SOGHOIAN v. DEPARTMENT OF JUSTICE

Filing 17

Cross MOTION for Summary Judgment and for Oral Hearing by CHRISTOPHER SOGHOIAN (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(SOGHOIAN, CHRISTOPHER). Added MOTION for Hearing on 4/10/2012 (jf, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
CHRISTOPHER SOGHOIAN
)
)
Plaintiff,
)
v.
)
No. 11-1080 (ABJ)
)
DEPARTMENT OF JUSTICE
)
ECF
)
Defendant.
)
)
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND IN SUPPORT OF PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT
Plaintiff Christopher Soghoian opposes Defendant Department of Justice’s
(“DOJ”) February 6, 2012 Motion for Summary Judgment, and cross-moves for summary
judgment in favor of Plaintiff. Specifically Plaintiff challenges the Defendant’s
withholdings under Exemptions b(5) and (b)(7)(E) and asserts that the Defendant has
failed to segregate non-exempt material.

STATEMENT OF FACTS
I.

The role played by private companies in facilitating much modern
electronic surveillance

In her concurring opinion recently in U.S. v. Jones, Justice Sotomayor stated, “I
would ask whether people reasonably expect that their movements will be recorded and
aggregated in a manner that enables the Government to ascertain, more or less at will, their
political and religious beliefs, sexual habits, and so on.” 132 S. Ct. 956

1

Although the surveillance method considered by the Supreme Court in Jones
involved a GPS tracking device placed under a car by government agents, most modern
surveillance does not involve such labor intensive methods. Instead, much (if not the vast
majority of) modern surveillance is performed with the assistance of the telecommunications
and Internet companies to whom consumers entrust their private data. See Senate Select
Committee on Intelligence, Report on FISA Amendments Act, October 26, 2007
(available at http://www.gpo.gov/fdsys/pkg/CRPT-110srpt209/pdf/CRPT-110srpt209.pdf at
9) (“[E]lectronic surveillance for law enforcement and intelligence purposes depends in
great part on the cooperation of the private companies that operate the Nation’s
telecommunication system”).
Surveillance assisted by telecommunications carriers does not require that agents
go out into the field and track a target. Instead, the police can now spy on Americans
from the comfort of their desks, See United States v. Pineda-Moreno 617 F.3d 1124 (9th
Cir. 2010) (Kozinski, J., dissenting), using interactive interfaces and surveillance tools
provided by telecommunications carriers that cost as little as $30, per person under
surveillance, per month. See Christopher Soghoian, ACLU docs reveal real-time cell
phone location spying is easy and cheap, Slight Paranoia Blog, April 03, 2012 (available
at http://paranoia.dubfire.net/2012/04/aclu-docs-reveal-real-time-cell-phone.html)
(highlighting particular sections in documents recently obtained by the American Civil
Liberties Union through FOIA requests, showing the capabilities and prices charged by
Sprint, AT&T and T-Mobile for prospective, real-time GPS tracking of their subscribers).
The cheap and easy surveillance assistance provided by wireless carriers and
Internet companies “poses a threat to privacy by enabling an extent of surveillance that in
earlier times would have been prohibitively expensive.” See US v. Garcia 474 F. 3d 994
(7th Cir. 2007). Collectively, government agencies now likely make hundreds of
thousands of surveillance requests to telecommunications companies per year. See Letter
from Randal S. Milch, Sr. Vice Pres., Verizon Bus., to John D. Dingell, Edward J.
2

