SOGHOIAN v. DEPARTMENT OF JUSTICE

Filing 15

MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Declaration John Cunningham (DOJ CRM), # 3 Declaration John Boseker (EOUSA), # 4 Text of Proposed Order)(Interrante, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHRISTOPHER SOGHOIAN,
Plaintiff,
v.
DEPARTMENT OF JUSTICE,
Defendant.

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Civil Action No. 11-1080 (ABJ)
ECF

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pursuant to Fed. R. Civ. P. 56, Defendant, United States Department of Justice, by and
through undersigned counsel, respectfully moves the Court to enter summary judgment in its favor
in this action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as amended,
because there is no genuine issue as to any material fact, and Defendant is entitled to judgment as
a matter of law. In support of this motion, Defendant respectfully refers the Court to the
accompanying memorandum of points and authorities and statement of materials facts as to which
there is no genuine issue. A proposed Order consistent with this motion is attached hereto.
Plaintiff, who is proceeding pro se, should take notice that any factual assertions contained
in the documents in support of this motion will be accepted by the Court as true unless the plaintiff
submits his own affidavit or other documentary evidence contradicting the assertions in the
documents. See Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992), LCvR 7(h), and Fed. R. Civ.
P. 56(c) and 56(e), which provide, in pertinent part, as follows:

(c)

Procedures
(1)

Supporting Factual Positions. A person asserting that a fact cannot be or
is genuinely disputed support the assertion by:
(A)

citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers; or

(B)

showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
*****

(4)

(e)

Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declaration is
competent to testify to the matters stated.

Failing to Properly Support or Address a Fact. If a party fails to properly support
an assertion of fact or fails to properly address another party’s assertion of fact as
required by Rule 56(c), the court may:
(1)

give an opportunity to properly support or address the fact;

(2)

consider the fact undisputed for purpose of the motion;

(3)

grant summary judgment if the motion and supporting materials – including
the facts considered undisputed – show that the movant is entitled to it; or

(4)

issue any other appropriate order.

Fed. R. Civ. P. 56(c) and (e).

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Respectfully submitted,
RONALD C. MACHEN JR, DC Bar # 447889
United States Attorney for the District of Columbia
RUDOLPH CONTRERAS, DC. Bar # 434122
Chief, Civil Division
By:

/s/
JOHN G. INTERRANTE
PA Bar # 61373
Assistant United States Attorney
Civil Division
555 4th Street, NW, Room E-4808
Washington, DC 20530
Tel:
202.514.7220
Fax: [phone]
Email: [e-mail]

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHRISTOPHER SOGHOIAN,
Plaintiff,
v.
DEPARTMENT OF JUSTICE,
Defendant.

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Civil Action No. 11-1080 (ABJ)
ECF

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This case arises under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as
amended, and pertains to the request of Plaintiff, Christopher Soghoian, who is proceeding pro se,
for records from the United States Department of Justice (“DOJ” or “Department”), Criminal
Division (“DOJ CRM”). As set forth in the accompanying declarations and Vaughn indices, DOJ
CRM has conducted a reasonable search of agency records, has disclosed all non-exempt responsive
records, and has not improperly withheld any responsive records from Plaintiff. Thus, there is no
genuine issue as to any material fact, and Defendant is entitled to judgment as a matter of law.
STATEMENT OF FACTS
Defendant hereby incorporates the Statement of Material Facts Not In Genuine Dispute
(“SFNGD”), and the Declarations and Vaughn indices prepared by John Cunningham (“Cunningham
declaration) on behalf of DOJ CRM and John Boseker (“Boseker declaration”) for records referred
to the Executive Office for United States Attorneys (“EOUSA”) and exhibits referenced therein,
filed contemporaneously with this Memorandum. Mr. Cunningham is an attorney in the Freedom
of Information Act/Privacy Act (“FOIA/PA”) Unit of the United States Department of Justice. Mr.

Cunningham’s duties include providing litigation support and assistance to Assistant United States
Attorneys (“AUSA”) and DOJ Civil Division Trial Attorneys who represent the Department in
lawsuits filed in Federal court under the FOIA and/or Privacy Act arising from requests for DOJ
CRM records. Cunningham Decl., ¶ 1. Mr. Boseker is an Attorney Advisor in EOUSA and is
specifically assigned to the component of EOUSA designated to administer FOIA and the Privacy
Act. Bosker Decl., ¶ 1.
LEGAL STANDARDS
In a FOIA action, a district court has jurisdiction only when an agency has improperly
withheld agency records. 5 U.S.C. § 552(a)(4)(B). FOIA, however, does not allow the public to
have unfettered access to government files. McCutchen v. United States Dep’t of Health and Human
Services, 30 F.3d 183, 184 (D.C. Cir. 1994). Although disclosure is the dominant objective of FOIA,
there are several exemptions to the statute’s disclosure requirements. Department of Defense v.
FLRA, 510 U.S. 487, 494 (1994). To protect materials from disclosure, the agency must show that
they come within one of the FOIA exemptions. Public Citizen Health Research Group v. FDA, 185
F.3d 898, 904 (D.C. Cir. 1999).
"[I]t is well established that under the FOIA, 'once the records are produced the substance
of the controversy disappears and becomes moot, since disclosure which the suit seeks has already
been made.'" Trueblood v. United States Dep’t of Treasury, 943 F. Supp. 64, 67 (D.D.C. 1996)
(quoting Crooker v. United States State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980)); see also Perry v.
Block, 684 F.2d 121, 125 (D.C. Cir. 1982). Accordingly, summary judgment is appropriate in a
FOIA action, such as this one, where the pleadings, together with the declaration, demonstrate that
there are no material facts in dispute and the requested information has been produced or is

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exempted from disclosure, and the agency, as the moving party, is entitled to judgment as a matter
of law. Fed. R Civ. P. 56(a); Students Against Genocide v. Department of State, 257 F.3d 828, 833
(D.C. Cir. 2001); Weisberg v. United States Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980);
Fischer v. U.S. Dep’t of Justice, 596 F.Supp.2d 34, 42 (D.D.C. 2009) (“summary judgment may be
granted to the government if ‘the agency proves that it has fully discharged its obligations under the
FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light
most favorable to the FOIA requester’”) (citation omitted).
ARGUMENT
DOJ CRM has conducted a reasonable search of the two components likely to have
responsive records – the Office of Enforcement Operations (“OEO”) and the Computer Crime and
Intellectual Property Section (“CCIPS”) – has disclosed all non-exempt responsive records, and has
not improperly withheld any responsive records from Plaintiff. Thus, there is no genuine issue as
to any material fact, and Defendant is entitled to judgment as a matter of law.
I.

DOJ CRM CONDUCTED AN ADEQUATE SEARCH OF ITS RECORDS SYSTEMS.
In responding to a FOIA request, an agency must conduct a reasonable search for responsive

records. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Weisberg v. United
States Dep’t of Justice, 705 F.2d 1344, 1352 (D.C. Cir. 1983). An agency is not required to search
every record system, but need only search those systems in which it believes responsive records are
likely to be located. Oglesby, 920 F.2d at 68. “An agency fulfills its obligations under FOIA if it
can demonstrate beyond material doubt that its search was reasonably calculated to uncover all
relevant documents.” Fischer, 596 F.Supp.2d at 42 (quoting Valencia-Lucena v. United States Coast
Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal citation and quotation marks omitted)).

