The 2008 FBI Domestic Intelligence and Operations Guide ("DIOG") describes the FBI's ability to map racial and ethnic data for purposes of "domain awareness" and "intelligence analysis," according to the ACLU. In 2009, a redacted copy of the guide was released, and later in early 2010 the FBI released a less-censored copy as a result of litigation with the Muslim Advocates.
Based on the DIOG, in 2010 the ACLU, through 34 affiliates, filed public records requests to find out how the FBI is amassing and mapping information regarding racial and ethnic groups. Now, we're starting to see the ACLU try to enforce these requests in federal court. The Sixth Circuit was the first to address the issue, and earlier this week the Third Circuit heard arguments on the matter.
Sixth Circuit Sets the Example
Less than one month ago, the Sixth Circuit published an opinion on whether the FBI properly withheld information requested pursuant to the Freedom of Information Act ("FOIA"). The FBI released some, but not all information requested by the ACLU. The ACLU sued for enforcement, the district court found for the FBI, and the Sixth Circuit affirmed.
The FBI was permitted to hold documentation under the Exemption 7(A) , which allows "records or information compiled for law enforcement purposes." The court stated: "Because the FBI has adequately shown that release of racial and ethnic demographic data is reasonably likely to interfere with ongoing investigations by revealing FBI priorities and analytic methods, the district court properly applied Exemption 7(A)."
Third Circuit Hears Argument
The Third Circuit may go in the same direction as the Sixth Circuit. The three-judge panel "expressed skepticism" about the ACLU's claims that the FBI needed to release detailed information about its mapping campaign, reports The Courier Post.
The ACLU argued that the FBI's investigations were "suspicionless" and that the government should be required to explain why it is denying requests for information. The government had an easier argument since "confirming or denying whether the FBI has information could impair enforcement actions," explains The Courier Post. The government asked the court to follow the lead of the Sixth Circuit.
We're not sure which way the Third Circuit will decide, but the Sixth Circuit decision, together with Exemption 7(A), make it likely that the ACLU will not win this one. That said, we could see many more of these cases filed in federal court -- we wouldn't be surprised if the ACLU brings claims based on each of its affiliates requests.
- ACLU FOIA Request Denied: FBI Maps of Ethnic Groups Stays Secret (FindLaw's Sixth Circuit Blog)
- Race and Redistricting: Ardmore Students Take Case to SCOTUS (FindLaw's Third Circuit Blog)
- 3rd Cir Disparate Impact FHA Case to Be Heard by SCOTUS (FindLaw's Third Circuit Blog)