Elkins v. Federal Aviation Administration , 99 F. Supp. 3d 90 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID J. ELKINS,
Plaintiff,
v. Civil Action No. 14-476 (JEB)
FEDERAL AVIATION
ADMINISTRATION,
Defendant.
MEMORANDUM OPINION
On July 19, 2013, pro se Plaintiff David Elkins spotted an aircraft overhead that appeared
to circle his residence near St. Petersburg, Florida, and then follow him for some time thereafter.
Concerned that he was the subject of government surveillance, he submitted a Freedom of
Information Act request to the Federal Aviation Administration seeking records relating to the
suspicious aircraft. The FAA, in response, conducted a search and released to him voice
transmissions that it had partially redacted under FOIA Exemption 7(E). After Elkins challenged
such response by filing this suit, the Court denied the FAA’s summary-judgment motion,
concluding that the agency had neither adequately justified its search nor sufficiently defended
its withholdings. The FAA has since supplemented its search, released one more record to
Elkins, and identified several others, which it has withheld in full. Having done so, it now
renews its Motion for Summary Judgment. Because Defendant has not yet fully explained
pieces of its search, and because it has justified its withholdings as to only one record, the Court
will grant the Motion in part and deny it in part.
1
I. Background
As the Court noted in its previous Opinion, Elkins has some history with the FAA. See
Elkins v. Fed. Aviation Admin. (Elkins I), No. 14-476, 2014 WL 4243152, at *1 (D.D.C. Aug.
28, 2014). Since 2005, he has submitted several requests to the agency seeking records
pertaining to aircraft he has observed flying overhead. See Compl. at 2-6. His stated purpose in
seeking these records is to expose and document unlawful government surveillance, id. at 3, and
his FOIA requests have met with varying levels of success. See Elkins I, 2014 WL 4243152, at
*1 (collecting cases).
Elkins originally submitted the FOIA request in contention here on July 19, 2013. See
Mot., Exh. A. His request was prompted by his observation of an aircraft that circled over his
house near St. Petersburg and then proceeded to follow him as he traveled away from home. See
Compl. at 5. He asked the FAA to provide the following records:
The N number [the number by which aircraft are registered with
the FAA], [t]he law enforcement agency op[]erating the aircraft,
the inflight radio communications between Tampa ATC or Saint
Petersburg/Clearwater and this aircraft, pre filed flight plan
allowing it to fly in this area, all records of court authority
(warrant) showing cause to FAA to conduct surv[e]illance, all
records of Department of Justice or Pinallas County sheriff
participation, all records of who has tactical of this aircraft. All
records of [Department of Justice] agreement with FAA to
withhold a determination of release of these requested records, all
records of non-privile[]ge[d] communications between DOJ and
FAA Tracon Tampa, College Park FAA.
July 19, 2013, Request. Elkins amended this request a couple days later to add:
1. All records of agreement between the entity operating this
aircraft and the FAA allowing [it] to either not turn on it[]s
transponder or the FAA agreeing not to track the plane.
2. All records of radio contact between the commercial jet and
Tampa ATC warning the jet of aircraft in the vicinity (in-flight
radio communications)
2
3. All records of agreement between “passurslive” [Passur is a
private flight-monitoring company] and the FAA to allow
interruption of live feeds (end taps) to their public web site if
any.
4. All records if any, presented to the FAA by this entity showing
that they have cause of action (warrant) to pursue this
surveillance
5. All records how long actually the plane was in flight
6. All records from w[h]ere it departed, and w[h]ere it landed . . .
7. ALL RECORDS OF WHAT ENTITY HAD TACTICAL
CONTROL OVER THIS AIRCRAFT.
Mot., Exh. B (July 23, 2013, Request).
In response, the FAA notified Plaintiff that it had searched for records “at Tampa Airport
Traffic Control Tower,” and that it was releasing to him a “compact disc containing voice
[]recordings pertaining to [his] request,” from which the “Aircraft Registration Number” had
been redacted. See Compl., Exh. 1 (November 5, 2013, Response). Dissatisfied with this
response, Elkins filed suit in this Court. Defendant then filed a Motion for Summary Judgment,
claiming that it had (1) conducted an adequate search and (2) properly withheld identifying
information from the voice recording pursuant to Exemption 7(E). See ECF No. 13.
