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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, a Michigan nonprofit corporation,
Plaintiff,
vs.

Case No. Honorable

FEDERAL BUREAU OF INVESTIGATION, and UNITED STATES DEPARTMENT OF JUSTICE,

Defendants.

COMPLAINT FOR INJUNCTIVE RELIEF 1. In this Freedom of Information Act, 5 U.S.C. § 552, (“FOIA”) case, the American Civil Liberties Union of Michigan (“ACLU of Michigan”) challenges the government’s failure to promptly release documents pertain ing to the us e of race an d ethnicity to conduct assessm ents and investigations by the Federa l Bureau of Investigation (“FB I”) in Michiga n. Although the FBI’s use of race and ethnicity to collect in formation about and “m ap” racial and ethn ic demographics, “behaviors,” and “life style characteristics” in local communities is the subject of widespread public attention, concern, and debate, the details have been shrouded in secrecy. 2. On July 27, 2010, the ACLU of Michigan filed a FOIA Request (“Request”) seeking the release of records from the FBI’s Detroit Field Office concern ing the FBI’s implementation of its authority under the Domestic Intelligence and Operations Guide (“DIOG”) to use race and ethnicity to map local communities. 3. The FBI has f ailed to fulfill its obliga tion to m ake promptly available th e requested information. Although th e FBI issued a first interim release in Decem ber 2010, it improperly redacted information from those documents. The FBI has also failed to provide any

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information subsequent to the f irst interim release although more than eleven months have

passed since the Request was filed.

4. The ACLU of Michigan is entitled to the records it seeks. These reco rds will

significantly contribute to pub lic understanding of the FBI’s potential “mapping” of local

communities and businesses based on race and ethnicity, and the targeting of ethnic communities

for special information collection, which raise grave civil rights and civil liberties concerns. The

ACLU of Michig an is also ent itled to a waiver of processing fees because the release of the

requested records is in the public interest, and to a limitation of process fees because it is a “news

media” requester.

5. The ACLU of Michigan seeks an injunction requiring Defendants to process its

Request immediately, to release records that h ave been unlawfully withheld, and to rele ase

information that has been unlawfully redacted from released documents. The ACLU o f

Michigan also seeks an order enjo ining Defendants from assessing fees for the processing of the

Request.

JURISDICTION AND VENUE

6. This Court has subject-m atter jurisdiction over this action and personal

jurisdiction over the parties pursuant to

5 U.S.C. § 552(a)(4)(B) and 5 U.S.C. §

552(a)(4)(A)(vii). This Court also has jurisdiction over this actio n pursuant to 28 U.S.C. § 1331

and 5 U.S.C. §§ 701-706. Venue is proper in this di strict pursuant to 5 U.S.C. § 552(a)(4)(B),

which provides jurisdiction in the district court of the United Sta tes in the dis trict where the

complainant has its principal place of business.

PARTIES

7. Plaintiff American Civil Liberties Union of Michigan is a regional af filiate of the

American Civil Liberties Uni on (“ACLU”), which is a nationa l, non-profit, and non-partisan

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organization dedicated to protecting the civil liberties of all people and safeguarding basic constitutional rights to privacy, free expression , and due process. The ACLU of M ichigan is a 501(c)(4), non-profit organization es tablished under the laws of Michigan and has a principal place of business at 2966 Woodward Avenue, Detroit, Michigan 48201. The ACLU of Michigan endeavors to maintain and advance civil liberties, including the freedom s of assoc iation, press, religion, and speech, and the rights of franchise, to due process of law, and to equal p rotection of the laws, for all people throughout the State of Michigan.
8. Defendant Federal Bureau of Investigation is a component of the U.S. Department of Justice (“DOJ”). It is headquartered in W ashington, D.C. and has field offices throughout the country, including in Detroit, Michigan.
9. Defendant DOJ is a Departm ent of the Executive Branch of the United States Government and an agency with in the m eaning of 5 U.S.C. § 552(f)(1). The DOJ is headquartered in Washington, D.C.
FACTUAL ALLEGATIONS The Domestic Intelligence Operations Guide and the FBI’s Use of Race and Ethnicity
10. The public is increasingly concerned about the expansion of FBI surveillance powers and the ways in which th e FBI’s conduct of assessm ents and investigations may violate civil rights and civil liberties, particularly those of racial and ethnic minority communities. In December 2008, the Department of Justice issued revised Attorney General Guidelines, which govern the FBI’s conduct in criminal, national security, and counter-intelligence assessments and investigations. On December 16, 2008, FBI Director Robert Mueller approved the “Domestic Intelligence Operations Guide” or “DIOG”, which is an internal FBI manual that implements the
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Attorney General Guidelines. The DIOG applies to all investigative activities and intelligence collection activities conducted by the FBI within the United States.
11. The DIOG was not m ade publicly available until September 2009, when the FBI released it in heavily-censored form. In Ja nuary 2010, however, the FBI released through FOIA a less-censored version of the DIOG.
12. The DIOG purports to permit the FBI to “identify locations of concentrated ethnic communities in the Field Off ice’s domain”; to collect and analyze racial and ethnic community demographics, including data abou t “ethnic-oriented bus inesses and o ther facilities”; to co llect and analyze racial and ethnic “behavior[s],” “cultural tradition[s],” and “life style characteristics” in local communities; and to m ap racial and ethnic demographics, “behavior[s],” “cultural tradition[s],” and “lif e style ch aracteristics” in lo cal communities. See Fed. Bureau of Investigation, Domestic Intelligence Operations Guide § 4.3 (C)(2), available at http://vault.fbi.gov/FBI%20Domestic%20Investigations%20and%20Operations%20Guide%20% 28DIOG%29. The DIOG details th e FBI’s power to collect, use, and map racial and ethnic data in order to assist the agency’s “domain awareness” and “intelligence analysis.”
13. The FBI’s potential “m apping” of local communities and local businesses based on race and ethnicity, and its ab ility to ta rget “ethnic communities” fo r special collection and mapping of inform ation based on so-called racial and ethnic “behaviors” or “ch aracteristics” raise grave civil rights and civ il liberties con cerns because they could constitute, or lead to, illegal and unconstitutional racial profiling.
14. When the Los Angeles Police Department revealed a similar plan to map Muslim communities by race an d religion, the public outcry was so great that the plan was abandoned immediately. See Richard Winton and Teresa Watanabe, LAPD’s Muslim Mapping Plan Killed,
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L.A. Times, Nov. 15, 2007, available at http://articles.latimes.com/print/2007/nov/15/local/memuslim15.
15. According to census data, the FBI might consider more than one in four Michigan residents to be conside red “ethnic,” and the ir “behaviors,” “cultural traditions,” and “life style characteristics” potentially could be mapped or otherwise analyzed by the FBI. See 2010 Census Redistricting Data (Public Law 94-171) Summary File: Race, U.S. Census Bureau (2010), http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_PL_ P1&prodType=table.
16. Although the DIOG has been in effect si nce December 2008, the public has little information regarding how the FBI has im plemented its authority to collect, use, and map racial and ethnic data in Michigan. The public needs such informa tion, however, to provide accurat e comments to the FBI regarding th e released DIOG, its im plementation with respec t to various racial and ethnic communities, and concerns reg arding the adverse im pact of such activities on civil rights and civil liberties.
17. The FBI’s General Counsel, Valerie Caproni , has made clear that feedback from the public about the DIOG’ s policies and their im plementation could cause the FB I to reassess the DIOG. Ms. Caproni wrote in a Dece mber 15, 2008 letter to Senate Select Committee o n Intelligence Chairman John D. Rockefeller IV that “we unders tand that the expansion of techniques available . . . has raised privacy and ci vil liberties concerns [but] we believe that our policies and procedures will m itigate those concerns.” S. Rep. No. 111-6, at 34 (2009). Ms . Caproni stated that the FBI would reassess the policy judgments m ade in the DIOG, and that the reassessment would be “informed by our experience in the coming year, as well as by comments and suggestions received from Congress and interested parties.” Id. The FBI’s General Counsel
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reaffirmed this in tention in an interview posted on the FBI website by stating, “[t]o the exten t

that the public has comments and concerns, they should let us know because nothing is written in

stone and we hope we’ve gotten it right but if we have n’t gotten it righ t, our goal is to m ake it

right.” Inside the FBI: The New Attorney General Guidelines (Jan. 16, 2009),

http://www.fbi.gov/news/podcasts/inside/the-new-attorney-general-guidelines.mp3/view; see

also Investigative Guidelines Cement FBI Role as Domestic Intelligence Agency, Raising New

Privacy Challenges, Ctr. for De

mocracy & Tech. (Oct. 29, 2008),

http://www.cdt.org/policy/investigative-guidelines-cement-fBi-role-domestic-intelligence-

agency-raising-new-privacy-cha; Press Release, Am . Civil Li berties Union, ACLU Conde mns

New FBI Guidelines (Oct. 3 , 2008), available at http://www.aclu.org/national-security/aclu-

condemns-new-fbi-guidelines; Fact Sheet―New Attorney General Guidelines, Am. Civil

Liberties Union (Oct. 8, 2008), http://www.aclu.org/print/national-security/fact-sheet-new-

attorney-general-guidelines.

