United States District Court, District of Columbia
Arthur B. Spitzer, American Civil Liberties Union of the Nation's Capital, David L. Sobel, Electronic Frontier Foundation, Washington, DC, Catherine Crump, American Civil Liberties Union Foundation, New York, NY, for Plaintiff.
John Russell Tyler, Jonathan Gordon Cooper, U.S. Department of Justice, Washington, DC, for Defendant.
AMY BERMAN JACKSON, District Judge.
This case has been remanded to the District Court to resolve a factual question. The Court has now resolved tat question and because its resolution does not affect the original decision, Am. Civil Liberties Union v. DOJ (ACLU), 698 F.Supp.2d 163 (D.D.C.2010), the Court reaffirms that decision.
Plaintiffs American Civil Liberties Union and the American Civil Liberties Union Foundation (together " ACLU" ) brought this action against the Department of Justice (" DOJ" ) under the Freedom of Information Act (" FOIA" ). They sought to obtain, among other things, the case names and docket numbers of " all criminal prosecutions, current or past, of individuals who were tracked using mobile location data, where the government did not first secure a warrant based on probable cause of such data." Request Under Freedom of Information Act to Executive Office for U.S. Attorneys, Ex. 2 to Def.'s Mot. for Summ. J. [Dkt. # 26] (" Def.'s First Mot." ) at 2; Request Under Freedom of Information Act to Drug Enforcement Administration, Ex. 3 to Def.'s First Mot. at 2. DOJ moved for summary judgment, arguing that FOIA Exemptions 6 and 7(C) justified the categorical withholding of all responsive records. [Dkt. # 26]. ACLU filed a cross-motion for summary judgment. [Dkt. # 29].
In 2010, the court granted in part and denied in part both motions. Order (Mar. 26, 2010) [Dkt. # 40]. It set out the standards for Exemptions 6 and 7(C): " Exemption 7(C) permits withholding when disclosure ‘ could reasonably be expected to constitute an unwarranted invasion of personal privacy,’ while Exemption 6 permits withholding only when disclosure would constitute a clearly unwarranted invasion of personal privacy.' " ACLU, 698 F.Supp.2d at 165. Applying the balancing test that these standards both require, the Court then found:
[T]he public interest in ‘ what the government is up to’ outweighs the privacy interests of persons who have been convicted
of crimes or have entered public guilty pleas; but ... the privacy interests of persons who have been acquitted, or whose cases have been sealed and remain under seal, or whose charges have been dismissed, outweigh the public interest in disclosure of their names and case numbers.
Both sides appealed. In a decision issued on September 6, 2011, the Court of Appeals for the D.C. Circuit upheld the court's decision as to the category of responsive records from cases that resulted in convictions or public guilty pleas. Am. Civil Liberties Union v. DOJ (ACLU II), 655 F.3d 1, 16 (D.C.Cir.2011). The Court agreed that the privacy interests of defendants in those cases " are weaker than for individuals who have been acquitted or whose cases have been dismissed ... [a]nd they are plainly substantially weaker than the privacy interests of individuals who have been investigated but never publicly charged at all." Id. at 7. It held that the relatively weak privacy interest of the convicted individuals was not sufficient to outweigh the public interest in disclosure of the records. Id. at 16.
As to the other category of responsive records, the court of appeals stated that the distinction between cases that resulted in public convictions or guilty pleas and cases that resulted in acquittals or dismissals or that remain under seal " makes some intuitive sense" because of the difference in the strength of the privacy interests involved. Id. at 17; see also id. at 18 (" [I]t is one thing to disclose the identities of targets who were eventually convicted in public proceedings; but the privacy calculus becomes increasingly more significant if disclosure extends to those who were acquitted...." ). But the court also observed that whether the difference in privacy interests between the two groups of defendants " is enough of a distinction to justify withholding under Exemption 7(C) is a harder question." Id. at 17.
The court of appeals did not go on to answer the question. Rather, it pointed out that because the district court devised the distinction between the two groups of cases sua sponte, the record was silent as to whether any of the withheld records involved cases that resulted in acquittals or ...