655 F.3d 1 (D.C. Cir. 2011), 10-5159, American Civil Liberties Union v. United States Dept. of Justice

Docket Nº:10-5159, 10-5167.
Citation:655 F.3d 1
Opinion Judge:GARLAND, Circuit Judge:
Party Name:AMERICAN CIVIL LIBERTIES UNION and American Civil Liberties Union Foundation, Appellants/Cross-Appellee v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee/Cross-Appellants.
Attorney:Catherine Crump argued the cause for appellants/cross-appellee. With her on the briefs were Arthur B. Spitzer and David L. Sobel. John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for appellee/cross-appellants. With him on the briefs were Ronald C. Machen Jr., U.S. Attorney, ...
Judge Panel:Before: GINSBURG and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Case Date:September 06, 2011
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 1

655 F.3d 1 (D.C. Cir. 2011)

AMERICAN CIVIL LIBERTIES UNION and American Civil Liberties Union Foundation, Appellants/Cross-Appellee

v.

UNITED STATES DEPARTMENT OF JUSTICE, Appellee/Cross-Appellants.

Nos. 10-5159, 10-5167.

United States Court of Appeals, District of Columbia Circuit

September 6, 2011

         Argued Feb. 8, 2011.

Page 2

[Copyrighted Material Omitted]

Page 3

         Appeals from the United States District Court for the District of Columbia (No. 1:08-cv-01157).

          Catherine Crump argued the cause for appellants/cross-appellee. With her on the briefs were Arthur B. Spitzer and David L. Sobel.

          John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for appellee/cross-appellants. With him on the briefs were Ronald C. Machen Jr., U.S. Attorney, and Leonard Schaitman, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

          Before: GINSBURG and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

         OPINION

          GARLAND, Circuit Judge:

         The plaintiffs brought this action against the Department of Justice under the Freedom of Information Act, seeking to obtain documents relating to the government's use of cell phone location data in criminal prosecutions. The district court directed the release of certain specified documents and upheld the Department's decision to withhold others. We affirm the court's order requiring the release of the specified documents. Because there are too many factual uncertainties regarding the remaining documents, we vacate the balance of the court's decision and remand the case for further development of the record.

         I

         Cell phones generate several types of data that can be used to track their users' past or present locations with various degrees of precision.1 Concerned by reports that federal law enforcement agencies were obtaining these data from telecommunications companies without a judicial determination of probable cause,2 the American Civil Liberties Union and the American Civil Liberties Union Foundation (ACLU) filed Freedom of Information Act (FOIA) requests with the Drug Enforcement Administration and the Executive Office for United States Attorneys, seeking information relating to the use of warrantless cell phone tracking by certain U.S. Attorneys' Offices. As is relevant to this appeal, the plaintiffs requested records relating to:

Page 4

The case name, docket number, and court of all criminal prosecutions, current or past, of individuals who were tracked using mobile location data, where the government did not first secure a warrant based on probable cause for such data, [and]

Policies, procedures, and practices followed to obtain mobile phone location information for law enforcement purposes.

App. 20, 28.         On July 1, 2008, the plaintiffs brought suit against the Department of Justice (DOJ) to compel production of the requested records. See FOIA, 5 U.S.C. § 552(a)(4)(B). Thereafter, the Department agreed to conduct a search for the requested case names, docket numbers, and courts (" docket information" ). It did this by first asking the relevant U.S. Attorneys' Offices to identify applications granted by judges (or magistrate judges), on or after September 12, 2001, to permit the government to obtain cell phone location data from telecommunications companies, where the judge did not make a determination of probable cause. It then asked those offices to provide the docket information for any case in which an individual was prosecuted after such an application was granted. This inquiry generated a list of docket information for 255 criminal prosecutions. Def.'s Statement of Material Facts Not in Dispute at 3-4 (App.37-38). The Department then withheld the list from disclosure, asserting that it fell within FOIA Exemptions 6 and 7(C). See 5 U.S.C. § 552(b)(6), (7)(C).3

