American Civil Liberties Union of Northern California v. United States Department of Justice

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMERICAN CIVIL LIBERTIES UNION No. 14-17339

OF NORTHERN CALIFORNIA,

Plaintiff-Appellee, D.C. No.

3:12-cv-04008-

v. MEJ

UNITED STATES DEPARTMENT OF

JUSTICE, OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of California

Maria-Elena James, Magistrate Judge, Presiding

Argued and Submitted December 12, 2016

San Francisco, California

Filed January 18, 2018

Before: Michael Daly Hawkins, Marsha S. Berzon,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Berzon

2 ACLU V. USDOJ

SUMMARY*

Freedom of Information Act

The panel affirmed in part, and reversed in part, the

district court’s order that the United States Department of

Justice (“DOJ”) produce two documents contained within the

USABook, an internal DOJ resource manual for federal

prosecutors, in response to the American Civil Liberties

Union of Northern California’s Freedom of Information Act

(“FOIA”) request.

The requested documents related to DOJ’s use of

electronic surveillance and tracking devices in criminal

investigations. DOJ maintained that the USABook sections

were exempt from production under FOIA because they were

attorney work product, and, alternatively, because they

described law enforcement techniques and procedures.

The panel held 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 panel also held that the withheld

documents in this case did not provide details or means of

deploying law enforcement techniques that would bring them

under FOIA Exemption 7(E). The panel remanded to the

district court to determine which portions of the documents

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ACLU V. USDOJ 3

may be segregated under Exemption 5 and which must be

disclosed.

COUNSEL

H. Thomas Byron III (argued) and Leonard Schaitman,

Appellate Staff; Melinda Haag, United States Attorney;

United States Department of Justice, Washington, D.C.; for

Defendant-Appellant.

Linda Lye (argued) and Michael T. Risher, American Civil

Liberties Union Foundation of Northern California Inc., San

Francisco, California, for Plaintiff-Appellee.

OPINION

BERZON, Circuit Judge:

The United States Department of Justice (DOJ) appeals

the district court’s order that it produce two documents

contained within the USABook, an internal DOJ resource

manual for federal prosecutors, in response to the American

Civil Liberties Union of Northern California’s (ACLU-NC)

Freedom of Information Act (FOIA or “the Act”) request.

The documents relate to DOJ’s use of electronic surveillance

and tracking devices in criminal investigations. DOJ

maintains that the USABook sections are exempt from

production under FOIA because they are attorney work

product, and, alternatively, because they describe law

enforcement techniques and procedures. We hold that only

the limited portions of the USABook documents that present

original legal analyses, not purely descriptive and not already

4 ACLU V. USDOJ

incorporated in public documents, to guide federal

prosecutors in litigation were properly withheld as attorney

work product under FOIA Exemption 5. We also hold that

the withheld documents in this case do not provide details or

means of deploying law enforcement techniques that would

bring them under FOIA Exemption 7(E). We remand to the

district court to determine which portions of the documents

may be segregated under Exemption 5 and which must be

disclosed.

I. Background

ACLU-NC, a civil rights group and local affiliate of the

national ACLU, submitted a request for records under FOIA,

5 U.S.C. § 552, to the U.S. Attorney’s Office for the Northern

District of California.1 The request sought information

regarding the U.S. Attorney’s Office’s practices regarding

obtaining location information from electronic devices for

tracking and surveillance purposes. The ACLU-NC request

was part of a national ACLU campaign to shed light on the

federal government’s use of various surveillance technologies

in criminal investigations. ACLU-NC also sought to assess

whether the government’s law enforcement practices in this

regard comport with constitutional protections, especially in

light of the Supreme Court’s decision in United States v.

1

ACLU-NC submitted its FOIA request in conjunction with the San

Francisco Bay Guardian, an independent newspaper, and the Bay

Guardian was a party to this suit as initially filed. After the case was

appealed, the parties jointly moved to dismiss the Bay Guardian as a party

because the entity no longer publishes a newspaper or otherwise

disseminates information to the public. The district court granted that

order, and we then dismissed the San Francisco Bay Guardian from this

appeal. For simplicity, we refer only to the ACLU-NC as the requestor

and plaintiff in this litigation.

ACLU V. USDOJ 5

Jones, 565 U.S. 400 (2012). Jones held that installing a

Global Positioning System (GPS) device on a suspect’s

vehicle and using that device for sustained location

monitoring constitutes a Fourth Amendment search.

In its FOIA request, ACLU-NC sought to obtain from the

U.S. Attorney’s Office for the Northern District of California,

in relevant part,

(1) Any template applications or orders that

have been utilized by United States Attorneys

in the Northern District to seek or acquire

location information since January 1, 2008.

(2) Any documents since January 1, 2008,

related to the use or policies of utilizing any

location tracking technology, including but

not limited to cell-site simulators or digital

analyzers such as devices known as Stingray,

Triggerfish, AmberJack, KingFish or

Loggerhead.2

(3) Any records related to the Supreme

Court’s holding in United States v. Jones,

excluding pleadings or court opinions filed in

2

Cell-site simulators are “devices that masquerade as a legitimate cell

phone tower, tricking phones nearby into connecting to the device in order

to log the [identifying] numbers of mobile phones in the area or capture

the content of communications.” See Electronic Frontier Foundation,

Cell-Site Simulators: Frequently Asked Questions,

https://www.eff.org/sls/tech/cell-site-simulators/faq (last visited Aug. 31,

2017).

