                                   PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 12-4345
                  _____________

  AMERICAN CIVIL LIBERTIES UNION OF NEW
                 JERSEY,
                           Appellant

                         v.

    FEDERAL BUREAU OF INVESTIGATION;
         DEPARTMENT OF JUSTICE
              _____________

   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

            Argued September 10, 2013

Before: SMITH, SLOVITER, and ROTH, Circuit Judges

                         1
               (Filed: October 23, 2013)

Nusrat J. Choudhury      [ARGUED]
Hina Shamsi
American Civil Liberties Union
125 Broad Street
18th Floor
New York, NY 10004
       Counsel for Appellant

Matthew M. Collette
Catherine H. Dorsey     [ARGUED]
United States Department of Justice
Civil Division
Room 7212
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Deanna L. Durrett
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Room 7130
Washington, DC 20530
      Counsel for Appellee
                   _______________

                     OPINION
                 ________________
                           2
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.
                           I.
       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
                           3
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
                            4
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

1
 The FBI’s first release on December 22, 2010 consisted of
298 pages. The FBI released an additional 14 pages on June
20, 2011 and an additional six pages on February 22, 2012.
                            5
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”).2 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”3 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

2
  The DOJ and FBI also moved to dismiss the FBI on the
theory that the FBI is not an “agency” under 5 U.S.C. § 552.
The District Court granted this motion, noting only that
“[w]here the DOJ is already a named defendant in a FOIA
case, dismissing the FBI has no legal effect.”
3
  See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
                             6
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, 946
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.

                            7
                            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 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




                            8
reliance on Exemption 1 or Exemption 7(E) was proper.4
                            A.

       The FOIA requires any “agency,” upon “any
request,” to make records “promptly available to any
person.” 28 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

4
 The ACLU does not appeal the District Court’s rulings on
Exemptions 7C or 7D.
                             9
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
                            10
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 Declarations explain that “each office faces
different threats in each domain” and “[i]f similar
information was released in another location, it was
based on a decision specific to that domain and the
relevance of the information to that domain.” Common
sense itself suggests that different data related to different
ethnic populations in different cities used in completely
different FBI investigations can vary greatly in
sensitivity. Further, we share the concern expressed by
the Sixth Circuit in a related case that “if we adopted the
5
  Specifically, the ACLU cites to (1) the FBI’s partial release
of DIN #9 in this case, which concerned an investigation of
the MS-13 gang and contained data on various Hispanic
communities in Newark, New Jersey, (2) a Michigan field
office’s release of a memorandum concerning an
investigation of international terrorist groups that contained
data on “Middle-Eastern and Muslim population[s]” in
Michigan, and (3) a San Francisco field office’s release of a
similar memorandum concerning an investigation of Chinese
and Russian organized crime syndicates that contained data
on Chinese and Russian populations in that area.
                              11
ACLU’s reasoning . . . , agencies would be discouraged
from making a good-faith effort to disclose as many
responsive documents as possible for fear of estoppel.”
Am. Civil Liberties Union of Michigan v. F.B.I., 12-2536,
2013 WL 4436533 at *5 (6th Cir. Aug. 21, 2013).
       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

6
  For example, the description of DIN #1 reveals the date and
the subject line of the document and outlines the document
paragraph by paragraph (“summary paragraph,” “scope
section,” “background section,” “judgments section,” “details
section”).
                             12
detection and/or further investigation.” It is hard to
imagine how the FBI could provide a 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

                             13
withheld information.7 We need not, then, address
whether the FBI has satisfied its burden under Exemption
1 or Exemption 7E with respect to various subsets of this
information.

                           III.

       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

7
  Because we hold that the public source information sought
by the ACLU is itself exempted from disclosure under
Exemption 7A, we need not address the ACLU’s argument
that the FBI failed to disclose all “reasonably segregable”
non-exempt responsive information.
                            14
exception applies to attorney-client communications).
We hold that no abuse of discretion occurred.8

                                  A.

       The ACLU’s proposed procedure is modeled after
the procedure developed in Phillippi v. C.I.A., 564 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, 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, 564 F.3d 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

8
   The ACLU cites McDonnell, 4 F.3d at 1242, for the
proposition that the District Court’s “method for adjudicating
the Section 552(c) claim” should be reviewed de novo. The
only language in this case that could arguably support this
argument refers to “plenary review of issues of law.” Id. We
find Larson v. Dep’t of State, 565 F.3d 857, 859 (D.C. Cir.
2009) and In re Grand Jury Subpoena, 223 F.3d 213, 219 (3d
Cir. 2000) to more directly address the issue of standard of
review in these circumstances, and hold that an abuse of
discretion should apply.
                             15
to the Section 552(c) context to operate as follows:
      [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).

J.A. 1019-20. The ACLU argues that adoption of this
procedure would permit more meaningful judicial review
and better protect the interests of the litigants and the
public. We disagree, and hold that the District Court did
not abuse its discretion by conducting an in camera
review.

                            B.

       District Courts have long enjoyed the discretion
to employ in camera procedures in other circumstances
                            16
involving sensitive information. See, e.g., United States
v. Zolin, 491 U.S. 554, 564 (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.9


9
  The ACLU cites two nearly identical statements by
sponsoring representatives that describe the purpose of
Section 552(c) as codifying the Government’s authority to
neither confirm nor deny the existence of certain records that
                             17
       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, 2013 WL
4436533, at *10 (approving of procedure and collecting
cases).10 In short, we find no legal authority compelling
the District Court to employ the ACLU’s proposed

had been provided in Phillippi, 546 F.2d at 1012. To the
extent we consider these statements to be evidence of
legislative intent, we note that they only purport to
incorporate from Phillippi the Government’s authority to
neither confirm nor deny the existence of records, not the
obligation to publicly justify such a response.
10
   The Sixth Circuit in Am. Civil Liberties Union of Michigan
notes that “[i]n only one narrow context have courts engaged
in public review of the use of a § 552(c) exclusion: with
respect to subsection (2), dealing with an informant’s records
after official confirmation of that informant.” 2013 WL
4436533, at *9 (collecting cases). The ACLU does not
suggest in this case that the FBI is excluding information
related to an officially confirmed informant, or any other
information that is ineligible for exclusion due to public
exposure. Cf. id. (“[T]he ACLU has not suggested that any
excluded materials have been declassified, and thus a public
proceeding on this matter is unnecessary.”).
                             18
procedure.
        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:

      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 requirements. 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
                            19
      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.
Am. Civil Liberties Union of Michigan, 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.

                            IV

          For the foregoing reasons, we will AFFIRM
                            20
the judgment of the District Court.




                            21
