880 F.3d 473
9th Cir.2018Background
- ACLU of Northern California submitted a FOIA request seeking DOJ materials about obtaining location information (GPS, cell-site simulators, telematics) and expedited processing; DOJ ultimately processed and withheld portions of documents from EOUSA and DOJ Criminal Division.
- DOJ released some templates and appendices but withheld 2 narrative sections of the internal USABook (Tracking Devices Manual and Electronic Surveillance chapter) and several legal memoranda and PowerPoint slides, invoking FOIA Exemptions 5 (attorney work product) and 7(E) (law-enforcement techniques/guidelines).
- The district court ordered disclosure of the USABook narrative sections and templates, finding them agency manuals and not exempt under Exemption 5 or 7(E); it upheld withholding of legal memoranda and EOUSA slides as work product.
- DOJ appealed the order as to the two USABook narrative sections; the Ninth Circuit reviewed those sections in camera and analyzed the applicability of Exemptions 5 and 7(E).
- The Ninth Circuit held that USABook material falls into three categories—technical descriptions of surveillance technologies; procedural instructions for obtaining court authorization; and legal analyses/arguments—and that only portions containing original legal analysis and litigation strategies qualify as attorney work product under Exemption 5.
- The court ruled the contested USABook sections do not contain sufficiently detailed, nonpublic investigative means to qualify under Exemption 7(E), and remanded for segregability review to produce non-exempt material.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USABook sections are protected by FOIA Exemption 5 (attorney work product) | ACLU: USABook is a general resource, not prepared in anticipation of specific litigation, so not work product | DOJ: Sections include legal analyses and litigation strategies prepared by attorneys anticipating recurring litigation; thus work product | Court: Split—technical info and procedural instructions are not work product; original legal analyses/arguments prepared for litigation are work product (Exemption 5 applies to those portions) |
| Whether Exemption 7(E) shields the USABook sections as techniques/procedures or guidelines whose disclosure could risk circumvention | ACLU: Material is general and publicly known, so not exempt under 7(E) | DOJ: Disclosure would reveal nonpublic details about when/how techniques are used and could enable evasion | Court: Documents describe publicly known techniques and lack detailed nonpublic deployment methods; guidelines disclosed would not reasonably risk circumvention, so 7(E) does not apply |
| Whether the "working law" doctrine requires disclosure of DOJ’s litigating positions in USABook | ACLU: Even work product should be disclosed when it constitutes agency’s working law | DOJ: Working law exception does not override work-product protection | Court: Working law exception applies to deliberative-process privilege, not work product; Merrill controls—working law within work product may remain withheld |
| Whether DOJ must segregate non-exempt material from withheld USABook sections | ACLU: Entire sections are non-exempt agency manuals and must be produced | DOJ: Some material is non-segregable work product tied to legal analysis | Court: Remanded—district court must perform segregability analysis; non-exempt technical and legal-summary portions must be disclosed; only analytic litigation strategy portions may be withheld |
Key Cases Cited
- United States v. Jones, 565 U.S. 400 (Fourth Amendment GPS tracking decision relied on as context)
- Hickman v. Taylor, 329 U.S. 495 (work-product doctrine origin and purpose)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (Exemption 5 covers privileges recognized in civil discovery)
- Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340 (work product can shield final agency opinions/working law)
- Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759 (9th Cir.) (distinguishing public vs. nonpublic investigative techniques under Exemption 7(E))
- Nat’l Ass’n of Criminal Def. Lawyers v. Dep’t of Justice Exec. Office for U.S. Attorneys, 844 F.3d 246 (D.C. Cir.) (agency manuals providing how-to litigation guidance can be work product)
- Judicial Watch, Inc. v. U.S. Dep’t of Justice, 432 F.3d 366 (D.C. Cir.) (work-product shielding entire documents where intertwined)
- Bowen v. FDA, 925 F.2d 1225 (9th Cir.) (detailed technical investigative methods may be withheld under Exemption 7(E))