United States Court of Appeals
                      For the First Circuit


No. 22-1862

                       ANTHONY D. GULLUNI,
 District Attorney for Hampden County, in his official capacity,

                      Plaintiff, Appellant,

                                v.

                         JOSHUA S. LEVY,
     Acting U.S. Attorney for the District of Massachusetts,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                              Before

                    Kayatta, Selya, and Gelpí,
                         Circuit Judges.


     Elizabeth N. Mulvey, with whom Thomas M. Hoopes and Libby,
Hoopes, Brooks & Mulvey P.C. were on brief, for appellant.
     Michael Shih, Appellate Staff Attorney, with whom Brian M.
Boynton, Principal Deputy Assistant Attorney General, Joshua S.
Levy, Acting United States Attorney, and Daniel Tenny, Appellate
Staff Attorney, were on brief, for appellee.
     Matthew R. Segal, Jessica J. Lewis, Rebecca A. Jacobstein,
American Civil Liberties Union Foundation of Massachusetts, Inc.,
and Committee for Public Counsel Services, on brief in support of
neither party for Committee for Public Counsel Services and Hampden
County Lawyers for Justice, amici curiae.
October 30, 2023
            GELPÍ, Circuit Judge.         Appellant Anthony D. Gulluni

("Gulluni"), District Attorney for Hampden County, Massachusetts,

challenges the district court's granting of summary judgment in

favor of Appellee Joshua S. Levy, Acting United States Attorney

for the District of Massachusetts.           Gulluni contends that the

district court applied the incorrect standard in reviewing the

denial by the United States Department of Justice ("DOJ") of his

request for information related to a federal police misconduct

investigation.    Because DOJ properly based its denial on privilege

grounds and given the applicable standard under the Administrative

Procedure Act ("APA"), we affirm the district court's decision.

                               I. Background

            We discuss the undisputed facts as they were presented

below.1     In April 2018, DOJ initiated a "pattern or practice"

investigation     into   the     Springfield,    Massachusetts      Police

Department ("SPD") pursuant to the Violent Crime Control and Law

Enforcement Act of 1994, 

 After a twenty-seven-

month investigation, DOJ released a public report citing specific

instances    of   misconduct    and   general   failures   within   SPD's

practices.     This twenty-eight-page report, released on July 8,



     1 See Quintero de Quintero v. Aponte-Roque, 

(1st Cir. 1992) (stating that when the "facts are undisputed,"
appellate review is "one of law").
     2   Formerly 

.


                                  - 3 -
2020, critically found patterns or practices of excessive force by

SPD officers in violation of the Fourth Amendment.   The dates of

the specific instances of misconduct and the names of the persons

involved were not included in the report.

     Because DOJ's investigation involved the review of "more than

114,000 SPD documents," Gulluni sent DOJ a letter ("Touhy request"

or "request") requesting all SPD reports and documents supporting

DOJ's specific and general findings in an attempt to identify the

SPD officers "who were the subject of DOJ's findings."     Gulluni

specifically requested:

          (1) A   copy   of   all   Springfield   Police
          Department reports, including but not limited
          to incident reports, investigative reports,
          arrest reports, use-of-force reports, or
          contents     of      a     prisoner     injury
          file . . . determined   as    examples   where
          Narcotics Bureau officers falsified reports to
          disguise or hide their use of force;

          (2) A   copy   of   all   Springfield   Police
          Department reports, including, but not limited
          to incident reports, investigative reports,
          arrest reports, use-of-force reports, or
          contents     of      a     prisoner     injury
          file . . . determined as . . . a pattern or
          practice . . .   [where] officers made false
          reports that were inconsistent with other
          available evidence, including video and
          photographs . . . [;] and

          (3) A copy of all photographs or video/digital
          material determined as inconsistent with any
          Springfield   Police    Department   officers'
          reports, including, but not limited to
          incident   reports,   investigative   reports,
          arrest reports, use-of-force reports, or



                              - 4 -
           contents     of     a     prisoner     injury
           file . . . (internal quotations omitted).

      From Gulluni's perspective, his request was imperative given

his   constitutional     duty,    as    District    Attorney,      to   disclose

exculpatory   evidence    to     criminal      defendants    as   per   Brady   v.