18. Public concern about, and m edia interest in, the FBI’s racial and ethnic m apping

program has intensified in recent months in Michigan and other parts of the country, but publicly

available facts remain sparse. See FBI Defends Guidelines Before Senate Testimony, CBS News,

July

27, 2010,

available

at

http://www.cbsnews.com/stories/2010/07/27/national/main6719531.shtml (“While some racial

and ethnic data collection by som e agencies mi ght be helpful in lessening discrim ination, the

FBI's attempt to collect and m ap demographic data using race-based criteria invites

unconstitutional racial profiling by law enforcement . . . ”); Stev e Carmody, ACLU Wants Info

on FBI Racial ‘Mapping’ Program, Mich. Radio, July 28, 2010,

available at

http://www.publicbroadcasting.net/michigan/news.newsmain/article/0/1/1681187/Michigan.New

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s/ACLU.Wants.Info.On.FBI.Racial.%27Mapping%27.Program.; see also Carol Cratty, ACLU

Seeking FBI Records on Race and Ethnicity Data, CNN, July 27, 2010, available at

http://articles.cnn.com/2010-07-27/us/aclu.fbi_1_ethnic-groups-fbi-offices-ethnic-

populations?_s=PM:US; Brent Jones, ACLU Seeks Information About FBI Racial, Ethnic Data

Collection, Baltimore Sun, July 28, 2010, available at http://articles.baltimoresun.com/2010-07-

28/news/bs-md-aclu-fbi-20100728_1_ethnic-data-profiling-aclu-representatives;

Richard

Locker, Tennessee ACLU Asks FBI About Race Data in Localities, The Commercial Appeal,

July 30, 2010, available at http://www.commercialappeal.com/news/2010/jul/30/tennessee-aclu-

asks-fbi-about-race-data-in/; Tim McGlone, ACLU Requests Racial Data From FBI in Norfolk,

Richmond, Virginian-Pilot, July 28, 2010, available at http://hamptonroads.com/2010/07/aclu-

requests-racial-data-fbi-norfolk-richmond; Jonathan Saltzm an, ACLU Affiliates Want FBI to

Disclose Data, Boston Globe, July 27, 2010, available at http://articles.boston.com/2010-07-

27/news/29327598_1_ethnic-groups-affiliates-fbi; Joe Tyrrell, Legal Group, ACLU Accuse FBI

of Targeting Muslims, N.J. Newsroom, July 28, 2010,

available at

http://www.newjerseynewsroom.com/nation/legal-group-aclu-accuse-fbi-of-targeting-muslims;

Gene Warner, Data Mining on Minorities by FBI Raises Profiling Issue, Buffalo News, July 28,

2010, available at http://www.buffalonews.com/city/article82973.ece; Patrick Williams, ACLU

Wants to Know How the FBI Profiles Ethnic Communities, Dallas Observer, A ug. 5, 2010,

available at http://www.dallasobserver.com/2010-08-05/news/aclu-wants-to-know-how-the-fbi-

profiles-ethnic-communities/; Karen Lee Ziner, R.I. ACLU Seeks FBI Records Regarding Ethnic

Profiles of Neighborhoods, Providence J., July 29, 2010,

available at

http://www.projo.com/news/content/ACLU_FBI_07-29-10_FFJBB2M_v15.3cf5baf.html.

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19. In short, th ere is sign ificant and incre asing public conc ern that th e FBI is collecting, using, and mapping racial and ethnic data about local co mmunities as revealed in the DIOG in ways that violate civil rights and civil liberties. The ACLU of Michigan’s FOIA request is intended to obtain infor mation about how the FBI is conduc ting such activities, and the guidelines governing such actions.
The FOIA Request 20. On July 27, 2010, the ACLU of Michigan subm itted the Request pursuant to the FOIA, 5 U.S.C. § 552, and the DOJ im plementing regulations, 28 C.F.R. § 16.1, to Defendant FBI, seeking records pertaining to the FBI’s use of race and ethnicity to conduct assessments and investigations in local communities in Michigan. 21. FOIA compels each ag ency to m ake available inform ation to the pu blic upon request, and carries a strong presumption in favor of disclosure of government records. 22. The FBI is subject to a comprehensive regime of oversight to ensure respect for civil liberties. This oversight reg ime includes the FOIA, which “provides the public with access to FBI documents not covered by a specific statutory exemption.” DIOG § 4.1(C)(3). 23. The Request seeks legal m emoranda, procedures, policies, directives, practices, guidance, and guidelines concerning the following types of information that the FBI may collect, map or otherwise use in the course of assessm ents and investigations purs uant to the authorities described in the DIOG: (a ) racial and ethn ic information; (b) “ethnic- oriented” businesses or other “ethnic-oriented” facilities; (c) “[f]ocused behavioral characteristics reasonably believed to be associated with a par ticular criminal or terrorist element of an ethnic comm unity”; and (d) “behavioral and cultural information about ethnic or racial co mmunities that is reasonably likely to be exploited by criminal or terrorist groups who hide within those communities.” It also seeks
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records concerning the information that the FBI Field Office in Michig an has collected or mapped pursuant to the authorities described in the DIOG. The Request additionally seeks information about which, if any, communities in Michigan the FBI Field Office has collected or mapped racial or ethnic inform ation, and the m aps it has created based on any data collected. Finally, the Request seeks docum ents pertaining to how the FBI is authorized to us e the racial and ethnic data it collects pursuant to the authorities described in the DIOG.
Request for a Public Interest Fee Waiver 24. The ACLU of Michigan sought a w aiver of any docum ent search, review, and duplication fees on the grounds that disclosure of the requested records is in the public interest. 25. The ACLU of Michigan is entitled to a waiver of processing fees because the disclosure of the information sought by the request is in the public interest because “it is likely to contribute significantly to public understanding of the operations or activities of the governm ent and is not prim arily in the commercial interest of the requestor.” 5 U.S.C. § 552( a)(4)(A)(iii); see also 28 C.F.R. § 16.11 (k)(1). 26. Disclosure of the requested reco rds will contribute significantly to th e public’s understanding of the FBI’s co llection and m apping of racial and ethnic data in local communities. 27. Disclosure is not in the ACLU of Michigan’s commercial interest. The ACLU of Michigan summarizes, analyzes, explains and disseminates the information it gathers through the FOIA at no cost to the public.
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Request for a Limitation of Fees Based on News Media Requester Status 28. The ACLU of Michigan s ought a limitation of fees on the ground that the ACLU of Michigan qualifies as a “news media” requester. See 5 U.S.C. § 552(a)(4)(A)(ii); see also 28 C.F.R. § 16.11(d). 29. The ACLU of Michigan is entitled to a waiver of any document reproduction fees because the records so ught by the FOIA Reques t are not sought for commercial use and th e request is made by a representative of the news media. 5 U.S.C. § 552(a)(4)(A)(ii)(II). 30. The ACLU of Michigan is a repres entative of the news m edia for purposes of FOIA because it is an e ntity that gathers information of potentia l interest to a seg ment of the public, uses its editorial skills to turn raw materials into a distinct work, and distributes that work to an aud ience. The ACLU of Michig an publishes newsletters, news briefs, right-to-know documents, and other educational and inform ational materials that are routinely and widely disseminated to the public through a variety of channels.
Agency Response 31. By letter dated July 30, 2010, the FBI acknowledged receipt of the Request. 32. By letter dated August 6, 2010, the FBI stated that it was searching its Central Records System for the infor mation requested by the ACLU of Michigan and assigned tracking number 1151941-000 to the Request. 33. By letter dated November 4, 2010, the FBI indicated that it was still searching for documents and that once the search process wa s completed, the documents would be forwarded to the “perfected backlog” to await assignment to an analyst. As of Novem ber 3, 2010, the FBI already had exceeded the generally applicab le twenty-day statutory deadline for process ing standard, non-expedited FOIA requests. See 5 U.S.C. § 552(a)(6)(A)(i).
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34. Finally, more than four months later, by letter dated December 22, 2010, David Hardy, Section Chief of the Record/Inform ation Dissemination Section of the Records Management Division of the FBI, issued Plaint iff a “f irst interim release” consisting of 298 pages. Mr. Hardy stated that certain information was withheld from the documents pursuant to FOIA exemptions set forth in 5 U.S.C. § 552(b)(2), (6), (7)(C) and (7)(E). Mr. Hardy also stated that Plaintiff’s request for a fee waiver “remains under consideration,” and will be decided “once all responsive material has been received and reviewed.”
35. The 298-page first interim release include s duplicate pages, redacted in part, consisting of slideshows describing the DIOG for FBI agents and other internal audiences. None of the documents are specific to Michigan or the Detroit Field Office.
36. As of the date of this filing, the FBI has not produced any additional documents or informed Plaintiff of an anticipated date for the completion of the processing of the Request.
37. Upon information and belief, Defendants are improperly withholding the records sought by Plaintiff’s Request and have docum ents not included in the firs t interim release that are responsive to the Request, in cluding documents generated by th e Detroit Field Office and/or documents that detail how the FBI has implemented its authority under the DIOG to use race and ethnicity to conduct assessm ents and investigations in Michigan. The FB I’s description of the 298 pages as a “first interim release” concedes as much.
Exhaustion 38. Plaintiff has exhausted all applicable administrative remedies with respect to the Request. 39. By letter dated February 16, 2011, Plaintiff timely appealed the FBI’s withholding of information from the documents in the first interim release; its failure to timely respond to the
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FOIA Request, to m ake the re quested information promptly available, and to refrain from

improperly withholding documents; and its failure to decide and/or grant Plaintiff’s requests for

a fee waiver and for a limitation of processing fees.

40. By letter dated February 22, 2010, the DOJ

Office of Infor mation Policy

acknowledged receipt of the ACLU of Michigan’s appeal.

41. The ACLU of Michigan spoke with a DOJ official by phone on May 11, 2011

regarding the status of its appeal. The DOJ offi cial indicated that the DOJ’s best “estimate” was

that it might issue a decision on the appeal within approximately four weeks.

42. By letter dated May 23, 2011, Mr. Hardy stated that “[a]ddition al material is

currently being reviewed by an analyst.”

43. The DOJ’s response to Plaintiff’s appeal is inadequate under the FOIA, which

requires that appeals be decided in twenty days absent unusual circumstances. 5 U.S.C. §

552(a)(6)(A)(ii).

44. This action is ripe for review. Any pe rson making a FOIA request has exhausted

his administrative remedies if the agency fails to comply with the time limits for consideration of

FOIA requests and appeals stated therein. 5 U. S.C. § 552( a)(6)(C)(i). The DOJ s hould have

responded to the appeal no later th an March 20, 2011, twenty busin ess days fro m receipt on

February 16, 2011.

