The New York Times Company et al v. United States Department of Justice
Filing
36
OPINION & ORDER: The defendant's June 12 motion for summary judgment is granted. The plaintiffs' July 2 motion for summary judgment is denied. The Clerk of Court shall enter judgment for the defendant and close the case. (Signed by Judge Denise L. Cote on 3/31/2015) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
THE NEW YORK TIMES and MICHAEL
:
SCHMIDT,
:
:
Plaintiffs,
:
-v:
:
UNITED STATES DEPARTMENT OF JUSTICE,
:
:
Defendant.
:
:
-------------------------------------- X
14cv328 (DLC)
OPINION & ORDER
APPEARANCES:
For Plaintiffs:
David E. McCraw
D. Victoria Baranetsky
The New York Times Company, Legal Department
620 Eighth Avenue
New York, New York 10018
For Defendant:
Carina H. Schoenberger, Assistant United States Attorney
United States Attorney’s Office
Southern District of New York
86 Chambers Street, Third Floor
New York, New York 10007
DENISE COTE, District Judge:
This Opinion addresses cross motions for summary judgment in
a Freedom of Information Act (“FOIA”) action.
Plaintiffs, the
New York Times and its reporter Michael Schmidt (“Schmidt”), seek
documents relating to changes in the policy of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (“ATF”) following the
United State Supreme Court’s decision in United States v. Jones,
132 S. Ct. 945 (2012).
The plaintiffs challenge ATF’s decision
to withhold or redact six different items in its document
production.
The defendant United States Department of Justice
(“DOJ”) contends that the withheld documents or passages are
exempt from production under the principles established by FOIA.
For the following reasons, the defendant’s motion for summary
judgment is granted.
BACKGROUND
The following facts are undisputed.
On January 23, 2012,
the Supreme Court of the United States held in United States v.
Jones that the attachment of a Global-Positioning-System (“GPS”)
tracking device to a vehicle, and subsequent use of that device
to monitor the vehicle’s movements on public streets, was a
search within the meaning of the Fourth Amendment and required a
warrant under ordinary circumstances.
Jones, 132 S. Ct. at 946.
On June 20, 2012, Schmidt made a FOIA request to ATF’s
Disclosure Division.
Schmidt requested, inter alia, “documents
sufficient to show how your agency has advised its agents and
employees to use trackers in response to [Jones]” and “documents
sufficient to show how your agency advised its agents and
employees to conduct surveillance in response to [Jones].”
ATF
granted the request in part on November 23, 2012, releasing some
seventy pages of documents.
That production included documents
redacted pursuant to three FOIA exemptions: Exemption 5
(deliberative process, attorney-client, and work product
privileges); Exemption 6 (privacy); and Exemption 7(E)
(investigatory materials).
5 U.S.C. § 552(b)(5)–(7).
2
ATF also
advised Schmidt that responsive “documents or portions thereof
that did not originate with [ATF] [were] referred to either the
Department of Justice’s (DOJ) Office of Information Policy or the
DOJ’s criminal division requesting that those offices respond
directly to you.” 1
ATF also advised Schmidt that, “[i]nsofar as
[the FOIA] request has been denied in part, [he] may submit a
request for an administrative appeal . . . .”
Schmidt appealed to the Office of Informational Policy
(“OIP”) on December 19, 2012, insofar as the denial was based on
two of the three FOIA exemptions: Exemption 5 and Exemption 7(E).
In January 2013, the OIP notified the plaintiffs that it had
received the December 19 appeal.
OIP never issued any decision
on this appeal during the year that followed, and closed the
appeal of February 6, 2014, after plaintiffs filed this lawsuit.
On April 8, 2013, in response to ATF’s referral, the
Criminal Division of DOJ released three more pages, and withheld
sixty-eight pages pursuant to Exemptions 5, 6, 7(C), and 7(E). 2
The Criminal Division advised Schmidt of his right to an
administrative appeal, and that the appeal must be received
within 60 days.