6 ACLU V. USDOJ

the matter in the Supreme Court or courts

below.3

ACLU-NC asked for expedited processing of its

information request pursuant to 5 U.S.C. § 552(a)(6)(E),4

citing a “widespread media interest in government

surveillance methods using new technology to collect

detailed, sensitive, personal information” and an “urgency to

inform the public about the scope of the government’s

practices because of pending legislation on these very issues.”

Shortly after submitting the FOIA request, ACLU-NC

received a notice from the U.S. Attorney’s Office for the

Northern District of California stating that the request had

been forwarded to DOJ; DOJ processes all FOIA requests

received by U.S. Attorney’s Offices. Soon thereafter, the

Executive Office for United States Attorneys (EOUSA or

“the Office”), a department within DOJ, in turn

3

The FOIA request included a fourth portion, which the district court

bifurcated for summary judgment purposes because it raised distinct

factual and legal questions. Despite this bifurcation, we have jurisdiction

over the government’s appeal of the district court’s grant of partial

summary judgment regarding part of the FOIA request. A “‘final

decision’ in a FOIA case [is] ‘an order by the District Court requiring

release of documents by the Government to the plaintiff, or order denying

the plaintiff’s right to such release.’” In re Steele, 799 F.2d 461, 464 (9th

Cir. 1986) (quoting Green v. Dep’t of Commerce, 618 F.2d 836, 841 (D.C.

Cir. 1980)). “[A]n order compelling disclosure is [therefore] appealable

as a final decision under [28 U.S.C.] § 1291.” Id.

4

Section 552(a)(6)(E)(i) provides: “Each agency shall promulgate

regulations, pursuant to notice and receipt of public comment, providing

for the expedited processing of requests for records—(I) in cases in which

the person requesting the records demonstrates a compelling need; and

(II) in other cases determined by the agency.”

ACLU V. USDOJ 7

acknowledged receipt of the request and informed ACLU-NC

that it would expedite processing.

Several months passed during which ACLU-NC received

no further communication from DOJ regarding its request.

After inquiring about the status of the request and receiving

no response, ACLU-NC commenced this action.

The complaint alleged that DOJ had wrongfully withheld

agency records under FOIA and requested that the court order

DOJ to process its request for information expeditiously.

DOJ admitted in its answer that it had not produced any

documents or otherwise responded to the FOIA request.

The parties then conferred extensively regarding the

processing of the document request. Their discussions

resulted in a stipulation clarifying, with respect to the

portions of the request relevant here, (1) the scope of the

request, and (2) the procedures DOJ would follow to identify

responsive documents in the possession of the U.S.

Attorney’s Office for the Northern District of California.

EOUSA completed a search for responsive documents

within a few months, in accordance with the stipulation. The

Office identified potentially responsive records authored by

that division. It also flagged other potentially responsive

records authored and maintained by DOJ’s Criminal Division

and referred those records to that division for it to make a

decision regarding disclosure. The two DOJ Divisions then

separately released to ACLU-NC some responsive documents

and withheld others, claiming statutory exemptions for the

withheld documents. EOUSA released 41 pages in full and

withheld 18 pages in full. The Criminal Division released

2 pages in full, 3 pages in part, and withheld 530 pages.

8 ACLU V. USDOJ

DOJ then filed a motion for partial summary judgment,

arguing that the withheld documents were subject to FOIA

Exemptions 5 and 7(E).5 In support of its motion, DOJ filed

declarations by John Kornmeier, an attorney advisor with

EOUSA, and John E. Cunningham III, a trial attorney with

the FOIA/Privacy Act Unit of the Office of Enforcement

Operations in DOJ’s Criminal Division. The declarations

explained each division’s rationales for withholding certain

records. Along with the declarations, the DOJ Divisions each

produced a Vaughn index6 describing briefly the format and

content of the withheld records and the justifications for

withholding.

The DOJ declarations and Vaughn indices reveal that the

agency withheld portions of seven distinct documents.

EOUSA withheld a document containing template

applications and orders for the use of pen registers and trap

and trace devices, as well as select slides from a PowerPoint

presentation containing DOJ’s interpretations of the law

governing the use of location tracking devices. EOUSA

5

This motion and the ACLU-NC’s cross-motion were partial because

they related only to three of the four parts of the FOIA request, one part

having been scheduled for separate summary judgment briefing. See note

3, supra.

6

“A ‘Vaughn index’ is a document supplied by government agencies

to opposing parties and the court [in FOIA litigation] that identifies ‘each

document withheld, the statutory exemption claimed, and a particularized

explanation of how disclosure of the particular document would damage

the interest protected by the claimed exemption,’ and the index is designed

to provide reasoning against which the requester can offer effective

advocacy and a basis for the court to reach a reasoned decision.” Hamdan

v. U.S. Dep’t. of Justice, 797 F.3d 759, 769 n.4 (9th Cir. 2015) (quoting

Wiener v. FBI, 943 F.2d 972, 977 (9th Cir. 1991)); see also Vaughn v.

Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).

ACLU V. USDOJ 9

maintained both documents were properly withheld under

FOIA Exemption 5, which exempts attorney work product

from disclosure.

The Criminal Division withheld three legal memoranda

analyzing the implications of two relevant cases—United

States v. Jones, 565 U.S. 400 (2012), and In re Application,

534 F. Supp. 2d 585 (W.D. Pa. 2008)—on the agency’s use

of GPS tracking and other investigative techniques. The three

memoranda additionally provided guidance on the making of

requests for historical cellular telephone location information.

The Criminal Division also withheld two sections of the

USABook that were responsive to ACLU-NC’s FOIA

request. The USABook is an internal DOJ resource manual

for federal prosecutors found on DOJ’s intranet site. As

Cunningham explained, the “USABook functions as a legal

resource book or reference guide for federal prosecutors.”

