1 PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 12

- 4345

_____________

AMERICAN CIVIL LIBERTIES UNION OF NEW

JERSEY, Appellant

v.

FEDERAL BUREAU OF INVESTIGATION; DEPARTMENT OF JU STICE

_______ ______ On Appeal from the United States District Court for the District of New Jersey District Court No. 2

- 11

- cv

- 02553 District Judge: The Honorable Esther Salas

Argued September 10, 2013

Before: SMITH, SLOVITER, and ROTH

, Circuit Judges2 (Filed: October 23, 2013 )

Nusrat J. Choudhury [ARGUED] Hina Shamsi American Civil Liberties Union 125 Broad Street 18 th Floor New York, NY 10004 Counsel for App ellant

Matthew M. Collette Catherine H. Dorsey [ARGUED] United States Department of Justice Civil Division Room 7212 950 Pennsylvania Avenue, N.W. Washington, DC 20530

Deanna L. Durrett United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Room 7130 Washington, DC 20530 Counsel f or Appell ee

_______________

OPINION

________________3 SMITH, Circuit Judge.

This appeal concerns the Federal Bureau of Investigation’s (“FBI”) response to appellant American Civil Liberties Union’s (“ACLU”) request for information under the Freedom of In formation Act (“FOIA”) , 5 U.S.C. § 552 (2009) . The ACLU claims that the United States District Court for the District of New Jersey (“District Court”) erred in allowing the FBI to withhold 284 pages of responsive material pursuant to certain exemptions un der the FOIA. The ACLU also challenges the in camera procedure employed by the District Court for determining whether the FBI’s reliance on the FOIA’s exclusion provision was justified , if such reliance in fact occurred , and urges us to remand to employ a “Glomar

- like” procedure instead. For the reasons that follow, we will affirm the judgment of the District Court and decline to adopt the ACLU’s novel proposal.

I.

In the wake of September 11, 2001, there have been efforts to restructure the FBI as the “domestic equivalent” of the Central Intelligence Agency. See The 9/11 Comm’n, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States 3 99 (2004 )

. Part of this restructuring has involved an overhaul of the FBI’s4 longstanding internal guidelines in the form of a revised manual known as the Domestic Investigations and Operations Guide (“DIOG”) released by the Attorney General of the United States in 2008

. FBI, Domestic Investigations and Operations Gu ide (Dec. 16, 2008). Among other things, the DIOG authorizes FBI agents to engage in limited racial and ethnic profiling when conducting proactive assessments of criminal and terrorist threats. Id. at 17. Specifically, the DIOG allows FBI agents to iden tify and map “locations of concentrated ethnic communities” if doing so would “reasonably aid the analysis of potential threats and vulnerabilities” and “assist domain awareness for the purpose of performing intelligence analysis.” Id. The DIOG also allo ws the FBI to collect and map data related to “[f]ocused behavioral characteristics reasonably believed to be associated with a particular criminal or terrorist element o f an ethnic community.” Id. at 44.

Prompted by a concern that the new DIOG would

enc ourage unlawful racial profiling, the ACLU launched an initiative entitled “Mapping the FBI” that included a series of coordinated FOIA requests seeking records related to the FBI’s use of ethnic and racial data. Am. Civil Liberties Un ion, Mapping the FBI : Uncovering Abusive Surveillance and Racial Profiling , Am. Civil Liberties Union (Sept. 26, 2013)

, http://www.aclu.org/mapping

- fbi

- uncovering

- abusive

surveillance

- and

- racial

- profiling

. One such request5 targeted six FBI field offices in New Jersey and sou ght information “concerning the FBI’s implementation of its authority to collect information about and ‘map’ racial and ethnic demographics, ‘ behaviors,’ and ‘life style characteris tics’ in local communities.”

In response , the FBI searched its files and i dentified 782 pages of potentially responsive records. Of these, the FBI eventually released 312 pages (some of which were partially redacted), 1 withheld 186 pages as duplicative, and, most importantly for our purposes, withheld 284 pages as exempt from disclosure. The withheld records included ten Domain Intelligence Notes (“DINs”), a 2009 Newark Annual Baseline Domain Assessment (“Domain Assessment”), an Electronic Communication from October 30, 2009 (“2009 EC”), and five Newark Domain Management Team Maps (“Maps”).

