American Civil Liberties Union v. United States Department of Justice

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2011 Decided September 6, 2011

No. 10-5159

AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL
LIBERTIES 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/cross-
appellee. 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.
 2

Before: GINSBURG and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: The plaintiffs brought this action
against the Department of Justice under the Freedom of
Information 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 requiring the
release of the 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 of data that can be used
to track their users’ past or present locations with various
degrees of precision.1 Concerned by reports that federal law

1
For descriptions of the different kinds of data available, see In
re Application of U.S. for an Order Directing Provider of Elec.
Commc’n Serv. 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: Where Are We?, 29 HASTINGS COMM. & ENT. L.J. 421, 426-
27 (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. & TECH. 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/
2010/11/08/.
 3

enforcement agencies were obtaining these data from
telecommunications companies without a judicial determination
of probable cause,2 the American Civil Liberties Union and the
American Civil Liberties Union Foundation (ACLU) filed
Freedom of Information Act (FOIA) 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:

[1] 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.

2
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 of Pen 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 FOIA, 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 by judges (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 of probable cause. It then asked those offices to
provide the docket information for any case in which an
individual was prosecuted after 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 FOIA
Exemptions 6 and 7(C). See 5 U.S.C. § 552(b)(6), (7)(C).3

The Justice Department also produced a Vaughn index
describing documents responsive to the plaintiffs’ request for
“policies, procedures, and practices,” and invoking various
FOIA exemptions to justify the redaction or withholding of
some of those 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,

3
Although FOIA 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,”
Forsham 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 (if it 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.” ACLU v. Dep’t
of Justice, 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
information only in cases that ended in convictions or public
guilty pleas. Id.

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 information about surveillance targets
who had not yet been prosecuted could be redacted from the
case name, the court refused to order the “meaningless
production” of a case name in which “nothing would be left but
variants of the phrase ‘In re: Application for Cell Site

4
Other 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 of Justice, 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.’” Id. at 166-67. The court also rejected the
plaintiffs’ argument that, because such applications are
invariably filed under seal, disclosure of the applications’ docket
numbers would not reveal any personally identifying
information. 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.” Id. 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) (internal 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’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C.
Cir. 2002) (quoting Rose, 425 U.S. at 361). “At all times[,]
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 of broad disclosure and insisted that
the exemptions be given a narrow compass.” Milner v. Dep’t of
the Navy, 131 S. Ct. 1259, 1265 (2011) (internal 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 only 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) permits 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 of privacy 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’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 165-66
(2003).5

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 [privacy] interest Congress intended the
Exemption to protect.” U.S. Dep’t of Justice v. Reporters
Comm. for Freedom of the 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

5
As a consequence, we do not address the parties’ dueling post-
argument letters 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 of FOIA Exemption 6.
 9

granted applications for cell phone location data without a
determination of probable 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
(if it included more than just 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

6
See Dep’t of Defense v. FLRA, 510 U.S. at 501; Ray, 502 U.S.
at 177; FLRA v. U.S. Dep’t of the Treasury, 884 F.2d 1446, 1452
(D.C. Cir. 1989); NARFE v. Horner, 879 F.2d 873, 878 (D.C. Cir.
1989); see also infra note 15. As we explained in NARFE v. Horner:

In virtually every case in which a privacy concern is
implicated, someone must take steps after the initial
disclosure in order to bring 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 sting. This is only more obvious where disclosure
of the information invades someone’s privacy not because
it is embarrassing but because it invites unwanted intrusions.
Where there is a substantial probability that disclosure will
 10

little work for an interested person to use the docket information
on the government’s list to look up the underlying case files in
the public records of the courts, and therein find the information
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),7 or private databases like Westlaw or
LexisNexis. Indeed, the plaintiffs have made clear that they
intend to use the docket information 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 guilty plea. We tend to agree with the
district court that the disclosure of convictions and public pleas
is at the lower end of the 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.
7
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 of individuals 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[e] rather significant intrusion into their
lives” occasioned by public indictment.).8

