The American Civil Liberties Union of North California et al v. Federal Bureau of Investigation

Filing 152

ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge Richard Seeborg on 11/17/15. (cl, COURT STAFF) (Filed on 11/17/2015)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 THE AMERICAN CIVIL LIBERTIES UNION OF NORTH CALIFORNIA, et al., Plaintiffs, United States District Court Northern District of California 11 12 13 14 Case No. 10-cv-03759-RS ORDER REGARDING CROSSMOTIONS FOR SUMMARY JUDGMENT v. FEDERAL BUREAU OF INVESTIGATION, Defendant. 15 16 I. INTRODUCTION 17 Plaintiffs the American Civil Liberties Union of Northern California, the Asian Law 18 Caucus, and the San Francisco Bay Guardian filed this action, averring that the Federal Bureau of 19 Investigations has improperly withheld or redacted documents in violation of the Freedom of 20 Information Act, 5 U.S.C. § 552 (2012). In 2010, the Plaintiffs filed two FOIA requests, seeking 21 documents relating to the FBI’s alleged surveillance activities of Muslim and other ethnic and 22 racial groups in Northern California. The FBI has produced responsive documents and an index 23 describing the documents withheld or redacted and explaining why the documents are not subject 24 to disclosure. 25 Having failed to demonstrate that 5 U.S.C. § 522(b)(7)—Exemption 7—justifies 26 withholding and redaction of the documents that Plaintiffs seek, the FBI now asserts that it has 27 properly withheld and redacted documents pursuant to 5 U.S.C. § 522(b)(5) (Exemption 5). That 28 exemption shields from disclosure documents and information covered by the attorney-client and 2 deliberative-process privileges. Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 979 (9th Cir. 3 2009) (internal quotation marks omitted) (deliberative-process privilege); see also NLRB v. Sears, 4 Roebuck & Co., 421 U.S. 132, 154 (1975) (attorney-client privilege). Plaintiffs contest the 5 applicability of Exemption 5 to three categories of documents: Human Source Advisory Notices, 6 Frequently Asked Questions for Threat Assessments, and Draft Training FAQs. At issue now is 7 (1) whether attorney-client privilege relieves the FBI of its obligation to produce the Human 8 Source Advisory Notices; (2) whether attorney-client privilege applies to the entirety of the FAQs 9 for Threat Assessments, or whether portions can be redacted; and (3) whether the deliberative- 10 process privilege exempts from production the draft training FAQs. After the hearing, the FBI 11 United States District Court Northern District of California 1 submitted the Human Source Advisory Notices for in camera review. In general, the Human Source Advisory Notices do not contain communications protected 12 13 by attorney-client privilege with one exception. One email dated November 26, 2003,1 contains 14 detailed communications about an ongoing investigation, rather than generalized policy 15 statements. Accordingly, Exception 5 exempts from disclosure the redacted portion of that email. 16 The FBI’s evidence is insufficiently specific to determine that attorney-client privilege applies to 17 the withheld or redacted information, and therefore the FBI has not established that the FAQs are 18 exempt from disclosure. Because the FBI has conceded that the draft training FAQs were not 19 predecisional and has not demonstrated that disclosure of the document would discourage frank 20 deliberation, the FBI may not use the deliberative-process privilege to withhold the draft training 21 FAQs. II. 22 BACKGROUND Upon hearing reports that the FBI had been surveilling certain ethnic and religious 23 24 communities in Northern California, Plaintiffs became concerned that the FBI’s practices were 25 impacting the civil liberties of those groups’ members. In order to assess the impact of the FBI’s 26 surveillance practices on the civil liberties of the targeted groups, Plaintiffs filed two FOIA 27 28 1 The document is Bates-stamped “MC-1396.” 2 1 requests with the FBI. The first request sought records pertaining to the FBI’s policies and 2 practices as to the use of informants; assessment practices; legal justifications for the 3 investigations and assessments; training materials regarding Islam, Muslim culture, and Muslim, 4 Arab, South Asian, and Middle Eastern communities; use of race, religion, ethnicity, language, or 5 national origin for law-enforcement purposes; the FBI Citizenship Academy; the FBI Junior Agent 6 Program; and domain management. Plaintiffs also requested records concerning the FBI’s 7 investigation of mosques, Islamic centers, Muslim community centers, mosque members, Muslim 8 leaders, and imams; and the targets and outcomes of law-enforcement activity in Northern 9 California in comparison with the rest of the country. 