SOGHOIAN v. DEPARTMENT OF JUSTICE

Filing 21

Memorandum in opposition to re 17 Cross MOTION for Summary Judgment MOTION for Hearing (same as ECF No. 20) filed by DEPARTMENT OF JUSTICE. (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 CONSOLIDATED REPLY AND OPPOSITION TO
PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT
Defendant United States Department of Justice (“the Department” or “DOJ”), by and through
undersigned counsel, respectfully replies to Plaintiff’s Memorandum of Points and Authorities in
Opposition to Defendant’s Motion for Summary Judgment (“Pl.’s Mem.”) (ECF No. 17-1) in this
action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as amended.
Defendant also responds to Plaintiff’s Cross-Motion for Summary Judgment, which was filed
contemporaneously with its Opposition. Id.
Defendant’s summary judgment motion established that the Department of Justice Criminal
Division (“DOJ CRM”) conducted a reasonable search of the two components likely to have records
responsive to Plaintiff’s FOIA request for information relating to methods used by the Department
to obtain electronic evidence in federal criminal investigations. Specifically, DOJ CRM located
potentially responsive records in the files of the Office of Enforcement Operations (“OEO”) and the
Computer Crime and Intellectual Property Section (“CCIPS”). DOJ CRM processed fourteen
documents and referred four documents to the Executive Office for United States Attorneys
(“EOUSA”) for processing under the FOIA. DOJ CRM and EOUSA processed the records and

withheld some of the documents, in whole or part, 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).
In his opposition and cross-motion for summary judgment, Plaintiff Christopher Soghoian,
who is proceeding pro se, challenges the Department’s assertion of FOIA Exemption 5, in
conjunction with Exemption 7(E), to withhold information contained in twelve DOJ CRM
Documents (Nos. 1-2, 5-14) and two EOUSA Documents (Nos. 3 and 4). See Pl.’s Mem. 7 n.2 &
13 n.3. Thus, Plaintiff does not challenge (and therefore concedes) the following issues addressed
in Defendant’s motion for summary judgment:
(1) the reasonableness of Defendant’s search for records responsive to Plaintiff’s FOIA
request;
(2) Defendant’s withholding of DOJ CRM Documents 3 and 4 (drafts);
(3) Defendant’s release of EOUSA Document 1 (CCIPS manual) in its entirety and the
withholding of EOUSA Document 2 (pen register records); and
(4) Defendant’s assertion of FOIA Exemptions 3, 6, and 7(C) to withhold portions of DOJ
CRM Documents 1-2 and 5-14, and EOUSA Documents 3-4. More specifically, Plaintiff does not
challenge Defendant’s assertion of Exemptions 6 and 7(C) to withhold portions of DOJ CRM
Documents 5-10 and 14 (a USMS-generated document) and EOUSA Document 4.1 Plaintiff also
does not challenge Defendant’s assertion of Exemption 3 to withhold EOUSA Document 3 under

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Defendant asserts Exemptions 6 and 7(C) to protect the names and identities of federal
attorneys, special federal agents and other government employees, local law enforcement
personnel, third-party individuals, and criminal defendants identified in the responsive records.
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the Pen Register Statute, 18 U.S.C. § 3123(d)(2).2 As to the fourteen contested documents, Plaintiff
claims that Defendant did not release all reasonably segregable material to Plaintiff.
Defendant establishes in its moving papers and this reply and opposition to Plaintiff’s crossmotion for summary judgment that it has properly asserted the challenged FOIA exemptions to
withhold material contained in responsive documents, and that it has disclosed all responsive, nonexempt records to Plaintiff. Summary judgment is therefore appropriate because there is no genuine
issue as to any material fact, and Defendant is entitled to judgment as a matter of law. For the same
reasons, the Court should deny Plaintiff’s cross-motion for summary judgment.
ARGUMENT
I.

