The US Court of Appeals for the Ninth Circuit [official website] on Thursday ordered [opinion, PDF] the Department of Justice (DOJ) [official website] to disclose two documents within an internal DOJ resource manual for federal prosecutors related to electronic surveillance and tracking devices in criminal investigations.
The American Civil Liberties Union of Northern California [advocacy website] filed a Freedom of Information Act (FOIA) request for the documents, and the DOJ claimed the documents were exempt under FOIA Exemptions 5 and 7(E). Exemption 5 relates to attorney work product, while exemption 7(E) relates to details or means of deploying law enforcement techniques.
The court ruled that the general methods for using technology to obtain information from suspects is publicly known investigative techniques, and thus are not covered under Exemption 7(E). The court found that the release of the information would also not allow wrongdoers to circumvent legitimate surveillance and the law. The court also found that only the portions of the documents that “present original legal analyses, not purely descriptive and not already incorporated in public documents, to guide federal prosecutors in litigation” can be withheld under Exemption 5. The court remanded to the district court to determine which portions of the documents meet the requirements for Exemption 5 and ordered the remainder of the documents be released.
The FOIA has been used frequently to obtain information regarding the DOJ’s surveillance programs. Earlier this month, the Citizens for Responsibility and thics in Washington [advocacy website] filed a FOIA complaint [JURIST report] regarding the DOJ’s refusal to disclose communications related to its decision to release private text messages by two former FBI agents regarding the 2016 presidential campaign. A journalist and MIT student filed [JURIST report] a FOIA lawsuit in January 2017 related to a request for records from eight agencies on then Attorney General nominee Jeff Sessions.