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Thus, an agency may conduct an adequate search under FOIA without locating any
responsive records. Furthermore, even when a requested document indisputably exists or once
existed, summary judgment will not be defeated by an unsuccessful search for the document so long
as the search was diligent and reasonable. See Nation Magazine, Washington Bureau v. U.S.
Customs Service, 71 F.3d 885, 892 n.7 (D.C. Cir. 1995). Thus, “[t]he search need only be
reasonable; it does not have to be exhaustive.” Miller v. United States Dep’t of State, 779 F.2d
1378, 1383 (8th Cir. 1985) (citing Nat’l Cable Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir.
1973)).
The burden rests with the agency to establish that it has “made a good faith effort to conduct
a search for the requested records, using methods which can be reasonably expected to produce the
information requested.” Oglesby, 920 F.2d at 68; see also SafeCard Services v. SEC, 926 F.2d
1197, 1201 (D.C. Cir. 1991). “An agency may prove the reasonableness of its search through
affidavits of responsible agency officials so long as the affidavits are relatively detailed, nonconclusory and submitted in good faith.” Miller, 779 F.2d at 1383; Goland v. CIA, 607 F.2d 339,
352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980). Although the agency has the burden of
proof on the adequacy of its search, the “affidavits submitted by an agency are ‘accorded a
presumption of good faith,’” Carney v. United States Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.),
cert. denied, 513 U.S. 823 (1994) (quoting SafeCard Services, 926 F.2d at 1200).
Thus, once the agency has met its burden regarding the adequacy of its search, the burden
shifts to the requester to rebut the evidence by a showing of bad faith on the part of the agency.
Miller, 779 F.2d at 1383. A requester may not rebut agency affidavits with purely speculative
allegations. See Carney, 19 F.3d at 813; SafeCard Services, 926 F.2d at 1200; Maynard v. CIA, 986

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F.2d 547, 559-60 (1st Cir. 1993).
A.

DOJ CRM’s Search for Records Responsive to Plaintiff’s Request.

Plaintiff submitted a FOIA request, dated April 14, 2010, addressed to “Rena Y. Ki[m],
Chief, FOIA/PA Unit, Criminal Division, Department of Justice.” SFNGD No. 1; Cunningham
Decl., ¶ 7 & Ex. 1 thereto. Specifically, in his request, Plaintiff asked DOJ CRM for copies of the
following records:
a.

Any memos, email communications, reports, legal opinions, or other
documents related to the government's acquisition (either compelled, or
voluntary disclosure by the carrier) of cellular location information
(including but not limited to Call Detail Records) regarding individuals who
are roaming, and thus not using their own carrier's network, and are instead
using another wireless telecommunications carrier to which the individual is
not a subscriber.

b.

Any memos, email communications, reports, legal opinions, or other
documents related to government requests for location of called parties in
“hybrid” orders - e.g. requests that a carrier provide the government with
subscriber and toll records for each number called by the target including cell
site or location information associated with each call for a particular period.
[Footnote omitted.]

c.

Any memos, email communications, reports, legal opinions, or other
documents related to government agents requesting and obtaining noncontent header information (such as “to” and “from” addresses) associated
with individuals’ email communications that have been opened, or are over
180 days old, based upon a showing of relevance to an ongoing investigation
(and not via a 18 USC 2703(d) order). I also request any information
regarding refusals by some Internet Service Providers to deliver such
noncontent header information without a 2703(d) order, even for
communications over 180 days old, and any information regarding DOJ’s
response to the refusal by the ISPs.

Id., ¶ 7 & Ex. 1, pp. 1-2. Plaintiff clarified that “I am particularly interested in any information held
by the Office of Enforcement Operations, the Computer Crime [and] Intellectual Property Section
[“CCIPS”]. The scope of this request is anything created between January 1, 2007 and April 13,
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2010.” Id., ¶ 7 & Ex. 1, p. 2.
DOJ CRM conducted a reasonable search of agency files for records responsive to Plaintiff’s
FOIA request by identifying OEO and CCIPS as the source of potentially responsive records. John
Cunningham explained the functions of these components in his declaration. SFNGD Nos. 4-6;
Cunningham Decl., ¶ 9. DOJ CRM initiated searches for records in CCIPS and OEO on May 7,
2010. SFNGD No. 3; Cunningham Decl., ¶ 9 & Exs. 3 and 4..
1.

Office of Enforcement Operations.

OEO, and in particular, its Electronic Surveillance Unit (“ESU”) is responsible for reviewing
all applications seeking to use electronic surveillance in federal criminal investigations. SFNGD
No. 4; Cunningham Decl., ¶ 9; see also 18 U.S.C. 2510 et seq. (“Title III.”). These applications are
submitted by the United States Attorneys’ Offices to the Criminal Division on behalf of the federal
law enforcement agencies that want to use this investigative technique in their investigations. Id..
Once the Unit reviews the application and finds that it meets all of the statutory and policy
requirements, the application is forwarded to the Office of the Assistant Attorney General, Criminal
Division, where a Deputy Assistant Attorney General reviews the application and either approves
or denies the request. Id. OEO does not initiate or conduct any criminal investigations. Id.
2.

Computer Crime and Intellectual Property Section.

CCIPS is responsible for implementing the Department's national strategies in combating
computer and intellectual property crimes worldwide. SFNGD No. 5; Cunningham Decl., ¶ 9. The
Section’s attorneys work to improve the domestic and international infrastructure - legal,
technological, and operational - to pursue network criminals most effectively. Id. CCIPS attorneys
regularly run complex investigations. Id.

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OEO and CCIPS’ attorneys resolve unique legal and investigative issues raised by emerging
computer and telecommunications technologies and train federal, state, and local law enforcement
personnel. SFNGD No. 6; Cunningham Decl., ¶ 9. The Section attorneys provide substantive
expertise to the DOJ leadership on these issues, which includes commenting on and proposing
legislation. Id. In developing their expertise and forming their opinions on various strategies, the
Sections’ attorneys consult with other department attorneys, and in particular, Assistant United
States Attorneys, who utilize the various electronic surveillance techniques on a regular basis. Id.
These consultations are often done in the context of presentations that OEO and CCIPS attorneys
give to Assistant United States Attorneys regarding developments in various areas of electronic
surveillance. Id.
3.

Responsive Records.

As a result of these searches, DOJ CRM located records responsive to Plaintiff’s request in
DOJ CRM’s CCIPS and OEO Sections: approximately 186 pages originated from DOJ CRM, onepage originated from the United States Marshals Service (“USMS”),1 and approximately 418 pages
originated from the Executive Office for United States Attorneys (“EOUSA”) (or a particular United
States Attorney’s Office). SFNGD No. 7; Cunningham Decl., ¶ 10. DOJ CRM then began to
process these records under FOIA.
On October 6, 2010, DOJ CRM referred the records originating from EOUSA and USMS
to those agencies for processing and a direct response to Plaintiff, consistent with DOJ’s regulation
at 28 C.F.R. § 16.4(c)(2), which establishes a presumption that the component/agency from which

1

The one-page document described as originating from the USMS is listed and described as
Item 14 in DOJ CRM’s Vaughn index.
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a record originates is best able to determine whether to disclose it. SFNGD No. 8; Cunningham
Decl., ¶ 11 & Exs. 5 & 6. Because the document referred to the USMS is a one-page email, DOJ
CRM did not ask the USMS for a separate Vaughn declaration and explains the basis for the
withholding of this record in its entirety in its Vaughn declaration as Item 14. SFNGD No. 8;
Cunningham Decl., ¶ 28.
DOJ CRM located a 299-page manual entitled Searching and Seizing Computers and
Obtaining Electronic Evidence in Criminal Investigations and referred the manual to EOUSA for
processing under FOIA. SFNGD No. 9; Cunningham Decl., ¶ 12. Subsequent review revealed that
the manual, while published by EOUSA, was written by attorneys in the CCIPS Section of the
Criminal Division. Id. Once it was determined that the manual has been made public and can be
a c c e s s e d

t h r o u g h

t h e

D O J

i n t e r n e t

w e b s i t e ,

http://www.justice.gov/criminal/cybercrime/ssmanual/04ssma.html, DOJ CRM so notified Plaintiff
and also released a few pages that had been previously withheld. SFNGD No. 9; Cunningham Decl.,
¶ 13 (part 2) n.4 & Ex. 6

Chapter 4 of the manual, entitled “Electronic Surveillance in

Communications Networks,” is relevant to Plaintiff’s FOIA request. Id.
As to the remaining records, after review, DOJ CRM decided to withhold them pursuant to
FOIA exemptions set forth in 5 U.S.C. § 552(b)(2), (5), (6), (7)(C) and (7)(E). SFGND No. 10;
Cunningham Decl., ¶ 13 (part 1). The records withheld from release are identified as Items 1-14 in
the Vaughn index attached to the Cunningham declaration. Id. Mr. Cunningham explained that in
light of the Supreme Court’s decision in Milner v. Navy, 131 S. Ct. 1259 (2011), DOJ CRM no
longer relies on 552(b)(2) as a basis for withholding certain material. Id., ¶ 13 (part 1) n. 3.
On October 6, 2010, EOUSA received a referral from DOJ CRM of records located in a

