Argued September 10, 2013
On Appeal from the United States District Court for the District of New Jersey District Court No. 2-11-cv-02553 District Judge: The Honorable Esther Salas
Nusrat J. Choudhury [ARGUED] Hina Shamsi American Civil Liberties Union Counsel for Appellant
Matthew M. Collette Catherine H. Dorsey [ARGUED] United States Department of Justice Civil Division Room Deanna L. Durrett United States Department of Justice Civil Division, Federal Programs Branch Counsel for Appellee
Before: SMITH, SLOVITER, and ROTH, Circuit Judges
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 Domestic Investigations and Operations Guide ("DIOG") released by the Attorney General of the United States in 2008. FBI, Domestic Investigations and Operations Guide (Dec. 16, 2008). Among other things, the DIOG authorizes FBI agents to engage in limited racial and ethnic profiling when conducting proactive assessments of criminal and terrorist threats. Id. at 17. Specifically, the DIOG allows FBI agents to identify and map "locations of concentrated ethnic communities" if doing so would "reasonably aid the analysis of potential threats and vulnerabilities" and "assist domain awareness for the purpose of performing intelligence analysis." Id. The DIOG also allows the FBI to collect and map data related to "[f]ocused behavioral characteristics reasonably believed to be associated with a particular criminal or terrorist element of an ethnic community." Id. at 44.
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),  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 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"). In support of this motion, the FBI submitted declarations by David Hardy, the Section Chief of the FBI Record/Information Dissemination Section ("Hardy Declarations") that describe in detail each piece of information withheld and explain why it was exempted from disclosure under the FOIA, as well as a "Vaughn index" that conveys similar information in table format.
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 ...