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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THE AMERICAN CIVIL LIBERTIES
UNION OF NORTH CALIFORNIA, et al.,
Plaintiffs,

United States District Court
Northern District of California

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Case No. 10-cv-03759-RS
ORDER REGARDING CROSSMOTIONS FOR SUMMARY
JUDGMENT

v.
FEDERAL BUREAU OF
INVESTIGATION,
Defendant.

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I.

INTRODUCTION

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Plaintiffs the American Civil Liberties Union of Northern California, the Asian Law
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Caucus, and the San Francisco Bay Guardian filed this action, averring that the Federal Bureau of
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Investigations has improperly withheld or redacted documents in violation of the Freedom of
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Information Act, 5 U.S.C. § 552 (2012). In 2010, the Plaintiffs filed two FOIA requests, seeking
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documents relating to the FBI’s alleged surveillance activities of Muslim and other ethnic and

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racial groups in Northern California. The FBI has produced responsive documents and an index
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describing the documents withheld or redacted and explaining why the documents are not subject
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to disclosure.
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Having failed to demonstrate that 5 U.S.C. § 522(b)(7)—Exemption 7—justifies
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withholding and redaction of the documents that Plaintiffs seek, the FBI now asserts that it has
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properly withheld and redacted documents pursuant to 5 U.S.C. § 522(b)(5) (Exemption 5). That
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exemption shields from disclosure documents and information covered by the attorney-client and

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deliberative-process privileges. Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 979 (9th Cir.

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2009) (internal quotation marks omitted) (deliberative-process privilege); see also NLRB v. Sears,

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Roebuck & Co., 421 U.S. 132, 154 (1975) (attorney-client privilege). Plaintiffs contest the

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applicability of Exemption 5 to three categories of documents: Human Source Advisory Notices,

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Frequently Asked Questions for Threat Assessments, and Draft Training FAQs. At issue now is

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(1) whether attorney-client privilege relieves the FBI of its obligation to produce the Human

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Source Advisory Notices; (2) whether attorney-client privilege applies to the entirety of the FAQs

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for Threat Assessments, or whether portions can be redacted; and (3) whether the deliberative-

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process privilege exempts from production the draft training FAQs. After the hearing, the FBI

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United States District Court
Northern District of California

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submitted the Human Source Advisory Notices for in camera review.
In general, the Human Source Advisory Notices do not contain communications protected

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by attorney-client privilege with one exception. One email dated November 26, 2003,1 contains

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detailed communications about an ongoing investigation, rather than generalized policy

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statements. Accordingly, Exception 5 exempts from disclosure the redacted portion of that email.

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The FBI’s evidence is insufficiently specific to determine that attorney-client privilege applies to

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the withheld or redacted information, and therefore the FBI has not established that the FAQs are

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exempt from disclosure. Because the FBI has conceded that the draft training FAQs were not

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predecisional and has not demonstrated that disclosure of the document would discourage frank

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deliberation, the FBI may not use the deliberative-process privilege to withhold the draft training

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FAQs.
II.

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BACKGROUND

Upon hearing reports that the FBI had been surveilling certain ethnic and religious

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communities in Northern California, Plaintiffs became concerned that the FBI’s practices were

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impacting the civil liberties of those groups’ members. In order to assess the impact of the FBI’s

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surveillance practices on the civil liberties of the targeted groups, Plaintiffs filed two FOIA

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The document is Bates-stamped “MC-1396.”
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requests with the FBI. The first request sought records pertaining to the FBI’s policies and

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practices as to the use of informants; assessment practices; legal justifications for the

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investigations and assessments; training materials regarding Islam, Muslim culture, and Muslim,

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Arab, South Asian, and Middle Eastern communities; use of race, religion, ethnicity, language, or

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national origin for law-enforcement purposes; the FBI Citizenship Academy; the FBI Junior Agent

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Program; and domain management. Plaintiffs also requested records concerning the FBI’s

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investigation of mosques, Islamic centers, Muslim community centers, mosque members, Muslim

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leaders, and imams; and the targets and outcomes of law-enforcement activity in Northern

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California in comparison with the rest of the country.

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Later, Plaintiffs filed a second FOIA request, seeking records pertaining to the FBI’s

United States District Court
Northern District of California

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attempts to map racial and ethnic demographics, behaviors, and lifestyle characteristics. Included

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among the FBI’s policies and procedures that Plaintiffs sought were those regarding the type of

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racial and ethnic information the FBI can collect; the collection of information and mapping of

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ethnic businesses or facilities; the behavioral characteristics that the Domestic Investigations and

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Operations Guide (“DIOG”) classifies as “associated with a particular criminal or terrorist element

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of an ethnic community”; and how the FBI used the collected racial and ethnic data. Plaintiffs

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also demanded information about the data that the FBI collected and the maps that the FBI

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created; the number of communities in Northern California that the FBI targeted; and descriptions

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of the maps of Northern-Californian racial and ethnic communities.

