UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

______________________________

AMERICAN CIVIL LIBERTIES )

UNION OF NEW JERSEY, )

) Judge Esther Salas

Plaintiff, )

) Magistrate Judge Cathy L. 

v. ) Waldor

)

FEDERAL BUREAU OF ) Civil No. 11-cv-02553

INVESTIGATION, UNITED STATES )

DEPARTMENT OF JUSTICE, ) 

) MOTION DAY: May 7, 2012 

Defendants. ) 

______________________________)

DEFENDANTS’ REPLY IN SUPPORT OF THEIR MARCH 16, 2012, MOTION FOR 

SUMMARY JUDGMENT; DEFENDANTS’ OPPOSITION TO PLAINTIFF'S APRIL 2,

2012, CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT; AND DEFENDANTS’

SUR-REPLY AS TO THE SECTION 552(C) EXCLUSION ISSUE 

Dated: April 13, 2012 Respectfully submitted,

 STUART F. DELERY

 Acting Assistant Attorney General

 PAUL J. FISHMAN

 United States Attorney

JOHN TYLER

Assistant Director 

Federal Programs Branch

/s/ Deanna L. Durrett 

DEANNA L. DURRETT (NY BAR)

U.S. Dept. of Justice, 

Civil Division, Federal Programs

Branch

26 Federal Plaza, Room 346 

New York, NY 10278

(212) 264-9232 phone

(212) 264-1916 fax

Deanna.L.Durrett@usdoj.gov

Attorneys for Defendants

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TABLE OF CONTENTS

 PAGES

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. Defendants Have Fully Justified The Withholdings in 

the EC Pursuant to Exemptions 7(A) and 7(E)... . . . . . . 3

II. Plaintiff’s Proposed Procedures for Litigating FOIA’s

Exclusion Provisions are Untimely, Unworkable, and 

Contrary to Congressional Intent.. . . . . . . . . . . . 10

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 19

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TABLE OF AUTHORITIES

CASES PAGES

Afshar v. Dep’t of State, 

702 F.2d 1125 (D.C. Cir. 1983).. . . . . . . . . . . . 4, 7

Am. Friends Serv. Comm. v. Dep’t of Defense, 

831 F.2d 441 (3d Cir. 1987). . . . . . . . . . . . . . . . 9

Arieff v. U.S. Dep’t of Navy, 

712 F.2d 1462, 1470 (D.C. Cir. 1983).. . . . . . . . . . 18

Beauman v. FBI, 

No. 92-cv-7603, slip op. (C.D. Cal. April 12, 1993). . . 12

Cottone v. Reno, 

193 F.3d 550 (D.C. Cir. 1999). . . . . . . . . . . . . 4, 5

Cozen O’Connor v. U.S. Dep’t of Treasury, 

570 F. Supp. 2d 749 (E.D. Pa. 2008). . . . . . . . . . . 13

Fitzgibbon v. CIA, 

911 F.2d 755 (D.C. Cir. 1990). . . . . . . . . . . . . . . 9

Islamic Shura Council of Southern Cal. v. FBI, 

635 F.3d 1160 (9th Cir. 2011). . . . . . . . . . . . . . 18

Makky v. Chertoff,

489 F. Supp. 2d 421 (D.N.J. 2007) .. . . . . . . . . . 9-10

Mayer Brown LLP v. IRS, 

562 F.3d 1190 (D.C. Cir. 2009) . . . . . . . . . . . . . . 8

PHE, Inc. v. Dep't of Justice, 

983 F.2d 248 (D.C. Cir. 1993) .. . . . . . . . . . . . . 8-9

Phillippi v. CIA, 

546 F.2d 1009 (D.C. Cir. 1976).. . . . . . . . . . . . . 13

Pipko v. CIA, 

312 F. Supp. 2d 669 (D.N.J. 2004). . . . . . . . . . . . 13

Quinon v. FBI, 

86 F.3d 1222 (D.C. Cir. 1996). . . . . . . . . . . . . . . 9

ii

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Sellers v. U.S. Dep’t of Justice, 

