B. DOJ released all reasonably segregable portions of exempt documents.
FOIA expressly requires agencies to extract “[a]ny reasonably segregable portion of a
record” and provide it to the requesting party “after deletion of the portions which are exempt.”
5 U.S.C. § 552(b). “[I]t has long been the rule in this Circuit that non-exempt portions of a
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document must be disclosed unless they are inextricably intertwined with exempt
portions.” Wilderness Soc’y v. U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004),
quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
Agencies and courts must “differentiate among the contents of a document rather than treat it as
an indivisible ‘record’ for FOIA purposes.” Abramson, 456 U.S. at 626. Regardless of whether
a party actually challenges an agency’s determination on the segregability of requested records, a
district court must not “simply approv[e] the withholding of an entire document without entering
a finding on segregability, or the lack thereof.” Armstrong v. Exec. Office of the President, 97
F.3d 575, 578 (D.C. Cir. 1996), citing Schiller v. NLRB, 964 F.2d 1205, 1210 (D.C. Cir. 1992)
(internal quotation marks omitted); see Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1116
(D.C. Cir. 2007) (“If the district court approves withholding without such a finding [of
segregability], remand is required even if the requester did not raise the issue of segregability
before the court.”). The district court’s findings of segregability must be “specific.” Sussman,
494 F.3d at 1116.
The government bears the burden of demonstrating that no reasonably segregable
material exists in the withheld documents. Army Times Publ’g Co. v. Dep’t of Air Force, 998
F.2d 1067, 1068 (D.C. Cir. 1993). The agency must “provide[] a ‘detailed justification’ and not
just ‘conclusory statements’ to demonstrate that all reasonably segregable material has been
released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010); see also Armstrong, 97 F.3d
at 578 (affirming summary judgment where government affidavits explained non-segregability
of documents with “reasonable specificity”). The government may meet its obligation of
“reasonable specificity” with “[t]he combination of the Vaughn index and [agency] affidavits.”
Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002); see also Loving v.
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Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008). Whether the Vaughn index is sufficient “turns
on whether the agency has sufficiently explained why there was no reasonable means of
segregating factual material from the claimed privilege material.” Wilderness Soc’y, 344 F. Supp.
2d at 18. “[A] blanket declaration that all facts are so intertwined” is not sufficient to meet this
burden. Id. at 19.
Here, DOJ has met its burden of releasing all reasonably segregable material for all
withheld documents. First, the Court does not need to consider whether documents that are
appropriately withheld as attorney work product are properly severable. See, e.g., Judicial
Watch, Inc. v. DOJ, 432 F.3d 366, 371–72 (D.C. Cir. 2005) (finding that segregability is not
required with respect to attorney work product because “factual elements can seldom be
segregated from attorney work product”) (internal quotation marks and citations omitted); see
also Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997) (“Any part of a [document]
prepared in anticipation of litigation, not just the portions concerning opinions, legal theories,
and the like, is protected by the work product doctrine and falls under exemption 5.”).
Plaintiff argues that “it is a near-certainty that [d]efendant has withheld some purely
factual material.” Pl.’s Mem. at 10. While documents withheld under the work product
privilege need not be analyzed for segregability, there is no such blanket exemption for the
deliberative process privilege. See Judicial Watch, 432 F.3d at 371–72. But plaintiff's assertion
that DOJ has withheld purely factual information does not compel the release of all “purely
factual” information within the document. While, typically, factual information that is
“severable from its context” must be disclosed, EPA v. Mink, 410 U.S. 73, 88–89 (1973), this
Court has held that certain factual information may be withheld if “disclosure would . . . expose
[the] decisionmaking process in such a way as to discourage candid discussion within the agency
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and thereby undermine the agency’s ability to perform its functions.” McKinley v. Bd. of
Governors, Civ. Action. No. 1:10–cv–00751, 2012 WL 1034464, at *11, citing McKinley v.
FDIC, 744 F. Supp. 2d 128, 140 (D.D.C. 2010).