OIP responded to ATF’s referral on September 26,
The referral to the Office of Information Policy was for
documents originating or maintained by the Office of the Deputy
Attorney General (“DAG”).
1
Exemption 7(C) relates to information compiled for law
enforcement purposes whose disclosure could reasonably constitute
an invasion of privacy. 5 U.S.C. § 552(b)(7)(C).
2
3
2013, for materials originating with the DAG.
OIP released some
documents and withheld others pursuant to Exemptions 5, 6, and
7(C).
OIP also advised Schmidt of his right to an administrative
appeal, and the deadline for filing an appeal.
Schmidt did not
appeal either the Criminal Division decision of April 8 or the
OIP decision of September 26. 3
The plaintiffs filed this lawsuit on January 17, 2014.
ATF
made an additional referral of documents to the Federal Bureau of
Investigation (“FBI”) on February 20.
On March 5, the FBI
responded, withholding the referred document pursuant to
Exemption 5.
12.
The defendant moved for summary judgment on June
Plaintiffs cross moved for summary judgment on July 2.
On
December 29, the defendant was ordered to produce the documents
at issue for in camera review.
On January 23, 2015, this action
was transferred to this Court.
Plaintiffs challenge the withholding or redaction of six
items, described hereinafter as Items One through Six.
A
description of the withheld text accompanies the discussion of
the items.
In addition to the in camera submission, the evidence
submitted with these motions includes: documentation of the
The plaintiffs state that they do not have a record of
receiving either the Criminal Division or OIP decision, but do
not dispute that the decisions were sent and the addresses on the
letters are their addresses.
4
3
plaintiffs’ FOIA request and appeal, a Vaughn index 4 describing
the withheld content and the exemptions justifying withholding,
two declarations from David M. Hardy (“Hardy”), the Section Chief
of the Record/Information Dissemination Section of the FBI, and a
declaration from Melissa A. Anderson (“Anderson”), the attorney
who drafted the ATF documents and emails at issue in this
litigation.
At the time, Anderson was the Deputy Associate Chief
Counsel of ATF’s Litigation Division.
Anderson’s declaration
describes the process by which she created the ATF documents at
issue, as well as the function of these documents.
Hardy’s first
declaration details the FBI’s involvement with the FOIA request,
and its decision to withhold the document referred to the FBI on
February 20, 2014.
Hardy’s second declaration describes the
process of creating the FBI document and its purpose and
function.
DISCUSSION
FOIA was enacted in 1966 “to improve public access to
information held by government agencies.”
Pierce & Stevens Chem.
Corp. v. U.S. Consumer Prod. Safety Comm’n, 585 F.2d 1382, 1384
(2d Cir. 1972).
It “expresses a public policy in favor of
disclosure so that the public might see what activities federal
A Vaughn index lists titles and descriptions of withheld
documents. New York Times Co. v. U.S. Dep’t of Justice, 762 F.3d
233, 237 (2d Cir. 2014). “The purpose of a Vaughn index is to
afford a FOIA plaintiff an opportunity to decide which of the
listed documents it wants and to determine whether it believes it
has a basis to defeat the Government’s claim of a FOIA
5
4
agencies are engaged in.”
A. Michael’s Piano, Inc. v. F.T.C., 18
F.3d 138, 143 (2d Cir. 1994).
FOIA requires a federal agency to
disclose records in its possession unless they fall under one of
nine enumerated and exclusive exemptions.
5 U.S.C. § 552(a)(3)-
(b); see also Dep’t of the Air Force v. Rose, 425 U.S. 352, 361
(1976).
The statutory exemptions “do not obscure the basic
policy that disclosure, not secrecy, is the dominant objective of
the Act.”
Dep’t of the Interior and Bur. of Indian Affairs v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)
(citation omitted).
narrow compass.”
The exemptions are thus to be “given a
Id. (citation omitted); see also Nat’l Council
of La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005).
Summary judgment is the procedural vehicle by which most
FOIA actions are resolved.
See, e.g., Miscavige v. IRS, 2 F.3d
366, 369 (11th Cir. 1993).
