Case 1:08-cv-01157-ABJ Document 15 Filed 09/19/08 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,
v.
DEPARTMENT OF JUSTICE,
Defendant.

Civil Action No. 08-cv01 157-JR

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Preliminary Statement
I. This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.c. § 552, and the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 & 2202, seeking the immediate processing and release of agency records requested by plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (collectively "ACLU") from defendant Department of Justice ("DOJ").
2. On November 29,2007, the ACLU filed FOIA requests ("Requests") with the Drug Enforcement Administration ("DEA") and the Executive Office for United States Attorneys ("EOUSA"), which are part ofDOJ. The ACLU asked for expedited processing of its Requests, which sought records about the government's tracking of the location of individuals' mobile phones without first obtaining a warrant based on probable cause. Specifically, the Requests sought the release of all

Case 1:08-cv-01157-ABJ Document 15 Filed 09/19/08 Page 2 of 12
records pertaining to defendant's policies, procedures and practices followed to obtain mobile phone location information for law enforcement purposes and, in particular, information on criminal prosecutions of individuals who were tracked using mobile phone location data where the government did not first secure a warrant based on probable cause.
3. The ACLU submitted the Requests after court decisions and media reports revealed that defendant claims not to need probable cause to obtain real-time tracking information and that some EOUSA field offices were violating a DO] "internal recommendation" that "federal prosecutors seek warrants based on probable cause to obtain precise location data in private areas."] News reports raised the possibility that on at least some occasions, law enforcement officers obtain tracking data directly from mobile carriers without any court involvement. Media reports and court decisions indicated that the DEA has utilized cell phone location tracking on numerous occasions.
4. The information now in the public domain suggests that defendant may be engaging in unauthorized and potentially unconstitutional tracking of individuals through their mobile phones. Information pertaining to the DOl's procedures for obtaining real-time tracking information is vital to the public's understanding of the privacy risks of carrying a mobile phone and of, more generally, the government's expansive view of its surveillance powers. The limited information currently
1 Ellen Nakashima, Cel/phone Tracking Powers on Request, Washington Post, Page AOI, Nov. 23, 2007, available at http://www.washingtonpost.comlwpdyn/contentlarticle120071111221AR200711220 1444.html?hpid~topnews.
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available about the government's tracking practices raises serious questions about whether the government is complying with the law and the Constitution.
5. Plaintiffs are entitled to a response to their Requests and to a timely release of the records sought. DEA ignored the ACLU's request for expedited processing. EOUSA declined to expedite the processing of plaintiffs' request. Although it has been nine months since the initial filing ofthe Requests, plaintiffs have only received an incomplete response and defendant has failed to release the records requested.
Jurisdiction and Venue 6. This Court has subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(A)(vii), 552(a)(4)(B), and 552(a)(6)(E)(iii). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §§ 2201 (a) & 2202. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B).
Parties 7. The American Civil Liberties Union is a nationwide, non-profit, nonpartisan organization with over 500,000 members dedicated to the constitutional principles ofliberty and equality. 8. The American Civil Liberties Union Foundation C"ACLUF") is a separate 50 1(c)(3) organization that educates the public about civil liberties and employs lawyers who provide legal representation free of charge in cases involving civil liberties.
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9. Defendant DO] is a Department ofthe Executive Branch of the United States Government. The DO] is an agency within the meaning of 5 U.S.C. § 552(f)(I). EOUSA and DEA are components of defendant DO].
Background 10. Recent court decisions and media reports reveal that law enforcement officers, frequently from the Drug Enforcement Administration, are routinely asking courts to compel mobile carriers to provide them with information that enables them to locate individuals through their cell phones. Ellen Nakashima, Cellphone Tracking Powers on Request, Washington Post, Page AOI, Nov. 23, 2007. Known as real-time tracking, this procedure allows officials to home in on individuals by tracking their mobile phones, capable of pinpointing the target to within 30 feet. Id. II. Over the past few years, the government's tactics in obtaining real-time tracking information have garnered increasing attention. Specifically, news reporters and legal experts have indicated growing concern that the government is circumventing legal procedures for obtaining warrants based on probable cause when enlisting telephone companies to furnish information.2 On November 29,
2 See, e.g., Brendan I. Koerner, Your Cellphone is a Homing Device, Legal Affairs, July/August 2003; William B. Baker, New York Case Tests Law ofSurveillance on Cell Phone Location Data, Privacy in Focus, Sept. 2005; Declan McCullagh, Police Blotter: Cell Phone Tracking Rejected, CNET News.com, Sept. 2, 2005, at http://www.news.comiPolice-blotter-Cell-phone-tracking-rejected/21 00-1 030_35846037.html; AI Gidari, Yet Another Court Rules that Disclosure ofCell Site/Location Information Requires Probable Cause Showing, Digestible Law: Perkins Coie's Internet Case Digest, Oct. 21, 2005;
Ryan Singel, u.s. Cell-Phone Tracking Clipped, Wired, Oct. 27, 2005; Anita Ramasastry, Every Move You
Make. Part Three: Why Law Enforcement Should Have to Get a Warrant Before Tracking Us Via our Cell Phones, FindLaw.com, Nov. 10,2005, at: http://writ.news.findlaw.com/ramasastryI20051110.htrnl; Matt Richtel, Live Tracking ofMobile Phones Prompts Court Fights on Privacy, New York Times, Dec. 10, 2005, at AI; Neal Conan, NPR Talk ofthe Nation: Surveillance Via Cell Phone, National Public Radio, Dec. 14,2005; Tresa Baldas, Feds' Cell Phone Tracking Divides the Courts, The National Law Journal, Jan. 19,2006; Scott Cameron, Your Cell Phone is Homing Beacon - Should the Government Be Allowed to
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2007, a report in the Washington Post indicated that officers regularly seek court
authorization based on an evidentiary showing less burdensome than probable cause
and, in some cases, obtain tracking data directly from mobile carriers without any
court involvement, sparking extensive media interest and speculation. Nakashima,
supra, at AO!.3
12. The Washington Post article revealed that such requests for court orders
run counter to the Justice Department's own "internal recommendation" that "federal
prosecutors seek warrants based on probable cause to obtain precise location data in
private areas." Id.
Use It Without Showing Probable Cause?, The IP Law Blog, April 12,2006; Stephen V. Treglia, Trailing Cell Phones: Courts Grapple with Requests/rom Prosecutors Seeking Prospective Tracking, New York Law Journal, July 18,2006; Daniel R. Sovovool & Kristin Jamberdino, Tracking a User's Location Via Cell Phone, ipFrontline.com, Nov. 16,2006, at: http://www.ipfrontline.com/depts/article.asp?id~9633&deptid-5; Linda Coady, Government May Track Cell Phone Movements, N. Y. Court Says, Privacy Litigation Reporter, Vol. 4:3, Nov. 17,2006; Kim Janssen, Keeping Track o/Your Every Move, Southtown Star, Feb. 10,2008; Jason Cato, Prosecutors in Pittsburgh Appeal Ruling of Denying Cell Phone Tracking, Pittsburgh Tribune Review, Mar. 10,2008; Caryn Tamber, Md Court o/Special Appeals: Police Can Track Suspect Through GPS, cell signals, Daily Record (Baltimore, MD), Feb. 19,2008; Editorial, Government Tracking: One for the Constitution, Pittsburgh Tribune Review, Mar. 14,2008, at http://www.pittsburghlive.com/xlpittsburghtrib/opinion/archive/s_557160.html; Ronald Spinner, 1 Always Feel Like Somebody's Tracking Me, Michigan Telecommunications and Technology Law Review, Feb. 13,2008, at http://blog.mttlr.orgl2008102/i-always-feel-like-somebodys-tracking.html#spinnerfu26anc; David Lazarus, Consumer Confidential: Cellphones to Keep Track of Your Purchases - and You, Los Angeles Times, March 162008; DecIan McCullagh, Police Blotter: E9ll Rules Aid Police in Tracking Cell Phones, CNET News.com, Feb. 8, 2008, at http://news.cnet.comIPolice-Blotter-E9ll-rules-aid-policein-tracking-cell-phones/2l 00-1 030_3-6229805.html.
3 Newspapers around the country deemed the Washington Post article sufficiently important that it was reprinted in the Charlotte Observer, Chicago Tribune, Cincinnati Post, Houston Chronicle, Lexington Herald-Leader, Pittsburgh Post-Gazette, Seattle Times, South Florida Sun-Sentinel, and St. Paul Pioneer Press. See also: Justice Department De/ends Use o/Cell-Phone Tracking Data, Fox News, Nov. 24, 2007, at http://www.foxnews.comIstorylO.2.933.3l2647.00.htrnl; Feds Push/or Real-Time Cell-Phone Tracking Data, San Jose Mercury News, Nov. 23, 2007, at 4a; Phone Tech Raises Privacy Concerns, United Press International, Nov. 23, 2007; Cable News Network, Kelli Arena interviews Mark Rotenburg, Nov. 23, 2007 transcript available at 2007WLNR 23221490; Fox coverage, Nov. 23, 2007, transcript available at 2007 WLNR 23256527; Editorial, Probable Abuse, Albany Times Union, Nov. 27, 2007; Editorial, Privacy Threat. Congress and the Judiciary Should Promulgate Tighter Rules Jor Government Access to Cell Phone Data, Houston Chronicle, Nov. 25, 2007; Editorial, Tracking You Down, Syracuse Post-Standard, Nov. 25, 2007.
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Case 1:08-cv-01157-ABJ Document 15 Filed 09/19/08 Page 6 of 12
13. Nonetheless, a growing number of reports reveal that the government claims not to need probable cause to obtain real-time tracking information. Publicly available court decisions disclose that federal officials who do petition a court for an order are frequently using a standard lower than probable cause, replacing it with a "reasonable relevance" standard, which requires only a simple showing of "articulable relevance to an ongoing investigation." E.g., In Re Us. Order Dir. A Provo OfElec. Commun., 534 F. Supp. 2d 585, 587 (W.O. Pa. 2008) (concluding that the 'reasonable relevance' standard was unconstitutional and that officials must show probable cause).4
14. Information on government practices and procedures in obtaining realtime tracking data is lacking. It is not publicly known whether the government routinely obtains mobile phone location information without any court supervision. Yet, the implications for the public are vast: over 240 million Americans carry mobile phones and the number is steadily increasing. CTTA-The Wireless Association-Survey Results June 2007, available at http://www.ctia.orglmedialpress/body.cfmlpridIl717.
15. The limited information currently available about the government's tracking practices raises serious questions about whether the government is complying with the law and the Constitution. Several courts have held that the government lacks authority to track individuals without first obtaining a warrant based on probable cause. 5
4 See also. e.g. Nakashima, supra note 1, at A01; Ramasastry, supra note 2, at I; Sovocool and Jamberdino, supra note 2, at 2.
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Case 1:08-cv-01157-ABJ Document 15 Filed 09/19/08 Page 7 of 12
16. Disclosure of the requested information is vital to the public understanding ofthe privacy risks of carrying a mobile phone.
The FOIA Request 17. On November 29,2007, the ACLU filed ForA requests with the DEA and the EOUSA seeking the release of records relating to government use of information from mobile carriers to track the location of individuals' mobile phones. Specifically, plaintiffs sought records reflecting the policies, procedures and practices followed to obtain mobile phone location information for law enforcement purposes ("Question 1"); the "internal recommendation" that "federal prosecutors seek warrants based on probable cause to obtain precise location data in private areas," as described in the Washington Post article, supra, at AOI ("Question 2"); any violations of the "internal recommendation" ("Question 3"); the number of times the government has applied for a court order, based on less than probable cause, authorizing it to obtain mobile phone location information, and whether such applications were successful ("Question 4"); and records reflecting the case name, docket number, and court of all criminal prosecutions, current or past, of individuals who were tracked using mobile location data, where the government did not first
u.s. 5 See. e.g. In Re Order Dir. A Provo OfElec. Commun., 534 F. Supp. 2d 585, 587, (W.o. Pa 2008); In
the Matter ofthe Application ofthe UNITED STATES ofAmericafor ORDERS AUTHORIZING the INSTALLATION and Use ofPEN REGISTERS and Caller Identification Devices on Telephone Numbers [Sealed] and [Sealed], 416 F. Supp. 2d 390, 391 (D. Md. 2006) ("Unless and until Congress takes further action, the court may only authorize disclosure of prospective cell site information upon a showing of probable cause pursuant to Rule 41."); In the Matter ofan APPLICATION OF THE UNITED STATES FOR AN ORDER (I) A UTHORIZING THE USE OF A PEN REGISTER AND A TRAP AND TRACE DEVICE and (2) Authorizing Release ofSubscriber Information and/or Cell Site I'lformation, 396 F. Supp. 2d 294, 295 (E.D.N.Y. 2005) ("[E]xisting law does not permit the government to obtain the requested information on a prospective, real-time basis without a showing of probable cause.").
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Case 1:08-cv-01157-ABJ Document 15 Filed 09/19/08 Page 8 of 12
secure a warrant based on probable cause of such data ("Question 5"). In its request with the EOUSA, the ACLU asked that 18 offices be searched6
18. Plaintiffs requested expedited processing under the applicable provisions of the ForA and defendant DOJ's regulations. They also sought both a limitation of processing fees as a "representative of the news media" and a waiver of all costs on the grounds that disclosure of the requested information in this case would contribute to the public understanding of the privacy risks of carrying a mobile phone and of the "operations and activities ofthe government" in tracking individuals through cell phones.
Agency Responses 19. On May 30, 2008, plaintiffs received a letter from DEA denying their Request. On July 24, 2008, plaintiffs timely filed an administrative appeal. Plaintiffs have yet to receive a response. DEA is in violation of 5 U.S.C. § 552(a)(6)(A)(ii), which requires that all agencies make a determination with respect to any appeal within twenty days. 20. The EOUSA responded on December 7, 2007. It denied the ACLU's request for expedited processing. The letter stated that the agency had divided the Request into 19 parts7 and that each of the 18 offices indicated by the ACLU were directed to reply to Questions 2-4 of the Request. A separate assignment number was given to what the EOUSA called "Third Party Tracking Cases," which dealt
6 Office of Legal Programs, General Counsel's Office, Directors' Office, Southern District of California, Northern District of California, Central District of California, Eastern District of California, the District of Columbia, Northern District oflndiana, Southern District oflndiana, Eastern District of Louisiana, Western District of Louisiana, Middle District of Louisiana, District of New Jersey, Northern District of Florida, Middle District of Florida, Southern District of Florida, and District of Nevada. 7 Although the letter itself claims to divide the request into 16 parts, there are actually 19 parts, each given its own assignment number.
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Case 1:08-cv-01157-ABJ Document 15 Filed 09/19/08 Page 9 of 12
solely with Question 5 of the FOIA request seeking records regarding criminal prosecutions.
21. By letter of December 12,2007, the EOUSA responded specifically to the "Third Party Tracking Cases" request. In the letter, the EOUSA declined to respond to the question, claiming that, pursuant to EOUSA policy, the office could neither "confirm nor deny that records concerning living third parties exist" on the grounds that the disclosure of such information would constitute an "unwarranted invasion of personal privacy." On February 6,2008, the ACLU appealed this decision but has yet to receive a response. The EOUSA is in violation of 5 U.S.C. § 552(a)(6)(A)(ii) requiring that all agencies make a determination with respect to any appeal within twenty days.
22. By letter of January 24, 2008, the EOUSA responded to the request assigned to the District of Nevada, 07-4136. In the letter, the EOUSA denied the ACLU's request for a fee reduction, determining that the ACLU did not meet the requirements to be designated a "media requester for FOIA fee purposes." It further denied the request for a fee waiver, concluding that disclosure of the information requested would not "contribute significantly to public understanding ofthe operations and activities of the government." Based on these conclusions, the EOUSA demanded an advance payment in order to continue processing the request for the District of Nevada. On March 12,2008, the ACLU appealed the EOUSA's decision regarding request 07-4136, but has yet to receive a response. The EOUSA is in violation of 5 U.S.C. § 552(a)(6)(A)(ii) requiring that all agencies make a determination with respect to any appeal within twenty days.
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Case 1:08-cv-01157-ABJ Document 15 Filed 09/19/08 Page 10 of 12
23. Three offices-the Eastern District of Louisiana, Southern District of Florida, and District of New Jersey-denied plaintiffs' Request, stating that they had no responsive records. Plaintiffs timely filed administrative appeals, but received no responses. These components are in violation of 5 U.S.C. § 552(a)(6)(A)(ii), which requires that all agencies make a determination with respect to any appeal within twenty days.
24. As ofthe date that plaintiffs filed suit, five offices failed to respond to plaintiffs' request. 8
25. With regard to the five offices that did not respond by the time plaintiffs filed suit (the Northern District of California, the Central District of California, the District of Columbia, the Middle District of Louisiana and the Northern District of Indiana) and the six requests the denial of which the ACLU appealed (the DEA and, with regard to EOUSA, Question 5, the District of Nevada, the Eastern District of Louisiana, the Southern District of Florida, and the District of New Jersey), defendant is improperly withholding the records sought by plaintiffs' Request.
26. Nine offices denied plaintiffs' Request in whole or in part and plaintiffs chose not to appeal 9 These requests are not before this Court.
Cause of Action 27. Defendant's failure to make promptly available the records sought by plaintiffs' Requests violates the ForA, 5 U.S.c. § 552(a)(3)(A), and defendant's corresponding regulations.
8 The Northern District of California, Central District of California, District of Columbia, the Middle District of Louisiana, and the Northern District of Indiana. 9 These offices are the Office of Legal Programs, General Counsel's Office, Southern District of California, Eastern District of California, Southern District oflndiana, Western District of Louisiana, the Director's Office, the Northern District of Florida, and the Middle District of Florida.
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Case 1:08-cv-01157-ABJ Document 15 Filed 09/19/08 Page 11 of 12
28. Defendant's failure to timely respond to plaintiffs' Requests violates the FOIA,5 U.S.C. § 552(a)(6)(A), and defendant's corresponding regulations.
29. Defendant's failure to grant plaintiffs' request for expedited processing violates the FOIA, 5 U.S.C. § 552(a)(6)(E), and defendant's corresponding regulations.
30. Defendant's failure to grant plaintiffs' request for a waiver of fees violates the FOIA, 5 U.S.C. § 552(a)(4)(A)(iii), and defendant's corresponding regulations.
31. Defendant's failure to grant plaintiffs' request for a limitation offees violates the FOIA, 5 U.S.C. § 552(a)(4)(A)(ii)(II), and defendant's corresponding regulations.
Requested Relief WHEREFORE, plaintiffs pray that this Court:
A. Order defendants immediately to process and provide all outstanding requested records;
B. Enjoin defendants from charging plaintiffs fees for the processing of their Request;
C. Issue a declaration that the ACLU qualifies as a "representative of the news media" for purposes of fee assessments under the FOIA;
D. Award plaintiffs their costs and reasonable attorneys' fees incurred in this action; and
E. Grant such other relief as the Court may deem just and proper.
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September II, 2008

Respectfully submitted,
lsi Catherine Crump Catherine Crump American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 Tel: (212) 549-2500 Fax: (202) 452-1868
lsi Arthur B. Spitzer Arthur B. Spitzer (D.C. Bar No. 235960 ) American Civil Liberties Union
of the National Capital Area 1400 20th Street, N.W., Suite 119 Washington, D.C. 20036 Tel: (202) 457-0800 Fax: (202) 452-1868
DavidL. Sobel (D.C. BarNo. 360418) Electronic Frontier Foundation 1875 Connecticut Avenue, N. W., Suite 650 Washington, DC 20009 Tel: (202) 797-9009 Fax: (202) 797-9066

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 Case 1:08-cv-01157-ABJ Document 40 Filed 03/26/10 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs, v. DEPARTMENT OF JUSTICE,
Defendant.

