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Media Alerts - American Civil Liberties Union v. FBI - Third Circuit
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November 1, 2013
  American Civil Liberties Union v. FBI - Third Circuit
Headline: Third Circuit Affirms Decision Upholding Freedom of Information Act Exemptions for FBI Documents

Area of Law: Freedom of Information Act

Issue(s) Presented: Whether the FBI properly exempted certain documents under the Freedom of Information Act?

Brief Summary: Appellant American Civil Liberties Union appealed a decision by the United States District Court for the District of New Jersey allowing the Federal Bureau of Investigation (FBI) to withhold 284 pages of responsive material pursuant to exemptions under the Freedom of Information Act (FOIA). The ACLU also challenged the in camera procedure used by the District Court to determine whether the FBI's reliance on the FOIA exemptions was justified. The Third Circuit affirmed, holding that the FBI properly withheld the information under the FOIA exemptions.

Extended Summary: After the September 11th terrorist attacks, the FBI restructured their internal guidelines by revising a manual known as the Domestic Investigations and Operations Guide (DIOG), which was released by the Attorney General of the United States in 2008. The DIOG authorizes FBI agents to conduct limited racial and ethnic profiling when conducting assessments of criminal and terrorist threats. The DIOG allows FBI agents to identify and map locations of concentrated ethnic communities if doing so would reasonably aid the discovery of potential threats and vulnerabilities, as well as collect and map data related to focused behavioral characteristics reasonably believed to be associated with a criminal or terrorist element of an ethnic community.

The ACLU launched "Mapping the FBI," which was prompted by a concern that the DIOG would encourage unlawful racial profiling. The initiative included a series of FOIA requests seeking records from New Jersey field offices related to the FBI's use of ethnic and racial data. In response, the FBI identified 782 pages of potentially responsive records, released 312 pages, and withheld 186 pages as duplicative. The FBI also withheld 284 pages as exempt from disclosure under the FOIA.

After exhausting administrative remedies, the ACLU 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 records. The FBI and DOJ moved for summary judgment, arguing that the records were exempt from disclosure under the FOIA. To support the motion, the FBI submitted declarations which described in detail each piece of information withheld and the reason why it was exempt from disclosure under the FOIA. The ACLU filed a cross-motion for summary judgment, arguing that the FBI failed to segregate and disclose all non-exempt material and that the FBI's explanation for withholding certain records was insufficient.

In October 2012, the District Court granted summary judgment for the FBI, holding that the documents were exempt under the FOIA and that the FBI had satisfied its burden of demonstrating that none of the withheld information could be segregated and disclosed.

The ACLU appealed to the Third Circuit, which affirmed the District Court's grant of summary judgment for the FBI. While the Freedom of Information Act requires any agency to make records available on request in order to facilitate public access to Government documents, exemption 7A 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." The ACLU argued that the FBI did not demonstrate that the production of the information could "reasonably be expected to interfere with enforcement proceedings." Specifically, the ACLU argued that the FBI's release of similar racial and ethnic data in response to the FOIA requests contradicts its assertion that the release of the other data would be harmful. The Court rejected the ACLU's argument, reasoning that different data related to different ethnic populations can vary greatly in sensitivity, and that the declarations produced by the FBI provide a section-by-section description that adequately explains how each disclosure would interfere with enforcement proceedings by revealing the target or focus of the FBI's investigatory efforts. The Court also reasoned that the harm from disclosure lies in revealing the FBI's targeting preferences and investigative techniques, not demographic information that is already available to the public.

The Third Circuit also rejected the ACLU's proposed "Glomar-like" procedure developed in Phillippi v. C.I.A. 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. However, the court held that the in camera procedure employed by the District Court provides for more meaningful judicial review than the "Glomar-like" procedure.
The full opinion is available at

Panel: Circuit Judges Smith, Sloviter, and Roth

Argument Date: 9/10/2013

Argument Location: Philadelphia

Date of Issued Opinion: 10/23/2013

Docket Number: No. 12-4345

Decided: Affirmed

Case Alert Author: Larissa Staszkiw

Counsel: Nusrat J. Choudhury and Hina Shamsi, American Civil Liberties Union, Counsel for Appellant; Matthew M. Collette, Catherine H. Dorsey, and Deanna L. Durrett, United States Department of Justice, Counsel for Appellee

Author of Opinion: Judge Smith

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 11/01/2013 10:23 AM     3rd Circuit  

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