from the even-these-bare-bones-are-barely-there dept
The EFF has won a small battle in a larger war against the US government for its continued withholding of documents related to its Hemisphere program. Files on this custom-built AT&T/DEA surveillance system have already made their way into the hands of the public. Contrary to the government's claims about other methods (warrants, subpoenas) taking too long to obtain phone records, previously-released documents showed AT&T employees worked directly alongside agents in DEA offices to perform instantaneous searches for records.
The EFF is seeking information not included in the Powerpoint presentation already produced by the DEA. It's looking for records on court cases where evidence derived from the program was submitted, communications between the government and AT&T concerning the program, communications between government agencies about the Hemisphere program, and Congressional briefings related to the side-by-side surveillance effort.
The government has refused to turn over much of what's been requested for a variety of reasons, the main one being infamous FOIA exemption b(5). The government has other reasons for withholding information, but this is its favorite. The court, however, finds that most of its arguments amount to little more than "because." From the opinion [PDF]:
Ultimately, the Government's declaration is too vague: it does not indicate even generally what sorts of legal issues are presented in these e-mails, nor does not explain what “features” of the Hemisphere program are at issue. That the communications were between an attorney and agency employees does not establish the documents are protected under the attorney client privilege; without more about what “features” or “legal issues” are discussed or why they might be confidential in nature, the Government has not raised enough facts to show that Document 1 may be protected by the privilege.
As for another disputed document, the court has this to say:
The Government is essentially asking the Court to presume that because it uses the word “subpoenas” and states that attorneys wrote or received emails, these documents therefore reveal attorney-client communications of a confidential nature. Merely reiterating the elements of the privilege, however, does not satisfy the Government's burden of establishing the privilege applies to this document.
Yet another disputed document:
[T]he Government does not articulate why this information is confidential or contains legal advice. While it asserts that this document contains “confidential legal advice,” again, this merely states the element without explaining the basis of that confidentiality.
The review of documents concludes with the court pointing out that the government's sole justification for its bare minimum explanations works against it:
Finally, while the Government argues its generalized descriptions are sufficiently specific to show the documents contain “confidential legal advice,” it relies only on cases that demonstrate how its support in this case is lacking. [...] The Court is not asking the Government to make a herculean effort, merely something beyond regurgitation of the elements.
The court remains less than impressed with the government's lack of effort throughout the remainder of the opinion. It's as if the government assumed the court would rubber-stamp its bare-bones assertions.
[T]he Government makes no further reference to any current or foreseeable litigation in either its supporting declarations or Vaughn Index or provide other context that would allow the Court make a de novo review of the Government's work product assertions. Again, the Government cannot satisfy its burden of proof by relying on a mere recitation of the elements.
Nor does the Government meet its burden merely by referring to law enforcement efforts.
The Government merely recites the elements necessary to establish the privilege, but it does not explain why they are met, such as explaining why these particular documents relate to some anticipated litigation.
[T]he Government does not explain how the disclosure of these documents would affect its deliberative process by preventing or discouraging DEA employees or affiliates from giving their honest opinions, recommendations, or suggestions on how to develop policy decisions.
None of the Government's evidence suggests that exposing these documents would interfere with law enforcement proceedings.
The court also finds the government cannot withhold information related to cities Hemisphere was deployed in or agencies involved under FOIA exemptions. As the court sees it, the fearful assertions made by the government have no basis in observed reality.
The Government asserts this information “could be used by criminals to disrupt law enforcement operations or obtain unauthorized access to information about such operations.” But the Government does not explain how criminals could do this by using information about the cities and states where Hemisphere. EFF also notes that the public already knows that Hemisphere has regional centers in Atlanta, Houston, and Los Angeles, but the Government presents no evidence suggesting criminals have used this publicly available information to disrupt law enforcement operations or obtain unauthorized access to information.
The same goes for the names of the telecommunications companies the DEA worked in concert with to obtain telephone records.
[T]he Government asserts criminals could use this information to “tailor or adapt their activities to evade apprehension,” or “to attack facilities involved in the Hemisphere program.” In response, EFF argues the public has known for two and a half years—that is, since The New York Times‟ 2013 article on it—that AT&T supports Hemisphere, and the Government has not shown or even argued that criminals have ever attempted to use this information to evade or disrupt Hemisphere.
The Court agrees with EFF that the Government has not provided facts showing why it is likely criminals would use the identities of the companies that are instrumental to Hemisphere to evade or attack Hemisphere-related facilities.
The next step is an in camera review of the documents by the court to determine whether or not there's anything in these documents the government is justified in withholding. So far, the court appears unconvinced the government is engaged in anything more than opacity for opacity's sake. If the review goes as badly for the government as its FOIA lawsuit defense has, a lot more information on the Hemisphere program should be headed our way.