: : : : : : Civil Action No. 08-1157 (JR) : : : :

ORDER

For the reasons set forth in the accompanying

memorandum, defendant’s motion for summary judgment [Dkt. #26] is

denied as to the identified case names and docket numbers of

criminal prosecutions of persons who have been convicted or have

entered public guilty pleas, and otherwise granted. Plaintiff’s

cross-motion for summary judgment [Dkt. #29] is granted as to the

category of documents just described, and otherwise denied.

JAMES ROBERTSON United States District Judge

 
 Case 1:08-cv-01157-ABJ Document 47 Filed 12/05/11 Page 1 of 1
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION et al
Plaintiff vs. DEPARTMENT OF JUSTICE
Defendant

Civil No.

08-1157 (ABJ)

Category

I

REASSIGNMENT OF CIVIL CASE

The above-entitled case was reassigned on Dec 5, 2011 from Judge Ellen Segal Huvelle

to Judge Amy Berman Jackson

by direction of the Calendar Committee.

(Randomly Reassigned)

JUDGE ELLEN S. HUVELLE
Chair, Calendar and Case Management Committee

cc:

Judge Ellen Segal Huvelle

& Courtroom Deputy

Judge Amy Berman Jackson

& Courtroom Deputy

Liaison, Calendar and Case Management Committee

 
 Case 1:08-cv-01157-ABJ Document 65 Filed 02/15/13 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

AMERICAN CIVIL LIBERTIES

)

UNION, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DEPARTMENT OF JUSTICE,

)

)

Defendant.

)

____________________________________)

Civil Action No. 08-1157 (ABJ)

ORDER Pursuant to F ed. R. C iv. P. 58 and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that defendant’s motion for summary judgment, [Dkt. # 58 ], is GRANTED and plaintiffs’ cross-motion for summar y judgment [Dkt. # 60] , is DENIED. This is a final appealable order.

DATE: February 15, 2013

AMY BERMAN JACKSON United States District Judge

 
 American Civil Liberties Union v. Department of Justice, 923 F.Supp.2d 310 (2013)

923 F.Supp.2d 310 United States District Court,
District of Columbia.
AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs, v.
DEPARTMENT OF JUSTICE, Defendant.
Civil Action No. 08–1157 (ABJ). | Feb. 15, 2013.
Synopsis Background: Advocacy organization filed suit against Department of Justice, under Freedom of Information Act (FOIA), seeking disclosure of documents pertaining to use of warrantless mobile telephone tracking in criminal investigations and prosecutions. The District Court, James Robertson, Senior District Judge, 698 F.Supp.2d 163, granted in part and denied in part cross-motions for summary judgment. Parties appealed. The United States Court of Appeals for the District of Columbia, Garland, Circuit Judge, 655 F.3d 1, affirmed in part, vacated in part, and remanded. On remand, parties cross-moved for summary judgment.
[Holding:] The District Court, Amy Berman Jackson, J., held that records involving mobile phone tracking data that resulted in acquittal, dismissal, or cases that remained under seal, were exempt from disclosure.
Defendant’s motion granted.
Attorneys and Law Firms
*311 Arthur B. Spitzer, American Civil Liberties Union of the Nation’s Capital, David L. Sobel, Electronic Frontier Foundation, Washington, DC, Catherine Crump, American Civil Liberties Union Foundation, New York, NY, for Plaintiff.
John Russell Tyler, Jonathan Gordon Cooper, U.S. Department of Justice, Washington, DC, for Defendant.
Opinion
MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.
This case has been remanded to the District Court to resolve a factual question. The Court has now resolved that question and because its resolution does not affect the original decision, Am. Civil Liberties Union v. DOJ (ACLU), 698 F.Supp.2d 163 (D.D.C.2010), the Court reaffirms that decision.
Plaintiffs American Civil Liberties Union and the American Civil Liberties Union Foundation (together “ACLU”) brought this action against the Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”). They sought to obtain, among other things, the case names and docket numbers of “all criminal prosecutions, current or past, of individuals who were tracked using mobile location data, where the government did not first secure a warrant based on probable cause of such data.” Request Under Freedom of Information Act to Executive Office for U.S. Attorneys, Ex. 2 to Def.’s Mot. for Summ. J. [Dkt. # 26] (“Def.’s First Mot.”) at 2; Request Under Freedom of Information Act to Drug Enforcement Administration, Ex. 3 to Def.’s First Mot. at 2. DOJ moved for summary judgment, arguing that FOIA Exemptions 6 and 7(C) justified the categorical withholding of all responsive records. [Dkt. # 26]. ACLU filed a cross-motion for summary judgment. [Dkt. # 29].

In 2010, the court granted in part and denied in part both motions. Order (Mar. 26, 2010) [Dkt. # 40]. It set out the standards for Exemptions 6 and 7(C): “Exemption 7(C) permits withholding when disclosure ‘could reasonably be expected to constitute an unwarranted invasion of personal privacy,’ while Exemption 6 permits withholding only when disclosure would constitute a clearly unwarranted invasion of personal privacy.’ ” ACLU, 698 F.Supp.2d at 165.1 Applying the balancing test that these standards both require, the Court then found:

1

The court also noted that Exemption 7(C) requires that

the withheld records be “compiled for law enforcement

purposes,” but that the ACLU had conceded that all the

records at issue here meet that requirement. ACLU, 698

F.Supp.2d at 165 n. 2.

[T]he public interest in ‘what the government is up to’ outweighs the privacy interests of persons who have been convicted *312 of crimes or have entered public guilty pleas; but ... the privacy interests of persons who
1

American Civil Liberties Union v. Department of Justice, 923 F.Supp.2d 310 (2013)

have been acquitted, or whose cases have been sealed and remain under seal, or whose charges have been dismissed, outweigh the public interest in disclosure of their names and case numbers. Id. at 166. It thus required the release of responsive records from cases in which the defendants had been convicted or entered public guilty pleas, but allowed DOJ to withhold records from cases that had been sealed and remained under seal, in which the defendants were acquitted, and in which the charges against the defendants had been dismissed. Order (Mar. 26, 2010) [Dkt. # 40]. Both sides appealed. In a decision issued on September 6, 2011, the Court of Appeals for the D.C. Circuit upheld the court’s decision as to the category of responsive records from cases that resulted in convictions or public guilty pleas. Am. Civil Liberties Union v. DOJ (ACLU II), 655 F.3d 1, 16 (D.C.Cir.2011). The Court agreed that the privacy interests of defendants in those cases “are weaker than for individuals who have been acquitted or whose cases have been dismissed ... [a]nd they are plainly substantially weaker than the privacy interests of individuals who have been investigated but never publicly charged at all.” Id. at 7. It held that the relatively weak privacy interest of the convicted individuals was not sufficient to outweigh the public interest in disclosure of the records. Id. at 16.
As to the other category of responsive records, the court of appeals stated that the distinction between cases that resulted in public convictions or guilty pleas and cases that resulted in acquittals or dismissals or that remain under seal “makes some intuitive sense” because of the difference in the strength of the privacy interests involved. Id. at 17; see also id. at 18 (“[I]t is one thing to disclose the identities of targets who were eventually convicted in public proceedings; but the privacy calculus becomes increasingly more significant if disclosure extends to those who were acquitted....”). But the court also observed that whether the difference in privacy interests between the two groups of defendants “is enough of a distinction to justify withholding under Exemption 7(C) is a harder question.” Id. at 17.
The court of appeals did not go on to answer the question. Rather, it pointed out that because the district court devised the distinction between the two groups of cases sua sponte, the record was silent as to whether any of the withheld records involved cases that resulted in acquittals or dismissals or that remain under seal. Id. On that basis, the court decided:
Rather than attempt to resolve a question that may turn out to be

purely academic, we conclude that the better course is to vacate this portion of the district court’s decision and remand the case for that court to determine whether any of the docket numbers refer to cases in which the defendants were acquitted, or to cases that were dismissed or sealed (and remain sealed). The court may develop this information by requiring affidavits of the government or additional entries in the government’s Vaughn index.... Needless to say, if there are no such cases, that will resolve this particular request.
Id.2

2

In another section of its opinion, the court of appeals

also vacated the court’s decision on a second

component of the ACLU’s FOIA request, which

concerned a draft application to engage in warrantless

cell phone tracking that DOJ had withheld in full and a

template application that DOJ had partially released.

ACLU II, 655 F.3d at 17–19, 20. The parties have since

resolved those issues. See ACLU’s Response to Court

Order (Mar. 9, 2012) [Dkt. # 56] at 1; Mem. in Support

of U.S. DOJ’s Second Motion for Summ. J., [Dkt. #

58–1] (“Def.’s Mem.”) at 7 n. 5. Accordingly, that

portion of the D.C. Circuit’s mandate is now moot.

Following the D.C. Circuit’s ruling, this Court set a schedule for DOJ to complete *313 document production and for the ACLU to notify the Court whether it would contest any withheld documents. Minute Entry (Feb. 8, 2012). On February 24, 2012, DOJ notified the Court that it had produced a supplemental Vaughn index describing the withholding of the docket numbers and case names for fifteen cases, and in notices filed on March 9, 2012 and March 16, 2012, the ACLU notified the Court that it continued to seek the case names and docket numbers for six of those cases: four identified in the supplemental Vaughn index as cases that resulted in dismissals, and two that resulted in acquittals. Response to Court Order [Dkt. # 56] at 1; Joint Status Report and Proposed Briefing Schedule [Dkt. # 57] at 1. DOJ filed a motion for summary judgment on April 27, 2012, [Dkt. # 58], and the ACLU filed a cross-motion on May 25, 2012, [Dkt. # 60]. The motions are now fully briefed.
DOJ argues that there is no reason for the Court to revisit the prior ruling because “[t]he D.C. Circuit vacated the
2

American Civil Liberties Union v. Department of Justice, 923 F.Supp.2d 310 (2013)

portion of this Court’s ruling concerning acquittals or dismissals solely for further development of the record, not because it identified any legal errors.” Def.’s Mem. at 11. The Court believes that this is an accurate description of the appellate opinion. The court of appeals did not hold that the original vindication of the privacy interests of defendants who had been acquitted or whose cases were dismissed was improper. Nor did it direct this Court to conduct a new balancing once it ascertained whether there were any records to which the original balancing would pertain. Rather, the court of appeals remanded the matter so that this Court could determine “whether any of the docket numbers refer to cases in which the defendants were acquitted, or to cases that were dismissed or sealed (and remain sealed).” ACLU II, 655 F.3d at 17. Thus, the court’s chief concern with respect to this issue appears to be whether it had been presented with a live controversy or merely an academic question. And this Court has now conducted the necessary proceedings to answer that question.
The Court has determined through DOJ’s supplemental Vaughn index that the withholdings include case names and docket numbers from four cases that resulted in dismissals and two cases that resulted in acquittals. Boseker Decl., Ex. 3 to Def.’s Second Mot. for Summ. J. [Dkt. # 58] ¶ 17; Response to Court Order [Dkt. # 56] at 1. Accordingly, the issue of whether the privacy interests of the individual defendants outweigh the public interest in disclosure for those categories of cases is properly before the Court.
In Part III its opinion, the court of appeals concluded that “if there are no such cases, that will resolve this particular request,” ACLU II, 655 F.3d at 17, but it did not specify what action this Court should take if such cases were found to exist. At the conclusion of the opinion, after it had considered a number of issues in addition to the question related to the categories of records, the court did state that it: “vacate[d] and remand[ed] the remainder of the district court’s decision for that court to develop the

factual information discussed in Part III above and, thereafter, to reconsider the appropriate disposition of the remaining aspects of the case.” Id. at 20. So one could interpret that statement as a further directive to “reconsider” the 2010 ruling of the district court on the subject of these records. But *314 that would involve balancing the public interest in the disclosure of the information against the privacy rights of individuals who had been acquitted or whose cases had been dismissed, albeit on the public docket, and that balance was fully set forth in the court’s previous opinion and was not criticized or overturned in the circuit court’s opinion.
[1] [2] [3] This Court should “scrupulously avoid implementing [a circuit court’s] mandate in a manner that exceeds ... the appellate decision.” United States ex rel. Miller v. Bill Harbert Int’l Constr., Inc., 865 F.Supp.2d 1, 7 (D.D.C.2011), quoting Tex. Oil & Gas Corp. v. Hodel, 654 F.Supp. 319, 323 (D.D.C.1987). Since there is no indication in the appellate decision that this Court’s ruling on the first motion for summary judgment was improper, the Court will not read the mandate as requiring this Court to revisit it. This decision is in the interest of judicial efficiency. Id. at 8, quoting Armstrong v. Burdette Tomlin Mem’l Hosp., 276 F.Supp.2d 264, 267 (D.N.J.2003), rev’d on other grounds, 438 F.3d 240 (3d Cir.2006) (stating that in the interest of efficiency, “a court may limit future proceedings ‘to prevent the retrial of any issue already properly decided’ ”) (emphasis omitted). It also accords with the directive that “the same issue presented a second time in the same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) (en banc).
Accordingly, the Court will grant DOJ’s motion for summary judgment, [Dkt. # 58], and will deny the ACLU’s cross-motion, [Dkt. # 60]. A separate order will issue.
	  

3

 
 I'
Case 1:08-cv-01157-ABJ Document 70-1 Filed 08/20/14 Page 1 of 32

~nih~b ~tatrs (!loud of J\pprals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 20, 2014

Decided May 9, 2014

No. 13-5064

AMERICAN CIVIL LIBERTIES U"'ION AND AMERICAN CIVIL LIBERTIES UNION FOUNDATION, APPELLANTS

v.

UNITED STATES DEPARTMENT OF JUSTICE, APPELLEE

Appeal from the United States District Court for the District of Columbia (No. I :08-cv-0 1157)

Arthur B. Spitzer argued the cause for appellants. With him on the briefs were Catherine Crump and David L. Sobel.
John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Stuart F Delery, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Leonard Schaitman, Attorney.
Before: TATEL, BROWN, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL

?------------.,..---------·r- 11--
Case 1:08-cv-01157-ABJ Document 70-1 Filed 08/20/14 Page 2 of 32
2 Concurring opinion filed by Circuit Judge TA TEL.
Dissenting opinion filed by Circuit Judge BROWN.
TATEL, Circuit Judge: Three years ago, in American Civil Liberties Union v. US. Department of Justice, 655 F.3d I (D.C. Cir. 201 I) (ACLU I), this court held that the Freedom of Information Act required the Justice Department to disclose case names and docket numbers for prosecutions in which the government had obtained cellular phone tracking data without a warrant and the defendant had ultimately been convicted. The court left open the question whether the Department would also have to disclose docket information for similar prosecutions in which the defendant had been acquitted or had the charges dismissed. Now squarely facing just that question, we conclude that given the substantial privacy interest individuals have in controlling information concerning criminal charges for which they were not convicted, the Department has properly withheld this information.
I. In order to "open agency action to the light of public scrutiny," Department ofthe Air Force v. Rose, 425 U.S. 352, 361 (1976) (internal quotation marks omitted), FOIA requires federal agencies, "upon request, to make 'promptly available to any person' any 'records' so long as the request 'reasonably describes such records,"' Assassination Archives & Research Center v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting 5 U.S.C. § 552(a)(3)). This broad statutory mandate is subject to certain enumerated exemptions. See 5 U.S.C. § 552(b)(l)-(9). At issue here is FOIA Exemption 7(C), which provides that an agency may withhold "records or information compiled for law enforcement purposes" if disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Jd. § 552(b)(7).

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Determining whether an invasion of privacy is "unwarranted" within the meaning of Exemption 7(C) requires, as the Supreme Court held in US. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 776 (1989), "balanc[ing] the public interest in disclosure against the interest [in privacy] Congress intended the Exemption to protect."
In Reporters Committee, the Supreme Court considered the applicability of Exemption 7(C) to a request for an alleged mob figure's "rap sheet"-a document compiled by the FBI that "contain[ed] certain descriptive information, such as date of birth and physical characteristics, as well as a history of arrests, charges, convictions, and incarcerations." Id. at 752. Holding that the disclosure of such rap sheets implicates a substantial privacy interest, id. at 771, the Court rejected the contention that any interest in avoiding disclosure "approaches zero" simply because "events summarized in a rap sheet have been previously disclosed to the public," id. at 762-63. The Court explained that an individual's interest in privacy "encompass[es] the individual's control of information concerning his or her person," id. at 763, even though "the information may have been at one time public," id. at 767. Disclosure of a rap sheet, the Court found, was particularly troubling because it would in one fell swoop bring to light many facts about a person that might otherwise be subject to little public scrutiny. See id. at 769-71; see also id. at 764 (emphasizing the "distinction, in terms of personal privacy, between scattered disclosure of the bits of information contained in a rap sheet and revelation of the rap sheet as a whole"). On the other side of the balance, the Court found the public interest in disclosure to be fairly limited because a rap sheet would reveal little about "the Government's activities." !d. at 754. Thus, the Court held "as a categorical matter" that granting a "third party's request for

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Jaw enforcement records or information about a private citizen" that "seeks no 'official information' about a Government agency'· would constitute an '"unwarranted"' invasion ofprivacy.ld. at 780.
The case now before us arose after the American Civil Liberties Union learned that federal law enforcement agencies were, without first securing a warrant, obtaining data from cellular phone companies that could be used to track phone users' whereabouts. The ACLU filed FOlA requests with the Drug Enforcement Administration and the Executive Office for United States Attorneys, seeking, among other things, records related to: 'The case name, docket number, and court of all criminal prosecutions, current or past, of individuals who were tracked using mobile location data, where the government did not first secure a warrant based on probable cause for such data." To compel production of these records, the ACLU then sued the Department of Justice.
In response, the Department identified a large number of prosecutions-the total count is currently 229-in which a judge had, since September 200 I, granted the government's application to obtain cell phone location data without making a probable cause determination. The Department refused to tum this list of cases over to the ACLU, claiming that the information fell within FOIA Exemption 7(C).
The parties each moved for summary judgment. The district court, then Judge Robertson, concluded that each of the individuals who had been prosecuted in these cases had a privacy interest in preventing disclosure of the requested information. The court went on to draw a distinction that neither party had directly advanced, according "a greater privacy interest to persons who were acquitted, or whose cases were dismissed or sealed (and remain under seal), and a

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5
considerably lesser privacy interest to persons who were convicted, or who entered public guilty pleas." American Civil Liberties Union v. US. Department of Justice, 698 F. Supp. 2d 163, 166 (D.D.C. 201 0). Determining that "the public has a substantial interest in the subject of cell phone tracking" that would be advanced by the requested disclosure, the court held that "the public interest in 'what the government is up to' outweighs the privacy interests of persons who have been convicted of crimes or have entered public guilty pleas; but ... the privacy interests of persons who have been acquitted, or whose cases have been sealed and remain under seal, or whose charges have been dismissed, outweigh the public interest in disclosure of their names and case numbers." !d. The district court therefore directed the Department to disclose the requested information regarding prosecutions in which the government had secured a conviction but permitted it to withhold the information regarding the remaining cases.
Both sides appealed, and this court affirmed in part. We began our analysis by noting that, although the ACLU sought only the case name, court, and docket number of these prosecutions, courts "evaluating the privacy impact of the release of information . . . have taken into consideration potential derivative uses of that information." ACLU I, 655 F.3d at 7. The derivative uses to be made with the requested docket information were fairly substantial: with "little work," someone could "look up the underlying case files in the public records of the courts," id., and could even attempt to contact the defendants, or their attorneys, directly, id. at 11-12. Nevertheless, we concluded that, with respect to those defendants who had ultimately been convicted, disclosure "would compromise more than a de minimis privacy interest, [but] it would not compromise much more." /d. at 12. We emphasized that, unlike in Reporters Committee, the

r:
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requested infonnation pertained only to a single, relatively recent prosecution, the details of which were already "readily available to the public" and not at all '"practical[ly] obscure[]."' Jd. at 9 (quoting Reporters Committee, 489 U.S. at 762) (alteration in original). As for the public interest, we detennined that disclosure would have the significant benefit of "shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool," helping to "inform [the] ongoing public policy discussion" regarding the propriety of warrantless cell phone tracking. Jd. at 13. "[I]n light of the strength of [this] public interest . . . and the relative weakness of the privacy interests at stake," we held that the district court had correctly rejected the Department's contention that production of this docket infonnation would represent an '"unwarranted' invasion of privacy under Exemption 7(C)." ld. at 16.
Significantly, however, we did not affinn the district court's holding that infonnation regarding acquittals, dismissals, or sealed cases could be withheld. We did observe that the distinction the district court had drawn "makes some intuitive sense, as both parties agree that the disclosure of infonnation regarding [such cases] raises greater privacy concerns than the disclosure of infonnation regarding public convictions or public pleas." Id. at 17. But, we continued, "whether that is enough of a distinction to justify withholding under Exemption 7(C) is a harder question." I d. Because it was unclear from the record whether there were any cases that fell within this category, we opted to forgo resolving the issue, instead vacating this portion of the district court's decision and "remand[ing] the case for th[ e] court to determine whether any of the docket numbers refer to cases in which the defendants were acquitted, or to cases that were dismissed or sealed." Id.