The Court denied the Motion on both issues. First, it found that the FAA’s explanation of
the search left it with “distinct uncertainty as to whether the agency appreciated the whole of
Plaintiff’s FOIA request.” Elkins I, 2014 WL 4243152, at *4. Specifically, the FAA appeared to
understand “Plaintiff’s request as limited in scope to records likely to be housed at an airport
traffic-control tower.” Id. Yet some of the records Elkins requested – e.g., “DOJ agreement[s]
with FAA” – were “likely to be housed elsewhere.” Id. The Court, accordingly, advised the
FAA to “make clear in any future declaration that the Tampa Airport Traffic Control Tower is
the only location that might house records responsive to each one of Plaintiff’s enumerated
requests.” Id.
3
Second, the Court concluded, the FAA had failed to adequately explain its withholdings.
On this front, the agency’s “briefing [was] replete with vague and conflicting references to
redacted material.” Id. at *5. For instance, the FAA at times noted that only the airplane’s “‘N’
number [had been] redacted,” while at other times it alluded to “broader redactions,” including
the plane’s “call sign.” Id. “Before renewing its Motion,” the Court advised, the agency should
“provide[] a full explanation of its withholdings for any records and redacted portions not made
available to [Plaintiff].” Id. at *6.
Heeding these admonitions, the FAA broadened its search, which in turn uncovered
several additional responsive records. It then contacted Plaintiff in a letter dated October 8,
2014, summarizing its findings and itemizing its responses to his request by category. See Mot.,
Exh. D. The agency explained that it was still withholding records that included the identifying
information of the law-enforcement agency operating the aircraft, records regarding who had
tactical control of the aircraft, and records detailing the plane’s flight path. Id. at 1-3. The FAA
did, however, release to Elkins its vendor agreement and current renewal with Passurs. Id. at 4-
17. In a follow-up letter, dated October 20, 2014, the agency advised Elkins that it was
withholding in full records relating to participation by DOJ or the Pinallas County Sheriff. See
Mot., Exh. E.
Having supplemented its search and reasserted its withholdings, the FAA now renews its
Motion for Summary Judgment.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine issue of material fact is one that would change the outcome of the litigation.
4
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
construe the conflicting evidence in the light most favorable to the non-moving party. See
Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In FOIA cases,
the agency bears the ultimate burden of proof. See Dep’t of Justice v. Tax Analysts, 492 U.S.
136, 142 n.3 (1989). The Court may grant summary judgment based solely on information
provided in an agency’s affidavits or declarations when they describe “the documents and the
justifications for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption
of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. Analysis
Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)
(citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the
functioning of a democratic society, needed to check against corruption and to hold the
governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
5
152 (1989) (citation omitted). The statute provides that “each agency, upon any request for
records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order
the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B);
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).
“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to
sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters
Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in
mind that FOIA mandates a ‘strong presumption in favor of disclosure’ . . . .” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502
U.S. 164, 173 (1991)).
The FAA argues that summary judgment is proper because it has now conducted an
adequate search for responsive records and any not released were properly withheld under
Exemption 7(E). The Court, unfortunately, cannot fully agree with either contention.
A. Adequacy of the Search
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-
Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897
F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.
Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents
possibly responsive to the request, but rather whether the search for those documents was
6
adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The adequacy
of an agency’s search for documents requested under FOIA “is judged by a standard of
reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To meet its
burden, the agency may submit affidavits or declarations that explain the scope and method of its
search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Absent
contrary evidence, such affidavits or declarations are sufficient to show that an agency complied
with FOIA. See id. On the other hand, if the record “leaves substantial doubt as to the
sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at
542.
As noted above, the FAA in earlier briefing appeared to construe Elkins’s request as
limited to records likely housed at an airport traffic-control tower, even though it “also itemized
records likely to be housed elsewhere.” Elkins I, 2014 WL 4243152, at *4. The Court,
accordingly, advised the agency “to submit new documentation to Elkins that demonstrates the
adequacy of its search for each requested record . . . .” Id. at *6 (emphasis added). The FAA
took this advice to heart.
