ACLU of Mich. v. FBI, No. 12-2536, 2013 WL 4436533 (6th Cir. Aug. 21, 2013) (Boggs, J.)

Date: 
Wednesday, August 21, 2013
Re: Request for records concerning the FBI’s "use of community-level racial and ethnic demographic data" Disposition: Affirming district court's judgment in favor of the FBI
  • Exemption 7A:  The Sixth Circuit holds that the FBI properly invoked Exemption 7(A) to withhold maps, intelligence notes, program assessments and electronic communications pertaining to "the FBI's use of race and ethnic identity in assessments and investigations." Plaintiff-appellant "does not dispute that the information is being used in 'pending or prospective' enforcement proceedings, but only that the FBI failed to show that release could reasonably be expected to cause some articulable harm."  The court concludes that the FBI adequately demonstrated "that release of racial and ethnic demographic data is reasonably likely to interfere with ongoing investigations by revealing FBI priorities and analytic methods."  The court finds that "[t]he FBI's declaration – that release of this information may reveal what leads the FBI is pursuing and the scope of those investigations, permitting groups to change their behavior and avoid scrutiny – amply states a type of interference covered by Exemption 7(A)."  The court notes that "[t]he FBI is not attempting to keep demographic data from the census secret – which it could not, by definition – but its methods of selecting what data to analyze and the analysis of that data."  "[A]nalysis of the selected public source data is informed by internal FBI methodologies, priorities, and knowledge."  "All but data in the rawest form will alert criminal and terrorist elements to how the FBI uses demographic information in its investigations, allowing such groups to avoid the FBI investigations."
  • Waiver:  The Sixth Circuit rejects the argument that the information must be released because other FBI offices have released information similar to the material at issue in this case.  "Similar information may be treated differently by different field offices, for example, where one has a pending investigation and one has a closed investigation."  "Further, while the racial and ethnic demographic data used by the different offices is superficially similar, the use – and sensitivity – of such data will vary depending on local conditions."  The court further notes that here "[t]here is no actual contradiction between those releases and the FBI affidavits in this case."  "[T]he other field office releases are only similar in that they only dealt with racial and ethnic demographic data, while the released Michigan Domain Assessment is at a high level of generality."  In addition, "[c]ourts have rejected the disclosure-of-some-is-disclosure-of-all argument in much closer cases."
  • Segregability: The Sixth Circuit finds that the FBI reasonably segregated the responsive material. The court first notes that "[d]isclosing even the raw racial and demographic data on which the FBI relies would reveal targeting priorities and methodologies."   Additionally, "the FBI's document descriptions are detailed enough to support a conclusion that the 'exempt and non-exempt information are 'inextricably intertwined,' such that the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value.'"
  • Exclusions:  The Sixth Circuit rejects plaintiff-appellant's argument that the court should adopt "a public adversarial proceeding to adjudicate § 552(c) disputes" instead of the current process of in camera review by the district court.  The Sixth Circuit states that "[in] the FOIA context, it is well established that in camera review by the district court of sensitive national security matters strikes the appropriate balance of protecting the secret while providing meaningful judicial review."
Topic: 
Court of Appeals
Exclusion
Exemption 7A
Segregability
Waiver
Updated August 6, 2014