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ACLU of New Jersey v. FBI, 733 F.3d 526 (3rd Cir. 2013) (Smith, J.)

Re: Request for records related to the FBI's use of ethnic and racial data Disposition: Affirming the district court's grant of summary judgment to defendant
  • Exemption 7(A):  The Third Circuit concludes that, "ample evidence supported the District Court's conclusion that [defendant] satisfied its burden under Exemption 7A," and, "[a]ccordingly, [the court] need not decide whether [defendant's] reliance on Exemption 1 or Exemption 7(E) was proper."  The court notes that, "[plaintiff] does not contest that the information withheld by [defendant] was 'compiled for law enforcement purposes' and argues only that [defendant] has not demonstrated that production of this information could 'reasonably be expected to interfere with enforcement proceedings.'"  The court first, "reject[s] [plaintiff's] argument that [defendant'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."  The court explains that, "[c]ommon sense itself suggests that different data related to different ethnic populations in different cities used in completely different [agency] investigations can vary greatly in sensitivity."  Second, the court, "also disagree[s] with [plaintiff] that [defendant's] Declarations lack reasonable specificity when describing the risk of harm from disclosure."  "[Defendant's] Declarations provide a section-by-section description of each of the withheld documents."  "[Defendant's] 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 [defendant's] investigatory efforts."  Third, the court, "further disagree[s] with [plaintiff] 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 court explains that, "[t]his argument misses the obvious point that while the demographic data itself may be public, its use by [defendant] is certainly not."
  • Exclusions:  The Third Circuit rejects, "[plaintiff's] argument that this case should be remanded to apply [plaintiff’s] proposed 'Glomar-like' procedure to the Section 552(c) issue—i.e. whether, if [defendant] withheld responsive documents pursuant to FOIA's exclusion provision, such withholding was proper."  The court first finds that, "[t]hough [plaintiff] argues that Section 552(c)'s legislative history evidences an intent to incorporate a 'Glomar-like procedure,' we find that this evidence is inconclusive at best."  The court explains that, "[i]n short, we find no legal authority compelling the District Court to employ [plaintiffs] proposed procedure."  The court also finds that it is not "convinced that adopting [plaintiff's] proposed procedure would be wise from a policy perspective."  The court explains that, "[u]nder [plaintiff'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 requirements."  The court states that, "[t]his 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 withheld 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."  The Third Circuit concludes that “[b]y 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.”  This “provides for more meaningful judicial review than does the ‘Glomar-like’ method” proposed by plaintiff.   After conducting such a review of the agency’s in camera declaration, the Third Circuit “conclude[s] that the District Court did not err in concluding that if an exclusion was employed, it was and remains amply justified.”
Court Decision Topic(s)
Court of Appeals opinions
Exemption 7(A)
Updated August 6, 2014