Markey & Bart Stupak, U.S. Reps (Oct. 12, 2007), (available at
http://markey.house.gov/docs/telecomm/Verizon_wiretaping_response_101207.pdf)
(revealing that the company received approximately 90,000 requests from the
government for user data each year).
Based on aggregate surveillance data voluntarily disclosed by a few companies,
requests for stored communications and geo-location data vastly outnumber wiretaps and
other traditional forms of communications surveillance that are documented in official
government reports. As a result, the true scale of modern electronic surveillance remains
hidden from the general public, Congress and the courts. See generally Christopher
Soghoian, The Law Enforcement Surveillance Reporting Gap, unpublished manuscript,
April 10, 2011 (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1806628)
(noting that most surveillance occurs “off the books” because Congressional reporting
requirements only apply to wiretaps and pen registers, and not requests for stored
communications).
Likewise, the public has little insight into the legal standards followed by the
government when it engages in such carrier assisted surveillance. See generally Kevin
Bankston, Only The DOJ Knows: The Secret Law of Electronic Surveillance, University
of San Francisco Law Review, Vol. 41, p. 589, 2007 (describing three areas in which
federal prosecutors secretly and routinely obtain court authorization for surveillance
methods that Congress did not intend). This lack of available information regarding the
government’s legal surveillance authorities is made only worse by the growing trend of
judicial secrecy regarding electronic surveillance orders which are kept secret
perpetually, “entirely off the radar screen, not only for the public at large, but also for
appellate courts.” See Stephen Smith, Kudzu in the Courthouse: Judgments Made in the
Shade. The Federal Courts Law Review. 3:2 at 211.

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II.

Plaintiff’s FOIA request for documents related to certain surveillance
practices

In order to shed additional light on both the legal standards used by the
government to compel the surveillance assistance of telecommunications companies, in
April 2010 Plaintiff sent a FOIA request to the Department of Justice seeking copies of
documents relating to certain surveillance practices. Although DOJ eventually located
over 600 pages of material, all were withheld in full, pursuant to FOIA exemptions
(b)(2),(3), (5), (6),(7)(C), (7)(E), § 552a (j)(2), 18 U.S.C. § 2705 (b), § 3123(d) and §
3103(b). After DOJ failed to comply with the statutory deadline to reply to Plaintiff’s
appeals, Plaintiff filed suit on June 13, 2011.

STANDARD OF REVIEW
The Freedom of Information Act is intended to safeguard the American public’s
right to know “what their Government is up to.” DOJ v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 773 (1989). The central purpose of the statute is “to ensure an
informed citizenry, vital to the functioning of a democratic society, needed to check
against corruption and to hold the governors accountable to the governed.” NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). “[D]isclosure, not secrecy, is the
dominant objective of the [FOIA].” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
The Supreme Court has stated that “[o]fficial information that sheds light on an agency’s
performance of its statutory duties falls squarely within [the] statutory purpose.”
Reporters Comm., 489 U.S. at 773.
Unless “the requested material falls within one of . . . nine statutory exemptions,
the FOIA requires that records and material in the possession of federal agencies be made

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available on demand to any member of the general public.” Robbins Tire, 437 U.S. at
221; Nat’l Wildlife Fed’n v. U.S. Forest Service, 861 F.2d 1114, 1116 (9th Cir. 1988).
The exemptions “have been consistently given a narrow compass,” and agency records
that “do not fall within one of the exemptions are improperly withheld[.]” DOJ v. Tax
Analysts, 492 U.S. 136, 151 (1989) (internal quotation marks omitted). Further, agencies
cannot use the FOIA’s exemptions to withhold agency “secret law,” which runs counter
to the FOIA’s purpose. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975).
FOIA disputes involving the propriety of agency withholdings are commonly
resolved on summary judgment. Nat’l Wildlife Fed’n, 861 F.2d at 1114. Summary
judgment is proper when no genuine and disputed issues of material fact remain and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Feshbach
v. SEC, 5 F. Supp. 2d 774, 779 (N.D. Cal. 1997) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986)). A moving party who bears the burden of proof on an issue at
trial “must affirmatively demonstrate that no reasonable trier of fact could find other than
for the moving party.” Id. “In contrast, a moving party who will not have the burden of
proof on an issue at trial can prevail merely by pointing out that there is an absence of
evidence to support the nonmoving party’s case.” Id.
A court reviews the government’s withholding of agency records de novo, and the
government bears the burden of proving that a particular document falls within one of the
nine narrow exemptions to the FOIA’s broad presumption of disclosure. 5 U.S.C. §
552(a)(4)(B); Reporters Comm., 489 U.S. at 755. An agency must prove that “each
document that falls within the class requested either has been produced, is unidentifiable,
or is wholly exempt from the Act's inspection requirements.” Goland v. CIA, 607 F.2d