Unsatisfied with this response, the ACLU , after exhausting its administrative remedies

, filed suit against the FBI and the Department of Justice (“DOJ”) in the District Court for the District of New Jersey, seeking an injunction for relea se of the with held records. On December 12, 2011

, the FBI and DOJ moved for summary judgment, c ontending that the withheld

1 The FBI’s first release on December 22, 2010 consisted of 298 pages. The FBI released an additional 14 pages on June 20, 2011 and an additional six pages on February 22, 2012.6 documents were exempted f rom disclosure under 5 U.S.C. § § 552(b)(1) (“Exemption 1”), (b)(7)(A) (“Exemption 7A”), (b)(7)(C) (“Exempti on 7C”), (b)(7)(D) (“Exemption 7D”), and (b) (7)(E) (“Exemption 7E”). 2 In support of this motion, the FBI submitted declarations by David Hardy, the Section Chief of the FBI Record/In formation Dissemination Section (“Hardy Declarations”) that describe in d etail each piece of in formation withheld and explain why it was exempted from disclosure under the FOIA , as well as a “ Vaughn index ” 3 that conveys similar information in table format.

On January 20 , 2012

, the ACLU filed a cross

motion for summary judgme nt. The ACLU argued that the FBI failed to demonstrate that it had segregated and disclosed all non

- exempt mater ial from the withheld documents and that the FBI’s explanations for withholding certain documen ts were insufficiently detailed. Additionally, the ACLU sought a court order requiring the FBI to submit an in camera declaration explaining whether it had relied on 5 U.S.C. § 552(c) ( the FOIA’s “Exclusion Provision”) to withhold additional, unidentified records, and the justification for this

2 The DOJ and FBI also moved to dismiss the FBI on the theory that the FBI is not an “agency” under 5 U.S.C. § 552. The District Court granted this motion, noting only that “[w]here the DOJ is already a named defendant in a FOIA case, dismissing the FBI has no legal effect.”

3 See Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973).7 exclusi on if it occurred. The FBI submitted such a declarat ion on February 9, 2012.

The FBI released six additional pages on February 22, 2012 and moved for summary judgment with respect to these pages on March 16, 2012. On April 2, 2012

, the ACLU again submit ted a cross

- motion for summary judgment , but at that point argued that “as briefing ha[d] progressed, it ha[d] become clear” that the in camera procedure it had originally requested on the Section 552(c) issue was inadequate and urged the District Court

to adopt a procedure “akin to the Glomar procedure established by the D.C. Circuit in Phillippi v. CIA , 946 F. 2d 1009 (D.C. Cir. 1976).”

On October 2, 2012

, the District Court granted summary judgment for the FBI. The District Court held that the withhel d documents were exempted under Exemptions 1, 7A, 7C, 7D, and 7E, and that the FBI had satisfied its burden of demonstrating that none of the withheld information could be segregated and disclosed. The District Court also held, without confirming or denyi ng the FBI’s reliance on FOIA’s Exclusion Provision, that “if an exclusion was invoked, it was and remains amply justified.” The District Court based this conclusion on the FBI’s in camera declaration o riginally requested by the ACLU and declined to addre ss the ACLU’s argument for adopting the Glomar

- like

pro cedure. The ACLU timely appealed

.8 II.

We first address the District Court’s ruling on the FBI’s motion for summary judgment. The District Court had jurisdiction over this action pursuant to 5 U.S.C . § 552(a)(4)(B) , 28 U.S.C. § 1331, and 5 U.S.C. §§ 701

- 706 and we exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291

. Due to the “unique configuration” of summary judgment in a FOIA case, in which “the opposing party (generally the requester) d oes not ordinarily have the factual information upon which the moving party (generally the agency) has relied,” this Circuit has held that “the familiar standard of appellate review promulgated by Federal Rule of Civil Procedure 56(c) does not apply.” McD onnell v. United States , 4. F.3d 1227, 1241

- 42 (3d Cir. 1993). Instead, “[w] e employ a two

- tiered test ” under which we first determine “whether the district court had an adequate factual basis for its determination” and, if we find such a basis , “must the n decide whether that determination was clearly erroneous.” Abdelfattah v. U nited States Dept. of Homeland Sec. , 488 F.3d 178, 182 (3d Cir. 2007). Because we conclude that ample evidence supported the District Court’s conclusion that the FBI satisfied it s burden under Exemption 7A, we will affirm. Accordingly, we need not decide whether the FBI’s9 reliance on Exemption 1 or Exemption 7(E) was proper. 4

A.