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Following our remand, the Department identified 214 prosecutions that had resulted in convictions or public guilty pleas and released the docket information for these cases. This left a total of fifteen prosecutions that were responsive to the ACLU's request and had ended in dismissals or acquittals, or had been sealed. Because the ACLU did not challenge the Department's authority to withhold the information regarding sealed cases, only six remain at issue~four of which were resolved by dismissal and two that ended in acquittal. American Civil Liberties Union v. US. Department ofJustice, 923 F. Supp. 2d 310, 313 (D.D.C. 2013). Having established that these six cases in fact existed, Judge Amy Berman Jackson, to whom the case was assigned after Judge Robertson's retirement, again granted the Department's motion for summary judgment. !d. at 314.
The ACLU appeals, thus presenting us with the "harder question" we were previously able to avoid. ACLU I, 655 F.3d at 17. Our review is de novo. "In the FOIA context this requires that we ascertain whether the agency has sustained its burden of demonstrating that the documents requested are ... exempt from disclosure under the FOIA." !d. at 5 (internal quotation marks omitted).
II. As in our previous decision, we begin by assessing the privacy interest at stake. The Department argues that "prosecuted-but-not-convicted individuals are ... in a similar position to persons investigated or arrested but not prosecuted," and that this court has "accord[ed] a strong privacy interest to such individuals." Appellee's Br. 19. The ACLU argues that the privacy interests of defendants whose prosecutions resulted in dismissals or acquittals are only "marginally greater" than those of defendants who were

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8
convicted-which, as we held in our prior decision, are nearly de minimis. Appellants' Br. 20. Each party overstates its case.
It is true, as the Department observes, that we have regularly concluded that individuals have a "strong interest" in avoiding disclosure of their involvement in "alleged criminal activity." Filzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990) (internal quotation marks omitted); accord, e.g., People for the Ethical Treatment of Animals v. National Institute of Health, No. 12-5183, slip op. at 9 (D.C. Cir. Mar. 14, 2014); Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 866 (D.C. Cir. 1981 ). Those decisions, however, dealt with individuals who were either the subject of or involved in government investigations of criminal activity but never charged with a crime. See ACLU I, 655 F.3d at 7 n.8. Such individuals' privacy interests are strong in part because disclosure would "reveal[] to the public that the individual had been the subject of an ... investigation." Baez v. US. Department of Justice, 647 F.2d 1328, 1338 (D.C. Cir. 1980) (emphasis added); accord, e.g., Branch v. FBI, 658 F. Supp. 204, 209 (D.D.C. 1987). The privacy interest in preventing disclosure is diminished, however, if the fact of someone's involvement in alleged criminal activity is already a matter of public recordas will be the case when a defendant was indicted. See Reporters Commil/ee, 489 U.S. at 763; ACLU I, 655 F.3d at 7 & n.8. Thus, we disagree with the Department that those who have been acquitted or had their cases dismissed and whose involvement in alleged criminal activity has already been publicly revealed are in the same situation as those who were never charged in the first place.
We likewise disagree with the ACLU that the privacy interests of defendants who were indicted but not convicted are essentially indistinguishable from those of defendants who

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9
were convicted. To be sure, many of the factors we considered important in concluding that convicted defendants have a relatively weak privacy interest are equally applicable to those individuals whose interests we now consider here. In particular, just as was true with respect to convicted defendants, the requested docket information regarding defendants who were charged but not convicted would "disclose only information that has already been the subject of a public proceeding," is "available in public records," ACLU I, 655 F.3d at 8, and is likely readily accessible by the public through "computerized government services like PACER" or even a simple "Google search for that person's name," id. at I0. Indeed, as we have observed, this prior public exposure is precisely what distinguishes the individuals whose interests we consider in this case from those who have been investigated but not charged. But the fact that information about these individuals' cases is a matter of public record simply makes their privacy interests "fade," not disappear altogether. ACLU I, 655 F.3d at 9 (internal quotation marks omitted); see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494--95 (1975) ("[T]he interests in privacy fade when the information involved already appears on the public record."); see Reporters Committee, 489 U.S. at 767 ("[O)ur cases have . . . recognized the privacy interest inherent in the nondisclosure of certain information even where the information may have been at one time public."). Consistent with our decision in ACLU I, we reject the dissent's surrender of any reasonable expectation of privacy to the Internet--a surrender that would appear to result from a failure to distinguish between the mere ability to access information and the likelihood of actual public focus on that information. See Dissenting Op. at 4-6; cf United States v. Jones, 132 S. Ct. 945, 964 (20!2) (Alita, J., concurring) (concluding that individuals generally have a reasonable expectation in being free of long-term GPS surveillance notwithstanding the ready

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10
availability of this technology); id. at 957 (Sotomayor, J., concurring) (suggesting that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties," as that "approach is ill suited to the digital age"). And if individuals not convicted have a substantially greater privacy interest than convicted individuals to start with, then even after both interests are discounted due to prior public revelation, the former interest will remain substantially greater than the latter.
In our view, 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 presumption of innocence stands as one of the most fundamental principles of our system of criminal justice: defendants are considered innocent unless and until the prosecution proves their guilt beyond a reasonable doubt. See Coffin v. United States, 156 U.S. 432, 453 (1895) ("The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."). Individuals who are charged with a crime and ultimately prevail of course remain entitled to a version of this presumption. In the eyes of the law, they are not guilty. Cf Herrera v. Collins, 506 U.S. 390, 399--400 (1993) (following conviction, "the presumption of innocence disappears," and "(t]hus, in the eyes of the law, petitioner does not come before the Court as one who is 'innocent"'). Unfortunately, public perceptions can be quite different. Aware of the heavy burden of proof that the government must satisfy in a criminal prosecution, many may well assume that individuals charged with a crime likely committed that crime regardless of how the case was ultimately resolved. "We all know," ACLU

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counsel candidly observed at oral argument, "there are some guilty people who are not convicted.'' Oral Arg. Rec. 27:03:08. Or as former Secretary of Labor Raymond Donovan wondered after being acquitted of larceny and fraud, "Which office do 1 go to to get my reputation back?" Selwyn Raab, Donovan Cleared of Fraud Charges by Jury in Bronx, N.Y. Times, May 26, 1987, at AI. Thus, if the right to privacy is, at its essence, "the right to be let alone," Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), those who are acquitted or whose charges are dismissed have an especially strong interest in being let alone. Although the fact that such defendants were accused of criminal conduct may remain a matter of public record, they are entitled to move on with their lives without having the public reminded of their alleged but never proven transgressions.
This special interest in shielding those charged with but not convicted of a crime is reflected in state Jaws that limit the disclosure of criminal history summaries involving data other than convictions. See, e.g., Conn. Gen. Stat. § 54-142n ("Nonconviction information other than erased information may be disclosed only to: (I) Criminal justice agencies ... ; (2) agencies and persons which require such information to implement a statute or executive order that expressly refers to criminal conduct; (3) agencies or persons authorized by a court order, statute or decisional law to receive criminal history record information."); Haw. Rev. Stat. § 846-9 (providing that "[d]issemination of nonconviction data shall be limited" to certain specified entities, but that "[t]hese dissemination limitations do not apply to conviction data"); see also Reporters Committee, 489 U.S. at 754 n.2 (observing that "[i]n general, conviction data is far more available outside the criminal justice system than is nonconviction data," and that in "47 states nonconviction data cannot be disclosed at all for non-criminal justice purposes, or may be

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disclosed only in narrowly defined circumstances" (internal quotation marks omitted)). It is also reflected in statutes and court decisions providing for the sealing of cases in which the defendant was never convicted. See. e.g., N.Y. Crim. Proc. Law § 160.50 ("Upon the termination of a criminal action or proceeding against a person in favor of such person . . . , unless ... the court ... determines that the interests ofjustice require otherwise ... , the record of such action or proceeding shall be sealed . . . ."); Ohio Rev. Code § 2953.52 ("Any person, who is found not guilty of an offense by a jury or a court or who is the defendant named in a dismissed complaint, indictment, or information, may apply to the court for an order to seal the person's official records in the case."); see also John P. Sellers, Ill, Sealed with an Acquittal: When Not Guilty Means Never Having to Say You Were Tried, 32 Cap. U. L. Rev. I (2003) (describing Ohio courts' expansive use of this power). Perhaps most important for our purposes, it is an interest whose relative significance is reflected in our prior decision in this case, in which we observed that the privacy interests of defendants who have been convicted "are weaker than for individuals who have been acquitted or whose cases have been dismissed." ACLU I, 655 F.3d at 7; see also id. at 8 (emphasizing that, unlike in Reporters Committee, the requested disclosure would "disclose only information concerning a conviction or plea; it would not disclose mere charges or arrests''). Indeed, even our dissenting colleague appears to acknowledge the relative strength of this interest. See Dissenting Op. at 2 (stating that the privacy interests here are "marginally greater than they were in ACLU f').
Release of the docket information the ACLU seeks would substantially infringe this privacy interest. It would create the risk-perhaps small, see ACLU I, 655 F.3d at lO-ll, but nonetheless real-that renewed attention would be paid to the

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individuals who were the subject of these prosecutions. While 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 in avoiding additional and unnecessary publicity. For example, someone who had been acquitted of accounting fraud after a full and fair trial, moved on with his life, and started a family might be especially dismayed were his neighbors, friends, and family to learn about his previous prosecution due to the publicity associated with the release of the requested information. Or what of a defendant charged with producing child pornography whose case was dismissed after the government identified the real perpetrator, yet is nevertheless viewed with suspicion by those who learn of his mere involvement in such a case? If, as the Supreme Court put it in Reporters Committee, an "ordinary citizen" has a privacy interest "in the aspects of his or her criminal history that may have been wholly forgotten," certainly that interest is particularly great when the ordinary citizen was never actually convicted but nonetheless might be presumed by the public to have been guilty. 489 U.S. at 769. Release of this information would also permit the ACLU or others to contact the defendants in question in order to learn more about their cases, something the ACLU has expressly told us it plans to do. Though "relatively minimal," ACLU I, 655 F.3d at II, such an intrusion may be especially undesirable for individuals who are understandably trying to put their past ensnarement in the criminal justice system behind them.
III. Having concluded that defendants who were acquitted or had their cases dismissed have a substantial privacy interest at stake, we must now balance this interest against the public interest in disclosure. Such balancing decisions, generally speaking, are among the most challenging sorts of cases that

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judges face. Indeed, the task brings to mind the rhetorical question often attributed to Chief Justice Traynor of the California Supreme Court: "Can you weigh a bushel of horsefeathers against next Thursday?" Brainerd Currie, The Disinterested Third State, 28 Law & Contemp. Probs. 754, 754 (1963); cj also William Prosser, Res Ipsa Loquitur in California, 37 Cal. L. Rev. 183, 225 (1949) ("A presumption ... can no more be balanced against evidence than ten pounds of sugar can be weighed against half-past two in the afternoon.") (internal quotation marks omitted)). In this case, however, the comparison is not so amorphous and the balance, while close, is nonetheless clear.
The ACLU argues 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. According to the Department, however, the public interest in the disclosure of these six prosecutions is reduced by the prior disclosure of the 214 prosecutions that resulted in convictions. In support, the Department relies on Schrecker v. US. Department of Justice, 349 F.3d 657 (D.C. Cir. 2003), in which we observed that a court's "inquiry'" into the interest in disclosure "should focus not on the general public interest in the subject matter of the FOIA request, but rather on the incremental value of the specific information being withheld." !d. at 661 (emphasis added).
We have no need to wade into this debate. Even assuming, as the ACLU contends, that the public interest in the disclosure here equals that in ACLU !, that interest pales in comparison to the substantial interests in privacy that are now at stake. The line drawn by Judge Robertson between prosecutions that result in convictions and those that result in dismissals or acquittals is not just one that "makes some intuitive sense," as we put it in our prior opinion; it is, we

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now hold, a distinction that is fully consistent with FOIA. Given the fundamental interest individuals who have been charged with but never convicted of a crime have in preventing the repeated disclosure of the fact of their prosecution, we have little hesitation in concluding that release of the remaining information the ACLU seeks "'could reasonably be expected to constitute an unwarranted invasion of personal privacy.'" 5 U.S.C. § 552(b)(7)(C). Indeed, 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.
IV. One last issue demands our attention. The ACLU argues that neither this court nor the district court could properly conclude that the Exemption 7(C) balance tilts in favor of withholding because the Department has failed to provide the information necessary to make that determination. The ACLU lists seventeen facts the Department has refused to providefacts relating to the specifics of the litigation in these six cases, the particular defendants charged, and the degree to which the cases received prior publicity. This information, it claims, might either increase the public benefit that would flow from disclosure of this particular docket information or decrease the privacy interest at stake. To the extent they are relevant at all, however, sixteen of the seventeen specifics the ACLU contends the Department should have produced are facts for which the burden of production actually lies with the ACLU. See National Archives & Records Administration v. Favish, 541 U.S. 157, 172 (2004) ('"Where the privacy concerns addressed by Exemption 7(C) are present, the exemption requires the person requesting the information to establish a sufficient reason for the disclosure."); Afshar v.

~- II
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Department of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983) ("'[A] plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.").
The one piece of information requested by the ACLU that the government would have to produce is whether any of the defendants have died. As we have held, not only is an individual's death "a relevant factor" in assessing the privacy interests implicated by a disclosure involving that individual, but in some circumstances the government must take "certain basic steps to ascertain whether an individual [is] dead or alive." Schrecker v. U.S. Department ofJustice, 254 F.3d 162, 166--67 (D.C. Cir. 2001). But although death may "diminish" the relevant privacy interests, it "by no means extinguishes" them because "one's own and one's relations' interests in privacy ordinarily extend beyond one's death.'' Id at 166; see also Swidler & Berlin v. United States, 524 U.S. 399, 407 (1998) (holding that the attorney-client privilege survives the client's death because "(c]lients may be concerned about reputation, civil liability, or possible harm to friends or family" and "[p]osthumous disclosure ... may be as feared as disclosure during the client's lifetime"). Here, even assuming any of the six individuals who were the subject of the prosecutions at issue have died, the relevant privacy interests remain substantial. Deceased defendants never convicted of a crime retain a reputational interest in keeping information concerning their prosecutions out of the public eye. They may also have family members who themselves have a legitimate interest in avoiding the increased scrutiny that could follow from the release of the requested docket information. Cf Favish, 541 U.S. at 170 ("FOIA recognizes surviving family members' right to personal privacy with respect to their close relative's death-scene images."). Given the substantial nature of these interests, we conclude that withholding the requested

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17 docket information would be justified under Exemption 7(C) even if some or all of the underlying defendants were dead. Accordingly, the district court properly granted the Department's motion for summary judgment notwithstanding the Department's apparent failure to investigate this issue.
v.
For the forgoing reasons, we affirm the district court's grant of summary judgment to the Department.
So ordered.

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TATEL, Circuit Judge, concurring: The court's opinion assumes without deciding that the public interest in disclosure of the docket information for these six prosecutions is just as great as was the interest in disclosing the information for the 214 prosecutions the Justice Department was previously ordered to release. See Majority Op. at 14. I write separately to explain why I believe this prior disclosure has substantially reduced the value of the remaining information the ACLU continues to seek, thus further tilting the balance in favor of withholding.
In evaluating the public benefit of disclosure under FOIA Exemption 7(C), D.C. Circuit precedent requires that we focus on the "incremental value" of the "specific information" sought. Schrecker v. US. Department of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003); accord, e.g., Bast v. US. Department ofJustice, 665 F.2d 1251, 1254 (D.C. Cir. 1981); King v. US. Department of Justice, 830 F.2d 210, 234-35 (D.C. Cir. 1987). That is, instead of simply asking whether there might be some general public interest in the subject matter of the FOIA request, we ask whether and how the information sought in a particular FOIA request will actually cast light on the government's activities. See, e.g., ACLU v. US. Department of Justice, 655 F.3d I, 12-16 (D.C. Cir. 2011) (ACLU I). Examining the incremental value of a given disclosure follows from the basic purpose of the Exemption 7(C) balancing test: determining whether a particular record or piece of information is worth the privacy costs of release requires an assessment of the potential benefits that would actually flow from release.
When assessing the "incremental value" of the information sought, we of course apply the common sense notion that the value of information depends on the mix of data already publicly available-including that previously released by the agency subject to the FOIA request. In US. Department of State v. Ray, 502 U.S. 164 (1991), the

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Supreme Court illustrated this approach in the process of analyzing the benefit of disclosing information retained pursuant to FOIA Exemption 6, a parallel exemption that authorizes withholding records if disclosure would "constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). In Ray, the State Department had released documents relating to its efforts to monitor Haiti's compliance with its promise not to persecute certain refugees. In doing so, however, the State Department redacted information regarding the identity of the refugees-information that, as the Court recognized, would, in a vacuum, have been helpful to the FOIA requesters because it would have enabled them to track down the refugees and ask them about any persecution. See Ray, 502 U.S. at 171, 177; cf id. at 179 (observing that the Court's resolution of the case allowed it to avoid deciding whether derivative uses of disclosed information could qualify as a public interest in disclosure); ACLU I, 655 F.3d at 15 ("this court takes derivative uses into account in evaluating the impact of disclosure on the public interest"). The dissent cannot simply misquote away the value of this information. See Dissenting Op. at 9 (quoting from section of the Court's opinion describing the Eleventh Circuit's conclusion "that the redacted information would not, in and of itself, tell respondents anything about Haiti's treatment of the returnees or this Government's honesty, but ... the indirect benefit of giving respondents the means to locate the Haitian returnees and to cross-examine them provided a public value that required disclosure," Ray, 502 U.S. at 170-71.) Nevertheless, the Court rejected an effort to ascertain the refugees' identities because the "public interest" had already been "adequately served by disclosure of the redacted interview summaries." Ray, 502 U.S. at 178. It explained that the released "documents reveal how many returnees were interviewed, when the interviews took place, the contents of individual interviews, and details about the status of the