10 Later, Plaintiffs filed a second FOIA request, seeking records pertaining to the FBI’s United States District Court Northern District of California 11 attempts to map racial and ethnic demographics, behaviors, and lifestyle characteristics. Included 12 among the FBI’s policies and procedures that Plaintiffs sought were those regarding the type of 13 racial and ethnic information the FBI can collect; the collection of information and mapping of 14 ethnic businesses or facilities; the behavioral characteristics that the Domestic Investigations and 15 Operations Guide (“DIOG”) classifies as “associated with a particular criminal or terrorist element 16 of an ethnic community”; and how the FBI used the collected racial and ethnic data. Plaintiffs 17 also demanded information about the data that the FBI collected and the maps that the FBI 18 created; the number of communities in Northern California that the FBI targeted; and descriptions 19 of the maps of Northern-Californian racial and ethnic communities. 20 The FBI did not produce the documents requested initially within the time period 21 prescribed by statute, and so Plaintiffs commenced this action. When the FBI did not disclose the 22 documents sought in Plaintiffs’ second FOIA request, Plaintiffs amended their complaint to 23 incorporate a second FOIA claim. The parties mediated with the assistance of a magistrate judge 24 and agreed on a production schedule for the release of the remaining responsive documents. Since 25 that time, the FBI has released over 50,000 full or redacted pages of responsive records and 26 withheld approximately 47,794 records on the ground that those records are exempt from FOIA’s 27 production requirements. To facilitate litigation about the applicability of the FOIA exemptions, 28 the parties agreed to provide Plaintiffs with descriptions of the withheld responsive documents and 3 1 detailed justifications for the application of the exemption. See Vaughn v. Rosen, 484 F.2d 820, 2 826-28 (D.C. Cir. 1973). 3 After Plaintiffs reviewed the FBI’s Vaughn indexes, they agreed not to challenge the FBI’s 4 application of Exemptions 1, 3, 4, 6, 8, and 9, but reserved the right to challenge other exemptions 5 and the adequacy of the FBI’s Vaughn write-ups. The parties filed cross motions for summary 6 judgment regarding the propriety of the FBI’s decision to withhold certain documents; the 7 sufficiency of the FBI’s descriptions of the withheld and redacted materials; and the adequacy of 8 the FBI’s explanations for withholding and redacting certain materials under 5 U.S.C. § 552(b)(7) 9 (“Exemption 7”). In March 2015, this Court agreed with Plaintiffs: the FBI may no longer employ Exemption 7 to withhold documents because the FBI has not demonstrated that there is a 11 United States District Court Northern District of California 10 “rational nexus” between the particular documents withheld and the FBI’s law-enforcement 12 activities. 13 Following the order regarding Exemption 7, the FBI filed a supplemental brief in support 14 of summary judgment, asserting that Exemptions 2 and 5 apply to certain information and 15 documents. 5 U.S.C. § 522(b)(2) (“Exemption 2), exempts from disclosure “matters that are . . . 16 related solely to the internal personnel rules and practices of an agency,” and therefore permits the 17 withholding of the minimum passing test scores required in order for FBI employees to pass two 18 internal web-based tests. Plaintiffs do not contest the applicability of Exemption 2 to these 19 materials. Further, at this juncture, Plaintiffs do not challenge the FBI’s redaction of portions of 20 the Electronic Communication on Intelligence Oversight Board Matters, but reserves the right to 21 challenge the redactions to this document after the FBI produces it. Pls.’ Resp. to FBI’s Suppl. Br. 22 at 9. The sole issue presently pending therefore is whether Exemption 5 applies to three categories 23 of documents and redactions: Human Source Advisory Notices; Frequently Asked Questions for 24 Threat Assessments, and Draft Training FAQs. Both parties move for summary judgment on that 25 question. 