Among many other matters, the USABook addresses the use

of electronic surveillance and tracking devices. The two

pertinent sections of the USABook DOJ withheld were:

(1) The “Tracking Devices Manual,” which consists of both

a narrative section and an appendix containing sample

affidavits, warrants, and court orders regarding authorization

to obtain cellular phone location data, and (2) a chapter of the

Federal Narcotics Manual titled “Electronic Surveillance-

Non-Wiretap.” The Criminal Division maintained that these

two pertinent but withheld sections of the USABook are

shielded from disclosure by FOIA Exemption 5 because they

are attorney work product, and, alternatively, by FOIA

Exemption 7(E), which protects records compiled for law

enforcement purposes that reveal investigative techniques and

procedures. ACLU-NC filed a cross-motion for partial

10 ACLU V. USDOJ

summary judgment, arguing the claimed FOIA exemptions

did not apply.

Based on the agency declarations and the Vaughn index,

the district court granted in part and denied in part both the

ACLU-NC’s and DOJ’s partial motions for summary

judgment. The district court ordered DOJ to release the

template applications and orders for use of pen registers and

trap and trace devices withheld by EOUSA and the two

sections of the USABook withheld by the Criminal Division.

These records functioned like agency manuals, the district

court concluded, providing general guidance on obtaining

location tracking information and not anticipating any

specific case, and so were improperly withheld under

Exemption 5. The district court also held the withheld

sections of the USABook are not protected by Exemption

7(E), because the documents describe in general terms

publicly known surveillance techniques.

Conversely, the district court granted DOJ’s motion for

summary judgment with respect to (1) the EOUSA

PowerPoint presentation slides on legal issues arising from

the use of location tracking devices; and (2) the three

Criminal Division legal memoranda analyzing the

implications of recent case law regarding GPS location

tracking. These documents were determined to be attorney

work product protected by Exemption 5, because they

provide legal theories and strategies for use in criminal

prosecutions.

In compliance with the district court’s order, DOJ

produced the EOUSA template applications for pen registers

and trap and trace devices, and also handed over the

USABook appendix containing sample affidavits, warrants,

ACLU V. USDOJ 11

and orders. DOJ appealed, however, the district court’s order

with respect to the two narrative sections of the USABook,

the Tracking Devices Manual, and the chapter of the

Narcotics Manual on electronic surveillance. After oral

argument, we reviewed the two narrative sections in camera.

II. Discussion

FOIA was enacted “to pierce the veil of administrative

secrecy and to open agency action to the light of public

scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361

(1976) (internal quotation marks and citation omitted). The

Act “is premised on the theory that in order for democracy to

function properly, citizens must have access to government

information, particularly where access might be ‘needed to

check against corruption and to hold the governors

accountable to the governed.’” Pac. Fisheries Inc. v. United

States, 539 F.3d 1143, 1147 (9th Cir. 2008) (quoting John

Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)).

To that end, FOIA “ attempts to create a judicially

enforceable public right to secure [official] information from

possibly unwilling official hands.” Rose, 425 U.S. at 361

(quoting EPA v. Mink, 410 U.S. 73, 80 (1973)).

Implementing that right, FOIA mandates that government

agencies make their internal records available to the public,

subject to nine enumerated exemptions. See 5 U.S.C.

§ 552(a)–(b).

FOIA’s enumerated exemptions reflect a recognition that

“legitimate governmental and private interests could be

harmed by release of certain types of information.” John Doe

Agency, 493 U.S. at 152 (quoting FBI v. Abramson, 456 U.S.

615, 621 (1982)). At the same time, FOIA’s “exemptions do

not obscure the basic policy that disclosure, not secrecy, is the

12 ACLU V. USDOJ

dominant objective of the Act.” Rose, 425 U.S. at 361.

Consistent with this objective, the only exemptions are the

ones listed in the statute, and they are to be narrowly

construed. Id. Moreover, the government has the burden of

justifying withholding under any of FOIA’s exemptions.

Hamdan, 797 F.3d at 772.

DOJ maintains it properly withheld the two sections of

the USABook because they fall within the ambit of two of

FOIA’s statutory exemptions, Exemptions 5 and 7(E). We

address each exemption in turn.

A.

i.

Exemption 5 of FOIA authorizes the government to

withhold from release, as relevant here, “inter-agency or

intra-agency memorandums or letters that would not be

available by law to a party other than an agency in litigation

with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5

encompasses records “normally privileged in the civil

discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S.

132, 149 (1975). These include records that would be

protected in litigation by the attorney work-product, attorney-

client, and deliberative process privileges. See id. at 150–54.

DOJ maintains that the withheld portions of the USABook

are attorney work product.

The attorney work-product privilege protects from

discovery in litigation “mental impressions, conclusions,

opinions, or legal theories of a party’s attorney” that were

“prepared in anticipation of litigation or for trial.” Fed. R.

Civ. P. 26(b)(3). The privilege was first recognized in

ACLU V. USDOJ 13

Hickman v. Taylor, 329 U.S. 495 (1947), and is codified in

Federal Rule of Civil Procedure 26(b)(3).7

As Hickman recognized, shielding from discovery

materials prepared “with an eye toward the anticipated

litigation” protects the integrity of adversarial proceedings by

allowing attorneys to prepare their thoughts and impressions

about a case freely and without reservation. 329 U.S. at 498,

510–11. The privilege ensures that litigants cannot proceed

“on wits borrowed from the adversary,” id. at 516 (Jackson,

J., concurring), and “prevent[s] exploitation of a party’s

efforts in preparing for litigation.” Holmgren v. State Farm

Mut. Auto. Ins. Co., 976 F.2d 573, 576 (9th Cir. 1992)

(quoting Admiral Ins. Co. v. U.S. Dist. Court for Dist. of

Ariz., 881 F.2d 1486, 1494 (9th Cir. 1989)).

