Friday, January 19, 2018
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Ninth Circuit:
Portions of Government Surveillance Manual Are Privileged
Decision Is Partial Loss for ACLU Which Had Been Granted Access by District Court to Entirety Of Two Department of Justice Documents; Court Cites Work Product Privilege
By a MetNews Staff Writer
The American Civil Liberties Union of Northern California will receive only portions of two documents relating to the Department of Justice’s electronic surveillance and tracking devices used in criminal investigations, not the entire documents as ordered by a district court judge, under a ruling yesterday by the Ninth U.S. Circuit Court of Appeals.
The documents are contained in the “USABook,” a manual for federal prosecutors. Resisting disclosure, the department cited “Exemption 5” in the Freedom of Information Act (“FOIA”), relating to attorney work products, as well as Exemption 7(E) pertaining to law enforcement deployment techniques.
A three-judge Ninth Circuit panel reviewed the materials in chambers and declared, in an opinion by Judge Marsha S. Berzon, that the latter exemption is inapplicable because the discussions relate to “publicly known investigative techniques.”
She set forth that “only the limited portions of the USABook documents that present original legal analyses, not purely descriptive and not already incorporated in public documents, to guide federal prosecutors in litigation were properly withheld as attorney work product under FOIA Exemption 5.”
The case was remanded to the district court to determine which portions of the document are protected by the privilege.
Mobile Tracking Technology
The ACLU brought the action, along with two newspapers (one now defunct) seeking, in particular, information on the use of mobile tracking technology. Numerous documents were voluntarily released, others were released pursuant to an order by Magistrate Judge Maria-Elena James.
However, it appealed James’s order as it related to two sections of the USABook: the Tracking Devices Manual a chapter of the Narcotics Manual entitled “Electronic Surveillance- Non-Wiretap.” These portions, it argued, contain legal discussions.
James found the work product privilege inapplicable because the legal discussion “simply does not anticipate litigation in the way the work-product doctrine demands, as there is no indication that the document includes the mental impressions, conclusions, opinions, or legal theories of...any…agency attorney, relevant to any specific, ongoing or prospective case or cases.”
Rejects James’s View
The Ninth Circuit was of a different view. Berzon wrote:
“We have never held, either within the FOIA context or in litigation generally, that attorney work product must be prepared in anticipation of specific litigation to be privileged, and we decline to do so here. Like attorneys preparing for a specific case, agency attorneys anticipating potentially recurring legal issues must be free to ‘work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.’…
“At the same time, not every document prepared by a DOJ attorney can be withheld on the basis that the agency may some day become involved in related litigation. The Department of Justice is, after all, charged with the enforcement of our criminal laws. In fulfilling that responsibility, agency attorneys almost always anticipate litigation in some general sense.”
Partial Disclosure
Berzon announced:
“Here, the requested excerpts of the USABook only partially consist of work product exempt from disclosure….[T]he sections of the document specifically addressing legal arguments relating to surveillance authorization, or considerations and strategies for litigating suppression motions, are shielded from disclosure. But substantial portions of the USABook contain technical information and general resources for staff attorneys concerning legal developments. Unlike the sections that specifically address legal arguments, these sections are not attorney work product.”
The opinion was joined in by Judges Michael Daly Hawkins and Mary H. Murguia.
The case is American Civil Liberties Union of Northern California v. Department of Justice, No. 14-17339.
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