DEFENDANT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
BECAUSE ALL NON-EXEMPT RESPONSIVE MATERIALS HAVE BEEN
RELEASED.
This Court has jurisdiction in a FOIA action, such as this, only when an agency has

“improperly withheld” agency records. 5 U.S.C. § 552(a)(4)(B). The Supreme Court has interpreted
this section of the statute to mean that jurisdiction only exists “upon a showing that an agency has
(1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’” Kissinger v. Reporters Committee for
Freedom of the Press, 445 U.S. 136, 150 (1980). “The plaintiff must show that the agency
‘contravened all three components of this obligation’ in order for jurisdiction to be valid.” Kuffel
v. U.S. Bureau of Prisons, 882 F. Supp. 1116, 1120 (D.D.C. 1995) (citing Kissinger, 445 U.S. at

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Defendant withheld EOUSA Document 3 in its entirety under Exemption 3 in conjunction
with other exemptions and therefore Plaintiff concedes that this document was properly
withheld, notwithstanding Plaintiff’s challenge to Defendant’s assertion of Exemptions 5 and
7(E) as alternative bases to withhold the document.
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150.). Absent such a showing, FOIA confers no “judicial authority to devise remedies and enjoin
agencies.” Kissinger, 445 U.S. at 150.
Thus, "it 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. U.S. Dep’t of Treasury, 943 F. Supp. 64, 67 (D.D.C. 1996)
(quoting Crooker v. U.S. 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). Defendant has established through the Declarations of John
Cunningham (DOJ CRM) and John Boseker (EOUSA), that it properly withheld portions of the
responsive records located in the files of DOJ CRM as part of the search conducted in response to
Plaintiff’s FOIA request. See Def.’s Mem. Of Points and Authorities in Support of Def.’s Motion
for Summary Judgment (“Def.’s Mem.”) (ECF No. 15) at 13-34. Defendant’s largely uncontested
declarations and statement of material facts not in dispute (“SFNGD”) establish that Defendant has
properly asserted FOIA Exemption 5, in conjunction with Exemption 7(E) (as well as Exemptions
3, 6 and 7(C)), to withhold some or all of the information contained in documents that are responsive
to Plaintiff’s FOIA request. Defendant has therefore met its burden and demonstrated that it has
not improperly withheld any responsive non-exempt documents.
A.

Plaintiff Has Failed to Meet His Burden of Contradicting
Defendant’s Statement of Material Facts Not In Dispute.

Summary judgment is appropriate in a FOIA case where the pleadings, together with the
declaration, demonstrate that there is no genuine issue of material fact in dispute and that the moving
party is entitled to judgment as a matter of law. See Fed. R Civ. P. 56(a); Weisberg v. U.S. Dep’t of
Justice, 627 F.2d 365, 368 (D.C. Cir. 1980); Fischer v. United States Dep’t of Justice, 596

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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).
The agency may carry its burden by relying on the declaration of a government official
because courts normally accord a presumption of expertise in FOIA as long as the declaration is
sufficiently clear and detailed and submitted in good faith. See, e.g., Oglesby v. U.S. Department of
Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Hayden v. National Security Agency, 608 F.2d 1381, 1387
(D.C. Cir. 1979). A court may therefore award summary judgment in a FOIA case solely on the
basis of information provided by the department or agency affidavits or declarations. See Hayden,
608 F.2d at 1387. Here, Defendant supported its motion for summary judgment with the
declarations of John Cunningham (DOJ CRM) and John Boseker (EOUSA). As Defendant
established in its moving papers, these declarations meet the requirements of Vaughn v. Rosen, 484
F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), and provide the Court with the
requisite bases to grant Defendant’s motion. The declarations identify and describe the documents
responsive to Plaintiff’s FOIA request, and set forth the justification for the exemptions claimed for
the withholding of certain documents (see SFNGD generally).
Summary judgment should be entered in favor of Defendant because Plaintiff has failed to
meet his burden of “contradicting the assertions”in Defendant’s Statement of Material Facts Not in
Genuine Dispute. See Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992); Fed. R. Civ. P. 56(c);
LCvR 7(h). Pursuant to this Court’s Local Rules, Defendant, unlike Plaintiff attached a statement
of material facts not in genuine dispute to its motion. See LCvR 7(h) (“Each motion for summary

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judgment shall be accompanied by a statement of material facts as to which the moving party
contends there is no genuine issue . . . .”). In accordance with Local Civil Rule 7(h), the Court “may
assume that facts identified by the moving party in its statement of material facts are admitted,
unless such a fact is controverted in the statement of genuine issues filed in opposition to the
motion.” Id. Plaintiff does not include a separate statement of disputed issues as part of his
opposition or a statement of material facts not in genuine dispute as part of his cross-motion for
summary judgment, as required by Local Rule 7(h), and the Court may treat therefore Defendant’s
asserted facts as admitted.
B.

