American Civil Liberties Union v. Federal Bureau of Investigation , 734 F.3d 460 ( 2013 )


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    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 13a0244p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    -
    AMERICAN CIVIL LIBERTIES UNION OF
    Plaintiff-Appellant, --
    MICHIGAN,
    -
    No. 12-2536
    ,
    >
    -
    v.
    -
    -
    FEDERAL BUREAU OF INVESTIGATION;
    -
    UNITED STATES DEPARTMENT OF JUSTICE,
    Defendants-Appellees. N
    Appeal from the United States District Court
    for the Eastern District of Michigan at Detroit.
    No. 2:11-cv-13154—Lawrence P. Zatkoff, District Judge.
    Argued: July 24, 2013
    Decided and Filed: August 21, 2013
    Before: BOGGS and McKEAGUE, Circuit Judges; BECKWITH, District Judge.*
    _________________
    COUNSEL
    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.
    *
    The Honorable Sandra S. Beckwith, United States District Judge for the Southern District of
    Ohio, sitting by designation.
    1
    No. 12-2536         ACLU v. FBI, et al.                                           Page 2
    _________________
    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
    No. 12-2536        ACLU v. FBI, et al.                                             Page 3
    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 December 2008 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
    No. 12-2536           ACLU v. FBI, et al.                                                       Page 4
    Dissemination Section, and a descriptive Vaughn index1 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
    1
    A Vaughn index, named after Vaughn v. Rosen, 
    484 F.2d 820
     (D.C. Cir. 1973), describes the
    documents responsive to a FOIA request and the exemptions employed, facilitating the adversarial process
    and judicial review.
    No. 12-2536             ACLU v. FBI, et al.                                                          Page 5
    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
    2
    The Glomar procedure, named after the secret government ocean vessel the Hughes Glomar
    Explorer at issue in Phillippi v. CIA, 
    546 F.2d 1009
     (D.C. Cir. 1976), refers to an agency response that
    neither confirms nor denies the existence of requested records. An agency need not include such records
    in a Vaughn index, as long as its affidavits establish that if the records existed, a specified FOIA exemption
    would apply. See Hunt v. CIA, 
    981 F.2d 1116
    , 1118 (9th Cir. 1992); Phillippi, 
    546 F.2d at 1013
    .
    No. 12-2536             ACLU v. FBI, et al.                                                           Page 6
    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). The ACLU
    appeals the district court’s Exemption 7(A) determination, and the use of an ex parte, in
    camera procedure for § 552(c) questions.3
    II
    Under the FOIA, each “agency” upon “any request” for records shall make the
    records “promptly available to any person,” 
    5 U.S.C. § 552
    (a)(3)(A), unless one of nine
    specific exemptions applies, 
    5 U.S.C. § 552
    (b)(1)–(9). In accordance with the FOIA’s
    “dominant objective” of disclosure, these exemptions are to be “narrowly construed.”
    Akron Std. Div. of Eagle-Picher Indus., Inc. v. Donovan, 
    780 F.2d 568
    , 571 (6th Cir.
    1986). The district court reviews an agency’s decision to deny a FOIA request de novo,
    with the burden on the agency to justify its withholding. 
    5 U.S.C. § 552
    (a)(4)(B). The
    propriety of the district court’s grant of summary judgment is likewise reviewed de novo
    on appeal. Rugiero v. Dep’t of Justice, 
    257 F.3d 534
    , 543 (6th Cir. 2001). Summary
    judgment is warranted where “the movant shows that there is no genuine dispute as to
    3
    The ACLU appealed the district court’s Exemption 1 ruling only “to the extent that it is
    interpreted to permit Defendants to keep secret any publicly-available racial and ethnic information.”
    Reply Br. at 8. The FBI has stated on appeal that Exemption 1 was not invoked to withhold any public-
    source information, and this is supported by the record.
    Under Executive Order 13,526, agencies may classify information whose “unauthorized
    disclosure could reasonably be expected to cause identifiable or describable damage to the national
    security” and pertains to “intelligence activities (including covert action), intelligence sources or methods,
    or cryptology” and “foreign relations or foreign activities of the United States, including confidential
    sources,” among other subjects. Exec. Order No. 13,526 § 1.4(c), (d), 
    75 Fed. Reg. 707
    , 709 (Dec. 29,
    2009). According to the Hardy Declaration, the FBI only withheld “(1) information that identifies the
    specific type of intelligence activity directed at a specific target and the identity of the target of national
    security interest; (2) identities of targets of foreign counterintelligence investigations; [] (3) the identity
    of intelligence sources; [and] (4) FISA derived information.” These four categories of information are
    plainly classifiable, and do not encompass the publicly available demographic data to whose withholding
    the ACLU objects. So long as the FBI did not withhold other types of data, Exemption 1 was properly
    applied. While intelligence agencies do routinely rely on public and open-source information (also known
    as open-source intelligence, or OSINT), such information does not fit in any of the classification categories
    of Executive Order 13,526, and will not ordinarily be classified or subject to Exemption 1. See, e.g., Dep’t
    of the Army, Open-Source Intelligence, Army Techniques Publication No. 2-22.9, 2-9 (July 10, 2012),
    http://www.fas.org/irp/doddir/army/atp2-22-9.pdf (noting that final analysis of open-source information
    may be deemed “controlled unclassified information” or “sensitive but unclassified information”).