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 of Justice v. Reporters Committee for
Freedom of the Press, the Supreme Court held that release of the
contents of an FBI “rap sheet” -- which may have included a
record of the subject’s convictions -- constituted an unwarranted
invasion of personal 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
information about a private citizen can reasonably be expected
to invade that citizen’s privacy,” and that such records may

8
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’t of Justice, 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 of the Commonwealth of P.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 of the court’s concern
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 of his conviction.
 12

therefore not be disclosed in the absence of a cognizable public
interest. Id. As the docket numbers and case names the
plaintiffs seek constitute “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 weaker than those at issue in Reporters Committee.
The law enforcement records at issue there were rap sheets that
revealed the subjects’ “date of birth 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. Id.

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.9 It would
disclose only information concerning 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

9
Disclosure would reveal more than one prosecution only if there
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
that 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 than) ten years old,11 unlike the
Reporters Committee rap sheets that recorded a lifetime of
everything 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

10
The Justice Department insists that these distinctions are
irrelevant. After all, it notes, “the information that the Court held had
been properly protected” in Reporters Committee “related to a single
individual, Charles Medico, who may or 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” -- and barred disclosure in the absence of a 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.
11
The Justice Department compiled the list of docket information
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 information 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 fact,” and that
“information may be classified as ‘private’ if it is . . . not freely
available to the public.” Id. 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.” Id. at 764 n.15; see id.
(“[T]he interests in privacy fade 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
disappear just because it was once publicly released. Id. at 762-
63, 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 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.” Id. 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 [even] the 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 of otherwise 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.” Id. at 764, 771. “Plainly,” the Court said, “there
is a vast difference between the public records that might be
found after a diligent search of courthouse files, county archives,
and local police stations throughout the country and a
computerized summary located in a single clearinghouse of
information.” Id. at 764. This conclusion, the Court declared,
was further “supported by the web of federal [and state]
statutory and regulatory provisions that limit[] the disclosure of
rap-sheet information.” Id. at 764-65.

In this case, however, disclosure will reveal only the “bits,”
not the “whole.” As 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 PACER make it possible
to access court filings concerning any federal defendant from the
comfort of one’s home or office, quite unlike 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.12 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

12
The 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 mean 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 and convicted individuals.
13
Google searches for variations of the phrase “the United States
Attorney . . . announced the indictment of,” restricted to the last ten
years, yield thousands 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 and 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 of his or her possible future friends and associates who
will be exposed to the information.14

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 about that
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.

14
This 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 of particularly 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 information 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 [the] defendants ever learned that they were
the targets of warrantless cell phone tracking.” ACLU Reply Br.
24. There is no doubt that the courts have held that the risk of
unwanted contact following a FOIA disclosure is a privacy
interest that must be weighed in the privacy interest/public
interest balance. See Dep’t of Defense v. FLRA, 510 U.S. at 501;
Ray, 502 U.S. at 176-77; FLRA v. U.S. Dep’t of the Treasury,
884 F.2d 1446, 1452 (D.C. Cir. 1989); NARFE v. Horner, 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.15 Moreover, in each of those cases, the

15
See Dep’t of Defense v. FLRA, 510 U.S. at 501 (citing “the
influx of union-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 of the 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 quotation marks omitted)); Horner, 879 F.2d at 878
(noting that release of federal 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 instructive comparison. In that case, the requesters sought
the government’s unredacted summaries of interviews of unsuccessful
Haitian asylum seekers. Those summaries contained not only the
interviewees’ names and addresses, but also “highly personal
information regarding marital and employment status, children, living
conditions and attempts to enter the United 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 privacy interest in protecting these
individuals from any retaliatory action that might result from a
renewed interest in their aborted attempts to emigrate” 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 of their privacy because it would subject them to
possible embarrassment and retaliatory action,” and that the
requesters’ “intent to interview the returnees magnifie[d] the
importance of maintaining the confidentiality of their identities.” Id.
at 177 & n.12.
16
Dep’t of Defense v. FLRA, 510 U.S. at 502 (finding 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 of the 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 of privacy”); FLRA v. Dep’t of the Treasury, 884
F.2d at 1452 (noting that “[Horner] 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 only “modestly” higher).
 20