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search conducted in response to Plaintiff’s FOIA request letter dated April 14, 2010. SFNGD No.
14; Declaration of John Boseker (“Boseker Decl.”), Attorney Advisor, EOUSA, ¶ 6 & Ex. A.
By letter dated February 11, 2011, EOUSA notified Plaintiff that it had reviewed the records
referred, and determined that all 417 pages of referred records would be withheld from disclosure
by application of the FOIA exemption found at 5 U.S.C. § 552 (b)(3) in conjunction with the
statutory authority contained 18 U.S.C. §§ 2705(b), 3123(b), 3103(a) and Court documents sealed
under this statutory authority. SFNGD No. 15; Bosker Decl., ¶ 7 & Ex. B. EOUSA also advised
Plaintiff that it was withholding records under 5 U.S.C. §§ 552 (b)(2), (b)(5), (b)(7)(C), and
(b)(7)(E). Id. EOUSA no longer asserts Exemption (b)(2) for the same reasons as DOJ CRM (see
p. 8 supra & SFNGD No. 10). SFNGD No. 20; Boseker Decl, ¶ 12. Finally, EOUSA has refined
the statutory citations it relies on in asserting Exemption (b)(3) to those asserted in the Vaughn index
attached to the Boseker declaration. Id.
The Cunningham and Boseker declarations, Vaughn indices and exhibits thereto establish
that DOJ CRM has made a good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested, and therefore has
conducted a search of all locations that are likely to yield documents responsive to Plaintiff’s FOIA
requests. All responsive documents located have been released, or to the extent information has
been withheld under FOIA Exemptions. DOJ CRM’s search for responsive records was therefore
adequate and the Court should enter summary judgment in favor of Defendant.
B.

Sufficiency of the Agency’s Declarations and Vaughn Indices.

Summary judgment in FOIA cases may be awarded “based solely on the information
provided in [agency] affidavits or declarations when the affidavits or declaration describe ‘the

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justifications for non-disclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.’” Fischer, 596 F.Supp.2d at 42 (quoting
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). The Cunningham and Boseker
declarations and Vaughn indices demonstrate that DOJ CRM and EOUSA carefully reviewed
responsive records, and properly withheld information subject to FOIA exemptions.
The Court should find that the Cunningham and Boseker declarations and indices are
sufficient under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974)
because the declarations and coded indices “are adequate to inform plaintiff of the nature of the
information withheld and to permit the Court to determine the applicability of each exemption
claimed. Any more specificity would result in disclosure of the very information withheld.”
Fischer, 596 F.Supp.2d at 44.
II.

DEFENDANT PROPERLY APPLIED FOIA EXEMPTIONS AND ALL NONEXEMPT RESPONSIVE RECORDS HAVE BEEN RELEASED.
DOJ CRM AND EOUSA have withheld responsive records in OEO and CCIPS files under

FOIA Exemptions 3, 5, 6, 7(C) and 7(E), 5 U.S.C. §§ 552(b)(3), (b)(5), (b)(6), (7)(C) and 7(E). The
Court should enter summary judgment in favor of Defendant as to its assertion of each of these
exemptions to withhold responsive material.
A.

DOJ CRM Documents.

DOJ CRM’s Vaughn index, which is attached to the Cunningham declaration, lists 13
documents and the document referred to USMS. DOJ CRM withheld portions of each document
based on Exemption 5 in conjunction with other FOIA exemptions. Specifically, DOJ CRM has
identified the following responsive documents:
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(1)

PowerPoint presentation to DOJ attorneys/AUSAs (“Leveraging Emerging

Technologies in Prosecuting Cases”) discussing legal issues including location information for
wireless devices (31 pages).
(2)

OEO Manual – Part I: “Obtaining Location Information from Wireless

Carriers” (16 pages).
(3)

Draft version of #2 (35 pages).

(4)

Draft version of #2 (15 pages).

(5)

PowerPoint presentation to DOJ attorneys/AUSAs discussing legal issues

including location information for wireless devices (“Location Information for Wireless Devices,
Social Networking, Seizure and Analysis of Computers”) (33 pages).
(6)

PowerPoint presentation to DOJ attorneys/AUSAs discussing legal issues

including location information for wireless devices (“Can You Search Me Now? – Investigating
Wireless ‘Phones’”) (20 pages).
(7)

PowerPoint presentation to DOJ attorneys/AUSAs discussing legal issues

including location information for wireless devices (“Current Legal Issues in Wireless Phone
Location”) (15 pages).
(8)

Attorney notes to aid in PowerPoint presentation to DOJ attorneys/AUSAs

discussing legal issues including location information for wireless devices (“Real-Time Electronic
Surveillance”) (6 pages).
(9)

PowerPoint presentation to DOJ attorneys/AUSAs, with handwritten notes

interlineated, to aid in discussion of legal issues including location information for wireless devices
(8 pages).
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(10)

Emails discussing search warrant (2 pages).

(11)

Legal analysis and responses to issues raised by various attorneys in drafting

OEO manual, (#2) (5 pages).
(12)

Draft of possible guidance for obtaining search warrants (2 pages).

(13)

Comments regarding draft documents that would provide guidance to AUSAs

regarding specific legal issues including “Obtaining Location Information from Wireless Carriers”
(3 pages).
(14)

USMS referral. Email [dated July 22, 2009] from a USMS employee to

AUSAs and CCIPS attorneys seeking guidance and legal advice involving the use of electronic
surveillance techniques in a narcotics investigation (1 page).
B.

EOUSA Referral Documents.

EOUSA’s Vaughn index, which is attached to the Boseker declaration, lists 4 documents
including the CCIPS manual that is publicly accessible on the DOJ internet website and therefore
not subject to withholding under FOIA. EOUSA withheld Documents 2 and 3 in their entirety under
Exemption 3 in conjunction with other FOIA exemptions. EOUSA withheld Document 4 under
Exemption 5 in conjunction with other FOIA exemptions. Specifically, EOUSA lists the following
four documents:
(1)

CCIPS manual.

(2)

“In the Matter of Application and Order [re: Pen Register, etc.]” (86 pages).

EOUSA’s Vaughn index describes this category of records as consisting entirely of specific third
party individual criminal case prosecution filings in the United States District Courts of Eastern
District of New York, Maryland, and Northern District of Illinois, and further describes as
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“[a]pplications for Orders & Orders, authorizing the use of pen registers, trap and trace devices, []
filed ex parte and under seal pursuant to the afore-referenced statutes, authorizing the installation
and use of a pen register in particular criminal cases on specified third party individual targets,
except for one Memorandum of Law filed in a federal grand jury matter concerning the same subject
matter.
(3)

E-mail from USMS Legal Advisor to other USDOJ Attorneys with

attachments (undated) (21 pages). EOUSA’s Vaughn index describes this category of records as
consisting of intra-agency e-mail from Legal Advisor rendering legal opinion and recommendations,
soliciting responses from recipients, regarding the use of draft models attached respecting sealed
applications, affidavit, and orders for use in the types of cases identified in Document 2 above.
(4)

E-mail communications between various AUSAs and USAOs and Criminal

Division attorneys (9/09-12/09) (9 pages). EOUSA’s Vaughn index describes this category of
records as consisting of intra-agency communications between AUSAs in various USAOs and
Criminal Division attorneys discussing legal issues and actual third party individual criminal cases
involving “cell site” data, and the substance of exchanges concern legal analyses, alternative
theories, and legal views both theoretical and as applied and recommendations concerning these
matters.
C.

DOJ CRM Asserted Exemption 5 in Conjunction With Exemptions
6/7(C) and 7(E).
1.

Exemption 5.

