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Media Alerts - ACLU v. U.S. Department of Justice
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May 9, 2014
  ACLU v. U.S. Department of Justice
Headline: The D.C. Circuit says privacy interests trump ACLU's interest in obtaining warrantless cell phone tracking data for individuals who were indicted, but not ultimately convicted.

Area of Law: Freedom of Information Act

Issue Presented: Whether individuals' privacy interests in controlling information concerning criminal charges for which they were not convicted outweigh the public interest in disclosure.

Brief Summary: After learning that federal law enforcement agencies were obtaining data from cell phone companies without a warrant and using that information to track the phones' whereabouts, the American Civil Liberties Union (ACLU) filed FOIA requests with the Drug Enforcement Administration and the Executive Office of the United States Attorneys. It sought records related to the case name, docket number, and court of criminal prosecutions of individuals who were tracked using cell phone data obtained without a warrant based on probable cause. In order to compel production of these records, the ACLU filed suit against the Department of Justice. The Department of Justice identified 229 prosecutions responsive to the FOIA request but refused to turn the list of cases over, claiming that it fell within FOIA Exemption 7(C), which allows an agency to withhold information compiled for law enforcement purposes if the disclosure of such information could reasonably be expected to constitute an unwarranted invasion of personal privacy. In an earlier disposition of the case, the United States District Court for the District of Columbia ordered the agency to disclose the records of prosecutions where the defendant had been convicted or pled guilty but found that the privacy interests of those not convicted was substantially higher than those convicted and outweighed the public interest in disclosure. On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed with regard to the records of those convicted but remanded the case regarding the records of those not convicted, finding the record below unclear as to whether any cases in fact fell within that category.

Following remand, the parties identified six on-point cases, four of which were resolved by dismissal and two of which ended in acquittal. The district court again granted the Department of Justice's motion for summary judgment, and the ACLU again appealed. The D.C. Circuit affirmed. The court acknowledged that privacy interests in preventing disclosure were less compelling here, where the individuals had already been indicted and their alleged participation was a matter of public record, than they would be if individuals had merely been subject to investigation. However, the fact of public prosecution made the privacy interests "fade, not disappear altogether." The court relied on both a person's presumption of innocence and a person's right to be left alone in finding that the scales tipped in favor of nondisclosure. The court noted that the special interest in allowing people charged but not convicted with crimes to go on with their lives is reflected in numerous state laws limiting disclosure of nonconviction data. Given its conceptualization of the individual privacy interest, the court had "little hesitation" in determining that it outweighed the public interest in disclosure.
Judge Tatel wrote separately in concurrence with his majority opinion, explaining that the prior release of information related to the 214 cases of convicted individuals substantially reduced the value of the remaining information to the public, further tipping the balance toward withholding the records.
Judge Brown dissented because she believed there was only a minimal privacy interest compromised by the disclosure of information readily available to the public. She found that the public had a strong interest in obtaining information that would allow it to decide for itself whether the government action was proper and that this interest outweighed any privacy interest involved.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/internet/opinions.nsf/C093507F31A9E09485257CD3004EC615/$file/13-5064-1492222.pdf.

Panel: Tatel, Brown, and Kavanaugh

Argument Date: February 20, 2014

Date of Issued Opinion: May 9, 2014

Docket Number: 13-5064

Decided: Affirmed

Case Alert Author: Joseph T. Maher, Jr.

Counsel: Arthur B. Spitzer, Catherine Crump, and David L. Sobel for appellants. John S. Koppel, Stuart F. Delery, Ronald C. Machen Jr., and Leonard Schaitman for appellees.

Author of Opinion: Tatel

Concurrence: Tatel

Dissent: Brown

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/09/2014 04:40 PM     DC Circuit  

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