not compromise much more.17 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 and readily 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 of the balance, we find a significant public
interest in disclosure, something altogether absent in Reporters
Committee. Because the disclosure of private citizens’ criminal
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 of prosecutions in
which the defendants were subject to warrantless cell phone
tracking, and then were convicted or pled guilty, would shed
light on government conduct. Accordingly, it falls within
FOIA’s scope because it advances “the citizens’ right to be

17
Cf. Multi Ag Media, LLC v. Dep’t of Agric., 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]f no significant privacy interest is implicated, . . .
FOIA demands disclosure.’” (quoting Horner, 879 F.2d at 874)).
 21

informed 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 attention18 and has been a focus of
inquiry in several congressional hearings considering, among
other things, whether the Electronic Communications Privacy
Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986), should
be revised either to limit or to facilitate the practice.19 Courts

18
See, e.g., Adam Cohen, What Your Cell Phone Could Be Telling
the Government, TIME, Sept. 15, 2010; Editorial, Should Police Use
Your Cellphone to Track You?, DENVER POST, June 27, 2010, at D3;
PBS Newshour: With Location-Tracking Technology, Cell Users
Paying Price of Privacy (television broadcast June 22, 2010),
transcript available at http://www.pbs.org/newshour/ bb/science/
an-june10/ cell_06-22.html; Steve Chapman, Big Brother in Your Cell,
CHI. TRIB., Apr. 1, 2010, at 17; Miguel Helft, Technology Coalition
Seeks Stronger Privacy Laws, N.Y. TIMES, Mar. 31, 2010, at B1;
Michael Isikoff, The Snitch in Your Pocket, NEWSWEEK, Mar. 1, 2010,
at 40; Ellen Nakashima, Judges Urge Standard Cellphone-Tracking
Policy, WASH. POST, Nov. 14, 2008; Ellen Nakashima, Cellphone
Tracking Powers on Request, WASH. POST, Nov. 23, 2007, at A1; Orin
Kerr, Applying the Mosaic Theory of the Fourth Amendment to
Disclosure of Stored Records, THE VOLOKH CONSPIRACY (Apr. 5,
2011, 4:54 PM), http://volokh.com/2011/04/05/.
19
See, e.g., The Electronic Communications Privacy Act:
Promoting Security and Protecting Privacy in the Digital Age:
Hearing Before the S. Judiciary Comm., 111th Cong. (2010); ECPA
Reform and the Revolution in Location Based Technologies and
Services: Hearing Before the Subcomm. on the Constitution, Civil
Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th
Cong. (2010); The Collection and Use of Location Information for
Commercial Purposes: Hearing Before 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.21

Tech., and the Internet of the H. Comm. on Energy & Commerce,
111th Cong. (2010).
20
Compare In re Application of U.S. for an Order . . . Authorizing
Disclosure of Location-Based Servs., 727 F. Supp. 2d 571 (W.D. Tex.
2010), In re Applications of U.S. for Orders Authorizing Disclosure
of Cell 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 of Subscriber Info. and/or Cell Site Info., 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 of Elec. Commc’n Serv. to Disclose Records to
Gov’t, 620 F.3d 304, 318 (3d Cir. 2010), United States v. Forest, 355
F.3d 942, 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 Info. on a Certain Cellular Telephone,
460 F. Supp. 2d 448 (S.D.N.Y. 2006), In re Application of U.S. for an
Order . . . Authorizing Release of Subscriber Info. and/or Cell Site
Info., 411 F. Supp. 2d 678 (W.D. La. 2006), and In re Application of
U.S. for an Order for Disclosure of Telecommc’ns Records &
Authorizing Use of Pen Register & Trap & Trace, 405 F. Supp. 2d 435
(S.D.N.Y. 2005).
21
Compare Maynard, 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 of a 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 inform this
ongoing public policy discussion by shedding light on the scope
and effectiveness of cell phone tracking as a law enforcement
tool. It would, 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. Information from suppression hearings would also
provide facts regarding the duration of tracking and the quality
of tracking data, facts that would inform the public discussion
concerning the intrusiveness of this investigative tool.