Maryland, 

 (1963), and Giglio v. United States, 

 (1972).

      After due consideration, DOJ denied Gulluni's request in

accordance with Touhy regulations,3 asserting law enforcement and

work product privileges.         

. DOJ further

stated that the requested materials originated with SPD, which

Gulluni could contact directly at any time.                 Gulluni then filed

suit in May 2021 asserting that the denial of his Touhy request

was arbitrary, capricious, an abuse of discretion, and not in

accordance with law, thereby, a violation of the APA.                   

.   The parties filed cross motions for summary judgment,

and the district court ruled in favor of DOJ.                 Gulluni v. U.S.

Att'y for the Dist. of Mass., 

 (D. Mass. 2022).

Gulluni timely appealed.

           In April 2022, prior to the district court's decision,

DOJ entered into a consent decree with SPD and the City of


      3Touhy regulations, named after the Supreme Court case,
United States ex rel. Touhy v. Ragen, 

 (1951), guide
DOJ decisions in determining whether to disclose requested
information and documents.   Cabral v. U.S. Dep't of Just., 

 (1st Cir. 2009); see infra Part II(B).


                                       - 5 -
Springfield ("City"), but long after DOJ responded to the Touhy

request.       When the United States enters into a consent decree of

this sort with a state or local government, the latter does not

admit to the alleged violations but instead agrees to make the

necessary reforms and changes to remedy such violations.                          See

United States v. Armour & Co., 

 (1971)

(stating that after entering into a consent decree:                   "The parties

waive their right to litigate issues involved in the case and thus

save       themselves   the    time,     expense,     and    inevitable    risk   of

litigation."); e.g., Bos. Police Superior Officers Fed'n v. City

of Boston, 

 (1st Cir. 1998) (involving a consent

decree       to   reform      the     Boston     Police     Department's   "racial

discrimination in its promotion practices"); Culbreath v. Dukakis,

 (1st Cir. 1980) (concerning the Commonwealth of

Massachusetts'      consent         decree   with   four    state   employee   labor

unions to remedy "racial discrimination in the hiring and promotion

practices").4




       Foundationally, a consent decree is a legal agreement
       4

between two parties that is approved by a federal court.      See
generally United States v. Comunidades Unidas Contra La
Contaminación, 

 (1st Cir. 2000) (discussing consent
decrees in the environmental context). Consent decrees resemble
contracts due to the voluntary nature in which agreement is
reached, but these decrees also "bear some of the earmarks of
judgments entered after litigation." Local No. 93, Int'l Ass'n of
Firefighters v. City of Cleveland, 

 (1986).


                                         - 6 -
            Since the mid-1990s, police reform consent decrees, such

as that between DOJ and the City, have been filed in various

jurisdictions across the nation.             See Gustavo A. Gelpí, Police

Reform as Seen Through the Eyes of a District Judge, Fed. Law.,

Sept. 2016, at 58 (noting that DOJ investigations have resulted in

"exponentially increased law enforcement reform nationwide"); see

generally Alejandro del Carmen, Racial Profiling in Policing:

Beyond the Basics 119-40 (2d ed. 2023) (explaining federal police

reform consent decrees).           "The most common areas reformed are

usually     use   of   excessive    force,    unreasonable   searches   and

seizures, discriminatory policing, illegal detentions, and false

arrests."    Gelpí, supra, at 59.      The Violent Crime Control and Law

Enforcement Act of 1994, 

, created a pathway for

the   DOJ    to   institutionally     address    unconstitutional   police

behavior, which is significant because, before the Act, the ability

to address misconduct was "limited to prosecutions of individual

police officers . . . under the color of state law."           del Carmen,

supra, at 120.

                              II. Discussion

            On appeal, Gulluni contends that the district court

erred in (1) applying the arbitrary and capricious standard found

in § 706(2)(A) of the APA to its review of DOJ's denial of his

Touhy request and (2) finding that DOJ's privilege grounds were

not "arbitrary, capricious, an abuse of discretion, or otherwise


                                     - 7 -
not in accordance with the law."           