45. Defendants’ letters d ated July 30, 2010, August 6, 2010, Decem ber 22, 2010,

February 22, 2011 and May 23, 2011, do not identify any “unusual circumstances” arising from

the Request.

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Timeliness 46. This action is timely. Lawsuits under the FOIA are governed by a six year statute of limitations.
CAUSES OF ACTION 47. Plaintiff incorporates all preceding allegations by reference. 48. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of the requested documents under 5 U.S.C. § 552(a)(4)(B) because the FBI continues to i mproperly withhold and/or delay the process ing of agency r ecords in violation of th e FOIA. Plaintiff will also suffer irreparable injury from , and have no adequate legal r emedy for, the FBI’s illegal withholding of and prolonged delay in producti on of governm ent documents pertaining to the racial and ethnic mapping of individuals and communities in Michigan. 49. Defendants’ failure to rele ase records responsive to the Request violates the FOIA, 5 U.S.C. § 552( a), and the correspondi ng agency regulations, 28 C.F.R. § 16.1. The FBI’s description of the 298-page release as a “first interim release” im plies that there are additional documents responsive to the request that have not yet been released to Plaintiff. 50. Defendants’ failure to tim ely respond to Plaintiff’s request vi olates the FOIA, 5 U.S.C. § 552(a)(6)(A), and the corresponding agency regulations, 28 C.F.R. § 16.6(b). 51. Defendants’ failure to m ake promptly available the records sought by Plaintiff’s request violates the FOIA, 5 U.S.C. § 552(a)(3)(A), and the corresponding agency regulations, 28 C.F.R. § 16.6(b). 52. Defendants’ improper withholding of information, including information redacted from the first interim release, violates the FOIA, 5 U.S.C. § 552(a)(4)(B). 53. Defendants’ failure to make a reasonable effort to search for records responsive to the Request is a violation of the FOIA, 5 U.S.C. § 552(a)(3)(C). The “first interim release” does
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not include any inform ation from the Detroit Fiel d Office, nor anything specific to Defendants’ use of their authorities under the DIOG in Michigan.
54. Defendants’ failure to grant Plaintiff’s request for a public interest fee waiver violates the FOIA, 5 U.S.C. § 552(a)(4)(A)(iii), and the corr esponding agency regulations, 28 C.F.R. § 16.11(k)(1). Mr. Hardy’s statement that a decision as to the fee waiver requ est “will be made once all respon sive material has been received and reviewed” does not support an alternative conclusion. Receipt and review of the docum ents is not a factor in determ ining whether requests for a public interest fee waiv er should be granted pursuant to 5 U.S.C. § 552(a)(4)(A)(ii).
55. Defendants’ failure to grant Plaintiff’s reque st for a limitation of fees violates the FOIA, 5 U.S.C. § 552(a)(4)(A)(ii), and the co rresponding agency regul ations, 28 C.F.R. § 16.11(d).
56. Defendants have forfeited any right to collect search or duplication fees by failing to timely respond to the Request. 5 U.S.C. § 552(a)(4)(A)(viii).
57. Defendants’ response to Plaintiff’s appeal of the first interim release is inadequate and violates the FOIA, 5 U.S.C. § 552(a)(6)(A).
RELIEF REQUESTED WHEREFORE, Plaintiff respectfully requests that this Court: (1) Order Defendants to conduct a thorough search for all responsive records; (2) Order Defendants to immediately process all requested records; (3) Order Defendants to promptly disclose the requested records in their entirety and to make copies available to Plaintiff; (4) Enjoin Defendants from withholding records responsive to the Request;
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(5) Enjoin Defendants from charging Plaintiff fees for processing the Request;

(6) Enter a preliminary and permanent injunction against the Defendants ordering the

relief requested herein;

(7) Award Plaintiff its reasonable attorneys’ fees and other litigation costs incurred in

this action; and

(6) Grant such other relief as the Court deems just and proper.

Respectfully submitted,

/s/Stephen C. Borgsdorf Stephen C. Borgsdorf (P67669) DYKEMA GOSSETT PLLC Cooperating Attorneys, American Civil Liberties Fund of Michigan 2723 South State Street, Suite 400 Ann Arbor, MI 48104 (734) 214-7663 sborgsdorf@dykema.com
/s/Mark P. Fancher Mark P. Fancher (P56223) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6822 mfancher@aclumich.org msteinberg@aclumich.org
/s/Nusrat Choudhury Nusrat Choudhury (Admission Pending) Hina Shamsi (Admission Pending) National Security Project American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 519-7876 nchoudhury@aclu.org hshamsi@aclu.org

July 20, 2011

Attorneys for Plaintiff

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN,

Pl

aintiff,

v.

Case No. 11-13154

Hon.

Lawrence P. Zatkoff

FEDERAL BUREAU OF INVESTIGATION, and UNITED STATES DEPARTMENT OF JUSTICE

Defendants. ____________________________________/

OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse, in the City of Port Huron, State of Michigan, on September 30, 2012

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is bef ore the Court on the parties’ cross Motions for Summ ary Judgment [dkt 19,

25]. The parties have fully briefed the motions. Th e Court finds that the fact s and legal arguments are

adequately presented in the partie s’ papers such that the d ecision process would not be significantly

aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1 (f )(2), it is hereby ORDERED that

the m otions be reso lved on the br iefs subm itted. For the f ollowing reasons , Def endants’ m otion is

GRANTED and Plaintiff’s motion is DENIED.

II. BACKGROUND

A. FACTUAL BACKGROUND

This case involves a dispute over records re quested by Plaintiff through the Freedom of

Information Act (“FOIA Request”), 5 U.S.C. § 552(b), et seq. On July 27, 2010, Plaintiff subm itted

the FOIA Request to Defendant FBI, seeking docum ents related to the FBI’s “use of race and ethnicity to conduct assessments and investigations in local communities in Michigan.” On November 4, 2010, the FBI informed Plaintiff that it was searching for documents responsive to Plaintiff’s request.
According to the declaration of David M. Hardy, Section Ch ief of the Record/Inf ormation Dissemination Section of the FBI, the FBI then con ducted a s earch of its Ce ntral Records System for documents potentially responsive to the FOIA Re quest. The FBI also perfor med an individualized search inquiry by issuing Electronic Communications (“ECs”) to th e Director’s Office, the Directorate of Intelligence, the Office of the General Counsel, and to the Detroit field office (“Detroit”). The search identified 1,553 pages of records potentially responsive to Plaintiff’s FOIA request.
On December 22, 2010, the FBI released 298 pages to Plaintiff (“First Release”) and advised that some of the pages contained redactions of in formation withheld pursuant to exem ptions contained in 5 U.S.C. § 552(b). O n February 16, 2011, Plainti ff sent a letter to the FBI appealing the First Release (“A ppeal”), alleging the FBI’s “Failure to Tim ely Res pond, Failure to Make Prom ptly Available the Records Sought, Im proper Withholding of Documents, and Failure to Grant Plaintiffs’ Request for a W aiver and for a Lim itation of Proc essing Fees in Response to [the FOIA Request]” .1 On February 22, 2011, the Departm ent of Jus tice’s (“D OJ”) Office of Information Policy acknowledged the Appeal and assigned it a tracking number. On May 23, 2001, the FBI wrote Plaintiff and advised that “[a]dditional material is currently being reviewed by an analyst.”
Subsequently, the parties agreed that the FB I would produce additional responsive, nonexempt documents on September 29, 2011 and October 31, 2011. The FBI did so, releasing 12 and 46 pages, in full or in part, on those respective dates. Thus, of the 1,553 pages of potentially responsive records subject to the FOIA Request, 356 were released in full or in part, 1,007 were withheld in full pursuant
1 The fee waiver and processing fees claims have since been resolved. 2

to 5 U.S.C. § 552(b), and 190 we re withheld as duplicates. Defendants assert that the portions withheld are exempt from disclosure under 5 U.S.C. § 552(b). B. PROCEDURAL BACKGROUND
On July 21, 2011, Plaintiff filed its complaint for injunctive relief in this Court, challenging Defendants’ actions in response to the FOIA request. In its complaint, Plaintiff alleges that Defendants: (1) Improperly withheld and/or dela yed the processing of agency record s in violation of the FOIA; (2) failed to release records responsive to the Request; (3) failed to timely respond to Plaintiff’s request; (4) failed to m ake promptly available the records sou ght by Plaintiff’s request; (5) im properly withheld information; (6) failed to m ake a reasonable effort to search for records respo nsive to the Request; (7) failed to g rant Plain tiff’s reques t f or a public inte rest f ee waiv er; and (8) f ailed to gran t Plain tiff’s request for a limitation of fees.
On March 9, 2012, upon stipulation of the parties, the Court entered an Order setting forth a jointly agreed upon briefing schedule for the parties’ cross motions for summary judgment. The issues presented by the parties in their r espective motions are: (1) w hether the FBI is a proper Defendant in this case; (2) whether Def endants’ Search for FO IA Material was Adequate ; (3) whether Defendants properly withheld m aterial under FOIA Exe mptions 1, 7(A), and 7(E); and (4) how the Court should address Defendants’ Potential reliance on § 552(c) of FOIA, which allows an agency to “exclude,” rather than “exempt,” certain material from FOIA.
III. LEGAL STANDARD Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if a ny, show that there is no genuine issue as to any material fact and the m oving party is entitled to judg ment as a m atter of la w.” Fed. R. Civ. P. 56(c); Thompson v. Ashe , 250 F .3d 399, 405 (6th Cir. 2001). The m oving party bears the initial burden of demonstrating the absence of any ge nuine issue of material fact, and all inferences should be made in
3