684 F. Supp. 2d 149 (D.D.C. 2010) .. . . . . . . . . . . . 5

Steinberg v. Dep’t of Justice, 

1997 WL 349997 (D.D.C. June 18, 1997). . . . . . . 12, 18-19

Students Against Genocide v. Dep’t of State, 

257 F.3d 828 (D.C. Cir. 2001) .. . . . . . . . . . . . . . 4

Wilner v. Nat’l Sec. Agency, 

2008 WL 2567765 (S.D.N.Y. June 25, 2008).. . . . . . . . 13

Wolf v. CIA, 

473 F.3d 370 (D.C. Cir. 2007). . . . . . . . . . . . . . 13

STATUTES

5 U.S.C. § 552. . . . . . . . . . . . . . . . . . . . . . passim

MISCELLANEOUS

Attorney General Edwin Meese on the 1986 Amendments to 

the FOIA (Dec. 1987) (“Attorney General Memo”) (available at

www.justice.gov/oip/86agmemo.htm#exclusions). . . . . . . 11, 13

132 Cong. Rec. 26763 (1986).. . . . . . . . . . . . . . . . . 15

132 Cong. Rec. 31424 (1986).. . . . . . . . . . . . . . . . . 15

iii

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INTRODUCTION

In enacting the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552, Congress struck a balance between the public’s

interest in greater access to information and the Government’s

interest in protecting certain kinds of information from

disclosure. In its FOIA request and its April 2, 2012, CrossMotion, Plaintiff has made its interest clear: it seeks

information on the FBI’s use of racial and ethnic demographical

information in intelligence assessments and criminal

investigations. In response to Plaintiff’s request, Defendants

produced hundreds of pages of documents and released all

segregable information subject to the FOIA, including voluntarily

releasing the FBI Electronic Communication (“EC”) at issue now. 

Yet, because this EC, like previous documents produced by

Defendants, is a sensitive law enforcement record used to guide a

domestic terrorism assessment and ongoing criminal

investigations, the realities of Congress’ balance are present. 

Some of the information in the EC must be withheld to prevent

possible interference with ongoing investigations and/or

potential circumvention of the FBI’s investigative efforts by

either the groups discussed in the EC or other criminal actors. 

See Second Supplemental Declaration of Mr. David Hardy (“Second

Supp. Hardy Decl.”) at Dkt. # 26-2. 

1

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Plaintiff raises one argument in opposition. It claims that

Defendants have not adequately justified the withholding of

racial and ethnic information in the EC, as this information is

already publicly available. Yet, it is Plaintiff’s burden to

demonstrate that the information it seeks has, in fact, been made

public, something Plaintiff has failed to do. And Plaintiff

cannot make such a showing, for the release of any racial or

ethnic information in the EC would reveal far more than basic

census data and population statistics. Further releases would

provide Plaintiff and the public with analytical investigatory

information such as the identities of the groups under

investigation, what the FBI knows or does not know about these

groups, and how the FBI intends to assess the criminal activity

of these groups. Because this information is not available to

the public and should not become available to the public,

Plaintiff’s request for it should be denied.

In addition, this Court must deny Plaintiff’s newly proposed

procedures for adjudication of its claim under Section 552(c) of

the FOIA. Plaintiff’s proposal is not only untimely, as it is

offered for the first time in its Reply Memorandum in Support of

Plaintiff’s Cross-Motion for Summary Judgment (“Pl. Memo”), but

it would create dangerous precedent, undermining the very purpose

of the exclusion provisions and compromising highly sensitive

criminal law enforcement records and/or classified foreign

intelligence, counterintelligence, or international terrorism

2

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information. As explained herein, the harms that would result

from adoption of Plaintiff’s proposal far outweigh any

frustration Plaintiff may feel toward the ex parte, in camera

review procedures already underway in this litigation.

