A federal appeals court has upheld the FBI’s refusal to release records about the agency’s use of racial and ethnic demographic data in Michigan against fears the agency might be engaging in racial profiling.
The U.S. Court of Appeals for the Sixth Circuit said that the FBI appropriately withheld the records under an exemption covering law enforcement information that could hamper enforcement proceedings if released. In this case, the information involved the agency’s methods of selecting demographic data to analyze and its analysis of that data.
“Our intelligence and law-enforcement agencies are awash in a sea of data, much of it public, so a choice to focus on a particular slice of that data directly reveals a targeting priority, and indirectly reveals the methodologies and data used to make that selection. There is no way to release certain types of public information without showing the FBI selection process,” Judge Danny Boggs wrote, joined by Judge David McKeague and Southern District of Ohio Judge Sandra Beckwith, sitting by designation.
According to the ACLU, the FBI collects information about and maps “so-called racial and ethnic behaviors, lifestyle characteristics and cultural traditions and ethnic-oriented businesses in communities with concentrated ethnic populations.” The organization sought assurances the agency wasn’t conducting racial profiling.
Ruling on Wednesday in American Civil Liberties Union of Michigan v. FBI, the Sixth Circuit affirmed Eastern District of Michigan Judge Lawrence Zatkoff’s September 2012 summary judgment for the FBI.
Zatkoff had ruled that the FBI properly withheld its Detroit Field Office records, rejecting the ACLU’s proposal for adjudicating in public disputes about whether particular records are subject to the Freedom of Information Act. Zatkoff instead opted for in-camera review of FBI arguments about which FOIA exceptions supported withholding each document.
The dispute involved the FBI’s 2008 “Domestic Investigations and Operations Guide,” designed to guide adherence with Justice Department guidelines including “the FBI’s use of race and ethnic identity in assessments and investigations,” according to court records.
The ACLU sought release of documents about how the FBI used its authority “to collect information about and ‘map’ racial and ethnic demographics, ‘behaviors,’ and ‘life style characteristics’ ” in Michigan. The organization wanted records dating to December 2007 about FBI policy concerning the collection of such information and about any information collected since December 2008.
The FBI initially released 298 pages, including 48 partially redacted ones, involving training materials it had previously given to the ACLU’s Atlanta affiliate. After the ACLU of Michigan filed suit in July 2011, the FBI eventually released 356 pages in full or part, including training materials; notes about particular groups or elements; program assessments; electronic communications; and maps.
Nusrat Choudhury, a staff attorney in the ACLU’s national security project, said the organization is still weighing whether to seek further judicial review. She noted that a similar case, ACLU of New Jersey v. FBI, is teed up for oral arguments before the Third Circuit on September 10.
“We are deeply disappointed by the [Sixth Circuit] decision because it denies the public’s right to know which Michigan communities the FBI is spying on through its secretive racial mapping intelligence program,” Choudhury said.
It’s also troubling that the Sixth Circuit “endorsed a secretive and one-sided process to adjudicate abuses of authority to keep information secret from the public,” she said.
The Justice Department declined to comment, according to spokeswoman Allison Price.
Sheri Qualters is a reporter for The National Law Journal, a Legal affiliate based in New York.