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339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted). When claiming one of
the FOIA’s exemptions, the agency bears the burden of providing a “‘relatively detailed
justification’ for assertion of an exemption, and must demonstrate to a reviewing court
that records are clearly exempt.” Birch v. U.S. Postal Service, 803 F.2d 1206, 1209 (D.C.
Cir. 1986) (citing Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 251
(D.C. Cir. 1977)). An agency may submit affidavits to satisfy its burden, but “the
government may not rely upon conclusory and generalized allegations of exemptions.”
Kamman v. IRS, 56 F.3d 46, 48 (9th Cir. 1995) (quoting Church of Scientology v. Dep't of
Army, 611 F.2d 738, 742 (9th Cir. 1980) (internal quotation marks omitted)). All doubts
as to whether a FOIA exemption applies are resolved in favor of disclosure. Bloomberg,
L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143, 147 (2d Cir. 2010).

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ARGUMENT
As described in detail below, Defendant has failed to release all non-exempt
materials in response to Plaintiff’s FOIA requests. Specifically, it has improperly asserted
FOIA Exemptions 5 and 7(E), and further, has failed to segregate non-exempt material.
As a result, the Court should deny the Plaintiff’s motion for summary judgment, grant
Plaintiff’s cross motion for summary judgment, and order the Defendant to release all
improperly withheld material.1
I.

The Defendant has Wrongly Withheld Records Under Exemption 5

The Defendant has not met its burden to withhold records under Exemption 5
because it has failed to show that the attorney-client, deliberative process, or work
product privileges apply to the withheld documents.2 In addition, the Defendant
improperly uses the exemption to shield agency “working law” from the public.
Exemption 5 provides a narrow exception for “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 to protect records that fall “within the ambit of a privilege
against discovery under judicial standards that would govern litigation against the agency
that holds it.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
(2001); see also Carter v. Dep’t of Commerce, 307 F.3d 1084, 1088 (9th Cir. 2002). For
each claim, the government has failed to show the records withheld fit into one of the

1

Plaintiff has listed the improperly withheld records he is challenging below in the
beginning footnotes under the relevant section that addresses each improperly asserted
exemption.
2
Plaintiff challenges the following documents improperly withheld under Exemption 5:
DOJ Criminal Division (CRM) Vaughn items 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14;
Executive Office for United States Attorneys (EOUSA) Vaughn items 3 and 4.
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narrow privileges available under Exemption 5; therefore, Defendant has not met its
burden and the records must be disclosed.
a. Defendant Has Improperly Withheld Records
Under the Deliberative Process Privilege
Defendant has claimed Exemption 5’s deliberative process privilege to withhold
hundreds of pages of responsive records in their entirety. However, as many of the
records are final opinions or contain purely factual information, these records must be
released.
The deliberative process privilege protects records that reflect the “opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
150 (1975) (internal citations omitted). An agency record may be withheld pursuant to
this narrow privilege only if it is “both (1) ‘predecisional’ or ‘antecedent to the adoption
of agency policy’ and (2) ‘deliberative,’ meaning ‘it must actually be related to the
process by which policies are formulated.’” Nat’l Wildlife Fed’n, 861 F.2d at 1117
(quoting Jordan v. DOJ, 591 F.2d 753, 774 (D.C. Cir. 1978)); see also Maricopa
Audubon Soc’y v. U.S. Forest Serv., 108 F.3d 1089, 1093 (9th Cir. 1997).
To support a deliberative process claim, an agency must “establish[] the character
of the decision, the deliberative process involved, and the role played by the documents
in the course of that process.” United States v. Rozet, 183 F.R.D. 662, 666 (N.D. Cal.
1998) (citing Strang v. Collyer, 710 F. Supp. 9, 11 (D.D.C. 1989), aff’d, 899 F.2d 1268
(D.C. Cir. 1990) (internal quotation marks omitted)). An agency must also “identify a
specific decision to which the document is predecisional.” Maricopa Audubon Soc’y, 108
F.3d at 1094 (emphasis added). As detailed below, Defendant has failed to meet its
burden to withhold documents under the deliberative process privilege.

