ACLU v. DOJ, No. 19-00290, 2021 WL 4481784 (N.D. Cal. Sept. 30, 2021) (Chen, J.)

ACLU v. DOJ, No. 19-00290, 2021 WL 4481784 (N.D. Cal. Sept. 30, 2021) (Chen, J.)

Re:  Request for records concerning surveillance and monitoring of persons through social media

Disposition:  Granting in part and denying in part defendants' motion for partial summary judgment; granting in part and denying in part plaintiff's cross-motion for partial summary judgment

Re:  Request for records concerning surveillance and monitoring of persons through social media

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Exemption 7(E):  "[T]he Court reviewed the documents at issue in camera and determined that Exemption 7(E) applies as follows . . . ."  Regarding a policy on operational use of social media, the court finds that "Exemption 7(E) does not apply because the redacted portions are simply procedures for obtaining authorization to use masked monitoring and undercover engagement."  "This information cannot reasonably be expected to risk circumvention of the law."  Regarding information concerning "'obtaining location information' and 'provid[ing] instructions to investigators and prosecutors regarding how to lawfully obtain electronic location information [the court finds that this information] provide[s] no information that would assist criminals in conforming their behavior to evade detection or circumvent the law.'"  The court also finds that "Exemption 7(E) applies [to certain documents] because the redacted portions of these documents 'describe a "specific means . . . of deploying a particular investigative technique.'"
   
• Exemption 5, Deliberative Process Privilege:  Regarding one set of documents, the court finds that "Defendants fail to explain why the nature of the redacted information is different from the information Defendants already disclosed about sub-agency involvement in the crafting of the Social Media Strategy."  "Defendants do not describe why the fact of the involvement of the sub-agencies mentioned in [some documents] warrant exemption under the deliberative process privilege."  "Thus, the deliberative process privilege does not apply."  Regarding other documents, the court finds that the deliberative process privilege applies to draft plans, policy recommendations, pilot programs, draft responses to questions about policies, and draft language for a potential contract.
   
• Exemption 5, Attorney Client Privilege:  Following an in camera inspection, the court finds that "[t]he attorney-client privilege applies [to one document] because the withheld document is a memorandum with legal advice about potential constitutional issues that might arise from USCIS's use of social media."  The court finds similarly regarding "an email communication with legal advice about the first amendment implications of USCIS's use of social media."  "The attorney-client privilege does not apply to [other documents] because there is no legal advice at issue in those." 
   
• Litigation Considerations, Vaughn Index/Declaration:  The court relates that Plaintiffs bring a general challenge to CBP's Vaughn index because it 'repeats non-specific recitations of the standard for the FOIA exemptions at issue, followed by multiple non-specific bullets drawn from a master list of reasons for withholding content that are set forth in [[defendant's] declaration].'"  "Indeed, the CBP's Vaughn index is unworkable."  "That being said, after conducting an in camera review of the documents, the Court need not ask CBP to update its Vaughn index in order to rule on the parties' disputes."