The FBI can continue to hide data that would show whether the agency is engaging in racial profiling, at least in Michigan, a federal appeals court ruled last week. The U.S. Court of Appeals for the Sixth Circuit ruled that the FBI can withhold the records because their release might interfere with law enforcement proceedings.

The case involves the FBI’s 2008 “Domestic Investigations and Operations Guide,” (DIOG) which includes Justice Department guidelines regarding “the FBI’s use of race and ethnic identity in assessments and investigations.” Under DIOG, the FBI may identify and map “locations of concentrated ethnic communities” if the locations “will reasonably aid the analysis of potential threats and vulnerabilities, and, overall assist domain awareness,” and collect “[f]ocused behavioral characteristics reasonably believed to be associated with a particular criminal or terrorist element of an ethnic community.”

Seeking to determine if the FBI was engaging in racial profiling, and quoting the DIOG guidelines, the ACLU filed a Freedom of Information Act (FOIA) request seeking documents showing how the FBI “collects information about and ‘maps’ racial and ethnic demographics, ‘behaviors,’ and ‘life style characteristics’” in Michigan.

The FBI eventually identified 1,553 pages of potentially responsive records and released 356 pages (some redacted) including training materials; notes about particular groups or elements; program assessments; electronic communications; and maps. The agency argued that the remaining 1,200 pages were exempt from disclosure because they could affect law enforcement proceedings. The ACLU disagreed and filed suit.

Writing for the three-judge panel, Judge Danny Boggs wrote that, “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.”

The court also upheld Judge Lawrence Zatkoff’s decision to reject an ACLU proposal for publicly adjudicating whether the records were subject to FOIA and instead view the disputed documents in secret.

Nusrat Choudhury, a staff attorney in the ACLU’s national security project, said the organization has not decided whether to appeal, noting that a similar case, ACLU of New Jersey v. FBI, is scheduled for oral argument before the Third Circuit Court of Appeals on September 10.

“We are deeply disappointed by the [Sixth Circuit] decision because it denies the public’s right to know which Michigan communities the FBI is spying on through its secretive racial mapping intelligence program,” Choudhury said.

-Matt Bewig

To Learn More:

ACLU of Michigan v. FBI (Sixth Circuit Court of Appeals) (pdf)

Sixth Circuit Sides With FBI Against Profiling Fears (by Sheri Qualters, National Law Journal)