American Civil Liberties Union v. Federal Bureau of Investigation

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0244p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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AMERICAN CIVIL LIBERTIES UNION OF
Plaintiff-Appellant, --
MICHIGAN,
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No. 12-2536
,
>
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v.
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FEDERAL BUREAU OF INVESTIGATION;
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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
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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
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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
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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
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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.