The FOIA requires any “agency,” upon “any request,” to make records “promptly available to any

person. ” 28 U.S.C. § 552(a)(3)(A). The purpose of this requirement is “to facilitate public access to Government documents,” and therefore its “dominant objective” is “disclosure, not secrecy.” Sheet Metal Workers Int’l Ass’n, Local Union No. 19 v. United Stat es Dep’t of Veterans Affairs , 135 F.3d 891, 897 (3d Cir. 1998) (internal quotation marks and citations omitted). Because “[p]ublic access to government information is not . . . all encompassing,” however, the FOIA “exempt[s] nine categories of documents f rom [its] broad disclosure requirements.” Id. (internal quotation marks and citations omitted).

The dispositive exemption in this case is Exemption 7A, which authorizes the withholding of “records or information compiled for law enforcement

purposes . . . to the extent that the production of such law enforc ement records or information . . . could reasonably be expected to interfere with enforcement proceedings.” § 552(b)(7)(A). “The agency bears the burden of justifying the withholding, and the [district] court

4 The ACLU does not appeal the District Court’s rulings on Exemptions 7C or 7D.10 reviews the agency claims of exemption de novo .” OSHA Data/CIH Inc. v. United States Dep’t of Labor

, 220 F.3d 153, 160 (3d Cir. 2000). This burden may be satisfied by affidavits that describe the material withheld and why that material falls under a particular exemption. McDonnell

, 4 F.3d at 1241. An agency is entitled to summary judgment when these affidavits “ describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection b etween the information and the claimed exemption . . . , and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Davin v. United States Dep’t of
Justice , 60 F.3d 1043, 1050 (3d Cir. 1995).

Here, the ACLU do es not contest that the information withheld by the FBI was “compil ed for law enforcement purposes ” and argues only that the FBI has not demonstrated that production of this information could “reasonably be expected to interfere with enforcement proceeding s.” The ACLU acknowledges that when, as in this case, the disclosure of requested information poses risks to national security, an agency’s assessment of this risk is afforded substantial deference. See Ctr. For Nat’l Sec. Studies v. Dep’t of Justice , 33 1 F.3d 918, 927

- 28 (D.C. Cir. 2003). Nevertheless, the ACLU argues that the FBI is not entitled to summary judgment because its assertions that disclosure would disrupt enforcement proceedings are not “reasonably11 specific” and are “called into question by contradictory evidence.”

B.

We reject the ACLU’s argument that the FBI’s release of similar racial/ethnic data in response to this or similar FOIA requests contradicts its assertion that release of the data withheld here would be harmful. 5
The Hardy D eclarations explain that “each office faces different threats in each domain” and “[i]f similar information was released in another location, it was based on a decision specific to that domain and the relevance of the information to that domain.” Common

s ense itself suggests that different data related to different ethnic populations in different cities used in completely different FBI investigations can vary greatly in sensitivity. Further, we share the concern expressed by the Sixth Circuit in a related case that “if we adopted the

5 Specifically, the ACLU cites to (1) the FBI’s partial release of DIN #9 in this case, which concerned an investigation of the MS

- 13 gang and contained data on various Hispanic communities in Newark, N ew Jersey, (2) a Michigan field office’s release of a memorandum concerning an investigation of international terrorist groups that contained data on “Middle

- Eastern and Mu slim population[s]” in Michigan, and (3) a San Francisco field office’s release of a similar memorandum concerning an investigation of Chinese and Russian organized crime syndicates that contained data on Chinese and Russian populations in that area.12 ACLU’s reasoning . . . , agencies would be discouraged from making a good

- faith effort to disclose as many responsive documents as possible for fear of estoppel.” Am. Civil Liberties Union of Michigan v. F.B.I ., 12

- 2536, 2013 WL 4436533 at *5 (6th Cir. Aug. 21, 2013)

.

We also disagree with the ACLU that the Hardy Declarations lack reasonable specificity when describing the risk of harm from disclosure. The Hardy Declarations provide a section

- by

- section description of each of the withheld documents. 6 The Hardy Declarations also explain exactly how disclosure of the requested ethnic and demographic data in each withheld document would interfere with enforcement proceedings: by revealing the target or focus of the FBI’s investi gatory efforts. J .A. 127 (for DIN #1); J

. A

. 129 (for DIN #2);
J

. A

. 130

- 31 (for DIN #3); J

. A

. 132 (for DIN #4); J

. A

. 134 (for DIN #5); J

. A

. 135 (for DIN #6); J

. A

. 137 (for DIN #7); J

. A

. 138 (fo r DIN #8); J

. A

. 140 (for DIN #10);
J .A. 141 (for DIN #11); J

. A

. 907

- 08 (for Domain Assessment and 2009 EC); J

. A

. 910

- 11 (for Maps). Of course, once these targets were alerted to the existence or exact focus of the se investigations, they would likely “change their behavior and/or the ‘players’ to avoid