26 27 28 III. LEGAL STANDARD Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 4 1 The parties do not claim that there is a dispute of material fact, as is often true in FOIA cases. See 2 Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996). To determine which party 3 is entitled to summary judgment, the first step is to determine whether the FBI has met its burden 4 of showing that it has discharged fully its FOIA obligations. Shannan v. I.R.S., 637 F. Supp. 2d 5 902, 912 (W.D. Wash. 2009). Next, the FBI has the burden of demonstrating that the undisclosed 6 information falls within one of the nine FOIA exemptions. Id. The final step is to determine 7 whether the FBI has satisfied its burden of establishing that “all reasonable segregable portions of 8 the document[s] have been segregated and disclosed.” Pac. Fisheries, Inc. v. United States, 539 9 F.3d 1143, 1148 (9th Cir. 2008); 5 U.S.C. § 522(a)(4)(B), (b). At this juncture, Plaintiffs do not dispute that the FBI has discharged adequately its FOIA obligations, nor do the parties address the 11 United States District Court Northern District of California 10 segregability questions. Their dispute is therefore limited to whether the FBI’s invocation of 12 Exemption 5 is proper. 13 “FOIA ‘was enacted to facilitate public access to Government documents.’” Lahr, 569 14 F.3d at 973 (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)). Congress designed 15 FOIA “to pierce the veil of administrative secrecy and open agency action to the light of public 16 scrutiny.” Ray, 502 U.S. at 173 (internal quotation marks omitted). Consequently, there is a 17 “strong presumption in favor of disclosure,” id., and “exemptions should be interpreted narrowly,” 18 Lahr, 569 F.3d at 973 (internal quotation marks omitted). IV. 19 20 DISCUSSION FOIA does not require that the FBI disclose “inter-agency or intra-agency memorandums 21 or letters which would not be available by law to a party other than an agency in litigation with the 22 agency.” 5 U.S.C. § 522(b)(5). “Exemption 5 shields those documents, and only those 23 documents, normally privileged in the civil discovery context,” including documents covered by 24 attorney-client and deliberative-process privileges. Lahr, 569 F.3d at 979 (internal quotation 25 marks omitted) (deliberative-process privilege); see also Sears, 421 U.S. at 154 (attorney-client 26 privilege). 27 28 A. Attorney-Client Privilege “The attorney-client privilege protects confidential communications from clients to their 5 1 attorneys made for the purpose of securing legal advice or services” and “communications from 2 attorneys to their clients” to the extent that “the communications rest on confidential information 3 obtained from the client.” Tax Analysts v. Internal Revenue Servs., 117 F.3d 607, 618 (D.C. Cir. 4 1997) (internal citation and quotation marks omitted). Thus, between FBI officials and the 5 Bureau’s lawyers communications are privileged if they contain information communicated by the 6 attorney in confidence for the purpose of obtaining legal advice, the attorney was acting in her 7 capacity as a lawyer, the communications were related to the purpose of obtaining legal advice, 8 and the FBI did not waive attorney-client protection. See United States v. Ruehle, 583 F.3d 600, 9 607 (9th Cir. 2009). “The privilege does not exempt a document from disclosure simply because the communication involves the government’s counsel.” Elec. Privacy Info. Ctr. v. Dep’t of 11 United States District Court Northern District of California 10 Justice, 584 F. Supp. 2d 65, 79 (D.D.C. 2008) (internal quotation marks omitted). “The privilege 12 protects only those disclosures necessary to obtain informed legal advice which might not have 13 been made absent the privilege” and “confidential information that involves or is about that 14 client.” Id. at 79. 15 16 1. Human Source Advisory Notices The FBI has produced Human Source Advisory Notices with significant redactions that 17 render the documents unreadable. See R. 141-1, Kleine Decl. Ex. A. According to these 18 documents, the FBI distributes these advisory notices to numerous FBI listservs and “investigative 19 and administrative personnel.” Id. at 5. There are two parts to each advisory notice: a notice 20 section and a policy section. See, e.g., id. at 18. For the most part, the substance of both of these 21 sections is redacted. In the Vaughn index, the FBI explains that the redacted portions “contain[] 22 specific legal and procedural advice, including approval levels and requirements, interpretation of 23 law, source coordination and liaison with other agencies, and information on specific operational 24 techniques for operating sources—which are currently used in cases today.” R. 139-1 at 5, 2d 25 Suppl. Hardy Decl. Ex. II. The FBI contends that the advisory notices include “scenarios” that 26 “stem[] from questions raised to FBI Counsel on actual cases as to when particular investigative 27 techniques should be utilized.” Id. After the hearing on this matter, the FBI submitted unredacted 28 copies of the Human Advisory Notices for in camera review. 