A federal court must “conduct de novo
review when a member of the public challenges an agency’s
assertion that a record being sought is exempt from disclosure.”
A Michael’s Piano, 18 F.3d at 143.
“In order to prevail on a
motion for summary judgment in a FOIA case, the defending agency
has the burden of showing . . . that any withheld documents fall
within an exemption to the FOIA.”
Carney v. U.S. Dep’t of
Justice, 19 F.3d 807, 812 (2d Cir. 1994).
“Affidavits or
declarations . . . giving reasonably detailed explanations why
any withheld documents fall within an exemption are sufficient to
exemption.”
Id.
6
sustain the agency’s burden.”
Id.
Absent any showing to the
contrary, “[a]ffidavits submitted by an agency are accorded a
presumption of good faith.”
Id. (citation omitted).
FOIA also requires that “[a]ny reasonably segregable portion
of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt.”
U.S.C. § 552(b).
5
“This provision requires agencies and courts to
differentiate among the contents of a document rather than to
treat it as an indivisible record for FOIA purposes.”
F.B.I. v.
Abramson, 456 U.S. 615, 626 (1982) (citation omitted).
FOIA lists nine exclusive exemptions.
see also Rose, 425 U.S. at 361.
5 U.S.C. § 552(b);
Two of these exemptions are
relevant here: Exemption 5 and Exemption 7(E).
Analysis of a
document and whether it is exempt from FOIA disclosure requires
inquiry into the process by which the document was created.
Brennan Ctr. for Justice at New York Univ. Sch. of Law v. U.S.
Dep’t of Justice, 697 F.3d 184, 202 (2d Cir. 2012).
Exemption 5
Exemption 5 protects “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.”
U.S.C. § 552(b)(5).
5
This exemption includes the attorney-client,
work product privilege, and executive privilege.
Grand Cent.
P’Ship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir. 1999).
The
executive privilege includes the deliberative process privilege.
7
Id.
The deliberative process privilege applies to documents that
are predecisional and deliberative.
194.
Brennan Ctr., 697 F.3d at
A document is predecisional if it is “prepared in order to
assist an agency decisionmaker in arriving at his decision” and
deliberative if it is “actually related to the process by which
policies are formulated.”
Id.
(citation omitted).
Even those documents that are predecisional and deliberative
must be disclosed, however, when the document represents “an
opinion or interpretation that embodies the agency’s effective
law and policy, in other words, its ‘working law.’”
Id. at 195
(citing N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 154
(1975)).
The “working law analysis is animated by the
affirmative provisions of FOIA, and documents must be disclosed
if more akin to that which is required . . . to be disclosed than
that which may be withheld . . . .”
Id. at 200.
FOIA generally
requires disclosure of “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.”
at 201 (citation omitted).
Id.
An “opinion about the applicability
of existing policy to a certain state of facts, like examples in
a manual,” constitute working law and accordingly do not fall
within the scope of the deliberative privilege.
Coastal States
Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980).
Documents that advise agency personnel of likely legal challenges
8
and potential defenses, however, do not constitute working law.
Delaney, Migdail & Young, Chartered v. I.R.S., 826 F.2d 124, 127
(D.C. Cir. 1987).
Exemption 5 also encompasses the attorney-client privilege.
“The attorney-client privilege protects communications (1)
between a client and his or her attorney (2) that are intended to
be, and in fact were, kept confidential (3) for the purpose of
obtaining or providing legal assistance.”
at 207 (citation omitted).
Brennan Ctr., 697 F.3d
“The attorney-client privilege
protects most confidential communications between government
counsel and their clients that are made for the purpose of
obtaining or providing legal assistance.”
omitted).
Id.
(citation
The working law doctrine applies as well to privileged
documents and may require production of a document otherwise
entitled to be withheld under Exemption 5 as a privileged
attorney-client privilege.
Id. at 207-208; see also Sears, 421
U.S. at 153; Nat’l Council of La Raza, 411 F.3d at 360 (“[T]he
attorney-client privilege may not be invoked to protect a
document adopted as, or incorporated by reference into, an
agency’s policy.”).
