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"), 5 U.S.C. § 552 (2009). The ACLU claims that the United States District Court for the District of New Jersey ("District Court") erred in allowing the FBI to withhold 284 pages of responsive material pursuant to certain exemptions under the FOIA. The ACLU also challenges the in camera procedure employed by the District Court for determining whether the FBI's reliance on the FOIA's exclusion provision was justified, if such reliance in fact occurred, and urges us to remand to employ a "Glomar-like" procedure instead. For the reasons that follow, we will affirm the judgment of the District Court and decline to adopt the ACLU's novel proposal.
In the wake of September 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),
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 5 U.S.C. §§ 552(b)(1) ("Exemption 1"), (b)(7)(A) ("Exemption 7A"), (b)(7)(C) ("Exemption 7C"), (b)(7)(D) ("Exemption 7D"), and (b)(7)(E) ("Exemption 7E").
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 certain 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 5 U.S.C. § 552(c) (the FOIA's "Exclusion Provision") to withhold additional, unidentified records, and the justification for this exclusion if it occurred. The FBI submitted such a declaration on February 9, 2012.
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 Section 552(c) issue was inadequate and urged the District Court to adopt a procedure "akin to the Glomar procedure established by the D.C. Circuit in Phillippi v. CIA, 546 F.2d 1009 (D.C.Cir.1976)."
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.
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 5 U.S.C. § 552(a)(4)(B), 28 U.S.C. § 1331, and 5 U.S.C. §§ 701-706 and we exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291. Due to the "unique configuration" of summary judgment in a FOIA case, in which "the opposing party (generally the requester) does not ordinarily have the factual information upon which the moving party (generally the agency) has relied," this Circuit has held that "the familiar standard of appellate review promulgated by Federal Rule of Civil Procedure 56(c) does not apply." McDonnell v. United States, 4 F.3d 1227, 1241-42 (3d Cir.1993). Instead, "[w]e employ a two-tiered test" under which we first determine "whether the district court had an adequate factual basis for its determination" and, if we find such a basis, "must then decide whether that determination was clearly erroneous." Abdelfattah v. United States Dept. of Homeland Sec., 488 F.3d 178, 182 (3d Cir.2007). Because we conclude that ample evidence supported the District Court's conclusion that the FBI satisfied its burden under Exemption 7A, we will affirm. Accordingly, we need not decide whether the FBI's reliance
The FOIA requires any "agency," upon "any request," to make records "promptly available to any person." 5 U.S.C. § 552(a)(3)(A). The purpose of this requirement is "to facilitate public access to Government documents," and therefore its "dominant objective" is "disclosure, not secrecy." Sheet Metal Workers Int'l Ass'n, Local Union No. 19 v. United States Dep't of Veterans Affairs, 135 F.3d 891, 897 (3d Cir.1998) (internal quotation marks and citations omitted). Because "[p]ublic access to government information is not ... all encompassing," however, the FOIA "exempt[s] nine categories of documents from [its] broad disclosure requirements." Id. (internal quotation marks and citations omitted).
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." § 552(b)(7)(A). "The agency bears the burden of justifying the withholding, and the [district] court reviews the agency claims of exemption de novo." OSHA Data/CIH Inc. v. United States Dep't of Labor, 220 F.3d 153, 160 (3d Cir.2000). This burden may be satisfied by affidavits that describe the material withheld and why that material falls under a particular exemption. McDonnell, 4 F.3d at 1241. An agency is entitled to summary judgment when these affidavits "describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption..., and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Davin v. United States Dep't of Justice, 60 F.3d 1043, 1050 (3d Cir.1995).
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 are not "reasonably specific" and are "called into question by contradictory evidence."
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.
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.
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 information.
We next address the ACLU's argument that this case should be remanded to apply its proposed "Glomar-like" procedure to the Section 552(c) issue — i.e. whether, if the FBI withheld responsive documents pursuant to FOIA's exclusion provision, such withholding was proper. The ACLU proposed this procedure after they had already proposed — and the District Court had already conducted — an in camera review of the Section 552(c) issue. The District Court declined to adopt the ACLU's "Glomar-like" procedure, and we review this decision for abuse of discretion. See Larson v. Dep't of State, 565 F.3d 857, 859 (D.C.Cir.2009) (reviewing for abuse of discretion district court's decision not to conduct in camera review); In re Grand Jury Subpoena, 223 F.3d 213, 219 (3d Cir. 2000) (reviewing for abuse of discretion district court's decision to rely on ex parte government affidavit in determining that crime-fraud exception applies to attorney-client communications). We hold that no abuse of discretion occurred.
The ACLU's proposed procedure is modeled after the procedure developed in Phillippi v. C.I.A., 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 Section 552(c). See Am. Civil Liberties Union of Michigan, ___ F.3d at ___, 2013 WL 4436533, at *7. 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. Phillippi, 546 F.2d at 1013. Under this procedure, the Government's explanation is to be reviewed in camera only as a last resort. See id. The ACLU proposes that this "Glomar procedure" be adapted to the Section 552(c) context to operate as follows:
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 exception" 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. 5 U.S.C. § 552(a)(4)(B) (providing that the District Court "may examine the contents of ... agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions."). Though the ACLU 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.
Since passage of Section 552(c), it has been the Government's "standard litigation policy" to respond to a FOIA plaintiff's suspicions that an exclusion was used with "an in camera declaration addressing this claim, one way or another." Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act, § G.4 & n.47 (Dec.1987). The courts that have addressed this practice have generally approved. See, e.g., Am. Civil Liberties Union of Michigan, ___ F.3d at ___, 2013 WL 4436533, at *10 (approving of procedure and collecting cases).
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 little to facilitate judicial review:
Am. Civil Liberties Union of Michigan, ___ F.3d at ___, 2013 WL 4436533, at *10. 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 amply justified.
For the foregoing reasons, we will AFFIRM the judgment of the District Court.
