Sai v. Transportation Security Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SAI,
Plaintiff,
v.
Civil Action No. 14-403 (RDM)
TRANSPORTATION SECURITY
ADMINISTRATION,
Defendant.
MEMORANDUM OPINION AND ORDER
This case is one of a series of cases that Plaintiff, who suffers from a neurological
disorder, has brought arising out of his alleged mistreatment by Transportation Security
Administration (“TSA”) employees at various airport security checkpoints. This Court
previously resolved one of those cases, which Plaintiff brought against the TSA under the
Rehabilitation Act seeking to compel the agency to respond to his complaints of mistreatment.
See Sai v. Dep’t of Homeland Sec., 149 F. Supp. 3d 99 (D.D.C. 2015). Other cases, seeking
damages and declaratory and injunctive relief relating to the alleged mistreatment and the TSA’s
policies more generally, remain pending before at least two other federal courts. See Sai v.
Covenant Aviation Sec., No. 16-1024 (N.D. Cal); Sai v. Pekoske, No. 15-2356 (1st Cir.).
In this action, Plaintiff alleges that the TSA has failed adequately to respond to six
requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act
(“PA”), 5 U.S.C. § 552a. The first of these requests sought surveillance video and reports
relating to an incident that occurred at Boston’s Logan International Airport (“BOS”), as well
any other complaints against the TSA employees involved in the incident and any similar
complaints against the TSA, airport police, or airport agents. Plaintiff subsequently expanded
this request also to seek records relating to incidents at New York LaGuardia Airport (“LGA”)
and Chicago O’Hare International Airport (“ORD”). The second request sought “any
contract/agreement with other agencies regarding surveillance, or maintenance of surveillance
footage, at Logan Airport.” Dkt. 99-3 at 78 (McCoy Decl. Ex. I). The third request followed an
incident at San Francisco International Airport (“SFO”) and sought records like those Plaintiff
sought relating to the BOS incident. The fourth—and by far the most expansive request—sought
all policies and procedures that the TSA has ever issued that are not already available in the
TSA’s “electronic reading room.” Finally, the fifth and sixth requests sought any additional
records regarding the BOS and SFO incidents created after Plaintiff’s original requests.
After Plaintiff filed suit, the TSA responded to each of the six pending FOIA requests and
eventually released almost 4,000 pages of records (some with redactions) and three closed circuit
television videos. The TSA has now moved for summary judgment, arguing that it reasonably
construed (and, where necessary, narrowed) Plaintiff’s requests; that it thoroughly searched for
responsive records; and that it released all responsive, non-exempt records. Plaintiff opposes the
TSA’s motion and, with two minor exceptions, challenges virtually every aspect of the TSA’s
multiple searches and productions. He contends that, as to each of his six requests, the TSA
failed to conduct an adequate search; failed to produce segregable portions of records; withheld
metadata and failed to release records in their “native,” electronic format or in “fully digital, non-
“rasterized” PDFs; improperly designated records as Sensitive Security Information (“SSI”); and
improperly invoked FOIA Exemptions 3, 6, and 7. He alleges, in addition, that the TSA
withheld records that had been previously released; made false or misleading statements in its
Vaughn indices; violated the Privacy Act by maintaining records relating to his “protected First
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[A]mendment speech,” Dkt. 111-2 at 33–34; destroyed records in violation of a “clear[] . . .
evidence preservation demand,” id. at 34; withheld records so as to commit “felony obstruction
of justice,” id. at 39; and, more generally, “maintained numerous unlawful policies, practices,
and procedures . . . and willful violation[s of the APA, FOIA, Rehabilitation Act, Privacy Act,
and SSI statutes.” Dkt. 111 at 3.
As explained below, many of these contentions are not properly before the Court; others
are not developed with sufficient clarity to survive summary judgment; and yet others lack legal
or factual merit. But there is some wheat among this abundance of chaff. The Court will,
accordingly, GRANT in part and DENY in part the TSA’s motion.
I. BACKGROUND
The wide-ranging history of this matter is recounted in this Court’s numerous prior
opinions and orders. See Dkt. 34 (denying motion for preliminary injunction and motion for
sanctions); Dkt. 42 (denying motion to expedite); Dkt. 43 (granting defendant’s motion for
protective order); Dkt. 47 (denying motion for reconsideration regarding sanctions); Dkt. 48
(denying motion to compel); Dkt. 49 (denying motion for leave to amend); Dkt. 74 (denying
motions for reconsideration, for clarification, and to strike); Dkt. 93 (denying motion to compel
service of Section 46105(b) orders and for declaratory relief regarding Section 46110(a)
deadline, denying plaintiff’s motion for attorney fees and costs, and denying leave to file
supplemental pleading); see also Sai v. TSA, No. 16-5004 (D.C. Cir. June 6, 2016) (order
dismissing interlocutory appeal seeking initial hearing en banc); Sai v. TSA, No. 16-1065 (U.S.
Sup. Ct. June 5, 2017) (denying petition for writ of certiorari). For present purposes, the Court
need not repeat that history in its entirety, but simply recounts the allegations and procedural
history relevant to the pending motion.
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A. FOIA Requests
The subject of this suit are six FOIA and Privacy Act requests for records that Plaintiff,
whose full name is Sai, sent to the TSA in 2013.
Sai submitted the first of these requests on January 28, 2013, 1 requesting information
relating to an incident at a security checkpoint at Boston Logan International Airport (“BOS
Request”). This request initially sought “reports,” “notes, correspondence, communications, . . .
relating to the incident,” “any and all records related to [Sai];” “copies of [Sai’s] [travel]
documents that were made at the scene;” “all history of complaints” against the TSA agents with
whom he came into contact and “similar complaints” against the TSA; and “documents and
communication related to responding to this request.” Dkt. 99-3 at 50–51 (McCoy Decl. Ex. A).
After the TSA requested additional information regarding the request on February 15, 2013, Sai
expanded the request to include “all records related to” prior security incidents that occurred at
New York LaGuardia Airport on June 27, 2012, and Chicago O’Hare International Airport on
December 25, 2010. Id. at 55 (McCoy Decl. Ex. B). TSA failed to respond to the expanded
BOS Request within the 20-day period specified by FOIA. See id. at 8 (McCoy Decl. ¶ 25); id.
at 59 (McCoy Decl. Ex. D). On August 8, 2014, the agency provided an interim response
releasing seven pages of records, with some redactions. Id. at 8 (McCoy Decl. ¶ 25). It
supplemented this response on October 3, 2014 with the release of an additional 229 pages of
records and video of the BOS incident. Id. at 9 (McCoy Decl. ¶ 27).
On February 22, 2013, Sai submitted a second FOIA request (“CCTV Request”) to TSA
by email, requesting “any contract/agreement with other agencies regarding surveillance, or
1
The declaration of Regina McCoy states that Sai’s request was executed on January 21, 2013.
The request, however, is dated January 28, 2013 and states that Sai sought records pertaining to
an incident that occurred on January 21, 2013. Dkt. 99-3 at 52 (McCoy Decl. Ex. A). This
minor error in the McCoy declaration is immaterial to the pending motion.
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maintenance of surveillance footage, at Logan airport.” Id. at 78 (McCoy Decl. Ex. I). The TSA
did not respond to Sai’s request until August 8, 2014, when it released 16 pages of responsive
records in full. Id. at 18 (McCoy Decl. ¶ 56); id. at 80 (McCoy Decl. Ex. J).
Sai submitted the third request at issue, relating to an incident that took place at San
Francisco International Airport (“SFO Request”), by email on March 15, 2013. Id. at 85–86
(McCoy Decl. Ex. L). Like the BOS Request, the SFO Request sought “reports,” “notes,
correspondence, [and] communications, . . . relating to the incident;” “any and all records related
to [Sai];” “all history of complaints” against the TSA agents with whom he came into contact
and “similar complaints” against the TSA; and “documents and communication related to
responding to this request.” Id. (McCoy Decl. Ex. L). The TSA initially responded to the
request on August 8, 2014, “releasing 72 pages of responsive records in full as well as two
CCTV videos.” Id. at 22 (McCoy Decl. ¶ 71); id. at 93 (McCoy Decl. Ex. N). The agency
supplemented that response on October 3, 2014 with an additional 427 pages of responsive
records. Id. at 23 (McCoy Decl. ¶ 73).
The fourth request, which sought TSA policies and procedures (“Policies Request”), is by
far the most expansive. Sai submitted that request on March 16, 2013. It sought (1) “[a]ll TSA
policy and/or procedures documents which are not already included in the TSA’s ‘Electronic
Reading Room,’ including all Management Directives, Standard Operating Procedures,
Operations Directives, Security Directives, Emergency Amendments, Information Circulars,
Memoranda, Handbooks, Letters, Bulletins, and Guidance ever issued, including both old [and]
current versions;” (2) the “TSA’s policies regarding screening procedures, both now and . . . at
any point in the past;” (3) the “TSA’s policies regarding the treatment of passengers with
disabilities, both now and in the past;” (4) the “TSA’s policies regarding the enforcement of its
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policies when TSA personnel . . . refuse to comply with TSA policy in a way that infringes on
the rights of travelers;” (5) the “TSA’s policies regarding cooperation with local airports and
police;” (6) the “TSA’s policies regarding when checkpoint video may be released;” (7) the
“TSA’s policies regarding ‘no fly[,’] ‘selectee[,’] and any similar lists;” (8) “legal justification
for the TSA’s public claims that passengers may not revoke consent to administrative search”
including “formal agency legal memoranda, policy statements that include specific legal
foundation arguments, court filings in which relevant arguments were advanced . . . , any court
opinions, appeals, or the like in which a court responded negatively to those arguments;” and (9)
“all Behavior Detection Officer training materials, and any studies investigating their efficacy.”
Id. at 125–28 (McCoy Decl. Ex. S).
On March 25, 2017, the TSA sent Sai a letter explaining that his request was “too broad
in scope or did not specifically identify the records” he was seeking, and it invited Sai to
“resubmit [the] request containing a reasonable description of the records [he was] seeking.” Id.
at 30 (McCoy Decl. ¶ 91); id. at 132 (McCoy Decl. Ex. T). Because Sai did not respond, the
TSA “administratively closed” the request on May 9, 2013. Id. at 30 (McCoy Decl. ¶ 92).
About a year later, however, after Sai brought the present suit, the TSA “in its discretion, re-
opened the request and initiated a search for responsive records to the extent the items sought in
the request could be reasonably discerned based on the title provided or other information that
was reasonably clear from the initial request.” Id. at 31 (McCoy Decl. ¶ 93). The TSA directed
that fifteen different offices, including, for example, the Disability Branch of TSA’s Office of
Civil Rights and Liberties, Ombudsman & Traveler Engagement Division, “conduct a reasonable
search for responsive records.” Id. (McCoy Decl. ¶ 94). On July 30, 2015, the TSA made an
initial release of 1,416 pages of responsive records, some of which were redacted in part. Id. at
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35–36 (McCoy Decl. ¶ 109). Although releasing these records, the TSA reminded Sai that it
had previously concluded that his “request was too broad” and that it had requested that Sai
“resubmit [his] request with a reasonable description of the records” sought. Id. (McCoy Decl.
¶ 109); id. at 138 (McCoy Decl. Ex. U). Notwithstanding Sai’s failure to respond, the agency
explained, it had decided—in its discretion—to process the request “to the extent records [could]
be reasonably identified.” Id. at 138 (McCoy Decl. Ex. U). Subsequently, on August 20, 2015
and October 30, 2015, the TSA released an additional 1,294 pages and 329 pages of responsive
records, respectively, some of which were again redacted in part. Id. at 36 (McCoy Decl. ¶ 110);
id. at 145 (McCoy Decl. Ex. V). Finally, on February 29, 2016, the TSA notified Sai that it had
located an additional collection of records, which the agency was withholding in full. Id. at 37
(McCoy Decl. ¶ 112); id. at 158 (McCoy Decl. Ex. X).
Sai’s fifth and sixth requests cover the same ground covered by the BOS and SFO
requests, but seek records created or obtained after those requests were filed (“BOS and SFO Re-
Requests”). See Dkt. 28-3 at 11. Sai originally submitted the BOS and SFO Re-Requests on
November 23, 2013. See id. That email was addressed to the TSA’s FOIA division and read, in
relevant part, “I hereby demand that you send me *all* documents, records, statements,
surveillance video, external and internal correspondence, etc. that are currently or have ever been
in the TSA’s possession which relate to either of the two incidents I reported wherein the TSA
violated my rights.” Id. TSA initially viewed this email as duplicative of the SFO and BOS
requests and did not respond. Dkt. 99-3 at 43 (McCoy Decl. ¶ 123). In an earlier opinion in this
case, however, the Court held that the November 23 email was in fact more expansive than Sai’s
earlier requests because it “also covered records created during the interval between the
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requests.” Dkt. 74 at 15. Complying with that decision, the TSA acknowledged receipt of the
BOS and SFO Re-Requests in September and October 2015, Dkt. 99-3 at 43–44 (McCoy Decl.
¶ 124–25, 127); id. at 178 (McCoy Decl. Ex. AA); id. at 180 (McCoy Decl. Ex. BB); id. at 185
(McCoy Decl. Ex. CC); “tasked those offices that it deemed most likely to have records related
to the SFO and BOS incidents with searching for non-duplicative responsive records,” id. at 46
(McCoy Decl. ¶ 133), and subsequently notified Sai that it found no non-duplicative records
responsive to his requests, id. at 46–47 (McCoy Decl. ¶¶ 135, 138).
B. Procedural History
Because the TSA failed to respond within the 20-day period specified by FOIA, 5 U.S.C.
§ 552(a)(6)(A)(i), Sai was deemed, as a matter of law, to have exhausted his administrative
remedies, 5 U.S.C. § 552(a)(6)(C), and, having cleared that threshold requirement, he brought
this suit, Dkt. 5. After filing suit, Sai moved both for a preliminary injunction and to expedite
the action. Dkt. 8; Dkt. 18. The Court denied both motions. Minute Order (Apr. 17, 2014); Dkt.
34; Dkt. 42. Sai also moved to impose sanctions on the government, which the Court denied,
Dkt. 30; Dkt. 32, and for reconsideration of the Court’s denial, Dkt. 38, which the Court also
denied, Dkt. 47. In addition, he unsuccessfully sought to amend his complaint, see Dkt. 49, and
unsuccessfully sought reconsideration of that decision, Dkt. 50; Dkt. 74. The TSA, for its part,
moved to dismiss in part and to strike portions of Sai’s complaint, Dkt. 51, which the Court also
denied, Dkt. 74. Sai then moved to “compel service of [Section] 46105(b) orders,” Dkt. 77, for
attorney fees and costs, Dkt. 85, and to file a supplemental pleading, Dkt. 86, all of which the
Court denied, Dkt. 93.
The TSA has now moved for summary judgment, submitting that it has conducted a
reasonable and adequate search and that its withholdings are appropriate under both FOIA and
the Privacy Act. Dkt. 99. The TSA supports its motion with the declarations of Regina McCoy,
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the agency’s FOIA officer, Dkt. 99-3 at 1 (McCoy Decl. ¶ 2), and Douglas Blair, Chief of the
Sensitive Security Information Program in the agency’s Office of Law Enforcement & Federal
Air Marshal Service, Dkt. 99-4 at 1 (Blair Decl. ¶ 1); Dkt. 105 at 17 (Supp. Blair Decl. ¶ 1).
Sai’s opposition brief is only five pages long and merely lists—without analysis or support—
sixteen ways in which the TSA has allegedly violated the law; as Sai puts it, the “TSA has
violated nearly all the law[s] it could.” Dkt. 111 at 2. He also requests that the Court order that
the TSA supplement its Vaughn index, order “full civil discovery,” and order the TSA “to
provide [the] Court with an in camera copy of [its] entire production[] . . . without redactions.”