Finally, Exemption 5 includes the work product privilege,
which protects documents where, “in light of the nature of the
document and the factual situation in the particular case, the
document can fairly be said to have been prepared or obtained
because of the prospect of litigation.”
9
United States v. Adlman,
134 F.3d 1194, 1202 (2d Cir. 1998) (citation omitted).
The
purpose of the work product privilege is to protect the integrity
of the adversarial process.
Jordan v. U.S. Dep’t of Justice, 591
F.2d 753, 775 (D.C. Cir. 1978), disapproved on other grounds by
Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051
(D.C. Cir. 1981) (en banc).
In the FOIA context, the Court of
Appeals for the District of Columbia observed that the critical
inquiry is the function of the documents at issue.
F.2d at 127.
Delaney, 826
Neutral policy interpretations “must at least have
been prepared with a specific claim supported by concrete facts
which would likely lead to litigation in mind” in order for the
work product privilege to apply.
865.
Coastal States, 617 F.2d at
Moreover, “[t]he mere fact that [a document] deal[s] with
specific factual situations is not sufficient [to invoke the work
product privilege]; if an agency were entitled to withhold any
document prepared by any person in the Government with a law
degree simply because litigation might someday occur, the
policies of the FOIA would be largely defeated.”
Id.; see also
Jordan, 591 F.2d at 775-76 (declining to apply the work product
privilege to law enforcement manual).
Nonetheless, documents
that advise agency personnel of types of legal challenges likely
to be mounted against a proposed action, and possible defenses,
are protected by the work product privilege.
at 127.
10
Delaney, 826 F.2d
Exemption 7(E)
Exemption (b)(7)(E) exempts from disclosure:
records or information compiled for law enforcement
purposes, but only to the extent that the production of
such law enforcement records or information . . . 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).
This exemption covers “investigatory
records that disclose investigative techniques and procedures not
generally known to the public.”
Doherty v. United States Dep’t
of Justice, 775 F.2d 49, 52 n.4 (2d Cir. 1985).
“To show that
the disputed documents were compiled for law enforcement
purposes, the [agency] need only establish a rational nexus
between the investigation and one of the agency’s law enforcement
duties and a connection between an individual or incident and a
possible security risk or violation of federal law.”
Blackwell
v. F.B.I., 646 F.3d 37, 40 (D.C. Cir. 2011) (citation omitted).
Exemption 7(E) sets a “relatively low bar for the agency to
justify withholding: Rather than requiring a highly specific
burden of showing how the law will be circumvented, exemption
7(E) only requires that the agency demonstrate logically how the
release of the requested information might create a risk of
circumvention of the law.”
Id. at 42 (citation omitted).
qualifying phrase “if such disclosure could reasonably be
expected to risk circumvention of the law” modifies only
11
The
“guidelines” and not “techniques and procedures.”
Allard K.
Lowenstein Int’l Human Rights Project v. Dep’t of Homeland Sec.,
626 F.3d 678, 681 (2d Cir. 2010).
Exhaustion
Agencies other than ATF drafted several of the items at
issue.
As part of the November 23, 2012 partial denial of the
plaintiffs’ FOIA request, ATF referred these documents to the
originating agencies. 5
Exhaustion of administrative remedies is
generally required prior to initiating a FOIA lawsuit.
The
parties dispute whether the plaintiffs’ December 19
administrative appeal exhausted the plaintiffs’ remedies with
regard to the referred documents.
Under FOIA, exhaustion is a
prudential consideration rather than a jurisdictional
prerequisite.
Hull v. I.R.S., U.S. Dep’t of Treasury, 656 F.3d
1174, 1181 (10th Cir. 2011); Wilbur v. C.I.A., 355 F.3d 675, 677
(D.C. Cir. 2004).
Accordingly, the merits of the claims and
defenses may be reached without resolving the exhaustion issue.
In this case, given the passage of time and the parties’
extensive submissions, it is appropriate to reach the merits of
their dispute.
