Am. Civil Liberties Union of Mich. v. Fed. Bureau of Investigation

• Decision Date: 21 August 2013
• Docket Number: No. 12–2536.,12–2536.
• Citation: 734 F.3d 460
• Parties: AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, Plaintiff–Appellant, v. FEDERAL BUREAU of INVESTIGATION; United States Department of Justice, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

734 F.3d 460

AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, Plaintiff–Appellant,

v.FEDERAL BUREAU of INVESTIGATION; United States Department of Justice, Defendants–Appellees.

No. 12–2536.

United States Court of Appeals, Sixth Circuit.

Argued: July 24, 2013.

Decided and Filed: Aug. 21, 2013.

ARGUED: Nusrat J. Choudhury, American Civil Liberties Union Foundation, New York, New York, for Appellant. Catherine H. Dorsey, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: Nusrat J. Choudhury, Hina Shamsi, American Civil Liberties Union Foundation, New York, New York, Mark P. Fancher, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, Michigan, Stephen C. Borgsdorf, Dykema Gossett PLLC, Ann Arbor, Michigan, for Appellant. Catherine H. Dorsey, Matthew M. Collette, United States Department of Justice, Washington, D.C., for Appellees.

Before: BOGGS and McKEAGUE, Circuit Judges; BECKWITH, District Judge.^*

OPINION

BOGGS, Circuit Judge.

This case involves a Freedom of Information Act (FOIA) request by the American Civil Liberties Union of Michigan (ACLU), which seeks release of information from the FBI about the agency's use of community-level racial and ethnic demographic data. The ACLU appeals the district court's holding that the FBI appropriately withheld records under Exemption 7(A), which deals with law enforcement information whose release could “interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). In particular, the ACLU argues that because racial and ethnic demographic data are public information—and because FBI policy prohibits use of such information as the “dominant” or “primary” basis for investigations—disclosure could not harm ongoing law-enforcement proceedings. In addition, the ACLU objects to the district court's refusal to engage in a public proceeding to determine whether the FBI was impermissibly relying on the FOIA's exclusion provisions, which permit an agency to treat certain records as “not subject to the requirements” of the FOIA. 5 U.S.C. § 552(c). Because release of publicly available information selectively used in investigations may reveal law-enforcement priorities and methodologies and thus interfere with enforcement proceedings, the FBI properly applied Exemption 7(A). Additionally, the ACLU's proposed procedure for resolving § 552(c) disputes is unnecessary and inadequately protective of sensitive information; in camera review by the district court is appropriate instead. We affirm the judgment of the district court.

I

In 2008, the FBI issued a “Domestic Investigations and Operations Guide” (DIOG) to implement newly revised guidelines from the Department of Justice. Among other matters, the DIOG addressed the FBI's use of race and ethnic identity in assessments and investigations. Under this guidance, the FBI may 1) identify and map “locations of concentrated ethnic communities” if such locations “will reasonably aid the analysis of potential threats and vulnerabilities, and, overall assist domain awareness,” and 2) collect “[f]ocused behavioral characteristics reasonably believed to be associated with a particular criminal or terrorist element of an ethnic community.”

Concerned that these guidelines loosened restrictions on FBI authority and risked leading to illegal profiling of communities, in 2010 the ACLU submitted a FOIA request to the FBI's Detroit Field Office. The request sought release of documents “concerning the FBI's implementation of its authority to collect information about and ‘map’ racial and ethnic demographics, ‘behaviors,’ and ‘life style characteristics' in local communities” in Michigan. In particular, the ACLU requested records since December 2007 concerning FBI policy on collecting (or not collecting) such information, and records since December2008 containing the information actually collected.

The FBI initially released 298 pages (48 partially redacted) of training material that had been previously released pursuant to a similar request by the ACLU's Atlanta affiliate. While the FBI was reviewing additional materials, the ACLU brought this suit on July 21, 2011. Ultimately, after three more releases, the FBI had identified 1,553 pages of potentially responsive records. 356 pages were released in full or in part and 190 were withheld as duplicates. The responsive documents consisted of five types: 1) training materials, 2) “domain intelligence notes,” 3) “program assessments,” 4) “electronic communications,” and 5) maps. A domain intelligence note contains data and analysis on a “particular group or element” in the “domain,” or area of responsibility for the field office. A program assessment compiles the results of a “large number” of domain intelligence notes and other research for a higher-level view of threats, vulnerabilities, and capabilities. Electronic communications “document the intelligence analysis and work product” underlying program assessments and domain intelligence notes. Maps are stand-alone visualizations of the intelligence data collected by the analyst.