Exemption 5 of FOIA exempts from disclosure “inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). The Supreme Court has interpreted Exemption 5 as allowing an
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agency to withhold from the public documents which a private party could not discover in civil
litigation with the agency. U.S. v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); National Labor
Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975). Exemption 5 therefore protects
from disclosure documents that "fall within the ambit of a privilege" such that they would not be
"routinely or normally" disclosed in civil discovery. Dep't of the Interior v. Klamath Water Users
Protective Ass'n, 532 U.S. 1, 8 (2001); Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 2627 (1983); Martin v. Office of Special Counsel, Merit Systems Protection Board, 819 F.2d 1181
(D.C. Cir. 1987). Thus, Exemption 5 allows an agency to invoke traditional civil discovery
privileges, including the attorney-client privilege, attorney work-product privilege, and the executive
deliberative process privilege, to justify the withholding of documents that are responsive to a FOIA
request. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980).
FOIA Exemption 5 incorporates the traditional privilege accorded to “confidential
communications between an attorney and his client relating to a legal matter for which the client has
sought professional advice.” Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242,
252 (D.C. Cir. 1997). Unlike the attorney work-product privilege, also protected under Exemption
5, the attorney-client privilege is not limited to the context of litigation. See Elec. Privacy Info. Ctr.
v. DHS, 384 F.Supp.2d 100, 114 (D.D.C. 2005) (citing, e.g., Mead Data). Moreover, although it
fundamentally applies to facts divulged by a client to his attorney, this privilege also encompasses
any opinion given by an attorney to his client based upon, and thus reflecting, those facts. See id.
(noting that the privilege protects attorney’s advice based upon facts provided by the client).
The deliberative process privilege is incorporated into FOIA Exemption 5. NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 151 (1975). This privilege protects the "quality of agency decisions."

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Id. The content or nature of the document is the focus of the inquiry into the privilege as opposed
to the manner in which the exemption is raised in a particular situation. See Dow Jones & Co., Inc.
v. Dep't of Justice, 917 F.2d 571, 575 (D.C. Cir. 1990). The policy underlying this privilege is to
encourage open, frank discussions of policy matters between government employees, consultants
and other officials, to protect against premature disclosure of proposed policies before they become
final, and to protect against public confusion by disclosing reasons and rationales that were not in
fact the ultimate grounds for the agency's action. See, e.g., Russell v. Dep't of the Air Force, 682
F.2d 1045, 1048 (D.C. Cir. 1982); Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866
(D.C. Cir. 1980).
In order for a record to be protected by the deliberative process privilege, it must be: (1) an
inter-agency or intra-agency document, and (2) pre-decisional and deliberative. See Klamath, 532
U.S. at 8-9. Records are predecisional if they are “generated before the adoption of an agency
policy”and deliberative if they “reflect[] the give-and-take of the consultative process.” See Coastal
States, 617 F.2d at 866. “Drafts” and "briefing materials" are therefore similar to advisory opinions,
recommendations, and deliberations, and are generally exempt from disclosure under the
deliberative process privilege. Coastal States Gas Corp., 617 F.2d at 866 ("The exemption thus
covers recommendations, draft documents, proposals, suggestions, and other subjective documents
which reflect the personal opinions of the writer rather than the policy of the agency."); DOI v.
Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 150 (1975)) (The deliberative process privilege covers documents "reflecting
advisory opinions, recommendations, and deliberations comprising part of a process by which
governmental decisions and policies are formulated."); Montrose Chemical Corp. v. Train, 491 F.2d

15

63 (D.C.Cir.1974) (memorandum summarizing testimony prepared for agency official before that
official renders final judgment).
To withhold a responsive document under the deliberative process privilege, the agency must
demonstrate that the document is “both predecisional and deliberative.” Mapother v. Dep’t of
Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). A communication is predecisional if “it was generated
before the adoption of an agency policy” and it is deliberative if “it reflects the give-and-take of the
consultative process.” Coastal States, 617 F.2d at 866. The privilege “covers recommendations,
draft documents, proposals, suggestions, and other subjective documents which reflect the personal
opinions of the writer rather than the policy of the agency.” Id. The deliberative process privilege
reflects Congress’s judgment that public disclosure of predecisional, deliberative documents would
inhibit “the full and frank exchange of ideas on legal policy matters” within an agency. Mead Data
Cent. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977). The Supreme Court has
commented that, “[h]uman experience teaches that those who expect public dissemination of their
remarks may well temper candor with a concern for appearances and for their own interests to the
detriment of the decisionmaking process.” United States v. Nixon, 418 U.S. 683, 705 (1974).
2.

Exemption 7.

Exemption 7 of FOIA protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure of such records would cause an
enumerated harm. 5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). In order
to withhold materials properly under Exemption 7, an agency must establish that the records at issue
were compiled for law enforcement purposes, and that the material satisfies the requirements of one
of the subparts of Exemption 7. See Pratt v. Webster, 673 F.3d 408, 413 (D.C. Cir. 1982). In

16

assessing whether records are compiled for law enforcement purposes, the “focus is on how and
under what circumstances the requested files were compiled, and whether the files sought relate to
anything that can fairly be characterized as an enforcement proceeding.” Jefferson v. Department
of Justice, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and internal quotations omitted).
“[T]he term ‘law enforcement purpose’ is not limited to criminal investigations but can also
include civil investigations and proceedings in its scope.” Mittleman v. Office of Personnel
Management, 76 F.3d 1240, 1243 (D.C. Cir. 1996), cert. denied, 519 U.S. 1123 (1997) (citing Pratt,
673 F.2d at 420 n.32). When, however, a criminal law enforcement agency invokes Exemption 7,
it “warrants greater deference than do like claims by other agencies.” Keys v. United States Dep’t
of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987) (citing Pratt, 673 F.2d at 418). A criminal law
enforcement agency must simply show that “the nexus between the agency's activity . . . and its law
enforcement duties” is “‘based on information sufficient to support at least ‘a colorable claim’ of
its rationality.’” Keys, 830 F.2d at 340 (quoting Pratt, 673 F.2d at 421).
Here, DOJ CRM and the individual United States Attorney’s Offices with which it consults
clearly satisfy the standard for invoking Exemption 7 of the FOIA because of their law enforcement
mission. See Description of Functions of OEO and CCIPS supra at I.A.1 and I.A.2. See also
Rugiero v. United States Dep’t of Justice, 257 F.3d 534, 550 (6th Cir. 2001) (explaining that the
"Court has adopted a per se rule" that applies not only to criminal enforcement actions, but to
"records compiled for civil enforcement purposes as well."). Furthermore, the various records at
issue in this case were compiled for criminal law enforcement purposes during the course of each
component’s performance of their law enforcement missions, including the investigation of criminal
activities. Id. Thus, there can be no doubt that the underlying criminal investigations fall within the

17

law enforcement duties of each component. Accordingly, the information readily meets the
threshold requirement of Exemption (b)(7).
3.

Exemption 7(E).

Exemption 7(E) of the FOIA provides protection for all information compiled for law
enforcement purposes when release "would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5
U.S.C. § 552(b)(7)(E). The first clause of Exemption 7(E) affords "categorical" protection for
"techniques and procedures" used in law enforcement investigations or prosecutions. Smith v.
Bureau of Alcohol, Tobacco and Firearms, 977 F. Supp. 496, 501 (D.D.C. 1997) (citing Fisher v.
United States Dep’t of Justice, 772 F. Supp. 7, 12 n. 9 (D.D.C. 1991), aff'd, 968 F.2d 92 (D.C. Cir.
1992)).
Exemption 7(E)'s second clause separately protects "guidelines for law enforcement
investigations or prosecutions if [their] disclosure could reasonably be expected to risk
circumvention of the law." 5 U.S.C. § 552(b)(7)(E); see also Mayer Brown LLP v. IRS, -- F.3d –,
2009 WL 1025344, slip op. at 2-3 (D.C. Cir. April 17, 2009) (“the importance of deterrence explains
why the exemption is written in broad and general terms” and further explains why the exemption
looks “not just for certitude of a reasonably expected risk, but for the chance of a reasonably
expected risk”). Accordingly, this clause of the Exemption protects any "law enforcement
guideline" that pertains to the prosecution or investigative stage of a law enforcement matter
whenever its disclosure "could reasonably be expected to risk circumvention of the law." See, e.g.,
PHE, Inc. v. United States Dep’t of Justice, 983 F.2d 248, 251 (D.C. Cir. 1993) ("release of FBI

18

guidelines as to what sources of information are available to its agents might encourage violators
to tamper with those sources of information and thus inhibit investigative efforts"); Jimenez v. FBI,
938 F. Supp. 21, 30 (D.D.C. 1996) (applying Exemption 7(E) to gang-validation criteria used by
Bureau of Prisons to determine whether individual is gang member).
4.

