Am. Civil Liberties Union v. DOJ, No. 13-5064, 2014 WL 1851933 (D.C. Cir. May 9, 2014) (Tatel, J.)

Am. Civil Liberties Union v. DOJ, No. 13-5064, 2014 WL 1851933 (D.C. Cir. May 9, 2014) (Tatel, J.)

Re: Request for records concerning use of warrantless mobile telephone tracking in criminal investigations and prosecutions

Disposition: Affirming district court's grant of defendant's motion for summary judgment

• Exemption 7(C):  The D.C. Circuit concludes that "the Department has properly withheld this information."  The court first finds that "defendants whose prosecutions ended in acquittal or dismissal have a much stronger privacy interest in controlling information concerning those prosecutions than defendants who were ultimately convicted."   The D.C. Circuit explains that "[r]elease of the docket information [plaintiff] seeks would substantially infringe this privacy interest."  The court further notes that "[w]hile this attention would have been warranted at the time of indictment, now that these defendants have been acquitted or had the relevant charges dismissed they have a significant and justified interest."  Second, the D.C. Circuit rejects plaintiff's argument "that because warrantless cellphone tracking remains an issue of great public concern, the public interest in disclosure is the same as it was the last time this case was before us."  The court finds that "[e]ven assuming, as [plaintiff] contends, that the public interest in the disclosure here equals that in ACLU I, that interest pales in comparison to the substantial interests in privacy that are now at stake."  The D.C. Circuit goes on to "now hold" that the distinction between prosecutions that result in convictions and those that result in acquittals or dismissals is "a distinction that is fully consistent with FOIA."   "Indeed," the court opines, "the government, having brought the full force of its prosecutorial power to bear against individuals it ultimately failed to prove actually committed crimes, has a special responsibility—a responsibility it is fulfilling here—to protect such individuals from further public scrutiny."   The court also finds that "even assuming any of the six individuals who were the subject of the prosecutions at issue have died, the relevant privacy interests remain substantial."

Judge Tatel, concurring, "[wrote] separately to explain why [he] believe[s] this prior disclosure has substantially reduced the value of the remaining information [plaintiff] continues to seek, thus further tilting the balance in favor of withholding."  He explained that "most of the benefit we anticipated from the release of the requested docket information flowed from the fact that access to a large sample of prosecutions would provide a basis for the public to discern general trends regarding the government's use of cellphone tracking data and the means by which the government obtains such data."  However, he noted that "the Department has already released docket information for 214 prosecutions in which the government obtained cell phone tracking data without a warrant, and those 214 cases presumably provide much of the necessary basis for assessing when, how, and why the government utilizes this particular investigative tool."

Judge Brown, dissenting, wrote separately and explained that "[b]ecause the privacy interest here started small and the pace of technology continues to diminish it, I respectfully dissent."  She argues that "[a]t bottom, the public interest in disclosure remains as robust as it was in ACLU I. Conversely, in the Internet age, privacy is no longer what it once was."  "Times have changed, and so, too, must our expectations."  Additionally, "[i]n any event, even assuming the court is bound by the version of the incremental value test Judge Tatel espouses, the cases cited in support of this test are all distinguishable for one reason or another."