Id. at 4–5. Standing alone, Sai’s opposition brief provides little analysis or argument. He has
also filed a forty-page affidavit, however, which contains more extensive legal and factual
argument. Dkt. 111-2. Because the Court must liberally construe pro se pleadings, see Erickson
v. Pardus, 551 U.S. 89, 94 (2007), and because the Court must, in any event, assess the legal
sufficiency of a motion for summary judgment, see Winston & Strawn, LLP v. McLean, 843 F.3d
503, 507–08 (D.C. Cir. 2016), and must consider sua sponte whether any portions of the
withheld records are reasonably segregable, see Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir.
2007), the Court will treat Sai’s affidavit as his brief in opposition and will also consider the
adequacy of the TSA’s legal contentions sua sponte. The Court will also consider the various
supplemental briefs and filings that the parties have submitted.
II. LEGAL STANDARD
The Freedom of Information Act is premised on the notion that “an informed citizenry is
“vital to the functioning of a democratic society . . . [and] needed to check against corruption and
to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437
U.S. 214, 242 (1978). The Act embodies a “general philosophy of full agency disclosure.” U.S.
9
Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 494 (1994) (quoting Dep’t of Air
Force v. Rose, 425 U.S. 352, 360 (1976)). It thus mandates that an agency disclose records on
request unless they fall within one of nine exemptions. “These exemptions are ‘explicitly made
exclusive’ and must be ‘narrowly construed.’” Milner v. Dep’t of Navy, 562 U.S. 562, 565
(2011) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973), and FBI v. Abramson, 456 U.S. 615, 630
(1982)).
FOIA cases are typically resolved on motions for summary judgment under Federal Rule
of Civil Procedure 56. See Beltranena v. U.S. Dep’t of State, 821 F. Supp. 2d 167, 175 (D.D.C.
2011). To prevail on a summary judgment motion, the moving party must demonstrate that there
are no genuine issues of material fact and that he or she is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). In a FOIA action, the agency
may meet its burden by submitting “relatively detailed and non-conclusory” affidavits or
declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index
of the information withheld, Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973); Summers
v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). An agency “is entitled to summary
judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls
within the class requested either has been produced . . . or is wholly exempt from the [FOIA’s]
inspection requirements.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C.
Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). The Court reviews the
agency’s decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C.
§ 552(a)(4)(B).
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III. ANALYSIS
Sai’s arguments in opposition to the TSA’s motion for summary judgment fall into three
broad categories. Specifically, Sai challenges (1) the format of the records the TSA produced
pursuant to FOIA and the Privacy Act; (2) the adequacy of the TSA’s search for records
responsive to his FOIA requests; and (3) the TSA’s withholding of portions of the records it
released pursuant to FOIA and the Privacy Act. In addition, Sai raises various allegations of
misconduct by the TSA and requests the opportunity to conduct “full civil discovery.” The
Court will consider each set of arguments in turn.
A. Format
1. Rehabilitation Act
Sai first argues that the TSA violated the Rehabilitation Act, 29 U.S.C. § 794d, and E-
FOIA, 5 U.S.C. § 552(a)(3)(B), (C), by failing to release the requested records in a “native,
electronic, or § 508 accessible format” and by failing to provide him with a copy of the agency’s
Vaughn index in a “spreadsheet format” that would permit “basic operations like copying the
spreadsheets into Google Spreadsheets.” Dkt. 111-2 at 1–2 (emphasis omitted). He argues that
the format used by the TSA prevented him from accessing “metadata” and “significantly
impaired [his] ability to use the documents, distribute the documents to [his] audience in a format
that would be accessible to them (which includes other people with disabilities),” and he asserts
that the “TSA uses DHS-wide FOIA processing software and methods that take documents that
are originally [in a] native electronic [format] . . . and output paper or rasterized PDF[s].” Id. at
2–4. Finally, Sai maintains that records were not produced in discrete files (which he refers to as
an absence of “discretization”) and were not produced in a “cogent” order. Id. at 2. As
explained below, the Court is unpersuaded by these arguments.
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To start, this is not a Rehabilitation Act case. The complaint does not invoke the
Rehabilitation Act and, indeed, it expressly asserts that “[t]his suit is solely under FOIA and [the
Privacy Act].” Dkt. 5 at 2 (Compl. ¶ 5). To be sure, Sai filed his complaint before the TSA
released any records, and thus he did not know what format the agency would use. But he
himself posits that the TSA, in general, uses software that does not result in the release of
“native” format records, Dkt. 111-2 at 4, and, more importantly, despite filing multiple motions
for leave to amend, see Dkt. 9; Dkt. 21, he has never sought to amend his complaint to assert a
claim under the Rehabilitation Act. Although pro se litigants are entitled to some leeway, they
must comply with the Federal Rules of Civil Procedure, Jarrell v. Tisch, 656 F. Supp. 237, 239
(D.D.C. 1987), and a plaintiff—even a pro se plaintiff—may not amend her complaint by raising
an issue for the first time in a brief in opposition to a motion for summary judgment, see Manna
v. U.S. Dep’t of Justice, 106 F. Supp. 3d 16, 19 (D.D.C. 2015) (“[A plaintiff] cannot expand the
scope of this litigation by merely referring to other requests in his opposition to Defendants’
motion.”); Wright v. U.S. Dep’t Justice, 121 F. Supp. 3d 171, 183 n.7 (D.D.C. 2015) (“[I]t is
inappropriate for a Court to consider new claims raised for the first time in a brief in opposition
to a motion for summary judgment.”); Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal
Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (“It is axiomatic that a complaint may not be
amended by the briefs in opposition . . . .” (citation omitted)). Because Sai has not alleged a
claim under the Rehabilitation Act, or, more precisely, a claim under the Administrative
Procedure Act, see Sai, 149 F. Supp. 3d at 112–15 (concluding that a § 504 claim for injunctive
relief and, by implication, a § 508 claim, is properly brought under the APA), his first argument
fails as a matter of law.
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But, even if the Court were to treat Sai’s affidavit as a proposed amendment to the
complaint—and, to be clear, the Court is not doing so—it would deny that motion as futile. See
In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 215 (D.C. Cir. 2010) (“[A] district court
has discretion to deny a motion to amend on grounds of futility where the proposed pleading
would not survive a motion to dismiss.”) (quoting Nat’l Wrestling Coaches Ass’n v. Dep’t of
Educ., 366 F.3d 930, 945 (D.C. Cir. 2004)). To survive a motion to dismiss, a complaint must
contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). This standard demands more than “labels and conclusions,” Twombly,
550 U.S. at 55, and more than “legal conclusions” unsupported by “factual allegations,” Iqbal,
556 U.S. at 678. It follows, moreover, that a motion for leave to file an amended complaint is
futile, and thus should be rejected, if the proposed pleading lacks factual allegations sufficient to
clear the “plausibility” hurdle. See Clark-Williams v. WMATA, No. 14-99, 2016 WL 4186810, at
*3 (D.D.C. Feb. 16, 2016). Even if construed as a proposed, amended complaint, Sai’s affidavit
does not clear that hurdle.
Subject to certain limitations, Section 508 of the Rehabilitation Act requires that federal
agencies like the TSA ensure that “individuals with disabilities who are members of the public
seeking information . . . have access to and use of information and data that is comparable to the
access to and use of the information and data by such members of the public who are not
individuals with disabilities.” 29 U.S.C. § 794d(a)(1)(A)(ii). Here, Sai complains that the TSA
released records to him with “no discretization,” without “metadata,” and without “spreadsheet
structure.” Dkt. 111-2 at 2. “The format of [the] TSA’s FOIA production,” according to Sai,
“has significantly impaired [his] ability to use the documents” and to “distribute [them] to [his]
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audience in a format that would be accessible to them (which includes other people with
disabilities).” Id. at 3. Sai fails to explain, however, how his disability and the format in which
the records were released have prevented him from accessing and using the information and data
in a manner that is comparable to those without disabilities. Sai at least hints at an explanation
for why blind people may need “embedded metadata to assist navigation by screen readers,” id.
at 4, but he does not allege that he is blind or that this same technology is necessary to
accommodate his disability. Nor does Sai have standing to assert the interests of members of his
“audience,” including those who themselves have disabilities. See Gettman v. DEA, 290 F.3d
430, 435–36 (D.C. Cir. 2002) (concluding that magazine lacked standing to bring suit on behalf
of readers). In short, Sai offers nothing more than “labels and conclusions,” Iqbal, 556 U.S. at
678, in support of his contention that the format in which the TSA released the relevant records
violated his rights under Section 508. Accordingly, even if Sai’s affidavit were treated as a
proposed, amended complaint, the Court would deny leave to amend on grounds of futility.
2. E-FOIA
Sai’s contention that E-FOIA required the TSA to release the relevant records in their
“native, electronic” format (with “embedded metadata”) is more persuasive, although the
argument produces mixed results when applied to the relevant facts. In 1996, Congress enacted
the Electronic Freedom of Information Act Amendments to FOIA—or “E-FOIA” for short—to
“improve public access to agency records and information” and to “maximize the usefulness of
agency records and information collected, maintained, used, retained, and disseminated by the
Federal Government.” Pub. L. No. 104-231, § 2, 110 Stat. 3048 (1996). Under those
amendments, when responding to a FOIA request, an agency must “provide the [requested]
record[s] in any form or format requested by the [FOIA requester] if the record is readily
reproducible by the agency in that form or format.” 5 U.S.C. § 552(a)(3)(B). “Each agency,”
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moreover, is required to “make reasonable efforts to maintain its records in forms or formats that
are reproducible for purposes of” E-FOIA. Id. Courts, however, must “accord substantial
weight to an affidavit of an agency concerning the agency’s determination as to . . .
reproducibility under” E-FOIA. 5 U.S.C. § 552(a)(4)(B).
Much of Sai’s argument is misdirected. He asserts, for example, that “TSA’s Vaughn
declarations and exhibits are . . . partially rasterized PDFs,” that the agency’s “Vaughn indices
are spreadsheets embedded in PDF format, severely hampering [his] ability to do basic
operations like copying the spreadsheets into Google Spreadsheets,” and that the TSA’s refusal
to provide him “with spreadsheet format versions of the Vaughn indices” has hampered his
ability to litigate this case. Dkt. 111-2 at 2–3. E-FOIA, however, applies only to records
released pursuant to FOIA; it has no bearing on the form or format of declarations, indices, and
exhibits filed with the Court, or served on the opposing party, in the course of litigating a FOIA
suit. Three of Sai’s FOIA requests, moreover, do not actually request that the TSA release the
records in any format other than “electronic[]” or “digital.” Dkt. 99-3 at 50–51, (McCoy Decl.
Ex. A) (BOS Request) (requesting a “digital copy of all related materials” and “demand[ing] that
this request be serviced electronically to the maximum extent possible”); id. at 85–86 (McCoy
Decl. Ex. L) (SFO Request) (requesting a “digital copy of all Related Material” and
“demand[ing] that this request be serviced electronically to the maximum extent possible”); id. at
78 (McCoy Decl. Ex. I) (CCTV Request) (requesting “any contract/agreement with other
agencies regarding surveillance, or maintenance . . . footage, at Logan airport” without
specifying the format of production). All of the requested records, however, were produced in an
electronic format to Sai, Dkt. 118-1 at 2 (3d Supp. McCoy Decl. ¶ 7), and Sai agrees that
responses provided in PDF format “fulfill the absolute minimum requirements of being
15
electronically accessible,” Dkt. 111-2 at 4. Accordingly, as to Sai’s BOS, SFO, and CCTV
Requests, the format of TSA’s responses met the requirements of E-FOIA. See 5 U.S.C.
§ 552(a)(3)(B).
Turning to Sai’s Policies Request, Sai once again did not request that the TSA provide
the responsive records in a “native” format with embedded metadata. Rather, he asked that the
TSA release the records “in an electronic, machine-processable, accessible, open, and well-
structured format to the maximum extent possible.” Dkt. 99-3 at 129 (McCoy Decl. Ex. S).
Presumably recognizing the ambiguity of that request, Sai further explained that, “[t]his means,”
for example: “individual PDFs per distinct document,” “fully digital text PDFs rather than scans
or rasterizations,” “digital redactions rather than black marker,” “lists and structured data as
machine-processable spreadsheets,” and “scans rather than paper copies.” Id. (McCoy Decl. Ex.
S).
In opposing the TSA’s motion for summary judgment, Sai raises three objections that are
arguably relevant to this request: first, that each record was not released in a distinct,
“discretiz[ed]” file; second, that spreadsheets were not released in a “useable, machine-
processible format;” and, third, that the records were released as “rasterized PDF[s].” Dkt. 111-2
at 2, 4–5. The TSA, for its part, does not directly respond to the first of these objections.
Although the agency stresses the limitations imposed by the software that it used to process
FOIA requests at the relevant times, Dkt. 118 at 7–10; Dkt. 118-1 at 2–4 (3d Supp. McCoy Decl.
¶¶ 7–16), it fails to explain whether or why that software would have prevented the agency from
generating separate PDF files for each discrete record, and it fails to argue that, as a matter of
law, “discretization” does not constitute a “form or format” for purposes of 5 U.S.C.
16
§ 552(a)(3)(B). Based on this limited record, the Court cannot determine whether the TSA is
entitled to summary judgment with respect to the “discretization” of the records released in
response to Sai’s Policies Request.
As to the second objection—that the TSA released spreadsheets in an unusable format—
it is Sai that drops the ball. Although he asserts, generally, that the TSA FOIA response process
is flawed because the agency does not release spreadsheets in a usable format, Dkt. 111-2 at 5,
and although he contends, specifically, that the TSA’s Vaughn index was produced in a format
that did not permit him to perform “basic operations like copying the spreadsheet into Google
Spreadsheets,” id. at 2, Sai fails to assert that the TSA released any spreadsheets in response to
his Policies Request. Absent some reason to conclude that Sai’s general objection to the manner
in which the TSA releases spreadsheets has any bearing on the Policies Request, the Court
cannot opine on that question. Simply put, “[t]he judicial power does not extend to the
determination of abstract questions.” Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 324
(1936). Because this decision will require further litigation of a handful of specified issues,
however, the Court will provide Sai with the opportunity to demonstrate that the TSA released
spreadsheets in response to his Policies Request.
Although not crystal clear, Sai does adequately raise his final objection—that the records
responsive to his Policies Request were released in a “rasterized” format, and not as “fully digital
text PDFs”—and the TSA at least indirectly responds to that objection. Sai explains that “[b]y
‘rasterized PDF,’ [he] mean[s] the kind that is produced by scanning paper documents . . . or
irreversibly rendering text into image format,” Dkt. 111-2 at 4 n.10, and that understanding
comports with the dictionary definition, see Rasterize, v., Oxford English Dictionary (2018) (“To
17
convert (an image) into . . . points or pixels on a grid”). 2 The question, then, is whether Sai was
entitled to receive records responsive to his Policies Request in the “fully digital” (non-
rasterized) text PDF format that he sought. See 5 U.S.C. § 552(a)(3)(B).
The answer to that question overlaps with the sole question presented by Sai’s final set of
requests, the BOS and SFO Re-Requests. In those requests, Sai asked that the TSA release the
relevant records “in their original electronic format or as a scan of any documents that are
originally paper.” Dkt. 28-3 at 11–12. The second of these alternatives does not present an issue
here; Sai requested scanned copies of original, paper records, and that is what he received. The
first alternative, however, might reasonably be construed to seek the requested non-paper files in
their “native” format—for example, in “Word, Excel, or electronic PDF.” Dkt. 111-2 at 4. 3 So,
taken together, the final question posed by Sai’s Policies Request and BOS and SFO Re-
Requests is whether the records that he sought were “readily reproducible” by the TSA at the
relevant time in the format that Sai requested: Word, Excel, electronic PDF, or the like. 5 U.S.C.
