Am. Civil Liberties Union & Am. Civil Liberties Union Found. v. U.S. Dep't of Justice

• Decision Date: 05 August 2014
• Docket Number: No. 13–5064.,13–5064.
• Parties: AMERICAN CIVIL LIBERTIES UNION and American Civil Liberties Union Foundation, Appellants v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

750 F.3d 927

AMERICAN CIVIL LIBERTIES UNION and American Civil Liberties Union Foundation, Appellants

v.UNITED STATES DEPARTMENT OF JUSTICE, Appellee.

No. 13–5064.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 20, 2014.

Decided May 9, 2014.

Rehearing En Banc Denied Aug. 5, 2014.

Appeal from the United States District Court for the District of Columbia, (No. 1:08–cv–01157).

Arthur B. Spitzer argued the cause for appellants. With him on the briefs were Catherine Crump and David L. Sobel.

John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Leonard Schaitman, Attorney.

Before: TATEL, BROWN, and KAVANAUGH, Circuit Judges.

Concurring opinion filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge BROWN.

TATEL, Circuit Judge:

Three years ago, in American Civil Liberties Union v. U.S. Department of Justice, 655 F.3d 1 (D.C.Cir.2011)(ACLU I), this court held that the Freedom of Information Act required the Justice Department to disclose case names and docket numbers for prosecutions in which the government had obtained cellular phone tracking data without a warrant and the defendant had ultimately been convicted. The court left open the question whether the Department would also have to disclose docket information for similar prosecutions in which the defendant had been acquitted or had the charges dismissed. Now squarely facing just that question, we conclude that given the substantial privacy interest individuals have in controlling information concerning criminal charges for which they were not convicted, the Department has properly withheld this information.

I.

In order to “open agency action to the light of public scrutiny,” Department 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), FOIA requires federal agencies, “upon request, to make ‘promptly available to any person’ any ‘records' so long as the request ‘reasonably describes such records,’ ” Assassination Archives & Research Center v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003) (quoting 5 U.S.C. § 552(a)(3)). This broad statutory mandate is subject to certain enumerated exemptions. See5 U.S.C. § 552(b)(1)-(9). At issue here is FOIA Exemption 7(C), which provides that an agency may withhold “records or information compiled for law enforcement purposes” if disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7). Determining whether an invasion of privacy is “unwarranted” within the meaning of Exemption 7(C) requires, as the Supreme Court held in U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 776, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989), “balanc[ing] the public interest in disclosure against the interest [in privacy] Congress intended the Exemption to protect.”

In Reporters Committee, the Supreme Court considered the applicability of Exemption 7(C) to a request for an alleged mob figure's “rap sheet”—a document compiled by the FBI that “contain[ed] certain descriptive information, such as date of birth and physical characteristics, as well as a history of arrests, charges, convictions, and incarcerations.” Id. at 752, 109 S.Ct. 1468. Holding that the disclosure of such rap sheets implicates a substantial privacy interest, id. at 771, 109 S.Ct. 1468, the Court rejected the contention that any interest in avoiding disclosure “approaches zero” simply because “events summarized in a rap sheet have been previously disclosed to the public,” id. at 762–63, 109 S.Ct. 1468. The Court explained that an individual's interest in privacy “encompass[es] the individual's control of information concerning his or her person,” id. at 763, 109 S.Ct. 1468, even though “the information may have been at one time public,” id. at 767, 109 S.Ct. 1468. Disclosure of a rap sheet, the Court found, was particularly troubling because it would in one fell swoop bring to light many facts about a person that might otherwise be subject to little public scrutiny. See id. at 769–71, 109 S.Ct. 1468;see also id. at 764, 109 S.Ct. 1468 (emphasizing the “distinction, in terms of personal privacy, between scattered disclosure of the bits of information contained in a rap sheet and revelation of the rap sheet as a whole”). On the other side of the balance, the Court found the public interest in disclosure to be fairly limited because a rap sheet would reveal little about “the Government's activities.” Id. at 754, 109 S.Ct. 1468. Thus, the Court held “as a categorical matter” that granting a “third party's request for law enforcement records or information about a private citizen” that “seeks no ‘official information’ about a Government agency” would constitute an “ ‘unwarranted’ ” invasion of privacy. Id. at 780, 109 S.Ct. 1468.

The case now before us arose after the American Civil Liberties Union learned that federal law enforcement agencies were, without first securing a warrant, obtaining data from cellular phone companies that could be used to track phone users' whereabouts. The ACLU filed FOIA requests with the Drug Enforcement Administration and the Executive Office for United States Attorneys, seeking, among other things, records related to: “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.” To compel production of these records, the ACLU then sued the Department of Justice.

In response, the Department identified a large number of prosecutions—the total count is currently 229—in which a judge had, since September 2001, granted the government's application to obtain cell phone location data without making a probable cause determination. The Department refused to turn this list of cases over to the ACLU, claiming that the information fell within FOIA Exemption 7(C).

The parties each moved for summary judgment. The district court, then Judge Robertson, concluded that each of the individuals who had been prosecuted in these cases had a privacy interest in preventing disclosure of the requested information. The court went on to draw a distinction that neither party had directly advanced, according “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.” American Civil Liberties Union v. U.S. Department of Justice, 698 F.Supp.2d 163, 166 (D.D.C.2010). Determining that “the public has a substantial interest in the subject of cell phone tracking” that would be advanced by the requested disclosure, the court held 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 ... 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.” Id. The district court therefore directed the Department to disclose the requested information regarding prosecutions in which the government had secured a conviction but permitted it to withhold the information regarding the remaining cases.

Both sides appealed, and this court affirmed in part. We began our analysis by noting that, although the ACLU sought only the case name, court, and docket number of these prosecutions, courts “evaluating the privacy impact of the release of information ... have taken into consideration potential derivative uses of that information.” ACLU I, 655 F.3d at 7. The derivative uses to be made with the requested docket information were fairly substantial: with “little work,” someone could “look up the underlying case files in the public records of the courts,” id., and could even attempt to contact the defendants, or their attorneys, directly, id. at 11–12. Nevertheless, we concluded that, with respect to those defendants who had ultimately been convicted, disclosure “would compromise more than a de minimis privacy interest, [but] it would not compromise much more.” Id. at 12. We emphasized that, unlike in Reporters Committee, the requested information pertained only to a single, relatively recent prosecution, the details of which were already “readily available to the public” and not at all “ ‘practical[ly] obscure[ ].’ ” Id. at 9 (quoting Reporters Committee, 489 U.S. at 762, 109 S.Ct. 1468) (alteration in original). As for the public interest, we determined that disclosure would have the significant benefit of “shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool,” helping to “inform [the] ongoing public policy discussion” regarding the propriety of warrantless cell phone tracking. Id. at 13. “[I]n light of the strength of [this] public interest ... and the relative weakness of the privacy interests at stake,” we held that the district court had correctly rejected the Department's contention that production of this docket information would represent an “ ‘unwarranted’ invasion of privacy under Exemption 7(C).” Id. at 16.

Significantly, however, we did not affirm the district court's holding that information regarding acquittals, dismissals, or sealed cases could be withheld. We did observe that the distinction the district court had drawn “makes some intuitive sense, as both parties agree that the disclosure of information regarding [such cases] raises greater privacy concerns than the disclosure of information regarding public convictions or public pleas.” Id. at 17. But, we continued, “whether...