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The FBI did not produce the documents requested initially within the time period

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prescribed by statute, and so Plaintiffs commenced this action. When the FBI did not disclose the

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documents sought in Plaintiffs’ second FOIA request, Plaintiffs amended their complaint to

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incorporate a second FOIA claim. The parties mediated with the assistance of a magistrate judge

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and agreed on a production schedule for the release of the remaining responsive documents. Since

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that time, the FBI has released over 50,000 full or redacted pages of responsive records and

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withheld approximately 47,794 records on the ground that those records are exempt from FOIA’s

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production requirements. To facilitate litigation about the applicability of the FOIA exemptions,

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the parties agreed to provide Plaintiffs with descriptions of the withheld responsive documents and
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detailed justifications for the application of the exemption. See Vaughn v. Rosen, 484 F.2d 820,

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826-28 (D.C. Cir. 1973).

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After Plaintiffs reviewed the FBI’s Vaughn indexes, they agreed not to challenge the FBI’s

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application of Exemptions 1, 3, 4, 6, 8, and 9, but reserved the right to challenge other exemptions

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and the adequacy of the FBI’s Vaughn write-ups. The parties filed cross motions for summary

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judgment regarding the propriety of the FBI’s decision to withhold certain documents; the

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sufficiency of the FBI’s descriptions of the withheld and redacted materials; and the adequacy of

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the FBI’s explanations for withholding and redacting certain materials under 5 U.S.C. § 552(b)(7)

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(“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

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Northern District of California

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“rational nexus” between the particular documents withheld and the FBI’s law-enforcement

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activities.

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Following the order regarding Exemption 7, the FBI filed a supplemental brief in support

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of summary judgment, asserting that Exemptions 2 and 5 apply to certain information and

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documents. 5 U.S.C. § 522(b)(2) (“Exemption 2), exempts from disclosure “matters that are . . .

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related solely to the internal personnel rules and practices of an agency,” and therefore permits the

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withholding of the minimum passing test scores required in order for FBI employees to pass two

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internal web-based tests. Plaintiffs do not contest the applicability of Exemption 2 to these

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materials. Further, at this juncture, Plaintiffs do not challenge the FBI’s redaction of portions of

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the Electronic Communication on Intelligence Oversight Board Matters, but reserves the right to

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challenge the redactions to this document after the FBI produces it. Pls.’ Resp. to FBI’s Suppl. Br.

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at 9. The sole issue presently pending therefore is whether Exemption 5 applies to three categories

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of documents and redactions: Human Source Advisory Notices; Frequently Asked Questions for

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Threat Assessments, and Draft Training FAQs. Both parties move for summary judgment on that

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question.

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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).
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The parties do not claim that there is a dispute of material fact, as is often true in FOIA cases. See

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Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996). To determine which party

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is entitled to summary judgment, the first step is to determine whether the FBI has met its burden

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of showing that it has discharged fully its FOIA obligations. Shannan v. I.R.S., 637 F. Supp. 2d

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902, 912 (W.D. Wash. 2009). Next, the FBI has the burden of demonstrating that the undisclosed

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information falls within one of the nine FOIA exemptions. Id. The final step is to determine

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whether the FBI has satisfied its burden of establishing that “all reasonable segregable portions of

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the document[s] have been segregated and disclosed.” Pac. Fisheries, Inc. v. United States, 539

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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

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United States District Court
Northern District of California

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segregability questions. Their dispute is therefore limited to whether the FBI’s invocation of

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Exemption 5 is proper.

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“FOIA ‘was enacted to facilitate public access to Government documents.’” Lahr, 569

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F.3d at 973 (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)). Congress designed

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FOIA “to pierce the veil of administrative secrecy and open agency action to the light of public

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scrutiny.” Ray, 502 U.S. at 173 (internal quotation marks omitted). Consequently, there is a

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“strong presumption in favor of disclosure,” id., and “exemptions should be interpreted narrowly,”

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Lahr, 569 F.3d at 973 (internal quotation marks omitted).
IV.

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DISCUSSION

FOIA does not require that the FBI disclose “inter-agency or intra-agency memorandums

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or letters which would not be available by law to a party other than an agency in litigation with the

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agency.” 5 U.S.C. § 522(b)(5). “Exemption 5 shields those documents, and only those

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documents, normally privileged in the civil discovery context,” including documents covered by

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attorney-client and deliberative-process privileges. Lahr, 569 F.3d at 979 (internal quotation

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marks omitted) (deliberative-process privilege); see also Sears, 421 U.S. at 154 (attorney-client

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privilege).