,,
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3
interviewees." ld Thus, it concluded, "[t]he addition of the redacted identifying information would not shed any additional light on the Government's conduct of its obligation." /d, (emphasis added). As the Court reiterated in even clearer language: "[T]here is nothing in the record to suggest that a second series of interviews with the alreadyinterviewed returnees would produce any relevant information that is not set forth in the documents that have already been produced." Id at 179; accord, e.g, Painting & Drywall Work Preservation Fund v. Department of Housing & Urban Development, 936 F.2d 1300, 1303 (D.C. Cir. 1991) (concluding that the public interest in the disclosure of worker records that would provide information on agency enforcement efforts was minimal because interested parties could obtain similar information through alternative means). Perhaps, as the dissent suggests, the relevant privacy interest in Ray was more substantial than here. See Dissenting Op. at 8. But FOIA requires us to balance privacy interests against the benefits of disclosure, and the critical point for our purposes is that in Ray the Court evaluated the latter by examining the incremental effect of the information sought in light of prior disclosures.
Consistent with the forgoing principles, and given the unique way in which this case has evolved, I believe that the public interest at issue here is less than it was when the case was previously before us. Of course, there is little doubt that "[t)he use of and justification for warrantless cell phone tracking" continues to be a "topic of considerable public interest." ACLU I, 655 F.3d at 12; see, e.g., Kate Zemike, Court Restricts Police Searches of Phone Data, N.Y. Times, July 19, 2013, at AI (describing differing positions taken by courts on the legality and propriety of this investigatory technique); Joe Palazzolo. Montana Requires Warrants for Cell Phone Tracking, Wall St. J. L. Blog, June 21, 2013,

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http://blogs. wsj .com/law/20 13/06/21/montana-requireswarrants-for-cell-phone-tracking (describing efforts by states to require police to obtain a warrant in order to access cell phone tracking information). The disclosure of these six cases could also "shed[]" at least some additional "light on the scope and effectiveness" of this practice. ACLU I, 655 F.3d at 13.
But most ofthe 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. For example, we observed that disclosure would "provide information about the kinds of crimes the government uses cell phone tracking data to investigate," the "standards the government uses to justify warrantless tracking," and "facts regarding the duration of tracking and the quality of tracking data." !d. at 13-14. As a result of the district court's and our own prior decisions, however, 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. Compare with id. at 14-15 (rejecting government's argument that release of the information was unnecessary due to the "extensive public attention that this issue is already receiving," because "much of the information the plaintiffs seek to develop from the FOIA disclosure ... is not currently in the public domain" (internal quotation marks omitted)). True, the six remaining cases could contain some interesting anecdotal evidence: the ACLU speculates that it is "more likely that a failed prosecution involved" a "motion[] to suppress evidence

I"
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5
derived from cell phone tracking," and that suppression hearings are particularly likely to yield useful information. Appellants' Br. 33-34; see also ACLU I, 655 F.3d at 14 (describing information that could be derived from suppression hearings). Even so, if the Department's disclosure of 214 prosecutions has failed to reveal the nature and extent of the government's practice of obtaining cell phone tracking data without a warrant, the probability that disclosure of these six remaining cases would yield significant benefits is relatively low. To paraphrase the Supreme Court in Ray, there is little to suggest that these six cases "would produce any relevant information that is not set forth in the [214 prosecutions] that have already been produced." 502 U.S. at 179.
The ACLU argues that applying the "incremental value" test in this fashion would give federal agencies license to arbitrarily withhold portions of requested recordspresumably "the more important or embarrassing responsive records"--on the ground that the public interest in disclosure will be satiated by the records they choose to actually release. Appellants' Br. 35. Although I have no doubt that this court would look with great suspicion on any attempt to manipulate FOIA in this fashion, this case involves no such mischief. It is well-established that federal agencies may disclose particular records or portions of records responsive to a request without disclosing all responsive records so long as they have some legitimate FOlA-based reason for doing so. See 5 U.S.C. § 552(b) ("Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt ...."); Assassination Archives & Research Center v. CIA, 334 F.Jd 55, 58 (D.C. Cir. 2003); see also, e.g., Ray, 502 U.S. at 17879; King, 830 F.2d at 234-35 (D.C. Cir. 1987) (permitting government to release investigative report with portions

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6 redacted in order to protect privacy interest of individuals named). When, for example, an agency withholds certain records that implicate greater privacy interests than those it releases, and then evaluates the public benefit of releasing these remaining records in light of the information already released, it acts just as FOIA requires-efficiently trading off privacy costs and disclosure benefits. That is almost exactly what happened here. Having released all of the information our prior decision required, the Department now resists disclosure of a particular type of information that implicates stronger privacy interests. That being so, I see no reason to now disregard this prior disclosure. Just as we would certainly take account of the existence of the docket information for these 214 cases had it been uncovered and published by the Washington Post, we may take account of it here even though its release resulted from this litigation.

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BROWN, Circuit Judge, dissenting: While l sympathize with the court's protective instincts, I subscribe to Lady Macbeth's drear insight: "What's done cannot be undone." Redemption is still possible, but in the modem world, the right to be left alone, once forfeited, is gone for good. An individual who is indicted and tried has no privacy interest that can protect the public record of prosecution from disclosure-even if the ultimate outcome was acquittal or dismissal. The residual privacy concerns we identified in ACLU I are insufficient to meet the Exemption 7(C) threshold. There we noted that the privacy right at common law rested in large part on the "degree of dissemination," and that "interests in privacy fade" when the information is already part of the public record and is readily available. Am. Civil Liberties Union v. US. Dep 't ofJustice (ACLU !), 655 F.3d l, 9 (D.C. Cir. 2011). Because the privacy interest here started small and the pace of technology continues to diminish it, I respectfully dissent.
At the outset, I should note the court does get one thing right. As a general matter, judges tasked with balancing equally metaphysical concepts, like privacy and the public interest, face what are among the most difficult and largely standardless endeavors. See Reporters Comm. for Freedom of Press v. US. Dep't of Justice, 816 F.2d 730, 741 (D.C. Cir. 1987) (expressing doubt that there is any principled basis for federal judges to make such ad hoc and idiosyncratic determinations). Even so, I agree the balancing in this case is relatively clear. The six disputed records already exist in the public domain. Indeed, the court acknowledges the records are accessible via a simple Google search or through PACER. Furthermore, the court correctly determines the public interest in disclosure is no more or Jess than it was in ACLU I. There, we characterized the public interest as "significant." ACLU I, 655 F.3d at 12. With one arm of the balance thus weighted, the only question is whether the privacy interests of unconvicted persons tip the scales against disclosure. The

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2
court today holds that the contest, while close, is nevertheless convincingly won by a supposedly more substantial privacy interest. I am not persuaded. On balance, the permanence and accessibility of the records render any privacy interests only marginally greater than they were in A CL U I, thus tipping the balance in favor of disclosure.
The majority's privacy analysis rests on two pillars: the presumption of innocence and the common law of informational privacy. Both notions have shortcomings. First, the presumption of innocence is an artifact of the common law's adversarial approach to the question of guilt. What authority exists for the proposition that the presumption of innocence affords indicted, but unconvicted, persons some measure of informational privacy? The Supreme Court has made it clear that the presumption of innocence applies only to a criminal trial and, within the trial, only to the jury or other trier of fact. See Bell v. Wo!fish, 441 U.S. 520, 533 (1979) ("The presumption of innocence is a doctrine that allocates the burden of proof in crimina/trials; it also may serve as an admonishment to the jury to judge an accused's guilt or innocence solely on the evidence adduced at trial . . .." (emphasis added)). Any other, extra-trial reference to the doctrine is both imprecise and impotent. If, as the Supreme Court posits, the presumption of innocence is purely an instrument for allocating the burden of proof at trial and warning jurors against drawing untoward inferences, then there is no basis for supposing the presumption of innocence governs events beyond the trial itself. Contra Majority Op. at I0 ("Individuals who are charged with a crime and ultimately prevail of course remain entitled to a version of this presumption [of innocence]."). And why would a common law presumption trump FOIA 's statutory mandate?

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The court hypothesizes the plight of individuals who, though never convicted, are viewed with suspicion when others learn of their mere involvement in particularly ignoble cases. See Majority Op. at 13. But even if true, persons who are publicly indicted and tried can have no reasonable expectation that the occurrence of these events will not be publicly disclosed. Risk of disclosure inheres in the very nature of these public proceedings. See Craig v. Harney, 331 U.S. 367, 374 (1947) ("A trial is a public event. What transpires in the court room is public property."). To be sure, we previously discounted the small but nonetheless real risk of renewed attention, dismissing such concerns as sheer "speculation." See ACLU I, 655 F.3d at 10-11 ("Such a list [of publicly indicted persons] is surely less likely to draw attention to a name than was the initial press coverage of an indictment ....").
Furthermore, what of the need for an informed citizenry to hold public officials accountable? One "purpose of FOIA is to permit the public to decide for itselfwhether government action is proper." Wash. Post Co. v. U.S. Dep't of Health & Human Servs., 690 F.2d 252, 264 (D.C. Cir. 1984) (emphasis added); see also Richard A. Epstein, Privacy, Publication, and the First Amendment: The Dangers of First Amendment Exceptionalism, 52 STAN. L. REv. 1003, 1004, 1047 (2000) (discussing as a counterweight to privacy goals, the social ideal of full disclosure of information about others to allow individuals to make "full and informed decisions on matters of great importance""); Sadiq Reza, Privacy and the Criminal Arrestee or Suspect: In Search of a Right, in Need of a Rule, 64 MD. L. REv. 755, 807 (2005) ("The government should arguably inform the public about its suspicions regarding an arrestee or suspect so that people may practice 'informed living,' the right to exercise an informed choice about those with whom they live and associate. That is, X should have

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4
access to infonnation that Y has been arrested for or suspected of a crime so that X can decide intelligently whether to socialize with Y, let her children play with Y's children, patronize Y' s business, or use Y' s professional services, and so forth."). From the point of view of the wrongfully accused, this will be a continuing injustice, but a person can be found not guilty and still not be innocent of the crime charged. See Rigsbee v. United States, 204 F.2d 70, 72-73 (D.C. Cir. 1953) (holding that an acquittal differs from innocence and that the fonner would be insufficient by itself to obtain a certificate signifying the latter). The rough balance courts must strike can never resolve such anomalies.
The Court's reliance on common law informational privacy doctrine is similarly unavailing. "[B]oth the common law and the literal understandings of privacy encompass the individual's control of [personal] infonnation." Reporters Comm., 489 U.S. at 763. The touchstone of informational privacy-the right to be let alone-has long rested on the degree to which an allegedly private fact has been disseminated, and the extent to which the passage of time has rendered it private. !d. Nevertheless, technological advances seem to presage the death knell for this previously workable standard. In today's echo chamber of big data, metadata, and the Internet, the once wholly forgotten memory of some unsavory, minimally broadcast misdeed is resurrected for global consumption. Against this backdrop, it seems fanciful to believe that individuals who were publicly indicted but never convicted (though in some cases publicly tried), retain an objective, substantial privacy interest in controlling infonnation about these public facts.
The court says unconvicted persons are "entitled to move on with their lives without having the public reminded of their alleged but never proven transgressions." Majority Op. at II.

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5 Alas, Google, unlike God, neither forgets nor forgives. 1 Indeed, Google is not alone in its uncanny ability to keep the proverbial score. It is true that most jurisdictions treat aggregations of data confidentially, but they also insist on transparency for records of individual cases. Courts, too, have a penchant for reminding acquitted individuals of their "alleged but never proven transgressions." See, e.g., Dowling v. United States, 493 U.S. 342, 354 (1990) (holding that admission of evidence relating to a crime the defendant had previously been acquitted of committing did not violate double jeopardy or due process); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 356-66 (1984) (holding that a gun owner's acquittal on criminal charges involving firearms did not preclude a subsequent in rem forfeiture proceeding against those firearms under 18 U.S.C § 924(d)); United States v. Foster, 19 F.3d 1452, 1455 (D.C. Cir. 1994) (noting that virtually every circuit permits enhancement of sentence based on acquitted conduct).
The proposition that "an 'ordinary citizen' has a privacy interest 'in the aspects of his or her criminal history that may have been wholly forgotten,"' Majority Op. at 13 (citing Reporters Committee, 489 U.S. at 769), is thus inapt. Thanks to the Internet (for better or worse), information that was once scattered, localized, and forgotten with the passage of time is now effectively permanent and searchable. And though one might wish quietly to melt into the shadow of obscurity, the inexorable march of time is simply no match for the unflagging, unforgiving memory that is the World Wide Web.
There are exceptions, of course, but records memorializing a public indictment and trial do not appear to be one of them. See Removal Policies, GOOGLE, https://support.google.com/websearch/answer/2744324#offen siveimages (last visited Apr. 23, 2014).

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6
Once a secret is disclosed online, neither the courts nor society may unring the lingering echo of the bell. In this respect, Reporters Committee is an anachronism. The aspects of an "ordinary citizen['s]" criminal history the Court thought would be wholly forgotten were the data contained in rap sheets, which were maintained in a localized computer database. See Reporters Comm., 489 U.S. at 752, 771; see also ACLU I, 655 F.3d at 8. Nowadays, bits and pieces of data are aggregated and immortalized on public and private systems, and the private systems have no purge schedules.
This is not to say the modem man has abdicated any expectation of privacy in facts partially disclosed. As the Supreme Court observed, "'the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information." Reporters Comm., 489 U.S. at 770. But there is a vast chasm between facts disclosed to a discrete group that otherwise treats the information as private and facts that are unqualifiedly revealed and accessible to virtually everyone. In my view, the case before us falls into the latter camp. Cf id. at 752 ("As a matter of executive policy, [DOJ] has generally treated rap sheets as confidential and, with certain exceptions, has restricted their use to governmental purposes."); Dep't ofAir Force v. Rose, 425 U.S. 352,359--60 (noting that the Academy treated "all matters discussed" at hearings for honor code violations as "confidential," marked case summaries "for official use only," and instructed cadets "not to read the case summary unless they have a need, beyond mere curiosity, to know their contents").
Considering the fissures in the two pillars supporting the court's privacy analysis, one would expect the privacy interests to become less significant. At the very least, these serious deficits ought give way to the court's obligation to

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"make a reasonable effort to account for the death of a person on whose behalf the [agency] invokes Exemption 7(C). Schrecker v. US. Dep't of Justice, 349 F.3d 657, 662 (D.C. Cir. 2003). This would include the deaths of family members. After all, "death clearly matters, as the deceased by definition cannot personally suffer the privacy-related injuries that may plague the living." Campbell v. US. Dep 't of Justice, 164 F.3d 20, 33 (D.C. Cir. 1998). I am not swayed by the majority's contention that reputational interests are enough to carry the day. The posthumous reputational interest the Supreme Court recognized in Swid/er & Berlin v. United States, 524 U.S. 399 (1998), is the one rooted in the venerable attorney-client privilege, not informational privacy. See id. (holding that the attorney-client privilege survives a client's death).
One last point warrants discussion. Judge Tatel's concurrence seeks to lend credence to DOJ' s invocation of the incremental value test-a test allegedly of precedential value. l am not so certain. First, the test is of dubious provenance. In King v. US. Dep 't ofJustice, 830 F.2d 210, 234 (D.C. Cir. 1987), the case cited by Schrecker as authority for its statement about the incremental value test, the court never actually used the words "incremental value." Instead, the court merely held that, because the appellant failed to demonstrate how disclosing the redacted names was relevant to the public interest, the privacy interests "outweighed any public interest attending disclosure." See id. at 234-35. That is all. King did not hold that the incremental value of information depends on the mix of data already publicly available.
In the 200-plus FOIA cases since the Schrecker decision, we have referenced the incremental value test only three times. In each instance, we have understood it to mean

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exactly the opposite of what the concurrence posits: "even if the 'absolute value' of the requested information is small, it must nevertheless be released if it adds any incremental value of public interest." Appellants' Reply Br. at 15; see ACLU I, 655 F.3d at 15 (rejecting DOJ's "incremental contribution" argument because "(t]he fact that the public already has some information does not mean that more will not advance the public interest" (emphasis added)); Lardner v. U.S. Dep't of Justice, 398 F. App'x 609, 611 (D.C. Cir. 2010) (affirming the district court's decision to disclose the identities of denied pardon and commutation applicants despite the previous disclosure and existence of approved applicants' identities on the public record. Significantly, the court noted: "The incremental value of the withheld information is not speculative ... .''); Consumers' Checkbook Ctr. for the Study of Servs. v. US. Dep 't of Health & Human Servs., 554 F.3d I046, 1060 (D.C. Cir. 2009) (Rogers, J., concurring in part and dissenting in part) ("(E]ven though the requested data will only partially reveal physicians' experience levels, the data has 'incremental value' for ascertaining the quality of services performed.").
In any event, even assuming the court is bound by the version of the incremental value test Judge Tate! espouses, the cases cited in support of this test are all distinguishable for one reason or another. In Ray, for example, the privacy interests were more significant than those implicated here. The information redacted from the disputed records was obtained via interviews with requested Haitians who were promised confidentiality. US. Dep 't ofState v. Ray, 502 U.S. 164, 172 (1991). In other words, the parties agreed to treat the information obtained as private. Furthermore, the Court's conclusion that "(t]he addition of the redacted identifying information would not shed any additional light on the Government's conduct of its obligation," id. at 178 (emphasis

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9 added), is in accord with this court's prior application of the test. The redacted information was withheld precisely because the Court recognized that, "in and of itself' it would not "tell respondents anything about Haiti's treatment of the returnees or this Government's honesty." Jd. at 170-71 (emphasis added).
Perhaps most importantly, however, Ray involved redacted information, not wholly undisclosed records. The difference is not merely academic. Judge Tatel's version of the incremental value test would make little sense where, as here, a court is dealing with undisclosed records that are substantively dissimilar to records previously disclosed. Unlike Ray, where the redacted information was sought so that interviews with Haitians could be conducted anew, 502 U.S. at 178-79, disclosing the records ofunconvicted persons would be neither duplicative nor speculative. It is reasonable to believe the six files could contain new information precisely because the records sought-unlike the Haitian interviewees-are qualitatively different. In fact, Judge Tate! agrees. Concurring Op. at 4 ("The disclosure of these six cases could also shed at least some additional light on the scope and effectiveness of [warrantless cell phone tracking]."). Nothing more is required.
At bottom, the public interest in disclosure remains as robust as it was in A CL U I. Conversely, in the Internet age, privacy is no longer what it once was. Times have changed, and so, too, must our expectations. I respectfully dissent.

 
 ~ltih.b ~tahs ((lourt of J\pp.eals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2011

Decided September 6, 2011

No. 10-5159

AMERICAN CIVIL LmERTms UNION AND AMERICAN CIVIL LmERTffiS UNION FOUNDATION, APPELLANTS/CROSS-APPELLEE
v.

UNITED STATES DEPARTMENT OF JUSTICE, APPELLEE/CROSS-APPELLANTS

Consolidated with 10-5167

Appeals from the United States District Court for the District of Columbia (No. 1:08-cv-01157)

Catherine Crump argued the cause for appellants/crossappellee. With her on the briefs were Arthur B. Spitzer and David L. Sobel.
John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for appellee/cross-appellants. With him on the briefs were Ronald C. Machen Jr., U.S. Attorney, and Leonard Schaitman, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

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Before: GINSBURG and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, CircuitJudge: The plaintiffs brought this action against the Department of Justice under the Freedom of Infonnation Act, seeking to obtain documents relating to the government's use of cell phone location data in criminal prosecutions. The district court directed the release of certain specified documents and upheld the Department's decision to withhold others. We affirm the court's order reqniring the release ofthe specified documents. Because there are too many factual uncertainties regarding the remaining documents, we vacate the balance of the court's decision and remand the case for further development of the record.
I
Cell phones generate several types ofdata that can be used to track their users' past or present locations with various degrees of precision. ' Concerned by reports that federal law
'For descriptions of the different kinds of data available, see In re Application of US. for an Order Directing Provider of Elec. Commc'n Servo to Disclose Records to Gov't, 534 F. Supp. 2d 585, 589-90 (W.D. Pa. 2008), vacated, 620 F.3d 304 (3d Cir. 2010); Kevin McLaughlin, Note, The Fourth Amendment and Cell Phone Location Tracking: WhereAre We?, 29 HASTINGsCoMM.&ENT.L.J.421,42627 (Spring 2007); Recent Development, Who Knows Where You've Been? Privacy Concerns Regarding the Use of Cellular Phones as Personal Locators, 18 HARv. J.L. & TEO!. 307, 308-10 (Fall 2004); Orin Kerr, Reader Poll: Do You Know How Cell Phones Work?, THE VOLOKH CONSPIRACY (Nov. 8,2010, 1:08 PM), http://volokh.com!
2010/11108/.