6 For example, the description of DIN #1 reveals the date and the subject line of the doc ument and outlines the document paragraph by paragraph (“summary paragraph,” “scope section,” “background section,” “judgments section,” “details section”).13 detection and/o r further investigation.” It is hard to imagine how the FBI could provide a more detailed justification for withholding information under this exemption without compromising the very information it sought to protect

. We further disagree with the ACLU that release of the “limited public source information” that it seek s “cannot reasonably be expected to tip off targets or permit them to circumvent investigations

. ” The ACLU first contends that such disclosure would not be harmful because the “information so ught is public to begin with.” This argument misses the obvious point that while the demographic data itself may be public, its use by the FBI is certainly not. The Hardy Declarations reveal what should be obvious to anyone: that the harm from disclosure lies in revealing, indirectly

, the FBI’s targeting preferenc es and investigative techniques

— not in revealing demographic information that is already available to the public

. The ACLU further argues that such disclosure would not be harmful because the FB I is prohibited from using race or ethnicity as a “dominant or primary factor” in its investigations. We reject this argument as it rests on the implausible assumption that only disclosure of a “dominant or primary factor” could impede an FBI investigatio n.
Accordingly, we hold that the FBI has satisfied its burden under Exemption 7A with respect to all of the14 withheld information

. 7 We need not, then, address whether the FBI has satisfied its burden under Exemption 1 or Exemption 7E with respect to variou s subsets of this information

.

III.

We next address the ACLU’s argument that this

case should be remanded to apply its proposed “Glomar

like” procedure to the Section 552(c) issue

— i.e. whether, if the FBI withheld responsive documents pursuant to FOIA’s ex clusion provision

, such withholding was

proper. The ACLU proposed this procedure after they had already proposed

— and the District Court had already conducted

— an in camera review of the Section 552(c) issue. The District Court declined to adopt the ACLU’s “Glomar

- like” procedure, and we review this decision for abuse of discretion. S ee Larson v. Dep’t of State , 565 F.3d 857, 859 (D.C. Cir. 2009) (reviewing for abuse of discretion district court’s decision not to conduct in

camera review); In re Grand Jury Subpoena , 223 F.3d 213, 219 (3d Cir. 2000) (reviewing for abuse of discretion district court’s decision to rely on ex parte government affidavit in determining that crime

- fraud

7 Because we hold that the public source information sought by the ACLU is itself exempted from dis closure under Exemption 7A, we need not address the ACLU’s argument that the FBI failed to disclose all “reasonably segregable”

non

- exempt responsive information.15 exception applies to attorney

- client co mmunications).
We hold that no abuse o f discretion occurred. 8

A.

The ACLU’s proposed procedure is modeled after th e procedure developed in Phillippi v. C.I.A. , 564 F.2 d 1009 (D.C. Cir. 1976) , later known as the “Glomar

response, ” which allowed the Government to “neither confirm nor deny” the u se of one of FOIA’s exemptions prior to the enactment of Section 552(c). See Am. Civil Liberties Union of Michigan

, 2013 WL 4436533

, at *7. When issuing a “Glomar response,” the Government is required to “provide a public affidavit explaining in as much detail as possible the basis” for its ability to issue such a response. Phillippi , 564 F.3d at 1013. Under this procedure, the Government’s explanation is to be reviewed in camera only as a last resort. See id. The ACLU proposes that this “Glomar proce dure” be adapted

8 The ACLU cites McDonnell , 4 F.3d at 1242, for the proposition that the District Court’s “ method for adjudicating the Section 552(c) claim” should be reviewed de novo . The only language in this case that could arguably support this argument refers to “plenary review of issues of law.” Id. We find Larson v. Dep’t of State , 565 F.3d 857, 859 ( D.C. Cir. 2009) and In re Grand Jury Subpoena , 223 F.3d 213, 219 (3d Cir. 2000) to more directly address the issue of standard of review in these circumstances, and hold that an abuse of discretion should apply.16 to the Section 552(c) context to operate as follows:

[T]he Court [would] require Defendants to respond to Plaintiff’s concern that they may have relied upon Section 552(c) with . . . a public court filing indicating that Defendants interpr et all or part of Plaintiff’s FOIA request as seeking records that, if they exist, would be excludable under Section 552(c), and that therefore, the Defendants have not processed those portions of the Request . . . . Plaintiff could then brief . . . its ar gument that the types of records sought, if they exist, would not fall within the exclusion. The Court could then determine

. . . whether the type of information sought by Plaintiff, if it exists, is excludable under Section 552(c).