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A. Attorney-Client Privilege
“The attorney-client privilege protects confidential communications from clients to their
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attorneys made for the purpose of securing legal advice or services” and “communications from

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attorneys to their clients” to the extent that “the communications rest on confidential information

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obtained from the client.” Tax Analysts v. Internal Revenue Servs., 117 F.3d 607, 618 (D.C. Cir.

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1997) (internal citation and quotation marks omitted). Thus, between FBI officials and the

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Bureau’s lawyers communications are privileged if they contain information communicated by the

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attorney in confidence for the purpose of obtaining legal advice, the attorney was acting in her

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capacity as a lawyer, the communications were related to the purpose of obtaining legal advice,

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and the FBI did not waive attorney-client protection. See United States v. Ruehle, 583 F.3d 600,

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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

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Northern District of California

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Justice, 584 F. Supp. 2d 65, 79 (D.D.C. 2008) (internal quotation marks omitted). “The privilege

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protects only those disclosures necessary to obtain informed legal advice which might not have

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been made absent the privilege” and “confidential information that involves or is about that

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client.” Id. at 79.

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1. Human Source Advisory Notices
The FBI has produced Human Source Advisory Notices with significant redactions that

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render the documents unreadable. See R. 141-1, Kleine Decl. Ex. A. According to these

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documents, the FBI distributes these advisory notices to numerous FBI listservs and “investigative

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and administrative personnel.” Id. at 5. There are two parts to each advisory notice: a notice

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section and a policy section. See, e.g., id. at 18. For the most part, the substance of both of these

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sections is redacted. In the Vaughn index, the FBI explains that the redacted portions “contain[]

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specific legal and procedural advice, including approval levels and requirements, interpretation of

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law, source coordination and liaison with other agencies, and information on specific operational

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techniques for operating sources—which are currently used in cases today.” R. 139-1 at 5, 2d

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Suppl. Hardy Decl. Ex. II. The FBI contends that the advisory notices include “scenarios” that

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“stem[] from questions raised to FBI Counsel on actual cases as to when particular investigative

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techniques should be utilized.” Id. After the hearing on this matter, the FBI submitted unredacted

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copies of the Human Advisory Notices for in camera review.
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The bulk of the redacted portions of the Human Advisory Notices do not include

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communications to the FBI’s attorneys “for the purpose of securing primarily either (i) an opinion

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on law or (ii) legal services or (iii) assistance in some legal proceeding.” In re Grand Jury, 475

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F.3d 1299, 1304 (D.C.Cir.2007) (internal quotation marks omitted). The notice section of the

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Advisory Notices contains a short description of a situation agents may encounter in the field. The

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descriptions are general and lack any specific information. The policy section provides a citation

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to an FBI policy and brief analysis applying the language of the policy to the situation described in

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the notice section. While the FBI attests that the substance of the Advisory Notices “stem[] from

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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

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Northern District of California

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contrasted to a factual or strategic advice giving opinion.” Coastal States Gas Corp. v. Dep’t of

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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

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privileged communications. Unlike the generic descriptions in the Human Advisory Notices, this

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email contains details about an asset, the assets location, and the reason for the communication.

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This email is less like a resource opinion and contains fact-specific advice and communications,

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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

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substantiates its claim that the communications were confidential in fact. Indeed, the wide

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distribution of the Advisory Notices to all administrative and investigative personnel implies the

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contrary. See Nat’l Sec. Counselors, 960 F. Supp. 2d at 194. Moreover, “[w]here a client is an

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organization, including a government organization, the privilege extends ‘no further than among

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those members of the organization who are authorized to speak or act for the organization in

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relation to the subject matter of the communication.’” Shurtleff v. United States Envtl. Prot.

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Agency, 991 F. Supp. 2d 1, 16 (D.D.C. 2013) (quoting Coastal States Gas Corp. v. Dep’t of

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Energy, 617 F.2d 854, 863 (D.C. Cir. 1980)). The FBI has not submitted evidence to establish

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that the people who received the Advisory Notices were authorized to speak or act on behalf of the

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FBI.
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The FBI has failed to establish, with the exception cited above, that the redacted portions

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of the Advisory Notices include attorney-client-privileged information. Accordingly, the FBI’s

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motion for summary judgment is denied. The FBI shall produce unredacted copies of the Human

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Advisory Notices except document MC-1396.

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2. FAQ for Threat Assessments

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The FBI has withheld entirely the FAQs for Threat Assessments. According to the FBI,

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the FAQs advise FBI personnel about how to apply FBI policy to threat assessments. To justify

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withholding the FAQs, the FBI states that these FAQs “encompass opinions given by” and

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“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.

