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PRECEDENTIAL UNITED STATES COURT APPEALS FOR THE THIRD CIRCUIT _____________ No. 12-4345 _____________ AMERICAN CIVIL LIBERTIES UNION NEW JERSEY, Appellant FEDERAL BUREAU INVESTIGATION; DEPARTMENT JUSTICE _____________ Appeal from the United States District Court for the District New Jersey District Court No. 2-11-cv-02553 District Judge: The Honorable Esther Salas Argued September 10, 2013 Before: SMITH, SLOVITER, and ROTH, Circuit Judges (Filed: October 23, 2013) Nusrat Choudhury [ARGUED] Hina Shamsi American Civil Liberties Union 125 Broad Street 18th Floor New York, 10004 Counsel for Appellant Matthew Collette Catherine Dorsey [ARGUED] United States Department Justice Civil Division Room 7212 950 Pennsylvania Avenue, N.W. Washington, 20530 Deanna Durrett United States Department Justice Civil Division, Federal Programs Branch Massachusetts Avenue, N.W. Room 7130 Washington, 20530 Counsel for Appellee _______________ OPINION ________________ SMITH, Circuit Judge. This appeal concerns the Federal Bureau Investigation FBI response appellant American Civil Liberties Union ACLU request for information under the Freedom Information Act FOIA U.S.C. 552 (2009). The ACLU claims that the United States District Court for the District New Jersey District Court erred allowing the FBI withhold 284 pages responsive material pursuant certain exemptions under the FOIA. The ACLU also challenges the camera procedure employed the District Court for determining whether the FBI reliance the FOIA exclusion provision was justified, such reliance fact occurred, and urges remand employ Glomar-like procedure instead. For the reasons that follow, will affirm the judgment the District Court and decline adopt the ACLU novel proposal. the wake September 11, 2001, there have been efforts restructure the FBI the domestic equivalent the Central Intelligence Agency. See The 9/11 Comm The 9/11 Commission Report: Final Report the National Commission Terrorist Attacks Upon the United States 399 (2004). Part this restructuring has involved overhaul the FBI longstanding internal guidelines the form revised manual known the Domestic Investigations and Operations Guide DIOG released the Attorney General the United States 2008. FBI, Domestic Investigations and Operations Guide (Dec. 16, 2008). Among other things, the DIOG authorizes FBI agents engage limited racial and ethnic profiling when conducting proactive assessments criminal and terrorist threats. Id. 17. Specifically, the DIOG allows FBI agents identify and map locations concentrated ethnic communities doing would reasonably aid the analysis potential threats and vulnerabilities and assist domain awareness for the purpose performing intelligence analysis. Id. The DIOG also allows the FBI collect and map data related [f]ocused behavioral characteristics reasonably believed associated with particular criminal terrorist element ethnic community. Id. 44. Prompted concern that the new DIOG would encourage unlawful racial profiling, the ACLU launched initiative entitled Mapping the FBI that included series coordinated FOIA requests seeking records related the FBI use ethnic and racial data. Am. Civil Liberties Union, Mapping the FBI: Uncovering Abusive Surveillance and Racial Profiling, Am. Civil Liberties Union (Sept. 26, 2013), http://www.aclu.org/mapping-fbi-uncovering-abusivesurveillance-and-racial-profiling. One such request targeted six FBI field offices New Jersey and sought information concerning the FBI implementation its authority collect information about and map racial and ethnic demographics, behaviors, and life style characteristics local communities. response, the FBI searched its files and identified 782 pages potentially responsive records. these, the FBI eventually released 312 pages (some which were partially redacted),1 withheld 186 pages duplicative, and, most importantly for our purposes, withheld 284 pages exempt from disclosure. The withheld records included ten Domain Intelligence Notes DINs 2009 Newark Annual Baseline Domain Assessment Domain Assessment Electronic Communication from October 30, 2009 2009 and five Newark Domain Management Team Maps Maps Unsatisfied with this response, the ACLU, after exhausting its administrative remedies, filed suit against the FBI and the Department Justice DOJ the District Court for the District New Jersey, seeking injunction for release the withheld records. December 12, 2011, the FBI and DOJ moved for summary judgment, contending that the withheld The FBI first release December 22, 2010 consisted 298 pages. The