ARGUMENT

I. Defendants Have Fully Justified The Withholdings in the EC

Pursuant to Exemptions 7(A) and 7(E).

In Defendants’ Motion for Summary Judgment on the production

of the EC released by Defendants on February 22, 2012, and in Mr.

Hardy’s supporting declaration, Defendants explain that certain

information, including “the identity of the groups” under

investigation, FBI “file numbers,” “background and supporting

information which would identify the groups, [and] the criteria

and characteristics being evaluated concerning the groups,” has

been withheld pursuant to Exemption 7(A), for its release could

lead to possible interference with pending investigations into

the groups discussed in the EC. See Second Supp. Hardy Decl.

¶ 9. In addition, pursuant to Exemption 7(E), Defendants

withheld “questions and criteria for evaluation of the groups,”

“designations assigned to certain types of intelligence and/or

criminal files and investigations,” “Standing Requirement

descriptive information,” and “intelligence information,

analysis, and conclusory work product concerning the groups,” as

disclosure of these investigatory techniques and guidelines could

lead to circumvention of the law by the groups at issue or other

3

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criminal actors seeking to evade law enforcement detection. Id.

¶ 16. Plaintiff states, however, that it does not seek this

information. See Pl. Memo at 26 n.15, 27 (Plaintiff is not

interested in “group names and types, background information, and

related file numbers,” or “the questions or criteria for

evaluation of the domestic terrorist groups or discussion of the

specific factors to be analyzed to assess the threat posed by the

groups”). Instead, Plaintiff seeks only a “narrow category of

information: racial and ethnic information that is already

publicly available from census data and other demographic

information sources.” Id. at 2. Yet, to the extent any of this

information exists in the EC, it must remain protected from

release pursuant to either Exemption 7(A) or 7(E). 

1

As the D.C. Circuit has explained, “[f]or the public domain

doctrine to apply, the specific information sought must have

already been ‘disclosed and preserved in a permanent public

record.’” Students Against Genocide v. Dep’t of State, 257 F.3d

828, 836 (D.C. Cir. 2001) (quoting Cottone v. Reno, 193 F.3d 550,

554 (D.C. Cir. 1999)). Plaintiff bears the burden of “pointing

to specific information in the public domain that appears to

duplicate that being withheld,” Afshar v. Dep’t of State, 702

F.2d 1125, 1130 (D.C. Cir. 1983), “for were it otherwise, the

government would face the daunting task of proving a negative:

Plaintiff does not challenge Defendants’ withholdings 1

pursuant to Exemptions 6 and 7(C). See Pl. Memo at 5 n.1.

4

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that requested information had not been previously disclosed.” 

Cottone, 193 F.3d at 554. But Plaintiff has not met its burden

here. In fact, Plaintiff has not given this Court any reason to

“be confident that the information sought is truly public and

that the requester receive no more than what is publicly

available[.]” Id. at 555 (emphasis added). 

First, Plaintiff fails to identify specific public source

information it believes exists in the EC. It has not attached

any of the “information sources” it contends contain the same

information as the EC to its Cross-Motion. Pl. Memo at 2. To

the extent Plaintiff is relying on the Census Bureau information

it attached to its First Cross-Motion for Summary Judgment,

Plaintiff makes no reference to that information now and does not

provide any explanation of why it believes that census

information can be found in the EC - a document distinct from any

previously released by Defendants in this case. See Second Supp.

Hardy Decl. ¶ 5. At best, Plaintiff claims that because the DIOG

“permits the FBI collect and map communities’ racial and ethnical

information,” the EC “likely uses and relies on publiclyavailable information about racial and ethnic communities,

including census data or demographics.” Pl. Memo at 25. But

this logical leap will not suffice. See, e.g., Sellers v. U.S.

Dep’t of Justice, 684 F. Supp. 2d 149, 162 (D.D.C. 2010)

(“Plaintiff's argument is not persuasive, given his failure to

5

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point to any specific record, document, or information identical

to what is being withheld under the claimed exemption.”). 