§ 552(a)(3)(B).
The TSA contends that the answer to this question is “no,” and in support of that
contention it once again relies on a declaration from Regina McCoy. According to McCoy, at all
relevant times, the TSA used a FOIA processing software called FOIAXpress. Dkt. 118-1 at 2
(3d Supp. McCoy Decl. ¶ 8). That software, however, did not “have the capability to process
records in their native formats,” and, instead, records were “processed and prepared for release
2
Available at http://www.oed.com/view/Entry/247452.
3
It is far less clear that this request can plausibly be construed to reach “metadata” that is not
necessary to read or use the record in that format, nor is it clear that Sai would be entitled to such
“metadata.” See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Educ., 905 F.
Supp. 2d 161, 172 (D.D.C. 2012) (rejecting the argument that “a government agency must
produce electronic copies and/or metadata to comply with FOIA”).
18
. . . in [a] PDF format.” Id. at 2–3 (3d Supp. McCoy Decl. ¶ 8). Likewise, records that contained
possible sensitive security information (“SSI”) were provided to the SSI Program Office in a
PDF format; were reviewed, sanitized, and returned to the FOIA Branch as PDFs; and were then
entered into the FOIAXpress system and prepared for release as PDFs. Id. at 3 (3d Supp. McCoy
Decl. ¶¶ 9–11). Against this backdrop, the TSA argues that the records responsive to Sai’s
requests were not “readily reproducible” in their native format because, without the availability
of the FOIAXpress system, the agency would have been required
to create a separate tracking system unique to Plaintiff’s . . . requests for purposes
of keeping accurate documentation of the request itself and correspondence with
the requester, the tasking to various offices within the agency and follow-up
correspondence with those offices, responsive records back from assigned offices,
exemptions and redactions applied to the records and the various layers of review
that each record underwent.
Id. at 3–4 (3d Supp. McCoy Decl. ¶ 13). On top of this, the TSA adds, “without FOIAXpress,
the FOIA Branch would have had to identify and procure an alternative method for applying
redactions,” and, “[a]t all relevant times, [it] did not have the knowledge, training, or capability
ready to apply such redactions to records in formats such as Excel (e.g., .xls); Outlook (e.g.,
.msg), or Word (e.g., .doc).” Id. at 4 (3d Supp. McCoy Decl. ¶ 14).
At least on the present record, the Court is unconvinced that these justifications satisfy
the requirements of 5 U.S.C. § 552(a)(3)(B). In order to prevail on this issue, the TSA must
show that the records that Sai sought were not “readily reproducible” in their original electronic
format. Id. “Relatively few cases discuss the application of the . . . ‘readily reproducible’
requirement,” Scudder v. CIA, 25 F. Supp. 3d 19, 31 (D.D.C. 2014), however, and neither party
has briefed the issue in any detail. The only D.C. Circuit precedent addressing the “readily
reproducible” requirement, moreover, deals with the distinct question whether an agency may
consider the “characteristics of the requester”—in that case, a prison inmate who was not
19
permitted to possess electronic media—in applying the standard. See Sample v. Bureau of
Prisons, 466 F.3d 1086, 1088 (D.C. Cir. 2006).
Congress enacted the “readily reproducible” requirement to overrule this Court’s decision
in Dismukes v. Department of the Interior, 603 F. Supp. 760 (D.D.C. 1984), holding that a FOIA
requester was not entitled “to obtain a copy of a computer tape listing [the] name[s] and
address[es] [of] participants in” bimonthly Bureau of Land Management oil and gas lease
lotteries, id. at 760–61. See H.R. Rep. No. 104-795, at 21 (1996). The Bureau rejected the
plaintiff’s request, advising him that the lists were made available to the public on microfiche
and that they would be provided to him in that format. Dismukes, 603 F. Supp. at 761. This
decision was justified, according to the Bureau, by the fact that “microfiche [was] the format
more likely to be readily readable by the largest number of requesters,” even though the
computer tape provided a less costly option for those “who need[ed] to obtain a . . . copy of the
information for further study.” Id. at 762–63. The Court agreed, holding that even if “computer
tape [might] offer[] the least expensive, most convenient means of access to the” data for “this
particular requester,” agencies have “no obligation under FOIA to accommodate” every
requester’s preferences; agencies “need only provide responsive, nonexempt information in a
reasonably accessible form.” Id. at 763.
In rejecting this holding, Congress did not mandate that agencies comply with every
request for release of records in every conceivable format. Instead, E-FOIA merely requires that
an agency comply with a format request if the relevant record is “readily” reproducible in that
format. That determination requires that the Court consider the “technical feasibility” of the
request, and courts must “accord substantial weight to an affidavit of an agency concerning the
agency’s determination as to technical feasibility.” 5 U.S.C. § 552(a)(4)(B). But “technically
20
feasibile” is not “synonymous” with “readily reproducible,” and the Court must also “consider
the burden on the defendant” in producing records in a format that, although “technically
feasible,” is not “readily” achieved. Scudder, 25 F. Supp. 3d at 38; see also Long v. ICE, 149 F.
Supp. 3d 39, 55 (D.D.C. 2015). Assessing both the “technical feasibility” of a proposed format
and the burden that would be imposed on the agency is necessarily a fact-dependent inquiry.
Scudder, 25 F. Supp. 3d at 31.
The present context adds a slight twist on this inquiry. In one sense, Sai is not asking that
the TSA reproduce the relevant records in a new format; he is asking that it produce them in their
original format. That context, of course, is not entirely alien to 5 U.S.C. § 552(a)(3)(B). As
recounted above, Congress enacted the “readily reproducible” requirement in response to a
judicial decision that involved a similar scenario. In Dismukes, the Bureau of Land Management
kept data on computer tapes, yet it reproduced that information on microfiche for public
disclosure. 603 F. Supp. at 760. Congress adopted the “readily reproducible” requirement in
response, leaving little doubt that the “readily reproducible” requirement applies both to records
that require conversion to a new format and to records, like those at issue here, that are sought in
their original format, notwithstanding the fact that the agency can more easily release the records
in a different format.
This Court’s decision in Scudder provides helpful guidance. In that case, the CIA
declined to release records in an electronic format, explaining that, due to security measures
needed to protect classified materials, it could only produce the requested records as “paper
printouts.” 25 F. Supp. 3d. at 22. The district court rejected the contention that the CIA “is de
facto exempt from the requirements of 5 U.S.C. § 552(a)(3)(B),” id. (emphasis omitted), and,
instead, applied a fact-intensive approach, id. at 31. In doing so, the court adopted the test first
21
articulated by the Court of Appeals for the Ninth Circuit in TPS, Inc. v. United States
Department of Defense, 330 F.3d 1191 (9th Cir. 2003): “When an agency already creates or
converts documents in a certain format—be it for FOIA requestors, under a contract, or in the
ordinary course of business—requiring that it provide documents in that format to others does
not impose an unnecessarily harsh burden, absent specific, compelling evidence as to significant
interference or burden.” Id. at 1195; see also Scudder, 25 F. Supp. 3d at 32.
Applying that standard here, the Court concludes that the TSA has not—at least on the
present record—carried its burden of demonstrating that it could not have “readily” produced the
relevant electronic records in their original format as requested. There is no question that the
TSA had the technical capacity to format the records in the manner requested; indeed, that is
how the records were originally formatted and used by the agency. For obvious reasons, the
TSA does not contest this point. Rather, the agency argues that releasing records under FOIA in
their original format would be unduly burdensome because its FOIA processing software, and its
SSI review process, require reformatting the records as PDF files, and because it lacked the
technical sophistication to redact files in their original formats. See Dkt. 118 at 8–10; Dkt. 118-1
at 3–4 (3d Supp. McCoy Decl. ¶¶ 12–16).
The TSA may be able to show that Sai’s request that the agency release the records in
their original format posed a burden on the agency of sufficient magnitude to justify its rejection
of that request. It may be able to show, for example, that it could not have, at the time, “readily”
ensured that redactions were not countermanded. It has yet to do so, however, and the TSA’s
primary contention that the request was incompatible with the agency’s then-existing FOIA
processing software is in tension with the language and purpose of the E-FOIA amendments.
The statute asks whether the record at issue “is readily reproducible by the agency in” the
22
requested format, 5 U.S.C. § 552(a)(3)(B), and not whether reproducing the file in that format
would complicate the agency’s FOIA review process. Even more significantly, the next sentence
of the statute demands that agencies “make reasonable efforts to maintain . . . records in forms or
formats that are reproducible for purposes of” E-FOIA. Id. And perhaps most significantly,
Congress’s goals of “improv[ing] public access to agency records,” Pub. L. No. 104-231, § 2,
110 Stat. 3048 (1996), and “maximiz[ing] the usefulness of agency records,” id., would be easily
frustrated if an agency could reject a request to release records in a particular format simply on
the ground that releasing the records in that format would make the FOIA review process more
difficult. Because the TSA has yet to show that Sai’s format request posed a “significant
interference or burden” beyond increased FOIA-processing costs, and because it has yet to show
that administrative costs of that type constitute a legally sufficient basis for rejecting a format
request, the TSA is not entitled to summary judgment with respect to the format of the records
released in response to Sai’s Policies Request and BOS and SFO Re-Requests. TSA has
similarly failed to carry its burden of demonstrating that it could not have “readily” produced the
records responsive to the Policies Request in “fully digital,” non-“rasterized” “text PDFs” as
requested.
3. Legibility
Finally, Sai argues that the TSA’s response to his BOS and SFO Requests were deficient
because six pages of records that the agency released were “completely illegible.” Dkt. 111-2 at
2 (listing “2013-TSPA-00368 Bates 003-004, 006-007; 2013-TSFO-01096 Bates 009-010”).
These records include a handwritten “Incident/Event Reporting Form” in response to Sai’s SFO
Request, Dkt. 143-2 at 6–7; scans of Sai’s passport and boarding pass in response to the SFO
Request, id. at 3; see also Dkt. 57-5 at 3, and a spreadsheet in response to Sai’s BOS Request,
Dkt. 141-2 at 9–10. Upon review of those documents, the Court agrees that the records are
23
illegible. FOIA requesters are entitled to a legible copies of responsive agency records. Cleary,
Gottlieb, Steen & Hamilton v. Dep’t of Health & Human Servs., 844 F. Supp. 770, 779 (D.D.C.
1993) (“Without question, a FOIA respondent has a duty to release legible, complete records.”).
Accordingly, the Court must also deny summary judgment as to these six pages: Dkt. 143-2 at 3,
6–7; Dkt. 141-2 at 9–10.
* * *
In sum: many of Sai’s objections regarding the format of responsive records are
meritless. With respect to the following objections, however, the Court concludes that the TSA
has yet to carry its burden on summary judgment: First, as to Sai’s Policies Request, the TSA
has failed to explain why it could not “readily” have released the records as distinct PDFs or in
“fully digital,” non-“rasterized” “text PDFs.” Second, as to the BOS and SFO Re-Requests, the
TSA has failed to explain why it could not have “readily” released the records in their original
Word, Excel, electronic PDF, or like format. Third, with respect to six pages of records, the
agency has failed to explain why it could not have released legible copies. Finally, with respect
to Sai’s Policies Request, the Court will provide Sai with the opportunity to identify any
spreadsheets that he received in a format that was not useful. In all other respects, the TSA is
entitled to summary judgment on the format issues.
B. Adequacy of Searches
Sai also argues that the searches that the TSA conducted in response to his FOIA/PA
requests were inadequate. Dkt. 111-2 at 5–19. The adequacy of an agency’s search for records
“is analyzed under the same standard” for purposes of both FOIA and the Privacy Act.
Thompson v. U.S. Dep’t of Justice, 146 F. Supp. 3d 72, 82 (D.D.C. 2015). Under both statutes,
the adequacy of the “search is generally determined not by the fruits of the search, but by the
appropriateness of the methods used to carry [it] out.” Iturralde v. Comptroller of Currency, 315
24
F.3d 311, 315 (D.C. Cir. 2003). The agency “cannot limit its search to only one record system if
there are others that are likely to turn up the information requested,” but, at the same time, it
need not “search every record system.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C.
Cir. 1990). Similarly, the agency need not deploy every conceivable search term or permit the
FOIA requester to dictate the search terms in the course of litigation, but it must use terms
reasonably calculated to locate responsive records. See Agility Public Warehousing Co. K.S.C. v.
NSA, 113 F. Supp. 3d 313, 339 (D.D.C. 2015) (“Where the search terms are reasonably
calculated to lead to responsive documents, the Court should not ‘micro manage’ the agency’s
search.”); see also Physicians for Human Rights v. U.S. Dep’t of Def., 675 F. Supp. 2d 149, 164
(D.D.C. 2009) (“[Agencies have] discretion in crafting lists of search terms that they believe[] to
be reasonably tailored to uncover documents responsive to the FOIA request.”).
The “agency fulfills its obligations under FOIA” and the Privacy Act “if it can
demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all
relevant documents.’” Valencia-Lucena v. U.S. 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)). To prevail on
summary judgment, the agency must submit affidavits (or declarations) that “‘denote which files
were searched,’ [and] by whom those files were searched, and [that] reflect a ‘systematic
approach to document location.’” Liberation Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d
137, 144 (D.D.C. 2015) (quoting Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 371 (D.C. Cir.
1980)); see also Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C.
Cir. 2006); Oglesby, 920 F.2d at 68. Those 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., 926 F.2d at 1200 (quoting
25
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). But where “a review of
the record raises substantial doubt, particularly in view of ‘well defined requests and positive
indications of overlooked materials,’ summary judgment is inappropriate.” Valencia-Lucena,
180 F.3d at 326 (citation omitted).
1. BOS and SFO Requests and Re-Requests
Sai raises three challenges to the adequacy of the TSA’s search for records responsive to
his BOS and SFO Requests and Re-Requests. He contends that the TSA (a) failed to search all
offices that might have responsive records; (b) failed “to adequately document the timing,” and
thus the cut-off dates, for the relevant searches; and (c) failed adequately to document the
“keywords” used and the “database indices” searched. Dkt. 111 at 2. The Court will consider
each of these contentions in turn.
(a) Offices Searched
Sai first asserts that the TSA did not search the following offices “for records, such as
emails, in relation to [his] complaints” of mistreatment at the TSA checkpoints: the Office of
Security Operations (“OSO”), the Office of Strategic Communications and Public Affairs
(“OPA”), the Office of Civil Rights and Liberties, the office of Ombudsman and Traveler
Engagement (“OCR&L”), the SFO field office, Covenant Aviation Security, the TSA FOIA
Branch, the BOS field office, the TSA Contact Center (“TCC”), the Office of Chief Counsel
(“OCC”), the Office of the Executive Secretariat, the Office of Legislative Affairs (“OLA”), the
Department of Homeland Security (“DHS”), and the DHS Office for Civil Rights and Liberties.
Dkt. 111-2 at 5–6.
As explained in the McCoy declaration, the TSA has 39 program offices and operates at
over 450 airports, and it “does not maintain a central index of records sorted by individuals to
whom they relate.” Dkt. 99-3 at 5 (McCoy Decl. ¶ 12). The TSA was not required to search
26
every office or location for potentially responsive records, Oglesby, 920 F.2d at 68, but, rather,
was merely required to engage in a search that was reasonably calculated to find the relevant
records, Valencia-Lucena, 180 F.3d at 325. In an effort to do so, the TSA searched numerous
offices, including several of the offices that Sai claims went unsearched.