Defendant Properly Applied FOIA Exemptions 5 and 7(E)
To Withhold Information Protected From Disclosure.

In a FOIA suit, an agency is entitled to summary judgment once it demonstrates that no
material facts are in dispute and that each document that falls within the class requested either has
been produced, is unidentifiable, or is exempt from disclosure. See Students Against Genocide v.
Dept. of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisberg, 627 F.2d at 368. Here, Defendant has
properly withheld responsive information based on the assertion of FOIA exemptions. Plaintiff, as
stated, challenges only Defendant’s assertion of FOIA Exemptions 5 and 7(E) to withhold
information contained in fourteen responsive documents and does not challenge Defendant’s
assertions of FOIA Exemptions 3, 6, and 7(C) to withhold portions of those documents. See Pl.’s
Mem. 7 n.2 & 13 n.3. Because of the similarity of the challenged withholdings, Plaintiff does not
dispute them on a document by document basis. Rather, Plaintiff discusses only DOJ CRM
Document 1 as illustrative of its challenge to Defendant’s assertion of FOIA Exemptions 5 and 7(E)

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generally.3 See Pl.’s Mem. 9, 11. Specifically, Plaintiff contends that Defendant improperly uses
Exemption 5 (deliberative process) to shield agency “working law” from the public (id. at 7),
improperly uses Exemption 5 (attorney work product) to protect documents without identifying the
litigation for which the document was created (id. at 10-11), and improperly uses Exemption 7(E)
to withhold law enforcement techniques that are generally known or routine (id. at 15). None of
these arguments are availing.
Plaintiff seeks information from DOJ CRM relating to advice provided to Departmental
attorneys and federal agents relating to the development of investigative strategies and techniques
for obtaining electronic evidence in criminal prosecutions. Defendant explained the basis for
asserting Exemption 5 (deliberative process) to withhold a portion of the slide presentation used by
a Criminal Division Supervisor in lecturing other Department of Justice attorneys regarding
“Leveraging Emerging Technologies in Prosecuting Cases: Opportunities and Challenges” as
follows:
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 the various factual scenarios and the legal basis for
choosing specific strategies. The purpose of the lectures was to discuss with
Assistant United States Attorneys issues that might arise if they selected certain
investigative techniques and how that might impact their ability to establish their
case.
Def.’s Mem. 19-20 (citations omitted). Defendant also pointed out that this information constituted
work product within the meaning of Exemption 5 because these strategies provided “tips on

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Defendant will therefore discuss the bases for its withholding of a portion of DOJ CRM
Document 1 under FOIA Exemptions 5 and 7(E) in this reply and opposition and continue to rely
on its specific justifications for the withholding of the remaining challenged documents set forth
in our moving papers.
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handling future litigation.” Id. at 20 (citing Hunt v. United States Marine Corps., 935 F.Supp. 46,
53 (D.D.C. 1996)).
Plaintiff’s reliance of Tax Analysts v. Internal Revenue Service, 117 F.3d 607 (D.C. Cir.
1997) is misplaced. See Pl.’s Mem. 9. Far from prohibiting an agency’s reliance on Exemption 5
to withhold information relating to possible investigative strategies that may be employed in current
and future criminal prosecutions, Tax Analysts rejected the assertion of Exemption 5 (deliberative
process) to the extent it allowed an agency to develop a body of “secret law” through informal
interpretations of federal law. 117 F.3d at 617. Specifically, in Tax Analysts, the Court of Appeals
determined that the Field Service Advice Memoranda (“FSAs”) issued by the Office of the Chief
Counsel of the Internal Revenue Service constituted “agency law,” even if the conclusions were not
formally binding. Id. The Court of Appeals explained that “the structure and purposes of the FSA
system reveal that the national office, in issuing these memoranda, is attempting to develop a body
of coherent, consistent interpretations of the federal tax laws nationwide.” Id.
The slide presentation and other materials withheld by DOJ CRM and EOUSA do not
comprise a body of secret law, but rather an effort by the Department of Justice to advise federal
prosecutors and agents of the various investigative techniques available to them and the legal issues
and factors to be considered in determining the suitability of these techniques in current and
prospective criminal prosecutions. This necessarily involves frank and open discussions about the
relevant legal issues and the desirability of selecting a specific technique in a particular investigation
and also requires that law enforcement personnel be afforded an opportunity to share their
experiences in particular cases in order to determine the suitability of various techniques to other
investigations. Thus, the material withheld in this case hardly constitutes the development of