2

Second, assuming, arguendo, that some of the information

withheld contains the type of racial or ethnic information that

Plaintiff seeks, the release of it here would reveal far more

than raw population data already available to the public. As is

evident from an examination of the EC, it is an analytical

document of a very different nature than the “2010 Census

Redistricting Data” Report identified by Plaintiff in its prior

motion, and release of any racial or ethnic information contained

in the EC would also reveal, inter alia, the identity of the

target of the investigation, what the FBI knows about its

presence and activity in Newark Field Office’s domain, and the

FBI’s approach and/or guidelines to assessing the target. See

Second Supp. Hardy Decl. ¶¶ 9, 16. For example, on page one of

the EC, the information redacted pursuant to Exemptions 7(A) and

7(E) includes part of the “Title” of the Assessment and the words

following “the Newark Domain Management Team is initiating a Type

Defendants have explained that this EC was determined to be 2

non-responsive to Plaintiff’s request for 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. See Dkt. #

26-1 (Defs. March 16, 2012, MSJ) at 2; see also Dkt. # 20-3

(Hardy Ex. A, Pl. FOIA Request). Defendants voluntarily produced

this document in light of Plaintiff’s stated interest in “two-tothree page electronic communications authorizing the opening of

Domain Management investigations.” Dkt. # 21-1 (Pl. CrossMotion) at 18. 

6

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4 Assessment on [redacted].” Second Supp. Hardy Decl. Ex. A at

1. Page two contains explanation of the assessment and

background information on the groups. Id. at 2. This

information clearly concerns the identity of the domestic

terrorist groups being assessed, information not sought by

Plaintiff. Similarly, on page three, the EC states that the

FBI’s assessment is to “identify preliminary domain awareness on

the threat from [redacted]” and that “[b]ased upon guidance from

the Domain Management Section, the NK Domain Team will consider

the following questions in this Assessment . . . [partially

redacted].” Id. at 3. This information also concerns the

identity of the groups as well as guidance for the investigation

or the “questions and criteria” for evaluating the threat posed

by the groups, which Plaintiff does not challenge. Id. p. 3-5. 

Thus, the document itself demonstrates that no further

segregation is possible without revealing protected information

not already available to the public. 

Third, given that the release of any racial or ethnic

information from the EC would reveal the identity of the groups

and/or what the FBI does or does not know about them or does or

does not plan to consider as part of the assessment, the logic of

the public-domain doctrine - that “enforcement of an exemption

cannot fulfill its purposes” once the information is already

publicly available - does not hold true here. See Afshar, 702

F.2d at 1130. As Mr. Hardy has explained, disclosure of this

7

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information would serve as notice to the groups that they are the

focus of ongoing, active investigations. Second Supp. Hardy

Decl. ¶ 9. Armed with this knowledge, the groups could engage in

activities or alter their behavior to avoid detection and/or

further investigation. Id. Likewise, disclosing aspects of the

FBI’s approach to assessing these groups (including whether the

FBI is, in fact, utilizing census data and population statistics

as part of its ongoing investigation) would educate the groups on

when/where to cease activities and when/where to proceed or how

to circumvent certain FBI techniques and law enforcement efforts. 

Id. ¶ 16. 

Plaintiff contends that Defendants have only offered

“conclusory and speculative statements” that disclosure would

result in circumvention of the law, Pl. Memo at 28, but the

exactitude Plaintiff seeks is not required by courts or the FOIA. 

FOIA requires only that an agency “could reasonably [] expect[]”

interference with an investigation or circumvention of the law. 

5 U.S.C. §§ 552(b)(7)(A), (C). In light of this “broad and

general” language, courts have held that “a highly specific

burden of showing how the law will be circumvented” is not

required; instead, and agency need only “‘demonstrate[ ]

logically how the release of [the requested] information might

create a risk of circumvention of the law.’” Mayer Brown LLP v.

IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009) (quoting PHE, Inc. v.

8

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Dep't of Justice, 983 F.2d 248, 251 (D.C. Cir. 1993)). That

Defendants have clearly done. 

Finally, Plaintiff’s citation to other documents released by

other FBI field offices in an attempt to downplay any harm

articulated by Mr. Hardy is unavailing. See Pl. Memo at 26. 

These documents pertain to other FBI offices’ domains and may or

may not concern active investigations as the EC at issue here

does. See Second Supp. Hardy Decl. ¶ 9. And the fact that

Defendants released some census figures from other documents

“does not eliminate the possibility that further disclosures can

cause harm,” Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir.

1990), especially since any racial or ethnic information in this

EC is tailored to these groups and is currently being used in an

investigation. See Second Supp. Hardy Decl. ¶¶ 9, 16. The FBI

has determined that there is a real, identifiable risk of

interference with an open investigation and circumvention of law

enforcement efforts if the redacted information is released. Id. 

It has articulated that potential risk with reasonable

specificity. Id. Consequently, Defendants’ withholdings should

be upheld. See Am. Friends Serv. Comm. v. Dep’t of Defense, 831

F.2d 441, 444 (3d Cir. 1987).3

For these reasons, the Court should also deny Plaintiff’s 3

request for in camera review of the EC. In camera review “should

not be resorted to as a matter of course, simply on the theory

that ‘it can’t hurt.’” Quinon v. FBI, 86 F.3d 1222, 1228 (D.C.

Cir. 1996). Rather, as the court in Makky v. Chertoff explained,

it is a procedure available to courts when agencies have offered

9

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II. Plaintiff’s Proposed Procedures for Litigating FOIA’s

Exclusion Provisions are Untimely, Unworkable, and Contrary 

to Congressional Intent.

In Plaintiff’s Reply Memorandum, Plaintiff proposes novel

procedures for adjudication of its claim under Section 552(c) of

the FOIA. See Pl. Memo at 30. As Defendants have explained,

Congress added Sections 552(c)’s three provisions to the FOIA to

create a mechanism for protecting especially sensitive law

enforcement materials, including documents concerning (1) ongoing

criminal investigations, (2) informant identities, and (3)

classified foreign intelligence or international terrorism

information. 5 U.S.C. §§ 552(c)(1)-(3). To ensure total secrecy

as to the existence of any documents in these categories,

Congress provided that agencies - in the face of a request that

touches upon such records - may treat these law enforcement and

national security records “as not subject to the requirements” of

FOIA. Id. In litigation, if a plaintiff-requester raises a

claim regarding an agency’s reliance on Section 552(c), an agency

is to submit an ex parte, in camera declaration addressing that

claim, regardless of whether the government relied on any

exclusion provision. Responding in such a manner in every case

in which a 552(c) claim is raised is necessary to prevent

only conclusory affidavits, when an agency’s justifications for

its withholdings are contradicted by the record, or when there is

evidence of bad faith. 489 F. Supp. 2d 421, 441 (D.N.J. 2007). 

This is not the case here.

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requesters (and the public) from being able to determine, by

process of elimination, when records have actually been excluded. 

See Memorandum from Attorney General Edwin Meese on the 1986

Amendments to the FOIA (Dec. 1987) (“Attorney General Memo”) at

29-30 (available at www.justice.gov/oip/86agmemo.htm#exclusions). 