FBI released additional pages June 20, 2011 and additional six pages February 22, 2012. documents were exempted from disclosure under U.S.C. 552(b)(1) Exemption (b)(7)(A) Exemption (b)(7)(C) Exemption (b)(7)(D) Exemption and (b)(7)(E) Exemption ).2 support this motion, the FBI submitted declarations David Hardy, the Section Chief the FBI Record/Information Dissemination Section Hardy Declarations that describe detail each piece information withheld and explain why was exempted from disclosure under the FOIA, well Vaughn index that conveys similar information table format. January 20, 2012, the ACLU filed crossmotion for summary judgment. The ACLU argued that the FBI failed demonstrate that had segregated and disclosed all non-exempt material from the withheld documents and that the FBI explanations for withholding certain documents were insufficiently detailed. Additionally, the ACLU sought court order requiring the FBI submit camera declaration explaining whether had relied U.S.C. 552(c) (the FOIA Exclusion Provision withhold additional, unidentified records, and the justification for this The DOJ and FBI also moved dismiss the FBI the theory that the FBI not agency under U.S.C. 552. The District Court granted this motion, noting only that [w]here the DOJ already named defendant FOIA case, dismissing the FBI has legal effect. See Vaughn Rosen, 484 F.2d 820 (D.C. Cir. 1973). exclusion occurred. The FBI submitted such declaration February 2012. The FBI released six additional pages February 22, 2012 and moved for summary judgment with respect these pages March 16, 2012. April 2012, the ACLU again submitted cross-motion for summary judgment, but that point argued that briefing ha[d] progressed, ha[d] become clear that the camera procedure had originally requested the Section 552(c) issue was inadequate and urged the District Court adopt procedure akin the Glomar procedure established the D.C. Circuit Phillippi CIA, 946 F.2d 1009 (D.C. Cir. 1976). October 2012, the District Court granted summary judgment for the FBI. The District Court held that the withheld documents were exempted under Exemptions 7A, 7C, 7D, and 7E, and that the FBI had satisfied its burden demonstrating that none the withheld information could segregated and disclosed. The District Court also held, without confirming denying the FBI reliance FOIA Exclusion Provision, that exclusion was invoked, was and remains amply justified. The District Court based this conclusion the FBI camera declaration originally requested the ACLU and declined address the ACLU argument for adopting the Glomar-like procedure. The ACLU timely appealed. II. first address the District Court ruling the FBI motion for summary judgment. The District Court had jurisdiction over this action pursuant U.S.C. 552(a)(4)(B), U.S.C. 1331, and U.S.C. 701-706 and exercise appellate jurisdiction pursuant U.S.C. 1291. Due the unique configuration summary judgment FOIA case, which the opposing party (generally the requester) does not ordinarily have the factual information upon which the moving party (generally the agency) has relied, this Circuit has held that the familiar standard appellate review promulgated Federal Rule Civil Procedure 56(c) does not apply. McDonnell United States, F.3d 1227, 1241-42 (3d Cir. 1993). Instead, [w]e employ two-tiered test under which first determine whether the district court had adequate factual basis for its determination and, find such basis, must then decide whether that determination was clearly erroneous. Abdelfattah United States Dept. Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007). Because conclude that ample evidence supported the District Court conclusion that the FBI satisfied its burden under Exemption 7A, will affirm. Accordingly, need not decide whether the FBI reliance Exemption Exemption 7(E) was proper.4 The FOIA requires any agency, upon any request, make records promptly available any person. U.S.C. 552(a)(3)(A). The purpose this requirement facilitate public access Government documents, and therefore its dominant objective disclosure, not secrecy. Sheet Metal Workers Int Ass Local Union No. United States Dep Veterans Affairs, 135 F.3d 891, 897 (3d Cir. 1998) (internal quotation marks and citations omitted). Because [p]ublic access government information not all encompassing, however, the FOIA exempt[s] nine categories documents from [its] broad disclosure requirements. Id. (internal quotation marks and citations omitted). The dispositive exemption this case Exemption 7A, which authorizes the withholding records information compiled for law enforcement purposes the extent that the production such law enforcement records information could reasonably expected interfere with enforcement proceedings. 