To see if any additional responsive records existed, Carol Might, Special Operations
Liaison for the FAA, broadened the agency’s search. See Mot., Exh. C (Declaration of Carol
Might), ¶ 6. In her declaration, she explains the actions she took regarding each individual
category of records Elkins requested in both letters, an approach that greatly clarifies the
situation at hand. The Court begins by mentioning the requests that did not yield responsive
documents and then discusses those that did.
Might learned, for instance, from the agency that operated the plane that, per policy, there
was no pre-flight plan for the craft. Id., ¶ 7(D). As to Elkins’s request for authorizations to
7
conduct surveillance, she explains that the National Airspace System is open, and aircraft like the
one in question do not need warrants to fly within it. Id., ¶¶ 7(E), 7(4). Were any mission
records to exist, she continues, they would be found in the Office of Security and Hazardous
Materials Safety or the AJR-2 at FAA Headquarters. Id. A search turned up no records in either
place. Id. Might also relates that it is FAA policy not to memorialize agreements with law-
enforcement agencies regarding release of records, and, accordingly, no such records exist in this
case. Id., ¶ 7(H). She further notes that there were no “non-privileged communications”
between DOJ and FAA Tracon or FAA Regional Office at College Park, Georgia. Id., ¶ 7(I).
Nor, for reasons that will be made clear below, were there any authorizations for the aircraft to
fly without its transponder on. Id., ¶ 7(1). And aside from the voice recordings already released
to Elkins, there were no other records of radio contact found at Tampa Air Traffic Control – the
only location such records would be located. Id., ¶¶ 7(C), 7(2). Finally, although the FAA
originally claimed to be redacting the craft’s N number from the audio recordings, as a law-
enforcement plane, it actually identified itself with a call sign. Id., ¶ 7(A). The FAA, as a result,
does not know the craft’s “N number.” Id.
On the other hand, some of Elkins’s requests did obtain results in the FAA’s broadened
search. Records of the participation of DOJ or the Pinallas County Sheriff, Might reveals, would
be found at Tampa Approach, AHE-320 or AJR-2. Id., ¶ 7(F). Although she located no such
records there, she did uncover a document that she thought could be construed as evidence of the
“participation” of a government agency. Id. Specifically, coordinating with the ATO System
Operations Services Data Management office to search the National Offload Program, Might
uncovered a flight track of the subject aircraft – a record the FAA has withheld at the request of
the law-enforcement agency operating the plane. Id., ¶ 7(5). As to what entity had tactical
8
control of the aircraft, Might found an FAA Order for Law Enforcement Operations, which
contains “the identity” of the law-enforcement agency that operated the craft – a document the
FAA also withheld in full. Id., ¶ 7(G). Finally, with the help of Dean Torgensen, FOIA Group
Manager in the FAA’s ATO Litigation Support Group, Might was able to locate the FAA’s
agreement with Passur – which was released to Elkins. Id., ¶ 7(3).
While Might’s declaration is commendable in its attention to each category of requested
records, it proves wanting, as Plaintiff points out, as to three of them. Elkins disbelieves, for
instance, the representation that there were no communications between DOJ and Tampa
TRACON or between DOJ and the FAA located in College Park. See Opp. at 15. As to this
category of his request, Might states summarily that were no responsive records. See Might
Decl., ¶ 7(I). She does not, however, describe the place such a record would be stored if it did
exist, what she did to search that location, or any detail regarding how she came to conclude that
no responsive records exist. See Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990) (“A reasonably detailed affidavit, setting forth the search terms and the type of search
performed, and averring that all files likely to contain responsive materials (if such records exist)
were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy
of the search and to allow the district court to determine if the search was adequate in order to
grant summary judgment.”). Similarly, as to records of the participation of DOJ or the Pinallas
County Sheriff, Might does note where they would be found – Tampa Approach, AHE-320 or
AJR-2 – but not what search she conducted there. See Might Decl., ¶ 7(F). Without any further
information on the search regarding these categories, the Court cannot conclude that it “was
reasonably calculated to uncover all relevant documents.” Valencia-Lucena, 180 F.3d at 325
(internal quotation marks omitted).
9
Plaintiff, moreover, has provided evidence that in other FOIA cases, the agency has
released to him agreements between itself and law-enforcement agencies to withhold records.