“To qualify for work-product protection, documents must:

(1) be ‘prepared in anticipation of litigation or for trial’ and

(2) be prepared ‘by or for another party or by or for that other

party’s representative.’” United States v. Richey, 632 F.3d

559, 567 (9th Cir. 2011) (quoting In re Grand Jury Subpoena,

357 F.3d 900, 907 (9th Cir. 2004)).8 We apply this general

7

The attorney work-product privilege also applies in criminal

proceedings. United States v. Nobles, 422 U.S. 225, 236 (1975). The

Federal Rules of Criminal Procedure protect government documents more

broadly, providing that the rules “do[] not authorize the discovery or

inspection of reports, memoranda, or other internal government documents

made by an attorney for the government or other government agent in

connection with investigating or prosecuting the case.” Fed. R. Crim. P.

16(a)(2).

8

The attorney work-product privilege is a qualified privilege. A party

seeking discovery can overcome the privilege by showing that she “has

substantial need for the materials . . . and cannot, without undue hardship,

obtain their substantial equivalent by other means.” Fed. R. Civ. P.

14 ACLU V. USDOJ

rule to each type of information contained in the withheld

USABook sections in turn.

As explained above, the DOJ Criminal Division withheld

two portions of the USABook: a section of the Tracking

Devices Manual and a chapter of the Federal Narcotics

Manual entitled “Electronic Surveillance- Non-Wiretap.”

The Criminal Division’s Vaughn index describes the content

of the Tracking Devices Manual as follows: “Provides

guidance to federal prosecutors/case agents re[garding]

electronic surveillance and tracking devices. Text covers the

following: Preface; Roadmap/FAQs; Part 1. – Obtaining

Location Information from Wireless Carriers; Part II: Mobile

Tracking Devices; Part III: Telematics Providers (OnStar,

etc.);9 Appendix.”10 The Vaughn index describes the Federal

26(b)(3)(A)(ii). The qualified nature of the privilege, however, does not

translate into the FOIA context. Exemption 5 “establish[es] a discrete

category of exempt information,” FTC v. Grolier Inc., 462 U.S. 19, 27

(1983), and privileges materials not “normally” available to parties in

litigation, id. at 26 (quoting Sears, 421 U.S. at 149). As a result, although

a party to particular litigation may be able to overcome the privilege by

showing need and hardship, “that does not remove the documents from the

category of the normally privileged” which are protected by Exemption

5. Id. at 28.

9

Telematics refers to telecommunications systems integrated into

automobiles. These include “GPS navigation, integrated hands-free

cellphones, wireless communications and automatic driving assistance

systems. . . . General Motor’s OnStar was the first to combine GPS with

roadside assistance and remote diagnostics.” Definition of Telematics, PC

Magazine, http://www.pcmag.com/encyclopedia/term/52693/telematics

(last visited December 28, 2017).

10

As noted, DOJ released this Appendix in compliance with the

district court’s order. The Appendix itself is not in the appellate record.

According to the Vaughn index, the Appendix included, for example, a

ACLU V. USDOJ 15

Narcotics Manual similarly: “Provides guidance to federal

prosecutors/case agents re[garding] electronic surveillance

and tracking devices. Text discusses electronic tracking

devices- generally and cellular telephone location

information.”

Based on DOJ’s descriptions, including in its briefing and

argument before this court, and confirmed by our in camera

review, we observe that both withheld sections of the

USABook contain three distinct types of information:

(1) technical information about electronic surveillance

technologies, (2) considerations related to seeking court

authorization for obtaining location information, and (3) legal

background and arguments related to motions to suppress

location information in later criminal prosecutions.

ii.

As to technical information, Cunningham explains that

the “USABook . . . identifies factual information regarding

specific types of investigative techniques employed in current

and past criminal investigations.” The Criminal Division’s

Vaughn index more specifically indicates that the document

contains sections regarding obtaining location information

from wireless carriers, mobile tracking devices, and

telematics providers.

template for a model “affidavit in support of [an] application for

authorization to obtain location data” concerning targeted cell phones; a

model “sealed warrant in support of [an] application for authorization to

obtain location data” from a targeted cell phone; form language for use in

requesting future cell-site location information concerning targeted cell

phones; and a model “application for an order authorizing the installation

and use of a pen register and trap/trace device on a” targeted cell phone.

16 ACLU V. USDOJ

The technical information about electronic surveillance

techniques contained in the USABook is not attorney work

product. The function of such information is to inform

investigators and prosecutors about available technologies

that may be relevant to conducting a criminal investigation.

Such technical information assists investigators in the

conduct of their investigations. It does not include the

“mental impressions, conclusions, opinions, or legal theories

of a party’s attorney” that were “prepared in anticipation of

litigation or for trial.” Fed. R. Civ. P. 26(b)(3). Because this

category of information is not attorney work product, it does

not fall under Exemption 5 and must be disclosed.

iii.

The portions of the USABook documents that discuss ex

parte applications for judicial approval of the use of particular

surveillance techniques and methods present a closer

question. Our in camera review confirms that these portions

of the documents contain two distinct types of material:

(1) instructions and guidance to federal investigators and

prosecutors regarding the type of court authorization they can

pursue to obtain particular types of electronic surveillance

information and (2) legal arguments in support of this

authorization.

