ACLU v. DOJ, No. 12-7412, 2014 WL 956303 (S.D.N.Y. Mar. 11, 2014) (Pauley III, J.)

ACLU v. DOJ, No. 12-7412, 2014 WL 956303 (S.D.N.Y. Mar. 11, 2014) (Pauley III, J.)

Re: Request for two FBI memoranda that set forth the FBI's guidance regarding the Supreme Court's decision in United States v. Jones

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 5, Attorney Work-Product Privilege:  The court holds that "[t]he memoranda are privileged 'because they relate to foreseeable litigation arising out of the government's criminal investigations.'"  The court does not accept plaintiffs argument that the "work-product privilege applies only when a document is created in response to a specific set of facts and actual claims and that it does not apply to an objective analysis of governing law."  The court explains that "'the specific-claim requirement only applies when the documents at issue have been prepared in 'connection with active investigations of potential wrongdoing' and the attorney (or agent thereof) preparing the document acted 'as [a] prosecutor[ ] or investigator[ ] of suspected wrongdoers.''"  "'By contrast, a more lenient specificity standard applies when the attorney (or agent thereof) preparing the document acted 'as [a] legal advisor [ ] protecting the [attorney's] clients from the possibility of future litigation.''"  Additionally, the court finds that "[t]he memoranda in this case are not agency working law."  The court explains that this is so because "DOJ's interpretation of the Supreme Court's decision in Jones has no legal effect; the results of the DOJ's arguments will be borne out in the courts."
   
• Exemption 7(E):  The court finds that "[plaintiff] is correct that the Government's affidavits do not provide sufficient information to determine whether either requirement is met."  However, "[a]fter in camera review of [one] memoranda, this Court concludes that [one] memorandum does not fall within Exemption 7(E) because its topic is limited to GPS tracking and it does not reveal any investigative techniques not generally known to the public."  However, as stated above, Exemption 5 still applies to this memorandum.  However, the court finds that "[another] memorandum contains detailed information concerning various investigative techniques not widely known and therefore falls within Exemption 7(E)."
   
• Litigation Considerations, Reasonably Segregable Requirements:  The court holds that, "[a]fter in camera review, this Court is satisfied that the DOJ has disclosed all reasonably segregable portions of the memoranda."