    No. 12-2536        ACLU v. FBI, et al.                                          Page 7
    any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
    Civ. P. 56(a).
    Most FOIA cases are decided on summary judgment, since the primary question
    is a legal one: whether the withheld documents are covered by one of the statutory
    exemptions. See Rimmer v. Holder, 
    700 F.3d 246
    , 255 (6th Cir. 2012). This is due to
    the “peculiar posture” of FOIA cases, in which plaintiffs, lacking access to the
    documents, can only challenge the application of the correct legal standard to the
    descriptions provided by the government, not the actual content of the underlying
    documents. Jones v. FBI, 
    41 F.3d 238
    , 242 (6th Cir. 1994). Nevertheless, to facilitate
    review and the adversarial process, the government must support its position with
    detailed affidavits and a descriptive index with “a relatively detailed analysis” of
    “manageable segments” of the documents. Vaughn v. Rosen, 
    484 F.2d 820
    , 826 (D.C.
    Cir. 1973). The agency’s declarations are entitled to a “presumption of good faith.”
    Rugiero, 
    257 F.3d at 544
    . If bad faith is shown or the agency’s declarations are
    insufficient to meet its burden, the court may seek to examine the withheld documents
    in camera. See 
    5 U.S.C. § 552
    (a)(4)(B).
    A
    Exemption 7(A) permits withholding of information if the information 1) is
    “compiled for law enforcement purposes” and 2) its release “could reasonably be
    expected to interfere with enforcement proceedings.” 
    5 U.S.C. § 552
    (b)(7)(A). The
    ACLU does not dispute that the records were “compiled for law enforcement purposes”;
    records compiled by the FBI per se satisfy this requirement. See Jones, 
    41 F.3d at 246
    .
    As to the second requirement, the ACLU does not dispute that the information is being
    used in “pending or prospective” enforcement proceedings, but only that the FBI failed
    to show that release could reasonably be expected to cause some articulable harm.
    Manna v. Dep’t of Justice, 
    51 F.3d 1158
    , 1164 (3d Cir. 1995). For the purposes of
    Exemption 7(A), the agency may show this risk of interference generically—document-
    by-document discussion is unnecessary. See Dickerson v. Dep’t of Justice, 
    992 F.2d 1426
    , 1431 (6th Cir. 1993). Further, where disclosure of the records involves potential
    No. 12-2536         ACLU v. FBI, et al.                                              Page 8
    harm to national security, we give substantial deference to the agency’s determinations
    of the risk. Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 
    331 F.3d 918
    , 927–28 (D.C.
    Cir. 2003) (holding that same deference is due under Exemption 7(A), in appropriate
    cases, as under Exemption 1).
    The ACLU argues that release of publicly available information will not interfere
    with investigations, especially as the ACLU “does not seek information about target
    identities or conduct, or any information from witness or informant statements.”
    Appellant’s Br. at 31. This argument fails for two reasons. First, the class of harms
    covered by Exemption 7(A) is not so narrow. Unlike Exemptions 7(B), (C), and (D),
    which deal with protecting the identity of specific investigation targets and confidential
    sources, by its plain terms Exemption 7(A) does not limit what type of “interference”
    may justify withholding. The FBI’s declaration—that release of this information may
    reveal what leads the FBI is pursuing and the scope of those investigations, permitting
    groups to change their behavior and avoid scrutiny—amply states a type of interference
    covered by Exemption 7(A). Second, the ACLU mischaracterizes the information that
    disclosure would make public. The FBI is not attempting to keep demographic data
    from the census secret—which it could not, by definition—but its methods of selecting
    what data to analyze and the 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. For example,
    release of phone numbers in an FBI document, while individually publicly available in
    a phonebook, might reveal investigation targets or criminal networks. The internet,
    whether through search engines, websites, message boards, or social media profiles,
    provides a vast of amount of public information whose selective use may be central to
    confidential investigations and should not be disclosed. See, e.g., Hardy Declaration,
    R.19-1 at Page ID# 128 (noting use of information from five public websites in domain
    assessment). Likewise, the analysis of the selected public source data is informed by
    internal FBI methodologies, priorities, and knowledge. All but data in the rawest form
    No. 12-2536        ACLU v. FBI, et al.                                             Page 9
    will alert criminal and terrorist elements to how the FBI uses demographic information
    in its investigations, allowing such groups to avoid the FBI investigations.
    The ACLU also contends that under FBI guidelines (and the Constitution), race
    or ethnicity cannot be the sole or primary grounds for investigation. This is true, but
    does not change the outcome. The disclosure of any significant factor involved in FBI
    decision-making could interfere with enforcement proceedings. As explained in FBI
    guidelines, race and ethnicity may be important to criminal and national-security
    investigations, since terrorist organizations may “live and operate primarily within a
    certain concentrated community of the same ethnicity,” and may conduct activities
    through “ethnically-oriented business and other facilities.” FBI, 2008 Department
    Internal Operating Guidelines, § 4.3.C.2.a, R.24-2 at Page ID# 875. Revealing the
    FBI’s racial and ethnic targeting priorities might not establish with certainty the
    existence or scope of an investigation of a particular criminal or terrorist group, but