1. Item One
Item One is a redacted internal ATF email that was sent to
ATF made an additional referral of one document to the FBI on
February 20, 2014. Because this referral occurred after
litigation commenced, exhaustion is not at issue with this
document.
12
5
all ATF Special Agents in Charge.
The redacted portions of the
document were withheld pursuant to Exemption 5.
The email is
dated January 24, 2012, which is the day following the issuance
of the Jones decision.
It was distributed at 2:58 p.m.
The
unredacted portion of the document reads, in part:
As you may be aware, the Supreme Court issued an
opinion yesterday that law enforcement’s placement of a
GPS tracker on a subject’s vehicle constitutes a search
covered by the Fourth Amendment and therefore requires
a warrant. DOJ will be issuing a detailed guidance
memorandum. In the meantime, I want to provide you
with preliminary guidance from ATF’s Office of Chief
Counsel . . . .
(Emphasis supplied.)
This email is also reproduced as part of an
email chain in Item Four. 6
Anderson describes Item One as “preliminary, draft guidance”
that reflected her “legal opinion as to what [she] believed to be
the best practices in the absence of a final, binding policy for
all DOJ law enforcement agencies.”
She describes her advice as
“discre[te] opinions to specific, ongoing situations ATF agents
were encountering in the immediate aftermath of Jones” and notes
that her advice was not binding on ATF agents.
Her advice was
not incorporated into any final agency opinion, adopted as
policy, retained, or referred to as precedent within ATF.
ATF redacted three paragraphs of the five paragraphs in the
email pursuant to the deliberative process privilege and the
Because much of the disputed material in this case involves
email chains, text from one item may appear multiple times.
Where appropriate, this is noted in the description of the items.
13
6
attorney client privilege.
The fourth paragraph was also
redacted under the work product privilege.
to reach one of these grounds.
It is only necessary
Because the redacted paragraphs
are protected by the attorney-client privilege, and do not
constitute ATF’s working law, Item One was properly withheld from
plaintiffs.
The attorney-client privilege protects communications
between a client and its attorney that are intended to be, and in
fact were, kept confidential for the purpose of obtaining or
providing legal assistance.
Brennan Ctr., 697 F.3d at 207.
ATF
has met its burden in demonstrating that the communication
satisfies these requirements.
The communication is between
Anderson, an ATF attorney, and employees of ATF, and was kept
confidential.
ATF personnel.
The email is intended to provide legal guidance to
The redacted paragraphs describe Anderson’s
perceptions of the “best practices” in the immediate wake of
Jones.
The plaintiffs argue that the redacted paragraphs are
subject to disclosure as working law.
They are not.
As the
disclosed portion of the email indicates, it is “preliminary”
guidance.
The paragraphs are not properly characterized as a
“final opinion[]” or a “statement[] of policy and
interpretation[] adopted by” ATF that would otherwise constitute
working law.
Brennan Ctr., 697 F.3d at 201.
An email,
distributed on the day following the Jones opinion by a person
14
who lacks final authority to make policy is not a final opinion.
Indeed, the email promises that DOJ will issue detailed guidance.
Accordingly, the redacted paragraphs were properly withheld.
2. Item Two
Item Two contains two internal ATF emails circulating
an email sent by the Office of the DAG on January 23, 2012,
that is, on the day of the Jones decision.
The unredacted
portion of the first ATF email reads, in part: “[Redacted]
and I just returned from a meeting at the DOJ.
The Criminal
Division will be providing guidance on post-Jones GPS
issues, but it will take a few days . . . .”
Below this
text is an email with the subject line: “Appellate Section
Report: United States v. Jones . . . .”
email is entirely redacted.
The body of the
The email was sent to a number
of individuals, presumably within ATF.
The role and
function of the individuals who received this email is not
described in the defendant’s submissions.
The second ATF email in Item Two circulated the
identical DAG email to all ATF Special Agents in Charge.
The second email was sent on January 24, 2012, at 10:16 a.m.