McCoy attests that, in response to the BOS Request, the TSA’s FOIA Branch tasked the
field offices for the Logan, LaGuardia, and O’Hare Airports with searching for responsive
records. Dkt. 99-3 at 5 (McCoy Decl. ¶ 13). Those field offices are part of the OSO, one of the
offices that Sai says the TSA neglected to search. Id. (McCoy Decl. ¶ 14). The TSA also tasked
the TSOC, which is part of the OLE/FAMS, with conducting a search, id. at 6 (McCoy Decl. ¶
18), and OLE/FAMS searched its Logan Airport “office for responsive records, including those
maintained by the Special Agent in Charge[] and the TSOC,” id. at 7 (McCoy Decl. ¶ 20).
Finally, the TSA tasked the TCC with searching for responsive records. Id. at 7 (McCoy Decl.
¶¶ 21–23). Significantly, the “TCC is part of the Customer Service Branch of [the] TSA’s Office
of Civil Rights and Liberties, Ombudsman & Traveler Engagement Division” and “is responsible
for fielding and providing timely responses to the traveling public via telephone and email to
answer questions, provide guidance, and facilitate problem resolution.” Id. (McCoy Decl. ¶ 22).
In responding to the SFO Request, the TSA tasked the TSA’s field office at the San
Francisco Airport and TCC with searching for responsive records. Id. at 20 (McCoy Decl. ¶ 62,
64). The TSA also searched the Disability Branch of the Office of Civil Rights and Liberties,
Ombudsman and Traveler Engagement, which is the “primary point of contact within TSA for
supporting the DHS disability policy agenda.” Id. at 21 (McCoy Decl. ¶¶ 67–68). The
Disability Branch searched for all records relating to Sai (not just records relating to the SFO
27
incident), which located emails, deliberative drafts, and Sai’s administrative complaints. Id.
(McCoy Decl. ¶ 69).
Finally, in response to Sai’s BOS and SFO Re-Requests, the TSA tasked the Logan and
San Francisco Airport field offices, the TCC, and OLE/FAMS with searching for records that
post-dated those found in the earlier search. Id. at 44 (McCoy Decl. ¶ 127). TSA found no
responsive records to these requests that were not already included in the productions for the
BOS and SFO Requests. Id. at 47 (McCoy Decl. ¶¶ 136, 139).
The McCoy declaration must be accorded a presumption of good faith, see SafeCard
Servs., 926 F.2d at 1200, and it demonstrates that much of Sai’s concern about the scope of the
TSA’s search is incorrect or overstated. Despite Sai’s assertions to the contrary, the
uncontroverted record demonstrates that relevant portions of the Logan, LaGuardia, O’Hare, and
San Francisco Airport field offices were searched, along with relevant portions of the Office of
Security Operations, Office of Civil Rights and Liberties, and the TSA Contact Center. The lone
response that Sai offers to McCoy’s declaration is that the only email released was from the
Disability Branch, Dkt. 111-2 at 6−7, but failure to uncover records does not mean that the
search was inadequate, see Iturralde, 315 F.3d at 315 (“[T]he adequacy of a FOIA search is
generally determined not by the fruits of the search, but by the appropriateness of the methods
used to carry out the search.”); Boyd, 475 F.3d at 391 (“[T]he fact that a particular document was
not found does not demonstrate the inadequacy of a search.”). Moreover, the fact that the
Disability Branch may have been copied on responsive emails does not indicate that those emails
were not obtained from the offices from which they originated.
A number of the other offices that Sai claims the TSA should have searched lie beyond
the TSA’s purview or beyond the scope of Sai’s request and this litigation. As Sai recognizes,
28
Covenant Aviation Security is a private contractor, Dkt. 111-2 at 6 n.13, and thus is not subject
to FOIA, Roman v. Dep’t of the Air Force, 952 F. Supp. 2d 166, 175 (D.D.C. 2013) (citing U.S.
Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144–45 (1989)). Similarly, Sai contends that the
TSA failed to search the Department of Homeland Security or the DHS Office of Civil Rights
and Liberties for responsive records, but he submitted his FOIA/PA requests only to the TSA,
and the DHS FOIA regulations require that a requester “write directly to the Department
component that maintains [the] records” sought. 6 C.F.R. § 5.3(a) (2003) (superseded 2016); see
also 6 C.F.R § 5.1(b) (defining “component” to mean “each separate bureau, office, division,
commission, service, center, or administration”). “As a result, only the component to which the
FOIA request is directed has an obligation to conduct a search.” Ewell v. U.S. Dep’t Justice, 153
F. Supp. 3d 294, 302 (D.D.C. 2016) (interpreting analogous Department of Justice regulation).
The Court is not convinced on the current record, however, that the TSA has carried its
burden with respect to four offices that Sai contends were not, but should have been, searched.
First, Sai faults the TSA for failing to conduct a search of the agency’s FOIA Branch for
responsive records. Dkt. 111-2 at 6. The TSA, for its part, offers no relevant response. It
merely asserts that Sai’s request for all records “related to [him] held by any relevant parties”
was overly broad, Dkt. 99-3 at 5 (McCoy Decl. ¶ 12), requiring the agency to focus its search on
specific offices “based on the particular subject matters described in correspondence with [Sai]
related to [his] request[s],” Id. (McCoy Decl. ¶ 13), or “[b]ased on the particular information
reasonably described in the request,” id. at 20 (McCoy Decl. ¶ 62). The TSA is correct that it
was not required to conduct “an unreasonably burdensome search,” Goland, 607 F.2d at 353, and
was not required to search every TSA office and every TSA file system for records “related to”
Sai. But the agency seems to concede, as it must, that it was required to conduct a search
29
reasonably calculated to find records “reasonably described in the request.” That much seems
settled. What the TSA fails to acknowledge, however, is that both the BOS and SFO Requests
expressly sought “all documents and communication[s] related to or responding to” the requests,
“whether internal or external.” Dkt. 99-3 at 51 (McCoy Decl. Ex. A) (BOS Request); id. at 59
(McCoy Decl. Ex. D) (interim response confirming request for same); id. at 67 (final release
confirming request for same); id. at 86 (McCoy Decl. Ex. L) (SFO Request); id. at 89 (McCoy
Decl. Ex. M) (confirmation of receipt of request for same); id. at 92 (McCoy Decl. Ex. N)
(interim response confirming request for same); id. at 99 (McCoy Decl. Ex. P) (final release
confirming request for same). Those requests can only reasonably be construed to encompass
FOIA processing records, and, as this Court has previously recognized, FOIA is applicable to the
FOIA process itself. See Shapiro v. U.S. Dep’t of Justice, 153 F. Supp. 3d 253, 276 (D.D.C.
2016). Because the TSA offers no meaningful explanation for why it did not search its FOIA
Branch for records “related to responding to” Sai’s FOIA requests, the TSA is not entitled to
summary judgment with respect to this portion of Sai’s claims.
Although less clear, the Court is also unconvinced based on the current record that the
TSA correctly declined to search for responsive records held by its Office of Legislative Affairs.
To be sure, Sai did not specifically request records from the Office of Legislative Affairs, and
that office does not leap to mind when asked where records relating to incidents that occurred at
various airport security checkpoints might be found. But correspondence from and to Speaker
Pelosi’s office relating to the incident evidently came to the TSA’s attention in the course of
responding to Sai’s FOIA requests, see, e.g., Dkt. 145-2 at 123, and that correspondence should
have caused the agency to inquire whether the Office of Legislative Affairs possessed other,
potentially responsive records. See Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir.
30
1998) (“An agency . . . must revise its assessment of what is [a] “reasonable” [search] in a
particular case to account for leads that emerge during its inquiry.”).
Finally, the Court is not convinced that TSA correctly declined to search for responsive
records held by its Office of Chief Counsel and Office of the Executive Secretariat. Email
correspondence released to Sai indicates that individuals in those offices had some involvement,
even if only minimal, in addressing Sai’s complaints, see Dkt. 145-2 at 61, 123, 143; Dkt. 144-3
at 58–62, 73, and the TSA has acknowledged that it did not search those offices for records
responsive to Sai’s SFO request, see Dkt. 99-3 at 20–21 (McCoy ¶¶ 63, 66–68). This
correspondence indicates that these offices may have possessed records responsive to the SFO
Request, and, on the current record, the Court is unable to conclude that TSA conducted a search
“reasonably calculated to uncover all relevant documents” with respect to those offices. See
Valencia-Lucena, 180 F.3d at 325.
In sum: the Court agrees, with the four exceptions described above, that the TSA
searched those offices that were likely to have records responsive to Sai’s BOS and SFO
Requests and Re-Requests. The exceptions are the TSA’s FOIA Branch, its Office of Legislative
Affairs, its Office of Chief Counsel, and its Office of the Executive Secretariat. For present
purposes, the Court holds only that the TSA has yet to carry its burden with respect to those four
offices.
(b) Time Frame for the Search
Sai also argues that the TSA has failed to demonstrate that it searched for records
covering the relevant time frame. The Court agrees.
The governing DHS FOIA regulations at the time of Sai’s request provided that, “[i]n
determining which records are responsive to a [FOIA/PA] request, a component,” like the TSA,
31
should “ordinarily . . . include only records in its possession as of the date that it begins its
search.” 6 C.F.R. § 5.4(a) (2003) (superseded 2016) (FOIA); 6 C.F.R. § 5.22(a) (Privacy Act).
If a different date is used, the component is required to “inform the requester of that date.” 6
C.F.R. § 5.4(a) (2003); 6 C.F.R. § 5.22(a). The DHS regulations comport, moreover, with the
D.C. Circuit’s admonition that, absent a specific justification, agencies should respond to
requests seeking records created or obtained up to the date of search. See Pub. Citizen v. Dep’t
of State, 276 F.3d 634, 644 (D.C. Cir. 2002); see also Defs. of Wildlife v. U.S. Dep’t of Interior,
314 F. Supp. 2d 1, 12 n.10 (D.D.C. 2004).
The problem here is that the TSA has not submitted evidence sufficient for the Court to
determine when it commenced each of the relevant searches. Sai asserts, without contradiction
from the TSA, that the most recent e-mail released in response to his FOIA/PA requests was
dated July 7, 2014, and that he did not receive responses to some of his FOIA/PA requests until
2016. Dkt. 111-2 at 7; see also Dkt. 99-3 at 187 (McCoy Decl. Ex. DD). From this and the fact
that the TSA continued to review his administrative Rehabilitation Act complaints in the interval
between July 7, 2014, and January 6, 2016, when he received his final response to his BOS and
SFO Re-Requests, he infers that the TSA’s search could not have encompassed the entire,
relevant timeframe. Dkt. 111-2 at 7; see also Dkt. 99-3 at 187 (McCoy Decl. Ex. DD) (final
response to BOS and SFO Re-Requests).
In response, the TSA notes that the July 7, 2014 email was dated “just weeks” after it
issued its “interim and final releases in the BOS and SFO Requests” and that “[i]t is not
unreasonable for an agency to take time after the completion of a FOIA search to review and
process the responsive records.” Dkt. 118 at 12. That response, however, ignores Sai’s BOS and
SFO Re-Requests, which were not processed until much later. Indeed, the TSA acknowledges
32
that it did not initially treat the Re-Requests as distinct FOIA/PA requests and that was not until
September 21, 2015 that the agency sent Sai “an acknowledgement letter” for those requests.
Dkt. 99-3 at 43 (McCoy Decl. ¶¶ 123–24). Although the TSA correctly observes that Sai’s
objection is premised on his “speculat[ion] as to the dates that [the relevant] searches ended,”
Dkt. 118 at 13, that speculation is a product of the fact that the TSA, which has sole access to the
relevant information, has not revealed when the search occurred and what cut-off date that the
agency applied. 4
Finally, the TSA argues that because the BOS and SFO Re-Requests “sought records
related to two incidents that occurred in 2013, and because the agency had already conducted
adequate, reasonable searches for responsive records,” it is “unsurprising” that “no new records
were uncovered” in response to those requests. Dkt. 118 at 14. That may be so, but there is
reason to believe that new records were created after the date of the original requests in the
course of the TSA’s consideration of Sai’s Rehabilitation Act complaints, and, without evidence
regarding the temporal scope of the TSA’s search, it is impossible to know whether the search
was adequate. Under these circumstances, the Court, accordingly, cannot conclude that the TSA
has carried its burden on this issue for purposes of summary judgment.
One last, related issue bears note, however. The TSA is correct that Sai’s BOS and SFO
Re-Requests required the agency to search only for records relating to the original BOS and SFO
incidents, which occurred in early 2013. That is what Sai sought when he made the re-requests
in November 2013, Dkt. 28-3 at 11–12, and, as the TSA correctly observes, a FOIA requester
cannot, years later and after a dispute is in litigation, expand the scope of a request by merely
4
Although the TSA asserts that Sai has speculated about when the “searches ended,” it is
actually the date the searches started that matters under the governing regulations. See 6 C.F.R.
§ 5.4(a) (2003) (superseded 2016); 6 C.F.R. § 5.22(a).
33
asserting, as Sai did, that “due to the [the agency’s] delay,” the request “now also encompasses
records relating to” events that occurred long after the original request. Dkt. 99-3 at 182 (McCoy
Decl. Ex. BB); see Houser v. Church, 271 F. Supp. 3d 197, 204 (D.D.C. 2017); Donoghue v.
Office of Info. Policy, U.S. Dep’t of Justice, 157 F. Supp. 3d 21, 23 n.2 (D.D.C. 2016); Coss v.
U.S. Dep’t of Justice, 98 F. Supp. 3d 28, 34 (D.D.C. 2015). Even if later-created records might
fall within the scope of an open-ended request, Sai’s BOS and SFO Re-Requests were not open-
ended: they sought only records relating to “the two incidents” that occurred at the Logan and
San Francisco Airports in early 2013. Dkt. 28-3 at 11. To the extent Sai seeks records relating
to other incidents, he must submit a new FOIA request. See Kowalczyk v. Dep’t of Justice, 73
F.3d 386, 389 (D.C. Cir. 1996).
(c) Adequacy of the Searches
Sai further contends that the TSA “failed to provide adequate record evidence . . .
document[ing]” the “keywords” and “database indices” searched. Dkt. 111 at 2. The Court
agrees that the TSA has failed to meet its burden with respect to some of the offices searched.
“To establish that it has conducted an adequate FOIA search, [an agency] must provide a
‘reasonably detailed’ affidavit containing ‘search terms and the type of search performed, and
averring that all files likely to contain responsive materials . . . were searched . . . to allow the
district court to determine if the search was adequate in order to grant summary judgment.’”
Anderson v. U.S. Dep’t of State, 661 F. Supp. 2d 6, 10 (D.D.C. 2009) (quoting Oglesby, 920 F.2d
at 68). “Affidavits that include search methods, locations of specific files searched, descriptions
of searches of all files likely to contain responsive documents, and names of agency personnel
conducting the search are considered sufficient.” Ferranti v. Bureau of Alcohol, Tobacco &
Firearms, 177 F. Supp. 2d 41, 47 (D.D.C. 2001) (citing Weisberg, 705 F.2d at 1348). In
34
contrast, in the absence of other indicia of a thorough search, a declaration that “fail[s] to
document the search terms used” in an electronic search will not provide the Court with
sufficient basis to grant summary judgment in favor of the agency. Anderson, 661 F. Supp. 2d at
11 (quoting Aguirre v. SEC, 551 F. Supp. 2d 33, 60 (D.D.C. 2008)); see also Friends of
Blackwater, 391 F. Supp. 2d at 120 (explaining that the agency’s failure to “enumerate any
specific search terms used in examining the agency’s electronic files” raised doubts as to the
adequacy of the search); see also Judicial Watch, Inc. v. U.S. Dep’t of Justice, 185 F. Supp. 2d
54, 64 (D.D.C. 2002) (“The . . . declaration fails to explain whether key words were used and if
so which key words were used to search for responsive documents. Without knowing these
details regarding defendant’s search, the Court cannot determine whether defendant’s efforts
were ‘reasonably calculated’ to recover the responsive records.”).