6 The bulk of the redacted portions of the Human Advisory Notices do not include 1 2 communications to the FBI’s attorneys “for the purpose of securing primarily either (i) an opinion 3 on law or (ii) legal services or (iii) assistance in some legal proceeding.” In re Grand Jury, 475 4 F.3d 1299, 1304 (D.C.Cir.2007) (internal quotation marks omitted). The notice section of the 5 Advisory Notices contains a short description of a situation agents may encounter in the field. The 6 descriptions are general and lack any specific information. The policy section provides a citation 7 to an FBI policy and brief analysis applying the language of the policy to the situation described in 8 the notice section. While the FBI attests that the substance of the Advisory Notices “stem[] from 9 questions raised to FBI Counsel,” the Advisory Notices “are more akin to a ‘resource’ opinion about the applicability of existing policy to a certain state of facts, like examples in a manual, to be 11 United States District Court Northern District of California 10 contrasted to a factual or strategic advice giving opinion.” Coastal States Gas Corp. v. Dep’t of 12 Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). Only page MC-1396 of the submitted materials falls into the category of attorney-client 13 14 privileged communications. Unlike the generic descriptions in the Human Advisory Notices, this 15 email contains details about an asset, the assets location, and the reason for the communication. 16 This email is less like a resource opinion and contains fact-specific advice and communications, 17 and therefore Exemption 5 excludes from disclosure the redacted portions of the email. Second, with the exception of page MC-1396, the FBI has not submitted evidence that 18 19 substantiates its claim that the communications were confidential in fact. Indeed, the wide 20 distribution of the Advisory Notices to all administrative and investigative personnel implies the 21 contrary. See Nat’l Sec. Counselors, 960 F. Supp. 2d at 194. Moreover, “[w]here a client is an 22 organization, including a government organization, the privilege extends ‘no further than among 23 those members of the organization who are authorized to speak or act for the organization in 24 relation to the subject matter of the communication.’” Shurtleff v. United States Envtl. Prot. 25 Agency, 991 F. Supp. 2d 1, 16 (D.D.C. 2013) (quoting Coastal States Gas Corp. v. Dep’t of 26 Energy, 617 F.2d 854, 863 (D.C. Cir. 1980)). The FBI has not submitted evidence to establish 27 that the people who received the Advisory Notices were authorized to speak or act on behalf of the 28 FBI. 7 1 The FBI has failed to establish, with the exception cited above, that the redacted portions 2 of the Advisory Notices include attorney-client-privileged information. Accordingly, the FBI’s 3 motion for summary judgment is denied. The FBI shall produce unredacted copies of the Human 4 Advisory Notices except document MC-1396. 5 2. FAQ for Threat Assessments 6 The FBI has withheld entirely the FAQs for Threat Assessments. According to the FBI, 7 the FAQs advise FBI personnel about how to apply FBI policy to threat assessments. To justify 8 withholding the FAQs, the FBI states that these FAQs “encompass opinions given by” and 9 “consist[] of specific policy and procedural applications, advice, and guidance vetted through and/or from” the FBI attorneys to FBI employees. R. 139-1 at 19, 2d Suppl. Hardy Decl. Ex. II. 11 United States District Court Northern District of California 10 The remainder of the entry in the Vaughn index concerning the FAQs merely defines attorney- 12 client privilege and asserts without more that it applies to this information without citing specific 13 facts. See id. at 19-20. 14 The FBI has failed to establish that attorney-client privilege shields the entirety of the 15 FAQs from disclosure for many of the same reasons the FBI failed to carry its burden with respect 16 to the redacted portions of the Advisory Notices. First, the FBI’s evidence does not substantiate 17 the need to withhold the FAQs in their entirety because some portions of the document do not 18 appear to contain legal advice or confidential communications. Second, the FBI has not provided 19 sufficient information to determine whether the FAQs consist of advice about specific legal 20 questions and situations, or whether they clarify broadly applicable FBI policies. Finally, the FBI 21 has not provided information about who receives the FAQs and whether the recipients are 22 authorized to speak and act on behalf of the FBI. Thus, the FBI must produce the segregable 23 portions of the FAQs or provide more information about which portions contain attorney-client- 24 privileged information. 