Because Plaintiff raised a 552(c) claim in its January 20,

2012, Cross-Motion for Summary Judgment, Defendants have followed

these procedures in this case. Now, near the completion of

briefing of Defendants’ two Motions for Summary Judgment, see

Dkt. # 20, 26, and Plaintiff’s two Cross-Motions for Partial

Summary Judgment, see Dkt. # 21, 27, Plaintiff asks the Court to

rewind the clock and adopt new procedures for adjudicating its

Section 552(c) claim. Plaintiff proposes the Court adopt

“Glomar-like” procedures, asking the Court to require defendantagencies to submit “public court filing[s]” indicating whether

the agencies interpret all or part of a plaintiff’s FOIA request

as seeking records that, if they exist, would be excludable under

Section 552(c). Pl. Memo at 36. The parties would then “brief

the propriety of any such hypothetical invocation,” id. at 38

n.21, and the Court would ultimately rule as to whether the type

of information sought by the plaintiff, if it exists, is

excludable, id. at 37. Plaintiff’s proposal, however, should be

rejected for several reasons, including that it is untimely,

unworkable, and contrary to Congressional intent, both in this

case and as a general matter. 

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First, as noted, Defendants have already submitted an in

camera, ex parte declaration to the Court, thereby allowing the

Court to determine whether any exclusion, if in fact utilized,

was proper. Plaintiff’s proposal would have the Court back

track, ignore Defendants’ submission, and invite the parties to

engage in a whole new round of briefing, wherein the parties

would litigate words of the FOIA request and hypothetical

situations in which those words may call for excludable records. 

But the Court need not adjudicate hypotheticals, as it already

has the precise information it needs before it. As other courts

have done when presented with 552(c) in camera submissions, the

Court can determine the correctness of any reliance on the

exclusion provisions, and then state on the public record that

“if an exclusion was in fact employed, it was, and continues to

remain, amply justified.” See, e.g., Steinberg v. Dep’t of

Justice, 1997 WL 349997, *1 (D.D.C. June 18, 1997); Beauman v.

FBI, No. 92-cv-7603, slip op. at 2 (C.D. Cal. April 12, 1993). 

Plaintiff’s proposal, at this time, is inefficient and

unnecessary. 

Second, Plaintiff’s proposal is unworkable, as Glomar-like

procedures, or any explanation on the public record, will not

protect the interests of the government (and national security)

that Section 552(c) was designed to protect. The “Glomarization”

principle provides that an agency may properly respond to a FOIA

12

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request by refusing to confirm or deny the existence of 

responsive records where to do otherwise could in and of itself

cause harm cognizable under a particular FOIA exemption. See

Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). In refusing to

confirm or deny the existence of records, however, an agency must

explain which FOIA exemption “would itself preclude the

acknowledgment of such documents[.]” Pipko v. CIA, 312 F. Supp.

2d 669, 680 (D.N.J. 2004). In other words, a Glomar response “by

its nature operates necessarily on the basis of (and openly

connected with) specified FOIA exemptions[.]” Attorney General

Memo at 26; see also Pipko, 312 F. Supp. 2d at 679 (“The CIA’s

right to make a Glomar response in any given case depends upon

whether the affidavits provided by the Government support a

denial of the plaintiff’s FOIA request under the proffered FOIA

exemptions.”) (emphasis added). Because of this, even a Glomar- 4

 An examination of cases in both the Third Circuit and 4

other circuits reveals that courts analyze Glomar responses in

the context of specific FOIA Exemptions. See, e.g., Wolf v. CIA,

473 F.3d 370, 375 (D.C. Cir. 2007) (as cited by Plaintiff at Pl.

Memo at 36 n.19 ) (“The question, then, is whether the existence

of Agency records regarding an individual foreign national

constitutes information itself protected by either FOIA Exemption

1 or Exemption 3.”) (emphasis added); Cozen O’Connor v. U.S.

Dep’t of Treasury, 570 F. Supp. 2d 749, 786 (E.D. Pa. 2008) (“In

its Glomar response, the agency must cite the exemptions it

asserts and provide sufficient information for the court to

determine whether the Glomar response is justifiable.”); Wilner

v. Nat’l Sec. Agency, 2008 WL 2567765, *3 (S.D.N.Y. June 25,

2008) (“The Glomar Response does not stand alone; rather,

defendants must tether it to one of the nine FOIA exemptions, and

explain why the requested documents fall within the exemption

identified.”), aff’d 592 F.3d 60 (2d Cir. 2009). 