There are obviously many caveats about the value of the
information that might be derived from the requested disclosure.

Fourth Amendment), and United States v. Garcia, 474 F.3d 994, 996-
98 (7th Cir. 2007) (holding that a warrant was not required to conduct
continuous electronic tracking of the 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 of their
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.18.

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

22
That distinguishes this case from cases like our recent decision
in Blackwell v. FBI, 2011 WL 2600831 (D.C. Cir. July 1, 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
of the 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 of the 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

23
See 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 of a 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 of this clause of Catch-22 and let out a respectful whistle.
‘That’s some catch, that Catch-22,’ he observed.”).
24
For 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.25

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 half true. 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 farm data would “say[] nothing about how the agency administers
its programs,” because “[w]ith 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 of employees would serve
the public interest by facilitating interviews for an academic study.
We likewise considered derivative uses in Painting and Drywall Work
Preservation Fund, Inc. v. Department of Housing and Urban
Development, 936 F.2d 1300 (D.C. Cir. 1991), and FLRA v.
Department of the 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 exist where ‘the names of current workers might provide
leads for an investigative reporter seeking to ferret out what
government is up to,’” but finding 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 of the Treasury,
884 F.2d at 1452 (internal quotation marks omitted))).
25
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 question whether a ‘derivative use’ theory would ever justify
release of information about private individuals.” Id. at 178-79.
It thus left this court’s own case law on the issue intact.26

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 n.4 (quoting Ray, 502 U.S. at 180-81 (Scalia, J., concurring

26
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.” DOJ Br. 35 (quoting Dep’t of Defense v.
FLRA, 510 U.S. at 496 (quoting Reporters Comm., 489 U.S. at 771)).
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 of shedding 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 of the 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 of the public as much right to disclosure as
one with a special interest” in a particular document. (internal
quotation marks omitted)); Dep’t of Defense v. FLRA, 510 U.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 it for the other.” Id.

Accordingly, even under the authority the government cites,
if we 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 Department would fail
to meet the threshold for invoking Exemption 7(C) at all. If we
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 only question left is whether there
is any privacy interest in a list of docket numbers, case names,
and courts. Of these, only uncommon names (e.g., United States
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 still leave 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 if there is no privacy interest, Exemption
7(C) simply does not apply. Perhaps for this reason, the
Department acknowledged at oral argument that, if we 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 of the 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 of the privacy interests at stake, we conclude
that production of the requested information will not constitute
an “unwarranted” invasion of personal privacy under Exemption
7(C).

III

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 of charges, 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 implicated by disclosure of convictions and public 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 22:10.

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. 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 of the docket number and
case name (with personally identifiable information redacted) of
one application to engage in warrantless cell phone tracking that
the government withheld in full (Document 22), and the docket
number of another application that the government produced in
partially redacted form (Document 29). The plaintiffs intend to
use this information to locate the applications and the 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 information 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’l Corp. v. U.S. Dep’t of Justice,
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[s] that 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
of documents 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, if neither 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
if the latter, there are still ongoing investigations regarding other
targets of the 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 of which “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 determining 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

27
As we have noted, the district court was also concerned that,
even if sealed, “the ACLU’s promised motion to unseal 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 to those whose activities were never the focus of
public attention, such as uncharged investigative subjects,
witnesses, 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 of Justice, 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]f anything
hinges on the characterization of the record, this Court should
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 of the 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 of the 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. This 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.

This 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 of our 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 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.

So ordered.