DOJ Properly Withheld Docs From Grad Student

     (CN) – The Department of Justice properly withheld documents relating to its cell phone and email surveillance tactics from a graduate student who asked for them in a FOIA request, a federal judge ruled.



     Christopher Soghoian, a Washington, D.C.-based graduate student, whose research involves the relationship between law enforcement, internet service providers and cell phone companies, filed an FOIA request with the DOJ in April 2010, seeking records related to the agency’s electronic surveillance methods.
     Soghoian specifically asked for documents concerning the government’s acquisition of cellular location info for people who are roaming, using a cell phone provider other than their own.
     The graduate student also asked for documents related to government requests for a cell carrier to provide it with records for each number called by the suspect, including location information associated with each call.
     In addition, Soghoian requested documents pertaining to federal agents requesting and obtaining header information, such as to and from addresses, for suspects’ emails.
     In his FOIA request Soghoian said he was looking for documents created from Jan. 1, 2007 to April 13, 2010, and held by the DOJ’s Office of Enforcement Operations, or its Computer Crime Intellectual Property Section.
     The DOJ responded by giving Soghoian 186 pages from its criminal division, one page from the U.S. Marshal Service and 418 pages from the Executive Office for U.S. Attorneys.
     DOJ found the remaining records should be withheld under FOIA exemptions. Soghoian appealed the DOJ’s decisions in April 2011, but before it issued an opinion on his appeals, he sued the agency in Washington, D.C. federal court.
     The DOJ moved for summary judgment on Feb. 6, and Soghoian cross-moved for summary judgment on April 10, arguing that the DOJ improperly withheld documents.
     In a ruling she issued on Friday U.S. District Judge Amy Berman Jackson found the DOJ properly withheld the documents from Soghoian.
     For some of the documents it withheld DOJ cited “Exemption 5,” which lets agencies withhold inter-agency or intra-agency documents that would not be available by law to a party, except to an agency in litigation with the agency.
     To figure out if a document was properly withheld under this exemption a judge must ensure its source is a government agency, and it falls under attorney work product and deliberative process privileges.
     In his lawsuit Soghoian claimed that DOJ improperly invoked the attorney work product privilege because it did not name the specific litigation for which the withheld documents were prepared.
     After reading DOJ’s affidavits for the lawsuit and conducting an in-chambers review of the documents Berman Jackson wrote: “The records at issue include internal presentations and discussions among DOJ attorneys that analyze the legal precedents and statutes applicable to the various methods of obtaining evidence from cell phones themselves and from phone carriers.”
     She added: “While plaintiff correctly notes that the documents in question do not relate to any specific claim or litigation … the D.C. Circuit has not construed the privilege so narrowly as to protect only work product related to specific cases currently in litigation.”
     Soghoian also claimed the DOJ improperly withheld documents under the deliberative process privilege by not producing records that contain purely factual information.
     But Berman Jackson again sided with the DOJ ruling the documents are protected because within them DOJ attorneys are debating language that will ultimately go into a policy manual.
     Finally, Soghoain argued that the DOJ did not disclose some segregable material.
     Berman Jackson shot this argument down as well writing that if the DOJ shared these documents it “would improperly expose the decision-making process and that there are no segregable portions of the documents.” All told Bergman Jackson found the DOJ properly withheld 15 documents from Sorhoain.

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