In this case, CRM Documents 11, 12, and 13 were withheld under the deliberative
process privilege and therefore must be analyzed for segregability. These documents are
informal memos shared between attorneys discussing the OEO manual, as well as other legal
guidance for obtaining warrants and other information. After reviewing them in camera, the
Court is satisfied that their disclosure would improperly expose the decisionmaking process and
that there are no segregable portions of the documents. CRM Documents 11, 12, and 13 was
therefore properly withheld in full.
EOUSA’s assertions that Documents 3 and 4 are not segregable are also sufficient. See
Def.’s Mem. at 34–36. These documents, according to EOUSA’s Vaughn index and the Boseker
Declaration, are related to either specific applications or orders for pen registers that are exempt
from disclosure by statute or under seal by a court or are otherwise privileged in full under the
work product doctrine. See EOUSA Vaughn Index, Boseker Decl. ¶ 28. Therefore, the Court is
satisfied that DOJ has satisfied the FOIA requirement that all reasonably segregable materials be
released after appropriately asserting an exemption.
IV. CONCLUSION
In sum, the Court makes the following rulings with respect to the withheld documents:
CRM Document 1: This document was properly withheld under Exemption 5 because it
constitutes attorney work product.
CRM Document 2: This document was properly withheld under Exemption 5 because it
constitutes attorney work product.
CRM Document 3: This document was not in controversy.
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CRM Document 4: This document was not in controversy.
CRM Document 5: This document was properly withheld under Exemption 5 because it
constitutes attorney work product. Defendant’s assertions of Exemptions 6 and 7(C) also
were not challenged and therefore were conceded by plaintiff.
CRM Document 6: This document was properly withheld under Exemption 5 because it
constitutes attorney work product. Defendant’s assertions of Exemptions 6 and 7(C) also
were not challenged and therefore were conceded by plaintiff.
CRM Document 7: This document was properly withheld under Exemption 5 because it
constitutes attorney work product. This document was also properly withheld under
Exemption 7(E) because it was compiled for law enforcement purposes and disclosure
would pose a risk of circumvention of the law.
CRM Document 8: This document was properly withheld under Exemption 5 because it
constitutes attorney work product. Defendant’s assertions of Exemptions 6 and 7(C) also
were not challenged and therefore were conceded by plaintiff.
CRM Document 9: This document was properly withheld under Exemption 5 because it
constitutes attorney work product. Defendant’s assertions of Exemptions 6 and 7(C) also
were not challenged and therefore were conceded by plaintiff.
CRM Document 10: This document was properly withheld under Exemption 5, because
it constitutes attorney work product, and Exemption 7(E) because it was compiled for law
enforcement purposes and disclosure would carry a risk of circumvention of the law.
Defendant’s assertions of Exemptions 6 and 7(C) also were not challenged and therefore
were conceded by plaintiff.
CRM Document 11: This document was properly withheld under Exemption 5 because it
is protected by the deliberative process privilege.
CRM Document 12: This document was properly withheld under Exemption 5 because it
is protected by the deliberative process privilege. Defendant’s assertions of Exemptions
6 and 7(C) also were not challenged and were therefore conceded by plaintiff.
CRM Document 13: This document was properly withheld under Exemption 5 because it
is protected by the deliberative process privilege.
CRM Document 14: This document was properly withheld under Exemption 5 because it
constitutes attorney work product. Defendant’s assertions of Exemptions 6 and 7(C) also
were not challenged and therefore were conceded by plaintiff.
EOUSA Document 1: This document was released in full to plaintiff and was therefore
not in controversy.
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EOUSA Document 2: This document was not in controversy.
EOUSA Document 3: This document was properly withheld under Exemption 5 because
it constitutes attorney work product. Defendant’s assertion of Exemption 3 also was not
challenged and therefore was conceded by plaintiff.
EOUSA Document 4: This document was properly withheld under Exemption 5 because
it constitutes attorney work product. Defendant’s assertion of Exemption 7(C) also was
not challenged and therefore was conceded by plaintiff.
For all of the reasons set forth above, the Court will grant defendant’s motion for
summary judgment [Dkt. # 15] and deny plaintiff’s cross-motion for summary judgment
[Dkt. # 17]. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: July 31, 2012
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