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b. Defendant Has Improperly Withheld Records
Reflecting Final Agency Positions or Opinions
For an agency record to be withheld under the deliberative process privilege, the
agency must identify “a specific decision to which the document is predecisional.”
Maricopa Audubon Soc’y, 108 F.3d at 1094. Even if a document is predecisional at the
time it is prepared, the document can “lose that status if it is adopted, formally or
informally, as the agency position on an issue.” NRDC v. DOD, 388 F.Supp. 2d at 1098
(citing Coastal States, 617 F.2d at 866. Here, because Defendant has failed to identify a
specific decision to which many of the records at issue preceded and contributed, the
records should be treated as the final agency positions and, thus, may not be withheld
under the deliberative process privilege.
For example, CRM’s withholding of 28 pages of slides for a presentation on
“Leveraging Emerging Technologies in Prosecuting Cases: Opportunities and
Challenges” likely contain established agency positions (Cunningham Declaration at 6
(describing CRM Vaughn item 1)). This documents, and similar presentations withheld
by the Defendant serve as guidance to prosecutors “select[ing] certain investigative
techniques” to be used in the field. As such, they are improperly withheld under the
deliberative process privilege. See Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997).
c. Defendant Has Improperly Withheld Purely Factual
Information
“[M]emoranda consisting only of compiled factual material or purely factual
material contained in deliberative memoranda and severable from its context” may not be
withheld under the deliberative process privilege. EPA v. Mink, 410 U.S. 73, 88-89
(1973); see also Bay Area Lawyers Alliance for Nuclear Arms Control v. Dep’t of State,
818 F. Supp. 1291, 1297 (N.D. Cal. 1992) (same). While the rationale behind the
deliberative process privilege encourages candor in deliberative discussions, the
requirement that facts must be disclosed is intended to enhance the integrity of agency

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deliberations. See Quarles v. Dep’t of Navy, 893 F.2d 390, 392 (D.C. Cir. 1990) (noting
that “the prospect of disclosure is less likely to make an advisor omit or fudge raw
facts”).
In applying Exemption 5 to hundreds of pages of records withheld in their
entirety, it is a near-certainty that Defendant has withheld some purely factual material.
The purposes underlying the deliberative process privilege are not served by permitting
agencies to shield factual information from disclosure to the public. See Quarles, 893
F.2d at 392; see also NRDC v. DOD, 442 F. Supp. 2d 857, 877 (C.D. Cal. 2006)
(ordering defendant to disclose factual material withheld under Exemption 5).
d. Defendant Has Improperly Withheld Records
Under the Work Product Doctrine
Defendant has withheld information based on the work product doctrine. The
doctrine applies to documents with “two characteristics: (1) they must be prepared in
anticipation of litigation or for trial, and (2) they must be prepared ‘by or for another
party or by or for that other party’s representative.’” United States v. Torf (In re Grand
Jury Subpoena), 357 F.3d 900, 907 (9th Cir. 2003) (quoting In re Calif. Pub. Utils.
Comm'n, 892 F.2d 778, 780-81 (9th Cir.1989)); see also Fed. R. Civ. P. 26(b)(3). In the
FOIA context, to promote the statute’s objective of disclosure over secrecy, the work
product doctrine only applies to records that are created “because” of pending or potential
litigation. See Maine v. Dep’t of Interior, 298 F. 3d 60, 68 (1st Cir. 2002). Documents
that are “prepared in the agency’s ordinary course of business” and “not sufficiently
related to litigation may not be accorded protection.” Public Citizen, Inc. v. Dep’t. of
State, 100 F. Supp. 2d 10, 30 (D.D.C. 2000) (citing Hennessey v. United States Agency
for Int'l Dev., No. 97-1113, 1997 U.S. App. LEXIS 22975, at *17, No. 97-1113 (4th Cir.
Sept. 2, 1997)) rev’d in part on other grounds, 276 F.3d 634 (D.C. Cir. 2002). “[A]t a
minimum, an agency seeking to withhold a document . . . must identify the litigation for
which the document was created (either by name or through factual description) and