favor of the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party discharges its burden by “‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonm oving party’s case.” Horton v. Potter , 369 F.3d 906, 909 (6th Cir. 2004) (citing Celotex, 477 U.S. at 325).
Once the moving party has m et its burden of production, the burden th en shifts to the nonmoving party, who “m ust do m ore than sim ply show that there is som e metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). The nonmoving party must “go beyond the pleadings and by . . . affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (citing Fed. R. Civ. P. 56(e)). “[T]he mere existence of a scintilla of evidence in support of th e [nonm oving party ’s] position will b e insufficien t [to defeat a m otion for summary judgm ent]; there m ust be evidence on which the jury could reasonably find for the [nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
IV. ANALYSIS A. WHETHER THE FBI IS A PROPER DEFENDANT IN THIS CASE
Defendants seek to dism iss the FBI from this cas e, contending that the DOJ is the only proper Defendant because “[t]he FBI is a component of the DOJ and not an ‘agency’ as defined by the FOIA,” and because dismissing the FBI as a Defendant wo uld have “no legal effect” on th is case. The Court disagrees. Based upon the Court’ s plain reading of the def inition of “agency,” and upon sim ilar determinations made by other courts, the Court finds that the FBI is an “agency” for FOIA purposes.
The FOIA incorporates the definition of “agency” that appears in the Administrative Procedure Act (“APA”). See 5 U.S.C. § 552(f) (citing 5 U .S.C. § 551(1)). The APA definition of “agency” includes “each authority of the Government of the United States, whether or not it is w ithin or subject to review by another agency.” 5 U.S.C. §551(1) (em phasis added). First, it would be difficult to argue
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that a “th reat-focused n ational secur ity and law enf orcement organiz ation [ that is th e] principal investigative arm of the U.S. Depar tment of Ju stice and a f ull m ember of the U.S. Inte lligence Community”2 is not an “authority” of the U.S. Govern ment. Second, while the definition in §551(1) expressly excludes several governm ent entities from the definition of “agency,” including the Congress, U.S. Courts, and m ilitary comm issions, 5 U.S.C. §551(1)(a)–(h ), none of the exclus ions apply to the FBI. Thus, based solely on the text of the defi nition, the FBI is a proper Defendant because it is an authority of the U. S. government, irrespective of the f act that it is a component of the DOJ. See Cloonan v. Holder, 768 F. Supp. 2d 154, 162 (D.D.C. 2011) (“naming com ponents as defendants . . . is appropriate since the statute’s plain language is clear”).
Additionally, other courts have held that the FB I is a proper defendant for purposes of FOIA. See Peralta v. U.S. Attorney’s Office, 136 F.3d at 173 (D.C. Cir. 1998) (“we have observed previously that FBI is ‘clearly . . . c overed’ by the FOIA”) (citing McGehee v. CIA, 697 F.2d 1095 (D.C. Cir. 1983)); Lair v. Dep’t of Treasury, No. 03–cv–827, 2005 W L 645228, at *3, 2005 U.S. Dist. LEXIS 4645, at *8 (D.D.C. Mar. 21, 2005) (“naming components [as defendants] is proper”). The Court also notes that the FBI has litigated numerous FOIA cases in its own na me be fore a num ber of courts including the Supreme Court and th e Sixth Circuit “with the DOJ as one of its com ponents appearing as counsel.” Peralta, 136 F.3d at 173–74. As such, the Court finds that the FBI is a proper Defendant in this case. B. WHETHER DEFENDANTS’ SEARCH FOR FOIA MATERIAL WAS ADEQUATE
Plaintiff argues that Defendants’ search for potentially respo nsive reco rds was inadequate under the FOIA. The Court finds, however, that it need not address the merits of Plaintiff’s inadequate search claim because Plaintiff has failed to exhaus t its adm inistrative rem edies with res pect to th is claim.
2 See What is the FBI?, available at http://www.fbi.gov/about-us/faqs. 5

A plaintiff is required to exhaus t administrative remedies before seeking judicial review of a FOIA request. See 5 U.S.C. § 552( a)(6)(A)(i)–(ii). A plain tiff’s failure to exhaust adm inistrative remedies precludes a federal court from exercising subject-matter jurisdiction over the party’s FOIA claims. See id. The FOIA statu te is clear that a re quester has constructively e xhausted administrative remedies when the agency fails to sub stantively determine an ap peal within twenty days. 5 U.S.C. § 552(a)(6)(A)(ii) (appeal mu st be decided within twenty working days); id. § 552(a)(6)(C)(i) (FOIA requester “shall be deem ed to ha ve exhausted” adm inistrative rem edies when the ag ency fails t o comply with 5 U.S.C. § 552(a)(6)(A)(ii)). A FOIA requester therefore “may seek judicial review” when an agency has no t decided an app eal within the required twenty days. Oglesby v. U.S. Dep’t. of Army, 920 F.2d 57, 64 n.8 (D.C. Cir. 1990).
After the F BI’s Firs t R elease, Plain tiff tim ely filed an app eal, ch allenging Defendants’ purported:
Failure to Tim ely Respond, Failure to Ma ke Promptly Available the Records Sought, Improper W ithholding of Docum ents, and Failu re to Grant P laintiff’s Request for a Waiver and for a Limitation of Processing Fees in Response to [the FOIA Request]. For each of these claim s, Plaintiff provided a co rresponding FOIA section th at Defendants alleg edly violated. At the time Plaintiff filed this case, Defendants had yet to decide the Appeal, which had been pending for alm ost five months. Pl aintiff thus constructively exhauste d all the claim s raised in its Appeal. See Oglesby, 920 F.2d at 64. The Court notes, howev er, that nowhere in the Appeal does Plaintiff question or challenge the adequacy of Defendants’ search. In contrast, Plaintiff’s Complaint includes an express challenge to the adequacy of Defendants’ search, citing a violation of 5 U.S.C. § 552(a)(3)(C). Plain tiff’s Appeal m ade no m ention of § 552(a)(3)(C). If Plaintiff never notified Defendants of its objection to their search, then Plaintiff did not appeal this specific issue and thus could not have ad ministratively exhausted this claim. Therefore, the Court lacks subject-matter jurisdiction over Plaintiff’s search claim.
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The Court turns next to th e primary issue in this case—whether Defendants properly withheld

material in connection with Plaintiff’s FOIA Request.

C. MATERIAL WITHHELD BY DEFENDANTS

The m aterial withheld by Defendants (“Materi al”) com prises five types of infor mation

maintained by the FBI: ( 1) the Domestic Inves tigation and Operations Guide (“DIOG”) Training

Materials; (2) Program Assessments; (3) Electronic Communications; (4) Domain Intelligence Notes;

and (5) Maps. Defendants withheld this information, in full or in part, pursuant to FOIA Exemptions 1,

6, 7(A), 7(C), 7(D), and 7(E). The Court notes that Plaintiff does not oppose Defendant’s motion with

respect to Exemptions 6, 7(C) and 7(D). Rather, Plaintiff takes issue with: (1) Defendants’ reliance on

Exemptions 1 and 7(A) in withholding mate

rial from Program Assessm ents, Electronic

Communications, Domain Intelligence Notes, and Maps; and (2) Defendants’ reliance on Exe mption

7(E) in withholding certain DIOG Training Materials.

When an agency makes a withholding pursuant to a FOIA exemption, the agency must explain

the exemptions claimed and the applicability of the exem ptions. See U.S. Dep’t of Justice v. Reporters

Comm. for Freedom of th e Press, 489 U.S. 749, 753 (1989). “Ordinaril y, the agency may justify its

claims of exem ption through detailed affidavits, w hich are entitled to a pr esumption of good faith.”

Rugiero, 257 F.3d at 544. “Unless evidence contradicts th e government’s affidavits or establishes bad

faith, the court’s primary role is to review the adequacy of the affidavits and other evidence.” Id.

Here, Defendants explained the exemptions th ey relied upon to withhold m aterial via the declaration from David M. Hardy3 (“Hardy Declaration”) and an accom panying Vaughn Index4. See,

e.g., Dkt. 19, ex. 1, 2. Thus the Court’s role shall be to review the Hardy Declaration and the evidence

3 Hardy is the FBI’s Section Chief of the Record/Information Dissemination Section, Records Management Division. 4 A“Vaughn Index” is a routine device through which an agency describes the documents responsive to a FOIA request and indicates the reasons for redactions or withholdings in sufficient detail to allow a court to make an independent assessment of the claims for exemptions from disclosure under FOIA. Rugiero, 257 F.2d at 544 (citations omitted).
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submitted to determine whether anything contradicts Defendants’ affirmations or establishes bad faith. The Court will uphold th e government’s position if it “[1] fairly describes the content of the m aterial withheld[,] . . . [2] adequately states its ground for nondisclosure, and . . . [3] those grounds are reasonable and consistent with the applicable law[.]” Rugiero, 257 F.3d at 544 (quotations omitted). D. DEFENDANTS’ RELIANCE ON EXEMPTION 1
Defendants withheld a significant portion of material by relying on FOIA Exemption 1, which allows an agency to withhold “m atters that are—(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly cl assified pursuant to such an Executive order.” 5 U.S.C. § 552(b)(1) (em phasis added). “In determ ining the applicability of Exe mption 1, a rev iewing court should acco rd substantial weight to the agency’s affidavits regarding classified information.” Jones v. FBI, 41 F.3d 238, 244 (6th Cir. 1994) (internal quotation m arks omitted). This is becau se courts “lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case.” Krikorian v. Dep’t of State, 984 F.2d 461, 464 (D.C. Cir. 1993).
In short, Exemption 1 exempts di sclosure of material that has been deem ed “classified” under criteria set forth in an E xecutive Order. In this case , the withheld inform ation was classified under Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009) (am ended at 75 Fed. Reg. 1013) (“E.O. 13,526”). Information is deemed classified by E.O. 13,526 if:
(1) an original classification authority is classifying the information; (2) the inform ation is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one or more of the categories of information listed in § 1.4 of this order; (4) the orig inal classification authority determines that th e unauthorized disclosure of the inform ation reasonably could be expected to result in da mage to the nationa l
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security, which includes defe nse ag ainst transnational te rrorism, and the original classification authority is able to identify or describe the damage.
Exec. Order No. 13,526 § 1.1(a). Section 1.4 of E.O. 13,526 states as follows:
Sec. 1.4. Classification Categories. Information shall not be considered for classification unless its un authorized disclosure could reasonably be expected to cause identifiable or describable dam age to the na tional security in accordance with section 1.2 of this order, and it pertains to one or more of the following:
(a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology; (d) foreign relations or f oreign activities of the U nited States, includ ing confidential sources; (e) scientific, technological, or economic matters relating to the national security; (f) United States Government programs for safeguarding nuclear materials or facilities; (g) vulnerabilities or capabilities of system s, installa tions, inf rastructures, projec ts, plans, or protection services relating to the national security; or (h) the development, production, or use of weapons of mass destruction.
Exec. Order No. 13,526 § 1.4.
As detailed below, the Court finds that the four categories to which Hardy applied Exemption
1—Domain Inte lligence Notes, Progr am Assessment s, Elec tronic Comm unications, an d Maps—all
contain information that (1) relates to intelligence activities, sources, and methods and/or (2) foreign
relations or foreign activities of the United States.
1. Domain Intelligence Notes
According to Hardy, Dom ain Intelligence No tes (“DINs”) are FBI analysts’ m ethod of
collecting and recording inform ation gathered on a particular group or elem ent through various
intelligence techniques.
Hardy dete rmined that the disclosu re of cer tain DINs could dam age foreign relations.
Specifically, he determ ined that the notes that contain “sens itive intelligence inf ormation gath ered
about, or from , a foreign country could injure di plomatic relations between the U.S. and those
countries.” Hardy Decl. ¶ 54. Har dy concluded that revealing such inform ation could, among other
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things, lead to diplom atic and econom ic retaliation against the United States. Id. ¶ 55. The FBI