(2)(A).           We review

an award of summary judgment de novo.                 Cabral, 

.

First, we will address the correct standard to be applied to DOJ's

decision here.      Second, we will examine the merits of Gulluni's

appeal regarding the privileges that DOJ invoked.

           For    the    reasons    that    follow,      we    conclude     that   the

district court applied the correct APA standard to analyze DOJ's

denial of Gulluni's Touhy request and that DOJ's invocation of the

work product and law enforcement privileges was not arbitrary and

capricious.      Accordingly, we affirm on all issues.

                A. The Arbitrary and Capricious Standard

           Gulluni insists that the applicable standard of review

for   DOJ's      denial    of      his     Touhy    request        is      found    in

§ 706(2)(B) -- whether the agency action was "contrary to [a]

constitutional right" -- based on his characterization of his

claims as constitutional in nature under Brady and Giglio, giving

rise to de novo review.          On the other hand, DOJ maintains that

§ 706(2)(A)'s      deferential      arbitrary      and        capricious    standard

applies.

           Generally, § 706(2)(B)'s constitutional right standard

applies    to    Touhy    denials    that     encompass         claims     that    are

substantially constitutional or constitutional in nature, whereas

§ 706(2)(A)'s arbitrary and capricious standard applies to agency

decisions that do not substantially concern constitutional issues.


                                     - 8 -
Cases that have applied the constitutional right standard to a

Touhy request denial, as opposed to the usual arbitrary and

capricious standard, noted that such challenges to an agency's

decision materially turned upon the underlying constitutional

claim     rather     than   merely      possessing      a    would-be,       ancillary

constitutional obligation.              Compare, e.g., People for Ethical

Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 

 (10th Cir. 2017) (applying the constitutional

right     standard    to    a   claim     substantially          concerned       with     a

constitutional taking), with Puerto Rico v. United States, 

, 60-61 (1st Cir. 2007) (analyzing the FBI's decision not

to release the requested information under the arbitrary and

capricious standard because the claim was not constitutional in

nature).

            We     agree    with      the     district       court       that,     while

constitutional duties are implicated by Gulluni's role as District

Attorney,     constitutional         duties     alone       do    not    trigger        the

application of § 706(2)(B)'s higher "contrary to constitutional

right, power, privilege, or immunity" standard.                         The mere fact

that disclosure would assist Gulluni in discharging his duties

under Brady and Giglio does not make his request constitutional in

nature.    Gulluni's request only implicates constitutional concerns

because, in a potential criminal action with unspecified "Hampden

County    state    court    defendants,"        he   will    be    constitutionally


                                        - 9 -
obligated to provide Brady material.          Surely, DOJ's disclosure to

Gulluni would ease compliance with his constitutional obligations,

but Gulluni's ability to comply with said obligations does not

turn on whether DOJ discloses the requested information.

     Gulluni further argues that the constitutional right standard

applies   because    as   District    Attorney,   he   is   "asserting    the

constitutional      right[s]   of    others" -- namely,     Hampden    County

criminal defendants.       However, he fails to meaningfully discuss

his standing to assert those constitutional rights on behalf of

others.   In fact, Gulluni only cites cases that, although the

constitutional   right    standard     was   applied   to   agency    decision

challenges, are entirely distinguishable from his own claim.               In

each of those cases, the challengers had established standing to

assert the constitutional rights at issue, and more importantly,

the constitutional claims were substantive in nature.            People for

Ethical Treatment of Prop. Owners, 

; Cook Cnty. v.

Wolf, 

(N.D. Ill. 2020); All. for Nat'l Health

U.S. v. Sebelius, 

 (D.D.C. 2010).            Each party's

Touhy claims therein were based upon constitutional violations or

infringements that had occurred rather than on constitutional

violations that could possibly occur. People for Ethical Treatment

of Prop. Owners, 

 (constitutional taking

occurred); Wolf, 461 F. Supp. 3d at 782, 797 (agency's rule

violated the "equal protection component of the Fifth Amendment's


                                    - 10 -
Due Process Clause"); All. for Nat'l Health U.S., 

   (agency's    health       regulation   violated   First

Amendment commercial speech rights).               Yet, the issue of whether

Gulluni possesses standing to bring these constitutional claims is

not one we need to decide.

