Electronic Frontier Foundation v. Department of Justice

Filing 89

ORDER RE REQUEST FOR CLARIFICATION. Signed by Judge Richard Seeborg on 3/4/16. (cl, COURT STAFF) (Filed on 3/4/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ELECTRONIC FRONTIER
FOUNDATION,
Plaintiff,

United States District Court
Northern District of California

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Case No. 10-cv-04892-RS
ORDER RE REQUEST FOR
CLARIFICATION

v.
DEPARTMENT OF JUSTICE,
Defendant.

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A ruling previously issued on the parties’ cross-motions for summary judgment in this

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action brought under the Freedom of Information Act (“FOIA”). That order directed the

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government to produce certain additional materials. The parties seek clarification, however, as to

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whether the government may continue to withhold 16 specific pages of documents. The issue

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arises because the government previously asserted that Exemption 4 applied to material in those

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pages, a claim that the summary judgment order rejected. The prior order concluded, “[t]o the

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extent DEA has withheld any documents or portions thereof [Exemption 4] and no other

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exemption applies, that material must be produced.” (Emphasis added.) While the government

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produced one additional page that it had previously withheld only under Exemption 4, it continues

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to withhold the 16 pages in dispute under other exemption claims.

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The government is correct that the prior order left nothing undecided. Among other things,

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the government’s assertions of Exemptions 5 and 7(E) were upheld, and its efforts to segregate

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any non-exempt material were found to be adequate. See Dkt. No. 75. Plaintiff insists that it

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would be inconsistent to claim material is exempt under both Exemption 4 and Exemption 5,

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because the former protects materials received in confidence from third parties, whereas the latter

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(often referred to as “deliberative process” in shorthand) protects materials generated by the

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government. Reasoning that material cannot simultaneously be generated by third parties and by

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the government, plaintiff contends the two exemptions are mutually exclusive, and that therefore

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the assertion of Exemption 5 must be improper. As an initial matter, even were it always improper

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to claim both exemptions, it would not follow that a claim under Exemption 5 automatically fails

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where, as here, there has been a finding that Exemption 4 does not apply. Rather, a conclusion

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that one exemption is inapt would, as a theoretical matter, avoid the supposed conflict in claiming

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United States District Court
Northern District of California

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them both.
More fundamentally, however, there simply is no conflict in claiming both exemptions in

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appropriate circumstances. The documents here provide such an example. They consist of

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communications generated by and within the government, which in some instances make

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reference to information obtained from third parties. Although the prior order found that the third-

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party information did not warrant protection from disclosure under Exemption 4, even if it had,

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application of Exemption 5 would still be appropriate to protect the deliberative process reflected

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in the government’s internal discussions regarding that information. While the bare facts provided

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by the third party would not be protected, the discussion of those facts would be. As noted, the

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prior order found that the effort to produce all segregable unprotected material was adequate.

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For the same reasons, plaintiff’s contention that there is conflict between claims of

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Exemption 4 and Exemption 7(E) also fail. Although the Exemption 4 claim was rejected in part

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because some of the information regarding third parties was publicly known, the mere inclusion of

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such facts in other discussions does not preclude the application of Exemption 7(E) to those

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discussions.

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Accordingly, the conclusions of the prior order are unchanged. The government need not

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produce the remaining 16 pages because they do not fall within the prior order’s direction to

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release materials for which Exemption 4 was claimed, “and no other exemption applies.” The

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CASE NO.

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10-cv-04892-RS

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Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: March 4, 2016
______________________________________
RICHARD SEEBORG
United States District Judge

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United States District Court
Northern District of California

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CASE NO.

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10-cv-04892-RS