withheld the documents cited in paragraph 54 of the Hardy declaration “so as not to jeopardize fragile

relationships” with foreign governments. Hardy Decl. ¶ 54.

Hardy also includes detailed descriptions of the DINs in question. For instance, he notes that

document DE-GEOMAP-744-754 “identifies and analyzes the presence and threat posed to certain

industries and areas in Mi chigan” by foreign entities. Hardy Decl . ¶ 60. Hardy reasoned that “[i]f the

subjects which the analyst is studying were to

know the sources of the analyst’s intelligence

information or the m ethodology and tools which the analyst uses to m ake his/her predictions and

recommendations, those subjects would easily be able to change their behavior s and go undetected.”

Id. ¶ 51. He states that, in turn, this would da mage the FBI’s ability to protect the United States’

national security against hostile entities and to detect and appreh end criminals. To pro tect the FBI’s

ability to gather intelligence, Hardy classified this DIN.

2. Program Assessments

Hardy states next that the FBI withheld por tions of Program Assessments (“Assessm ents”)

under Exemption 1 to protect intel ligence gathering ab ilities and operations and foreign relations. An

Assessment discusses the threats and vulnerab ilities, key concerns, and priorities for the FBI’s Detroit

Field Office’s area of operations.

Again, Hardy uses concrete illustrations of hi s reasons for withholding certain Assessments.

For instance, he identifies document DE GEOMAP 1346-1369 as an assessm ent of the threat posed by

terrorism to the Detroit Field Offi ce’s area of responsibility, and notes that it discusses the threats,

vulnerabilities, and knowledge gaps concerning te rrorism r elated m atters. He found that this

Assessment contains information that perta ins to th e FBI’s intelligence ac tivities and m ethods in that

area and that disclosure of this information would cripple the FBI’s efforts to stay ahead of perpetrators

that threaten national security.
10

Hardy also found that the Assessm ents contain sensitive intelligence information about foreign relations, as they discuss foreign threats, including a foreign country’s intelligence gathering efforts and the FBI’s counterintelligen ce activities. From this, Hardy reas oned that disclosure could jeopardize foreign relations, and, by extension, national security.
3. Electronic Communications The Electronic Communications (“ECs”) at issue document the analyses and work produ ct of the FBI agents and analysts involved in the intel ligence activities that gath er information on various threats. Hardy states that the ECs in question contain information that pertains to the FBI’s intelligence activities and m ethodologies in the Detroit area of ope rations, and that their disclosure would cripple the FBI’s efforts to stay ahead of perpetrators that threaten national security. Again, Hardy provides detailed descriptions of the ECs in question. For example, he notes that document DE GEOMAP-483-485 was “created for the purpose of opening an assessm ent of international terrorism crimes/threats in the Detroit Field Office’s area of responsibility, to determ ine the scope of the international terrorism threat posed by international terrorist groups conducting recruitment, radicalization, fund-raising, or violent terro rist acts within the state of Mich igan.” Hardy Decl. ¶ 60. 4. Maps The maps at issue show a geographic area and include notations regarding information relevant to the FBI’s investigations or intelligence gathering activities. For example, the map identified as DEGEOMAP 738 shows the Detroit area and notations regarding certain businesses located there. Hardy states that Maps “provide a view of the intelligence data an an alyst collects in a visual format [and] are another m ethod of utilizin g the high ly sensitive inte lligence too ls availab le to [the analys t].” Hardy Decl. ¶ 50. Disclosure of the inform ation in the maps would reveal the sources and focus of the FBI’s
11

intelligence activities, and would frustrate its ability to “protect the United States’ national security and detect and apprehend violators of criminal laws.” Id. ¶ 51.
5. Conclusion Regarding Defendants’ use of Exemption 1 In his declaration, Hardy states that he is “an original classi fication authority,” and that he personally reviewed the withheld inform ation a nd determ ined that the infor mation was under the control of the U.S. Governm ent, was classified, an d required th e classification marking of “Secret.” Hardy declares that he made certai n that all of the procedural and administrative requirements of the Executive Order were followed, including proper identification and marking of documents. As to the substance of the m aterial, Hardy determ ined that the m aterial is exem pt f rom disclosure pursuant to § 1.4 of E.O. 13,526, since th e material involves intelligence activities, sources, or m ethods and/or relates to fore ign relations or foreign activities of the United S tates, including confidential sources. Fro m this, Hard y determined that disclosing this m aterial could reasonably be expected to cause serious damage to national security. Giving substantial weight to Hardy’s statements, the Court finds that Hardy fairly describes the content of the material withheld, that he adequately states the FBI’s ground for nondisclosure, and that those grounds are reasonable and consistent with the criteria set forth in E.O. 13,526. See Rugiero, 257 F.3d at 544 (quotations om itted). Ad ditionally, th ere appears to be no evidence contradicting the Defendants’ declaration or establishing bad faith. Id. As such, the Court finds that Defendants have properly invoked Exemption 1. E. DEFENDANTS’ RELIANCE ON EXEMPTION 7(A) Plaintiff disputes Defendants’ use of Exem ption 7(A) to withhold inform ation from DI Ns, Assessments, ECs and Maps. Exem ption (7)(A) ex empts “records com piled for law en forcement purposes, but only to the extent that the production of such law enforcem ent records or information . . . could reason ably be exp ected to interfere with e nforcement proceed ings[.]” The Sixth Circuit has
12

adopted a per se rule that designates any docum ents compiled by a law enforcem ent agent [including an FBI agent] as being “compiled for law enforcement purposes.” Jones, 41 F.3d at 245–46.
Exemption 7(A) is in tended to m ake cle ar that investig ative f iles that do not pertain to a pending or p rospective enforcement proceeding are not exem pted. Robbins Tire, at 230–232. Thus, “[l]aw enforcement records cannot ‘reasonably be expected to interfere with enforcement proceedings’ . . . un less there is at least ‘a reaso nable chan ce that an en forcement proceeding will occu r[.]’” Dickerson v. Department of Jus tice, 992 F.2d 1426, 1430 (6th Cir.1993), (quoting Nevas v. Dept. of Justice, 789 F.Supp. 445, 448 (D.D.C.1992)).
Additionally, “interference” need not be es tablished on a docum ent-by-document basis; instead, cou rts m ay deter mine the ex emption’s ap plicability “g enerically,” based on the catego rical types of records involved. Robbins Tire & Rubber Co ., 437 U.S. at 236; see also Reporters Comm ., 489 U.S. at 776–80. Consequently, courts m ay accept affi davits that specify th e distinct but generic categories of documents at issue and the harm that would result from their release, rather than requiring extensive, detailed itemizations of each docum ent. See Dickerson v. Dep’t of Justice , 992 F.2d 1426, 1431 (6th Cir. 1993) (“Where exem ption (7)(A) is concer ned, as a practical m atter, it is often feasible for the courts to m ake generic determ inations about interference with enf orcement proceedings. ”) (internal quotation marks omitted from parenthetical).
According to Hardy, the FBI caref ully reviewed all responsive information in this case to determine if the information was current intelligence information being used in pending or prospective investigations or prosecutions. The FBI’s Record /Information Dissemination Section consulted with the Detroit Field Office and confirmed that the documents described in paragraph 60 are all being used by intelligence analysts and special ag ents for ong oing investigations. Hardy reasons that disclosing these documents would, am ong other things, harm th e FBI’s ability to track specific current and pending threats and that “[ t]hose entities that would seek to do ha rm would then becom e aware of the
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multiple inv estigations a nd inves tigative ac tivities a nd change their beh avior and/o r th e ‘play ers’ to avoid detection and/or further investigation.” Hardy Decl. ¶ 59.
As courts have recognized, “[t]he principa l purpose of Exem ption 7(A) is to prevent disclosures which m ight prem aturely reveal the governm ent’s . . . fo cus of its inve stigations, and thereby enable suspects to establish defenses or fr audulent alibis or to dest roy or alter evidence.” Maydak v. DOJ , 218 F.3d 760, 762 (D.C. Cir. 2000). The Exem ption also protects against witness intimidation and f acilitates the cor roboration of witness sta tements. Dickerson, 992 F.2d at 1433. The information withheld by Defendants pursuant to 7( A) is precisely that type of infor mation. See Hardy Decl. ¶ 60.
Plaintiff argues that information withheld by the FBI that pertains to race and ethnicity is public information that cannot reasonably interfere with enforcement proceedings and m ust therefore be disclosed. As Defendants note, however, inform ation relating to race and eth nicity may be significant to an investigation. “National secu rity investigations of ten have ethnic aspects; m embers of a foreign terrorist organization m ay be prim arily or exclusivel y from a pa rticular country or area of the world. Similarly, ethnic heritage is frequently the common thread running through violent gangs or crim inal organizations [such as MS-13].” FBI, 2011 DI OG, § 4.3.1. As such, releasing dem ographic information about specific ethnic grou ps in specific areas, com piled in the course of an investigation, could reason ably be exp ected to alert a crim inal organization that it m ay be the subject of an investigation. This would then al low the group “to change their behavi or and/or the ‘players’ to avoid detection and/or further investigation.” Hardy Decl. ¶ 59. As such, Defendants’ use of Exemption 7(A) is proper to protect the integrity of their investigations. F. DEFENDANTS’ RELIANCE ON EXEMPTION 7(E)
Plaintiffs also dispute Defenda nts’ use of Exe mption 7(E) to withhold certain DIOG Training Materials. Exemption 7(E) allows the withholding of materials that would “[1] disclose techniques and
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procedures for law enforcement investigations or prosecutions, or [2] would disclose guidelines for law