3
enforcement agencies were obtaining these data from telecommunications companies without ajudicial determination ofprobable cause,' the American Civil Liberties Union and the American Civil Liberties Union Foundation (ACLU) filed Freedom of Information Act (FOJA) requests with the Drug Enforcement Administration and the Executive Office for United States Attorneys, seeking information relating to the use of warrantless cell phone tracking by certain U.S. Attorneys' Offices. As is relevant to this appeal, the plaintiffs requested records relating to:
[I] The case name, docket number, and court of all criminal prosecutions, current or past, of individuals who were tracked using mobile location data, where the government did not first secure a warrant based on probable cause for such data, [and]
[2] Policies, procedures, and practices followed to obtain mobile phone location information for law enforcement purposes.
App.20,28.
>when the government wants to track an individual's location through his or her cell phone, it submits an application to a judge (usually a magistrate judge) seeking an order compelling a telecommunications company to provide access to the location data. The plaintiffs contend that "[p]rosecutors appear to routinely take the view that the government can obtain cell site location information without a warrant, by simply presenting to a magistrate 'specific and articulable facts showing ... reasonable grounds to believe that ... the records or other information sought, are relevant and material to an ongoing criminal investigation.'" ACLU Br. 9 (quoting In re
Application of u.s. for an Order for Disclosure of Telecomms.
Records & Authorizing Use ofPen Register & Trap & Trace, 405 F. Supp. 2d 435,444 (S.D.N.Y. 2005) (quoting 18 U.S.C. § 2703(d»).

4
On July 1, 2008, the plaintiffs brought suit against the Department of Justice (DOJ) to compel production of the
requested records. See FOrA, 5 U.S.C. § 552(a)(4)(B).
Thereafter, the Department agreed to conduct a search for the requested case names, docket numbers, and courts ("docket information''). It did this by first asking the relevant U.S. Attorneys' Offices to identify applications granted byjudges (or magistrate judges), on or after September 12,2001, to permit the government to obtain cell phone location data from telecommunications companies, where the judge did not make a determination ofprobable cause. It then asked those offices to provide the docket information for any case in which an individual was prosecutedafter such an application was granted. This inquiry generated a list of docket information for 255 criminal prosecutions. Def.'s Statement of Material Facts Not in Dispute at 3-4 (App. 37-38). The Department then withheld the list from disclosure, asserting that it fell within FOlA
Exemptions 6 and 7(C). See 5 U.S.C. § 552(b)(6), (7)(C).'
The Justice Department also produced a Vaughn index describing documents responsive to the plaintiffs' request for
"policies, procedures, and practices," and invoking various FOlA exemptions to justify the redaction or withholding of
some ofthose documents. See Vaughn v. Rosen, 484 F.2d 820,
826-28 (D.C. Cir. 1973). Among the documents listed in the
Vaughn index was a "Draft Application" to engage in cell phone
tracking (Document 22), which the Department withheld in full,
3Although FOlA only requires a government agency to disclose "agency records improperly withheld," 5 U.S.C. § 552(a)(4)(B), and does not "impose[] [any] duty on the agency to create records," For.ham v. Harris, 445 U.S. 169, 186 (1980), the Justice Department did not resist compiling or disclosing the list on that ground -- perhaps because it preferred producing the list (ifit came to that) to producing the documents from which the list was created.

5
and a "Template Application" (Document 29), which the Department produced after redacting the docket number. App. 52, 54. The plaintiffs objected to the withholding of the case name in Document 22, and of the docket numbers in both Documents 22 and 29.4
The parties filed cross motions for summary judgment. In assessing the Justice Department's invocation of Exemptions 6 and 7(C), the district court began by "allocat[ing] a greater privacy interest to persons who were acquitted, or whose cases were dismissed or sealed (and remain under seal), and a considerably lesser privacy interest to persons who were convicted, or who entered public guilty pleas." ACLUv. Dep 'f ofJustice, 698 F. Supp. 2d 163, 166 (D.D.C. 2010). The court held that the public interest in disclosure outweighed the privacy interest in the second category but not in the first. Accordingly, the court ordered the Department to release the requested docket infonnation only in cases that ended in convictions or public guilty pleas. ld.
With respect to the two government applications for cell phone data, the court concluded that the Department had properly withheld the case name and docket numbers under Exemption 7(C). In light of the plaintiffs' concession that any personally identifiable infonnation about surveillance targets who had not yet been prosecuted could be redacted from the case name, the court refused to order the ''meaningless production" ofa case name in which "nothing would be left but variants of the phrase 'In re: Application for Cell Site
40ther documents listed in the index, or portions thereof, were either produced to the plaintiffs' satisfaction before the district court ruled, see ACLU v. Dep't ofJustice, 698 F. Supp. 2d 163, 165 n.1 (D.D.C. 2010), or are no longer at issue on this appeal, ACLU Br. 4 n.2, 30 n.21.

6
Authority. '" ld. at 166-67. The court also rejected the plaintiffs' argument that, because such applications are invariably filed under seal, disclosure ofthe applications' docket numbers would not reveal any personally identifYing infonnation. The court found that disclosure "could reveal surveillance targets yet to be prosecuted, ... either because the cases are not actually sealed, or because the plaintiffs' promised motion to unseal could be successful." ld. at 167.
Both parties appeal. The Justice Department challenges the portion of the district court's decision directing it to release docket information in prosecutions of persons who were convicted or entered public guilty pleas. The plaintiffs challenge the portion of the decision denying their request to require the production of docket information in prosecutions of persons who were acquitted, or whose cases were dismissed or sealed (and remain under seal). The plaintiffs also challenge the court's denial of their request to require disclosure of the case name in the "Draft Application" (Document 22), and the docket numbers in both that document and the "Template Application" (Document 29).
II
We review the district court's disposition on summary judgment de novo. See Students Against Genocide v. Dep't of State, 257 F.3d 828, 833-34 (D.C. Cir. 2001). "In the FOIA context this requires that we ascertain whether the agency has sustained its burden of demonstrating that the documents requested are ... exempt from disclosure under the FOIA." Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994); see 5 U.S.C. § 552(a)(4)(B) (stating that ''the burden is on the agency to sustain its action").

7
FOIA was intended "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (intemal quotation marks omitted). "Although Congress enumerated nine exemptions from the disclosure requirement, 'these limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.'" Nat'/ Ass 'n ofHome Builders v. Norton, 309 F.3d 26,32 (D.C. Cir. 2002) (quoting Rose, 425 U.S. at 361). "At all times[,l courts must bear in mind that FOIA mandates a 'strong presumption in favor of disclosure,'" id. (quoting U.S. Dep 't of State v. Ray, 502 U.S. 164, 173 (1991», "and that the statutory exemptions, which are exclusive, are to be 'narrowly construed,'" id. (quoting Rose, 425 U.S. at 361). As the Supreme Court reminded appellate courts just this year, it has "often noted the Act's goal ofbroad disclosure and insisted that the exemptions be given a narrow compass." Milner v. Dep'l of the Navy, 131 S. Ct. 1259, 1265 (2011) (intemal quotation marks omitted).
FOIA Exemptions 6 and 7(C) seek to protect the privacy of individuals identified in certain agency records. Under Exemption 6, "personnel and medical files and similar files" may be withheld if disclosure "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Under Exemption 7(C), "records or information compiled for law enforcement purposes" may be withheld "to the extent that" disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Although the Justice Department relied on both exemptions in the district court, we need ouly consider whether it properly invoked Exemption 7(C). The plaintiffs concede that the requested records are subject to that exemption because they are "records compiled for law enforcement purposes." See ACLU, 698 F. Supp. 2d at 165 n.2. And because

8
Exemption 7(C) pennits withholding of such records if disclosure would constitute an ''unwarranted'' invasion of personal privacy, while Exemption 6 requires a "clearly unwarranted" invasion to justify nondisclosure, "Exemption 7(C) is more protective ofprivacy than Exemption 6" and thus establishes a lower bar for withholding material. U.S. Dep 't of Defense v. FLRA, 510 U.S. 487, 496 n.6 (1994); see also Nat 'I Archives & Records Admin. v. Favish, 541 U.S. 157, 165-66 (2003).'
In deciding whether the release of particular information constitutes an ''unwarranted'' invasion of privacy under Exemption 7(C), we "must balance the public interest in
disclosure against the [privacy1interest Congress intended the
Exemption to protect." U.S. Dep't of Justice v. Reporters Comm.for Freedom ofthe Press, 489 U.S. 749, 776 (1989); see Favish, 541 U.S. at 171; Ray, 502 U.S. at 175 (quoting Rose, 425 U.S. at 372). The public interest that must be weighed in this balance is the extent to which disclosure advances ''the basic purpose of the Freedom of Information Act 'to open agency action to the light of public scrutiny,'" Reporters Comm., 489 U.S. at 772 (quoting Rose, 425 U.S. at 372), thereby furthering ''the citizens' right to be informed about 'what their government is up to,'" id. at 773.
In this Part, we examine the material the district court ordered the Justice Department to disclose: docket information (case name, docket number, and court) from criminal cases in which the government prosecuted individuals after judges
'As a consequence, we do not address the parties' dueling postargumentletters discussing the manner in which the Supreme Court's recent decision in Milner, see 131 S. Ct at 1271, which narrowly construed the term ''personnel'' in FOIA Exemption 2, affects the proper construction ofFOIA Exemption 6.

9
granted applications for cell phone location data without a determination ofprobable cause, and in which those individuals were subsequently convicted or entered public guilty pleas. In Subpart A we consider the privacy interest and in Subpart B the public interest attendant to disclosure. In Part III, we consider the material that the district court declined to order the Department to disclose.
A
1. The first question we must ask is whether there is any privacy interest at stake here. In a given case, after all, the disclosure of the docket number, case name, and court may alone reveal little or nothing about an individual: the number and court plainly would not, and although the case name might (ifit included more thanjust a relatively common last name), by itself it would disclose neither the charges nor the disposition. Nonetheless, in evaluating the privacy impact of the release of information, the courts have taken into consideration potential derivative uses of that information.6 And here, it would take
'SeeDep'tojDejensev. FLRA, 510 U.S. at 501; Ray, 502 U.S. at 177; FLRA v. U.S. Dep't oj the Treasury, 884 F.2d 1446, 1452 (D.C. CiT. 1989); NARFE v. Homer, 879 F.2d 873, 878 (D.C. CiT. 1989); see also infra note 15. As we explained in NARFE v. Homer:
In virtually every case in which a privacy concern is implicated, someone must take steps after the initial disclosure in order to briog about the untoward effect. Disclosure does not, literally by itself, constitute a harm; it is the requester's (or another's) reaction to the disclosure that can stieg. This is only more obvious where disclosure of the infonnation invades someone's privacy not because itis embarrassing butbecause itinvites unwanted intrusions. Where there is a substantial probability that disclosure will

10
little work for an interested person to use the docket infonnation on the government's list to look up the underlying case files in the public records ofthe courts, and therein find the infonnation of interest. Although this can be done manually, it can also be readily accomplished using the federal court system's own public-access database, Public Access to Court Electronic Records (PACER),' or private databases like Westlaw or LexisNexis. Indeed, the plaintiffs have made clear that they intend to use the docket infonnation in this way. ACLU Reply Br.23-24.
There is also the question of just how much of a privacy interest a defendant retains regarding the facts of his or her conviction or public gnilty plea. We tend to agree with the district court that the disclosure ofconvictions and public pleas is at the lower end ofthe privacy spectrum. The parties agree as well. See ACLU Reply Br. 11; DOJ Br. 19. This is not to say that a convicted defendant has no privacy interest in the facts of his conviction. As the government points out, disclosure of a criminal conviction may be "embarrassing [and] stigmatizing," and may endanger one's prospects "for successful reintegration into the community." DOJ Br. 20-21, 26. But it is to say that those interests are weaker than for individuals who have been acquitted or whose cases have been dismissed. Accord ACLU Reply Br. 11; DOJ Br. 19. And they are plainly substantially
cause an interference with personal privacy, it matters not that there may be two or three links in the causal chain.
879 F.2d at 878.
'PACER, provided by the federal judiciary, "is an electronic public access service that allows users to obtain case and docket information from [all] federal appellate, district and bankruptcy courts." PACER: Public Access to Court Electronic Records, http://www.pacer.gov.

11
weaker than the privacy interests ofindividuals who have been investigated but never publicly charged at all. See Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856,864 (D.C. Cir. 1981) ("Typically, the decision not to prosecute insulates individuals who have been investigated but
not charged from th[e1 rather significant intrusion into their
lives" occasioned by public indictment.).'
Nonetheless, there is no real dispute that the scope of Exemption 7(C) can extend even to convictions and public pleas. In U.S. Department ofJustice v. Reporters Committeefor Freedom ofthe Press, the Supreme Court held that release ofthe contents of an FBI ''rap sheet" -- which may have included a record ofthe subject's convictions -- constituted an unwarranted invasion ofpersonal privacy under FOIA Exemption 7(C). See 489 U.S. at 780. The Court held "as a categorical matter" that "a third party's request for law enforcement records or infonnation about a private citizen can reasonably be expected to invade that citizen's privacy," and that such records may
'The Justice Department correctly notes this court has held that disclosure of records revealing that an individual was involved or mentioned in a law enforcement investigation implicates a significant privacy interest. See Schrecker v. U.S. Dep '/ ofJustice, 349 F.3d 657, 661, 666 (D.C. Cir. 2003); Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991); Fitzgibbon v. CIA, 911 F.2d 755,767 (D.C. Cir. 1990); Senate ofthe Commonwealth ofP.R. v. U.s. Dep't of Justice, 823 F.2d 574, 588 (D.C. Cir. 1987); Fund for Constitutional Gov't, 656 F.2d at 863-64, 873; Bast v. Dep't of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981); see also Favish, 541 U.S. at 166; Blackwell v. FBI, 2011 WL 2600831, at *2 (D.C. Cir. July 1,2011). But in those cases, the subjects ofthe court's concem were individuals who had never been charged, let alone convicted. Moreover, we again note that the question in this case is not whether a convicted defendant has any privacy interests, but rather how much of an interest he has in the public-record facts ofhis conviction.

12
therefore not be disclosed in the absence ofa cognizable public interest. ld. As the docket numbers and case names the plaintiffs seekconstitute "law enforcement ... information" that will (through derivative use) identify private citizens who have been criminally prosecuted, disclosure implicates those citizens' privacy interests.
2. The privacy interests at stake in this case, however, are
considerably weakerthanthose at issue inReporters Committee.
The law enforcement records at issue there were rap sheets that revealed the subjects' "date ofbirth and physical characteristics, as well as a history of arrests, charges, convictions, and incarcerations" in every jurisdiction in the country. 489 U.S. at 752. And they covered the subject's entire life: the FBI normally preserved a rap sheet until its subject turned eighty years old. ld.
Here, the information sought is quite different. As already noted, the list alone contains little that is personal. But even if the docket information is used to find the underlying proceedings, for any particular individual it most likely would reveal only a single prosecution, rather than a comprehensive scorecard of the person's entire criminal history.' It would disclose only information conceruing a conviction or plea; it would not disclose mere charges or arrests. It would disclose only information that has already been the subject of a public proceeding (either a trial or public guilty plea), rather than actions (like arrests) that may not have taken place in public. It would disclose only information that is available in public
records, which post-indictment filings always are and arrests
'Disclosure would reveal more than one prosecution only ifthere were multiple prosecutions of the same individual among the 255 prosecutions listed. The Justice Department has not suggested that is the case.

13
may not be. Cf Reporters Comm., 489 U.S. at 754 n.2 (noting tbat in 47 states, ''nonconviction data cannot be disclosed at all for non-criminal justice purposes, or may be disclosed only in narrowly defined circumstances, for specified purposes").10 Finally, the information at issue here is all less than (and probably quite a bit less tban) ten years old,II unlike the Reporters Committee rap sheets tbat recorded a lifetime of everytbing from major crimes to youthful indiscretions.
The fact that information about these proceedings is readily available to the public reduces further still the incursion on privacy resulting from disclosure. In Reporters Committee, the
"'The Justice Department insists that these distinctions are irrelevant. After all, it notes, ''the infonnation that the Court held had been properly protected" in Reporters Committee "related to a single individual, Charles Medico, who mayor may not have actually been prosecuted," and ''nowhere did the Court suggest that 'rap sheets' of individuals who had only been prosecuted on one occasion could not be withheld." DOJ Br. 24-25. But Reporters Committee considered rap sheets as "a categorical matter" -- "without regard to individual circumstances" -- andbarred disclosure in the absence ofa cognizable public interest because of''the practical obscurity" of their contents. 489 U.S. at 780. As noted in Part II.A.3 below, the factors that rendered rap sheet information practically obscure do not apply to the individual public prosecutions at issue in this case.
liThe Justice Department compiled the list ofdocket infonnation by asking U.S. Attorneys' Offices about applications for location data that were granted after September 12, 2001. Def.'s Statement of Material Facts Not in Dispute at 3 (App. 37); see Oral Arg. Recording 23:48-24:04. Since the docket information at issue here comes only from cases that subsequently led to indictments, and hence that had to have been filed after that date, and then only when the indictments led to pleas or convictions, which had to have come later still, it is likely that the infonnation at issue relates to cases that are substantially less than ten years old.