552(b)(7)(A). The agency bears the burden justifying the withholding, and the [district] court The ACLU does not appeal the District Court rulings Exemptions 7D. reviews the agency claims exemption novo. OSHA Data/CIH Inc. United States Dep Labor, 220 F.3d 153, 160 (3d Cir. 2000). This burden may satisfied affidavits that describe the material withheld and why that material falls under particular exemption. McDonnell, F.3d 1241. agency entitled summary judgment when these affidavits describe the withheld information and the justification for withholding with reasonable specificity, demonstrating logical connection between the information and the claimed exemption and are not controverted either contrary evidence the record nor evidence agency bad faith. Davin United States Dep Justice, F.3d 1043, 1050 (3d Cir. 1995). Here, the ACLU does not contest that the information withheld the FBI was compiled for law enforcement purposes and argues only that the FBI has not demonstrated that production this information could reasonably expected interfere with enforcement proceedings. The ACLU acknowledges that when, this case, the disclosure requested information poses risks national security, agency assessment this risk afforded substantial deference. See Ctr. For Nat Sec. Studies Dep Justice, 331 F.3d 918, 927-28 (D.C. Cir. 2003). Nevertheless, the ACLU argues that the FBI not entitled summary judgment because its assertions that disclosure would disrupt enforcement proceedings are not reasonably specific and are called into question contradictory evidence. reject the ACLU argument that the FBI release similar racial/ethnic data response this similar FOIA requests contradicts its assertion that release the data withheld here would harmful.5 The Hardy Declarations explain that each office faces different threats each domain and [i]f similar information was released another location, was based decision specific that domain and the relevance the information that domain. Common sense itself suggests that different data related different ethnic populations different cities used completely different FBI investigations can vary greatly sensitivity. Further, share the concern expressed the Sixth Circuit related case that adopted the Specifically, the ACLU cites (1) the FBI partial release DIN this case, which concerned investigation the MS-13 gang and contained data various Hispanic communities Newark, New Jersey, (2) Michigan field office release memorandum concerning investigation international terrorist groups that contained data Middle-Eastern and Muslim population[s] Michigan, and (3) San Francisco field office release similar memorandum concerning investigation Chinese and Russian organized crime syndicates that contained data Chinese and Russian populations that area. ACLU reasoning agencies would discouraged from making good-faith effort disclose many responsive documents possible for fear estoppel. Am. Civil Liberties Union Michigan F.B.I., 12-2536, 2013 4436533 (6th Cir. Aug. 21, 2013). also disagree with the ACLU that the Hardy Declarations lack reasonable specificity when describing the risk harm from disclosure. The Hardy Declarations provide section-by-section description each the withheld documents.6 The Hardy Declarations also explain exactly how disclosure the requested ethnic and demographic data each withheld document would interfere with enforcement proceedings: revealing the target focus the FBI investigatory efforts. J.A. 127 (for DIN #1); J.A. 129 (for DIN #2); J.A. 130-31 (for DIN #3); J.A. 132 (for DIN #4); J.A. 134 (for DIN #5); J.A. 135 (for DIN #6); J.A. 137 (for DIN #7); J.A. 138 (for DIN #8); J.A. 140 (for DIN #10); J.A. 141 (for DIN #11); J.A. 907-08 (for Domain Assessment and 2009 EC); J.A. 910-11 (for Maps). course, once these targets were alerted the existence exact focus these investigations, they would likely change their behavior and/or the players avoid For example, the description DIN reveals the date and the subject line the document and outlines the document paragraph paragraph summary paragraph, scope section, background section, judgments section, details section detection and/or further investigation. hard imagine how the FBI could provide more detailed justification for withholding information under this exemption without compromising the very information sought protect. further disagree with the ACLU that release the limited public source information that seeks