               Here, DOJ is not prosecuting the criminal defendants

Gulluni is concerned with.      And any constitutional duty of Gulluni

to turn over documents to a defendant whom Gulluni's office

prosecutes does not give rise to a constitutional duty by DOJ to

share its views of the documents with Gulluni or anyone else, at

least where DOJ had no role in the state court prosecutions.              DOJ's

denial did not violate a constitutional right, and Gulluni's

constitutional concerns are tentative at best -- to which Gulluni

admitted as much in his brief by expressing that SPD officers may

be "potential witness[es]."          See generally Saleh v. Blinken, No.

22-1168, 

, at *2 (2d Cir. Aug. 9, 2023) (utilizing

the    constitutional       right     standard       for   a    substantially

constitutional      issue   rather    than    a    potential   constitutional

issue).    Further, Gulluni has other direct avenues to access the

materials, enabling him to discharge his possible constitutional

obligations to state criminal defendants, rather than requesting

those materials from a party which these did not originate from.

Suitably, the review of agency action under the arbitrary and

capricious standard applies here.


                                     - 11 -
        B. DOJ's Privileges Under the Arbitrary and Capricious
                             Standard

            Before delving into DOJ's privilege invocations, it is

worthwhile to briefly discuss the Housekeeping Act and Touhy

regulations to properly review DOJ's decision under the arbitrary

and capricious standard.          "The Housekeeping Act, 

,

authorizes federal agencies to create rules governing discovery

and disclosure."     Cabral, 

 (citing Puerto Rico, 490

F.3d at 61).    These regulations were upheld by the Supreme Court:

the head of an agency may appropriately "prescribe regulations not

inconsistent with law for 'the custody, use, and preservation of

records, papers, and property appertaining to' the Department of

Justice."      Touhy,    

.     These    DOJ   regulations,

otherwise   known   as    Touhy    regulations,      guide    agency   decisions

pertaining to disclosures but do not itself provide a substantive

defense to disclosure.         

; see Puerto Rico,

490 F.3d at 61.

            Section 16.26(b) of the regulations is particularly

relevant because it enumerates the factors that agencies analyze

to determine whether to disclose.               

(b).     Under

§ 16.26(b)(5), disclosure may not be made when it "would reveal

investigatory       records        compiled        for       law    enforcement

purposes . . . and would interfere with enforcement proceedings or

disclose investigative techniques and procedures the effectiveness



                                       - 12 -
of which would thereby be impaired."        

(b)(5).

Nevertheless, because Touhy regulations are procedural in nature,

"our review of the reasonableness of the agency's decision focuses

on the substantive law concerning privilege" and is limited to

"the administrative record already in existence."        Puerto Rico,

490 F.3d at 61-62; Camp v. Pitts, 

 (1973) (per

curiam); see 

 (providing unsuccessful solicitants

with a pathway to judicial review).

          DOJ's   denial   of   Gulluni's   Touhy   request   will   be

overturned only if the decision was "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with the law."

(2)(A).      An agency's decision is arbitrary and

capricious if the agency relied on improper factors, disregarded

"an important aspect of the problem, offered an explanation that

runs counter to the evidence," or when a reasonable explanation

for the agency's decision cannot be discerned. Motor Vehicle Ass'n

v. State Farm Mut. Auto. Ins., 

 (1983); Judulang v.

Holder, 

 (2011); Balt. Gas & Elec. Co. v. Nat. Res.

Def. Council, Inc., 

 (1983).        In accordance with

this "narrow standard of review," a court "is not to substitute

its judgment for that of the agency" but rather determine "whether

there has been a clear error of judgment."      Fed. Commc'ns Comm'n

v. Fox Television Stations, Inc., 

 (2009);

Citizens to Pres. Overton Park, Inc. v. Volpe, 

, 416


                                - 13 -
(1971), abrogated on other grounds by Califano v. Sanders, 

 (1977)); Judulang, 

 (instructing that the

agency's decision should be connected to the purpose and concerns

of   relevant     law).         Agencies   maintain   "expertise     and

experience . . . that no court can properly ignore."         Judulang,

.        In this light, "[w]e apply the same deferential

standard to the agency's decision as the district court."      Cabral,

; Puerto Rico, 490 F.3d at 61.