    would surely raise suspicions. Indeed, the FBI’s careful restrictions on the use of racial
    and ethnic data cuts against the ACLU: FBI policy ensures that the information is only
    used when relevant. See ibid. (permitting use of racial and ethnic information if it “will
    reasonably aid the analysis of potential threats and vulnerabilities” and “the communities
    are sufficiently concentrated and established”).
    The ACLU additionally argues that the FBI’s assertions of harm are not entitled
    to deference as they lack “reasonable specificity of detail” and have been “called into
    question by contradictory evidence.” Gardels v. CIA, 
    689 F.2d 1100
    , 1105 (D.C. Cir.
    1982). As to “reasonable specificity,” the FBI adequately described the grounds for
    withholding each responsive document, explaining that disclosure would reveal FBI
    priorities, threat assessments, and vulnerabilities. Given the detail of the declarations
    provided by the FBI, the district court had no need to inspect in camera the underlying
    documents in full to get a sense of the content. To the extent the ACLU challenges the
    FBI’s conclusion that disclosure of these priorities would harm investigations, this is a
    matter of national security as to which the agency is owed deference.
    No. 12-2536            ACLU v. FBI, et al.                                                         Page 10
    As to “contradictory evidence,” the ACLU argues that other FBI offices have
    released documents similar to those withheld in this case. Specifically, the New Jersey
    FBI released information on Hispanic demographics and the San Francisco FBI released
    information on Chinese and Russian demographics. In addition, in this case the FBI
    released a partially redacted domain assessment that noted that Michigan is “prime
    territory for attempted radicalization and recruitment by [Middle-Eastern and South
    Asian] terrorist groups” due to its “large Middle-Eastern and Muslim population.” None
    of these releases call into question the FBI’s assertions of harm. Similar information
    may be treated differently by different field offices, for example, where one has a
    pending investigation and one has a closed investigation. Further, while the racial and
    ethnic demographic data used by the different offices is superficially similar, the
    use—and sensitivity—of such data will vary depending on local conditions.4 More
    importantly, if we adopted the ACLU’s reasoning that disclosure of some information
    requires disclosure of all similar information, agencies would be discouraged from
    making a good-faith effort to disclose as many responsive documents as possible for fear
    of estoppel. See ACLU v. Dep’t of Defense, 
    628 F.3d 612
     (D.C. Cir. 2011). In this case,
    the other field office releases are only similar in that they also dealt with racial and
    ethnic demographic data, while the released Michigan Domain Assessment is at a high
    level of generality. There is no actual contradiction between those releases and the
    FBI’s affidavits in this case. Courts have rejected the disclosure-of-some-is-disclosure-
    of-all argument in much closer cases. See, e.g., Students Against Genocide v. Dep’t of
    State, 
    257 F.3d 828
     (D.C. Cir. 2001) (disclosure of 14 photographs of Srebrenica
    massacre did not require release of other photos, since the additional disclosures could
    reveal reconnaissance imagery sources and methods); Fitzgibbon v. CIA, 
    911 F.2d 755
    ,
    766 (D.C. Cir. 1990) (disclosure by CIA to Congress of presence in Dominican Republic
    in 1960 did not require disclosure of documents confirming or denying presence in
    1956). Furthermore, according the FBI a presumption of good faith, the Detroit Field
    4
    In some contexts, race and ethnicity are linked to crime, in others to terrorism. The closeness
    of these links, and the relevant level of generality of the data (e.g., all individuals of a certain national
    origin versus recent immigrants from an ethnic minority community in a certain country) will likewise
    vary.
    No. 12-2536        ACLU v. FBI, et al.                                           Page 11
    Office’s release of a document identifying a generic threat from Middle-Eastern and
    South-Asian terrorist groups compels a conclusion that the FBI has only withheld
    documents of greater specificity.
    Because the FBI has adequately shown that release of racial and ethnic
    demographic data is reasonably likely to interfere with ongoing investigations by
    revealing FBI priorities and analytic methods, the district court properly applied
    Exemption 7(A).
    B
    The ACLU also argues that the FBI failed to meet its burden to disclose “any
    reasonably segregable portion[s]” of the responsive records. 
    5 U.S.C. § 552
    (b). This
    is simply a restatement of the Exemption 7(A) argument. Disclosing even the raw racial
    and demographic data on which the FBI relies would reveal targeting priorities and
    methodologies. Further, as this information is likely to appear in the form of processed,
    finished analysis products—not raw data—disclosure would reveal FBI analytic
    methods. Even if small sections might truly be public information that is not sensitive,
    the FBI’s document descriptions are detailed enough to support a conclusion that the
    “exempt and nonexempt information are ‘inextricably intertwined,’ such that the
    excision of exempt information would impose significant costs on the agency and
    produce an edited document with little informational value.” Mays v. Drug Enforcement
    Admin., 
    234 F.3d 1324
    , 1327 (D.C. Cir. 2000). It appears, however, that the FBI did
    incur significant costs in painstakingly partially redacting over 100 pages of records,
    some to the point that the final document had “little information value.” See, for
    example, the entirety of the “Details” section of a partially disclosed electronic
    communication:
    Attached as part of this electronic communication is a Domain
    Intelligence Note (DIN) [redacted] to the Detroit AOR. Included in the
    DIN is a background [redacted] and a detailed presentation [redacted].
    Furthermore, the DIN shall include an outlook section which will
    identify what the division should be concerned with in the future
    [redacted].
    No. 12-2536            ACLU v. FBI, et al.                                                       Page 12
    The ACLU argues that partial disclosures from other field offices demonstrate that the
    FBI did not fully segregate releasable portions here, but as explained before, those
    releases are distinguishable. As the FBI’s use of public-source information in itself may
    be protected under Exemption 7(A) and the FBI appears to have made a reasonable
    effort to segregate, the FBI’s withholdings were proper.5
    III
    The ACLU argues that the district court should have adopted a public procedure
    for adjudicating § 552(c) disputes, instead of relying on an ex parte, in camera
    declaration by the FBI. The FBI counters that the ACLU’s novel procedure is
    unnecessary, and unsupported by law. We agree with the FBI, and decline to fashion a
    new procedure for § 552(c) issues.
    Section 552(c) permits agencies to “treat [] records as not subject to the
    requirements of [the FOIA]” if they involve 1) a criminal investigation, disclosure of
    whose existence would interfere with enforcement proceedings, 2) personally
    identifiable records of an informant, where records from that informant are specifically
    sought, or 3) documents whose existence is classified. 
    5 U.S.C. § 552
    (c)(1)–(3). In
    contrast with the § 552(b) “exemptions,” the provisions of § 552(c) are referred to as
    “exclusions,” since the requirements of the FOIA do not apply at all. See Benavides v.
    Drug Enforcement Admin., 
    968 F.2d 1243
    , 1248 (D.C. Cir. 1992).
    Before passage of this section, agencies had to rely on the Glomar procedure,
    which permits agencies to refuse to confirm or deny the existence of requested records,
    with a public explanation of the exemption that would apply if the records existed.
    Phillippi, 
    546 F.2d at
    1012–13. The Glomar procedure, however, was not well-suited
    to certain disclosure problems of law enforcement agencies. First, the FBI believed that
    while a Glomar response was appropriate to protect classified intelligence information,
    using such a response to protect “sensitive, ongoing criminal investigations” would not
    5
    The district court did not directly rule on this issue, but the reasoning underlying its decision
    supports a conclusion that there were no significant amounts of nonexempt information. In any case, our
    review is de novo and the record amply supports the FBI’s position.
    No. 12-2536            ACLU v. FBI, et al.                                                         Page 13
    be “in full compliance with the letter and spirit of the FOIA.” Hearings on the Freedom
    of Information Reform Act Before a Subcomm. of the H. Comm. on Gov’t Operations,
    98th Cong. 906-910 (Aug. 9, 1984) (memo from FBI Director Webster to Rep. English).
    Second, unlike the CIA, which can use the exemption for intelligence for almost all its
    records, the FBI has “different exemptions that apply.” 
    Id.
     (response of FBI Director
    Webster). As a result, if the FBI is required to identify a specific exemption for the
    withholding—even hypothetically—the criminal organization or terrorist may “already
    have the information they want.” 
    Ibid.
     (noting such use of the FOIA as “[o]ne of the
    favorite ploys” of organized crime); see also 131 Cong. Rec. S74-02 (daily ed. Jan. 3,
    1985) (statement of Sen. Leahy) (“The withholding of information on the basis of one
    of the enumerated exemptions can often be ineffective in avoiding the anticipated harms
    that would accompany disclosure because invoking the exemption itself becomes a piece
    of the mosaic.”); Attorney General’s Memorandum on the 1986 Amendments to the
    Freedom of Information Act, § G.4 & n.47 (Dec. 1987) (“AG Memo”). In other words,
    a FOIA request may be “formulated in such a way that even the abstract
    acknowledgment of the existence or nonexistence of responsive records would itself be
    a disclosure causing harm cognizable under some FOIA exemption.”6 Dep’t of Justice,
    FOIA Counselor: Questions & Answers, FOIA Update, Spring 1983 at 5,
    http://www.justice.gov/oip/foia_updates/Vol_IV_2/page5.htm.
    In response, a bill was proposed in the Senate that added a categorical exclusion
    from the FOIA for “documents compiled in any lawful investigation of organized crime”
    for five years. Freedom of Information Reform Act, S. 774, 98th Cong. § 13; see also
    131 Cong. Rec. S74-02 (daily ed. Jan. 3, 1985) (statement of Sen. Leahy) (“This bill
    would exclude from disclosure all documents compiled in a lawful investigation of
    organized crime.”). Similar to the current exclusion language (“not subject to the
    6
    This situation may arise where sensitive documents are incidentally responsive to a broad
    request, or where the fact that a matter is classified is itself sensitive to national security. For example,
    a plaintiff may request documents from the FBI on a certain criminal investigation. The case may involve
    potential terrorism connections, which the FBI wishes to keep secret, possibly to avoid tipping off a
    terrorist organization or protect a confidential source. Invoking a § 552(c)(3) exclusion publicly would
    reveal not only the possibility that the case involved sensitive national security matters, but also—unless
    the invocation was done in the most generic and conclusory fashion—details of the national security
    connection.
    No. 12-2536        ACLU v. FBI, et al.                                           Page 14
    requirements of this section”), S. 774 provided that “[n]othing in this section shall be