DOJ CRM Properly Asserted Exemption 5 in Conjunction with
Exemption 7(E).
a.

DOJ CRM Document 1.

Document 1 of DOJ CRM’s Vaughn index consists of the slides used by a Criminal Division
supervisor in lecturing other Department of Justice attorneys regarding “Leveraging Emerging
Technologies in Prosecuting Cases: Opportunities and Challenges.” Cunningham Decl., ¶ 16.
Plaintiff was provided with the opening slide describing the topic and lecturer, a slide describing the
Computer Crime and Intellectual Property Section, and a slide indicating who the attendees could
contact if they had questions (three pages). Id. DOJ CRM properly withheld all other slides
pertaining to the substantive lecture during which legal and tactical strategies for obtaining evidence
in furtherance of criminal investigations were discussed (28 pages). Id. These training sessions are
attended solely by federal law enforcement officials engaged in the enforcement of federal criminal
laws. Id.
DOJ CRM properly relied on FOIA Exemption 5 to justify its withholdings of internal
deliberative information from Item 1. See Cunningham Decl., ¶ 16. The information withheld by
CRM is both predecisional and deliberative. The slides were used as an outline to generate
discussions between the CCIPS attorney and the Assistant United States Attorneys who would be
conducting investigations, to discuss various factual scenarios and the legal basis for choosing
specific strategies. Id. The purpose of the lectures was to discuss with Assistant United States
19

Attorneys issues that might arise if they selected certain investigative techniques and how that might
impact their ability to establish their case. Id.
DOJ CRM also properly determined that these slides were attorney work product. Id. The
attorney work product privilege protects tangible and intangible items (such as interviews,
memoranda, correspondence, mental impressions, and personal beliefs) prepared or developed by
an attorney in anticipation of litigation, based upon the recognition that proper preparation of a case
depends on an attorney’s ability to assemble information, sort relevant from irrelevant facts, and
prepare his/her legal theories and strategies without intrusive or needless scrutiny. See Mead Data,
566 F.2d at 252. The Courts have held that documents that provide tips on handling future litigation
are also covered by the work product privilege. See, e.g., Hunt v. United States Marine Corps., 935
F. Supp. 46, 53 (D.D.C. 1996). In addition, unlike the attorney work-product privilege, the attorneyclient privilege is not limited to the context of litigation. See Elec. Privacy Info. Ctr. v. DHS, 384
F.Supp.2d 100, 114 (D.D.C. 2005) (citing, e.g., Mead Data).
Finally CRM relied upon FOIA Exemption 7(E) in withholding this item. Cunningham
Decl., ¶ 18. Exemption 7(E), as stated, protects information compiled for law enforcement purposes
that “would disclose techniques and procedures for law enforcement investigations and prosecutions,
or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Here, the
information was compiled for law enforcement purposes. CRM’s OEO and CCIPS advise Federal
law enforcement, including Assistant United States Attorneys, regarding various electronic
surveillance issues, both legal and strategic. Cunningham Decl., ¶ 18. The records located in
response to Plaintiff’s request were compiled in relation to OEO and CCIPS’s fulfillment of that

20

role. Id. The information contained in these slides describes the various legal and investigative
techniques that should be considered by investigators and Assistant United States Attorneys in
conducting their criminal investigations. Id. Disclosure of this type of information could provide
criminals the information necessary to evade or thwart detection by federal law enforcement.11 Id.
b.

DOJ CRM Documents 2-4.

Document 2 in DOJ CRM’s Vaughn index is part of the OEO Manual which is made
available to federal prosecuting attorneys to give them legal guidance and possible strategies for
“Obtaining Location Information From Wireless Carriers.” Cunningham Decl., ¶ 19. Documents
3 and 4 are drafts of Item 2. CRM relied on Exemptions 5 and 7(E) for the same reasons as described
as to Document 1. See supra. One of OEO’s functions is to advise its clients, the investigators and
prosecuting attorneys of the Department of Justice, regarding legal and investigative strategies and
techniques they may want to utilize in conducting criminal investigations. Cunningham Decl., ¶ 19.
The manual, including Document 2, is made available only to law enforcement personnel, and was
written by OEO attorneys for use by those investigators. Id. Its public disclosure would assist
criminals in adjusting their illegal activity techniques to avoid detection by law enforcement. Id.
This manual, while covering the same subject matter, is different than the CCIPS manual, which is
available to Plaintiff and the public. Id. In creating the publicly available manual, DOJ CRM
attorneys were careful to withhold details that would jeopardize law enforcement techniques while
still making available to the public an explanation of the more general issues. Id.

11

While the slides are fairly general and in outline form, their disclosure and the
identification of the topics discussed, and just as importantly the topics that were not addressed,
could aid individuals in developing strategies that would avoid detection and instead select
methods that are not scrutinized as much by federal law enforcement. Cunningham Decl., ¶ 18
n.5.
21

c.

DOJ CRM Documents 11-13.

Documents 11, 12 and 13 in DOJ CRM’s Vaughn Index are informal memos shared between
attorneys in OEO and CCIPS discussing the drafting of the OEO manual noted in Documents 2, 3,
and 4, as well as other possible legal guidance for obtaining warrants and other information.
Cunningham Decl., ¶ 27. The memos are not formal, they are not addressed to anyone, nor is the
author(s) identified. Id. The memos were used to aid a discussion between DOJ CRM attorneys,
to highlight different points of views and alternative ways of addressing issues, and to decide
whether or not to formulate a specific policy regarding certain investigative and legal strategies.
CRM withheld this document under FOIA Exemptions 5 and 7(E). Id. The information withheld
is both predecisional and deliberative. Id. Providing the documents “would disclose techniques and
procedures for law enforcement investigations and prosecutions, or would disclose guidelines for
law enforcement investigations or prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law.” Id.; 5 U.S.C. § 552(b)(7)(E).
5.

Exemptions 6 and 7(C).

In Fischer, the Court determined that the FBI properly withheld information under FOIA
Exemption 7(C), the Court did “not address defendant’s claim that the information was also properly
withheld under Exemption 6.” 596 F. Supp. 2d at 47 n. 17. The Court’s reasoning applies as well
to the information withheld in this case under these exemptions.
Exemption 7(C) of the FOIA exempts from mandatory disclosure information compiled for
law enforcement purposes when disclosure “could reasonably be expected to constitute an

22

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).12

The Supreme Court

affirmed the broad scope of Exemption 7(C) in National Archives and Records Admin. v. Favish,
541 U.S. 157 (2004). Accordingly, once the agency has demonstrated that the records were compiled
for law enforcement purposes, the Court must next consider whether the release of information
withheld “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(7)(C). This determination necessitates a balancing of the individual's right to
privacy against the public's right of access to information in government files. See, e.g., Reporters