J

. A

. 1019

- 20. The ACL U argues that adoption of this procedure would permit more meaningful judicial review and better protect the interests of the litigants and the public. We disagree , and hold that the District Court did not abuse its discretion by conducting an in camera

r eview

.

B

. District Courts have long enjoyed the discretion

to employ in camera procedures in other circumstances17 involving sensitive information. See, e.g.

, United States v. Zolin , 491 U.S. 554, 564 (1989) (upholding “ in camera review of allegedly pri vileged communications to determine whether those communications fall within the crime

- fraud exception” to attorney

- client privilege); In re Grand Jury Subpoena , 223 F.3d 213, 216 (3d Cir. 2000) (“If the district court decides that the government should

pr esent information [to justify a grand jury subpoena] beyond the minimal .

. . requirements, it may use in

camera proceedings or ex parte affidavits to preserve grand jury secrecy, a procedure we have consistently endorsed.”)

. Nothing in the FOIA operates to limit this discretion. In fact, the FOIA explicitly contemplates in

camera review in the exemption context

. 5 U.S.C. § 552(a)(4)(B) (providing that the District Court “may examine the contents of . . . agency records in camera to determine whether su ch records or any part thereof shall be withheld under any of the exemptions.”)

. Though the ACLU argues that Section 552(c)’s legislative histor y

e vidences an intent to incorporate a “Glomar

- like procedure,” we find that this evidence is inconclusive at b est. 9

9 The ACLU cites two nearly identical stat ements by sponsoring representatives that describe the purpose of Section 552(c) as codifying the Government’s authority to neither confirm nor deny the existence of certain records that18 Since passage of Section 552(c), it has been the Government’s “standard litigatio n policy” to respond to a FOIA plaintiff ’s suspicions that an exclusion was used with “an in camera declaration addressing this claim, one way or another.” Attorney G eneral’s Memorandum on the 1986 Amendments to the Freedom of Information Act, § G.4 & n.47 (Dec. 1987). The courts that have addressed this practice have generally approved. See

, e.g., Am. Civil Liberties Union of Michigan

, 2013 WL 4436533

, at *10 ( appro ving of procedure and collecting cases). 10 In short, we find no legal authority compelling the District Court to employ the ACLU’s proposed

had been provided in Phillippi

, 546 F.2d at 1012. To the

extent we c onsider these statements to be evidence of legislative intent, we note that they only purport to incorporate from Phillippi the Government’s authority to neither confirm nor deny the existence of records, not the obligation to publicly justify such a respo nse. 10 The Sixth Circuit in Am. Civil Liberties Union of Michigan notes that “[i]n 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 of ficial confirmation of that informant.” 2013 WL 4436533 , at *9 (collecting cases). The ACLU does not suggest in this case that the FBI is excluding information related to an officially confirmed informant, or any other information that is ineligible for exclusion due to public

exposure. Cf. id . (“[T]he ACLU has not suggested that any excluded materials have been declassified, and thus a public proceeding on this matter is unnecessary.”).19 procedure.

Nor are we convinced that adopting the ACLU’s proposed procedure would be wise from a policy perspective

. In a recent related decision, the Sixth Circuit explained that this procedure would do little to facilitate judicial review :

Under the ACLU ’ s procedure, the parties would litigate a hypothetical question: whether the type of information sought by the pla intiff 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 respon ding 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 ch allenges, 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 pr opose many different kinds of20 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.

Am. Civil Liberties Union of Michigan

, 2013 WL 4436533

, at *10

. By contrast, the in camera procedure employed by the District Court allows it to examine the

act ual information withheld if and when it is actually withheld. In this way, an in camera procedure provides for more meaningful judicial review than does the “Glomar

- like” method of adjudicating “[o]p e n ended hypothetical questions

, ” which “ are not well su ited to the litigation process.” Id

. Further, a district court’s use of

an in camera procedure does not hinder review on appeal, because appellate courts can also employ this procedure, as we have done in this case

.

On review of the agency’s in camera dec laration, we conclude that the District C ourt did not err in concluding that if an exclusion was employed, it was and remains amply justified.

IV

For the foregoing reasons, we w ill AFFIRM21 the judgment of the District C ourt.