    deemed applicable” to the specified documents. Ibid. The bill unanimously passed in
    the Senate, but stalled in the House. Nevertheless, a variant of the bill—containing the
    current text of § 552(c)—was added to and passed along with the omnibus Anti-Drug
    Abuse Act of 1986. Pub. L. No. 99-570, § 1801, 
    100 Stat. 3207
     (1986).
    The revised bill did not directly lay out the procedure to be used in applying
    § 552(c). Some of the sponsors explained that “[t]he manner in which the Federal courts
    will review agency refusals to acknowledge or deny the existence of records under these
    provisions [the § 552(c) exclusions] has already been well-established in the leading
    ‘glomarization’ case involving the CIA.” 132 Cong. Rec. H9455-05 (daily ed. Oct. 8,
    1986) (statement of Rep. Kindness); accord 132 Cong. Rec. S14270-01 (daily ed. Sept.
    30, 1986) (statement of Sen. Leahy). Such a procedure would require creating “as
    complete a public record as possible,” although “the district court may have to examine
    classified affidavits in camera and without participation by plaintiff’s counsel.”
    132 Cong. Rec. H9455-05 (daily ed. Oct. 8, 1986) (statement of Rep. Kindness). The
    sponsors also expected that “notice of the authority to refuse to confirm the existence of
    requested records be included in every FOIA response by agencies permitted to exercise
    such authority.” Ibid. The expectation of a blanket notice suggests the sponsors
    expected agencies to resort to the § 552(c) exclusions without specifically informing
    requesters; only if the requester actually challenged an alleged use of § 552(c) would it
    be necessary to resort to a public adjudication of the Glomar question.
    From the start, the Department of Justice and the FBI disagreed with the
    characterization of the § 552(c) exclusions as “Glomar provisions,” considering them a
    “similar, but distinctly different, nondisclosure mechanism[].” AG Memo at n.47.
    Because the ordinary Glomar response is not well-suited to maintaining secrecy in
    certain situations, the FBI extended the rationale of the Glomar response to the response
    itself, responding in such a way that neither confirmed nor denied the use of a § 552(c)
    exclusion. As a result, the standard practice of the FBI since the passage of the statute
    has been to avoid the standard Glomar step of publicly justifying its hypothetical
    No. 12-2536         ACLU v. FBI, et al.                                            Page 15
    withholding under one of the FOIA exemptions, at least for certain particularly sensitive
    categories of information. In this practice, whenever a § 552(c) exclusion is employed,
    the FBI will inform the plaintiff that “there exist no records responsive to your FOIA
    request.” AG Memo, § G.4. If “a FOIA plaintiff raises a distinct claim regarding the
    suspected use of an exclusion,” the “government’s standard litigation policy” is to
    “submit an in camera declaration addressing that claim, one way or the other.” Id. at
    § G.5. The memo emphasizes that it is “critical” that this response be used regardless
    of whether an exclusion has actually been applied, and that the government should urge
    the court to issue a public decision that similarly does not reveal whether an exclusion
    was applied. Ibid. The memo exhorts agency personnel to be “extremely careful” in
    applying this “delicate exclusion mechanism,” as any inconsistencies or patterns in the
    government’s responses could reveal the very information sought to be protected. Id.
    at § G.4. If the court does not find the government’s declaration adequate, the court may
    further order inspection of the underlying documents in camera. As public recognition
    of this order would reveal that an exclusion was invoked, its existence is kept secret from
    the plaintiff. If inspection of the underlying documents showed that the exclusion was
    improperly used, the FBI would be obligated to include the previously excluded
    documents in a Vaughn index, although their ultimate disclosure might be prevented
    under a § 552(b) exemption.
    Courts that have dealt with § 552(c) exclusions have generally approved of the
    FBI’s standard practice. Rahim v. FBI, No. 11-2850, – F. Supp. 2d –, 
    2013 WL 2393048
    , at *13 (E.D. La. May 31, 2013); Mobley v. CIA, Nos. 11-2072, 11-2073, – F.
    Supp. 2d –, 
    2013 WL 452932
    , at *42 (D.D.C. Feb. 7, 2013); ACLU of N.J. v. Dep’t of
    Justice, No. 11-2553, 
    2012 WL 4660515
    , at *5 (D.N.J. Oct. 2, 2012); Steinberg v. Dep’t
    of Justice, No. 93-2409, 
    1997 WL 349997
    , at *1 (D.D.C. June 18, 1997); Beauman v.
    FBI, No. 92-7603 (C.D. Cal. Apr. 28, 1993). Indeed, an agency’s public invocation of
    § 552(c) may be held against it. See Memphis Pub. Co. v. FBI, 
    879 F. Supp. 2d 1
    , 14
    (D.D.C. 2012) (“Instead, [the FBI] responded to plaintiffs’ motion for summary
    judgment with an opposition on the public docket expressly citing the (c)(2) exclusion.
    In other words, this is yet another example of official, public action by the FBI that tends
    No. 12-2536        ACLU v. FBI, et al.                                           Page 16
    to verify the informant’s status and undermine the FBI’s claim that . . . acknowledging
    existence of the records . . . would cause some harm that the exemptions were designed
    to prevent.”). It is clear, however, that while the agency may deny the existence of
    responsive documents to the plaintiff, in no case may the agency conceal this
    information from the court. Islamic Shura Council of S. Cal., 
    779 F. Supp. 2d 1114
    ,
    1124–25 (C.D. Cal. 2011).
    In only one narrow context have courts engaged in public review of the use of
    a § 552(c) exclusion: with respect to subsection (2), dealing with an informant’s records
    after “official confirmation” of that informant. See, e.g., Pickard v. Dep’t of Justice,
    