14
Court recognized that "the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fac!," and that "information may be classified as 'private' if it is ... not freely available to the public." ld. at 763-64. It further noted that, although "one did not necessarily forfeit a privacy interest in matters made part of the public record, ... the privacy interest [in such matters] was diminished." ld. at 764 n.15; see id. ("[Tlhe interests in privacyfade when the information involved already appears on the public record." (quoting Cox Broad. Corp. v. Cohn, 420 U.S. 469, 494-95 (1975)); Bartholdi Cable Co. v. FCC, 114 F.3d 274, 282 (D.C. Cir. 1997) (affirming agency's decision to release documents identifying individuals responsible for regulatory violations because their Exemption 6 privacy interests were '''minor' ... given that these individuals have been identified in public documents filed with the Commission").
3. Of course, information that is technically public may be "practical[ly] obscur[e]." Reporters Comm., 489 U.S. at 762, 780 (internal quotation marks omitted). Reporters Committee held that, in such circumstances, an individual's privacy interest in limiting disclosure or dissemination of information does not disappearjust because it was once publicly released. ld. at 76263, 780. But unlike the rap sheet information in Reporters Committee, the information at issue here is not practically obscure.
In Reporters Committee, the Court emphasized that there is an important "distinction, in terms ofpersonal privacy, between scattered disclosure ofthe bits ofinformation contained in a rap sheet and revelation ofthe rap sheet as a whole." ld. at 764; see United States v. Maynard, 615 F.3d 544,561 (D.C. Cir. 2010). Indeed, the Court noted that "[t]he very fact that federal funds have been spent to prepare . . . these criminal-history files

15
demonstrates that [even1the individual items of information in
the summaries would not otherwise be 'freely available' either to the officials who have access to the underlying files or to the general public." 489 U.S. at 764. What set rap sheets apart from other records implicating personal privacy, then, was ''the compilation ofotherwise hard-to-obtain information," including "information that would otherwise have surely been forgotten long before a person attains age 80, when the FBI's rap sheets are discarded." ld. at 764,771. "Plainly," the Court said, ''there is a vast difference between the public records that might be found after a diligent search ofcourthouse files, county archives, and local police stations throughout the country and a computerized sununary located in a single clearinghouse of information." ld. at 764. This conclusion, the Court declared,
was further "supported by the web of federal [and state1
statutory and regulatory provisions that limit[] the disclosure of rap-sheet information." ld. at 764-65.
In this case, however, disclosure will reveal only the "bits," not the ''whole.'' At; already discussed, the most that disclosure is likely to lead to is the fact of a single conviction, not a comprehensive scorecard of a person's entire criminal history across multiple jurisdictions. Nor is there a web of statutory or regulatory policies obscuring that information, nor much expense nor logistical difficulty in gathering it. To the contrary, computerized government services like PACERmake itpossible to access court filings concerning any federal defendant from the comfort of one's home or office, quite uulike the "diligent search of courthouse files, county archives, and local police stations throughout the country" that a citizen would have had to undertake to replicate the contents of a rap sheet, Reporters Comm., 489 U.S. at 764. In addition, newspapers regularly report on federal prosecutions, and their accounts can easily be found on the internet. Indeed, by routinely issuing press releases that name the individuals that it has indicted, and then naming

16
them again when they plead guilty or are convicted, the Justice Department has itself made the process infinitely easier.!2 If someone wants to know whether his neighbor or potential employee has been indicted for, convicted of, or pled guilty to a federal offense, he may well find out by simply entering a Google search for that person's name.13 Nor is there the kind of temporal obscurity the Court found in Reporters Committee, where many of the incidents on the rap sheets, even if once public, ''would otherwise have surely been forgotten." Reporters Comm., 489 U.S. at 771. As we have noted, the prosecutions at issue here are likely to have taken place considerably less than ten years ago.
We also disagree with the Department's suggestion that the disclosures sought here will draw renewed attention to individuals in a way that the initial disclosures did not. It is little more than speculation to suggest that friends or associates who did not learn of a conviction at the time it occurred
12The Justice Department insists that "the fact that the government voluntarily chooses to inform the public of certain prosecutorial activities that it deems newsworthy does not meao that it is insensitive to the FOIA privacy interests of the individuals it prosecutes." DOJ Reply Br. 4. But no one is questioning the government's sensitivity. We point out the Department's press release practice not to pass judgment on it, but to show that it has further diminished whatever practical obscurity there might have been with respect to the names of indicted aod convicted individuals.
13Google searches for variations ofthe phrase ''the United States Attorney. .. announced the indictment of," restricted to the last ten years, yield thousaods of results. The same is true of searches substituting "conviction" or "guilty plea" for ''indictment.'' A review of the first twenty pages of results for each such search shows that they consist primarily of news reports or press releases that identify the names aod charged offenses of indicted or convicted individuals.

17
(whether through press accounts, press releases, or other means) will hear of it for the first time merely because the Justice Department releases a list of docket numbers, courts, and case names. See Norton, 309 F.3d at 34-35 (discounting the import of an asserted interference with personal privacy because the agency failed to show that such interference "[was] likely to occur"). Such a list is surely less likely to draw attention to a name than was the initial press coverage of an indictment and conviction. Nor are we persuaded that, when a person has already been publicly charged and convicted of a federal offense, disclosure of that person's name on a list of persons whose cell phones were tracked will materially increase the number ofhis or her possible future friends and associates who will be exposed to the information."
The Justice Department maintains that the information the plaintiffs seek is practically obscure because they cannot identify the prosecutions in which they are interested without the government's assistance. But all that is practically obscure is information regarding the government's policy -- that is, which prosecutions involve the Department's use of warrantless cell phone tracking, and what the underlying records show aboutthat policy. What is not obscure is information that raises issues of personal privacy -- that is, the fact that particular individuals have been convicted of or pled guilty to crimes. Reporters Committee was concerned solely about the latter; any interest in keeping the government's own policies obscure runs directly counter to FOIA's central purpose.
14This is not to discount the possibility that a FOIA request might be worded in such a way as to generate a list of convictions that, because ofparticularly stigmatic associations or otherwise, could draw special attention to the names on the list and so create heightened privacy concerns. But the government has made no such argument with respect to the list of docket infonnation at issue in this case.

18
4. Finally, the Department calls our attention to a derivative use of the requested material that it regards as particularly harmful to privacy interests: the plaintiffs' suggestion that they may contact convicted "defendants and/or their counsel to
determine whether [the1defendants ever learned that they were
the targets ofwarrantless cell phone tracking." ACLUReply Br. 24. There is no doubt that the courts have held that the risk of unwanted contact following a FOlA disclosure is a privacy interest that must be weighed in the privacy interest/public interest balance. SeeDep'tofDefensev. FLRA, 510 U.S. at501; Ray, 502 U.S. at 176-77; FLRA v. U.S. Dep't ofthe Treasury, 884 F.2d 1446, 1452 (D.C. Cir. 1989); NARFE v. Homer, 879 F.2d 873, 878 (D.C. Cir. 1989). But in all of those cases, the intrusive contact likely to follow from disclosure was enormously greater than the relatively minimal potential contact at issue in this case." Moreover, in each of those cases, the
·'See Dep't of Defense v. FLRA, 510 U.S. at 501 (citing ''the influx ofunion-related mail, and ... telephone calls or visits," as well as contact by "commercial advertisers and solicitors," that would result from disclosure of agency employees' names and home addresses); FLRA v. Dep't ofthe Treasury, 884 F.2d at 1452 (citing the "unwanted barrage of mailings and personal solicitations" that would follow disclosure of federal employees' names and home addresses (internal quotationmarks omitted)); Homer, 879 F.2d at 878 (noting that release offederal annuitants' names and addresses would subject them to a ''barrage of solicitations ... in the mail, over the telephone, and at the front door").
Department of State v. Ray, 502 U.S. at 175-77, offers a particularly inatructive comparison. In that case, the requesters sought the government's unredacted sunnnaries ofinterviews ofonsuccessful Haitian asylum seekers. Those summaries contained not only the interviewees' names and addresses, but also "highly personal information regarding marital and employment statos, children,living conditions and attempts to enter the Uuited States." Id. at 175.

19
courts found that the privacy impact outweighed the public interest in disclosure because the public interest was either negligible or non-existent. 16 As we discuss in Subpart B below, the public interest in disclosure is substantially higher in this case and more than sufficient to tip the scales against the marginal privacy intrusion that could occur.
5. In sum, although the disclosure at issue here is sufficient to warrant consideration under Exemption 7(C) because it would compromise more than a de minimis privacy interest, it would
Moreover, because the interviewees had "left their homeland in violation of Haitian law[,] ... the ptivacy interest in protecting these individuals from any retaliatory action that ntight result from a renewed interest in their aborted attempts to entigrate" had to be "given great weight." Id. at 176-77. On these bases, the Court concluded that "disclosure of the interviewees' names would be a significant invasion oftheir ptivacy because it would subject them to possible embarrassment and retaliatory action," and that the requesters' ''intent to interview the retomees magnifie[d] the importance ofmaintaining the confidentiality oftheir identities." Id. at 177 & n.12.
16Dep't ofDefense v. FLRA, 510 U.S. at 502 (rmding that there was a "negligible FOIA-related public interest in disclosure" of agency employees' home addresses); Ray, 502 U.S. at 179 (finding that disclosure ofthe requested material would not provide, or lead to, "any relevant information that is not set forth in the documents that have already been produced," and that "[m]ere speculation about hypothetical public benefits cannot outweigh a demonstrably significant invasion ofptivacy"); FLRA v. Dep'l ofIhe Treasury, 884 F.2dat 1452 (noting that "[Homer] found the interest in disclosure [of retirees' names and addresses] to be absolute zero," and that the interest in disclosing the same information regarding current workers was ouly "modestly" higher).

20
not compromise much more." Neither the specific list actually at issue, nor information that might be derived from the docket information on that list, will disclose personal information that is not already publicly available andreadily accessible to anyone who might be interested in it. Nor will disclosure under FOIA make that information any more accessible than it already is through publicly available computerized databases. At most, it will simply provide one more place in which a computerized search will find the same person's name and conviction -- and even that is only on the assumption that someone takes the docket information from the list, looks up the underlying cases, and then puts that underlying information on the internet.
B
On the other side ofthe balance, we find a significant public interest in disclosure, something altogether absent in Reporters Committee. Because the disclosure ofprivate citizens' crimina1 histories "reveals little or nothing about [the] agency's own conduct," and because that was all that was at issue in Reporters Committee, the "public interest in disclosure [was] at its nadir" in that case. Reporters Comm., 489 U.S. at 773, 780. By contrast, as we discuss below, the disclosure ofprosecutions in which the defendants were subject to warrantless cell phone tracking, and then were convicted or pled guilty, wonld shed light on government conduct. Accordingly, it falls within FOIA's scope because it advances "the citizens' right to be
I7Cf Multi Ag Media, LLC v. Dep't ofAgric., 515 F.3d 1224, 1229 (D.C. Cir. 2008) ("The balancing analysis for FOIA Exemption 6 requires that we first determine whether disclosure of the files 'would compromise a substantial, as opposed to de minimis, privacy interest,' because' [i]fno significant privacy interest is implicated, ... FOIA demands disclosure.'" (quoting Homer, 879 F.2d at 874».

21
infooned about what their government is up to." Reporters Comm., 489 U.S. at 773 (internal quotation marks omitted).
1. The use of and justification for warrantless cell phone tracking is a topic of considerable public interest: it has received widespread media attentionl ' and has been a focus of inquiry in several congressional hearings considering, among other things, whether the Electronic Communications Privacy Act of1986, Pub. L. No. 99-508,100 Stat. 1848 (1986), should be revised either to limit or to facilitate the practice.I' Courts
I'See, e.g., Adam Cohen, What Your CellPhone CouldBe Telling
the Government, TiME, Sept. 15, 20lO; Editorial, Should Police Use Your Cellphone to Track You?, DENVER POST, June 27, 2010, atD3; PBS Newshour: With Location-Tracking Technology, Cell Users Paying Price of Privacy (television hroadcast June 22, 2010), transcript available at bttp:llwww.pbs.orgInewsbour/ bb/science/ an-juneI01 cell_06-22.html; Steve Chapman, BigBrotherin Your Cell, Cm. TRIB., Apr. 1,2010, at 17; Miguel Helft, Technology Coalition Seeks Stronger Privacy Laws, N.Y. TIMES, Mar. 31, 2010, at BI; Michaellsikoff, The Snitch in Your Pocket, NEWSWEEK, Mar. I, 20I0, at 40; Ellen Nakssbima, Judges Urge Standard Cellphone-Tracking Policy, WASH. POST, Nov. 14, 2008; Ellen Naksshlma, Cellphone TrackingPowersonRequest, WASH. POST, Nov. 23,2007, atAI; Orin Kerr, Applying the Mosaic Theory of the Fourth Amendment to Disclosure of Stored Records, THE VOWKH CONSPIRACY (Apr. 5, 2011,4:54 PM), http://volokh.coml2011/04/051.
19See. e.g., The Electronic Communications Privacy Act: Promoting Security and Protecting Privacy in the Digital Age: Hearing Before the S. Judiciary Comm., Illth Congo (2010); ECPA Reform and the Revolution in Location Based Technologies and
Services: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties ofthe H. Comm. on the Judiciary, Illth Congo (20 I0); The Collection and Use ofLocation ['!formation for Commercial Purposes: Hearing Bifore the Subcomm. on Commerce,
Trade, and Consumer Protection and the Subcomm. on Commc 'ns,

22
are divided as to whether the government must show probable cause before it can obtain cell phone location data,20 as well as on related questions regarding warrantless GPS surveillance.'!
Tech., and the Internet of the H Comm. on Energy & Commerce, lllth Congo (2010).
2OCompare In re Application ofu.S. for an Order . .. Authorizing Disclosure ofLocation-BasedServs., 727 F. Supp. 2d 571 (W.D. Tex. 2010), In re Applications of u.s. for Orders Authorizing Disclosure ofCell Site Info., Nos. 05-403 et al., 2005 WL 3658531 (D.D.C. Oct. 26, 2005), In re Application of u.s. for an Order. . . Authorizing Release ofSubscriberIrifo. and/or Cell Site Irifo., 396 F. Supp. 2d 294 (E.D.N.Y. 2005), and In re Application for Pen Register & Trap/Trace Device with Cell Site Location Authority, 396 F. Supp. 2d 747 (S.D. Tex. 2005), with In re Application of u.s. for Order Directing Provider ofElec. Commc 'n Servo to Disclose Records to Gov't, 620 F.3d 304,318 (3d Cir. 2010), United States V. Forest, 355 F.3d942, 950-52 (6th Cir. 2004), vacated on other grounds, 543 U.S. 1100 (2005), In re Application of u.s. for an Order Authorizing Use of Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d 202 (E.D.N.Y. 2008), In re Application of u.s. for an Order for Prospective Cell Site Location Irifo. on a Certain Cellular Telephone, 460 F. Supp. 2d 448 (S.D.N.Y. 2006),In re Application ofu.s.foran Order . .. Authorizing Release ofSubscriber Info. and/or Cell Site Info., 411 F. Supp. 2d 678 (W.D. La. 2006), and In reApplication of u.s. for an Order for Disclosure of Telecommc 'ns Records & Authorizing Use ofPen Register & Trap & Trace, 405 F. Supp. 2d435 (S.D.N.Y.2005).
2!CompareMaynard, 615 F.3d at 563-67 (holding that a warrant was required to use a GPS device to monitor the defendant's vehicle for a month), with United States V. Marquez, 605 F.3d 604, 609-10 (8th Cir. 2010) (holding that a warrant was not required to install a GPS tracking device on the defendant's vehicle for a reasonable period of time), United States V. Pineda-Moreno, 591 F.3d 1212, 1216-17 (9th Cir. 2010) (holding that use ofa GPS device to track the defendant's vehicle over a four-month period did not violate the

23
The Supreme Court has recently granted certiorari to address the GPS issue. See United States v. Jones, 2011 WL 1456728 (June 27,2011), granting cert. to Maynard, 615 F.3d 544.
The disclosure sought by the plaintiffs would infonn this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool. Itwould, for example, provide information about the kinds of crimes the government uses cell phone tracking data to investigate. As the plaintiffs note, with respect to wiretapping Congress has balanced privacy interests with law enforcement needs by permitting the government to use that technique for only the more serious offenses, see 18 U.S.C. § 2516, and the plaintiffs (and others) may decide to argue for similar legislation to govern cell phone tracking. Disclosure would also provide information regarding how often prosecutions against people who have been tracked are successful, thus shedding some light on the efficacy of the technique and whether pursuing it is worthwhile in light of the privacy implications. Information from suppression hearings in these cases could provide further insight regarding the efficacy of the technique by revealing whether courts suppress its fruits, and would disclose the standard or standards the government uses to justify warrantless tracking. Infonnation from suppression hearings would also provide facts regarding the duration oftracking and the quality of tracking data, facts that would infonn the public discussion concerning the intrusiveness of this investigative tool.
There are obviously many caveats about the value of the infonnation that might be derived from the requested disclosure.
Fourth Amendment), and United States v. Garcia, 474 F.3d 994, 99698 (7th Cir. 2007) (holding that a warrant was not required to conduct continuous electronic tracking ofthe defendant's vehicle using a GPS device).

24
For example, defendants may have been charged with lesser offenses than the ones upon which the tracking was originally predicated, thus making it appear that the technique was used for less serious crimes than was actually the case. And for a host of other reasons, the sample of prosecutions at issue here may be unrepresentative of the Justice Department's overall practice. But the fact that the data will not be perfect does not mean that there is no public interest in their disclosure.
Nor are we persuaded by the government's contention that the interest in informing the public discussion is deficient because the plaintiffs have insufficient evidence that disclosure will show government wrongdoing. Whether the government's tracking policy is legal or illegal, proper or improper, is irrelevant to this case. It is true that, where "the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance oftheir duties, the requester must establish more than a bare suspicion in order to obtain disclosure." Favish, 541 U.S. at 174. But the plaintiffs are not (or at least not only) seeking to show that the government's tracking policy is legally improper,22 but rather to show what that policy is and how effective or intrusive it is. "[M]atters of substantive law enforcement policy . . . are properly the subject of public concern," whether or not the policy in question is lawful. Reporters Comm., 489 U.S. at 766 n.l8.
Finally, the Justice Department contends that the incremental contribution of disclosure to the public interest is negligible "given the extensive public attention that this issue is already receiving." DOJ Br. 32. This is nothing more than a Catch-22 argument: if public attention were not already
"That distinguishes this case from cases like our recent decision in Blackwell v. FBI, 2011 WL 2600831 (D.C. Cir. July I, 2011).

25
focused, the government would argue that shows there is no public interest in disclosure; because there is public attention, it argues that no more is needed.23 But there is no doubt that much ofthe information the plaintiffs seek to develop from the FOIA disclosure here -- the connection between tracking applications and actual prosecutions -- is not currently in the public domain. For the reasons stated above, there is also no doubt that the information interested parties can derive from that connection will yield further information about the government's policy that is not now readily available. The fact that the public already has some information does not mean that more will not advance the public interest.
2. The Department protests that, because any benefit to the public interest accrues from derivative use of the docket information and not from that information itself, that benefit cannot be considered as part ofthe public interest analysis. And it is true that the case names and docket numbers standing alone generate no public benefit; only through derivative uses can information valuable to the public be obtained. But this court takes derivative uses into account in evaluating the impact of disclosure on the public interest,24 just as both this court and the
23See JOSEPH HELLER, CATCH-22, at 46 (paperback ed. 2004) ("There was only one catch and that was Catch-22, which specified that a concern for one's own safety in the face of dangers that were real and immediate was the process ofa rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. . .. Yossarian was moved very deeply by the absolute simplicity ofthis clause of Catch-22 and let out a respectful whistle. 'That's some catch, that Catch-22,' he observed.").
24For example, in Multi Ag Media LLC v. Department of Agriculture, 515 F.3d 1224 (D.C. Cir. 2008), the court rejected the agency's contention that disclosure of information from its database

26
Supreme Court do in evaluating the impact of disclosure on personal privacy."
The government claims that ''the Supreme Court has questioned but not decided whether ... a 'derivative use' theory is valid." DOJ Br. 38 n.4 (citing Ray, 502 U.S. 164). But this is only halftrue. In Ray, it was the government, not the Court, that did the questioning: "The Government," the Court reported, "argues that we should adopt a categorical rule entirely excluding the interest in such use from the process of balancing." 502 U.S. at 178. For itself, however, the Court said nothing more than this: ''There is no need to adopt such a rigid
of fann data would "say[] nothing about how the agency administers its programs," because "[wlith the information from the database, the public can more easily determine whether USDA is catching cheaters and lawfully administering its subsidy and benefit programs." Id. at 1232. In Getman v. NLRB, 450 F.2d 670 (D.C. Cir. 1971), we held that disclosing certain names and addresses ofemployees would serve the public interest by facilitating interviews for an academic study. We likewise considered derivative uses inPaintingandDrywali Work Preservation Fund, Inc. v. Department of Housing and Urban Development, 936 F.2d 1300 (D.C. Cir. 1991), and FLRA v. Department ofthe Treasury, 884 F.2d 1446, although we ultimately concluded in both that the public interest in disclosure was too minor to outweigh the privacy interests at issue. See Painting & Drywall Work Pres. Fund, 936 F.2d at 1303 (noting that "a relevant public interest could existwhere 'the names ofcurrentworkers mightprovide leads for an investigative reporter seeking to ferret out what government is up to,'" but fmding that there was an alternative way to obtain the information and that FOIA disclosure did not offer a significant enough advantage to "outweigh the . . . workers' significant privacy interest" (quoting FLRA v. Dep 't ofthe Treasury, 884 F.2d at 1452 (internal quotation marks omitted»).
"See cases cited supra note 6. As we discuss in the text that follows, the two kinds of derivative use go hand in glove.