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“working law,” but rather was properly withheld under Exemption 5 as part of a deliberative
process.
In addition, Defendant properly withheld the slide presentation and other materials under
Exemption 5 on the basis that the discussion of strategies in the material was endorsed in the Hunt
case as constituting work product because the strategies provide “tips on handling future litigation”
arising from current and future criminal prosecutions. 935 F.Supp. at 53. Furthermore, contrary to
Plaintiff’s contention, Defendant has also met its burden with respect to attorney work product by
referencing the existence of a particular prosecution when appropriate. See id. at 28 (DOJ CRM
Document 10 involved an email discussion regarding a request for assistance and guidance from an
AUSA regarding a search warrant). Indeed, by conceding Exemptions 3, 6, and 7(C), Plaintiff’s
argument that Defendant should identify any particular litigation with greater specificity is
unavailing.
Defendant also properly asserted Exemption 5, in conjunction with Exemption 7(E), to
withhold portions of DOJ CRM Document 1. As Defendant explained in its motion for summary
judgment:
[DOJ] CRM’s OEO and CCIPS advise Federal law enforcement, including Assistant
United States Attorneys, regarding various electronic surveillance issues, both legal
and strategic. The records located in response to Plaintiff’s request were compiled
in relation to OEO and CCIPS’s fulfillment of that role. 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. Disclosure of this type of information could provide
criminals the information necessary to evade of thwart detection by federal law
enforcement.
Def.’s Mem. 20-21 (citations omitted). Defendant further explained in its motion for summary
judgment that it properly withheld information relating to investigative techniques because, while

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Exemption 7(E)'s protection is generally limited to techniques or procedures that are not well known
to the public, even commonly known procedures may be protected from disclosure if the disclosure
could reduce or nullify their effectiveness. See, e.g., Piper v. U.S. Dep’t of Justice, 294 F.Supp.2d
16, 30 (D.D.C. 2003) (declaring that polygraph materials were properly withheld because their
release would reveal sensitive “logistical considerations”), reconsideration denied on other grounds,
312 F.Supp.2d 17 (D.D.C. 2004); Edmonds v. FBI, 272 F.Supp.2d 35, 56 (D.D.C. 2003) (deciding
that the FBI’s declaration “convincingly describes how the release of [polygraph] information might
create a risk of circumvention of the law”). Here, Plaintiff fails to recognize that the information
withheld does not relate solely to a particular investigation or technique, but to the general
discussion of “legal issues and strategies pertaining, in part, to obtaining location information for
wireless devices in the course of criminal law enforcement investigations.” Def.’s Mem. at 26.
Disclosure of such information would reduce or nullify the effectiveness of the use of these
techniques by law enforcement and Defendant therefore properly asserted Exemption 7(E) in
conjunction with Exemption 5 to withhold responsive information.
C.

Defendant Released All Reasonably Segregable Material.

Finally, Defendant has demonstrated that it released reasonably segregable material to
Plaintiff. Id. at 34-36. Indeed, the CCIPS manual is publicly available on the internet and, even
before Plaintiff’s request, DOJ CRM had decided to make some of the material in the OEO manual
publicly available. See id. at 35-36 n.13. Thus, there are two OEO 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

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be harmful to law enforcement. Id. Defendant is therefore entitled to summary judgment and the
Court should deny Plaintiff’s cross-motion for summary judgment.
CONCLUSION
WHEREFORE, for the foregoing reasons, and those stated in Defendant’s moving papers,
the Court should enter judgment in favor of the Defendant and deny Plaintiff’s cross-motion for
summary judgment.
Respectfully submitted,
RONALD C. MACHEN JR, DC Bar # 447889
United States Attorney for the District of
Columbia
DANIEL F. VAN HORN, DC Bar # 924092
Acting Chief, Civil Division

By:

/s/
JOHN G. INTERRANTE
PA Bar # 61373
Senior Litigation Counsel
Civil Division
555 4th Street, NW, Room E-4808
Washington, DC 20530
Tel:
202.514.7220
Fax:
202.514.8780
Email: [e-mail]

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