10

explain why the work-product privilege applies to all portions of the document.” Church
of Scientology Int'l v. DOJ, 30 F.3d 224, 237 (1st Cir. 1994).
Here, Defendant has failed to meet these requirements; it has failed to specifically
identify the litigation for which the slides and presentations such as CRM Vaughn 1 were
prepared and has failed to show they were prepared “because” of pending or potential
litigation and not merely in the “agency’s ordinary course of business.” Instead it merely
appears these slides were discussing the general legal strategies used to conduct
surveillance of various forms. Because Defendant has failed to show these records are
protected by the work product doctrine, they must be released.
e. The Defendant Has Improperly Withheld
Documents That Constitute the “Working Law” of
the agency
Exemption 5 does not allow agencies to withhold documents that “constitute the
‘working law’ of the agency.” Sears, 421 U.S. at 153. “Exemption 5, properly construed,
calls for disclosure of all opinions and interpretations which embody the agency’s
effective law and policy including final opinions, statements of policy and interpretations
which have been adopted by the agency, and instructions to staff that affect a member of
the public.” Id. (citing 5 U.S.C. § 552(a)(2)) (internal quotations omitted). Such
documents “are not the ideas and theories which go into the making of the law, they are
the law itself, and as such should be made available to the public.” Niemeier v. Watergate
Spec. Prosecution Force, 565 F.2d 967, 974 (7th Cir. 1977).
Defendant asserts Exemption 5’s attorney-client privilege to impermissibly shield
agency policy and working law. The privilege protects confidential communications by a
specific client to a specific attorney to obtain legal advice for a specific set of
circumstances, Fischer v. U.S., 425 U.S. 391, 403 (1976), and opinions from the attorney
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to the client based on those specific facts. Feshbach, 5 F. Supp. 2d at 784 (N.D. Cal.
1997) (citing Brinton v. Dep’t of State, 636 F.2d 600, 603 (D.C. Cir. 1980)). However,
the privilege is narrowly construed, protecting “only those disclosures necessary to obtain
informed legal advice which might not have been made absent the privilege.” Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (citing Fischer,
425 U.S. at 403).
The information Defendant has withheld reflect recitations of established agency
policy dictated by the Office of Enforcement Operations within the Department of
Justice, which “review[s] all applications seeking to use electronic surveillance in federal
criminal investigations” in order to ensure that each application “meets all of the statutory
and policy requirements.” See Doc 15-1, pages 2-3. The withheld material, including a
chapter from the OEO Manual titled “Obtaining Location Information from Wireless
Carriers” (CRM Vaughn 2) sounds like the “neutral, objective analysis” of existing
policy, similar to that released in Coastal States. Because these documents do not contain
legal advice, they are outside the scope of the attorney-client privilege and must be
disclosed.
Moreover, because some of the documents contain guidelines for how the agency
must interact with Internet service providers and telecommunications carriers, rather than
reflecting an attorney’s confidential opinions, they are “working law” that cannot be
withheld under Exemption 5. In Tax Analysts v. IRS, the court ordered the release of legal
memoranda because their primary purpose was to create “a body of private law, applied
routinely as the government’s legal position in its dealings with taxpayers” and to ensure

12

that agency staff applied regulations correctly and uniformly. 117 F.3d 607, 608-19 (D.C.
Cir. 1997).
Because the withheld documents do not reflect attorney-client confidences, and in
some instances even act as guidelines governing how the government interacts with the
public, the attorney-client privilege does not apply.
II.