25 26 B. Deliberative-Process Privilege The final document at issue is the FBI’s draft training FAQs, which the FBI asserts is 27 shielded from disclosure by the deliberative-process privilege. That privilege shields from 28 disclosure “documents reflecting advisory opinions, recommendations and deliberations 8 comprising part of a process by which governmental decisions and policies are formulated.” 2 Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (internal 3 quotation marks omitted). To fall within the ambit of the deliberative-process privilege, the FBI 4 must demonstrate that the document is both “predecisional” and “deliberative.” Lahr, 569 F.3d at 5 979. “A document is predecisional if it was prepared in order to assist an agency decisionmaker in 6 arriving at his decision, rather than to support a decision already made.” Petroleum Info. Corp. v. 7 U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (internal quotation marks omitted). 8 Documents that “reflect[] the give-and-take of the consultative process” are deliberative. Id. 9 (internal quotation marks omitted). Because the purpose of the privilege is to “protect[] open and 10 frank discussion among” employees of an agency who make decisions, Klamath Water, 532 U.S. 11 United States District Court Northern District of California 1 at 9, “the key question in Exemption 5 cases is whether the disclosure of materials would expose 12 an agency’s decision-making process in such a way as to discourage candid discussion within the 13 agency and thereby undermine the agency’s ability to perform its functions,” Carter v. U.S. Dep’t 14 of Commerce, 307 F.3d 1084, 1090 (9th Cir. 2002) (internal quotation marks and alteration 15 omitted). According to the FBI, the draft FAQ exists in electronic form and consists of redline 16 17 comments concerning the substance and format of the document. R. 139 at 6, 2d Suppl. Hardy 18 Decl. ¶ 11. David Hardy, the FBI’s Record/Information Dissemination Section Chief, attests that 19 the FBI could not locate a “final” version of the document. Id. Hardy asserts in conclusory 20 fashion that the document “reflects the give-and-take process” and would chill future drafters of 21 similar documents from offering comments about the substance and format of the document. See 22 id. The FBI has not, however, offered specific, non-conclusory information about how the 23 drafters’ comments contributed or informed the decisionmaking process. More importantly, the 24 FBI concedes that the redline comments do not reflect debate about which policies apply or should 25 be adopted. FBI Reply Br. at 3. Instead, the FBI contends that the document is deliberative 26 because the redline comments reflect debate about “how to instruct or convey” the policies to FBI 27 special agents. Id. In other words, the FBI asserts that it has decided what to say, just not how to 28 say it. 9 1 The deliberative-process privilege does apply, however, to documents that “explain[] . . . a 2 decision already reached or a policy already adopted.” Sears, 421 U.S. at 153 n.19. The FBI has 3 not contended that the draft FAQs include such quintessentially deliberative content as advice 4 about whether to adopt or reject a policy. Nothing in the FBI’s evidence suggests that advice 5 about whether a comma should be inserted, word choice, or phrasing would discourage members 6 of the Bureau from providing candid advice about the pros and cons of adopting a policy or 7 practice. Thus, the FBI has all but admitted that the document reflects a policy it has adopted, and 8 therefore constitutes the FBI’s “working law.” See id. at 152-53. “Working law” is not exempt 9 from disclosure. Id. The FBI must therefore produce the draft FAQs. V. 10 United States District Court Northern District of California 11 CONCLUSION The FBI has not carried its burden to demonstrate that Exemption 5 justifies redactions of 12 the Human Source Advisory Notices, or the complete withholding of the FAQs for Threat 13 Assessments and the draft training FAQs. Accordingly, the FBI has thirty (30) days from the date 14 of this order to produce unredacted copies of the Human Advisory Notices, the FAQs for Threat 15 Assessments and draft training FAQs. The redacted portions of page MC-1396 are exempt from 16 disclosure. 17 18 IT IS SO ORDERED. Dated: November 17, 2015 19 ________________________ RICHARD SEEBORG United States District Judge 20 21 22 23 24 25 26 27 28 10

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