University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name ACLU v. U.S. Department of Justice PN-DC-0006
Docket / Court 1:08-cv-01157 ( D.D.C. )
State/Territory District of Columbia
Case Type(s) Policing
Attorney Organization ACLU Chapters (any)
ACLU National (all projects)
Case Summary
On July 1, 2008, the American Civil Liberties Union filed a lawsuit in the United States District Court for the District of Columbia against the U.S. Department of Justice (DOJ) under the Freedom of Information Act (FOIA) and the Federal Declaratory Judgment Act. The plaintiffs asked the court for ... read more >
On July 1, 2008, the American Civil Liberties Union filed a lawsuit in the United States District Court for the District of Columbia against the U.S. Department of Justice (DOJ) under the Freedom of Information Act (FOIA) and the Federal Declaratory Judgment Act. The plaintiffs asked the court for injunctive and declaratory relief, specifically asking the release of certain records that had previously been requested.

News reports raised the possibility that law enforcement officers were, at least in some circumstances, obtaining cell phone tracking data directly from mobile carriers without obtaining warrants for probable cause from the court. The plaintiffs claimed that on November 29, 2007, they filed FOIA requests with the Drug Enforcement Administration and the Executive Office for United States Attorneys (both part of the DOJ), asking for expedited processing and seeking records about the government's tracking of the location of individuals' mobile phones without first obtaining a warrant based on probable cause. The requests sought all records about defendant's policies, procedures, and practices for obtaining mobile phone location information for law enforcement purposes. They also sought all information on criminal prosecutions of particular individuals who were tracked using mobile phone location data where the government did not secure a prior warrant based on probable cause. Nine months later, plaintiffs claim that defendant never gave them a complete response, failing to reply to administrative appeals, and that DOJ failed to release the records.

Plaintiffs sought an order for defendant to immediately process and provide all outstanding requested records; an injunction from defendant's charging plaintiffs processing fees; a declaratory judgment that the ACLU qualifies as a "representative of the news media" for purposes of fee assessments under the FOIA; and an award for plaintiffs' costs and attorneys' fees.

Defendant filed a motion for summary judgment, and plaintiffs filed a cross-motion for summary judgment. On March 26, 2010, the Court (Judge James Robertson) granted summary judgment to the plaintiffs, as to the identified case names and docket numbers of criminal prosecutions of persons who have been convicted or have entered public guilty pleas. The Court, however, denied the plaintiffs' cross-motion for summary judgment as to the production of docket information in prosecutions of those who were acquitted or whose cases were dismissed or sealed, and denied their request for disclosure of case names in "draft application" and "template application" documents. ACLU v. Dep't of Justice, 698 F. Supp. 2d 163 (D.D.C. 2010).

On September 6, 2011, the Court of Appeals for the District of Columbia Circuit issued an opinion. ACLU v. U.S. Dept. of Justice, 655 F.3d 1 (D.C. Cir. 2011). The Court (in an opinion by Judge Merrick Garland) affirmed the district court's order requiring the disclosure of docket information from criminal cases in which the government prosecuted individuals after obtaining a warrant for cell phone data without showing probable cause, and where those individuals were ultimately convicted or entered public guilty pleas. The Court, however, vacated the remainder of the district court's decision and remanded the case for further development of the record and reconsideration. The Court noted that FOIA includes a strong presumption in favor of disclosure. Here, the Court found that the public interest in disclosure outweighed the marginal privacy intrusion that may occur. However, because the lower court drew a distinction between the permissible and impermissible documents in a way that neither side briefed, the case was remanded to develop the record further to see how many cases existed in the different categories and to gain more information about some of them. The Court also noted that, at oral argument, defendant's counsel had suggested that defendant might be able to provide plaintiffs with the data they really want, rather than disclosing the individual documents. The Court said that might be the basis for a settlement, but that the Court could not consider it because it was not raised in the appellate briefs nor in the district court proceedings.

