U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

ACLU FOIA Request Denied: FBI Maps of Ethnic Groups Stays Secret

The FBI's Domestic Investigations and Operations Guide (DOIG) allows it to use race and ethnic identity to map out "locations of concentrated ethnic minorities" for purposes of investigating and analyzing "potential threats and vulnerabilities" (think anti-terrorism).

The ACLU, meanwhile, is concerned that the FBI is engaging in ethnic and racial profiling, and would like to see copies of the data gathered by the FBI, courtesy of the Freedom of Information Act. The FBI responded to the ACLU's request by identifying over 1,500 documents that were relevant, yet only turned over 356 pages, some of which were redacted, citing an exception related to ongoing criminal investigations.

The ACLU wants the rest of the documents, including 75 maps, 25 "domain information notes," and a "program assessment" from the FBI's Detroit office.

Too bad.

The Sixth Circuit denied the ACLU's request to release the documents, as well as their request for a public hearing to determine which, if any, should remain sealed. Instead, the materials withheld will be reviewed in camera by a district court judge to ensure that the materials fall under the claimed exemptions.

The most cited exception by the FBI was Exception 7(A) (codified at 5 U.S.C. § 552(b)(7)(A)), which permits withholding of information if the information (1) is gathered for law enforcement purposes and (2) its release could reasonably be expected to interfere with those purposes.

That first element is a given. The FBI isn't the census -- if it is mapping ethnic or racial data, it is almost certainly doing so for a reason. The ACLU conceded this point.

As for potential interference, the ACLU argues that that FBI's data comes from publicly-known information, and therefore, re-disclosure of information already available to the public couldn't interfere with the investigation.

Judge Danny Boggs wasn't convinced, stating, "Our intelligence and law-enforcement agencies are awash in a sea of data, much of it public, so a choice to focus on a particular slice of that data directly reveals a targeting priority, and indirectly reveals the methodologies and data used to make that selection. There is no way to release certain types of public information without showing the FBI selection process."

Add in the deference due to the FBI's determination that release of the data is a risk, and this opinion may have been a foregone conclusion.

This doesn't necessarily mean that the ACLU will never gain access to the data. The district court judge could find, after an in camera review, that release would be harmless. Or, after the investigations are complete, the data could be released years from now.

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