12

Exemption 6 of FOIA protects "personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. §
552(b)(6). "The Supreme Court has interpreted the phrase 'similar files' to include all
information that applies to a particular individual." Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C.
Cir. 1999) (quoting Department of State v. Washington Post Co., 456 U.S. 595, 602 (1982)).
The Court has also emphasized that "both the common law and the literal understanding of
privacy encompass the individual's control of information concerning his or her person." United
States Dep’t of Justice v. Reporters Committee For Freedom of Press, 489 U.S. 749, 763 (1989).
The Supreme Court has found that “[i]ncorporated in the ‘clearly unwarranted’ language
is the requirement for ... [a] ‘balancing of interests between the protection of an individual's
private affairs from unnecessary public scrutiny, and the preservation of the public's right to
governmental information.’” Lepelletier, 164 F.3d at 46 (citing United States Dep’t of Defense v.
FLRA, 964 F.2d 26, 29 (D.C. Cir. 1992) (quoting Department of Air Force v. Rose, 425 U.S.
352, 372 (1976)). In determining how to balance the private and public interests involved, the
Supreme Court has sharply limited the notion of "public interest" under the FOIA: "[T]he only
relevant public interest in the FOIA balancing analysis [is] the extent to which disclosure of the
information sought would 'she[d] light on an agency's performance of its statutory duties' or
otherwise let citizens know 'what their government is up to.'" Lepelletier, 164 F.3d at 46
(quoting United States Dep’t. of Defense v. FLRA, 510 U.S. 487, 497 (1994) (editing in
original); see also Reporters Committee, 489 U.S. at 773. Information that does not directly
reveal the operation or activities of the federal government "falls outside the ambit of the public
interest that the FOIA was enacted to serve." Id. at 775. Further, "something, even a modest
privacy interest, outweighs nothing every time." National Ass'n of Retired Fed. Employees v.
Horner, 879 F.2d 873, 879 (D.C. Cir. 1989); but see Lepelletier, 164 F.3d at 48 (in extraordinary
circumstance where the individuals whose privacy the government seeks to protect have a "clear
interest" in release of the requested information, the balancing under Exemption 6 must include
consideration of that interest).
23

Committee, 489 U.S. at 776-780; Oguaju v. United States, 288 F.3d 448 (D.C. Cir. 2002), vacated
124 S.Ct. 1903 (2004), reinstated, 378 F.3d 1115 (D.C. Cir.), modified, 386 F.3d 273 (D.C. Cir.
2004); Beck v. Department of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). The plaintiff bears the
burden of establishing that the “public interest in disclosure is both significant and compelling in
order to overcome legitimate privacy interests.” Perrone v. FBI, 908 F. Supp. 24, 26 (D.D.C. 1995)
(citing Senate of Puerto Rico v. Department of Justice, 823 F.2d 574, 588 (D.C. Cir. 1987)). Accord
SafeCard Services, 926 F.2d at 1206 (public interest in disclosure of third party identities is
“insubstantial”).
Consequently, in order to trigger the balancing of public interests against private interests,
a FOIA requester must (1) "show that the public interest sought to be advanced is a significant one,
an interest more specific than having the information for its own sake," and (2) "show the
information is likely to advance that interest." Boyd v. Criminal Division of United States Dep’t
of Justice, 475 F.3d 381, 366, (D.C. Cir. 2007) (citing Favish, 541 U.S. at 172). It is the “interest
of the general public, and not that of the private litigant” that the Court considers in this analysis.
Ditlow v. Schultz, 517 F.2d 166, 171-72 (D.C. Cir. 1975).
Finally, only where the requester can produce meaningful evidence – "more than a bare
suspicion" – which would cause a reasonable person to believe that the government had engaged in
impropriety should the Court even consider balancing the privacy interests against the public interest
in disclosure. Favish, 124 S. Ct. at 1581. Plaintiff here cannot allege any such impropriety.
Exemption 7(C) has been held to protect the identity of a number of categories of individuals
identified in law enforcement records. First, the names of law enforcement officers (and support
staff) who work on criminal investigations have traditionally been protected against release by

24

Exemption 7(C). Davis v. U.S. Dept. of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992); Lesar v.
United States Dep’t of Justice, 636 F.2d 472, 487-488 (D.C. Cir. 1980); Fischer, 596 F.Supp.2d at
46-47; Ray v. FBI, 441 F. Supp. 2d 27, 34-35 (D.D.C. 2006); Truesdale v. U.S. Dept. of Justice, No.
03-1332, 2005 WL 3294004, at *6 (D.D.C. Dec. 5, 2005). Releasing their identities and information
pertaining to these individuals would place each of these persons in such a position that they may
suffer undue invasions of privacy, harassment and humiliation from disclosure of their identities in
a law enforcement investigatory file. See Keys, 510 F.Supp.2d at 128 (“One who serves his state
or nation as a career public servant is not thereby stripped of every vestige of personal privacy, even
with respect to the discharge of his official duties. Public identification of any of these individuals
could conceivably subject them to harassment and annoyance in the conduct of their official duties
and in their private lives.”).
Second, disclosure of the identities of third-party individuals who were of investigative
interest to law enforcement because of their criminal activities is also protected. Not only could
these third parties face reputational harm if their identities were disclosed, but they could also face
acts of reprisal. Russell v. FBI, No. 03-0611, 2004 WL 5574164, at *6 (D.D.C. Jan. 9, 2004);
Blanton v. Dep’t of Justice, 63 F.Supp.2d 35, 46 (D.D.C. 1999). Moreover, the “[d]isclosure of [the
third parties’] identities would not shed light on the FBI’s performance o[f] its statutory duties to
enforce the law.” Russell, 2004 WL 5574164, at *6.
Third, “[t]he names and identities of individuals of investigatory interest to law enforcement
agencies and those merely mentioned in law enforcement files have been consistently protected from
disclosure.” See Russell, 2004 WL 5574164 at *5; Coleman v. FBI, 13 F.Supp.2d. 75, 80 (D.D.C.
1998) (“The categorical withholding of any law enforcement records that identify third parties has

25

been repeatedly upheld”) (citations omitted).
Fourth, individuals who provide information to law enforcement authorities, like the law
enforcement personnel themselves, have protectable privacy interests in their anonymity. Computer
Professionals for Social Responsibility v. U.S. Secret Serv., 72 F.3d 897, 904 (D.C. Cir. 1996);
Nation Magazine, 71 F.3d at 893; Lesar, 636 F.2d at 487-88; Fischer, 596 F.Supp.2d at 47-48;
Farese v. United States Dep’t of Justice, 683 F. Supp. 273, 275 (D.D.C. 1987). Accordingly, the
privacy interests of third parties mentioned in law enforcement files are “substantial,” while “[t]he
public interest in disclosure [of third-party identities] is not just less substantial, it is insubstantial.”
SafeCard Services, 926 F.2d at 1205; Ray, 441 F.Supp.2d at 35 (“Exemption 7(C) recognizes that
the stigma of being associated with a law enforcement investigation affords broad privacy rights to
those who are connected in any way with such an investigation . . . .”). Our court of appeals has
held “categorically” that “unless access to names and addresses of private individuals appearing in
files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling
evidence that the agency is engaged in illegal activity, such information is exempt from disclosure.”
SafeCard Services, 926 F.2d at 1206.
6.

DOJ CRM Properly Asserted Exemption 5 in Conjunction
with Exemptions 6/7(C) (and other Exemptions).
a.

DOJ CRM Documents 5-9.

Documents 5, 6, 7, 8, and 9 in DOJ CRM’s Vaughn index are similar to Document 1, namely
slides of various iterations of PowerPoint presentations, utilized by OEO or CCIPS attorneys, in
discussing legal issues and strategies pertaining, in part, to obtaining location information for
wireless devices in the course of criminal law enforcement investigations. Cunningham Decl., ¶ 20.
DOJ CRM relied on Exemptions 5 and 7(E) in withholding this information for the reasons
26

described for Document 1. Id. In addition, as noted in the Vaughn index, some of the copies of
these slides, Documents 8 and 9, include handwritten notes of the presenters. These notes were
made by the presenters to assist them in leading the discussions with the other Department of Justice
attorneys regarding legal issues and their possible impact on the selection of future investigative
strategies. Thus, the notes are also being withheld under Exemptions 5 and 7(E).
Finally, some of the slides in Documents 5-9 contain the names and other identifying
information regarding the presenter(s). Cunningham Decl., ¶ 21. DOJ CRM relied on Exemptions
6 and 7(C) in withholding that information.12 Id. Exemption 7(C), as stated, permits the withholding
of information compiled for law enforcement purposes where disclosure could reasonably be
expected to constitute an unwarranted invasion of personal privacy. 5 U.S.C. § 552(b)(7)(C). Here,
the information was compiled for law enforcement purposes. Cunningham Decl., ¶ 23. DOJ CRM’s
OEO and CCIPS advise Federal law enforcement, including Assistant United States Attorneys,
regarding various electronic surveillance issues, both legal and strategic. Id. The records located
in response to Plaintiff’s request were compiled in relation to OEO and CCIPS’s fulfillment of that
role. Id.
Because the names of supervisor’s and their contact information are readily available to the
public, DOJ CRM has disclosed that information, where it was contained in these documents, to
Plaintiff. Cunningham Decl., ¶ 25. However, the OEO and CCIPS employees, whose names and
e-mail addresses were withheld, have recognized privacy interests in references to them contained

12

Exemption 6, as stated, permits the withholding of personnel, medical, or other similar files
where disclosure would constitute a clearly unwarranted invasion of personal privacy. 5 U.S.C.
§ 552(b)(6). The term “similar files” in Exemption 6 is generally read broadly to encompass any
file containing information that applies to a particular person. Cunningham Decl., ¶ 21. Here,
the information withheld – names and an e-mail address – plainly applies to particular people. Id.
27

in law enforcement files. Id. Public identification of the line attorneys could subject them to
harassment and annoyance in the performance of their jobs, as well as their private lives.