                         1. Work Product Privilege

            The work product privilege, recognized by the Supreme

Court in Hickman v. Taylor, is codified in the Federal Rules of

Civil Procedure.       

 (1947); Fed. R. Civ. P. 26(b)(3).

This doctrine aims to provide an attorney with "a zone of privacy

within which to prepare the client's case and plan strategy without

undue interference" and "act to some degree as a brake on the

court's power."        In re San Juan Dupont Plaza Hotel Fire Litig.,

 (1st Cir. 1988).        Although this doctrine

was developed in the realm of civil discovery, it has been found

to apply in other circumstances. See, e.g., Upjohn Co. v. United

States, 

 (1981) (Internal Revenue summonses);

United States     v.    Nobles, 

 (1975) (criminal

matters).    The crux of the matter being that "[o]ur adversarial

system of justice cannot function" without this doctrine.          In re

San Juan, 

.         More to the point, this court has


                                  - 14 -
recognized     that    the       sorting      and   segregation     of     documents      in

anticipation of litigation is protected by ordinary work product

privilege     as     this    "provides        insight   into    opposing         counsel's

understanding of his case."                

.         However, there are

limits   to    the    scope      of   this     privilege     upon    a   showing     of    a

substantial        need      and      undue     hardship.      Fed.        R.    Civ.     P.

26(b)(3)(A)(ii).

              Gulluni argues that the work product privilege is so

"egregiously wrong" as invoked by DOJ given it has failed to

provide a "specific analysis" or a "satisfactory explanation for

its refusal" to disclose.                We have stated that the selection of

documents may reveal opposing counsel's mental impressions.                          In re

San Juan, 

.                 Here, rather than ask for all of

SPD's documents, Gulluni asked DOJ to only divulge exactly which

documents were selected and relied upon in its report, specifically

DOJ's    assessment         of   SPD's     documents,      which    we     determine      is

safeguarded by the work product doctrine.                       

.            DOJ

reasonably explained in its October 21, 2020, letter that the

documents sought "reflect[ed] the thoughts and impressions of DOJ

attorneys,     paralegals,         and    investigators."           This    letter      also

explained why the information sought by Gulluni is privileged under

its   guidelines:         such     "disclosures      would     reveal      the    internal

deliberation process within the Department of Justice."                             Puerto

Rico, 490 F.3d at 73 (Boudin, C.J., concurring) (looking to the


                                           - 15 -
agency's application of "its [own] general policy" to determine

whether the agency's decision was arbitrary and capricious).             This

reasoning is merited under our own precedent concerning ordinary

work product privilege as the sorting of documents may allow

inappropriate insight into an agency's investigation.              In re San

Juan, 

.        And while DOJ's reasoning may not satisfy

Gulluni's   own    benchmark    for    a    "satisfactory   explanation,"   we

determine that DOJ's decision and assessment in denying Gulluni's

request was reasonably explained, which is all that DOJ is required

to do.

            In addition, Gulluni argues that the SPD documents were

not protected by the work product doctrine because the materials

were not prepared in anticipation of litigation and were produced

in SPD's ordinary course of business.                  As we have explained,

Gulluni did not merely seek SPD documents as they plainly were but

sought to specifically obtain DOJ's "determinations" of SPD's

misconduct, which is covered by the work product doctrine.              DOJ's

selection and determination of SPD's unconstitutional patterns or

practices    was    effectuated       to     correct    such   constitutional

deprivations in which remedy would have occurred through either

litigation or a consent decree.            Therefore, it cannot be said that

DOJ was unreasonable in its conclusion that its selection and

determination process of SPD documents was done in anticipation of

an enforcement proceeding against SPD and the City.             Maine v. U.S.


