September 11, 2001, was a game-changer as far as FBI activity is concerned, with the release of the Domestic Investigations and Operations Guide in 2008. As a result, the FBI can "engage in limited racial and ethnic profiling" and mapping "of concentrated ethnic communities," when dealing with criminal, and terrorist, threats and investigations.
Understandably, the ACLU has a problem with these procedures and has started a campaign of its own called Mapping the FBI, seeking to "expose misconduct, abuse of authority" and abridgement of our civil liberties nationwide. Through 34 of its affiliates, the ACLU has filed public records requests to understand what the FBI is collecting and mapping. We're now seeing these cases make their way through the judicial system.
ACLU of New Jersey
In this particular case, the ACLU of New Jersey made a request for FBI records pursuant to the Freedom of Information Act. In response, the FBI released 312 pages of "782 pages of potentially responsive records." Dissatisfied with the response, and exhausting all administrative remedies, the ACLU sued the FBI and DOJ. After some more back and forth between the parties, the FBI released six more pages, and the district court granted the FBI/DOJ's motion for summary judgment.
On appeal, the Third Circuit had to determine whether the FBI had met its burden under Exemption 7A. Noting that the release of law enforcement documents may hinder existing investigations, the court reiterated that an agency is "afforded substantial deference," and found the ACLU's arguments unpersuasive.
"Glomar-like" Test Rejected
Next, the court had to determine whether they should, as the ACLU argued, remand so that the district court could apply a "Glomar-like" procedure. Relying on a recent Sixth Circuit decision, involving the same parties and issue, the court rejected the ACLU's suggestion. The Third Circuit said that the ACLU cited no legal authority to support it, and it would be an unwise "from a policy perspective" to litigate hypothetical questions.
Though the ACLU is embarking on a noble nationwide campaign to map the FBI, so far the results have not been in their favor. It seems that the government's law enforcement exemption is a difficult hurdle to overcome, especially in our post-9/11 world.
- 3rd Cir Hears Arguments on FBI's Use of Census Data (FindLaw's U.S. Third Circuit Blog)
- Race and Redistricting: Ardmore Students Take Case to SCOTUS (FindLaw's U.S. Third Circuit Blog)
- ACLU FOIA Request Denied: FBI Maps of Ethnic Groups Stays Secret (FindLaw's U.S. Sixth Circuit Blog)