On February 17, 2012, the FBI moved for summary judgment, supporting its motion with a declaration by David Hardy, Section Chief of the Record/Information Dissemination Section, and a descriptive Vaughn index ¹ of the potentially responsive documents. The declaration explained in detail which FOIA exemptions were applied to withhold each document, and the basis for applying that exception. Although most documents were exempted on multiple grounds, the FBI primarily relied on Exemption 7(A), which protects law-enforcement records whose disclosure “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The declaration explained that the withheld documents contained current intelligence information being used in current, ongoing, and prospective investigations, and that release would interfere with investigation and prosecution of cases. Specifically, release would inform criminal elements of FBI strategy, classified techniques, and analytic processes, and permit circumvention and evasion of FBI investigation and enforcement.

In many cases, the FBI also relied on Exemption 1, which protects properly classified records kept secret in the interest of national defense or foreign policy. 5 U.S.C. § 552(b)(1). The declaration asserted that disclosure of classified material in the requested documents would allow hostile groups to discover “current intelligence activities used,” “criteria used—and priorities assigned to—current intelligence or counterintelligence investigations,” and “targets of the intelligence activities and investigations.” In addition, the declaration explained that the release of sensitive intelligence about, or from, a foreign country could injure diplomatic relations. This exception was not applied wholesale, but only to certain types of information and analysis based on that information, including: intelligence supplied by witnesses and confidential sources, information from the intelligence community, targeting information, and intelligence “intertwined with public source information.”

The ACLU cross-moved for summary judgment, objecting to the FBI's refusal to release 75 maps, 25 domain intelligence notes, and 1 program assessment, and also to the redaction of material from 15 program assessments and 25 electronic communications. The ACLU argued that the withheld documents likely relied on publicly available racial or ethnic information and so could not be withheld (at least not in full) under the FOIA's law-enforcement and classified-intelligence exemptions. 5 U.S.C. § 552(b)(7)(A), (b)(1). Further, the ACLU surmised that the FBI had improperly relied on one of the FOIA's exclusion provisions, 5 U.S.C. § 552(c)(3), and thus failed to disclose even the existence of certain responsive records. Unlike the § 552(b) “exemptions,” the § 552(c) “exclusions” permit the agency to state that “there exist no records responsive to your FOIA request,” whether or not such records actually exist. Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act, § G.4 (Dec.1987). When the plaintiff raises a plausible § 552(c) concern, however, the burden shifts to the agency to file a response. The standard practice of the FBI has been to file an in camera declaration with the district court, stating whether an exclusion has been employed and, if so, the basis for the withholding. Ibid. After reviewing the declaration, the district court would issue its decision without specifying whether an exclusion was used or not. The ACLU objected to the use of a sealed in camera response to its § 552(c) concern, instead seeking public adjudication of the issue through a “Glomar”-like procedure,² in which the agency would answer a hypothetical question: whether the type of information sought by the plaintiff would be excludable under § 552(c), if such records exist.

On September 30, 2012, the district court granted summary judgment to the FBI and denied the ACLU's cross-motion, upholding the FBI's use of both Exemption 7(A) and Exemption 1, among other holdings. The court found that the Hardy Declaration and the accompanying index “fairly describe[ ] the content of the material withheld, and adequately state[ ] the FBI's grounds for withholding and that those grounds are reasonable.” Dist. Ct. Op. at 18. The court rejected the ACLU's public-information argument, reasoning that race and ethnicity may be “significant” to an investigation, and release of that information could alert a criminal organization that it may be the subject of an investigation. The court also rejected the ACLU's proposed procedure for adjudicating § 552(c) questions, instead reviewing the in camera declaration of the FBI and concluding that “if an exclusion was employed, it was and remains amply justified.” Dist. Ct. Op. at 20 (internal quotation marks and alterations omitted)....