Instructions to investigators on securing court

authorization to obtain location information about a suspect,

including the type of authorization required, are not attorney

work product, as they can serve a non-adversarial purpose.

Even if we view the portions of the USABook containing

such instructions as serving both a non-litigation and a

litigation purpose, recognizing that criminal investigations

often do lead to prosecutions, the documents do not satisfy

ACLU V. USDOJ 17

this circuit’s “because of” test for such so-called “dual

purpose documents.” See In re Grand Jury Subpoena,

357 F.3d at 907 (internal quotation marks omitted). When a

document was not prepared exclusively for litigation, it

“should be deemed prepared ‘in anticipation of litigation’ and

thus eligible for work product protection . . . if ‘in light of the

nature of the document and the factual situation in the

particular case, the document can be fairly said to have been

prepared or obtained because of the prospect of litigation.’”

Id. (quoting Charles Alan Wright, Arthur R. Miller, and

Richard L. Marcus, 8 Federal Practice & Procedure § 2024

(2d ed. 1994)). A dual purpose document is considered

“prepared or obtained because of the prospect of litigation”

if it “would not have been created in substantially similar

form but for the prospect of . . . litigation.” Id. at 907–08

(internal quotations omitted) (quoting United States v.

Adlman, 134 F.3d 1194, 1195 (2d Cir. 1998)).

The portions of the USABook that provide instructions to

investigators regarding obtaining court authorization for

electronic surveillance would have been created in

“substantially similar form” regardless of whether those

investigations ultimately lead to criminal prosecutions. See

id. Of course, all criminal investigations can potentially lead

to litigation, and the authorization necessary to obtain certain

types of evidence is commonly disputed in the context of

motions to suppress in criminal proceedings. But the fact that

litigation may arise in which the legal sufficiency of the

authorization to obtain evidence is disputed does not change

the fact that the government must instruct its staff about how

to conduct criminal investigations regardless of whether those

investigations lead to later prosecutions.

18 ACLU V. USDOJ

Moreover, protecting DOJ’s instructions to investigators

and prosecutors about matters not prepared “because of” the

prospect of litigation would not serve the core purpose of the

attorney work-product privilege, which is “to encourage

effective legal representation within the framework of the

adversary system by removing counsel’s fears that his

thoughts and information will be invaded by his adversary.”

Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 775 (D.C. Cir.

1978). The “focus on the integrity of the trial process is

reflected in the specific limitation of the [work-product]

privilege to materials ‘prepared in anticipation of litigation or

for trial.’” Id. (footnote omitted). “[M]aterials serving no

cognizable adversarial function, such as policy manuals,

generally would not constitute work product.” Nat’l Ass’n of

Criminal Def. Lawyers v. Dep’t of Justice Exec. Office for

United States Attorneys, 844 F.3d 246, 255 (D.C. Cir. 2016).

In contrast, the portions of the USABook that present

legal arguments supporting the agency’s positions on the type

of authorization necessary to obtain electronic information

are attorney work product. These portions of the documents

reflect the legal theories of DOJ’s attorneys. They are

included in the USABook to assist prosecutors faced with

defending in court the government’s position on the

authorization necessary to obtain certain types of evidence.

See Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d

124, 127 (D.C. Cir. 1987) (holding that internal agency

memoranda that “advise the agency of the types of legal

challenges likely to be mounted against a proposed program,

potential defenses available to the agency, and the likely

outcome” are attorney work product properly withheld under

Exemption 5 of FOIA). Although these issues may arise first

in ex parte proceedings, similar legal issues recur at trial in

the context of motions to suppress.

ACLU V. USDOJ 19

The ACLU argues that the general legal analyses

contained in the USABook about court authorization for

electronic surveillance are not exempt under FOIA as

attorney work product because they are not directed at any

particular case or claim. The ACLU posits that when the

government acts to enforce the law as a prosecutor or

investigator, FOIA’s Exemption 5 protects only attorney

work product developed in anticipation of a specific claim in

a particular case.

We do not find this argument persuasive as a broad,

inflexible proposition, though it has some force as one factor

in assessing whether a particular document is work product

and therefore within FOIA Exemption 5. 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.”

Hickman, 329 U.S. at 510.

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. As the D.C. Circuit has

observed, “the prospect of future litigation touches virtually

any object of a prosecutor’s attention, and . . . the work

product exemption, read over-broadly, could preclude almost

all disclosure from an agency with substantial responsibilities

20 ACLU V. USDOJ

for law enforcement.” SafeCard Servs., Inc. v. SEC, 926 F.2d

1197, 1203 (D.C. Cir. 1991) (internal citation and quotation

marks omitted). So, in holding that the privilege protects

detailed legal analysis regarding frequent litigating positions

of a law enforcement agency, we do not suggest that any

document prepared by a DOJ lawyer is privileged.

Our holding is consistent with the law of the D.C. Circuit.

That court considered and rejected a specific-claim

requirement in a similar context in National Association of

Criminal Defense Lawyers v. Department of Justice Executive

Office for United States Attorneys, 844 F.3d 246 (D.C. Cir.

2016). National Association of Criminal Defense Lawyers

involved a request under FOIA to DOJ to release the Federal

Criminal Discovery Blue Book, “a manual created by [DOJ]

to guide federal prosecutors” in conducting discovery in

criminal prosecutions. Id. at 249. Like the requested

documents in this case, the Discovery Blue Book provides

general guidelines to prosecutors, addresses recurring issues

in criminal cases, and was not created for any specific case.