27

rule to decide this case .... Accordingly, we need not address

the questionwhether a 'derivative use' theory wouldeverjustify

release ofinformation about private individuals." Id. at 178-79.

It

thus

left

this

court's

own

case

law

on

the

issue

intact.

2 •

Moreover, the derivative use issue gives the Justice Department a Catch-22 headache of its own. The Department correctly notes that Justice Scalia, in his opinion concurring in
the judgment in Ray, "opined that such 'derivative use' 'to
establish a public interest' is improper under FOIA." DOJ Br.
38 nA (quoting Ray, 502 U.S. at 180-81 (Scalia, J., concurring

"The Justice Department also urges that, in evaluating the public interest, we may not consider the plaintiffs' contemplated derivative uses because it is "well settled that the 'identity of the requesting party' and the 'purposes for which the request for information is made' have 'no bearing' on whether such information must be disclosed under FOIA." DO] Br. 35 (quoting Dep't ofDefense v. FLRA, 510U.S. at 496 (quoting Reporlers Comm., 489 U.S. at77I». But the quoted cases do not hold that derivative use may not be considered where -- as here -- such use (by the requester or anyone else) will further FOIA's purpose ofshedding light on the operations and activities of government. Rather, they hold that the rights of all requesters are equal and that a requester's parochial interests -- if unrelated to FOIA's purpose -- may not be considered. See Reporters Comm., 489 U.S. at 771 ("[T]he rights ofthe two press respondents in this case are no different from those that might be asserted by any other third party, such as a neighbor or prospective employer[, because,] [a]s we have repeatedly stated, Congress clearly intended the FOIA to give any member ofthe public as much right to disclosure as one with a special interest" in a particular document. (internal quotation marks omitted»; Dep 't ofDefense v. FLRA, 51OU.S. at 497 (holding that, although the requesting unions' interest in obtaining the home addresses of agency employees "might allow the unions to communicate more effectively with employees, . . . it would not appreciably further the citizens' right to be informed about what their government is up to" (internal quotation marks omitted».

28
in part and concurring in the judgment)). But the Department neglects to mention the remainder of Justice Scalia's analysis: "[D]erivative use on the public-benefits side, and derivative use on the personal-privacy side must surely go together." 502 U.S. at 181. "[T]here is no plausible reason," he said, "to allow it for the one and bar itfor the other." ld.
Accordingly, even underthe authority the government cites, ifwe may not consider derivative use in determining the impact of disclosure on the public interest side, we also may not consider it in determining disclosure's impact on privacy interests. And without derivative use, the Departmentwould fail to meet the threshold for invoking Exemption 7(C) at all. Ifwe do not consider the possibility that the plaintiffs or others will follow the path from the list of docket information to the underlying court records, the ouly question left is whether there is any privacy interest in a list of docket numbers, case names, and courts. Ofthese, only uncommon names (e.g., UnitedStates v. Merrick Garland, rather than United States v. John Smith) would have any chance at all of identifying particular individuals, and the district court could eliminate even that possibility by redacting the names. That would stillieave the plaintiffs with all they need (the docket number and court) to pursue their planned derivative use, but it would extinguish any privacy interest. And ifthere is no privacy interest, Exemption 7(C) simply does not apply. Perhaps for this reason, the Department acknowledged at oral argument that, ifwe consider derivative use for evaluating privacy concerns, we must do the same for the public interest. See Oral Arg. Recording 27: 16-:37.
In sum, because disclosure ofthe information considered in this Part would "shed[] light on [the government's] performance of its statutory duties," it "falls squarely within [FOIA's] statutory purpose." Reporters Comm., 489 U.S. at 773. And in light of the strength of the public interest in disclosure and the

29
relative weakness ofthe privacy interests at stake, we conclude that production ofthe requested information will not constitute an "unwarranted" invasion ofpersonal privacy under Exemption 7(C).
ill
In this Part, we consider the plaintiffs' challenge to the district court's refusal to direct the government to produce: (A) the list of docket information for criminal cases in which the defendants were acquitted, or for cases that were dismissed or sealed (and remain under seal); and (B) the case name in the "Draft Application" (Document 22), and the docket numbers in both that document and the "Template Application" (Document 29). As to both, we conclude that a remand for further development of the record is in order.
A
In balancing the public and private interests implicated by disclosure of the Department's list of docket information, the district court found dispositive the distinction between indictments resulting in convictions or guilty pleas, and those resulting in acquittals or dismissals, or cases that remain sealed. As we noted in Part II, this distinction makes some intuitive sense, as both parties agree that the disclosure of information regarding acquittals, dismissal ofcharges, or sealed cases raises greater privacy concerns than the disclosure of information regarding public convictions or public pleas. See ACLU Reply Br. 11; DOJ Br. 19; Oral Arg. Recording 38:10 (agreement by plaintiffs' counsel that there is a distinction between the privacy interest implicatedby disclosure ofconvictions andpublic guilty pleas and that implicated by disclosure of acquittals and dismissals). But whether that is enough of a distinction to

30
justify withholding under Exemption 7(C) is a harder question. It is a question we need not answer today.
The plaintiffs acknowledge that:
This case is in an odd posture because neither party argued below that the district court should split the difference by withholding some docket information and disclosing other docket information. The district court sua sponte devised its distinction between cases ending in conviction or guilty pleas and cases resulting in acquittal or dismissal or that remain sealed.
ACLU Reply Br. 3 n.3. As a consequence, the record does not reveal whether there are any cases that fall into the latter category. At oral argument, neither party could tell us whether there are any, and the Justice Department acknowledged that it is possible there are none. See Oral Arg. Recording 22: 1O.
Rather than attempt to resolve a question that may turn out to be purely academic, we conclude that the better course is to vacate this portion ofthe district court's decision andremand the case for that court to determine whether any of the docket numbers refer to cases in which the defendants were acquitted, or to cases that were dismissed or sealed (and remain sealed). The court may develop this information by requiring affidavits of the government or additional entries in the government's Vaughn index. See Oral Arg. Recording 22:57 (acknowledgment by government counsel that the district court may resolve the question by insisting on a more detailed Vaughn index that would indicate the status of the cases). Needless to say, if there are no such cases, that will resolve this particular request.

31
B
The plaintiffs also seek disclosure ofthe docket number and case name (withpersonallyidentifiable information redacted) of one application to engage in warrantless cell phone tracking that the government withheld in full (Document 22), and the docket number ofanother application that the government produced in partially redacted form (Document 29). The plaintiffs intend to use this infonnation to locate the applications andthe underlying case files, and to move to unseal them if they are currently sealed. ACLU Br. 32. The district court was concerned that, among other things, this disclosure "could reveal surveillance targets yet to be prosecuted, ... either because the cases are not actually sealed, or because the plaintiffs' promised motion to unseal could be successful." ACLU, 698 F. Supp. 2d at 167.
Once again, the record is inadequate to resolve this issue. The Vaughn index labels the documents as, respectively, a "Draft Application" and a "Template Application," which suggests they are internal drafts containing infonnation that may be covered by the deliberative-process or work-product privileges cognizable under FOIA Exemption 5, 5 U.S.C. § 552(b)(5). See Rockwell Int'[ Corp. v. U.S. Dep't ofJustice, 235 F.3d 598, 601 (D.C. Cir. 2001). Indeed, although the district court did not address Exemption 5, the Justice Department asserted that exemption in the district court and mentions the exemption in its appellate brief. See DOJ Br. 43 n.6. The plaintiffs counter that the fact that each document
bears a docket number "suggest[s1that it was likely filed with a
court," and hence does not constitute work product. ACLU Br. 30. When asked at oral argument, however, Department counsel stated that the status of both documents is unclear, and that he did not know whether either application was ever filed in court. See Oral Arg. Recording 34:20-35:36.

32
The plaintiffs' appellate briefs do not argue for disclosure ofdocuments that are merely drafts or templates. They ask only for disclosure of docket information in "cases in which prosecutors filed an application for warrantless cell phone location tracking." ACLU Br. 12 (emphasis added). Accordingly, ifneither Document 22 nor Document 29 fits that description, this issue, too, will resolve itself.
But even if the applications were filed, we do not know whether they relate to pre-indictment investigations or to cases that have already been indicted. Nor do we know whether, even ifthe latter, there are still ongoing investigations regarding other targets ofthe applications. Indeed, the district court worried that disclosure could "lead to release of personally identifiable information about surveillance targets who have yet to be prosecuted." ACLU, 698 F. Supp. 2d at 166. These distinctions may be significant and may, depending on the facts, warrant withholding under (inter alia) Exemption 7(A) -- as law enforcement records, the disclosure ofwhich "could reasonably be expected to interfere with enforcement proceedings," 5 U.S.C. § 552(b)(7)(A). The government asserted this exemption in the district court as well.
Nor do we know whether, if filed, the applications are currently under seal. See ACLU Reply Br. 35 ("Plaintiffs have no way of detennining whether the docket numbers correspond to sealed cases or whether the targets were indicted."). The district court thought there was a possibility that "the cases are not actually sealed." ACLU, 696 F. Supp. 2d at 167.27 This raises still further problems, including the possibility that following the docket information could lead the plaintiffs or
27As we have noted, the district court was also concerned that, even if sealed, ''the ACLU's promised motion to uoseal could be successful." ACLU, 698 F. Supp. 2d at 167.

33
others to applications that disclose not only the identities of convicted defendants, but also of acquitted or uncharged third parties. As we noted above, it is one thing to disclose the identities of targets who were eventually convicted in public proceedings; but the privacy calculus becomes increasingly more significant if disclosure extends to those who were acquitted, or tu those whose activities were never the focus of public attention, such as uncharged investigative subjects, wituesses, or bystanders. Cf Favish, 541 U.S. at 166 (noting that "[t]here is special reason" to protect data regarding "persons interviewed as witnesses or initial suspects" as "to which the public does not have a general right of access in the ordinary course"); Schrecker v. U.S. Dep't ofJustice, 349 F.3d 657, 666 (D.C. Cir. 2003) (holding that "persons involved in law enforcement investigations -- witnesses, informants, and the investigating agents -- have a substantial interest in seeing that their participation remains secret" (internal quotation marks omitted».
In their reply brief, the plaintiffs suggest that "[i]fanything hinges on the characterization of the record, this Court shonld remand to the district court for consideration in the first instance." ACLU Reply Br. 35 n.12. Because we think quite a lot may hinge on the record, we accept this suggestion. We will vacate and remand this portion ofthe district court's decision as well, and direct the court to determine the status of the two withheld documents with respect to the distinctions described above. The court may develop this information by requiring affidavits ofthe government or additional entries in the Vaughn index, or by in camera examination of the underlying documents. See Mays v. DEA, 234 F.3d 1324, 1328 (D.C. Cir. 2000) (remanding where the Vaughn index was insufficient for the court to tell "whether and to what extent release of the 'investigative details' [to which the index] referred ... would reveal the identity or otherwise implicate the privacy interests of

34
any third party," and noting that on remand ''the district court may review the disputed documents in camera in order to make this determination").
IV
One final note. At oral argument, Justice Department counsel suggested that, rather than producing the requested documents, the Department might be able to provide the plaintiffs with more of the data they are really interested in without disclosing information that could intrude upon personal privacy. lIDs might include, counsel suggested, information such as the nature of the charges in all 255 cases on the government's list, whether suppression motions were filed in those cases, and the outcome of both the motions and the prosecutions. See Oral Arg. Recording 22: 15-:33; 29:46-31 :28.
lIDs is an interesting offer, in part because it could require the Department to provide certain information -- by using the docket information and PACER to find the underlying documents, and then extracting information from those documents and creating a summary document -- that the plaintiffs might not be able to obtain through a FOIA request. See Forsham v. Harris, 445 U.S. 169, 186 (1980) (noting that FOIA does not "impose[] [any] duty on the agency to create records"). As such, it might provide the basis for a settlement of this case. But it is not a suggestion that we can consider on this appeal. Among other things, it was raised neither in the Department's appellate briefs nor -- to the best ofour knowledge -- in the district court proceedings.
v
We affirm that portion of the district court's decision directing disclosure of docket information from criminal cases

35
in which the government prosecuted individuals after judges granted applications for cell phone location data without determining probable cause, and in which those individuals were ultimately convicted or entered public guilty pleas. We vacate and remand the remainder ofthe district court's decision for that court to develop the factual information discussed in Part ill above and, thereafter, to reconsider the appropriate disposition ofthe remaining aspects of the case.
So ordered.

 
 Case: 1:08-cv-01157-ABJ As of: 11/24/2018 07:25 PM EST 1 of 10
CLOSED,TYPE−I
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:08−cv−01157−ABJ

AMERICAN CIVIL LIBERTIES UNION et al v. DEPARTMENT OF JUSTICE Assigned to: Judge Amy Berman Jackson Case in other court: USCA, 10−05159
USCA, 10−05167
13−05064 Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 07/01/2008 Date Terminated: 02/15/2013 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

AMERICAN CIVIL LIBERTIES UNION

represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street, NW 2nd Floor Washington, DC 20005 (202) 457−0800 x1004 Fax: (202) 457−0805 Email: artspitzer@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L. Sobel ELECTRONIC FRONTIER FOUNDATION 5335 Wisconsin Avenue, NW Suite 640 Washington, DC 20015−2052 (202) 246−6180 Fax: (415) 436−9993 Email: sobel@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine Crump AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7806 Fax: (212) 549−2651 Email: ccrump@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
AMERICAN CIVIL LIBERTIES UNION FOUNDATION

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L. Sobel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine Crump

Case: 1:08-cv-01157-ABJ As of: 11/24/2018 07:25 PM EST 2 of 10
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant DEPARTMENT OF JUSTICE

represented by David Michael Glass U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Ave, NW Room 7200 Washington, DC 20530 (202) 514−4469 Fax: (202) 616−8470 Email: david.glass@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Russell Tyler U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Washington, DC 20001 (202) 514−2356 Fax: (202) 616−8470 Email: john.tyler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Gordon Cooper QUINN EMANUEL URQUHART & SULLIVAN, LLP 1300 I Street, NW Suite 900 Washington, DC 20005 (202) 538−8146 Fax: (202) 616−8470 Email: jonathancooper@quinnemanuel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vikas K. Desai U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW 6th Floor Washington, DC 20530 (202) 514−3492 Email: vikas.desai@usdoj.gov TERMINATED: 11/29/2011

Date Filed 07/01/2008
07/01/2008 07/03/2008

# Docket Text
1 COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616013446) filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Civil Cover Sheet)(tg, ) (Entered: 07/03/2008)
Summons (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (tg, ) (Entered: 07/03/2008)
2 NOTICE of Appearance by David L. Sobel on behalf of all plaintiffs (Sobel, David) (Entered: 07/03/2008)

Case: 1:08-cv-01157-ABJ As of: 11/24/2018 07:25 PM EST 3 of 10

07/07/2008
07/09/2008 07/11/2008 07/11/2008 07/11/2008 08/07/2008 08/07/2008 08/21/2008 09/10/2008 09/11/2008 09/16/2008 09/17/2008 09/19/2008 09/19/2008 10/03/2008 11/03/2008

3 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Catherine Crump, :Firm− American Civil Liberties Union, :Address− 125 Broad Street, New York, NY 10004. Phone No. − 212−519−7806. Fax No. − 212−549−2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Catherine Crump)(Spitzer, Arthur) (Entered: 07/07/2008)
4 ORDER granting only upon condition plaintiffs' motion for pro hac vice appearance of Catherine Crump 3 . Signed by Judge James Robertson on July 9, 2008. (MT) (Entered: 07/09/2008)
5 SUMMONS Returned Executed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. DEPARTMENT OF JUSTICE served on 7/8/2008, answer due 8/7/2008. (Spitzer, Arthur) (Entered: 07/11/2008)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 07/07/2008. (Spitzer, Arthur) (Entered: 07/11/2008)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. (Spitzer, Arthur) (Entered: 07/11/2008)
8 NOTICE of Appearance by David Michael Glass on behalf of DEPARTMENT OF JUSTICE (Glass, David) (Entered: 08/07/2008)
9 ANSWER to 1 Complaint by DEPARTMENT OF JUSTICE. Related document: 1 Complaint filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION.(Glass, David) (Entered: 08/07/2008)
10 ORDER that defendant may have 30 days from the date of this order within which to file a dispositive motion, or in the alternative, to file a report setting forth a document production schedule. Signed by Judge James Robertson on August 21, 2008. (MT) (Entered: 08/21/2008)
11 NOTICE of Certification regarding pro hac vice admission of Catherine Crump by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION re 4 Order on Motion for Leave to Appear Pro Hac Vice (Spitzer, Arthur) (Entered: 09/10/2008)
12 MOTION for Leave to File Amended Complaint by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Exhibit Amended Complaint, # 2 Text of Proposed Order Proposed Order)(Crump, Catherine) (Entered: 09/11/2008)
13 RESPONSE to 12 MOTION for Leave to File Amended Complaint (Notice of Non−Opposition) filed by DEPARTMENT OF JUSTICE. (Glass, David) Modified to correct entry on 9/17/2008 (tg, ). (Entered: 09/16/2008)
14 Unopposed MOTION for Extension of Time to File Scheduling Report by DEPARTMENT OF JUSTICE (Glass, David) (Entered: 09/17/2008)
MINUTE ORDER granting plaintiffs' motion for leave to file an amended complaint 12 and granting defendant's unopposed motion for extension of time 14 for 30 days after filing response to the amended complaint to file a scheduling report. Signed by Judge James Robertson on September 19, 2008. (MT) (Entered: 09/19/2008)
15 AMENDED COMPLAINT against DEPARTMENT OF JUSTICE filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION.(tg, ) (Entered: 09/22/2008)
16 ANSWER to 15 Amended Complaint by DEPARTMENT OF JUSTICE. Related document: 15 Amended Complaint filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION.(Glass, David) (Entered: 10/03/2008)
17 STATUS REPORT (Defendant's Scheduling Report) by DEPARTMENT OF JUSTICE. (Glass, David) (Entered: 11/03/2008)

Case: 1:08-cv-01157-ABJ As of: 11/24/2018 07:25 PM EST 4 of 10

11/20/2008 01/15/2009 01/15/2009 01/16/2009 01/16/2009 02/27/2009 03/05/2009 03/09/2009 03/20/2009 03/26/2009 05/26/2009 05/29/2009 06/03/2009 06/04/2009 07/15/2009 07/15/2009