    653 F.3d 782
    , 788 (9th Cir. 2011); Benavides v. Drug Enforcement Admin., 
    968 F.2d 1243
    , 1248 (D.C. Cir. 1992). Subsection (2) provides that the exclusion applies “unless
    the informant’s status as an informant has been officially confirmed.” 
    5 U.S.C. § 552
    (c)(2). In interpreting this provision, courts have concluded that Congress intended
    that agencies must acknowledge the existence of documents responsive to a request
    about an “officially confirmed” informant, although ultimately disclosure may be
    precluded by Exemptions 7(C) or 7(D). See Benavides, 
    968 F.2d at 1248
    . Here the
    ACLU invokes subsection (3), which deals with classified information. The only caveat
    in that subsection is that the “records remain[] classified information.” 
    5 U.S.C. § 552
    (c)(3). In theory, a public adversarial proceeding could be conducted over whether
    certain hypothesized information remains classified. But here the ACLU has not
    suggested that any excluded materials have been declassified, and thus a public
    proceeding on this matter is unnecessary.
    In the FOIA context, it is well established that in camera review by the district
    court of sensitive national security matters strikes the appropriate balance of protecting
    the secret while providing meaningful judicial review. See Jabara v. Webster, 
    691 F.2d 272
    , 274 (6th Cir. 1982); see also Phillippi, 
    546 F.2d at
    1013–14 (“It is clear that the
    FOIA contemplates that the court will resolve fundamental issues in contested cases on
    the basis of in camera examinations of the relevant documents.”); Patterson v. FBI,
    
