AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, Appellant v. FEDERAL BUREAU OF INVESTIGATION; Department of Justice.
No. 12-4345.
United States Court of Appeals, Third Circuit.
Argued Sept. 10, 2013. Filed: Oct. 23, 2013.
733 F.3d 526
Before: SMITH, SLOVITER, and ROTH, Circuit Judges.
Ethics for Arbitrators in Commercial Disputes, Canon VI(B) (2004); AAA Commercial Arbitration Rules R-23 (2009); UNCITRAL, Arbitration Rules art. 21(3) (2010). Thus, as a rule, arbitration has not “historically been open to the press and the general public.” Press II, 478 U.S. at 8, 106 S.Ct. 2735.6
With this history of arbitration in mind, looking at experience and logic, see Press-Enterprise Co. v. Superior Court of Calif. for the Cnty. of Riverside, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986), I conclude that, historically, arbitration has been private and confidential. Logically, the resolution of complex business disputes, involving sensitive financial information, trade secrets, and technological developments, needs to be confidential so that the parties do not suffer the ill effects of this information being set out for the public—and especially competitors—to misappropriate. For these reasons, there is here no First Amendment right of public access.
In conclusion, then, it appears to me to be very clear that, when the State of Delaware decided to create its arbitration system, it was looking at traditional arbitration, in a confidential setting, before arbitrators experienced in business and corporate litigation. Delaware did not intend the arbitration system to supplant civil trials. Delaware did not intend to preclude the public from attending proceedings that historically have been open to the public. The new system was created to provide arbitration in Delaware to businesses that consented to arbitration—and that would go elsewhere if Delaware did not offer arbitration before experienced arbitrators in a confidential setting.
For the above reasons, I respectfully dissent. I would reverse the judgment of the District Court and uphold the statute and rules which establish the Delaware arbitration system.
Matthew M. Collette, Catherine H. Dorsey [argued], United States Department of Justice, Civil Division, Deanna L. Durrett, United States Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, Counsel for Appellee.
OPINION
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“),
I.
In the wake of Seрtember 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 longstanding internal guidelines in the form of a revised manual known as the
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-abusive-surveillance-and-racial-profiling. One such request 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 documents were exempted from disclosure under
On January 20, 2012, the ACLU filed a cross-motion 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 сertain 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
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
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.
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
A.
The FOIA requires any “agency,” upon “any request,” to make records “promptly available to any person.”
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.”
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 аre not “reasonably 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 Declara-tions
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 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 detection and/or further investigation.” It is hard to imagine how the FBI could provide а 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 withheld informa-tion.7
III.
We next address the ACLU‘s argument that this case should be remanded to apply its рroposed “Glomar-like” procedure to the
A.
The ACLU‘s proposed procedure is modeled after the procedure developed in Phillippi v. CIA, 546 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
[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).
B.
District Courts have long enjoyed the discretion to employ in camera procedures in other circumstances involving sensitive information. See, e.g., United States v. Zolin, 491 U.S. 554, 564, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (upholding ”in camera review of allegedly privileged communications to determine whether those communications fall within the crime-fraud exceрtion” 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.
Since passage of
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 littlе 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 requiremеnts. 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 potentially withhеld 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, 734 F.3d at 472. 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 аmply justified.
IV.
For the foregoing reasons, we will AFFIRM the judgment of the District Court.