<
Plaintiffs again appealed, arguing disclosure about criminal prosecution is not an invasion of privacy. Thus, plaintiffs contended, defendant could not have demonstrated such a disclosure disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy, and the district court had therefore erred in granting summary judgment. Oral argument was held February 20, 2014, and the case is pending.>>

Emily Goldman - 11/20/2012
David Postel - 03/16/2014


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Issues and Causes of Action
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Issues
Defendant-type
Jurisdiction-wide
Law-enforcement
General
Records Disclosure
Plaintiff Type
Private Plaintiff
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. ยง 552
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) Department of Justice
Plaintiff Description The American Civil Liberties Union is a nationwide, non-profit, non-partisan organization with over 500,000 members dedicated to the constitutional principles of liberty and equality. The American Civil Liberties Union Foundation is a separate nonprofit organization that educates the public about civil liberties and employs lawyers who provide free legal representation in cases involving civil liberties.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National (all projects)
Class action status sought No
Class action status granted No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Additional Resources
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Case Studies Federal Enforcement of Police Reform
By: Stephen Rushin (University of Illinois College of Law, University of California, Berkeley - Jurisprudence and Social Policy Program )
Citation: 82 Fordham Law Review 3189 (2014)
[ Detail ] [ External Link ]

  Panopticism for Police: Structural Reform Bargaining and Police Regulation by Data-Driven Surveillance
By: Mary D. Fan (University of Washington)
Citation: Forthcoming, 87 Washington L. Rev. __ (2012).
[ Detail ] [ External Link ]

  What Happens When Police Are Forced to Reform?
Written: Nov. 13, 2015
By: Kimbriell Kelly, Sarah Childress and Steven Rich (Frontline/Post)
Citation: Washington Post (Nov. 13, 2015)
[ Detail ] [ External Link ]

Docket(s)
1:08−cv−01157 (D.D.C.) 07/17/2013
PN-DC-0006-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Amended Complaint for Injunctive and Declaratory Relief 09/11/2008
PN-DC-0006-0002.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order 03/26/2010 (698 F.Supp.2d 163) (D.D.C.)
PN-DC-0006-0003.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion (D.C. Circuit) 09/06/2011 (655 F.3d 1)
PN-DC-0006-0001.pdf | WESTLAW| LEXIS | Detail
Document Source:
Reassignment of Civil Case 12/05/2011 (D.D.C.)
PN-DC-0006-0005.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order (Granting Defendant's Motion for Summary Judgment and Denying Plaintiff's Cross-motion for Summary Judgment) 02/15/2013 (D.D.C.)
PN-DC-0006-0006.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion (Granting DOJ's Motion for Summary Judgment and denying ACLU's Cross-Motion) 02/15/2014 (923 F.Supp.2d 310) (D.D.C.)
PN-DC-0006-0007.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Judges Garland, Merrick B. (D.C. Circuit)
PN-DC-0006-0001
Huvelle, Ellen Segal (D.D.C.)
PN-DC-0006-0005
Jackson, Amy Berman (D.D.C.)
PN-DC-0006-0005 | PN-DC-0006-0006 | PN-DC-0006-0007 | PN-DC-0006-9000
Robertson, James (D.D.C.)
PN-DC-0006-0003
Monitors/Masters None on record
Plaintiff's Lawyers Crump, Catherine (New York)
PN-DC-0006-0002 | PN-DC-0006-9000
Sobel, David L. (District of Columbia)
PN-DC-0006-0002 | PN-DC-0006-9000
Spitzer, Arthur (District of Columbia)
PN-DC-0006-0002 | PN-DC-0006-9000
Defendant's Lawyers Cooper, Jonathan Gordon (District of Columbia)
PN-DC-0006-9000
Desai, Vikas K. (District of Columbia)
PN-DC-0006-9000
Glass, David M (District of Columbia)
PN-DC-0006-9000
Tyler, John Russell (District of Columbia)
PN-DC-0006-9000
Other Lawyers None on record

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