ACLU of N. Cal. v. DOJ, No. 14-17339, 2018 WL 455857 (9th Cir. Jan. 18, 2018) (Berzon, J.)

ACLU of N. Cal. v. DOJ, No. 14-17339, 2018 WL 455857 (9th Cir. Jan. 18, 2018) (Berzon, J.)

Re: Request for records concerning practices regarding obtaining location information from electronic devices for tracking and surveillance purposes

Disposition: Affirming in part and reversing in part district court's grant in part of requester's motion for summary judgment; remanding case

• Exemption 5, Attorney Work-Product:  The Court of Appeals for the Ninth Circuit "remand[s] for the district court to conduct a segregability analysis in accordance with this opinion."  The court relates that "the DOJ Criminal Division withheld two portions of the USABook: a section of the Tracking Devices Manual and a chapter of the Federal Narcotics Manual entitled 'Electronic Surveillance–Non–Wiretap.'"  "Based on DOJ's descriptions, including in its briefing and argument before this court, and confirmed by [the court's] in camera review, [the court] observe[s] that both withheld sections of the USABook contain three distinct types of information: (1) technical information about electronic surveillance technologies, (2) considerations related to seeking court authorization for obtaining location information, and (3) legal background and arguments related to motions to suppress location information in later criminal prosecutions."  First, the court finds that "[t]he technical information about electronic surveillance techniques contained in the USABook is not attorney work product."  "The function of such information is to inform investigators and prosecutors about available technologies that may be relevant to conducting a criminal investigation."  "Such technical information assists investigators in the conduct of their investigations."  "It does not include the 'mental impressions, conclusions, opinions, or legal theories of a party’s attorney' that were 'prepared in anticipation of litigation or for trial.'"  "Because this category of information is not attorney work product, it does not fall under Exemption 5 and must be disclosed."  Second, the court finds that "[t]he portions of the USABook documents that discuss ex parte applications for judicial approval of the use of particular surveillance techniques and methods present a closer question."  "[The court's] in camera review confirms that these portions of the documents contain two distinct types of material: (1) instructions and guidance to federal investigators and prosecutors regarding the type of court authorization they can pursue to obtain particular types of electronic surveillance information and (2) legal arguments in support of this authorization."  The court finds that "[t]he portions of the USABook that provide instructions to investigators regarding obtaining court authorization for electronic surveillance would have been created in 'substantially similar form' regardless of whether those investigations ultimately lead to criminal prosecutions."  "Of course, all criminal investigations can potentially lead to litigation, and the authorization necessary to obtain certain types of evidence is commonly disputed in the context of motions to suppress in criminal proceedings."  "But the fact that litigation may arise in which the legal sufficiency of the authorization to obtain evidence is disputed does not change the fact that the government must instruct its staff about how to conduct criminal investigations regardless of whether those investigations lead to later prosecutions."  "In contrast, the portions of the USABook that present legal arguments supporting the agency's positions on the type of authorization necessary to obtain electronic information are attorney work product."  "These portions of the documents reflect the legal theories of DOJ’s attorneys."  "They are included in the USABook to assist prosecutors faced with defending in court the government's position on the authorization necessary to obtain certain types of evidence."  Third, the court finds that, "[a]s to portions of the USABook that contain legal background and analyses concerning suppression motions: Material that simply lists relevant case law and recites case holdings is not protected by the attorney work-product privilege or Exemption 5."  "These sections provide objective descriptions of cases and so more closely resemble continuing legal education resources for DOJ attorneys than attorney work product."  "In contrast, the portions of the USABook that contain legal analyses and specific arguments that DOJ attorneys can make in response to suppression motions are attorney work product, and so are covered by Exemption 5."
  
  Responding to the requester's argument, the court finds that "the premises underlying the working law exception have no application in the attorney work-product context."
   
• Exemption 7(E):  The Court of Appeals for the Ninth Circuit holds that the portions of the USABook at issue are not covered by Exemption 7(E).  First, "based on [the court's] in camera review [it] conclude[s] that the documents do not contain non-public details regarding the use of these surveillance techniques[]" because they "do not reveal details or means of deploying law enforcement techniques that would bring them within the ambit of Exemption 7(E)."  Second, the court finds that, "[a]part from providing publicly known, basic technical information about surveillance techniques, the two disputed sections of the USABook guide prosecutors on the legal steps necessary to use such techniques in their investigations and prosecutions."  "Such information about how the government obtains authorization to collect that information and how it defends its collection in later litigation may be of use to a lawyer litigating against the agency, but it provides no relevant information that would assist criminals in conforming their behavior to evade detection or circumvent the law."  "As disclosure of the guidelines cannot reasonably be expected to risk circumvention of the law, the guidelines are not exempt under 7(E)."