cannot reasonably expected tip off targets permit them circumvent investigations. The ACLU first contends that such disclosure would not harmful because the information sought public begin with. This argument misses the obvious point that while the demographic data itself may public, its use the FBI certainly not. The Hardy Declarations reveal what should obvious anyone: that the harm from disclosure lies revealing, indirectly, the FBI targeting preferences and investigative techniques not revealing demographic information that already available the public. The ACLU further argues that such disclosure would not harmful because the FBI prohibited from using race ethnicity dominant primary factor its investigations. reject this argument rests the implausible assumption that only disclosure dominant primary factor could impede FBI investigation. Accordingly, hold that the FBI has satisfied its burden under Exemption with respect all the withheld information.7 need not, then, address whether the FBI has satisfied its burden under Exemption Exemption with respect various subsets this information. III. next address the ACLU argument that this case should remanded apply its proposed Glomarlike procedure the Section 552(c) issue i.e. whether, the FBI withheld responsive documents pursuant FOIA exclusion provision, such withholding was proper. The ACLU proposed this procedure after they had already proposed and the District Court had already conducted camera review the Section 552(c) issue. The District Court declined adopt the ACLU Glomar-like procedure, and review this decision for abuse discretion. See Larson Dep State, 565 F.3d 857, 859 (D.C. Cir. 2009) (reviewing for abuse discretion district court decision not conduct camera review); Grand Jury Subpoena, 223 F.3d 213, 219 (3d Cir. 2000) (reviewing for abuse discretion district court decision rely parte government affidavit determining that crime-fraud Because hold that the public source information sought the ACLU itself exempted from disclosure under Exemption 7A, need not address the ACLU argument that the FBI failed disclose all reasonably segregable non-exempt responsive information. exception applies attorney-client communications). hold that abuse discretion occurred.8 The ACLU proposed procedure modeled after the procedure developed Phillippi C.I.A., 564 F.2d 1009 (D.C. Cir. 1976), later known the Glomar response, which allowed the Government neither confirm nor deny the use one FOIA exemptions prior the enactment Section 552(c). See Am. Civil Liberties Union Michigan, 2013 4436533, *7. When issuing Glomar response, the Government required provide public affidavit explaining much detail possible the basis for its ability issue such response. Phillippi, 564 F.3d 1013. Under this procedure, the Government explanation reviewed camera only last resort. See id. The ACLU proposes that this Glomar procedure adapted The ACLU cites McDonnell, F.3d 1242, for the proposition that the District Court method for adjudicating the Section 552(c) claim should reviewed novo. The only language this case that could arguably support this argument refers plenary review issues law. Id. find Larson Dep State, 565 F.3d 857, 859 (D.C. Cir. 2009) and Grand Jury Subpoena, 223 F.3d 213, 219 (3d Cir. 2000) more directly address the issue standard review these circumstances, and hold that abuse discretion should apply. the Section 552(c) context operate follows: [T]he Court [would] require Defendants respond Plaintiff concern that they may have relied upon Section 552(c) with public court filing indicating that Defendants interpret all part Plaintiff FOIA request seeking records that, they exist, would excludable under Section 552(c), and that therefore, the Defendants have not processed those portions the Request Plaintiff could then brief its argument that the types records sought, they exist, would not fall within the exclusion. The Court could then determine whether the type information sought Plaintiff, exists, excludable under Section 552(c). J.A. 1019-20. The ACLU argues that adoption this procedure would permit more meaningful judicial review and better protect the interests the litigants and the public. disagree, and hold that the District Court did not abuse its discretion conducting camera review. District Courts have long enjoyed the discretion employ camera procedures other circumstances involving sensitive information. See, e.g., United States Zolin, 491 U.S. 554, 564 (1989) (upholding camera review allegedly privileged communications determine whether those communications fall within the crime-fraud