Skip to content

Judicial Watch • FBIracialproling



Page 1: FBIracialproling


Number of Pages:21

Date Created:October 22, 2013

Date Uploaded to the Library:October 28, 2013


File Scanned for Malware

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

No. 12-4345
_____________ 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
Hina Shamsi
American Civil Liberties Union
125 Broad Street
18th Floor
New York, 10004
Counsel for Appellant
Matthew Collette
Catherine Dorsey
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
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
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
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
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
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
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
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.
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.