With respect to the databases searched, the McCoy declaration describes in sufficient
detail the locations and databases within each office searched in response to Sai’s BOS and SFO
Requests, see Dkt. 99-3 at 6–8 (McCoy Decl. ¶¶ 15–17, 20, 23) (BOS Request); id. at 20–21
(McCoy Decl. ¶¶ 63, 65–66, 69) (SFO Request). In response to Sai’s BOS and SFO Re-
Requests, however, the TSA merely states that the FOIA Branch tasked the SFO, BOS, TCC,
and Disability Branch offices to search for responsive records, but does not explain which
databases or locations were searched within those offices. Id. at 46, 47 (McCoy Decl. ¶¶ 134,
137). Although the Court assumes that the TSA searched the same databases and locations as it
did in response to Sai’s BOS and SFO Requests, the agency must describe its searches in greater
detail to meet its burden on summary judgment.
With respect to the search terms used, the McCoy declaration provides an accounting of
the terms used for the majority of the offices searched. In response to Sai’s BOS Request, for
35
example, the McCoy declaration reports that the BOS field office searched electronic records
“using Plaintiff’s name as a search term,” Dkt. 99-3 at 6 (McCoy Decl. ¶ 15); the LGA field
office searched “using Plaintiff’s name” as well as “the date of the LGA incident,” id. (McCoy
Decl. ¶ 16); and the TCC office “electronically searched its centralized database for records
containing Plaintiff’s name, phone number, and email address” as well as “the date and flight
number of Plaintiff’s scheduled travel on the day of the BOS incident, for complaints related to
the TSA employees involved in the BOS incident, and for complaints referencing the BOS
airport agents or police,” id. at 7–8 (McCoy Decl. ¶ 23). Similarly, in response to Sai’s SFO
Request, the McCoy declaration explains that the TSA searched the TCC office “for records
containing Plaintiff’s name, the names and badge numbers of the TSA and CAS employees . . . ,
for complaints using the search terms ‘carry-on liquids’ and ‘San Francisco Airport (SFO).’” Id.
at 21 (McCoy Decl. ¶ 65). As to the McCoy declaration’s description of its search of these
offices, the Court finds that it has provided “necessary details . . . about the scope or methods of
the searches conducted,” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 91–92
(D.D.C. 2009), and meet its burden of showing that the search was adequate.
The TSA has failed, however, adequately to describe the searches it conducted for
records in the following offices: the ORD field office and OLE/FAMS office in response to the
BOS Request; the SFO field office and Disability Branch office in response to the SFO Request;
and the BOS, SFO, TCC, and Disability Branch offices in response to the Re-Requests. For
those offices, the TSA does not identify the search terms it used, instead merely stating that it
searched “for responsive records,” Dkt. 99-3 at 6–7, 20–21, 46–47 (McCoy Decl. ¶¶ 17, 20, 63,
66, 69, 134, 137), or “records related to Plaintiff,” id. at 21 (McCoy Decl. ¶ 69). Without
36
knowing the search terms the TSA used, the Court cannot determine whether its efforts were
“reasonably calculated” to locate responsive records in those offices.
In sum: the Court concludes that the TSA has failed to carry its burden of showing that its
searches for the records Sai requested in his BOS and SFO Requests and Re-Requests covered
the relevant timeframe—from the date of the relevant incident to the date the search commenced.
The Court also concludes that the TSA has failed to carry its burden of showing that it conducted
a search “reasonably calculated” to recover responsive records with respect to the databases
searched in response to the BOS and SFO Re-Requests and with respect to the search terms used
to search the ORD and OLE/FAMS offices in response to the BOS Request; the SFO and
Disability Branch offices in response to the SFO Request; and the BOS, SFO, TCC, and
Disability Branch offices in response to the Re-Requests.
2. Policies Request
The scope of the TSA’s search for records responsive to Sai’s Policies Request raises a
distinct set of issues. The parties agree about two things: First, Sai requested “[a]ll TSA policy
and/or procedures documents” that were “not already” available through the agency’s electronic
reading room, “including both old [and] current versions” of those documents. Dkt. 99-3 at 125
(McCoy Decl. Ex. S); Dkt. 118 at 15. Second, the TSA did not search for—and, thus, did not
release—“all” such records. Dkt. 111-2 at 8; Dkt. 118 at 15. At that point, however, the parties’
agreement ends. Sai, for his part, lists dozens of policies that he contends that the TSA released
in response to third-party FOIA requests, that the TSA identified in other litigation, or that
“confidential source(s)” brought to his attention. Dkt. 111-2 at 8–10, 17; Dkt. 116-1 at 1–3.
Those policies, which the TSA failed to release in response to Sai’s request, run the gamut from
the TSA’s “Checked Baggage,” “Advanced Imaging Technology,” “Colorimetric,” “Expedited
Screening,” “Travel Document Checkpoint,” and “K9” Standard Operating Procedures
37
(“SOPs”), Dkt. 111-2 at 8–10, to various reports relating to the TSA’s “Screening Passengers
Through Observations Techniques” (“SPOT”) program, Dkt. 116 at 1; Dkt. 116-1 at 1–3. The
TSA, for its part, does not engage on whether these records exist, but rather argues that Sai’s
request for “all” TSA policies and procedures—past and present—not already available through
the agency’s electronic reading room was vastly overbroad and that all that the agency could do
was make a reasonable effort to respond to what it perceived to be the core of Sai’s request. Dkt.
118 at 16–17.
The Court agrees with the TSA. An agency is required to respond to a FOIA request only
if the request “reasonably describes” the records sought. 5 U.S.C. § 552(a)(3)(A). More
importantly for present purposes, “[a]n agency need not honor a [FOIA or Privacy Act] request
that requires ‘an unreasonably burdensome search.’” Am. Fed’n of Gov’t Emps., Local 2782 v.
U.S. Dep’t of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland, 607 F.2d at 353).
As a result, “it is the requester’s responsibility to frame [his or her request[] with sufficient
particularity to ensure that searches are not unreasonably burdensome, and to enable the
searching agency to determine precisely what records are being requested.” Assassination
Archives & Research Ctr. Inc. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989); see also Bloeser v.
U.S. Dep’t of Justice, 811 F. Supp. 2d 316, 321 (D.D.C. 2011). A description is sufficient if it
would enable “a professional employee of the agency who [is] familiar with the subject area of
the request to locate the record with a reasonable amount of effort.” Dale v. IRS, 238 F. Supp. 2d
99, 104 (D.D.C. 2002) (quoting Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978)). In
contrast, “[b]road sweeping requests lacking specificity are not sufficient.” Id.; see also Pinson
v. U.S. Dep’t of Justice, 245 F. Supp. 3d 225, 244 (D.D.C. 2017) (same); Tereshchuk v. Bureau
of Prisons, 67 F. Supp. 3d 441, 454 (D.D.C. 2014) (same); Sack v. CIA, 53 F. Supp. 3d 154, 164
38
(D.D.C. 2014) (same); Am. Fed’n of Gov’t Emps. v. Dep’t of Commerce, 632 F. Supp. 1272,
1277–78 (D.D.C. 1986) (same).
Measured against this standard, there is little doubt that Sai’s Policies Request was vastly
overbroad and thus did not demand a response commensurate with the request. Indeed, short of
asking for all agency records, it is difficult to image a request broader in scope and more
burdensome than a request for all “policy and/or procedures documents,” past and present,
including all “Management Directives, Standard Operating Procedures, Operations Directives,
Security Directives, Emergency Amendments, Information Circulars, Memoranda, Handbooks,
Letters, Bulletins, and Guidance.” Dkt. 99-3 at 125 (McCoy Decl. Ex. S). Nor did Sai’s nine
more specific requests, and twenty-seven non-exclusive subparts, add the required specificity.
Those more specific requests were still extraordinarily capacious. They sought all TSO polices,
past and present, dealing with “screening procedures,” “the treatment of passengers with
disabilities,” violations by TSA personnel of policies “in a way that infringes on the rights of
travelers,” “cooperation with local airports and police,” “when checkpoint video may be
released,” the TSA’s “no fly” list and “any similar lists,” “legal justification for” declining to
allow passengers to “revoke consent to administrative search once they have entered a screening
area,” and “Behavior Detection Officer training materials” and “any studies investigating their
efficacy.” Dkt. 99-3 at 125–27 (McCoy Decl. Ex. S).
The TSA, moreover, provided Sai with ample opportunity to refine his request. Shortly
after Sai submitted his request, the TSA wrote to him, explaining: “After careful review of your
FOIA request, we [have] determined that the request is too broad in scope or [does] not
specifically identify the records [that] you are seeking.” Dkt. 99-3 at 132 (McCoy Decl. Ex. T).
The TSA, accordingly, invited Sai to “resubmit [his] request containing a reasonable description
39
of the records [sought]” and cautioning that his “request [would] not be entered into [the
agency’s] processing queue until [it] receive[d] clarification.” Id. (McCoy Decl. Ex. S). Sai did
not respond to this invitation, and the agency therefore “administratively closed” the request on
May 9, 2013. Id. at 30 (McCoy Decl. ¶ 92).
Although the TSA did, in an exercise of “discretion,” subsequently process Sai’s request
“to the extent” it was able “reasonably” to identify responsive records, id. at 31 (McCoy Decl.
¶ 93), it never agreed to search for “[a]ll TSA policy and/or procedures documents,” past and
present, Dkt. 118-1 at 5 (3d Supp. McCoy Decl. ¶ 17); Dkt. 118 at 16–17, nor—for the reasons
explained above—was it required to do so. It is thus both unsurprising and unavailing that Sai
has been able to identify “policy and procedures documents” that he says the TSA failed to
release. The TSA represents that complying in full with Sai’s request “would have created an
extreme burden on and undue hardship for the entire agency and, in particular, the FOIA
Branch.” Id. at 6 (3d Supp. McCoy Decl. ¶ 19). That assertion is entitled to a presumption of
good faith, SafeCard Servs., 926 F.2d at 1200, and it is convincing given the breadth of Sai’s
request.
Even though the TSA was not required to respond to Sai’s unrefined Policies Request, it
nonetheless made a good faith effort to provide him with at least a partial response. The FOIA
Branch tasked—and, on occasion, re-tasked—fifteen offices with searching for the records that
the agency reasonably believed lay at the heart of Sai’s request. Dkt. 99-3 at 31, 31–35 (McCoy
Decl. ¶¶ 94–107). The McCoy declaration provides a detailed account of the efforts of each of
these offices to locate potentially responsive records, while necessarily construing and limiting
Sai’s request to avoid the “unreasonable burden” that a full response would have entailed. Am.
Fed’n of Gov’t Emps., 907 F.2d at 209. All told, the TSA released over 3,000 pages of records
40
responsive to Sai’s Policies Request, and it reviewed approximately 900 additional pages of
records that were withheld for reasons discussed below. Dkt. 99-3 at 35–37 (McCoy Decl.
¶¶ 109–12).
Sai’s opposition ignores the fact that the TSA reasonably, and lawfully, concluded that
his request was overbroad and that the agency would have acted well within its rights had it
simply declined to conduct any search until Sai accepted its invitation to clarify and narrow his
request. See Dkt. 111-2 at 8–19. Apparently, in Sai’s view, having provided some response, the
TSA was obligated to provide a full response. That contention, however, is at odds with FOIA’s
“dominant objective” of disclosure. Rose, 425 U.S. at 361. If that nothing-or-all approach were
to prevail, agencies would have a strong incentive to reject wildly overbroad FOIA requests, like
Sai’s Policies Request, and to refuse to make any effort to provide what they reasonably can.
Nothing in FOIA or the governing law requires that agencies or the courts adopt such a
counterproductive approach. Sai had the opportunity to refine his Policies Request, and he
remains free to submit further requests that “reasonably describe[]” the records sought, 5 U.S.C.
§ 552(a)(3)(A), and that do not require that the agency engage in “an unreasonably burdensome
search,” Am. Fed’n of Gov’t Emps., 907 F.2d at 209 (quoting Goland, 607 F.2d at 353). Having
failed to frame his request with sufficient specificity, he cannot now fault the TSA for
conducting an onerous, but not exhaustive, search based on its best assessment of what records
were most important to Sai.
C. Withholdings
Sai also challenges the TSA’s reliance of FOIA Exemptions 3, 5, 6, and 7(C) to withhold
or to redact certain records. The Court will address each exemption in turn.
41
1. Exemption 3
FOIA Exemption 3 shields from disclosure materials that are “specifically exempted
from disclosure by statute” so long as that statute “establishes particular criteria for withholding
or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A)(ii). 49 U.S.C.
§ 114(r) creates such a specific, statutory exemption to disclosure. It provides, in relevant part,
that notwithstanding FOIA, the TSA “shall prescribe regulations prohibiting the disclosure of
information obtained or developed in carrying out security under authority of the Aviation and
Transportation Security Act, Pub. L. No. 107-71, or under chapter 449 of [title 49 of the U.S.
Code] if the [TSA] decides that disclosing the information would (A) be an unwarranted invasion
of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or
financial information; or (C) be detrimental to the security of transportation.” 5 49 U.S.C.
§ 114(r)(1). The SSI implementing regulations, in turn, specify a number of categories of
information and records constituting SSI, including records relating to “[s]ecurity programs and
contingency plans,” “airport operator” security or security contingency plans, “security incident
response plan[s],” various “[s]ecurity [d]irectives,” notices issued by DHS or the Department of
Transportation “regarding a threat to aviation . . . transportation,” “performance specification[s]
and any description of a test object or test procedure,” “vulnerability assessment[s],” “[d]etails of
any security inspection or investigation of an alleged violation of aviation . . . transportation
security,” threat information, “[s]ecurity measures . . . recommended by the Federal
5
Although the text of 49 U.S.C. § 114(r) refers to the “Under Secretary of Transportation for
Security,” who served as the head of the TSA at the time the agency was created, see Aviation
and Transportation Security Act, Pub. L. No. 107-71, § 101 (2001), Congress transferred the
TSA from the Department of Transportation to the Department of Homeland Security as part of
the Homeland Security Act of 2002, Pub. L. No. 107-296, § 403. “In conjunction with the
transfer of TSA to DHS, the Under Secretary . . . adopted the new title of Administrator.” 69
Fed. Reg. 28,066, 28,068 (May 18, 2004).
42
government,” and “information regarding security screening under aviation . . . transportation
security requirements of Federal law.” 49 C.F.R. § 1520.5. Those permitted access to SSI are
prohibited from disclosing “or otherwise provid[ing] access to[] SSI” to anyone other than
authorized recipients with a “need to know.” 49 C.F.R. § 1520.9(a)(2). Moreover, and of
particular relevance here, the governing regulations specify that, “notwithstanding the Freedom
of Information Act, (5 U.S.C. § 552), the Privacy Act, (5 U.S.C. § 552a), and other laws, records
containing SSI are not available for public inspection or copying, nor does [the] TSA . . . release
such records to persons without a need to know.” 49 C.F.R. § 1520.15(a).
Sai does not dispute that properly designated SSI is exempt from disclosure under both
FOIA and the Privacy Act and, instead, argues that the TSA acted “without authority” in
designating certain records as SSI. Dkt. 111-2 at 25. As Sai correctly observes, 49 U.S.C.