The text forwarding the DAG email reads:
Below you will find some important information from the
Department of Justice regarding the Supreme Court
opinion release[d] yesterday about the use of GPS
tracking devices, United States v. Jones. It is
important that all ATF employees follow DOJ guidance in
this area without hesitation. I highlighted one very
important sentence below for your immediate attention.
15
The highlighted sentence is redacted.
This email is also
reproduced as part of email chains in Item Four and Item Six.
The redacted information in both emails originated with the
Office of the DAG.
As a result, ATF referred the plaintiffs’
FOIA request concerning this material to OIP.
On September 26,
2013, OIP advised the plaintiffs of its decision to withhold this
material under the deliberative process and work product
privilege, as well as Exemptions 6 and Exemption 7(C), both of
which relate to the privacy of third parties.
The textual redactions in Item Two were properly made under
the work product privilege.
A document constitutes work product
when, in light of the surrounding facts and circumstances, it is
prepared “because of” the prospect of litigation.
F.3d at 1202.
document.
Adlman, 134
The critical inquiry is the function of the
Delaney, 826 F.2d at 127.
The document provides
guidance on steps prosecutors should take to minimize the impact
of Jones on anticipated litigation.
The plaintiffs contend that the email constitutes ATF’s own
working law.
This argument fails.
There is no indication that
ATF adopted the guidelines described by the DAG as its own final
policy.
Within a few hours of sending out the January 24 email
(which forwarded the DAG guidance), ATF sent an email explaining
that it would take DOJ a few days to provide more complete
guidance.
Moreover, the emails circulating the DAG guidance
16
among ATF personnel were sent before Item One, ATF’s own
preliminary guidance email, was distributed on January 24 at 2:58
p.m.
This indicates that, while Anderson distributed the DAG
guidance, she formulated her own preliminary views for ATF.
3. Item Three
Item Three consists of an internal email sent on January 25,
2012, to ATF Special Agents in Charge.
Information was withheld
from this document pursuant to Exemptions 5 and 7(E) because it
responds to specific factual scenarios and discusses technical
aspects of GPS tracking devices.
The withheld portions of the
document include technical information about GPS tracking devices
that is not public knowledge.
Plaintiffs contend that this document is the working law of
ATF, and that the technology discussed in the document, GPS
tracking devices, is already known to the public.
ATF has shown
that these redactions were properly made under Exemption 7(E)
because the release of the requested information would create a
risk of a circumvention of the law.
See Blackwell, 646 F.3d at
42.
4. Item Four
Item Four is an email chain composed of three separate
internal emails sent among ATF personnel.
Two of these emails
are identical to the emails contained in Items One and Two, and
have already been addressed.
The third email contains text copied from a guidance
17
document originating with the FBI.
The unredacted text generated
by ATF personnel reads: “An FYI, this is what the FBI sent out.”
The ATF email is dated January 24, 2012.
In response to this
FOIA request, ATF referred the text from the third email to the
FBI on February 20, 2014.
On March 5, 2014, the FBI informed ATF
of its determination that the text drafted by the FBI should be
withheld pursuant to the deliberative process privilege and work
product privilege.
Hardy’s second declaration describes the role the text from
Item Four played in the FBI’s decision-making process.
Hardy
states: “[Item Four] contained pre-decisional, preliminary legal
guidance by FBI’s Office of General Counsel (“OGC”) to FBI
Special Agents in Charge . . . and does not represent any final
policy . . . .
The FBI’s OGC provided its opinion to educate FBI
agents about the Jones decision and provide ‘stop gap’ advice
. . . .”
Hardy further states that the interim advice did not
establish any official policy, and never went through any
formalized process.
Item Four was properly withheld under the work product
privilege.
Like other material distributed on January 23 and 24,
the guidance from FBI attorneys was intended to provide legal
advice to agents regarding the use of GPS monitoring.
The
function of such quickly-drafted, temporary guidance following a
change in the law is not to set agency policy, but rather to
minimize difficulties in anticipated litigation.
18
Plaintiffs contend that Item Four represents the working law
of ATF and the FBI.
The argument that Item Four constitutes
ATF’s working law fails.