Applying the same “because of” test that governs in this

circuit, the D.C. Circuit determined that the Discovery Blue

Book was prepared in anticipation of litigation, and so

properly withheld under FOIA Exemption 5, because it

provided practical, “how-to” advice regarding discovery

during litigation. Id. at 251–52.

Like ACLU-NC here, the organization that submitted the

FOIA request in National Association of Criminal Defense

Lawyers argued that the Discovery Blue Book was not

exempt under FOIA because it “was not prepared in

anticipation of litigating a specific claim or case.” Id. at 252.

Interpreting its prior cases, the D.C. Circuit rejected that

argument, holding that “there is no general, overarching

ACLU V. USDOJ 21

requirement that a governmental document can fall within the

work-product privilege only if prepared in anticipation of

litigating a specific claim.” Id. at 253. The court concluded

that because the Discovery Blue Book “is aimed directly for

use in (and will inevitably be used in) litigating cases,” “[i]ts

disclosure . . . risks revealing DOJ’s litigation strategies and

legal theories regardless of whether it was prepared with a

specific claim in mind.” Id. at 254.

At the same time, the D.C. Circuit recognized that in

some circumstances “the existence (or non-existence) of a

specific claim [is] salient . . . as a means of identifying

whether documents ha[ve] been prepared at a time when

litigation was sufficiently in mind” to warrant work-product

protection. Id. at 255. We agree with that caveat as well.

Without it, routine DOJ communications to its many staff

attorneys concerning new legal developments—essentially,

continuing legal education messages—would become work

product, immune from both civil discovery and FOIA

disclosure. But even with that substantial caveat regarding

generic legal material, we conclude that the sections of the

USABook that detail DOJ’s developed legal arguments

regarding the process of obtaining court authorization for

certain forms of location data fall within Exemption 5.

iv.

As to portions of the USABook that contain legal

background and analyses concerning suppression motions:

Material that simply lists relevant case law and recites case

holdings is not protected by the attorney work-product

privilege or Exemption 5. These sections provide objective

descriptions of cases and so more closely resemble continuing

legal education resources for DOJ attorneys than attorney

22 ACLU V. USDOJ

work product. Unless a given portion of the document here

at issue contains some original analysis—particularized

arguments, strategies, or tactics generated in anticipation of

litigation, even if not for a particular claim—it cannot claim

the protection of Exemption 5.

In contrast, the portions of the USABook that contain

legal analyses and specific arguments that DOJ attorneys can

make in response to suppression motions are attorney work

product, and so are covered by Exemption 5. Like the

sections presenting legal arguments regarding the necessary

authorization for certain investigative techniques, these

sections reflect the drafting attorney’s mental impressions and

analysis and were prepared in anticipation of recurring

challenges in litigation. For the reasons discussed above, no

specific claim is necessary for such legal analyses to

sufficiently anticipate litigation and thus warrant attorney

work-product protection.

v.

The district court held the Criminal Division documents

not to be attorney work product at all. We remand for the

district court to conduct a segregability analysis in

accordance with this opinion. See 5 U.S.C. § 552(b) (“Any

reasonably segregable portion of a record shall be provided

to any person requesting such record after deletion of the

portions which are exempt under this subsection.”). Further

briefing from the parties and in camera review by the district

court could aid in that process.

We recognize that the work-product privilege “shields

both opinion and factual work product from discovery” and

that ordinarily “if a document is covered by the attorney

ACLU V. USDOJ 23

work-product privilege, the government need not segregate

and disclose its factual contents.” Pacific Fisheries, 539 F.3d

at 1148; accord Judicial Watch, Inc. v. U.S. Dep’t of Justice,

432 F.3d 366, 372 (D.C. Cir. 2005) (holding that when

documents constitute attorney work product “the entire

contents of the[] documents—i.e., facts, law, opinions, and

analysis—are exempt from disclosure under FOIA”). By

contrast, where only portions of the documents are covered

by the privilege, the non-exempt parts may be appropriately

segregated and disclosed. Compare Nat’l Ass’n of Criminal

Def. Lawyers, 844 F.3d at 257 (“[T]here may . . . be cases in

which a record containing some amount of work product also

contains . . . segregable, non-exempt material subject to

disclosure.”), with Judicial Watch, 432 F.3d at 370 (“Each of

the nine documents, in its entirety, is work product. There are

no non-work product parts of the emails. In other words,

there are no segregable parts.”).

Here, the requested excerpts of the USABook only

partially consist of work product exempt from disclosure. As

discussed above, the 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 segregable sections of these documents are therefore

quite unlike factual material intertwined with legal analysis

in a document prepared by an attorney in anticipation of

litigating a specific case. See, e.g., Judicial Watch, 432 F.3d

24 ACLU V. USDOJ

at 367–68, 370 (holding each of the nine disputed emails

about a possible DOJ amicus filing in a particular case was,

in its entirety, non-segregable work product). Where the

requested document is generic, pertaining to a broad class of

future cases, it should generally be easier to separate material

that is exempt from material that is non-exempt. In

documents created for specific litigation, in contrast, non-

exempt material may be so closely intertwined with

information pertaining to the specific case that the two

categories of material cannot be easily separated.