§ 114(r)(4) precludes the TSA from designating information as SSI for certain purposes; in
particular, the TSA lacks authority to designate information as SSI “(A) to conceal a violation of
law, inefficiency, or administrative error; (B) to prevent embarrassment to a person,
organization, or agency; (C) to restrain competition; or (D) to prevent or delay the release of
information that does not require protection in the interest of transportation security, including
basic scientific research information not clearly related to transportation security.” He further
contends that Congress, the DHS Inspector General, and others have criticized the TSA for, at
times, improperly designating such information as SSI, Dkt. 111-2 at 26–28, and that the TSA
has engaged in such improper designation here, id. at 21, 28. Before reaching the merits of that
contention, however, the Court must determine whether it has jurisdiction to do so. It is at this
threshold point that Sai’s challenge founders.
43
This is not the first time that this Court has addressed whether it has jurisdiction to
consider Sai’s contention that the TSA exceeded its authority in designating records that he
sought as SSI. Shortly after Sai filed this action, the TSA moved to strike his complaint to the
extent it sought to challenge the TSA’s designation of information as SSI. Dkt. 51 at 9. Such a
challenge, the TSA argued, must be brought—if at all—in the Court of Appeals. Id. For the
most part, the Court agreed. As the TSA correctly observed, 49 U.S.C. § 46110(a) provides that
“a person disclosing a substantial interest in an order issued . . . in whole or in part under [49
U.S.C. § 114(r)] may apply for review of the order by filing a petition for review in the United
States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the
United States for the circuit in which the person resides or has its principal place of business.” 6
That grant of jurisdiction in the courts of appeals, moreover, is exclusive, leaving the federal
district courts with no authority to review SSI orders issued pursuant to 49 U.S.C. § 114(r). See
Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d 170, 173–77 (D.C. Cir. 2013) (discussing grant
of exclusive jurisdiction to the courts of appeals to review orders issued by the TSA under
§ 114(r)); Nat’l Fed’n of the Blind v. U.S. Dep’t of Transp., 827 F.3d 51, 57 (D.C. Cir. 2016)
(“[S]ection 46110(a)’s direct-review provision removes the Rule from the purview of the district
court and places it within our exclusive jurisdiction.”); Standing Rock Sioux Tribe v. U.S. Army
Corps of Eng’rs, 249 F. Supp. 3d 516, 519 (D.D.C. 2017) (“[F]ederal circuit courts have
exclusive jurisdiction to review TSA’s SSI determinations.”); see also Telecomms. Research &
Action Ctr. v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984) (“[E]ven where Congress has not expressly
stated that statutory jurisdiction is ‘exclusive,’ . . . a statute which vests jurisdiction in a
6
Although the statute refers to § 114(s), that section was redesigated as § 114(r) in 2008. See
Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, § 568(a).
44
particular court cuts off original jurisdiction in other courts in all cases covered by that statute.”).
Although the Court, accordingly, agreed with the TSA that it lacks jurisdiction to review SSI
orders, it concluded that it was “premature to dismiss Plaintiff’s claims that documents were
improperly withheld on this ground” because the TSA had “yet to [produce] a Vaughn index or a
fully developed record with respect to what materials were withheld on what grounds.” Dkt. 74
at 13.
In returning to this issue, Sai now argues that the TSA improperly designated certain
information as SSI in violation of 49 U.S.C. § 114(r)(4) and that “[a]ny designation of SSI in
contradiction to [§]114(r)(4) is ultra vires, and cannot constitute an ‘order’ under 49 U.S.C. [§]
46110(a).” Dkt. 111-2 at 26. In other words, the exclusive jurisdiction of the courts of appeals
to review “orders” issued under 49 U.S.C. § 114(r) does not, in Sai’s view, extend to challenges
to SSI designations premised on the anti-abuse provisions of § 114(r)(4). As Sai candidly
concedes, no court has ever embraced—or even considered—parsing the jurisdictional rule set
forth in § 46110(a) in this manner. Hrg. Tr. Mar. 13, 2018 (Rough at 11:48); Hrg Tr. Apr. 5,
2018 (Rough at 12:00). Nor can the Court perceive any textual or other reason to accept Sai’s
invitation to do so.
To start, the language of § 46110(a) draws no distinction between review of SSI
determinations based on § 114(r)(1)—which defines the circumstances under which an SSI
designation is proper—and those based on § 114(r)(4)—which defines the circumstances under
which such a designation is improper. Compare 49 U.S.C. § 114(r)(1), with 49 U.S.C. §
114(r)(4). To the contrary, the statutory language is categorical: a person seeking to challenge an
SSI order issued by the TSA under “subsection . . . (s) [now, subsection (r)] of section 114” must
file a petition in the appropriate court of appeals. 49 U.S.C. § 46110(a).
45
The statute does not distinguish between the subparagraphs of § 114(r); rather, the courts
of appeals have exclusive jurisdiction over all challenges to orders premised on § 114(r). Sai
argues that the distinction he proposes can be found in Congress’s use of the word “order.” See
Dkt. 111-2 at 26. Although some SSI designations constitute “orders,” those that are ultra vires
are not “orders” and thus not subject to § 46110(a). Id. That contention, however, suffers from
two flaws. First, Sai does not—and cannot—explain why the same logic does not apply to a
challenge premised on § 114(r)(1). An action taken without authority—that is, under
circumstances not covered by the grant of authority in § 114(r)(1)—is every bit as much ultra
vires as an action taken in contravention of a limitation on the agency’s authority—that is, under
circumstances precluded by § 114(r)(4). Second, Sai ignores D.C. Circuit precedent holding that
the term “order” in § 46110(a) “should be read expansively” and includes final agency
determinations of “rights or obligations” or final agency action giving “rise to legal
consequences.” Safe Extensions, Inc. v. FAA, 509 F.3d 593, 598 (D.C. Cir. 2007); see also Nat’l
Fed’n of the Blind, 827 F.3d at 55 (holding the term “order” in § 46110(a) is “not . . . limited by
the APA definition of ‘order’”). As the D.C. Circuit has explained, the “broad[] constru[ction]”
that it has accorded “the word ‘order’ as used in section 46110(a)” is intended to facilitate
“judicial review” of agency action. Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 520 (D.C. Cir.
2011). That purpose, of course, is particularly weighty in cases in which the aggrieved party
contends that the agency’s action was ultra vires.
Finally, Sai suggests that, in responding to a separate FOIA request submitted by the
ACLU, the TSA publicly disclosed portions of the information that it claimed in his case were
exempt from disclosure as SSI. Dkt. 116-1 at 1 (records released to Sai contained “more SSI
redaction[s] than made” to records released to the ACLU). To the extent Sai intends to invoke
46
the “official acknowledgement” doctrine, he must make a three-part showing: “First, the
information [he] requested must be as specific as the information previously released. Second,
the information requested must match the information previously disclosed . . . . Third, . . . the
information requested must already have been made public through an official and documented
disclosure.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990); see also Wolf v. CIA, 473
F.3d 370, 378 (D.C. Cir. 2007); Shapiro, 153 F. Supp. 3d at 285.
The TSA does not dispute that the ACLU may have received information that was
withheld from Sai as SSI, but urges the Court to reject Sai’s “official acknowledgement”
argument for three reasons. First, it argues that because Sai has evidently already obtained the
withheld material from the ACLU website, his claim is now “moot.” Dkt. 118 at 29–30. In
support of this contention the TSA cites to the D.C. Circuit’s decision in Crooker v. U.S. State
Department, 628 F.2d 9 (D.C. Cir. 1980) (per curiam), in which the court held, “[w]here the
records have already been furnished, it is abusive and a dissipation of agency and court resources
to make and process a second claim,” id. at 10. That case differs from the present case, however,
in one critical respect: in Crooker, the plaintiff sought the release of records that he had already
obtained from another agency, id., while in the present case, Sai contends that he did not receive
the relevant material from the government. See Dkt. 116-1 at 1 n.1. The fact that the
government has released records to a third party, which has then made those records public, does
not obviate the government’s obligation to respond fully to an otherwise proper FOIA request.
See Tax Analysts, 492 U.S. at 152 (“It is one thing to say that an agency need not disclose
materials that it has previously released; it is quite another to say that an agency need not
disclose materials that some other person or group may have previously released.”).
47
The TSA also returns to the theme that Sai’s Policies Request was vastly overbroad and
that, as a result, it cannot be faulted for failing to find and release every responsive record. The
ACLU’s request, the TSA contends, was “comparatively tailored” in seeking records relating to
the “TSA’s behavior detection programs” and thus, unsurprisingly, resulted in a more complete
production of those records. Dkt. 118 at 31. That argument is, as noted above, persuasive as far
as it goes. It fails to explain, however, why the TSA redacted SSI from records released to Sai,
but, according to Sai, did not in every instance redact the same purported SSI from the records
released to the ACLU. Dkt. 116-1 at 1–2. The TSA’s excessive burden argument has no
application in this context.
This, then, leaves the TSA’s final argument, which is more promising but remains
incomplete. As the TSA explains, after it released records to Sai in response to his Policies
Request in 2015, see Dkt. 99-3 at 35–37 (McCoy Decl. ¶¶ 109–11), the ACLU—in pressing its
own FOIA request—convinced the TSA to “withdr[a]w some of the identified redactions” the
agency had previously made, and the TSA “re-released” the relevant records. Dkt. 118-1 at 6–7
(3d Supp. McCoy Decl. ¶ 23). To the extent the TSA revisited its SSI determinations after it
released the responsive records to Sai, the TSA is correct that it did not have an obligation to
“update or supplement [its] prior response.” See James v. U.S. Secret Serv., 811 F. Supp. 2d 351,
358 (D.D.C. 2011) (“The FOIA does not require an agency to update or supplement a prior
response to a request for records.”), aff’d, No. 11-5299, 2012 WL 1935828 (D.C. Cir. May 11,
2012). The “official disclosure” doctrine applies to information that was, at the relevant time,
“already” public. Fitzgibbon, 911 F.2d at 765. It does not—and could not reasonably—apply to
information that was confidential at the time the agency responded to the plaintiff’s FOIA
request and was only subsequently officially released; applying the doctrine retroactively would
48
be administratively unmanageable and would violate the cardinal rule of administrative law that
courts evaluate agency action based on the record as it existed at the time the agency acted. See
Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (“To require an agency to
adjust or modify its FOIA responses based on post-response occurrences could create an endless
cycle of judicially mandated reprocessing.”); Nat’l Sec. Counselors v. CIA, 206 F. Supp. 3d 241,
256 (D.D.C. 2016) (“[J]udicial review of agency responses to FOIA requests ‘properly focuses
on the time the determination to withhold [was] made.’” (quoting Bonner, 928 F.2d at 1152)).
On the present record, however, the Court cannot determine with any certainty whether
the TSA released information to the ACLU prior to responding to Sai’s FOIA request, while
withholding that same information from Sai. For present purposes, the TSA merely asserts that
it “made a diligent, good-faith effort to ensure consistency with respect to the information
withheld.” Dkt. 118-1 at 6 (3d Supp. McCoy Decl. ¶ 22). Ultimately, Sai will bear the burden of
demonstrating that the TSA officially released information to the ACLU and, then, later
withheld that same information from Sai based on Exemption 3. See Cottone v. Reno, 193 F.3d
550, 554 (D.C. Cir. 1999) (explaining that “the party advocating disclosure bears the initial
burden of production” when invoking the official acknowledgement doctrine). To prevail on
summary judgment, however, the TSA must demonstrate that it is entitled to prevail as a matter
of law. Celotex Corp., 477 U.S. at 322–23. Because the current record is incomplete on this
issue, the Court must defer resolving it.
2. Exemption 5
Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). This exemption shields “those documents . . . normally privileged in the civil
discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Courts have,
49
accordingly, incorporated the three traditional civil discovery privileges under Exemption 5: “(1)
the attorney work-product privilege; (2) the deliberative process privilege; and (3) the attorney-
client privilege.” Wright, 121 F. Supp. 3d at 184. Sai’s opposition appears to challenge only the
TSA’s invocation of the deliberative process privilege. See Dkt. 111-2 at 24–25.
The deliberative process privilege protects “documents ‘reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.’” Sears, Roebuck & Co., 421 U.S. at 150 (quoting Carl
Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)). The “privilege
rests on the obvious realization that officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page news, and its object is to enhance ‘the
quality of agency decisions,’ . . . by protecting open and frank discussion among those who make
them within the Government.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8–9 (2001) (citations omitted). “Manifestly, the ultimate purpose of this long-recognized
privilege is to prevent injury to the quality of agency decisions.” Sears, Roebuck & Co., 421
U.S. at 151.
“To qualify for withholding under Exemption 5’s executive privilege, information must
be both ‘predecisional’ and ‘deliberative.’” Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976
F.2d 1429, 1434 (D.C. Cir. 1992); see also Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C.
Cir. 2014); Pub. Citizen, Inc. v. OMB, 598 F.3d 865, 874 (D.C. Cir. 2010); Judicial Watch, Inc.
v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006). A record “is predecisional if it was ‘prepared in
order to assist an agency decisionmaker in arriving at his decision, rather than to support a
decision already made,” and it is “deliberative if it ‘reflects the give-and-take of the consultative
process.’” Petroleum Info. Corp., 976 F.2d at 1434 (citations omitted). The agency asserting the
50
privilege bears the burden of establishing that the information is exempt. Fed. Open Mkt. Comm.
of the Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979); EPA v. Mink, 410 U.S. 73, 93
(1973); Public Citizen, Inc., 598 F.3d at 360; Elec. Frontier Found. v. U.S. Dep’t of Justice, 739
F.3d 1, 7 (D.C. Cir. 2014). “Summary judgment is warranted when the agency’s affidavits
‘describe 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.’” Elec. Frontier
Found., 739 F.3d at 7 (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)); see also
Senate of the Commonwealth of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir.
1987). To meet this burden, an “agency must establish ‘what deliberative process is involved,
and the role played by the documents in issue in the course of that process.’” Senate of the
Commonwealth of P.R., 823 F.2d at 585–86 (citation omitted).
The McCoy declaration offers explanations for each of the TSA’s invocations of the
deliberative process privilege. She attests that, in responding to Sai’s BOS Request, the agency
withheld information on two pages that was both predecisional—the records “were generated
before the agency had reached a decision regarding” how to respond to “complaints alleging a
disability-related civil rights violation”—and deliberative—the records “reflect the open
consultative process between program offices” considering “how to respond” to the complaints.
Dkt. 99-3 at 13 (McCoy Decl. ¶ 39). Similarly, in responding to Sai’s SFO Request, the TSA
once again invoked Exemption 5 to withhold information that was both predecisional—the
information pertained to “prospective agency action”—and deliberative—it reflected
deliberations involving agency counsel regarding how the agency should respond to
“administrative complaints against [the] TSA.” Id. at 26 (McCoy Decl. ¶ 83(c)). It reached the
51
same conclusion with respect to other predecisional deliberations regarding (1) the Disability
Branch’s assessment of how to handle Sai’s “administrative complaint[s],” (2) the investigation,
collection, and analysis of information relating to Sai’s “administrative complaints,” (3)
“hypothetical checkpoint screening scenarios involving medically exempt liquids,” and (4) “a
draft . . . letter . . . to Congresswoman Nancy Pelosi’s office regarding [Sai’s] administrative
complaint.” Id. at 26–28 (McCoy Decl. ¶¶ 84–85). Finally, in responding to Sai’s Policies
Request, the TSA withheld “a memorandum and a PowerPoint presentation . . . prepared in
anticipation of a briefing to the Secretary of DHS regarding airport security measures,” which
“reflect proposals and recommendations regarding agency action.” Id. at 40 (McCoy Decl.
¶ 118(b)).