                                      - 16 -
Dep't of Interior, 

, 68 (1st Cir. 2002) (concluding

that the work product privilege does not only include documents

prepared "primarily" or "exclusively" for litigation but also

documents prepared because of "expected litigation" even if the

"purpose is not to assist in litigation") (internal quotations

omitted).       And even though the potential litigation would have

been only between DOJ and SPD, disclosure to a third party, such

as Gulluni, who could then access privileged information, could

have       waived   DOJ's   work   product   protections   and   impaired   its

negotiation leverage against SPD. See United States v. Mass. Inst.

of Tech., 

 (1st Cir. 1997) (highlighting that

preventing disclosure to third parties who may disclose such

materials to an adversary preserves the work product privilege).

               Gulluni further argues that DOJ waived any work product

privilege by releasing its public report.             Gulluni cited several

cases to support his position, yet each miss the mark.5             DOJ's act

of publishing the findings report was not inconsistent with the


      In re Zofran (Ondansetron) Prods. Liab. Litig., 

3d 179 (D. Mass. 2019) (documents were fully disclosed to the
public thereby waiving work product privilege); Koninklijke
Philips Elecs. N.V. v. ZOLL Med. Corp., No. 10-11041-NMG, 

 (D. Mass. Mar. 4, 2013), at *2-3 (the information sought
were facts and technical information not subject to work product
protection); United States v. Joint Active Sys., Inc., No. 19-mc-
91053-ADB, 

, at *5 (D. Mass. Apr. 28, 2020)
(attorney-client privilege, not work product privilege, was at
issue); In re Atl. Fin. Mgmt. Sec. Litig., 

 (D. Mass.
1988) (already-discovered documents could be used to refresh a
witness without violating work product privilege).


                                      - 17 -
purpose of the work product doctrine; instead, it put the public

on notice of what was discovered during DOJ's investigation into

SPD -- an     investigation    that    revealed    SPD's      many   alleged

constitutional violations.      The publication of the findings report

was simply the first step in DOJ's process of entering into

negotiations with SPD.        And as DOJ asserts, when the findings

report was published, it was not clear whether SPD would be willing

to enter into a consent decree or if litigation would have ensued.

Upon review, it is transparent that the published findings report

did not disclose the underlying SPD documents to anyone nor DOJ's

thought   processes.    Mass.    Inst.    of   Tech.,   

(highlighting that "disclosing material in a way inconsistent with

keeping it from an adversary waives work product protection").

DOJ's effort to keep its analysis private is further evidenced by

its intentional omission of names, dates, and specific facts

underpinning its conclusions.         Accordingly, DOJ's invocation of

the work product privilege in denying Gulluni's Touhy request was

reasonable.    See Cabral, 

 (finding that denials of

Touhy requests are not arbitrary and capricious when such denials

are reasonable).

            Gulluni also posits that any work product privilege is

now mooted by the consent decree.        Assuming but not deciding that

that must be so, the fact remains that our review of the agency's

decision must be "based on the reasons [the agency] gave when it


                                 - 18 -
acted," Dep't of Homeland Sec. v. Regents of the Univ. of Cal.,

 (2020), and therefore by implication on the

information      available      to   the   agency     when    it    made   its   final

decision.    And when DOJ denied Gulluni's Touhy request, there was

no consent decree.            It was thus entirely reasonable for DOJ to

have   considered       its    analysis    of   the   SPD    documents     to    be   in

anticipation of possible litigation and invoke the work product

privilege accordingly.

            Gulluni finally contends that his "legal and ethical

obligation       to   disclose       exculpatory      material       to    [criminal]

defendants" shows a "substantial need" for the materials.                             But

Gulluni already has access to all the underlying documents on which

DOJ relied in compiling its report.             What he is really seeking are

DOJ's impressions and thought processes regarding those documents.

And    Gulluni    has    not    demonstrated     that       his    Brady   or    Giglio

obligations extend to DOJ's own thoughts as to the contents of the

documents.

            As the district court reasoned under the deferential

arbitrary and capricious standard, DOJ has made no clear error.

Thus, DOJ's determinations concerning work product privilege were

not arbitrary, capricious, or without reason, as required to

overcome our deference to DOJ's decision.