enforcement investigations if such disclosure could reasonably be expected to risk circumvention of the

law.” This provision, however, only protects “t echniques and procedures” not already well-known to

the public. See, e.g., Davin v. DOJ, 60 F.3d 1043, 1064 (3d Cir. 1995) (quoting Ferri v. Bell, 645 F.2d

1213, 1224 (3d Cir. 1981)); Rosenfeld v. DOJ, 57 F.3d 803, 815 (9th Cir. 1995) (citations omitted). As

to “guide lines f or law enf orcement investigatio ns,” this inf ormation may be withheld only i f

“disclosure could reasonably be expected to risk ci rcumvention of the law.” 5 U.S.C. § 552(b)(7)(E).

No such showing of harm is required for th e withholding of law enfo rcement “techniques or

procedures,” however; th ese m aterials receiv e categorical protection from disclosu re. See Allard K.

Lowenstein Intern. Human Rights Project , 626 F.3d at 681–82; ATF, 977 F. Supp. 496, 501 (D.D.C.

1997) (citing Fisher v. D OJ, 772 F. Supp. 7, 12 n.9 (D.D.C. 1991), aff’d, 968 F.2d 92 (D.C. Cir.

1992)).

Hardy asserts that the infor mation was prope rly withheld as com prising “techniques and

procedures,” and “guidelines fo r in vestigation.” A brief su mmary of Hardy’s reasoning and

explanations are listed below.

1. Techniques and Procedures

a. Surveillance, Monitoring, and Mapping Information/Tools

Hardy states that the DIO G materials in question contain info rmation on the types of devices,

methods, and/or tools used in surveillance,

monitoring, and m apping, as part of the FBI’s

investigations. He acknowledges that som e of these techniques are unknown by the public, while

others may be generally known. He states that th e known techniques and tool s should nonetheless be

protected fro m release b ecause the infor mation includes details that are unknown, such as the

techniques’ limitations, their planned expansion in f uture operations, the specifics of their capabilities,

15

or the manner in which the FBI uses this inf ormation in its investigations. Hardy states tha t disclosing these techniques and tools would reduce their effectiveness.
Hardy additionally explains that disclosing th ese techniques w ould interfere with the FBI’s efforts to gather inte lligence necessary to prevent crime and terrorist a ctivity, since disc losure would enable the crim inals to educate themselves on the FBI’s devices, methods, and tools, and thereby devise countermeasures to avoid detection. See Hardy Decl. ¶ 82.
b. Unaddressed Work Hardy states that cert ain DIOG Training Material s contain “descriptions of procedures with respect to the treatment and storage of . . . work that the FBI has no t yet completed.” Hardy Decl. ¶ 83. Hardy declares that this information is not public, and that its release “would reveal how the FBI deals with internal resource lim itations an d also iden tifies a place where inform ation useful to poten tial lawbreakers is maintained.” Id. He reasons that disclosing this in formation would provide a target for intelligence exploitation and undermining crime deterrence efforts. c. Collection and/or Analysis of Information Hardy identifies certain other docum ents as co ntaining discussions of the FBI’s m ethods and techniques for collecting and analyzing inform ation for investigatory purposes. He again acknowledges that the public is generally aware that the FBI collects certain types of inform ation. He specifies, however, that the m anner in which th e FBI does so is not publicly known, and that the effectiveness of the methods discussed would be diminished were the methods publicized. He reasons that this, in turn, would hinder the FBI’s ability to prevent harm to national security. d. Identification and Contents of File Numbe rs, Identifying Symbols, Forms and Database Terms and Definitions Hardy concludes that other portions of the DIOG Materials contain information including filing numbers and procedures for the FBI’s non-public data bases. Hardy asserts that this inform ation was
16

properly withheld because it is not public, and if it were released, it could be used by those seeking to

subvert the activities of the FBI or “cover their tracks.” Hardy Decl. ¶ 87.

2. Guidelines for Investigations

Hardy notes that the FBI has withheld under Ex emption 7(E) additional information consisting

of guidelines for law enforcement investigations, the disclosure of which could reasonably be expected

to risk the circumvention of law.

a. Specific Scenarios in which Particular Activities or Techniques are Authorized

Hardy explains that som e DI OG Materials contain hypothetic als about when particular

investigatory techniques may be used or certain procedures must be followed. These training exercises

are not known to the public be cause release of such inform ation could increase the risk of individuals

circumventing the law. If an individ ual consid ering engaging in illega l a ctivity beca me aware of

specific activities th at w ould or wo uld not tr igger autho rity f or par ticular investiga tive tac tics, th e

individual could conform his behavior to non-detection. This in turn could hinder the effectiveness of

such techniques, warranting non-disclosure under Exemption 7(E).

b. Undisclosed Participation

The DIOG Materials contain inform ation on ci rcumstances under which FBI personnel and

confidential sources may or may not engage in undisclosed participation in the activities of third parties

and the exte nt to which participa tion is perm itted. Were this inf ormation to be m ade public, it would

not only “undermine the effectiveness of the technique, but it could also place FBI agents or sources in

physical jeopardy.” Hardy Decl. ¶ 89.

c. Approval Limitations & Technical or Investigative Techniques

Pra ctical Limitations on Particu lar

The FBI has withheld material that discusse s a technique or procedure and corresponding

limitations on that technique or procedure. These limitations are not known to the public, but would be

17

of interest to those seek ing to cir cumvent the law. If the techniques and procedures in question were known to the public, then criminals and terrorists could more easily circumvent them. See Hardy Decl. ¶ 91.
3. Conclusion as to Defendants’ use of Exemption 7(E) Having rev iewed the Hardy Declaration a nd the accom panying Vaughn Ind ex subm itted by Defendants, the Court is satisfied that the FBI has identified and a pplied the legal st andards governing exemptions from disclosure under the FOIA and ha s described responsive docum ents with sufficient particularity. Hardy describes certa in FBI techniques and procedures that could lead to circum vention of the law. Information regarding “techniques or procedur es” receives categoric al protection from disclosure. See Lowenstein, 626 F.3d at 681–82; Smith v. ATF, 977 F. Supp. at 501. Additionally, the fact that some of the withheld information may have been generally known to the public is not dispositive. See Coleman v. FBI, 13 F. Supp. 2d 75, 83 (D.D.C. 1998) (finding certain information covered by 7(E) despite the fact that “the techniques themselv es have already been identified by the FBI,” because “the d ocuments in question involve the m anner and circumstances of the various techniqu es that are not generally known to the public” ). Hardy also id entifies FBI guidelines and procedures, the knowledge of which could allow targets to avoid detection. Information regarding “guidelines for law enforcem ent investig ations,” may be withheld if “disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Therefore, the Court finds that Hardy fairly desc ribes the content of the material withheld, and adequately states the FBI’s grounds for withholding the material and that those grounds are reasonable and consis tent with the applic able la w. The C ourt further finds no eviden ce th at co ntradicts the Defendants’ declaration or establishes bad faith. Rugiero, 257 F.3d at 544. As such, Defendants have properly invoked Exemption 7(E). H. DEFENDANTS’ POTENTIAL RELIANCE ON SECTION 552(C)
18

Last, Plaintiff claims that Defendants may have relied on 5 U.S.C. § 552(c) to “exclude” certain material from the purview of FOIA. Plaintiff bases this claim on the identification of certain categories of intelligence documents that may qualify under 5 U.S.C. § 552(c)(3).
Section 552(c) provides that agencies m ay treat certain law enforcem ent and nationa l security records “as not subject to the requirem ents” of FOIA. 5 U.S.C. § 552(c). Congress added section 552(c) to the FOIA in 1986 to allow an agency to “treat the records as not subject to the [FOIA] requirements” in three specific ca tegories involving: (1) ongoing crim inal investigations; (2) informant identities; an d (3) class ified fo reign intellig ence or intern ational terrorism infor mation. 5 U.S.C. § 552(c)(1)–(c)(3). See also Benavides v. DEA., 968 F.2d 1243, 1246–47 (D.C. Cir. 1992) (discussing the legislative history of the “thr ee exclusions of § 552(c)”). Section 552(c) differs from 552(b), as § 552(c) allows the governm ent to “exc lude” certain hi ghly sensitive inform ation from the scope of the FOIA, not simply “exempt” inform ation from production. Steinberg v. DOJ , No. 93-2409, 1997 W L 349997, at *1 (D.D.C. June 18, 1997). “An ‘exclusion’” is different from an exem ption in that the Government need not even acknowledge the ex istence of excluded infor mation. Rather, the Government is permitted to file an in camera declaration, which explains ei ther that no exclusion was invoked or that the exclusion was invoked appropriately.” Id.
Plaintiff, however, opposes in camer a review and instead proposes a different procedure to adjudicate its claim under § 552(c). Plaintiff asks the Court to require Defendants to subm it “public court filing[s]” indicating whether the Defendants interp ret all or part of Plai ntiff’s FOI A request as seeking records that, if they exist, would be excludable under Section 552(c)(3). Id. at 33. Plaintiff then asks that the parties brief, and that the Court resolve, whether the existence of the records sought is itself exem pt from disclosure. Under this proposal , the parties’ “briefing and the Court’s opinion would address a hypothetical question—whether any of the requested records , if they e xist, fall under Section 552(c)[.]” The Court finds Plaintiff’s proposed procedure unnecessary.
19

Here, Defendants filed an in camera, ex parte declaration addressing Plaintiff’s § 552(c) claim,

thereby allowing the Court to determine whether any exclusion was properly used. The Court has fully

reviewed Defendants’ in camera declaration and Plaintiff’s § 552(c) exclusion claim . While neither

confirming nor denying the existence of any exclusi on, the Court “finds and concludes that if an

exclusion was . . . employed[,] it was and remains amply justified.” See Beauman v. FBI, No. 92-7603

(C.D. Cal. Apr. 28, 1993). See also Steinberg, 1997 WL 349997 at *1.