Jones decision.
The email was sent on the day after the
There is no basis to find that ATF adopted on
that day as its own policy the preliminary guidance given by the
FBI.
Indeed, the ATF email says:
sent out.”
“An FYI, this is what the FBI
It does not even instruct ATF personnel to follow the
guidance described.
ATF had sent its own preliminary guidance
email previously that same day.
The argument that the memorandum constitutes the FBI’s
working law similarly lacks merit.
The FOIA request was directed
to ATF and asked for documents “sufficient to show how your
agency advised its agents and employees to use trackers”
(emphasis supplied) following Jones and documents “sufficient to
show how your agency advised its agents . . . to conduct
surveillance” (emphasis supplied) in response to Jones.
To the
extent that Item Four is the FBI’s working law -- as opposed to
ATF’s -- it is not responsive to the FOIA request.
Moreover,
without the entirety of the original FBI document from which this
text was taken, information critical to the working law inquiry
-- such as the manner of distribution, subject line, date,
recipients, sender, and any other text -- is missing.
To the
extent that the plaintiffs seek disclosure of this document as
the working law of the FBI, the proper recipient for such a
request must be the FBI.
19
In any event, based on the present record, the defendant has
shown that Item Four does not constitute the working law of the
FBI.
The guidance was drafted within hours of the Jones
decision.
In this sense, it is much closer in form and function
to predecisional, deliberative documents that are generally
exempt from disclosure under FOIA than an agency’s working law.
Brennan. 697 F.3d at 202.
The affidavits submitted by the
defendant are sufficient to demonstrate that, notwithstanding the
fact that the FBI guidance email is written as a series of
instructions to agents, it is not, and never was, the effective
law and policy of the FBI.
5. Item Five
Item Five contains three separate guidance memoranda, as
well as an email sending two of these memoranda to ATF personnel.
ATF referred all three memoranda to the Criminal Division, and
the Criminal Division advised the plaintiffs of its decision on
April 8, 2013.
The first memorandum is a seven page document,
summarizing a longer guidance memorandum, tailored for agents
(“Agent Guidance Memo”).
The introduction and conclusion of this
memorandum indicate that it should be used by agents to identify
situations where further consultation with a U.S. Attorney or
Divisional Counsel is necessary.
The second memorandum is a
three page “cheat sheet,” describing likely challenges to ATF’s
actions, defenses, and probable outcomes (“Cheat Sheet Memo”).
These two documents were sent to ATF personnel as attachments to
20
an email dated March 8, 2012.
The email states:
Attached please find a summary of the guidance provided
by Criminal Appellate regarding GPS surveillance and
Jones. The first attachment is written with the agents
in mind, so please share with your field divisions.
The second attachment is more of a cheat sheet for you.
As with the official Crim. Appellate memo, please do
not provide outside the Department.
Other than the name of the ATF employee who drafted the email, no
additional text is redacted.
The third memorandum was sent on
February 27, 2012, to all federal prosecutors from the Criminal
Appellate Section of DOJ (“Final Guidance Memo”).
The Final
Guidance Memo is 57 pages long, and contains detailed guidance
for prosecutors summarizing the legal arguments and defenses that
should be made in post-Jones litigation regarding GPS tracking
devices.
The Criminal Division withheld all three memoranda
pursuant to the deliberative process privilege, work product
privilege, and attorney-client privilege, as well as Exemptions
6, 7(C), and 7(E).
The Final Guidance Memo, directed to prosecutors, advises
prosecutors on how to represent the Government in future
litigation, and discusses possible legal challenges to Government
actions, potential defenses, and likely outcomes.
Documents
describing legal positions and defenses that go beyond expressing
neutral statements and interpretations of the law are protected
by the work product privilege.
Jordan, 591 F.2d at 775-76.
Delaney, 826 F.2d at 127; cf.
This is precisely the kind of
document that is prepared “because of the prospect of litigation”
21
and would not exist in similar form absent such a possibility.
Adlman, 134 F.3d at 1202.