         The Justice Department also produced a Vaughn index describing documents responsive to the plaintiffs' request for " policies, procedures, and practices," and invoking various FOIA exemptions to justify the redaction or withholding of some of those documents. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973). Among the documents listed in the Vaughn index was a " Draft Application" to engage in cell phone tracking (Document 22), which the Department withheld in full, and a " Template Application" (Document 29), which the Department produced after redacting the docket number. App. 52, 54. The plaintiffs objected to the withholding of the case name in Document 22, and of the docket numbers in both Documents 22 and 29.4

          The parties filed cross motions for summary judgment. In assessing the Justice Department's invocation of Exemptions 6 and 7(C), the district court began by " allocat[ing] a greater privacy interest to persons who were acquitted, or whose cases were dismissed or sealed (and remain under seal), and a considerably lesser privacy interest to persons who were convicted, or who entered public guilty pleas." ACLU v. Dep't of Justice, 698 F.Supp.2d 163, 166 (D.D.C.2010). The court held that the public interest in disclosure outweighed the privacy interest in the second category but not in the first. Accordingly, the court ordered the Department to release the requested docket information only in cases

Page 5

that ended in convictions or public guilty pleas. Id.

         With respect to the two government applications for cell phone data, the court concluded that the Department had properly withheld the case name and docket numbers under Exemption 7(C). In light of the plaintiffs' concession that any personally identifiable information about surveillance targets who had not yet been prosecuted could be redacted from the case name, the court refused to order the " meaningless production" of a case name in which " nothing would be left but variants of the phrase ‘ In re: Application for Cell Site Authority.’ " Id. at 166-67. The court also rejected the plaintiffs' argument that, because such applications are invariably filed under seal, disclosure of the applications' docket numbers would not reveal any personally identifying information. The court found that disclosure " could reveal surveillance targets yet to be prosecuted, ... either because the cases are not actually sealed, or because the plaintiffs' promised motion to unseal could be successful." Id. at 167.

         Both parties appeal. The Justice Department challenges the portion of the district court's decision directing it to release docket information in prosecutions of persons who were convicted or entered public guilty pleas. The plaintiffs challenge the portion of the decision denying their request to require the production of docket information in prosecutions of persons who were acquitted, or whose cases were dismissed or sealed (and remain under seal). The plaintiffs also challenge the court's denial of their request to require disclosure of the case name in the " Draft Application" (Document 22), and the docket numbers in both that document and the " Template Application" (Document 29).

         II

         We review the district court's disposition on summary judgment de novo. See Students Against Genocide v. Dep't of State, 257 F.3d 828, 833-34 (D.C.Cir.2001). " In the FOIA context this requires that we ascertain whether the agency has sustained its burden of demonstrating that the documents requested are ... exempt from disclosure under the FOIA." Gallant v. NLRB, 26 F.3d 168, 171 (D.C.Cir.1994); see 5 U.S.C. § 552(a)(4)(B) (stating that " the burden is on the agency to sustain its action" ).

          FOIA was intended " to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (internal quotation marks omitted). " Although Congress enumerated nine exemptions from the disclosure requirement, ‘ these limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.’ " Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C.Cir.2002) (quoting Rose, 425 U.S. at 361, 96 S.Ct. 1592). " At all times[,] courts must bear in mind that FOIA mandates a ‘ strong presumption in favor of disclosure,’ " id. (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)), " and that the statutory exemptions, which are exclusive, are to be ‘ narrowly construed,’ " id. (quoting Rose, 425 U.S. at 361, 96 S.Ct. 1592). As the Supreme Court reminded appellate courts just this year, it has " often noted the Act's goal of broad disclosure and insisted that the exemptions be given a narrow compass." Milner v. Dep't of the Navy, __ U.S. __, 131 S.Ct. 1259, 1265, 179 L.Ed.2d 268 (2011) (internal quotation marks omitted).

Page 6

          FOIA Exemptions 6 and 7(C) seek to protect the privacy of individuals identified in certain agency records. Under Exemption 6, " personnel and medical files and similar files" may be withheld if disclosure " would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Under Exemption 7(C), " records or information compiled for law enforcement purposes" may be withheld " to the extent that" disclosure " could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Although the Justice Department relied on both exemptions in the district court, we need only consider whether it properly invoked Exemption 7(C). The plaintiffs concede that the requested records are subject to that exemption because they are " records compiled for law enforcement purposes." See ACLU, 698 F.Supp.2d at 165 n....

To continue reading

FREE SIGN UP