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 JUSTICE 

_____________

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 Judges
2

(Filed: October 23, 2013)

Nusrat J. Choudhury [ARGUED]

Hina Shamsi

American Civil Liberties Union

125 Broad Street

18th Floor

New York, NY 10004

Counsel for Appellant

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 for Appellee

_______________

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 Information 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 under 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 399 (2004). Part of this 

restructuring has involved an overhaul of the FBI’s 
4

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 Guide (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 identify 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 allows 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 of an ethnic community.” Id. at 44.

Prompted by a concern that the new DIOG would 

encourage 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 Union, Mapping the FBI: Uncovering 

Abusive Surveillance and Racial Profiling, Am. Civil 

Liberties Union (Sept. 26, 2013),

http://www.aclu.org/mapping-fbi-uncovering-abusivesurveillance-and-racial-profiling. One such request 
5

targeted six FBI field offices in New Jersey and sought

information “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 response, the FBI searched its files and 

identified 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 release of the withheld records. On 

December 12, 2011, the FBI and DOJ moved for 

summary judgment, contending 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 from disclosure under 5 

U.S.C. §§ 552(b)(1) (“Exemption 1”), (b)(7)(A) 

(“Exemption 7A”), (b)(7)(C) (“Exemption 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/Information Dissemination Section (“Hardy 

Declarations”) that describe in detail each piece of 

information 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 crossmotion for summary judgment. The ACLU argued that 

the FBI failed to demonstrate that it had segregated and 

disclosed all non-exempt material from the withheld 

documents and that the FBI’s explanations for 

withholding certain documents 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

exclusion if it occurred. The FBI submitted such a 

declaration 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 submitted 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 withheld 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 

denying 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 originally 

requested by the ACLU and declined to address the 

ACLU’s argument for adopting the Glomar-like 

procedure. 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) does not 

ordinarily have the factual information upon which the 

moving party (generally the agency) has relied,” this 

Circuit has held that “the familiar standard of appellate 

review promulgated by Federal Rule of Civil Procedure 

56(c) does not apply.” McDonnell 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 

then decide whether that determination was clearly 

erroneous.” Abdelfattah v. United 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 its 

burden under Exemption 7A, we will affirm. 

Accordingly, we need not decide whether the FBI’s 
9

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 States 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 from [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 

enforcement 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 between 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 does not contest that the 

information withheld by the FBI was “compiled 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 proceedings.” 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, 331 

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 “reasonably 
11

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 Declarations 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 

sense 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, New 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 Muslim 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.6The 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 investigatory 

efforts. J.A. 127 (for DIN #1); J.A. 129 (for DIN #2); 

J.A. 130-31 (for DIN #3); J.A. 132 (for DIN #4); J.A.

134 (for DIN #5); J.A. 135 (for DIN #6); J.A. 137 (for 

DIN #7); J.A. 138 (for DIN #8); J.A. 140 (for DIN #10);

J.A. 141 (for DIN #11); J.A. 907-08 (for Domain 

Assessment and 2009 EC); J.A. 910-11 (for Maps). Of 

course, once these targets were alerted to the existence or 

exact focus of these 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 document and outlines the document 

paragraph by paragraph (“summary paragraph,” “scope 

section,” “background section,” “judgments section,” “details 

section”).
13

detection and/or 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 seeks

“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 sought 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 

preferences 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 FBI 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 investigation.

Accordingly, we hold that the FBI has satisfied its

burden under Exemption 7A with respect to all of the 
14

withheld information.

7

 We need not, then, address 

whether the FBI has satisfied its burden under Exemption 

1 or Exemption 7E with respect to various subsets of this 

information.

III.

We next address the ACLU’s argument that this 

case should be remanded to apply its proposed “Glomarlike” procedure to the Section 552(c) issue—i.e. whether, 

if the FBI withheld responsive documents pursuant to 

FOIA’s exclusion 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. See 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 disclosure 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 communications). 

We hold that no abuse of discretion occurred.8

A.

The ACLU’s proposed procedure is modeled after 

the procedure developed in Phillippi v. C.I.A., 564 F.2d 

1009 (D.C. Cir. 1976), later known as the “Glomar 

response,” which allowed the Government to “neither 

confirm nor deny” the use 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 procedure” 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 interpret 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 argument 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 ACLU 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

review. 

B.

 District Courts have long enjoyed the discretion 

to employ in camera procedures in other circumstances 
17

involving sensitive information. See, e.g., United States 

v. Zolin, 491 U.S. 554, 564 (1989) (upholding “in camera

review of allegedly privileged 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 

present 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 such records or any part thereof shall 

be withheld under any of the exemptions.”). Though the 

ACLU argues that Section 552(c)’s legislative history

evidences an intent to incorporate a “Glomar-like 

procedure,” we find that this evidence is inconclusive at 

best.9 

 

9

The ACLU cites two nearly identical statements 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 that 
18

Since passage of Section 552(c), it has been the 

Government’s “standard litigation 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 General’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 (approving 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 consider 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 response.

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 official 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 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 
20

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 

actual 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]pen ended 

hypothetical questions,” which “are not well suited 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

declaration, we conclude that the District Court did not 

err in concluding that if an exclusion was employed, it 

was and remains amply justified.

IV

For the foregoing reasons, we will AFFIRM 
21

the judgment of the District Court.