    893 F.2d 595
    , 599 (3d Cir. 1990) (“If, however, the agency is unable to articulate
    No. 12-2536        ACLU v. FBI, et al.                                            Page 17
    publicly the specific disclosure it fears and the specific harm that would ensue, then in
    camera inspection of a more detailed affidavit must be resorted to.”) (internal quotation
    marks omitted). However, the ACLU argues that the review by an independent district
    judge is not sufficient, proposing a public adversarial proceeding to adjudicate § 552(c)
    disputes. The problem is, the ACLU’s procedure is neither workable nor protective of
    government secrets, and would provide less effective review than does the district
    judge’s in camera review.
    Under the ACLU’s procedure, the parties would litigate a hypothetical question:
    whether the type of information sought by the plaintiff would be excludable under
    § 552(c), if such records exist. In most cases, this litigation will consist of little more
    than speculation by the plaintiff that the agency is not following the requirements of
    § 552(c), and the agency conclusorily responding that its search for and processing of
    records does follow the requirements. In such a case, only the district court, through in
    camera inspection, could judge the merits of the agency’s response. More imaginative
    plaintiffs might make more specific challenges, positing the existence of a certain class
    of documents and arguing that they should not be excluded. This would ordinarily be
    a difficult exercise—it is hard to know what types of secrets the government is
    concealing—and plaintiffs may need to propose many different kinds of potentially
    withheld information. The government is then tasked with responding to these shots in
    the dark, a strange and difficult task given that few are likely to be tethered to reality,
    and fashioning a response is fraught with concerns of accidentally disclosing the
    existence or nonexistence of secret information.          Only if, as in the “official
    confirmation” cases, there is a narrow basis for the plaintiff’s concern and the
    hypothetical can be readily resolved on a categorical basis, might public litigation on the
    point be warranted (although the agency’s response might still need to be submitted in
    camera). In this case, however, the ACLU has not even proposed a plausible category
    of information that the FBI has withheld. Open-ended hypothetical questions are not
    well suited to the litigation process, and the alternative procedure—in camera review of
    the actual basis for withholding (if any)—more directly serves the FOIA’s goals of
    public disclosure and independent review. As a final note, since the in camera
    No. 12-2536         ACLU v. FBI, et al.                                              Page 18
    declaration of the agency is also available to the appellate court, as it is in this case, the
    ACLU’s contention that the appellate court cannot provide meaningful review is without
    merit.
    On review of the agency’s declaration, we conclude that the district court did not
    err in finding that if an exclusion was employed, it was and remains amply justified.
    IV
    For the foregoing reasons, the judgment of the district court is AFFIRMED.
    