In National Association of Criminal Defense Lawyers, for

instance, the D.C. Circuit remanded to the district court to

assess whether there were “logically divisible sections” of

non-exempt material in the 500-page discovery manual for

U.S. Attorneys (the Discovery Blue Book) that could be

reasonably segregated. 844 F.3d at 257 (instructing the

district court to see whether “nonexempt statements of

policy” were segregable from non-exempt material). Because

the Discovery Blue Book was not prepared for a specific

lawsuit but rather as a generic resource for all future

litigation, it was possible for some portions—but not

others—to be prepared in anticipation of litigation and thus

exempt from disclosure.

So too here; the USABook is a generic resource rather

than a case-specific work product, and the portions of it not

prepared in anticipation of litigation may be segregable from

those that were. Consistent with our discussion in Part II.A.iv

supra, broad recitations of case holdings and summaries of

applicable law, if segregable, must be disclosed. Only

analytic portions bearing upon, and prepared in advance of,

litigation are exempt.

ACLU V. USDOJ 25

Our holding is consistent with the principle that “[t]he

focus of the FOIA is information, not documents, and an

agency cannot justify withholding an entire document simply

by showing that it contains some exempt material.” Mead

Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260

(D.C. Cir. 1977). Accordingly, we order the segregation of

the portions of the USABook sections that are not exempt as

attorney work product.

vi.

The ACLU-NC argues that even if the withheld portions

of the USABook are attorney work product, they must be

disclosed because they constitute DOJ’s “working law.”

The Supreme Court has recognized a “working law”

exception to Exemption 5. The exception has been applied

only to documents that would otherwise be exempt under the

deliberative process privilege, which DOJ does not invoke

here. And the premises underlying the working law

exception have no application in the attorney work-product

context.

The deliberative process privilege protects the internal

decision making processes of government agencies, including

“documents ‘reflecting advisory opinions, recommendations

and deliberations comprising part of a process by which

governmental decisions and policies are formulated.’” Sears,

421 U.S. at 150 (quoting Carl Zeiss Stiftung v. V. E. B. Carl

Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). The working

law exception places a boundary on the deliberative process

privilege, requiring disclosure of “opinions and

interpretations which embody the agency’s effective law and

policy” and “have the force and effect of law.” Id. at 153

26 ACLU V. USDOJ

(internal quotations omitted). The distinction rests on the

consideration that “the public is vitally concerned with the

reasons which . . . suppl[ied] the basis for an agency policy

actually adopted,” id. at 152, and is consistent with the

“strong congressional aversion to secret agency law”

reflected in FOIA. Id. at 153 (internal quotations and

alterations omitted) (citing Davis, The Information Act: A

Preliminary Analysis, 34 U. Chi. L. Rev. 761, 797 (1967)).

The requirement that an agency’s working law be disclosed

is in essence an extension of FOIA’s affirmative requirement

that agencies index and make available to the public “final

opinions . . . made in the adjudication of cases” and

“statements of policy and interpretations which have been

adopted by the agency.” 5 U.S.C. § 552(a)(2).

No similar rationale justifies extending the working law

exception to the attorney work-product privilege as

incorporated in Exemption 5. Moreover, the Supreme Court

has held that any final agency opinion or policy interpretation

“subject to the affirmative disclosure requirement of

§ 552(a)(2) [i]s nevertheless shielded from disclosure under

Exemption 5 [if] it contain[s] a privileged attorney’s work

product.” Fed. Open Mkt. Comm. of Fed. Reserve Sys. v.

Merrill, 443 U.S. 340, 360 n.23 (1979) (citing Sears,

421 U.S. at 160). We agree with the D.C. Circuit that the

same rule extends to working law, and that an agency

therefore “need not segregate and release agency working law

from [documents] withheld in their entirety pursuant to the

attorney work product privilege.” Tax Analysts v. IRS,

294 F.3d 71, 76 (D.C. Cir. 2002) (affirming and adopting the

reasoning of Tax Analysts v. IRS, 152 F. Supp. 2d 1, 18–25

(D.D.C. 2001), which held that, under Merrill, “as long as . . .

documents . . . were prepared in anticipation of litigation or

ACLU V. USDOJ 27

for trial, they can be withheld, including any agency working

law that they may contain”).

vii.

Finally, we note that DOJ has frequently and recently

litigated questions regarding the type of court authorization

necessary to obtain various types of electronic surveillance

information, both in the context of ex parte government

applications for court authorization and motions to suppress

location evidence at trial. See, e.g., United States v.

Carpenter, 819 F.3d 880, 883 (6th Cir. 2016), cert. granted,

137 S. Ct. 2211 (U.S. June 5, 2017) (No. 16-402) (reviewing

denial of motion to suppress cell-site data obtained from a

service provider pursuant to a court order under the Stored

Communications Act, 18 U.S.C. § 2703(d)); In re Application

of U.S. for an Order Directing a Provider of Elec. Commc’n

Serv. to Disclose Records to Gov’t, 620 F.3d 304, 305 (3d

Cir. 2010) (government application pursuant to 18 U.S.C.

§ 2703(d) for a court order compelling a cellular phone

provider to provide historical cellular tower data). The

Tracking Devices manual was drafted in August 2009 and

was last revised in 2011. Because of the age of the

documents, DOJ may have presented the legal positions and

arguments contained in those internal documents in court

filings.

“[M]aterials normally immunized from disclosure under

FOIA lose their protective cloak once disclosed and preserved

in a permanent public record.” Cottone v. Reno, 193 F.3d

550, 554 (D.C. Cir. 1999). Accordingly, the district court on

remand should determine whether DOJ has officially

acknowledged and publicly disclosed the litigating positions

reflected in the withheld portions of the USABook. To the

28 ACLU V. USDOJ

extent DOJ has made its litigating positions public, the

purposes of Exemption 5 would not be served by withholding

documents recommending those positions. “The ‘logic of

FOIA’ postulates that an exemption can serve no purpose

once information . . . becomes public.” Id. at 555 (quoting

Niagra Mohawk Power Corp. v. U.S. Dep’t of Energy,

169 F.3d 16, 19 (D.C. Cir. 1999)).

B.