18 ORDER that the defendant's scheduling report 17 and the deadlines it proposes are approved. Signed by Judge James Robertson on November 20, 2008. (MT) (Entered: 11/20/2008)
19 NOTICE OF SUBSTITUTION OF COUNSEL by David Michael Glass on behalf of DEPARTMENT OF JUSTICE Substituting for attorney Elizabeth J. Shapiro (Glass, David) (Entered: 01/15/2009)
20 STATUS REPORT by DEPARTMENT OF JUSTICE. (Glass, David) (Entered: 01/15/2009)
NOTICE OF ERROR re 19 Substitution of Counsel; emailed to david.glass@usdoj.gov, cc'd 6 associated attorneys −− The PDF file you docketed contained errors: 1. Attorney Tyler is directed to file his notice of apperance using his own login and password. (tg, ) (Entered: 01/16/2009)
21 NOTICE OF SUBSTITUTION OF COUNSEL by John Russell Tyler on behalf of DEPARTMENT OF JUSTICE Substituting for attorney Elizabeth J. Shapiro (Tyler, John) (Entered: 01/16/2009)
22 ORDER that unless an appropriate motion is filed by plaintiff by 3/6/09, this case will be held as moot and dismissed. Signed by Judge James Robertson on February 27, 2009. (MT) (Entered: 02/27/2009)
23 Consent MOTION for Extension of Time to File Response to Court Order of February 27 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 03/05/2009)
MINUTE ORDER granting plaintiffs' consented motion for extension of time 23 to March 20, 2009. Signed by Judge James Robertson on March 9, 2009. (MT) (Entered: 03/09/2009)
24 Consent MOTION Set Briefing Schedule by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Crump, Catherine) (Entered: 03/20/2009)
MINUTE ORDER approving and so ordering plaintiffs' consented briefing schedule 24 . Signed by Judge James Robertson on March 26, 2009. (MT) (Entered: 03/26/2009)
25 NOTICE OF SUBSTITUTION OF COUNSEL by Vikas K. Desai on behalf of DEPARTMENT OF JUSTICE Substituting for attorney David M. Glass (Desai, Vikas) (Entered: 05/26/2009)
26 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 5 (cont.), # 8 Statement of Facts, # 9 Text of Proposed Order)(Desai, Vikas) (Entered: 05/29/2009)
27 Joint MOTION for Extension of Time to File Response/Reply as to 26 MOTION for Summary Judgment by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 06/03/2009)
MINUTE ORDER granting joint motion for extension of time 27 to 7/20/09 for the opposition and to 8/19/09 for the reply. Signed by Judge James Robertson on June 4, 2009. (MT) (Entered: 06/04/2009)
28 Consent MOTION for Extension of Time to File Response/Reply as to 26 MOTION for Summary Judgment by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Crump, Catherine) (Entered: 07/15/2009)
MINUTE ORDER granting plaintiffs' consented motion for extension of time 28 to July 24, 2009 for an opposition and to August 24, 2009 for a reply. Signed by Judge James Robertson on July 15, 2009. (MT) (Entered: 07/15/2009)

Case: 1:08-cv-01157-ABJ As of: 11/24/2018 07:25 PM EST 5 of 10

07/24/2009
07/24/2009
08/17/2009 08/18/2009 08/31/2009 09/01/2009 09/02/2009 09/08/2009 09/25/2009 10/15/2009 11/17/2009 01/14/2010 03/26/2010 03/26/2010 05/24/2010

29 Cross MOTION for Summary Judgment by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order, # 2 Affidavit Declaration, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit)(Crump, Catherine) (Entered: 07/24/2009)
30 Memorandum in opposition to re 26 MOTION for Summary Judgment and in support of Plaintiffs' Cross−motion for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Text of Proposed Order, # 2 Declaration, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18)(Crump, Catherine) (Entered: 07/24/2009)
31 MOTION for Extension of Time to File Response/Reply by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Desai, Vikas) (Entered: 08/17/2009)
MINUTE ORDER granting defendant's motion for extension of time 31 to August 31, 2009. Signed by Judge James Robertson on August 18, 2009. (MT) (Entered: 08/18/2009)
32 REPLY to opposition to motion re 26 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Desai, Vikas) Modified on 9/1/2009 to correct linkage (rdj). (Entered: 08/31/2009)
33 Memorandum in opposition to re 29 Cross MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Desai, Vikas) (Entered: 09/01/2009)
34 Consent MOTION for Extension of Time to File Response/Reply as to 29 Cross MOTION for Summary Judgment by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Crump, Catherine) (Entered: 09/02/2009)
MINUTE ORDER granting plaintiff's consented motion for extension of time 34 to September 25, 2009. Signed by Judge James Robertson on September 8, 2009. (MT) Modified on 9/8/2009 to correct date (rdj). (Entered: 09/08/2009)
35 REPLY to opposition to motion re 29 Cross MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Crump, Catherine) (Entered: 09/25/2009)
36 SUPPLEMENTAL MEMORANDUM to re 29 Cross MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Crump, Catherine) (Entered: 10/15/2009)
37 NOTICE of Change of Address by David L. Sobel (Sobel, David) (Entered: 11/17/2009)
38 SUPPLEMENTAL MEMORANDUM to re 29 Cross MOTION for Summary Judgment, 26 MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION. (Crump, Catherine) (Entered: 01/14/2010)
39 MEMORANDUM. Signed by Judge James Robertson on March 26, 2010. (MT) (Entered: 03/26/2010)
40 ORDER granting in part and denying in part defendant's motion for summary judgment 26 ; granting in part and denying in part plaintiffs' cross−motion for summary judgment 29 . Signed by Judge James Robertson on March 26, 2010. (MT) (Entered: 03/26/2010)
41 NOTICE OF APPEAL as to 40 Order on Motion for Summary Judgment, by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION. Filing fee $ 455, receipt number 0090−2188944. Fee Status: Fee Paid. Parties have been notified. (Crump, Catherine) (Entered: 05/24/2010)

Case: 1:08-cv-01157-ABJ As of: 11/24/2018 07:25 PM EST 6 of 10

05/24/2010 05/25/2010 05/26/2010 05/26/2010 05/28/2010 11/29/2011 11/30/2011
11/30/2011
12/02/2011 12/05/2011 12/15/2011
12/19/2011 12/19/2011 12/19/2011
12/23/2011

42 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 41 Notice of Appeal. (rdj) (Entered: 05/24/2010)
43 NOTICE OF APPEAL as to 40 by DEPARTMENT OF JUSTICE. Fee Status: No Fee Paid. Parties have been notified. (Desai, Vikas) Modified on 5/26/2010 to add linkage (rdj). (Entered: 05/25/2010)
USCA Case Number 10−5159 for 41 Notice of Appeal, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION. (rdj) (Entered: 05/26/2010)
44 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the fee was an Appeal by the Government re 43 Notice of Appeal. (rdj) (Entered: 05/26/2010)
USCA Case Number 10−5167 for 43 Notice of Appeal filed by DEPARTMENT OF JUSTICE. (rdj) (Entered: 05/28/2010)
45 NOTICE OF SUBSTITUTION OF COUNSEL by Jonathan Gordon Cooper on behalf of DEPARTMENT OF JUSTICE Substituting for attorney Vikas Desai (Cooper, Jonathan) (Entered: 11/29/2011)
46 MANDATE of USCA (certified copy) as to 43 Notice of Appeal filed by DEPARTMENT OF JUSTICE. Ordered and Adjudged that the judgment of the District Court appealed from in these causes is hereby affirmed in part, vacated in part, and the case is remanded, in accordance with the opinion of the court filed herein this date. USCA Case Number 10−5159. (ls) (Entered: 12/01/2011)
48 MANDATE of USCA (certified copy) as to 43 Notice of Appeal filed by DEPARTMENT OF JUSTICE ; USCA Case Number 10−5159. ORDERED and Adjudged that the judgment of the District Court appealed from in these causes is hereby affirmed in part, vacated in part, and the case is remamded, in accordance with the opinion of the court filed herein this date. (ls, ) (Entered: 12/13/2011)
Case randomly reassigned to Judge Ellen S. Huvelle. Judge James Robertson no longer assigned to the case. (ds) (Entered: 12/02/2011)
47 Case randomly reassigned to Judge Amy Berman Jackson. Judge Ellen S. Huvelle no longer assigned to the case. (ds) (Entered: 12/05/2011)
MINUTE ORDER. The parties are ORDERED to submit a joint status report by January 11, 2012 at 5:00 pm setting forth their joint position on whether they intend to pursue the settlement option described in the D.C. Circuit's opinion and on how and according to what schedule they would propose to proceed in light of the opinion. If the parties are unable to reach a joint position, they may set forth their respective separate positions. A status conference is scheduled for January 18, 2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. Signed by Judge Amy Berman Jackson on 12/15/11. (lcabj1) (Entered: 12/15/2011)
Set/Reset Deadlines/Hearings: Joint Status Report due by 1/11/2012 at 5:00 PM If the parties are unable to reach a joint position, they may set forth their respective separate positions. A Status Conference is scheduled for 1/18/2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. (jth) (Entered: 12/19/2011)
49 MOTION to Enforce Mandate by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 12/19/2011)
50 ERRATA − Omitted attachment to Motion to Enforce Mandate − Copy of Court of Appeals decision − by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION 49 MOTION to Enforce Mandate filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION. (Spitzer, Arthur) (Entered: 12/19/2011)
51 Memorandum in opposition to re 49 MOTION to Enforce Mandate filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Cooper, Jonathan) (Entered: 12/23/2011)

Case: 1:08-cv-01157-ABJ As of: 11/24/2018 07:25 PM EST 7 of 10

01/10/2012 01/11/2012 01/12/2012 01/24/2012 01/24/2012 01/24/2012 01/25/2012
02/08/2012
02/24/2012 03/09/2012 03/16/2012 03/19/2012
03/19/2012 04/12/2012

52 Consent MOTION for Extension of Time to File Status Report and To Reset Date of Status Conference by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Cooper, Jonathan) (Entered: 01/10/2012)
MINUTE ORDER granting 52 Consent Motion for Extension of Time to File Status Report and To Reset Status Conference. The status report will be due 1/24/2012 and the status conference will be rescheduled for 1/25/2012. Signed by Judge Amy Berman Jackson on 1/11/2012. (MT) (Entered: 01/11/2012)
Set/Reset Deadlines/Hearings: Status Report is due by 1/24/2012. The Status Conference is rescheduled for 1/25/2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. (jth) (Entered: 01/12/2012)
53 STATUS REPORT and Request To Reschedule January 25 Status Conference by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, DEPARTMENT OF JUSTICE. (Cooper, Jonathan) (Entered: 01/24/2012)
Set/Reset Hearings: The Status Conference presently scheduled for 1/25/2012 at 10:00 AM is rescheduled for 2/8/2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. (jth) (Entered: 01/24/2012)
54 MOTION to Continue Status Conference scheduled for January 25, 2012 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, DEPARTMENT OF JUSTICE. (See Docket Entry 53 to view document) (jf, ) (Entered: 01/25/2012)
MINUTE ORDER Granting 54 Motion to Continue Status Conference, which was contained in the Status Report filed on 1/24/2012. The Status Conference is rescheduled for Wednesday, 2/8/2012 at 10:00 AM in Courtroom 3 before Judge Amy Berman Jackson. Signed by Judge Amy Berman Jackson on 1/25/2012. (jth) (Entered: 01/25/2012)
Minute Entry for proceedings held before Judge Amy Berman Jackson: Status Conference held on 2/8/2012. Defendant's completion of document production and In Camera submissions to the Court due by 2/24/2012; Plaintiffs notice of the contesting of withheld documents due by 3/9/2012; Joint Status Report and proposed briefing schedule due by 3/16/2012. (Court Reporter Pat Kaneshiro−Miller) (jth) (Entered: 02/08/2012)
55 NOTICE of Filing Documents for In Camera Inspection and Status Report by DEPARTMENT OF JUSTICE (Cooper, Jonathan) (Entered: 02/24/2012)
56 RESPONSE re Status Conference, Set Deadlines,, filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Crump, Catherine) (Entered: 03/09/2012)
57 STATUS REPORT and Proposed Briefing Schedule by DEPARTMENT OF JUSTICE. (Cooper, Jonathan) (Entered: 03/16/2012)
MINUTE ORDER re 57 Status Report and Proposed Briefing Schedule filed by DEPARTMENT OF JUSTICE. Defendant's dispositive motion will be due 4/27/2012. The opposition to the dispositive motion and a cross−motion will be due 5/25/2012. The reply to the opposition to the dispositive motion and the opposition to the cross−motion will be due 6/22/12. The reply to the opposition to the cross−motion will be due 7/13/2012. Signed by Judge Amy Berman Jackson on 3/19/2012. (MT, ) (Entered: 03/19/2012)
Set/Reset Deadlines: Defendant's Dispositive Motion is due by 4/27/2012; Opposition to Dispositive Motion and Cross Motion is due by 5/25/2012; Reply to Dispositive Motion and Opposition to Cross Motion is due by 6/22/2012; Reply to the Cross Motion is due by 7/13/2012. (jth) (Entered: 03/19/2012)
MINUTE ORDER denying as moot 49 Motion to Enforce Mandate. In light of the Court's Minute Order dated March 19, 2012 setting out a briefing schedule, it is ORDERED that plaintiff's motion to enforce mandate is DENIED as moot. Signed by Judge Amy Berman Jackson on 4/12/12. (lcabj1) (Entered: 04/12/2012)

Case: 1:08-cv-01157-ABJ As of: 11/24/2018 07:25 PM EST 8 of 10

04/27/2012 05/25/2012 05/25/2012 06/15/2012 06/15/2012
06/29/2012 06/29/2012 07/13/2012 02/15/2013 02/15/2013 02/25/2013
02/26/2013 02/26/2013 02/28/2013 07/17/2013

58 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Text of Proposed Order)(Cooper, Jonathan) Modified on 5/29/2012 (jf, ). (Entered: 04/27/2012)
59 Memorandum in opposition to re 58 Second MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 05/25/2012)
60 Cross MOTION for Summary Judgment by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Spitzer, Arthur) Modified on 5/29/2012 (jf, ). (Entered: 05/25/2012)
61 MOTION for Extension of Time to File Response/Reply as to 60 Cross MOTION for Summary Judgment, 58 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Cooper, Jonathan) (Entered: 06/15/2012)
MINUTE ORDER granting 61 Motion for Extension of Time to File Reply re 58 MOTION for Summary Judgment and Response re 60 Cross MOTION for Summary Judgment. The reply to the motion for summary judgment and opposition/response to the cross−motion for summary judgment will be due 6/29/2012. Signed by Judge Amy Berman Jackson on 6/15/2012. (MT) (Entered: 06/15/2012)
62 Memorandum in opposition to re 60 Cross MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Cooper, Jonathan) (Entered: 06/29/2012)
63 REPLY to opposition to motion re 60 Cross MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Cooper, Jonathan) (Entered: 06/29/2012)
64 REPLY to opposition to motion re 60 Cross MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Spitzer, Arthur) (Entered: 07/13/2012)
65 ORDER granting 58 Motion for Summary Judgment; denying 60 Cross−Motion for Summary Judgment. Signed by Judge Amy Berman Jackson on 2/15/13. (lcabj1) (Entered: 02/15/2013)
66 MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 2/15/13. (lcabj1) (Entered: 02/15/2013)
67 NOTICE OF APPEAL TO DC CIRCUIT COURT re 66 MEMORANDUM OPINION, 65 Order by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. Filing fee $ 455, receipt number 0090−3230100. Fee Status: Fee Paid. Parties have been notified. (Crump, Catherine) Modified on 2/26/2013 (jf, ). (Entered: 02/25/2013)
68 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 67 Notice of Appeal to DC Circuit Court,. (jf, ) (Entered: 02/26/2013)
NOTICE OF ERROR re 67 Notice of Appeal to DC Circuit Court; emailed to ccrump@aclu.org, cc'd 12 associated attorneys −− The PDF file you docketed contained errors: 1. Chnages made − make sure to select the document being appealed (jf, ) (Entered: 02/26/2013)
USCA Case Number 13−5064 for 67 Notice of Appeal to DC Circuit Court, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION. (jf, ) (Entered: 02/28/2013)
69 ORDER of USCA (certified copy) as to 67 Notice of Appeal to DC Circuit Court, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION ; USCA Case Number 13−5064. Upon consideration of the motion for summary consideration of the propriety of remand, the opposition thereto, and the reply, it is ORDERED that the motion be denied. (kb, ) (Entered: 07/17/2013)

Case: 1:08-cv-01157-ABJ As of: 11/24/2018 07:25 PM EST 9 of 10

08/20/2014
09/02/2014 09/03/2014
09/03/2014 10/17/2014 10/30/2014 10/30/2014 10/31/2014 12/03/2014 12/03/2014 12/03/2014 01/05/2015 01/05/2015 01/06/2015 02/04/2015

70 MANDATE of USCA (certified copy) as to 67 Notice of Appeal to DC Circuit Court, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION ; ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby affirmed, in accordance with the opinion of the court filed herein this date. USCA Case Number 13−5064. (Attachments: # 1 USCA Opinion) (md, ) (Entered: 08/28/2014)
71 MOTION for Extension of Time to File motion for an award of attorneys' fees by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 09/02/2014)
MINUTE ORDER granting 71 Motion for Extension of Time to File Motion for an Award of Attorneys' Fees. In light of the reasons provided in the motion for an extention of time, it is ORDERED that any motion for attorneys' fees is due on or before November 3, 2014. Signed by Judge Amy Berman Jackson on 9/3/2014. (lcabj1) (Entered: 09/03/2014)
Set/Reset Deadlines: Any Motion for Attorneys' Fees is due by 11/3/2014. (jth) (Entered: 09/03/2014)
72 NOTICE of Appearance by David Michael Glass on behalf of DEPARTMENT OF JUSTICE (Glass, David) (Entered: 10/17/2014)
73 Consent MOTION for Extension of Time to File motion for fees and costs by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 10/30/2014)
MINUTE ORDER granting 73 Motion for Extension of Time to File Motion for Fees and Costs. Any motion relating to an award of attorneys' fees and costs is to be filed on or before December 3, 2014. Signed by Judge Amy Berman Jackson on 10/30/2014. (lcabj2) (Entered: 10/30/2014)
Set/Reset Deadlines: Any Motion Relating to an Award of Attorneys' Fees and Costs is due by 12/3/2014. (jth) (Entered: 10/31/2014)
74 Consent MOTION for Extension of Time to file motion for attorneys' fees by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 12/03/2014)
MINUTE ORDER granting 74 Motion for Extension of Time to File Motion for Attorneys' Fees. Any motion relating to an award of attorneys' fees and costs is to be filed on or before January 5, 2015. Signed by Judge Amy Berman Jackson on 12/3/2014. (lcabj2) (Entered: 12/03/2014)
Set/Reset Deadlines: Any Motion Relating to an Award of Attorneys' Fees and Costs is due by 1/5/2015. (jth) (Entered: 12/03/2014)
75 Consent MOTION for Extension of Time to File motion for fees and costs by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 01/05/2015)
MINUTE ORDER granting 75 Motion for Extension of Time to File Motion for Fees and Costs. Any motion relating to an award of attorneys' fees and costs is to be filed on or before February 4, 2015. Signed by Judge Amy Berman Jackson on 1/5/2015. (lcabj2) (Entered: 01/05/2015)
Set/Reset Deadlines: Motion relating to attorneys' fees and costs due by 2/4/2015. (tb, ) (Entered: 01/06/2015)
76 Consent MOTION for Extension of Time to reach agreement regarding fees by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 02/04/2015)

Case: 1:08-cv-01157-ABJ As of: 11/24/2018 07:25 PM EST 10 of 10

02/05/2015
02/05/2015 02/27/2015

MINUTE ORDER granting 76 Motion for Extension of Time to File Motion for Fees and Costs. Any motion relating to an award of attorneys' fees and costs is to be filed on or before March 6, 2015. Signed by Judge Amy Berman Jackson on 2/5/2015. (lcabj2) (Entered: 02/05/2015)
Set/Reset Deadlines: Any Motion Relating to an Award of Attorneys' Fees and Costs is due by 3/6/2015. (jth) (Entered: 02/05/2015)
77 STIPULATION of Dismissal by DEPARTMENT OF JUSTICE. (Glass, David) (Entered: 02/27/2015)