The Cheat Sheet Memo, which summarizes
the key points of the Final Guidance Memo, also describes the
best defenses and likely legal challenges to the actions of ATF
personnel.
Thus, the Cheat Sheet Memo is also protected by the
work product privilege.
The Agent Guidance Memo, directed at ATF agents, and sent to
ATF personnel, incorporates by reference the assessments made in
the Final Guidance Memo.
It does not instruct agents to take
specific actions that would affect a member of the public.
The
introduction and conclusion of the Agent Guidance Memo make it
clear that this document is not intended to provide final
directives to agents, but to aid them in identifying situations
where consultation with the U.S. Attorney’s Office or Divisional
Counsel is necessary.
Thus, the Agent Guidance Memo, like the
other memoranda, is not a neutral policy statement or
interpretation of ATF’s responsibilities.
Such a document was
prepared because of the prospect of litigation, and constitutes
attorney work product.
The plaintiffs primarily argue that the work product
privilege does not protect these documents because they
constitute ATF’s working law.
This argument fails.
Policy
interpretations and statements that go beyond providing a neutral
analysis of an agency’s obligations under the law are not working
law.
See Delaney, 826 F.2d at 127.
22
Moreover, the policy
justifications underpinning the working law principle do not
support disclosure under these circumstances.
In N. L. R. B. v.
Sears, Roebuck & Co., the seminal Supreme Court decision on the
subject, the Court articulated the justification for the working
law principle as being to prevent agencies from developing
“secret [] law.”
Sears, 421 U.S. at 153.
Thus, a memorandum
directing that no complaint should be filed is subject to
disclosure as working law; it constitutes a final decision by the
agency that would otherwise remain nonpublic.
Id. at 155-56.
By
contrast, a memorandum directing that a complaint be filed is not
subject to FOIA disclosure because “the subject matter, theory,
and interpretation” in this memorandum “will ultimately be
ventilated” through the course of litigation.
Id. at 156.
Here,
DOJ’s views regarding the likely challenges to the use of GPS
tracking devices and available defenses to those challenges will
be borne out publicly in court.
Because the positions described
in these three memoranda will ultimately become public, the
“secret law” rationale does not support the application of the
working law principle in this situation.
6. Item Six
Item Six contains an internal ATF email chain distributing
the Final Guidance Memo to ATF personnel.
chain were sent on February 27, 2012.
All emails in the
The first email was sent
by the drafter of the Final Guidance Memo, an employee of the
Criminal Appellate Section.
The text of this email discusses the
23
content of the Final Guidance Memo and highlights several
passages for the benefit of law enforcement personnel.
referred this text to the Criminal Division.
ATF
As part of the
April 8 decision, the Criminal Division advised the plaintiffs
that it withheld the material under, inter alia, the deliberative
process privilege, work product privilege, and attorney-client
privilege.
The second email, sent by an ATF employee to
unspecified individuals, reads: “Final Guidance on Jones is
attached.
Please advise your respective field divisions.”
The
third email, sent by a different ATF employee, reads: “Please
make sure that Field Ops is so advised.”
Other than the names of
employees, no additional text is redacted from the second and
third emails in the chain.
The redacted text in the first email describing the Final
Guidance memorandum is not subject to disclosure.
The redacted
text discusses specific points in the memoranda and includes
informal comments describing the creation of memoranda.
The
email is therefore exempt from disclosure under FOIA to the same
extent as the underlying memoranda.
Segregability
FOIA requires that “[a]ny reasonably segregable portion of a
record shall be provided to any person requesting such record
after deletion of the portions which are exempt.”
552(b).
5 U.S.C. §
Following in camera review, the Court is satisfied that
all reasonably segregable non-exempt portions of the disputed
24
documents have been disclosed.
CONCLUSION
The defendant’s June 12 motion for summary judgment is
granted.
denied.
The plaintiffs’ July 2 motion for summary judgment is
The Clerk of Court shall enter judgment for the
defendant and close the case.
Dated:
New York, New York
March 31, 2015
__________________________________
DENISE COTE
United States District Judge
25
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?