                                       - 19 -
                       2. Law Enforcement Privilege

            Following    the    Supreme    Court's     recognition       of   a     law

enforcement privilege in Roviaro v. United States, 

(1957),    we   have   recognized     a    privilege      for    law   enforcement

activities      regarding      "confidential       government          surveillance

information" to "confidential informant[s]" to "law enforcement

techniques and procedures."          United States v. Cintolo, 

 (1st Cir. 1987); United States v. Perez, 

(1st Cir. 2002); Puerto Rico, 490 F.3d at 64.                     The underlying

rationale being that law enforcement functions and operations will

not be effective if interference is prevalent.                  Roviaro, 

 (explaining that there is a "public interest in effective

law enforcement"); Puerto Rico, 490 F.3d at 62-63; Perez, 

 (acknowledging that the law enforcement privilege "serves

important ends").        Having recognized that the law enforcement

privilege is not absolute, it may be overcome by a sufficient

showing    of   authentic      necessity    that   courts       determine      on    a

case-by-case basis.      Cintolo, 

; Puerto Rico, 490

F.3d at 64 (clarifying that courts must balance the interests

between preserving law enforcement techniques and the need for

disclosure). Balancing the interests between the federal and state

governments "must be done with particular care."                 Puerto Rico, 490

F.3d at 64.     "The interest of the party seeking disclosure tends

to   be   strongest    when    the   information     in    question      is   highly


                                     - 20 -
relevant, helpful, and unavailable from other sources."      Ass'n for

Reduction of Violence v. Hall, 

 (1st Cir. 1984).

            In his brief, Gulluni stated that the information sought

was comprised of merely "factual statements authored by the SPD"

to which the privilege does not apply.6          Although we have not

considered whether factual statements are relevant in determining

if the law enforcement privilege applies, we need not decide that

to resolve Gulluni's contention.       Gulluni had direct access to all

of the SPD documents.     What he wants is DOJ's thoughts about those

documents.    So, this is hardly a request for "factual statements

authored by the SPD."

            DOJ's denial of Gulluni's Touhy request was reasonable

because, even though Gulluni's request was not aimed at specific

techniques or procedures in the traditional sense, there was an

ongoing enforcement proceeding and negotiations with SPD at the

time that Gulluni made his Touhy request.        DOJ explicitly stated

in its October 21, 2020, denial letter that "disclosure of the

requested     materials    would     reveal   records   compiled   for

investigative purposes and would interfere with these ongoing law



     6 Gulluni cited several cases in which courts have held that
certain factors are to be considered in determining whether the
privilege applies. See, e.g., In re U.S. Dep't of Homeland Sec.,

 (5th Cir. 2006); In re Anthem, Inc. Data Breach
Litig., 

 (D.D.C. 2017). See Puerto Rico, 490
F.3d at 62-64, for a meaningful discussion of the law enforcement
privilege as utilized by sibling circuits.


                                   - 21 -
enforcement proceedings."           Therefore, even though Gulluni did not

directly seek disclosure of a particular technique or procedure,

the disclosure of DOJ's law enforcement techniques and procedures

were       significantly   enmeshed      because       the   specific    materials

requested were the underpinnings to the report and consent decree.

Gulluni, 626 F. Supp. 3d at 330.                Disclosure of those specific

materials      could   have    undermined     DOJ's     negotiation      strategies

because Gulluni was seeking the fruit of DOJ's investigative

techniques and procedures.              And we find the district court's

rationale, which is in alignment with the justification underlying

the law enforcement privilege, cogent: that "disclosure might

decrease the willingness of local police departments to share

records with DOJ in the future."             Gulluni, 626 F. Supp. 3d at 330-

31.

              Therefore,      we   conclude     that    DOJ's   denial    was   not

arbitrary      and   capricious      given   its   reasoned     consideration    of

Gulluni's request compared to its own legitimate interest in

safeguarding its determinations.7

                                   III. Conclusion

              After review, we conclude that the district court did

not err in applying the arbitrary and capricious standard and that


       Nothing in this opinion suggests that DOJ would not have to
       7

respond in litigation to routine discovery requests requiring a
party to disclose "an opinion or contention that relates to fact
or the application of law to fact." Fed. R. Civ. P. 33(a)(2).


                                       - 22 -
DOJ's decision to deny the Touhy request was not arbitrary and

capricious.   Thus, the judgment of the district court is affirmed.




                              - 23 -