See Opp. at 4-5. Yet Might again does not describe any action she took as to this category,
relating only that it is not the FAA’s policy to create such documents. If responsive records can
exist, however, then presumably there is a place Might could search to find them – a search she
must describe.
Finally, Plaintiff contends that the FAA does, in fact, “know” the N number of this
particular aircraft or at least could derive it from other identifying information. See id. at 10-11.
According to Elkins, the aircraft would have transmitted an eight-digit “Mode S code,” which,
through a proprietary algorithm, the FAA could translate into an N number. Id. This assertion
does not, however, undermine the adequacy of the FAA’s search. Even if the FAA did have the
resources to determine the plane’s N number, “FOIA imposes no duty on the agency to create
records.” Forsham v. Harris, 445 U.S. 169, 186 (1980) (emphasis added). And since the
agency’s search did not uncover records related to the N number, its obligation ended there.
In the end – although more detailed than those provided in the first round of briefing –
the FAA’s declarations still fail to explain what search it undertook to locate: (1) non-privileged
communications between DOJ and FAA Tracon or DOJ and FAA Regional Office at College
Park; (2) records of DOJ’s or the Pinallas County Sheriff’s participation; and (3) any agreement
with law enforcement regarding the withholding of records. The Court will, therefore, deny
summary judgment on the search issue.
B. The FAA’s Withholdings
Plaintiff also challenges the FAA’s withholdings. By way of review, the agency’s
aggregate search produced the following four records:
10
• The FAA’s original and renewal agreement with Passur, both of which it released in
full;
• Radio communications between the airplane and control tower – which the FAA
released after redacting the identifying information or “call sign” of the craft;
• Flight-tracking records, which the FAA withheld in full; and
• An FAA Order for Law Enforcement Operations, which contains the identity of the
law-enforcement agency that operated the craft, also withheld in full.
In its communications with Elkins and in the declarations submitted with its Motion, the
FAA invoked two exemptions in withholding these records: 7(A) and 7(E). In briefing,
however, it appears to have abandoned any reliance on 7(A) and bases its withholdings on 7(E)
alone.
This exemption covers “records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement records or information . . .
would disclose techniques and procedures for law enforcement investigations or prosecutions, or
would disclose guidelines for law enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). In the
present case, it is the first requirement – the purpose for which the records were compiled – that
proves a stumbling block for the FAA on the majority of its withholdings.
In considering this requirement, the D.C. Circuit recently made clear that it is not the
nature of the agency that controls, but the character of the records withheld. In Pub. Employees
for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740
F.3d 195 (D.C. Cir. 2014), the court stated, “Under the text of Exemption 7, the withheld record
must have been compiled for law enforcement purposes; the withholding agency need not have
11
statutory law enforcement functions.” Id. at 203-04 (citing 5 U.S.C. § 552(b)(7)) (emphasis in
original). The agency’s law-enforcement capacity, however, is not immaterial. “If the agency’s
principal function is law enforcement,” the Court is “‘more deferential’ to the agency’s claimed
purpose for the particular records.” Id. at 203 (quoting Tax Analysis v. IRS, 294 F.3d 71, 77
(D.C. Cir. 2002)). “If,” on the other hand, “the agency has mixed law enforcement and
administrative functions, [the Court] will scrutinize with some skepticism the particular purpose
claimed.” Id. (quotation marks omitted). Because the FAA’s principal function is not law
enforcement, therefore, the Court will kick the tires of its claimed exemptions with a bit more
force.
The FAA maintains that all three of its withholdings – the redacted call sign in the voice
recordings, the flight-tracking records, and the FAA Order – were compiled for law-enforcement
purposes. Its briefing on the issue, however, is laconic to say the least. As to the first, for
instance, the agency does not clearly single out the voice recordings in discussing its purposes
for creating the disputed records. The closest it comes is to note that “records pertaining to who
had tactical control of the aircraft” were “filed for a law enforcement purpose.” Mot. at 7. Even
assuming this blanket description covers the call sign redacted from the voice recordings, this
“explanation” is nothing more than a restatement of the standards governing the withholding of
the information. It provides no information as to what law-enforcement purpose the voice
recordings were created for, which is the key question in the first requirement of Exemption 7.
And, as Plaintiff points out, identifying information such as call signs is transmitted to the FAA
as a matter of course when flying in regulated airspace. These types of records are “produced . .