Id.

Conversely, disclosure of these individuals’ names and an e-mail address would not contribute
significantly to the public’s understanding of Government activities or operations. Id.
b.

DOJ CRM Document 10.

Document 10 in DOJ CRM’s Vaughn index is an email discussion regarding a request for
assistance and guidance from an AUSA regarding a search warrant. Cunningham Decl., ¶ 26. DOJ
CRM withheld this document under FOIA Exemptions 5, 6, 7(C) and 7(E). Id. Disclosure of even
general guidance would reveal investigative techniques and considerations that could assist
criminals in developing their own techniques for evading detection and Exemptions 5 and 7(E) were
properly asserted to protect this information. Id. DOJ CRM also withheld the names and email
address of the attorneys involved in the investigation and in providing the advice under Exemptions
6 & 7(C). Id. As noted supra, public identification of the attorneys could subject them to
harassment and annoyance in the performance of their jobs, as well as their private lives. Id.
Conversely, disclosure of these individuals’ names and an e-mail address would not contribute
significantly to the public’s understanding of Government activities or operations. Id.
c.

DOJ CRM Document 14 (USMS Referral).

Document 14 in DOJ CRM’s Vaughn Index is an email from a USMS employee seeking
assistance and guidance from AUSAs and attorneys with CCIPS about electronic surveillance issues
he encountered in conducting a narcotics investigation. Cunningham Decl., ¶ 28. CRM withheld
this document under FOIA Exemptions 5, 6, 7(C) and 7(E). As noted previously supra, disclosure
of even general guidance might reveal investigative techniques and considerations that could assist

28

criminals in developing their own techniques for evading detection. Id. For the same reasons, DOJ
CRM also properly withheld the names and email address of the attorneys involved in the
investigation and from those whom advice was sought. Id.
D.

EOUSA Properly Asserted Exemptions 3 and 5 in Conjunction with Other
Exemptions to Withhold EOUSA Documents 2-4 in Their Entirety.
1.

Exemption 3 (EOUSA Documents 2 and 3).

FOIA Exemption 3 covers matters that are “specifically exempted by statute ... provided that
such statute either (A) [requires withholding] in such a manner as to leave no discretion on the issue,
or (B) establishes particular criteria for withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552(b)(3). EOUSA applied this exemption in conjunction with more than one
such statute as more fully discussed below and referenced in the attached Index. Boseker Decl., ¶
12.
a.

Rule 6(e)

EOUSA relies on Federal Rule of Criminal Procedure 6(e), which requires secrecy for grand
jury proceedings. Bosker Decl., ¶ 13. Rule 6(e) qualifies as a statute for purposes of FOIA
Exemption 3 because it was affirmatively enacted by Congress. See North v. U.S. Dept’ of Justice,
No. 08-1439, 2009 WL 3113243 at *9 (D.D.C. September 30, 2009) (citing Fund for Constitutional
Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 867-68 (D.C.Cir.1981). Rule 6(e) bars
disclosure of information that would “tend to reveal some secret aspect of the grand jury's
investigation such ... as the identities of witnesses or jurors, the substance of testimony, the strategy
or direction of the investigation, the deliberations or questions of jurors, and the like.” Senate of the
Commonwealth of P.R. ex rel. Judiciary Comm. v. U.S. Dep't of Justice, 823 F.2d 574, 582
(D.C.Cir.1987) (internal quotation marks omitted). Disclosure of a grand jury subpoena would
29

reveal some secret aspect of the grand jury's investigation. See Kishore v. Department of Justice, 575
F.Supp.2d 243, 255 (D.D.C. 2008) (finding that grand jury subpoenas may not be disclosed under
Rule 6(e)).
EOUSA applied this exemption to one record within EOUSA Document 2 in its Vaughn
Index. Boseker Decl.¶ 13. The specific record was a Memorandum specifically identified by a
grand jury number. Id. Thus, EOUSA properly withheld grand jury material contained in the
referral records. Such material is encompassed by the FOIA Exemption 3 based on Rule 6(e)
because its disclosure would reveal secret information about the scope of the grand jury's
investigation. Nor is there a time limit on Rule 6(e), and courts in this district have routinely upheld
the application of Exemption 3 to grand jury proceedings that expired long ago. See, e.g., Covington
v. McLeod, No. 08-1220, 2009 WL 2525933, at *1-2 (D.D.C. Aug.19, 2009) (involving records
from grand jury proceedings that led to a trial in 1996).
b.

Pen Register and Sealed Records under Pen Register Statute.

EOUSA also applied this exemption in conjunction with 18 U.S.C. § 3123(d)(2), which
states, in pertinent part:
(d)
An order authorizing or approving the installation and use of a pen register
or a trap device shall direct that
(1)

the order be sealed until otherwise ordered by the court; and

(2)

the person owning or leasing the line or other facility to which the pen
register or trap and trace device is attached, or applied, or who is obligated
by the order to provide assistance to the applicant, not disclose the existence
of the pen register or trap and trace device or the existence of the pen register
or trap and trace device or the existence of the investigation to the listed
subscriber or to any other person, unless or until otherwise ordered by the
court.

30

Id. This statute supported application of the exemption in records in Documents 2 and 3, with the
exception of the grand jury record in Document 2. Boseker Decl., ¶¶ 14.
Courts have recognized the Pen Register Statute as one that falls within the ambit of
Exemption 3. See Jennings v. FBI, No 03-1651, slip op. at 11-12 (D.D.C. May 6, 2004); Riley v.
FBI, No. 00-2378, 2002 U.S. Dist. LEXIS 2632, at *5-6 (D.D.C. Feb. 11, 2002); Manna v. DOJ, 815
F. Supp. 798, 812 (D.N.J. 1993), aff'd on other grounds, 51 F.3d 1158 (3d Cir. 1995). Here, with
the exception of the grand jury record in EOUSA Document 2, all other records within that
document are subject to this statutory exemption and were also specifically identified as having been
filed ex parte and/or under seal in their respective district courts. Boseker Decl., ¶ 15. Under the
FOIA, an agency has no discretion to release any record covered by an injunction, protective order,
or court seal which prohibits disclosure. See Robert Tyrone Morgan v. U.S. Department of Justice,
923 F.2d 195 (D.C. Cir. 1991); GTE Sylvania, Inc. v. Consumers Union, 445 U.S.375, 386-387
(1980). EOUSA, while provided with these records, all of which are those concerning third party
individuals, has no information contradicting the ex parte/under seal/grand jury status in which these
records were received. Boseker Decl., ¶ 16.
2.

Exemption 7(C) (EOUSA Documents 2 and 4).