Sai challenges the TSA’s reliance on the deliberative process privilege on five grounds:
First, he contends that information that the TSA shared with Corbin Stewart in an email falls
beyond the privilege because “a simple Google search” and the email format (i.e. the
capitalization of Stewart’s name) demonstrate that Stewart was not a TSA or DHS employee. 7
Dkt. 111-2 at 24. Even if Stewart was not a TSA or DHS employee, the deliberative process
privilege might still apply. See, e.g., Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 184–
85 (D.D.C. 2017) (describing “consultant exemption”). The Court need not determine whether
Stewart’s employment status matters here, however, because McCoy has attested under the
penalty of perjury that Stewart “is—and was at the time of the [relevant] email record”—“a TSA
employee within the Civil Rights and Liberties-Office of Traveler Engagement.” Dkt. 118-1 at 6
(3d Supp. McCoy Decl. ¶ 20). That declaration is entitled to a presumption of good faith,
7
Sai spells the name “Stewart,” Dkt. 111-2 at 24, while the TSA spells it “Stuart,” Dkt. 118 at
21. Nothing, of course, turns on this.
52
SafeCard Servs., 926 F.2d at 1200, and Sai has failed to offer any evidence that would permit a
reasonable factfinder to question its veracity, Dkt. 111-2 at 24. See Bloeser, 811 F. Supp. 2d at
322 (“[S]peculative and conclusory assertions do not amount to ‘contradictory evidence in the
record . . . of agency bad faith.’” (quoting Judicial Watch, Inc. v. Bd. of Governors of Fed.
Reserve Sys., 773 F. Supp. 2d 57, 60 (D.D.C. 2011))). Nor is the Court convinced that Sai is
entitled to take discovery on whether Stewart was a TSA employee. Even if some discovery
were permitted, Sai could not reasonably expect more than the testimony of a TSA official under
the penalty of perjury. He has that, and far more than Sai has offered would be necessary to cast
aside the presumption of good faith and to open the door to more extensive discovery. See
Justice v. I.R.S., 798 F. Supp. 2d 43, 47 (D.D.C. 2011) (“Courts permit discovery in FOIA cases
where a ‘plaintiff has made a sufficient showing that the agency acted in bad faith.’” (quoting
Voinche v. FBI, 412 F. Supp. 2d 60, 72 (D.D.C. 2006))); Schrecker v. U.S. Dep’t of Justice, 217
F. Supp. 2d 29, 35 (D.D.C. 2002) (“Discovery in FOIA is rare and should be denied where an
agency’s declarations are reasonably detailed [and] submitted in good faith and [where] the court
is satisfied that no factual dispute remains.”).
Second, Sai argues that portions of the withheld information responsive to his SFO
Request reflect facts, not deliberations. Dkt. 111-2 at 24−25. The TSA counters that this
contention is “without any substantive or logical support.” Dkt. 118 at 22. It is the TSA,
however, that bears the burden of establishing that the deliberative privilege was properly
invoked, Senate of the Commonwealth of P.R., 823 F.2d at 585, and its explanation of the bases
for withholding certain information in response to Sai’s SFO Request admits of some ambiguity,
see Dkt. 99-3 at 26−27 (McCoy Decl. ¶ 84). McCoy attests, for example, that the TSA withheld
emails “discussing the . . . collection . . . of information related to administrative complaints.”
53
Id. at 27 (McCoy Decl. ¶ 84). Sai, to be sure, overstates the law when he categorically asserts
that “[f]acts are not exempt under” Exemption 5. Dkt. 111-2 at 25. But, by the same token, he is
correct that facts “generally must be disclosed.” Nat’l Ass’n of Home Builders v. Norton, 309
F.3d 26, 39 (D.C. Cir. 2002) (citation omitted). The relevant question is whether “‘the disclosure
of even purely factual material may so expose the deliberative process within an agency’ that the
material is appropriately held privileged.” Petroleum Info. Corp., 976 F.2d at 1434; see also
Quarles v. Dep’t of Navy, 893 F.2d 390, 392 (D.C. Cir. 1990) (even when requested material is
factual, it is still exempt when disclosure “would expose an agency’s decisionmaking process in
such a way as to discourage candid discussion within the agency and thereby undermine the
agency’s ability to perform its functions” (quoting Dudman Commc’ns Corp. v. Dep’t of the Air
Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987))). The Court must, accordingly, ask whether
disclosure of the withheld information would “reveal an agency’s or official’s mode of
formulating or exercising policy-implicating judgment.” Nat’l Ass’n of Home Builders, 309 F.3d
at 39 (citation omitted); see also In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (asking
whether the factual information is “inextricably intertwined with the deliberative” information);
Playboy Enters., Inc. v. U.S. Dep’t of Justice, 677 F.2d 931, 936 (D.C. Cir. 1982) (asking
whether the factual information was prepared to “assist[] the [agency official] [in] mak[ing] a
complex decision,” or whether the information “was prepared only to inform the [agency
official] of facts which he in turn would make available”). On the present record, the Court
cannot determine whether or how the TSA applied this test to the information that it gathered in
responding to Sai’s SFO Request. As a result, the TSA has yet to carry its burden with respect to
the assertion of the deliberative privilege regarding this limited set of records.
54
Third, Sai maintains that one document uses the phrase “we decided,” demonstrating in
his view that the document is post-decisional; that a second document contains a “post-decisional
response and re-training;” and, more generally, that “policies, memoranda of law, and similar
documents” are “post-decisional” and thus not protected by the privilege. Dkt. 111-2 at 25.
Sai’s first contention—that the use of past-tense “we decided” indicates that the document is
post-decisional—has little force. The mere fact that a document uses the past tense does not
resolve whether it falls within Exemption 5. The unredacted portions of the document do not
indicate that the redacted portions are anything other than what TSA says: “internal predecisional
discussions regarding prospective agency action.” Dkt. 99-3 at 116 (McCoy Decl. Ex. Q). The
document in question reads: “We decided to hold-off on sending Sai and [redacted, citing
Exemption 6] to DHS. With Sai, we are [redacted, citing Exemption 5].” See Dkt. 145-2 at 77.
Significantly, the TSA disclosed what had been decided—not to “send[] Sai”—and only redacted
other information that the TSA attests was predecisional. The same is true with respect to the
document Sai characterizes as containing “post-decisional response and re-training.” Dkt. 111-2
at 25. Although the redacted record is part of an email chain that discusses training on how to
screen medical liquids, Dkt. 144-3 at 197, it is not evident that the redacted information relates to
the Disability Branch’s review of Sai’s Rehabilitation Act complaints, id. at 197, and there is no
reason to question the TSA’s representation that its review was ongoing, Dkt. 99-3 at 111
(McCoy Decl. Ex. Q). Finally, with respect to Sai’s contention that “policies, memoranda of
law, and similar documents” are “post-decisional” and thus not protected by the deliberative
process privilege, his attack is far too amorphous to defeat TSA’s motion for summary judgment.
He does not identify what documents he submits were improperly redacted or withheld, and he
55
fails to develop his contention with sufficient detail (or, indeed, any detail) to permit the Court to
consider it on the merits.
Fourth, Sai contends that the “TSA made inconsistent redactions of identical information,
demonstrating the arbitrary and capricious nature of its” invocation of Exemption 5. Dkt. 111-2
at 22 (citing “2013-TSPA-00339 Bates 266 (unredacted) vs[.] 428, 431 (redacted); 106
(unredacted) vs[.] 294, 295, 300 (redacted); 214 (unredacted) vs[.] 287 (redacted)”). Sai is
correct that the TSA redacted slightly more information on three pages of materials than it did on
duplicate copies of those same materials. The Court has reviewed those minor inconsistencies
and concludes that they do not demonstrate a lack of good faith or a failure of the TSA to release
reasonably segregable materials; rather, they reflect nothing more than modest differences
regarding the precise line between deliberative and background material. Sai has already
received the less-substantially redacted versions, moreover, and thus has no basis to complain
about the more substantial redactions made to duplicate copies. See Crooker, 628 F.2d at 10
(“Once the records are produced the substance of the controversy disappears and becomes moot
since the disclosure which the suit seeks has already been made.”); see also Williams & Connolly
v. SEC, 662 F.3d 1240, 1243–44 (D.C. Cir. 2011) (“Once the documents are released to the
requesting party, there no longer is any case or controversy.”).
Finally, Sai argues that “all of TSA’s privilege claims”—including the deliberative, work
product, and attorney-client privilege—“are void” because the “TSA deliberately obstructed the
processing of” his FOIA request and administrative complaints. Dkt. 111-2 at 37, 39–40. For
support, Sai cites to email correspondence suggesting that TSA officials decided to “hold-off” on
processing Sai’s Rehabilitation Act complaints. Id. at 37–41. “Taken together,” Sai argues, the
email correspondence demonstrates that the TSA was engaged in a “deliberate cover-up[]” of
56
“felony obstruction of justice in refusing to process, delaying the processing, and refusing to
release the results of two former federal civil rights investigations.” Id. at 39. From this, he then
posits that the crime-fraud exception—or some similar doctrine—precludes the TSA from
relying on any common-law privilege. Id.
This imaginative contention merits only cursory discussion. As the D.C. Circuit has
explained:
To establish the [crime-fraud] exception to the attorney-client privilege, the court
must consider whether the client “made or received the otherwise privileged
communication with the intent to further an unlawful or fraudulent act,” and
establish that the client actually “carried out the crime or fraud.” In re Sealed Case,
107 F.3d 46, 49 (D.C. Cir. 1997). To establish the exception to the work-product
privilege, courts ask a slightly different question, focusing on the client’s general
purpose in consulting the lawyer rather than on his intent regarding the particular
communication: “Did the client consult the lawyer or use the material for the
purpose of committing a crime or fraud?” Id. at 51.
In re Sealed Case, 223 F.3d 775, 778 (D.C. Cir. 2000). The D.C. Circuit has, likewise, observed
that the deliberative process privilege is a qualified privilege, which “disappears altogether when
there is any reason to believe government misconduct occurred.” In re Sealed Case, 121 F.3d at
746. The problem with Sai’s argument is that he has not come close to carrying his burden of
“mak[ing] a prima facie showing of a violation sufficiently serious to defeat” any of these
privileges. In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985). He merely argues that the
TSA delayed processing his administrative complaints under the Rehabilitation Act, Dkt. 111-2
at 37−38. That conclusion is a far cry from “felony obstruction of justice,” id. at 39, and it is a
far cry from the type of serious misconduct necessary to abrogate any of the privileges at issue.
3. Exemptions 6 & 7(C)
FOIA Exemptions 6 and 7(C) protect personal privacy. The two exemptions protect
similar interests, but they differ in scope. Exemption 6 shields “personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of personal
57
privacy.” 5 U.S.C. § 552(b)(6). “[T]he mere fact that an agency file or record contains personal,
identifying information,” however, “is not enough to invoke Exemption 6;” in addition, the
information must be “of such a nature that its disclosure would constitute a clearly unwarranted
privacy invasion.” Judicial Watch, Inc. v. U.S. Dep’t of State, 282 F. Supp. 3d 36, 49–50
(D.D.C. 2017) (quoting Nat’l Ass’n of Home Builders, 309 F.3d at 32). This, in turn, requires a
two-part analysis. See Edelman v. SEC, --- F. Supp. 3d ---, No. 14-1140, 2018 WL 1461897
(D.D.C. Mar. 23, 2018). The Court must first determine whether “disclosure would compromise
a substantial, as opposed to a de minimis, privacy interest.” Nat’l Ass’n of Retired Fed. Emps. v.
Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). If the agency clears that first hurdle, the Court must
then “balance the privacy interest in non-disclosure against the public interest” in disclosure.
Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 554
F.3d 1046, 1050 (D.C. Cir. 2009); see also Judicial Watch, Inc., 282 F. Supp. 3d at 49−50.
Exemption 7(C) applies to a narrower category of records than Exemption 6, but it offers
more robust protection of those records. See Tracy v. U.S. Dep’t of Justice, 191 F. Supp. 3d 83,
95 (D.D.C. 2016). Thus, while Exemption 6 applies broadly to all “‘[g]overnment records on an
individual which can be identified as applying to that individual,’” U.S. Dep’t of State v. Wash.
Post Co., 456 U.S. 595, 601–02 (1982) (quoting H.R. Rep. No. 1497, 89th Cong., 2d Sess. at 11,
reprinted in 1966 U.S.C.C.A.N. 2428), Exemption 7 applies only to “records . . . compiled for
law enforcement purposes,” 5 U.S.C. § 552(b)(7)(C). But, with respect to that narrower category
of records, “‘Exemption 7(C) is more protective of privacy than Exemption 6’ and thus
establishes a lower bar for withholding material.” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6
(D.C. Cir. 2011) (quoting U.S. Dep’t of Defense v. FLRA, 510 U.S. 487, 496 n.6 (1994)). Like
Exemption 6, Exemption 7(C) requires courts to balance the asserted privacy interest against the
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public interest in releasing the record. For two reasons, however, it is easier for an agency to tip
the scale in its favor under Exemption 7. First, while Exemption 6 requires the agency to
demonstrate that disclosure would constitute a “clearly unwarranted invasion of personal
privacy,” 5 U.S.C. § 552(b)(6), Exemption 7(C) “omits the adverb ‘clearly,’” 100Reporters LLC
v. U.S. Dep’t of Justice, 248 F. Supp. 3d 115, 159 (D.D.C. 2017). Second, while Exemption 6
asks whether the disclosure “would” constitute such an invasion of privacy, 5 U.S.C. §
552(b)(6), Exemption 7(C) merely asks whether the disclosure “could reasonably be expected”
to do so, 5 U.S.C. § 552(b)(7)(C).
Here, the TSA invoked Exemption 6 in support of each of the redactions that it made on
privacy grounds. It also relied on Exemption 7(C) with respect to one narrow subset of
redactions—those designed to protect the identities of local law enforcement officers. Because
Exemption 7(C) is more protective than Exemption 6, the Court will apply the Exemption 7(C)
standard to this one subset of redactions, but will otherwise apply the Exemption 6 standard.
Before applying these standards, however, the Court first addresses Sai’s threshold contentions
that the TSA’s privacy redactions were improper because (1) disclosure was required under 5
C.F.R. § 293.311; (2) the redacted names and contact information were already known to him;
and (3) “[i]n other cases,” similar information was not redacted. Dkt. 111-2 at 22–23.
Sai’s first argument is a nonstarter. Sai is correct that 5 C.F.R. § 293.311(a) provides that
information disclosing a federal employee’s name and present and past positions is generally
“available to the public.” That provision, however, applies only to information contained in
“official personnel folder[s],” “performance file system folders,” “their automated equivalent
records,” and other “personnel record files . . . which are under the control of the Office” of
Personnel Management (“OPM”). Id. Here, however, by Sai’s own account, “[t]he files . . .
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from which these names have been redacted are not ‘personnel’” or “similar files.” Dkt. 111-2 at
23. Nor are any of the files “under the control of” OPM. See 5 C.F.R. § 293.311(a). But, even
putting those difficulties aside, Sai disregards the very next subsection of the regulation. That
subsection provides that “an agency will generally not disclose” employee information that
“[w]ould otherwise be protected from mandatory disclosure under an exemption of the FOIA.” 5
C.F.R. § 293.311(b)(2). The relevant regulation accordingly, by its own terms, does not disarm
an otherwise available FOIA exemption.
Sai’s second contention—that he already knows the redacted private information—is
equally unavailing. Agencies releasing records pursuant to FOIA requests must be mindful that
“[d]ocuments released in a FOIA action must be made available to the public as a whole.”
Stonehill v. IRS, 558 F.3d 534, 539 (D.C. Cir. 2009); see also Clay v. U.S. Dep’t Justice, 680 F.
Supp. 2d 239, 248 (D.D.C. 2010) (“The FOIA’s . . . exemptions are designed to protect those
‘legitimate governmental and private interests’ that might be ‘harmed by release of certain types
of information’ to the public at large.” (quoting August v. FBI, 328 F.3d 697, 699 (D.C. Cir.