. twenty four hours a day, seven days a week . . . for regulatory purposes.” Opp. at 5. The voice
communications, moreover, are apparently broadcast on open airwaves by all airplane operators.
12
The fact that this craft happened to be controlled by a law-enforcement agency does not
somehow transform the FAA’s purpose in recording its voice transmissions. See Benavides v.
Bureau of Prisons, 774 F. Supp. 2d 141, 146 (D.D.C. 2011) (records of inmate telephone calls
not compiled for law-enforcement purposes by Bureau of Prisons where they were routinely
collected and agency’s only justification for withholding them was its overall “mission” of law
enforcement).
Similarly, as to the flight-tracking records, the FAA relates summarily that, although “the
flight was tracked because it had the transponder on throughout the flight, the tracking records
are being withheld as it was [sic] compiled for a law enforcement purpose.” Mot. at 7. Again,
the aircraft was tracked because it was an aircraft. And the FAA’s purpose in creating such
records appears to be general to all planes within its airspace (or at least Defendant has given the
Court no reason to believe otherwise).
Contrast these records with those that the D.C. Circuit found properly withheld in PEER.
The plaintiff there sought portions of action plans that “contain guidelines outlining the steps that
law enforcement and emergency personnel should take in response to a failure of [certain]
dams.” The D.C. Circuit concluded that they “plainly were created” for law-enforcement
purposes:
[T]hey describe the security precautions that law enforcement
personnel should implement around the dams during emergency
conditions. . . . [I]t is also apparent that the inundation maps serve
security purposes – namely, to assist law enforcement personnel in
maintaining order and security during emergency conditions, and
to help prevent attacks on dams from occurring in the first place. . .
. In this context, preventing dam attacks and maintaining order and
ensuring dam security during dam emergencies qualify as valid
law enforcement purposes under the statute. . . . Because the
emergency action plans and the inundation maps were created in
order to help achieve those purposes, among others, they were
compiled for law enforcement purposes.
13
Id. at 204 (emphasis added). Unlike the material withheld in PEER, these flight records contain
no information intended to assist law-enforcement personnel in maintaining “order and security.”
There is no indication, furthermore, that they were created to help achieve any law-enforcement
purpose.
Of course, the term “compiled for law enforcement purposes” does not limit Exemption
7 to records that were “originally compiled” or created for that reason. John Doe Agency v. John
Doe Corp., 493 U.S. 146, 154 (1989). An agency can also establish that such records were later
gathered or used for “law enforcement purposes at some time before the agency invokes the
exemption,” PEER, 740 F.3d at 203, even if the information was “generated on an earlier
occasion and for a different purpose.” John Doe, 493 U.S. at 154. In this case, however, the
FAA has provided no basis upon which to conclude that these specific records – i.e., the voice
recordings and flight-tracking records – although originally created for non-law-enforcement
purposes, were ever subsequently compiled to enforce the law.
What remains then is the FAA Order for Law Enforcement Operations, which, the
agency notes, contains “the identity” of the law-enforcement agency that operated the craft. In
briefing, the FAA’s justification for withholding this record is as summary as its explanation of
the others. See Mot. at 7 (withheld because “the record was filed for a law enforcement
purpose”). Were this all the FAA had provided, the Order would be subject to disclosure just
like the flight data and voice identification. The FAA, however, supplemented its briefing with
sealed declarations that – although the Court cannot discuss the details of the justifications they
contain – reassure it that the Order does, in fact, satisfy the requirements of 7(E). The Order was
indisputably created for law-enforcement purposes; its production would disclose techniques and
procedures for law-enforcement activities; and disclosure would risk circumvention of the law.
14
See 5 U.S.C. § 552(b)(7)(E). The Court is satisfied, moreover, that no releasable material could
be segregated from the Order.
The Court concludes, accordingly, that as to the voice recordings and the flight-tracking
information, the FAA has not met its burden of establishing that these records were compiled for
law-enforcement purposes. It has, however, properly justified its withholding of the FAA Order
identifying the agency that had tactical control over the plane.
IV. Conclusion
For the foregoing reasons, the Court will grant the FAA’s Motion for Summary Judgment
in part and deny it in part. An Order accompanies this Memorandum Opinion.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: April 16, 2015
15