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like response to a question about 552(c)’s exclusion provisions

can compromise the secret, sensitive information the exclusions

are intended to protect. 

To illustrate: if a criminal, publicly known to be under

investigation by the FBI, requests all records on himself that

involve wire tapping, the FBI could respond that it can neither

confirm nor deny the existence of such records, because to do so

may interfere with a pending investigation, see Exemption 7(A). 

A Glomar response in this instance would adequately protect the

sensitive information at hand: whether the FBI is, in fact,

employing wire taps as part of its investigation into the

requester. If, however, that same requester does not know

whether an investigation has been initiated against him and

submits the same request for all records on himself that involve

wire tapping, the identical Glomar response - that the FBI could

neither confirm nor deny the existence of such records because to

do so may interfere with a pending investigation - would alert

the requester of the existence of the investigation, information

the FBI may need to protect if it believes its disclosure could

reasonably be expected to interfere with the investigation.

It is this very conundrum that lead Congress to amend the

FOIA to include Section 552(c)’s exclusion provisions. Congress

recognized that there are times when any “response to a FOIA

request amounts to an acknowledgment by the FBI that a file

exists on a specific subject and alerts hostile intelligence

14

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services that an investigation is underway or has taken place.” 

132 Cong. Rec. 26763, *27142 (1986). Thus, Congress provided

that documents that fall under Section 552(c) categories may be

treated “as not subject to the requirements of [FOIA]” - a phrase

unique to Section 552(c). As Senator Hatch explained, “while the

effect of [the exclusion] will be somewhat analogous to the

situation in which an agency neither confirms nor denies the

existence of responsive records - colloquially known as

Glomarization - their operation, both administratively and in

court, will be different.” 132 Cong. Rec. 31424 (1986) (emphasis

added). 

Here, Plaintiff asks Defendants to point to the FOIA request

and argue why Defendants interpret some portions (or all) of the

request as seeking records, that if they exist, would be

excludable under one of the three exclusion provisions and

therefore are not processing those portions (or all) of the

request. Plaintiff would then “brief to this Court its argument

that the types of records sought, if they exist, would not fall

within the exclusion.” Pl. Memo at 37. But the exclusion

provisions do not turn on interpretations of FOIA requests;

instead, they turn on external facts, such as whether there is a

criminal investigation underway and whether there is reason to

believe that the subject of the investigation is unaware of its

pendency and could interfere with the investigation if he or she

15

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knew of its existence. See 5 U.S.C. § 552(c)(1)(A)-(B). 

Consequently, one must ask: under Plaintiff’s proposed

procedures, what could the parties say in their briefs? If

Defendants were relying on an exclusion to shield information in

this case, such as Exclusion (c)(1), Plaintiff’s proposed Glomarlike procedures would require Defendants to identify that

exclusion, possibly tipping their hand to the existence of an

open yet secret criminal investigation, 5 U.S.C. § 552(c)(1). In

support of Defendants’ argument that documents, if they exist,

should be shielded pursuant to Exclusion (c)(1), however,

Defendants could do nothing more than parrot the language of the

exclusion provision, leaving Plaintiff little to respond to in an

opposing brief. If, on the other hand, Defendants were not

actually relying on an exclusion in this case, Defendants would

nonetheless have to state that there could possibly be

information that can be withheld pursuant to Exclusion (c)(1),

for to do otherwise would allow requesters to determine, by

process of elimination, when records have actually been excluded. 

Again, in support of Defendants’ hypothetical invocation of

Exclusion (c)(1), Defendants would describe hypothetical

documents that fall precisely under the contours of Exclusion

(c)(1), to which Plaintiff would have no viable response. 