Because we hold that some portions of the USABook are

not exempt as attorney work product under Exemption 5, we

now address DOJ’s argument that the documents also fall

within the scope of Exemption 7(E).

Exemption 7(E) protects from disclosure “records or

information compiled for law enforcement purposes, but only

to the extent that the production of such law enforcement

records of information . . . would disclose techniques and

procedures for law enforcement investigations or

prosecutions, or would disclose guidelines for law

enforcement investigations or prosecutions if such disclosure

could reasonably be expected to risk circumvention of the

law.” 5 U.S.C. § 552(b)(7)(E). The statutory requirement

that the government show that disclosure “could reasonably

be expected to risk circumvention of the law” applies only to

guidelines for law enforcement investigations or

prosecutions, not to techniques and procedures. Hamdan,

797 F.3d at 778 (citing Allard K. Lowenstein Int’l Human

Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678, 681

(2d Cir. 2010)). The documents at issue here contain both

descriptions of “techniques and procedures” and “guidelines

for law enforcement investigations or procedures,” so we

consider both categories.

ACLU V. USDOJ 29

“Exemption 7(E) only exempts investigative techniques

not generally known to the public.” Rosenfeld v. U.S. Dep’t

of Justice, 57 F.3d 803, 815 (9th Cir. 1995). If an agency

record discusses “the application of [a publicly known

technique] to . . . particular facts,” the document is not

exempt under 7(E). Id. But if a record describes a “specific

means . . . rather than an application” of deploying a

particular investigative technique, the record is exempt from

disclosure under FOIA. Hamdan, 797 F.3d at 777–78.

Likewise, records that provide a “detailed, technical analysis

of the techniques and procedures used to conduct law

enforcement investigations” may properly be withheld under

Exemption 7(E). Bowen v. FDA, 925 F.2d 1225, 1228–29

(9th Cir. 1991).

Applying these standards, we held in Hamdan that the

Federal Bureau of Investigation (FBI) properly withheld

agency records that described specific means of carrying out

surveillance and conducting credit searches, even though

those general techniques are well known to the public.

Hamdan, 797 F.3d at 777–78. The documents were exempt,

we reasoned, because they revealed specific information

about law enforcement methods of locating and apprehending

suspects not publicly known and, if revealed, would

compromise the ability of the FBI to use those techniques.

Id. at 778. We similarly held in Bowen v. FDA that details

about how law enforcement agents trace cyanide tampering

could properly be withheld under Exemption 7(E), even

though general information about tracing as an investigative

method was known to the public. 925 F.2d at 1229. In

contrast, we held in Rosenfeld that records disclosing the use

of a particular individual’s identity to make a pretext phone

call merely described the application of a generally known

30 ACLU V. USDOJ

investigative technique and so were not subject to Exemption

7(E). 57 F.3d at 815.

In this case, the DOJ Criminal Division maintains that the

withheld portions of the USABook “discuss such non-public

details as where, when, how, and under what circumstances

electronic surveillance, tracking devices and non-wiretap

electronic surveillance investigative techniques are used,”

information which “could provide individuals with

information that would allow them to violate the law while

evading detection by federal law enforcement.” We cannot

agree with the government as to Exemption 7(E).

The contested documents describe generally methods for

using various technologies to obtain a suspect’s location

information, including from wireless carriers, mobile tracking

devices, vehicle telematics systems, and Internet Protocol (IP)

addresses. These are all publicly known investigative

techniques. The documents provide basic technical

information about each surveillance method, describe the

legal authorization necessary for obtaining location

information, and describe legal arguments related to that

acquisition. But, as our review of the documents confirms,

they lack any “detailed, technical analysis” of these

investigatory techniques. See Bowen, 925 F.2d at 1228.

Although we must “give considerable deference to agency

affidavits made in apparent good faith,” Hamdan, 797 F.3d at

772, based on our in camera review we conclude that the

documents do not contain non-public details regarding the use

of these surveillance techniques. Accordingly, unlike in

Hamdan and Bowen, the withheld documents in this case do

not reveal details or means of deploying law enforcement

techniques that would bring them within the ambit of

Exemption 7(E).

ACLU V. USDOJ 31

The documents also constitute “guidelines for law

enforcement investigations and prosecutions” in that they

provide instructions to investigators and prosecutors

regarding how to lawfully obtain electronic location

information. Such guidelines are only protected by

Exemption 7(E) if their disclosure would present a risk of

circumvention of legitimate government surveillance, and the

law, by wrongdoers. See 5 U.S.C. § 552(b)(7)(E). These

documents do not present such a risk. Apart from providing

publicly known, basic technical information about

surveillance techniques, the two disputed sections of the

USABook guide prosecutors on the legal steps necessary to

use such techniques in their investigations and prosecutions.

Such information about how the government obtains

authorization to collect that information and how it defends

its collection in later litigation may be of use to a lawyer

litigating against the agency, but it provides no relevant

information that would assist criminals in conforming their

behavior to evade detection or circumvent the law. As

disclosure of the guidelines cannot reasonably be expected to

risk circumvention of the law, the guidelines are not exempt

under 7(E).

III. Conclusion

For the foregoing reasons, we AFFIRM in part and

REVERSE in part the decision of the district court and

REMAND for further proceedings consistent with this

opinion.