exception attorney-client privilege); Grand Jury Subpoena, 223 F.3d 213, 216 (3d Cir. 2000) the district court decides that the government should present information [to justify grand jury subpoena] beyond the minimal requirements, may use camera proceedings parte affidavits preserve grand jury secrecy, procedure have consistently endorsed. Nothing the FOIA operates limit this discretion. fact, the FOIA explicitly contemplates camera review the exemption context. U.S.C. 552(a)(4)(B) (providing that the District Court may examine the contents agency records camera determine whether such records any part thereof shall withheld under any the exemptions. Though the ACLU argues that Section 552(c) legislative history evidences intent incorporate Glomar-like procedure, find that this evidence inconclusive best.9 The ACLU cites two nearly identical statements sponsoring representatives that describe the purpose Section 552(c) codifying the Government authority neither confirm nor deny the existence certain records that Since passage Section 552(c), has been the Government standard litigation policy respond FOIA plaintiff suspicions that exclusion was used with camera declaration addressing this claim, one way another. Attorney General Memorandum the 1986 Amendments the Freedom Information Act, G.4 n.47 (Dec. 1987). The courts that have addressed this practice have generally approved. See, e.g., Am. Civil Liberties Union Michigan, 2013 4436533, *10 (approving procedure and collecting cases).10 short, find legal authority compelling the District Court employ the ACLU proposed had been provided Phillippi, 546 F.2d 1012. the extent consider these statements evidence legislative intent, note that they only purport incorporate from Phillippi the Government authority neither confirm nor deny the existence records, not the obligation publicly justify such response. The Sixth Circuit Am. Civil Liberties Union Michigan notes that [i]n only one narrow context have courts engaged public review the use 552(c) exclusion: with respect subsection (2), dealing with informant records after official confirmation that informant. 2013 4436533, (collecting cases). The ACLU does not suggest this case that the FBI excluding information related officially confirmed informant, any other information that ineligible for exclusion due public exposure. Cf. id. [T]he ACLU has not suggested that any excluded materials have been declassified, and thus public proceeding this matter unnecessary. procedure. Nor are convinced that adopting the ACLU proposed procedure would wise from policy perspective. recent related decision, the Sixth Circuit explained that this procedure would little facilitate judicial review: Under the ACLU procedure, the parties would litigate hypothetical question: whether the type information sought the plaintiff would excludable under 552(c), such records exist. most cases, this litigation will consist little more than speculation the plaintiff that the agency not following the requirements 552(c), and the agency conclusorily responding that its search for and processing records does follow the requirements. such case, only the district court, through camera inspection, could judge the merits the agency response. More imaginative plaintiffs might make more specific challenges, positing the existence certain class documents and arguing that they should not excluded. This would ordinarily difficult exercise hard know what types secrets the government concealing and plaintiffs may need propose many different kinds potentially withheld information. The government then tasked with responding these shots the dark, strange and difficult task given that few are likely tethered reality, and fashioning response fraught with concerns accidentally disclosing the existence nonexistence secret information. Am. Civil Liberties Union Michigan, 2013 4436533, *10. contrast, the camera procedure employed the District Court allows examine the actual information withheld and when actually withheld. this way, camera procedure provides for more meaningful judicial review than does the Glomar-like method adjudicating [o]pen ended hypothetical questions, which are not well suited the litigation process. Id. Further, district court use camera procedure does not hinder review appeal, because appellate courts can also employ this procedure, have done this case. review the agency camera declaration, conclude that the District Court did not err concluding that exclusion was employed, was and remains amply justified. For the foregoing reasons, will AFFIRM the judgment the District Court.