American Civil Liberties Union v. Federal Bureau of Investigation
2013 U.S. App. LEXIS 17457
6th Cir.2013Background
- In 2008 the FBI issued DIOG guidance permitting mapping and collection of community-level racial/ethnic demographic and behavioral information when relevant to investigations.
- In 2010 ACLU of Michigan submitted a FOIA request for Detroit Field Office records (2007–2008+) about FBI implementation and use of such demographic mapping and related materials. Litigation followed after partial releases.
- The FBI identified 1,553 potentially responsive pages (training materials, domain intelligence notes, program assessments, electronic communications, maps); it released some, redacted portions of others, and withheld many pages invoking Exemptions 7(A) and 1 and sometimes § 552(c) exclusions.
- The FBI supported withholding with a Hardy declaration and a Vaughn index, asserting disclosure would reveal investigative priorities, methods, targets, sources, and classified intelligence, thereby interfering with ongoing and prospective investigations.
- The district court granted summary judgment to the FBI, finding Exemption 7(A) and Exemption 1 applicable and rejecting ACLU’s arguments that the records were public or that a public Glomar-like adjudication under § 552(c) was required; the ACLU appealed.
- The Sixth Circuit affirmed: selective disclosure of public-source demographic information can reveal FBI targeting and analytic methods and thus reasonably could be expected to interfere with enforcement proceedings; in camera review is appropriate for § 552(c) questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 7(A) permits withholding of FBI records that use public racial/ethnic data | ACLU: demographic data are public; disclosure therefore cannot reasonably be expected to interfere with enforcement | FBI: selective use/analysis of public data reveals investigative priorities, methods, and could enable evasion | Held: 7(A) applies — release of analyzed/selected public data can reveal targeting and interfere with investigations |
| Whether the FBI provided sufficient specificity to justify withholding and receive deference | ACLU: FBI’s declarations lack reasonable specificity and other field offices released similar materials, undermining claimed harms | FBI: Hardy declaration and Vaughn index adequately describe harms; national-security context warrants deference | Held: FBI provided adequate detail; deference appropriate given national-security/law-enforcement concerns |
| Whether the FBI met the segregability obligation under FOIA | ACLU: FBI failed to disclose reasonably segregable nonexempt portions | FBI: segregable material is inextricably intertwined with exempt analysis; agency already produced many partial redactions | Held: FBI’s effort adequate; much allegedly nonexempt material would reveal sensitive methods or be inextricably intertwined |
| Proper procedure for resolving alleged use of § 552(c) exclusions (Glomar issue) | ACLU: courts should adopt a public, adversarial Glomar-like procedure (answer hypotheticals publicly) | FBI: public hypotheticals are impractical and risk revealing secrets; in camera ex parte submissions and judicial review are sufficient and protective | Held: Affirmed use of in camera, ex parte declarations; ACLU’s public-hypothetical procedure rejected as unnecessary and unsafe |
Key Cases Cited
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.) (establishes Vaughn index procedure for FOIA review)
- Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir.) (recognizes Glomar non-acknowledgment for sensitive records)
- Rugiero v. Dep’t of Justice, 257 F.3d 534 (6th Cir. 2001) (agency affidavits entitled to presumption of good faith in FOIA review)
- Jabara v. Webster, 691 F.2d 272 (6th Cir. 1982) (supports in camera review for sensitive national-security FOIA matters)
- Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) (deference to agency on national-security risks under FOIA exemptions)
- Benavides v. Drug Enforcement Admin., 968 F.2d 1243 (D.C. Cir. 1992) (discusses § 552(c)(2) informant-confirmation context)