Exemption 7(C), as stated, protects the release of records or information compiled for law
enforcement purposes if such release could reasonably be expected to constitute an unwarranted
invasion of personal privacy. EOUSA has determined that Documents 2 and 4 contain information
to which this exemption applies, was compiled for law enforcement purposes concerning the
prosecution of criminal defendants (unnamed herein), as well as the names of federal attorneys and
agents, involved in the legal analyses contained within the documents identified in the attached

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Index. Boseker Decl., ¶ 21.
EOUSA also applied this exemption to withhold the identities of and personal information
about third party individuals, the release of which could subject such persons to an unwarranted
invasion of their personal privacy. Id., ¶ 22. Release of the identifying information could result in
unwanted and even unlawful efforts to gain further access to such persons or to personal information
about them. Id. It could also lead to harassment, harm, or exposure to unwanted and/or derogatory
publicity and inferences arising from their connection to the case. Id. In short, disclosure would be
detrimental to the persons protected.
EOUSA also applied this exemption to withhold the identities of individuals such as special
federal agents, other government employees, and local law enforcement personnel all of whom
participated in the investigation and prosecution of this case. Id., ¶ 23. Individual duties and
assignments are not public and the publicity that would likely arise from disclosure would seriously
impede, if not totally jeopardize, law enforcement effectiveness in subsequent cases, even subjecting
these individuals to harassment or other harm. Id. These persons have protected privacy interests
in the conduct of law enforcement investigations and legal analyses. Id.
Finally, there is no other basis for EOUSA to disclose this information. Id., ¶ 24. No
authorization or consents to release otherwise privacy protected materials regarding any of the third
party individuals, to whom this exemption was applied, was provided by Plaintiff. Id. EOUSA
asserts in this regard, that to the extent that the scope of Plaintiff’’s request (Documents 2-4) is
concerned with policies and practices, there has been no request made for the records of any third
party individual, and to that extent, where applied, these same records are arguably not responsive
to the request. Id., ¶ 25.

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3.

Exemption 5 (EOUSA Documents 3 and 4).

Exemption 5, as stated, protects disclosure of privileged documents, which are not ordinarily
available to a party in litigation. Principally, there are three such privileged documents or
communications protected by this exemption: attorney work product, deliberative process, and
attorney-client. EOUSA properly asserted this exemption to protect information pursuant to the
attorney work product and deliberative process privileges as to EOUSA Documents 3 and 4.
Boseker Decl., ¶ 18.
The records or portions of records to which the attorney work product privilege was applied
reflect such matters as trial preparation, trial strategy, interpretations, and personal evaluations and
opinions pertinent to actual and prospective criminal cases. Id., ¶ 19. The records were prepared
by or at the request or direction of an attorney, and made in anticipation of, during, or derivative of
litigation. Id. The substance of the records withheld in part or in their entirety are exempt from
disclosure pursuant to this privilege. Id.
In addition, these same records, in certain instances, contain deliberative process of
Assistant United States Attorneys and Criminal Division attorneys, and other federal agencies or
components, in their consideration of possible uses of investigatory techniques in criminal actions
against actual or prospective criminal defendants. Id., ¶ 20. To disclose this information would
reveal pre-decisional communications among government personnel such as discussions of various
litigation issues, alternatives, and strategies. Id. Disclosure would jeopardize the candid and
comprehensive considerations essential for efficient and effective agency decision-making. Id. The
attorney work product and deliberative process are so interwoven as to make it all, in essence,
attorney work product. Id.

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4.

Exemption 7(E) (EOUSA Documents 3 and 4).

Exemption 7(E), as stated, permits withholding of records or information compiled for law
enforcement purposes, but only to the extent that the production of such records or information
would disclose techniques and procedures for law enforcement investigations or prosecutions, or
disclose guidelines for law enforcement investigations or prosecutions, if such disclosure could
reasonably be expected to risk circumvention of the law.
EOUSA properly applied this exemption to protect this type of information in Documents
3 and 4 in the attached index. Boseker Decl., ¶ 27. If such procedures were to be released, it would
hamper the efforts of the government to carry out its responsibilities and make it easier for those so
inclined to violate the law without the same likelihood of being held accountable for their actions.
Id. This is particularly true with respect to any future efforts for apprehending the same types of
crimes. Id.
III.

ALL REASONABLY SEGREGABLE MATERIAL HAS BEEN RELEASED TO
PLAINTIFF.
The FOIA requires that if a record contains information that is exempt from disclosure, any

“reasonably segregable” information must be disclosed after deletion of the exempt information
unless the non-exempt portions are “inextricably intertwined with exempt portions.” 5 U.S.C. §
552(b); Mead Data, 566 F.2d at 260; Fischer, 596 F.Supp.2d at 44. The Court of Appeals for the
District of Columbia Circuit has held that a District Court considering a FOIA action has “an
affirmative duty to consider the segregability issue sua sponte.” Trans-Pacific Policing Agreement
v. United States Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).
In order to demonstrate that all reasonably segregable material has been released, the agency
must provide a “detailed justification” rather than “conclusory statements.” Mead Data, 566 F.2d
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at 261. The agency is not, however, required “to provide such a detailed justification” that the
exempt material would effectively be disclosed. Id. All that is required is that the government
show “with ‘reasonable specificity’” why a document cannot be further segregated. Armstrong v.
Executive Office of the President, 97 F.3d 575, 578-79 (D.C. Cir. 1996). Moreover, the agency is
not required to “commit significant time and resources to the separation of disjointed words, phrases,
or even sentences which taken separately or together have minimal or no information content.”
Mead Data, 566 F.2d at 261, n.55.
DOJ CRM and EOUSA have processed and released all segregable information from the
responsive documents pursuant to Exemptions 3, 5, 6, 7(C), and 7(E). More specifically, DOJ CRM
carefully examined the approximately 186 pages of responsive documents originated from DOJ
CRM and the one-page email originated by the USMS. Similarly, EOUSA carefully examined
approximately 418 pages of referred records. As Mr. Cunningham stated in paragraph 29 of his
declaration:
29.
All reasonably segregable, non-exempt information in which CRM possesses
primary equity has been provided to Plaintiff or he has been made aware of the
website where they can be accessed. Whenever possible, CRM released responsive
documents in part, redacting only that information determined to be exempt (i.e.,
personal or privileged).13 CRM did so after carefully considering and reviewing each
document to determine whether any non-exempt portions could be redacted and
released to Plaintiff. As to the records CRM withheld in full, these records largely
were either internal lecturing materials or draft/working versions of documents that
were wholly deliberative. CRM concluded that these records did not contain any

13

Even before Plaintiff’s request, CRM had decided to make some of the material publicly
available. Thus there are two manuals, one only available to DOJ law enforcement personnel,
and the second, a carefully redacted version, available to the public on-line, that provides
pertinent information without releasing other material whose disclosure would be harmful to law
enforcement. To the extent that there are generic forms that could be released without disclosing
personal information or developing investigative strategies, they were included in the public
manual. [footnote in original as n.6]
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non-exempt, non-deliberative material that could be released to Plaintiff or, to the
extent any non-exempt information existed, that such information, once segregated,
would be nothing more than random words and phrases lacking any meaning, which
agencies are not obligated to segregate and disclose.
Cunningham Decl., ¶ 29. Similarly, Mr. Boseker stated in his declaration:
28.
Each document was evaluated to determine if any information could be
segregated and released. The documents withheld in their entirety contained no
meaningful portions that could be released without destroying the integrity of the
document, breaching a privilege, exposing critical investigatory techniques,
without identifying a third party individual, or violating a court order sealing the
third party records or Federal Rule of Criminal Procedure.
Bosker Decl., ¶ 28.
Thus, the two components have released all reasonably segregable, nonexempt information
to Plaintiff in response to his FOIA requests to DOJ CRM. Given the nature of the withholdings, it
is clear that the DOJ CRM and EOUSA have properly analyzed these documents and determined
that no additional non-exempt material can be segregated and released. See Cunningham Decl., ¶
29; Boseker Decl., ¶¶ 28-29.
CONCLUSION
For the foregoing reasons, Defendant requests entry of summary judgment in its favor as
to the remaining part of this case.

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Respectfully submitted,
RONALD C. MACHEN JR, DC Bar # 447889
United States Attorney for the District of Columbia
RUDOLPH CONTRERAS, DC Bar # 434122
Chief, Civil Division
By:

/s/
JOHN G. INTERRANTE
PA Bar # 61373
Assistant United States Attorney
Civil Division
555 4th Street, NW, Room E-4808
Washington, DC 20530
Tel:
202.514.7220
Fax: [phone]
Email: [e-mail]

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