Woodward v. USMS, No. 18-1249, 2022 WL 17961289 (D.D.C. Dec. 27, 2022) (Contreras, J.)

Woodward v. USMS, No. 18-1249, 2022 WL 17961289 (D.D.C. Dec. 27, 2022) (Contreras, J.)

Re:  Request for records concerning use of any cell phone tracking technology during criminal investigation that ultimately led to plaintiff’s conviction

Disposition:  Denying defendant’s motion for summary judgment; granting plaintiff’s cross-motion for summary judgment

• Procedural Requirements:  “[T]he Court finds that USMS has not carried its burden to show that the sealing orders were intended to bar disclosure.”  The court finds that “evidence from the text of the sealing orders and the statute that dictates their contents, and extrinsic evidence from the applications for those orders, does not support USMS’s argument that the seal was intended to function as a permanent injunction barring the government from disclosing the materials pursuant to FOIA.”  “While USMS has pointed to limited evidence from the Middle District of Alabama that the seal has not been ordered removed, it has not met its burden to show that the ‘intended effect of the sealing order’ was to ‘prohibit [the government] from releasing the [records].’”
  
  The court relates that “the orders ‘prohibit[ ] the phone company and its employees from disclosing the existence of the order or the investigation, but there is no similar prohibition directed toward the government.’”  The court finds that “[b]ecause the text of the orders does not bind the government to nondisclosure, and because the stated goal of the nondisclosure obligations the orders place on phone companies and their employees is to protect an investigation that ended in 2008, nothing in the orders supports an inference that they were intended to forever enjoin the government from disclosure pursuant to FOIA.”  The court relates that “USMS argues that the ‘statutory language’ of [the] Pen Register Act binds USMS ‘to not disclose the existence of the pen register or the existence of the underlying investigation publicly unless or until otherwise ordered by the court.’”  “The Court cannot agree.”  “The D.C. Circuit has found that that the Pen Register Act’s nondisclosure requirement, § 3123(d)(2), ‘does not apply to the government.’”  “In addition, mirroring the language in the orders quoted above, the Pen Register Act requires the court, before ordering a pen register or trap and trace device, to confirm ‘that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.’”  “This suggests that sealing orders entered pursuant to the Pen Register Act are primarily intended to prevent disclosure during the pendency of the relevant criminal investigation and prosecution, and perhaps even during related prosecutions, but not that they are intended to restrict ‘any future decision by [the government] to release the [records] . . . pursuant to a FOIA request.’”
  
  The court relates that “USMS also argues that the Pen Register Act bars disclosure because it is a ‘predicate statute for withholding information from public access’ under Exemption 3.”  “To be sure, the D.C. Circuit has held that the Pen Register Act is a qualifying statute under Exemption 3 because it ‘refers to particular types of matters to be withheld.’”  “But whether a statute ‘refers to particular types of matters to be withheld’ for purposes of Exemption 3 is separate from whether it independently prohibits the government from disclosing the information.”  “The Pen Register Act provides for the entry of sealed court orders in response to applications for pen register or trap and trace devices, but as explained above, it neither requires that pen register orders enjoin the government from disclosure nor binds the government to any nondisclosure requirement independent of such orders.”  “As Plaintiff notes, that Congress declined to place any such nondisclosure obligation on the Government is instructive.”
  
  The court also finds that “USMS has pointed to no . . . extrinsic evidence to suggest that the sealing orders were intended to enjoin any future disclosure pursuant [to] the FOIA.”  “Just as with the corresponding language in the orders themselves, the text of [the applications for the pen register orders] suggests that the sealing court would have been primarily concerned with disclosure during the pendency of the criminal investigation and does not support an inference that the seal was intended to enjoin any future disclosure by the government pursuant to FOIA.”
  
  Also, the court finds that “USMS does not claim to have contacted the sealing court and has not provided any instruction or order from the sealing court clarifying its intent.”  “Moreover, the local rules for filing under seal in civil cases have limited relevance to the present case, which involves sealed court orders in a criminal case.”
  
  Finally, the court finds that “[b]ecause USMS has not shown that the sealing orders here prohibited disclosure pursuant to FOIA, such disclosure ‘shows no lack of respect for the judicial process or the . . . [sealing] court.’”
   
• Litigation Considerations, Waiver of Exemptions in Litigation:  “Because USMS not only failed to raise but specifically abandoned Exemption 3 earlier in this lengthy litigation, and because it has presented no ‘convincing reason’ for its failure to do so, the Court finds that it has waived its ability to raise it now.”  The court finds that “it is in fact the case that, not only did USMS fail to timely assert Exemption 3, it expressly abandoned it in favor of Exemption 7(E) before filing its first motion for summary judgment in September 2020.”  “In the roughly 27 months since, during which the Court considered two sets of cross-motions for summary judgment, USMS did not raise Exemption 3 again.”  Of note, the court relates that “USMS claims that it could not have raised Exemption 3 earlier because ‘if the Marshals Service had asserted Exemption 3 and the Pen Register Act earlier in this action, that would have disclosed the existence of the pen register, contrary to the Pen Register Act and the United States District Court for the Middle District of Alabama’s Orders sealing records concerning such surveillance.’”  The court finds that “[t]his is unconvincing.”  “Other agencies do not adhere to this logic.”  “And regardless, courts in [the] Circuit have rejected similar arguments on grounds that there are other ‘mechanisms by which [the agency] can accomplish the goal of protecting sensitive information while at the same time satisfying its burden of proof,’ such as in camera review.”
   
• Exemption 6; Exemption 7(C); Exemption 7(F):  “While the Court finds that [the pages at issue] are not enjoined from disclosure based on the sealing orders or subject to withholding under Exemption 3, . . . the Court recognizes that this page range does contain information that may be permissibly redacted under one or more of the privacy exemptions – Exemptions 6, 7(C) and 7(F).”  “USMS asserted these exemptions as to all documents in its initial Vaughn index . . . and the Court held in [its previous opinion] that redaction of personally identifying information and telephone numbers for law enforcement and third parties was proper because the privacy interests outweighed any public interest in disclosure . . . .”  “In accordance with the Court’s ruling, USMS then made line-by-line redactions to [certain] pages . . . which Plaintiff does not contest.”  “As the remainder of [the] pages . . . also appears to contain similar personally identifying information, including names, telephone numbers, and license-plate numbers of law enforcement and third parties, redaction of this information pursuant to the privacy exemptions is appropriate before USMS provides an otherwise unredacted version of the records to Plaintiff consistent with this opinion.”