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The remainder of the entry in the Vaughn index concerning the FAQs merely defines attorney-

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client privilege and asserts without more that it applies to this information without citing specific

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facts. See id. at 19-20.

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The FBI has failed to establish that attorney-client privilege shields the entirety of the

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FAQs from disclosure for many of the same reasons the FBI failed to carry its burden with respect

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to the redacted portions of the Advisory Notices. First, the FBI’s evidence does not substantiate

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the need to withhold the FAQs in their entirety because some portions of the document do not

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appear to contain legal advice or confidential communications. Second, the FBI has not provided

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sufficient information to determine whether the FAQs consist of advice about specific legal

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questions and situations, or whether they clarify broadly applicable FBI policies. Finally, the FBI

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has not provided information about who receives the FAQs and whether the recipients are

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authorized to speak and act on behalf of the FBI. Thus, the FBI must produce the segregable

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portions of the FAQs or provide more information about which portions contain attorney-client-

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privileged information.

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B. Deliberative-Process Privilege
The final document at issue is the FBI’s draft training FAQs, which the FBI asserts is

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shielded from disclosure by the deliberative-process privilege. That privilege shields from

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disclosure “documents reflecting advisory opinions, recommendations and deliberations
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comprising part of a process by which governmental decisions and policies are formulated.”

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Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (internal

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quotation marks omitted). To fall within the ambit of the deliberative-process privilege, the FBI

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must demonstrate that the document is both “predecisional” and “deliberative.” Lahr, 569 F.3d at

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979. “A document is predecisional if it was prepared in order to assist an agency decisionmaker in

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arriving at his decision, rather than to support a decision already made.” Petroleum Info. Corp. v.

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U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (internal quotation marks omitted).

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Documents that “reflect[] the give-and-take of the consultative process” are deliberative. Id.

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(internal quotation marks omitted). Because the purpose of the privilege is to “protect[] open and

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frank discussion among” employees of an agency who make decisions, Klamath Water, 532 U.S.

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Northern District of California

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at 9, “the key question in Exemption 5 cases is whether the disclosure of materials would expose

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an agency’s decision-making process in such a way as to discourage candid discussion within the

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agency and thereby undermine the agency’s ability to perform its functions,” Carter v. U.S. Dep’t

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of Commerce, 307 F.3d 1084, 1090 (9th Cir. 2002) (internal quotation marks and alteration

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omitted).
According to the FBI, the draft FAQ exists in electronic form and consists of redline

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comments concerning the substance and format of the document. R. 139 at 6, 2d Suppl. Hardy

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Decl. ¶ 11. David Hardy, the FBI’s Record/Information Dissemination Section Chief, attests that

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the FBI could not locate a “final” version of the document. Id. Hardy asserts in conclusory

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fashion that the document “reflects the give-and-take process” and would chill future drafters of

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similar documents from offering comments about the substance and format of the document. See

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id. The FBI has not, however, offered specific, non-conclusory information about how the

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drafters’ comments contributed or informed the decisionmaking process. More importantly, the

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FBI concedes that the redline comments do not reflect debate about which policies apply or should

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be adopted. FBI Reply Br. at 3. Instead, the FBI contends that the document is deliberative

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because the redline comments reflect debate about “how to instruct or convey” the policies to FBI

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special agents. Id. In other words, the FBI asserts that it has decided what to say, just not how to

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say it.
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The deliberative-process privilege does apply, however, to documents that “explain[] . . . a

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decision already reached or a policy already adopted.” Sears, 421 U.S. at 153 n.19. The FBI has

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not contended that the draft FAQs include such quintessentially deliberative content as advice

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about whether to adopt or reject a policy. Nothing in the FBI’s evidence suggests that advice

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about whether a comma should be inserted, word choice, or phrasing would discourage members

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of the Bureau from providing candid advice about the pros and cons of adopting a policy or

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practice. Thus, the FBI has all but admitted that the document reflects a policy it has adopted, and

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therefore constitutes the FBI’s “working law.” See id. at 152-53. “Working law” is not exempt

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from disclosure. Id. The FBI must therefore produce the draft FAQs.
V.

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Northern District of California

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CONCLUSION

The FBI has not carried its burden to demonstrate that Exemption 5 justifies redactions of

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the Human Source Advisory Notices, or the complete withholding of the FAQs for Threat

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Assessments and the draft training FAQs. Accordingly, the FBI has thirty (30) days from the date

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of this order to produce unredacted copies of the Human Advisory Notices, the FAQs for Threat

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Assessments and draft training FAQs. The redacted portions of page MC-1396 are exempt from

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disclosure.

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IT IS SO ORDERED.
Dated: November 17, 2015

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________________________
RICHARD SEEBORG
United States District Judge

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