V. CONCLUSION

Accordingly, for the above stated reasons, IT IS HEREBY ORDERE D that Defendants’

motion for summary judgment [dkt 19] is GRANTED.

IT IS FURT HER OR DERED that Plaintiff’s Motion for Summ ary Judgment [dkt 25] is

DENIED.

IT IS SO ORDERED.

Date: September 30, 2012 U.S.

s/Lawrence P. Zatkoff HON. LAWRENCE P. ZATKOFF
DISTRICT COURT JUDGE

20

 
 2:11-cv-13154-LPZ-MAR Doc # 36 Filed 09/30/12 Pg 1 of 1 Pg ID 1697

UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN,

Pl

aintiff,

v.

FEDERAL BUREAU OF INVESTIGATION, and UNITED STATES DEPARTMENT OF JUSTICE
Defendants. ____________________________________/

Case No. 11-13154 Hon. Lawrence P. Zatkoff

JUDGMENT IT IS ORDERED AND ADJUDGED that pursuant to this Court’s Opinion and Order dated September 30, 2012, this cause of action is DISMISSED WITH PREJUDICE. Dated at Port Huron, Michigan, this 30th day of September, 2012.

DAVID CLERK
APPROVED: s/Lawrence P. Zatkoff LAWRENCE P. ZATKOFF UNITED STATES DISTRICT JUDGE

J. WEAVER OF THE COURT
BY: s/Marie Verlinde MARIE VERLINDE

 
 34 F.3d 460 United States Court of Appeals,
Sixth Circuit.
AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, Plaintiff–Appellant, v.
FEDERAL BUREAU of INVESTIGATION; United States Department of Justice, Defendants–Appellees.
No. 12–2536. Argued: July 24, 2013.Decided and Filed: Aug. 21, 2013.
Synopsis
Background: Civil liberties organization brought action challenging Federal Bureau of Investigation's (FBI) failure to release information about agency's use of community-level racial and ethnic demographic data in response to Freedom of Information Act (FOIA) request. Cross-motions for summary judgment were filed. The United States District Court for the Eastern District of Michigan, Lawrence P. Zatkoff, J., 2012 WL 4513626, determined that FBI appropriately withheld documents. Organization appealed. Holding: The Court of Appeals, Boggs, Circuit Judge, held that information about agency's use of community-level racial and ethnic demographic data was exempt from disclosure.
Affirmed.

BOGGS, Circuit Judge.

OPINION

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

information; in camera review by the district court is appropriate instead. We affirm the judgment of the district court.
I In 2008, the FBI issued a “Domestic Investigations and Operations Guide” (DIOG) to implement newly revised guidelines from the Department of Justice. Among other matters, the DIOG addressed the FBI's use of race and ethnic identity in assessments and investigations. Under this guidance, the FBI may 1) identify and map “locations of concentrated ethnic communities” if such locations “will reasonably aid the analysis of potential threats and vulnerabilities, and, overall assist domain awareness,” and 2) collect “[f]ocused behavioral characteristics reasonably believed to be associated with a particular criminal or terrorist element of an ethnic community.” Concerned that these guidelines loosened restrictions on FBI authority and risked leading to illegal profiling of communities, in 2010 the ACLU submitted a FOIA request to the FBI's Detroit Field Office. The request sought release of documents “concerning the FBI's implementation of its authority to collect information about and ‘map’ racial and ethnic demographics, ‘behaviors,’ and ‘life style characteristics' in local communities” in Michigan. In particular, the ACLU requested records since December 2007 concerning FBI policy on collecting (or not collecting) such information, and records since December *463 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 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 *464 release 75 maps, 25 domain intelligence notes, and 1 program assessment, and also to the redaction of material from 15 program assessments and 25 electronic communications. The ACLU argued that the withheld documents likely relied on publicly available racial or ethnic information and so could not be withheld (at least not in full) under the FOIA's law-enforcement and classified-intelligence exemptions. 5 U.S.C. § 552(b)(7)(A), (b)(1). Further, the ACLU surmised that the FBI had improperly relied on one of the FOIA's exclusion provisions, 5 U.S.C. § 552(c)(3), and thus failed to disclose even the existence of certain responsive records. Unlike the § 552(b) “exemptions,” the § 552(c) “exclusions” permit the agency to state that “there exist no records responsive to your FOIA request,” whether or not such records actually exist. Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act, § G.4 (Dec.1987). When the plaintiff raises a plausible § 552(c) concern, however, the burden shifts to the agency to file a response. The standard practice of the FBI has been to file an in camera declaration with the district court, stating whether an exclusion has been employed and, if so, the basis for the withholding. Ibid. After reviewing the declaration, the district court would issue its decision without specifying whether an exclusion was used or not. The ACLU objected to the use of a sealed in camera response to its § 552(c) concern, instead seeking public adjudication of the issue through a “Glomar”-like procedure,2 in which the agency would answer a hypothetical question: whether the type of information sought by the plaintiff would be excludable under § 552(c), if such records exist. On September 30, 2012, the district court granted summary judgment to the FBI and denied the ACLU's cross-motion, upholding the FBI's use of both Exemption 7(A) and Exemption 1, among other holdings. The court found that the Hardy Declaration and the accompanying index “fairly describe[ ] the content of the material withheld, and adequately state[ ] the FBI's grounds for withholding and that those grounds are reasonable.” Dist. Ct. Op. at 18. The court rejected the ACLU's public-information argument, reasoning that race and ethnicity may be “significant” to an investigation, and release of that information could alert a criminal organization that it may be the subject of an investigation. The court also rejected the ACLU's proposed procedure for adjudicating § 552(c) questions, instead reviewing the in camera declaration of the FBI and concluding that “if an exclusion was employed, it was and remains amply justified.” Dist. Ct. Op. at

20 (internal quotation marks and alterations omitted). 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
*465 II 1Under 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 any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). 23Most 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 45Exemption 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). *466 The ACLU does not dispute that the records were “compiled for law enforcement purposes”; records compiled by the FBI per sesatisfy 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 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).

6The 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 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 *467 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. 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 *468 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 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 FBIdid 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].
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
*469 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 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, *470 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 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 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*471 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. 7Courts that have dealt with § 552(c) exclusions have generally approved of the FBI's standard practice. Rahim v. FBI, No. 11–2850, 947 F.Supp.2d 631, 647–48, 2013 WL 2393048, at *13 (E.D.La. May 31, 2013); Mobley v. CIA, Nos. 11–2072, 11–2073, 924 F.Supp.2d 24, 72–73, 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 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. v. F.B.I., 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. *472 8In 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 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 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.

 
 Case: 2:11-cv-13154 As of: 05/28/2014 09:43 AM EDT 1 of 4
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:11−cv−13154−LPZ−MAR

CLOSED

American Civil Liberties Union of Michigan v. Federal Bureau of Investigation et al Assigned to: District Judge Lawrence P. Zatkoff Referred to: Magistrate Judge Mark A. Randon
Case in other court: U.S. Court of Appeals − Sixth Circuit, 12−02536
Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 07/21/2011 Date Terminated: 09/30/2012 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

American Civil Liberties Union of Michigan

represented by Hina Shamsi American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2668 Fax: 212−549−2580 Email: hshamsi@aclu.org ATTORNEY TO BE NOTICED

Mark P. Fancher American Civil Liberties Union of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6800 Fax: 313−578−6811 Email: mfancher@aclumich.org ATTORNEY TO BE NOTICED

Michael J. Steinberg American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6814 Email: msteinberg@aclumich.org ATTORNEY TO BE NOTICED

Nusrat J. Choudhury − NOT SWORN American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2668 Fax: 212−549−2580 Email: nchoudhury@aclu.org ATTORNEY TO BE NOTICED

Stephen C. Borgsdorf Dykema Gossett 2723 S. State Street Suite 400 Ann Arbor, MI 48104−6188 734−214−7660 Email: sborgsdorf@dykema.com ATTORNEY TO BE NOTICED

Case: 2:11-cv-13154 As of: 05/28/2014 09:43 AM EDT 2 of 4

V. Defendant Federal Bureau of Investigation
Defendant United States Department of Justice

represented by Andrew J. Lievense U.S. Attorney's Office − EDMI 211 W. Fort Street Suite 2001 Detroit, MI 48226 313−226−9665 Fax: 313−226−3271 Email: andrew.lievense@usdoj.gov ATTORNEY TO BE NOTICED
Justin M. Sandberg U. S. Department of Justice − Civil Division Federal Programs Branch 20 Massachusetts Ave, NW Rm. 7302 Washington, DC 20001 202−514−5838 Fax: 202−616−8202 Email: justin.sandberg@usdoj.gov ATTORNEY TO BE NOTICED
represented by Andrew J. Lievense (See above for address) ATTORNEY TO BE NOTICED
Justin M. Sandberg (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/21/2011
07/21/2011 07/21/2011 07/21/2011 08/03/2011 08/12/2011 08/12/2011