Defendant has Wrongly Withheld Records Under Exemption 7(E)3

Defendant has claimed Exemption 7(E) on almost every page of records in this
case. Exemption 7(E) allows an agency to withhold documents “compiled for law
enforcement purposes” that “would disclose techniques and procedures for law
enforcement investigations or prosecutions” only if the agency demonstrates a reasonable
risk that criminals will use the information to circumvent detection, apprehension or
prosecution. 5 U.S.C. § 552(b)(7)(E); Gordon v. FBI, 388 F. Supp. 2d 1028, 1035-36
(N.D. Cal. 2005). Furthermore, Exemption 7(E) “only exempts investigative techniques
not generally known to the public.” Rosenfeld v. DOJ, 57 F.3d 803, 815 (9th Cir. 1995).
Defendant has failed to show that disclosing records withheld under Exemption 7(E)
would lead to circumvention or that the records describe techniques not generally known
to the public. As such, these records must be released.
a. Defendant’s Boilerplate Vaughn Submission Fails to Show
That Releasing Records Would Allow Criminals to
Circumvent Detection, Apprehension or Prosecution
For each of the categories of records Defendant withheld under Exemption 7(E),
Defendant has asserted only broad, speculative, and unsupported claims that disclosure
would risk circumvention of the law or that they should otherwise be withheld.

3

Plaintiff challenges the following documents improperly withheld under Exemption
7(E): DOJ Criminal Division (CRM) Vaughn items 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14;
Executive Office for United States Attorneys (EOUSA) Vaughn items 3 and 4.
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Specifically, despite the fact that Defendant has claimed Exemption 7(E) on hundreds of
pages of responsive records, the government memos include just a few, vague statements,
each repeating the same or similar arguments regarding circumvention risk.
Courts have repeatedly rejected similar declarations that offer only “boilerplate”
explanations “drawn from a ‘master’ response filed by the [government] for many FOIA
requests.” See Wiener, 943 F.2d at 978-79 (citing similar declaration filed by FBI in
King, 830 F.2d at 224 and found by that court to be “clearly inadequate”). The paragraphs
in the Boseker and Cunningham Declarations offer “little more than a generic assertion
that disclosure” could lead to circumvention and are “insufficient to carry the
[Defendant]s burden with respect to Exemption 7(E) withholdings.” ACLU v. ODNI,
2011 U.S. Dist. LEXIS 132503 at *34-35 (rejecting FBI’s withholding under 7(E) of
“internal emails, training slides, legal opinions and interpretations of techniques,
Standard Operating Procedures, electronic communications concerning investigations,
case write-ups and miscellaneous reports” because the government offered “little more
than a generic assertion that disclosure could enable targets . . . to avoid detection or
develop countermeasures to circumvent law enforcement.” (internal quotations and
citations omitted)); see also ACLU of Wash. v. DOJ, 2011 U.S. Dist. LEXIS 53523 at *56, 29 (citing Wiener, 943 F.2d at 977). Such records must be released unless the
government presents substantial evidence that criminals are actually likely to use the
information to thwart law enforcement efforts. See Gerstein v. DOJ, No. C-03-04893,
2005 U.S. Dist. LEXIS 41276, *41 (N.D. Cal. Sept. 30, 2005) (rejecting agency’s claim
that providing information on where and with what frequency a technique is used would
“allow criminals to direct [their] efforts to a disclosed weakness and avoid a disclosed
strength in the national law enforcement system” id. at *39, 43 (internal quotations
omitted)).
Because Defendant’s claims that disclosure would risk circumvention of the law
are vague, speculative and unsupported by specific facts tied directly to the material in
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the records themselves, the Defendant has failed to meet its burden to support its
Exemption 7(E) claims.
b. Defendant Has Improperly Withheld Law Enforcement
Techniques That Are Generally Known or Routine
Defendant has failed to show that the numerous records it withheld under
Exemption 7(E) do not describe law enforcement techniques or procedures that are
routine or well-known to the public. See Rosenfeld, 57 F.3d at 815. As such these records
must be released.
Defendant cannot withhold information about techniques or procedures that
“would leap to the mind of the most simpleminded investigator.” Id. (citing Nat’l Sec.
Archive v. FBI, 759 F. Supp. 872, 885 (D.D.C. 1991)); Albuquerque Publ’g Co. v. DOJ,
726 F. Supp. 851, 857 (D.D.C. 1989). In Albuquerque Publishing, the court directed
agencies to release records “pertaining to techniques that are commonly described or
depicted in movies, popular novels, stories or magazines, or on television,” including
“eavesdropping, wiretapping, and surreptitious tape recording and photographing.” 726
F. Supp. at 858; see also Hamilton v. Weise, No. 95-1161, 1997 U.S. Dist. LEXIS 18900,
at *30-32 (M.D. Fla. Oct. 1, 1997) (generally known techniques include those discussed
in judicial opinions); Rosenfeld, 57 F.3d at 815 (details about a pretextual phone call were
not protected because the technique would “leap to the mind of the most simpleminded
investigator”). See also Warshak v. U.S., 532 F.3d 521, 524-25 (6th Cir. 2008)
(describing law enforcement technique for gaining access to suspects’ email); Dunaway,
519 F. Supp. at 1082-83 (describing law enforcement technique for gaining access to
suspects’ physical mail as “commonly known”).
Defendant has failed to even argue that the law enforcement techniques it has
withheld are not routine and that any possible limitations in their surveillance capabilities
are not well-known to the public. Because the public—including criminals—already
knows that the government can obtain cellular location information, subscriber records
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and stored emails, disclosing the documents sought in this case will not create a
circumvention risk. As such it, they must be released.
III.