Document Info

Docket Number: 12-2536

Citation Numbers: 734 F.3d 460, 2013 WL 4436533, 2013 U.S. App. LEXIS 17457

Judges: Beckwith, Boggs, McKEAGUE

Filed Date: 8/21/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (17)

Islamic Shura Council v. Federal Bureau of Investigation , 779 F. Supp. 2d 1114 ( 2011 )

Abdeen M. Jabara v. William H. Webster , 691 F.2d 272 ( 1982 )

Joe Hunt v. Central Intelligence Agency , 981 F.2d 1116 ( 1992 )

Robert G. Vaughn v. Bernard Rosen, Executive Director, ... , 484 F.2d 820 ( 1973 )

Harriet Ann Phillippi v. Central Intelligence Agency and ... , 546 F.2d 1009 ( 1976 )

Nos. 89-5342, 89-5781 , 893 F.2d 595 ( 1990 )

Louis Anthony Manna v. United States Department of Justice ... , 51 F.3d 1158 ( 1995 )

Ctr Natl Sec Studies v. DOJ , 331 F.3d 918 ( 2003 )

Students Against Genocide v. Department of State , 257 F.3d 828 ( 2001 )

Nathan Gardels v. Central Intelligence Agency , 689 F.2d 1100 ( 1982 )

Eduardo M. Benavides v. Drug Enforcement Administration , 968 F.2d 1243 ( 1992 )

Harllel B. Jones v. Federal Bureau of Investigation , 41 F.3d 238 ( 1994 )

Mays v. Drug Enforcement Administration , 234 F.3d 1324 ( 2000 )

American Civil Liberties Union v. United States Department ... , 628 F.3d 612 ( 2011 )

Pickard v. Department of Justice , 653 F.3d 782 ( 2011 )

Alan L. Fitzgibbon v. Central Intelligence Agency Alan L. ... , 911 F.2d 755 ( 1990 )

Patrick Rugiero v. United States Department of Justice ... , 257 F.3d 534 ( 2001 )

View All Authorities »