# Docket Text
1 COMPLAINT for Injunctive Relief filed by American Civil Liberties Union of Michigan against Federal Bureau of Investigation, United States Department of Justice. Plaintiff requests summons issued. Receipt No: 0645−3078101 − Fee: $350. County of 1st Plaintiff: Wayne − County Where Action Arose: Wayne − [Previously dismissed case: No] [Possible companion case(s): None] (Borgsdorf, Stephen) (Entered: 07/21/2011)
2 SUMMONS Issued for *Federal Bureau of Investigation* (TMcg) (Entered: 07/21/2011)
3 SUMMONS Issued for *United States Department of Justice* (TMcg) (Entered: 07/21/2011)
4 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (TMcg) (Entered: 07/21/2011)
5 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of All Defendants. (Borgsdorf, Stephen) (Entered: 08/03/2011)
6 CERTIFICATE OF SERVICE re 2 Summons Issued by American Civil Liberties Union of Michigan to the FBI (Borgsdorf, Stephen) (Entered: 08/12/2011)
7 CERTIFICATE OF SERVICE re 4 Summons Issued for US Attorney/Attorney General by American Civil Liberties Union of Michigan to Attorney General Office (Borgsdorf, Stephen) (Entered: 08/12/2011)

Case: 2:11-cv-13154 As of: 05/28/2014 09:43 AM EDT 3 of 4

08/29/2011
08/29/2011 09/01/2011 09/16/2011 09/16/2011 09/23/2011 09/29/2011 10/04/2011 10/05/2011 10/05/2011 01/31/2012 02/15/2012 02/17/2012 02/24/2012 02/28/2012 03/09/2012 04/05/2012 04/06/2012 04/10/2012

8 NOTICE of Appearance by Justin M. Sandberg on behalf of Federal Bureau of Investigation, United States Department of Justice. (Sandberg, Justin) [INCORRECT CASE NUMBER ON DOCUMENT] Modified on 8/29/2011 (DSmi). (Entered: 08/29/2011)
9 ANSWER to Complaint by Federal Bureau of Investigation, United States Department of Justice. (Sandberg, Justin) [INCORRECT CASE NUMBER ON DOCUMENT] Modified on 8/29/2011 (DSmi). (Entered: 08/29/2011)
10 NOTICE TO APPEAR: Scheduling Conference set for 10/4/2011 09:30 AM before District Judge Lawrence P. Zatkoff IN PORT HURON (MVer) (Entered: 09/01/2011)
11 NOTICE of Appearance by Nusrat J. Choudhury − NOT SWORN on behalf of American Civil Liberties Union of Michigan. (Choudhury − NOT SWORN, Nusrat) (Entered: 09/16/2011)
12 NOTICE of Appearance by Hina Shamsi − NOT SWORN on behalf of American Civil Liberties Union of Michigan. (Shamsi − NOT SWORN, Hina) (Entered: 09/16/2011)
13 ATTORNEY APPEARANCE: Andrew J. Lievense appearing on behalf of All Defendants (Lievense, Andrew) (Entered: 09/23/2011)
14 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Borgsdorf, Stephen) (Entered: 09/29/2011)
Minute Entry − Scheduling Conference held on 10/4/2011 before District Judge Lawrence P. Zatkoff. Disposition: Conference is continued to February 9, 2012 at 9:30 a.m. in Port Huron. (MVer) (Entered: 10/04/2011)
15 NOTICE of Appearance by Michael J. Steinberg on behalf of American Civil Liberties Union of Michigan. (Steinberg, Michael) (Entered: 10/05/2011)
16 NOTICE of Appearance by Mark P. Fancher on behalf of American Civil Liberties Union of Michigan. (Fancher, Mark) (Entered: 10/05/2011)
17 STIPULATION AND ORDER ADJOURNING SCHEDULING CONFERENCE TO FEBRUARY 28, 2012 AT 9:30 A.M. IN PORT HURON Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 01/31/2012)
18 Ex Parte MOTION for Leave to File Excess Pages , Unopposed by Plaintiff, by Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Proposed Order) (Sandberg, Justin) (Entered: 02/15/2012)
19 MOTION for Summary Judgment by Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Exhibit, # 2 Document Continuation, # 3 Proposed order) (Sandberg, Justin) (Entered: 02/17/2012)
20 ORDER granting 18 Motion for Leave to File Excess Pages. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 02/24/2012)
Minute Entry − Scheduling Conference held on 2/28/2012 before District Judge Lawrence P. Zatkoff via telephone. (MVer) (Entered: 02/29/2012)
21 ORDER for Briefing Schedule and Document Production. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 03/09/2012)
22 MOTION for Leave to File Excess Pages by American Civil Liberties Union of Michigan. (Attachments: # 1 Exhibit) (Borgsdorf, Stephen) (Entered: 04/05/2012)
23 ORDER granting 22 Motion for Leave to File Excess Pages. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 04/06/2012)
24 Cross MOTION for Partial Summary Judgment by American Civil Liberties Union of Michigan. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1−A, # 3 Exhibit 1−B, # 4 Exhibit 1−C(A), # 5 Exhibit 1−C(B), # 6 Exhibit 1−D, # 7 Exhibit 1−E, # 8 Exhibit 1−F, # 9 Exhibit 1−G, # 10 Exhibit 1−H, # 11 Exhibit 1−I, # 12 Exhibit 1−J, # 13 Exhibit 1−K, # 14 Exhibit 1−L, # 15 Exhibit 1−M, # 16 Exhibit 1−N, # 17 Exhibit 2, # 18 Exhibit 2−A, # 19 Exhibit 2−B, # 20 Exhibit 2−C, # 21 Exhibit 2−D, # 22

Case: 2:11-cv-13154 As of: 05/28/2014 09:43 AM EDT 4 of 4

04/11/2012 04/11/2012 05/23/2012 05/25/2012
05/25/2012 06/11/2012 06/14/2012
06/15/2012 06/15/2012
06/15/2012
09/30/2012 09/30/2012 11/27/2012
11/27/2012 08/21/2013
10/15/2013

Exhibit 2−E(A), # 23 Exhibit 2−E(B), # 24 Exhibit 2−F, # 25 Exhibit 2−G, # 26 Exhibit 2−H, # 27 Exhibit 2−I, # 28 Exhibit 2−J, # 29 Exhibit 3 − Proposed Order) (Borgsdorf, Stephen) Modified on 4/11/2012 (KKra). [DOCUMENT ENTITLED MEMORANDUM IN SUPPORT OF PLAINTIFF'S CROSS−MOTION] (Entered: 04/10/2012)
25 Cross MOTION for Partial Summary Judgment by American Civil Liberties Union of Michigan. (Borgsdorf, Stephen) (Entered: 04/11/2012)
26 INDEX of Exhibits re 24 Cross MOTION for Partial Summary Judgment by American Civil Liberties Union of Michigan (Borgsdorf, Stephen) (Entered: 04/11/2012)
27 STIPULATION AND ORDER Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 05/23/2012)
28 RESPONSE to 24 Cross MOTION for Partial Summary Judgment, 19 MOTION for Summary Judgment Reply filed by Federal Bureau of Investigation, United States Department of Justice. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit) (Sandberg, Justin) (Entered: 05/25/2012)
29 NOTICE by Federal Bureau of Investigation, United States Department of Justice of filing of material ex parte and in camera (Sandberg, Justin) (Entered: 05/25/2012)
30 MOTION Plaintiff's Motion To File An Enlarged Reply Brief by American Civil Liberties Union of Michigan. (Borgsdorf, Stephen) (Entered: 06/11/2012)
31 RESPONSE to 28 Response to Motion, Corrected Memorandum In Support Of Plaintiff's Cross−Motion For Partial Summary Judgment And Opposition To Defendants' Motion For Summary Judgment by American Civil Liberties Union of Michigan. (Borgsdorf, Stephen) (Entered: 06/14/2012)
32 ORDER granting 30 Motion to File Enlarged Brief. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 06/15/2012)
33 RESPONSE to 31 Response (Free), Response (Free) Amended Corrected Memorandum In Support Of Plaintiff's Cross−Motion For Partial Summary Judgment And Opposition To Defendants' Motion For Summary Judgment by American Civil Liberties Union of Michigan. (Borgsdorf, Stephen) (Entered: 06/15/2012)
34 REPLY to 25 Cross MOTION for Partial Summary Judgment Reply Memorandum In Support Of Plaintiff's Cross−Motion For Partial Summary Judgment by American Civil Liberties Union of Michigan. (Borgsdorf, Stephen) (Entered: 06/15/2012)
35 ORDER granting 19 Motion for Summary Judgment; denying 25 Motion for Partial Summary Judgment. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 09/30/2012)
36 JUDGMENT Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 09/30/2012)
37 NOTICE OF APPEAL by American Civil Liberties Union of Michigan re 35 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment. Receipt No: 0645−3826816 − Fee: $ 455 − Fee Status: Fee Paid. (Borgsdorf, Stephen) (Entered: 11/27/2012)
38 Certificate of Service re 37 Notice of Appeal. (KKra) (Entered: 11/27/2012)
39 JUDGMENT from U.S. Court of Appeals − Sixth Circuit re 37 Notice of Appeal filed by American Civil Liberties Union of Michigan − Disposition: the judgment of the district is affirmed. [Appeal Case Number 12−2536] (KKra) (Entered: 08/30/2013)
40 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 37 Notice of Appeal filed by American Civil Liberties Union of Michigan [Appeal Case Number 12−2536] (KKra) (Entered: 10/18/2013)