American Civil Liberties Union of New Jersey v. Federal Bureau of Investigation, No. 12-4345, Third Circuit; opinion by Smith, U.S.C.J.; filed October 23, 2013. Before Judges Smith, Sloviter and Roth. On appeal from the District of New Jersey, No. 2-11-cv-02553. [Sat below: Judge Salas.] DDS No. 52-8-xxxx [21 pp.]

This appeal concerns the Federal Bureau of Investigation’s (FBI) response to appellant American Civil Liberties Union’s (ACLU) request for information under the Freedom of Information Act (FOIA).

The ACLU claims that the district court for the District of New Jersey erred in allowing the FBI to withhold responsive material pursuant to certain exemptions under the FOIA. The ACLU also challenges the in camera procedure employed by the district court for determining whether the FBI’s reliance on the FOIA’s exclusion provision was justified, if such reliance, in fact, occurred, and urges a remand to employ a “Glomar-like” procedure instead.

The Domestic Investigations and Operations Guide (DIOG) released by the U.S. attorney general in 2008 authorizes FBI agents to engage in limited racial and ethnic profiling when conducting proactive assessments of criminal and terrorist threats. Prompted by a concern that the new DIOG would encourage unlawful racial profiling, the ACLU launched an initiative titled “Mapping the FBI” that included a series of coordinated FOIA requests seeking records related to the FBI’s use of ethnic and racial data.

The ACLU, after exhausting its administrative remedies, filed suit against the FBI and the Department of Justice (DOJ) in the district court for the District of New Jersey, seeking an injunction for release of certain withheld records. The FBI and DOJ moved for summary judgment, contending that the withheld documents were exempted from disclosure. The FBI submitted declarations by David Hardy, the section chief of the FBI Record/Information Dissemination Section (Hardy declarations) that describe each piece of information withheld and explain why it was exempted from disclosure, as well as a “Vaughn index” that conveys similar information in table format.

The district court granted summary judgment for the FBI, holding that the withheld documents were exempted under Exemptions 1, 7A, 7C, 7D and 7E, and that the FBI had satisfied its burden of demonstrating that none of the withheld information could be segregated and disclosed. The district court also held, without confirming or denying the FBI’s reliance on § 552(c), FOIA’s exclusion provision, that “if an exclusion was invoked, it was and remains amply justified.” The district court based this conclusion on the FBI’s in camera declaration originally requested by the ACLU and declined to address the ACLU’s argument for adopting the Glomar-like procedure. The ACLU appealed.

Held: The FBI has satisfied its burden under Exemption 7A with respect to all of the withheld information. The circuit panel affirms the judgment of the district court and declines to adopt the ACLU’s novel proposal to employ a “Glomar-like” procedure to the § 552(c) issue.

The FOIA exempts nine categories of documents. The dispositive exemption in this case is Exemption 7A, which authorizes the withholding of “records or information compiled for law enforcement purposes…to the extent that the production of such law enforcement records or information…could reasonably be expected to interfere with enforcement proceedings.”

The ACLU does not contest that the information withheld by the FBI was “compiled for law enforcement purposes” and argues only that the FBI has not demonstrated that production of this information could “reasonably be expected to interfere with enforcement proceedings.”

The circuit panel rejects the ACLU’s argument that the FBI’s release of similar racial/ethnic data in response to this or similar FOIA requests contradicts its assertion that release of the data withheld here would be harmful. The panel also disagrees with the ACLU that the Hardy declarations lack reasonable specificity when describing the risk of harm from disclosure. The panel further disagrees with the ACLU that release of the “limited public source information” that it seeks “cannot reasonably be expected to tip off targets or permit them to circumvent investigations.” The Hardy declarations reveal what should be obvious: that the harm from disclosure lies in revealing, indirectly, the FBI’s targeting preferences and investigative techniques—not in revealing demographic information that is already available to the public. The panel further rejects the ACLU’s argument that such disclosure would not be harmful because the FBI is prohibited from using race or ethnicity as a “dominant or primary factor” in its investigations.

The circuit panel holds that the FBI has satisfied its burden under Exemption 7A with respect to all of the withheld information. The panel need not address whether the FBI has satisfied its burden under Exemption 1 or Exemption 7E with respect to various subsets of this information.

The circuit panel next addresses the ACLU’s argument that this case should be remanded to apply its proposed “Glomar-like” procedure to the § 552(c) issue—i.e., whether, if the FBI withheld responsive documents pursuant to FOIA’s exclusion provision, such withholding was proper. The ACLU proposed this procedure after they had already proposed—and the district court had already conducted—an in camera review of the § 552(c) issue. The district court declined to adopt the ACLU’s “Glomar-like” procedure.

The ACLU’s proposed procedure is modeled after the procedure developed in Phillippi v. C.I.A., later known as the “Glomar response,” which allowed the government to “neither confirm nor deny” the use of one of FOIA’s exemptions prior to the enactment of § 552(c). When issuing a “Glomar response,” the government is required to “provide a public affidavit explaining in as much detail as possible the basis” for its ability to issue such a response. The government’s explanation is to be reviewed in camera only as a last resort. The ACLU argues that adoption of this procedure would permit more meaningful judicial review and better protect the interests of the litigants and the public. The panel disagrees, and holds that the district court did not abuse its discretion by conducting an in camera review.

Nothing in the FOIA operates to limit the district court’s discretion to employ in camera procedures in circumstances involving sensitive information. In fact, the FOIA explicitly contemplates in camera review in the exemption context. The circuit panel finds no legal authority compelling the district court to employ the ACLU’s proposed procedure. The panel finds that the district court did not err in concluding that if an exclusion was employed, it was and remains amply justified.

The judgment of the district court is affirmed.

For appellant — Nusrat J. Choudhury and Hina Shamsi (American Civil Liberties Union). For appellee — Matthew M. Collette and Catherine H. Dorsey (U.S. Department of Justice, Civil Division) and Deanna L. Durrett (U.S. Department of Justice, Civil Division, Federal Programs Branch).