Defendant Has Failed to Segregate and Release All Non-Exempt
Information

The FOIA explicitly requires that “[a]ny reasonably segregable potion of a record
shall be provided to any person requesting such record after deletion of the portions
which are exempt[.]” 5 U.S.C. § 552(b); see also Church of Scientology, 611 F.2d at 744
(“[I]t is error for a district court to simply approve the withholding of an entire document
without entering a finding on segregability, or the lack thereof.”). The duty to segregate
extends to material withheld under all of the FOIA’s nine exemptions. Id.
“District court[s] must review the agency’s ‘segregability’ decisions on a
document-by-document basis.” NRDC v. DOD, 388 F. Supp. 2d at 1096 (citing Wiener,
943 F.2d at 988). To satisfy its burden, the agency must “describe what proportion of the
information in a document is non-exempt and how that material is dispersed throughout
the document.” Mead Data Cent., 566 F.2d at 261; see also NRDC v. DOD, 388 F. Supp.
2d at 1105 (finding an agency declaration inadequate on segregability grounds when it
stated merely that “none of the withheld documents contain reasonably segregable
information that is not exempt”).
Defendant states that it has “provided all ‘reasonably segregable’ responsive
information that is not protected by an exemption.” (Doc 15 at 37.) Despite this
assurance, hundreds of pages of records at issue in this case have been withheld in their
entirety. Given the broad brush with which Defendant has painted exempt material, as
discussed within the sections addressing each exemption claim above, it is a near
certainty that Defendant has withheld more information than is otherwise justifiable. The
examples discussed above only underscore the need for this Court’s searching review of
the Defendant’s compliance with FOIA’s obligation to provide “[a]ny reasonably
segregable potion” of the records at issue in this case. See 5 U.S.C. § 552(b). Thus,

16

despite Defendant’s assertions that it has complied with FOIA’s segregability
requirement, Defendant has not satisfied its burden and is not entitled to summary
judgment.

CONCLUSION
For the foregoing reasons, the government’s motion for summary judgment
should be denied, and Plaintiff’s Cross Motion for summary judgment should be granted.
Respectfully submitted,
_________/s/______________
CHRISTOPHER SOGHOIAN
1725 Irving St NW
Washington, DC 20010
[phone]
(Pro Se)
Dated: April 10, 2012

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