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Am. Civil Liberties Union of N. Cal. V. FBI, No. 10-3759, 2015 WL 7251928 (N.D. Cal. Nov. 17, 2015) (Seeborg, J.)

Date

Am. Civil Liberties Union of N. Cal. V. FBI, No. 10-3759, 2015 WL 7251928 (N.D. Cal. Nov. 17, 2015) (Seeborg, J.)

Re: Request for records concerning FBI’s alleged surveillance activities of Muslim and other ethnic and racial groups in Northern California

Disposition: Denying defendant's motion for summary judgment

  • Exemption 5, Attorney-Client Privilege:  First, the court largely denies defendant's motion for summary judgment regarding defendant's withholding of Human Source Advisory Notices.  The court finds that "[t]he bulk of the redacted portions of the Human Advisory Notices do not include communications to the FBI’s attorneys 'for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.'"  "Only [one] page . . . of the submitted materials falls into the category of attorney-client privileged communications."  "Unlike the generic descriptions in the Human Advisory Notices, this email contains details about an asset, the assets location, and the reason for the communication."  "This email is less like a resource opinion and contains fact-specific advice and communications, and therefore Exemption 5 excludes from disclosure the redacted portions of the email."  The court also finds that "with the exception of [that one] page . . . the FBI has not submitted evidence that substantiates its claim that the communications were confidential in fact."  "Indeed, the wide distribution of the Advisory Notices to all administrative and investigative personnel implies the contrary."  "Moreover, '[w]here a client is an organization, including a government organization, the privilege extends 'no further than among those members of the organization who are authorized to speak or act for the organization in relation to the subject matter of the communication.''"  "The FBI has not submitted evidence to establish that the people who received the Advisory Notices were authorized to speak or act on behalf of the FBI."

Second, the court finds that "[t]he FBI has failed to establish that attorney-client privilege shields the entirety of the FAQs from disclosure for many of the same reasons the FBI failed to carry its burden with respect to the redacted portions of the Advisory Notices."  "First, the FBI’s evidence does not substantiate the need to withhold the FAQs in their entirety because some portions of the document do not appear to contain legal advice or confidential communications."  "Second, the FBI has not provided sufficient information to determine whether the FAQs consist of advice about specific legal questions and situations, or whether they clarify broadly applicable FBI policies."  "Finally, the FBI has not provided information about who receives the FAQs and whether the recipients are authorized to speak and act on behalf of the FBI."

  • Exemption 5, Deliberative Process Privilege:The court denies defendant's motion for summary judgment regarding defendant's withholding of draft training FAQs.  The court finds that "[t]he FBI has not . . . offered specific, non-conclusory information about how the drafters’ comments contributed or informed the decisionmaking process."  "More importantly, the FBI concedes that the redline comments do not reflect debate about which policies apply or should be adopted."  "Instead, the FBI contends that the document is deliberative because the redline comments reflect debate about 'how to instruct or convey' the policies to FBI special agents."  "The FBI has not contended that the draft FAQs include such quintessentially deliberative content as advice about whether to adopt or reject a policy."  "Nothing in the FBI’s evidence suggests that advice about whether a comma should be inserted, word choice, or phrasing would discourage members of the Bureau from providing candid advice about the pros and cons of adopting a policy or practice."  "Thus, the FBI has all but admitted that the document reflects a policy it has adopted, and therefore constitutes the FBI’s 'working law.'"

Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney-Client Privilege
Exemption 5, Deliberative Process Privilege
Updated January 10, 2022