Clearly, proceeding in this manner does not provide the

“meaningful judicial review” Plaintiff seeks. See Pl. Memo at

37. Although Plaintiff laments the one-sided nature of the in

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camera, ex parte submission by Defendants, the procedures as they

exist now place before the Court the facts of whether Defendants

have relied on 552(c) and, if so, which documents they are

shielding, thereby allowing the Court to more honestly adjudicate

Plaintiff’s 552(c) claim. Neither the Court nor the parties need

expend time litigating hypotheticals, as Plaintiff admits its

proposed procedures require the Court and parties to do. See Pl.

Memo at 38 n.21 (suggesting the parties should brief the

propriety of any “such hypothetical invocation”). Thus, for all

of these reasons, Plaintiff’s newly proposed procedures should be

rejected.

Finally, this Court should also deny Plaintiff’s request for

the Court to issue a sealed opinion setting forth the Court’s

reasoning upholding or rejecting Defendants’ invocation of

Section 552(c). Such a practice of issuing sealed opinions on

552(c) claims is not tenable, as total secrecy is needed in order

to ensure the exclusions actually fulfill their purpose. If, for

example, the FBI excluded records pursuant to 552(c)(3) because

the records pertain to foreign intelligence and their existence

is classified, a discussion of those records and the validity of

the 552(c)(3) invocation would reveal the existence of the

records to counsel for Plaintiff, who do not have the necessary

clearance to be privy to such classified information. Likewise,

if a plaintiff requests records on himself, and he is, in fact,

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the subject of an investigation of which he is not aware, any

sealed decision in which a court would provide its reasoning

would disclose to the requester the existence of that

investigation, thereby nullifying the purpose of 552(c)(1). 

Moreover, it is no answer to say that a sealed opinion could be

shared only with plaintiff’s counsel, and not the requester, for

a requester may be appearing pro se, and if he is not, providing

this secret information to his attorney and asking the attorney

not to share it with the client strains the attorney-client

relationship. For these reasons, similar requests for a sealed

opinion have been rejected by other courts, and this Court should

do the same here. See Islamic Shura Council of Southern Cal. v.

FBI, 635 F.3d 1160, 1167-69 (9th Cir. 2011) (recognizing that

“[i]n camera proceedings are [] sufficient to comply with both

due process and the purposes of the FOIA” and that a Court’s

decision on the government’s in camera, ex parte 552(c)

submission should be withheld from the public, from the

plaintiffs, and from plaintiffs’ counsel, “in order to avoid an

intolerable conflict of interest”); cf. Arieff v. U.S. Dep’t of

Navy, 712 F.2d 1462, 1470 (D.C. Cir. 1983) (recognizing that

allowing opposing counsel but not the opposing party to see

protected information in a FOIA case “strains the attorney-client

relationship” and puts “the attorney in the position of knowing,

and being unable to disclose to his principal, the very data he

has been retained to acquire”); Steinberg v. Dep’t of Justice,

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1997 WL 349997, *1 (denying a Motion that sought additional

clarification on the Court’s decision under 552(c)). 

CONCLUSION 

For the foregoing reasons, Defendants respectfully request

that the Court grant Defendants’ March 16, 2012, Motion for

Summary Judgment as to Defendants’ February 22, 2012,

Supplemental Release; deny Plaintiff’s April 2, 2012, CrossMotion for Partial Summary Judgment as to Defendants’ February

22, 2012, Supplemental Release; and deny Plaintiff’s request for

new procedures for adjudication of its Section 552(c) claim.

DATED: April 13, 2012 Respectfully submitted,

STUART F. DELERY 

Acting Assistant Attorney General

 

PAUL J. FISHMAN

 United States Attorney

JOHN TYLER

Assistant Director 

Federal Programs Branch

/s/ Deanna L. Durrett 

DEANNA L. DURRETT (NY BAR)

U.S. Dept. of Justice, 

Civil Division

Federal Programs Branch

26 Federal Plaza 

New York, NY 10278

(212) 264-9232 phone

(212) 264-1916 fax

Deanna.L.Durrett@usdoj.gov

Attorneys for Defendants

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