2003))). In releasing private information, an agency must operate on the assumption—confirmed
in this case, see Dkt. 99-3 at 14, 28, 41 (McCoy Decl. ¶¶ 42, 86, 119)—that the recipient will
further distribute the information, or that others will seek the same information and reasonably
expect similar treatment by the FOIA office. Accordingly, Sai’s purported knowledge of the
redacted information does not call into question the TSA’s withholding of the information
pursuant to Exemption 6.
Third, Sai’s contention that similar information was not redacted “in other cases” is also
unpersuasive. It is unclear what Sai means by this. To the extent he means that the TSA
disclosed the names or contact information of agency employees to other FOIA requesters
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involved in other litigation, that contention does not undercut the TSA’s reliance on Exemptions
6 and 7(C) here. The “standards for invoking the [official-acknowledgement] doctrine are high.”
Shapiro, 153 F. Supp. 3d at 285. “Prior disclosure of similar information does not suffice;
instead, the specific information sought by the plaintiff must already be in the public domain by
official disclosure.” Wolf, 473 F.3d at 378. Nor does a prior disclosure of “similar” information
suffice to show that the asserted privacy interest is not real. As the D.C. Circuit has recognized,
the appropriate balance between “the privacy interest in non-disclosure [and] the public interest
in the release of the records” necessarily varies from case to case. See Lepelletier v. FDIC, 164
F.3d 37, 47 (D.C. Cir. 1999) (internal quotation marks omitted). And, to the extent Sai contends
that the TSA released precisely the same record to him with fewer redactions in response to one
of his FOIA requests, he has already received the less-substantially redacted record and thus his
challenge is moot. See Crooker, 628 F.2d at 10.
Finally, Sai contends that “[t]he official contact information of federal officials has no
relation to their ‘personal privacy’” and that “[t]he disclosure of the identities of officials
involved in [his] Rehabilitation Act complaints is not ‘clearly unwarranted.’” Dkt. 111-2 at 23
(emphasis removed). As the TSA’s Vaughn index and the redacted documents show, the TSA
redacted the following information, which Sai now seeks: (1) the names and contact information
for non-TSA employees, including local law enforcement officers, see Dkt. 99-3 at 74–75
(McCoy Decl. Ex. H); Dkt. 143-2 at 1–2, Dkt. 146-2 at 4–7, 10, 13–14, 16; contract employees,
see Dkt. 99-3 at 103 (McCoy Decl. Ex. Q); Dkt. 144-3 at 41, 139, 182; Dkt. 145-1 at 7, 12; and a
congressional staffer, see Dkt. 99-3 at 117 (McCoy Decl. Ex. Q); Dkt. 145-2 at 84; (2) TSA
employees’ non-work-related personal information, compare Dkt. 99-3 at 105, 108 (McCoy
Decl. Ex. Q), with Dkt. 144-3 at 63, 142; (3) email addresses and telephone numbers for a DHS
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employee working in the Office of Chief Counsel and a TSA employee working in the agency’s
Disability Branch, Dkt. 144-3 at 109, Dkt. 145-2 at 84; and (4) names and contact information
for TSA employees found in policy documents prepared for internal use, see Dkt. 99-3 at 170–
71, 174 (McCoy Decl. Ex. Y); Dkt. 133-2 at 29–30, 33, 35, 93; Dkt. 134-1 at 6, 43.
The TSA explains that release of the “personal identifying information” in the redacted
records “could expose [the government officers] to unnecessary unofficial questioning,
harassment, and stigmatization.” Dkt. 99-3 at 14 (McCoy Decl. ¶ 42). This concern is a
reasonable one, TSA asserts, because “the personal identifying information in these records
would necessarily identify the individual” as “having played a particular role in an incident, or
complaining about a particular incident” and would reveal the locations where the individuals
work and how to contact them. Id. (McCoy Decl. ¶ 42). In addition, the TSA explains, this risk
of harassment is “real and substantial” in this case because Sai “has publicized responses to his
FOIA requests on his website.” Id. (McCoy Decl. ¶ 42).
Starting with the privacy interest of the local law enforcement officers in preventing
disclosure of their identity, the Court has no basis to question the TSA’s good-faith
representation that these records were compiled for law enforcement purposes, nor does Sai
argue to the contrary. The Court must, accordingly, apply the Exemption 7(C) standard to assess
whether the TSA has met its burden of showing that the redactions were proper. The D.C.
Circuit has “adopted a categorical rule permitting an agency to withhold information identifying
private citizens mentioned in law enforcement records, unless disclosure is ‘necessary in order to
confirm or refute compelling evidence that the agency is engaged in illegal activity.’” Schrecker
v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (citation omitted). To be sure, “[i]n
their capacity as public officials,” law enforcement officers “may not have as great a claim to
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privacy as that afforded to ordinary private citizens.” Lesar v. U.S. Dep’t of Justice, 636 F.2d
472, 487 (D.C. Cir. 1980). But, several courts have nonetheless recognized that law enforcement
officers “have a legitimate interest in preserving the secrecy of matters that conceivably could
subject them to annoyance or harassment in either their official or private lives.” Id. Here, the
Court cannot discern any significant public interest would be advanced by exposing local law
enforcement officers to that potential for “annoyance or harassment.” See id. The Court,
accordingly, concludes that the TSA properly redacted the identifying information for the local
law enforcement officials.
Although assessed under the Exemption 6 standard, the Court reaches a similar
conclusion with respect to the “personal information” regarding two TSA employees that the
agency redacted from the responsive records. In both cases, moreover, there is no discernible
public interest in the redacted information. All that the public would learn in one case is who
Zachary Bromer, a TSA employee, hoped “enjoyed herself today,” Dkt. 144-3 at 63 (“I hope
[redacted] enjoyed herself today”), and why, in another case, another TSA employee was
unavailable “to provide a statement,” id. at 142. Such information “reveals little or nothing
about an agency’s own conduct” and therefore “does not further the statutory purpose” and “the
public has no cognizable interest in [its] release.” Beck v. U.S. Dep’t of Justice, 997 F.2d 1498,
1493 (D.C. Cir. 1993) (quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 773 (1989)); see also Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec.,
384 F. Supp. 2d 100, 117 (D.D.C. 2005) (“[T]he public interest in learning the names of these
lower-echelon employees is small.”). Because on balance “something . . . outweighs nothing
every time,” Horner, 879 F.2d at 879, the TSA properly withheld the personal information of its
employees, see Dkt. 144-3 at 63, 142.
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The TSA has not, however, met its burden of showing a “substantial privacy interest”
with respect to other identifying and contact information withheld pursuant to Exemption 6. The
disclosure of names and contact information “is not inherently and always a significant threat to .
. . privacy,” Horner, 879 F.2d at 877, yet the TSA has offered little more than conclusory
assertions applicable to each redaction, without regard to the position held by the relevant
employee, the role played by that employee, the substance of the underlying agency action, or
the nature of the agency record at issue. The TSA has failed to explain, for example, how the
release of contact information for the TSA and contract employees that handled Sai’s complaint
would constitute a “clearly unwarranted” invasion of their privacy. It has not explained—nor is
it obvious from the face of the documents—that TSA contract employees, the DHS Office of
Chief Counsel employee, or the TSA Disability Branch employee played “a particular role in an
incident” or “complain[ed] about a particular incident” such that the release of their information
would subject them to a real risk of annoyance or harassment. See Dkt. 99-3 at 14 (McCoy Decl.
¶ 42). And, it has not explained why TSA employee names and professional contact information
contained in the policy documents implicate a substantial privacy interest. A substantial privacy
interest may well be at stake but, on the current record, the TSA has not met its burden with
respect to the following redactions: Dkt. 133-2 at 29–30, 33, 35, 93 (2015-TSLI-00004 Bates
2267–68, 2271, 2273, 2331); Dkt. 134-1 at 6, 43 (2015-TSLI-00004 Bates 2355, 2392); Dkt.
144-3 at 109 (2013-TSPA-00339 Bates 181); Dkt. 144-3 at 41, 139, 182 (2013-TSPA-00339
Bates 113, 211, 254); Dkt. 145-1 at 7, 12 (2013-TSPA-00339 Bates 279, 284); and Dkt. 145-2 at
84 (2013-TSPA-00339 Bates 481).
D. Segregability
Sai also challenges TSA’s assertion that it released all reasonably segregable records in
response to his Policies Request. See Dkt. 111-2 at 20. FOIA requires that “[a]ny reasonably
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segregable portion of a record shall be provided to any person requesting such record after
deletion of the portions [that] are exempt.” 5 U.S.C. § 552(b). “While the segregability
requirement applies to all documents and all exemptions in the FOIA,” the courts have
recognized that “segregation is not required where the ‘exempt and nonexempt information are
inextricably intertwined, such that the excision of exempt information would impose significant
costs on the agency and produce an edited document with little informational value.’” Covington
v. McLeod, 646 F. Supp. 2d 66, 72 (D.D.C. 2009) (quoting Mays v. Drug Enf’t Admin., 234 F.3d
1324, 1327 (D.C. Cir. 2000)) (first citation omitted). The government bears “the burden of
justifying nondisclosure,” Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242,
260 (D.C. Cir. 1977), and must “show with reasonable specificity why the documents cannot be
further segregated,” Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C. Cir.
1996) (internal quotation marks omitted). To carry this burden, the government must provide a
“‘detailed justification’ for [withheld records’] non-segregability.” Johnson v. Exec. Office for
U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting Mead, 566 F.2d at 261).
Sai presses two arguments related to segregability, both of which turn on arguments
considered, and rejected, above. He first argues that the TSA improperly failed to release
various Standard Operating Procedures (“SOPs”)—or alternative versions of SOPs—that he
sought in his Policies Request. But, as discussed above, the request was defectively overbroad,
and the fact that the TSA made an effort to answer the request in part did not obligate the agency
to release every policy or procedure document that it had ever created, and was not already
available in the TSA’s electronic reading room. See supra Part III.B.2. Sai’s assertions he
learned from “confidential source(s),” mistakenly released records, and documents posted by
third parties that purport to represent “authentic” copies of TSA documents, Dkt. 111-2 at 19–21,
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does not change that conclusion. Second, Sai contends that inconsistencies in the TSA’s
redactions under the deliberative process privilege show that the agency has not released certain
segregable material. Id. at 22. But, as also discussed above, those minor inconsistencies do not
establish a lack of good faith, and, in any event, Sai has already received copies of the less
thoroughly redacted records. See supra Part III.C.2.
More generally, Sai fails to identify any evidence that the TSA withheld records in whole
based on a valid FOIA exemption, where a portion of those records were reasonably segregable
and could have been released without disclosing the exempt information. The Court, moreover,
has reviewed the various Vaughn indices that the TSA has submitted in support of its motion, see
Dkt. 99-3 at 73–76 (McCoy Decl. Ex. H); id. at 102–20 (McCoy Decl. Ex. Q); id. at 160–74
(McCoy Decl. Ex. Y), and those indicies demonstrate that the agency redacted the exempt
portions of otherwise responsive records where possible. The Court, accordingly, concludes that
with respect to records that the TSA released, it has met its obligation to release reasonably
segregable portions.
E. Allegations of Bad Faith and Misconduct
The remainder of Sai’s opposition contains a variety of other accusations that the TSA
has engaged in misconduct. Construed liberally, these allegations may present an argument—
albeit a flawed one—that the TSA acted in bad faith in responding to his request and that, in light
of this bad faith, Sai should be allowed to conduct discovery regarding the TSA’s actions.
Among these claims, Sai argues that TSA despoiled CCTV video of the Logan Airport incident.
Dkt. 111-2 at 34–36. In support of this contention, Sai posits that (1) TSA policy requires 15
“[c]amera views” of each passenger during screening and requires that the surveillance video be
maintained for 30 days; (2) he submitted a FOIA request seeking the Logan Airport surveillance
video within that 30-day window; (3) the TSA released only one video showing his screening at
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Logan Airport and informed him that no other video exists; and (4) “the only possible conclusion
is that TSA and BOS committed spoliation.” Id. at 35–36.
That theory, however, cannot be squared with McCoy’s declaration, submitted under the
penalty of perjury, which recounts that “BOS searched for responsive records including closed
circuit television (CCTV)” and located “one CCTV video of the incident.” Dkt. 99-3 at 6
(McCoy Decl. ¶ 15). As this Court has explained, agency declarations, like McCoy’s, “are
accorded a presumption of good faith,” and that presumption “cannot be rebutted by ‘purely
speculative claims about the existence and discoverability of other documents.’” SafeCard
Servs., 926 F.2d at 1200. To be sure, TSA policy may have required additional “views,” and it
may have required that video records be maintained for thirty days. Dkt. 111-2 at 35–36. But
that does not mean that the videos Sai sought, in fact, existed at the time he filed his FOIA
request, and it certainly does not mean that the TSA destroyed some (but not all) of the videos
Sai sought in order to avoid its obligation of production. Far more than Sai has offered is
necessary to give rise to a disputed issue of fact regarding an agency’s good faith; indeed, if a
FOIA requester’s reasonable belief that other records should have been found were sufficient,
discovery would likely be the norm, rather than exception, in FOIA cases. See Cole v. Rochford,
285 F. Supp. 3d 73, 76 (D.D.C. 2018) (“[I]n the FOIA context, courts have permitted discovery
only in exceptional circumstances where a plaintiff raises a sufficient question as to the agency’s
good faith in searching for or processing documents.”); see also Baker & Hostetler LLP, 473
F.3d at 318 (concluding that the district court properly denied discovery request where the
plaintiff “offered no evidence of bad faith to justify additional discovery”).
Sai also argues that TSA violated his rights under the Privacy Act by documenting his
“protected First Amendment speech” at checkpoints, including documentation of the “parody
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DHS” t-shirt he was wearing while going through the Logan Airport screening and his act of
partially disrobing at the O’Hare Airport screening. Dkt. 111-2 at 33–34. For support, Sai cites
to 5 U.S.C. § 552a(e)(7), which provides that “[e]ach agency that maintains a system of records
shall . . . maintain no record describing how any individual exercises rights guaranteed by the
First Amendment unless expressly authorized by statute or by the individual about whom the
record is maintained or unless pertinent to and within the scope of an authorized law
enforcement activity.” This argument, however, is not properly before the Court because Sai
brought this suit to “challeng[e] the failure of [the TSA] to respond to plaintiff Sai’s multiple
requests for records,” Dkt. 5 at 1 (Compl. ¶ 1), not to challenge the content of those records. 8
Finally, Sai argues that the TSA deliberately delayed processing his Logan and San
Francisco Airport Rehabilitation Act complaints. Dkt. 111-2 at 37–40. Those contentions,
however, also have nothing to do with the present action. Indeed, this Court has previously
resolved Sai’s separate lawsuit raising just that issue. See Sai, 149 F. Supp. 3d at 99. Sai offers
no basis to conclude that the TSA’s delay in processing his Rehabilitation Act complaints shows
that it improperly withheld records responsive to Sai’s FOIA requests. Cf. House v. U.S. Dep’t
Justice, 197 F. Supp. 3d 192, 203–04 (D.D.C. 2016) (explaining that allegations of misconduct
unrelated to the processing of the plaintiff’s FOIA/PA requests or the suit “failed to rebut the
presumption of good faith”).
The Court, accordingly, concludes that Sai has failed to rebut the presumption of good
faith applicable to the TSA’s explication of its search efforts and has failed to show that
discovery is warranted in this FOIA/Privacy Act action.
8
Similarly, to the extent that Sai is asserting First Amendment claims against TSA, those claims
are foreclosed because they are not raised in his complaint. See Wright, 121 F. Supp. 3d at 183
n.7.
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CONCLUSION
For these reasons, the Court will GRANT in part and will DENY in part the TSA’s
motion for summary judgment. In particular, the motion is granted, except as to the following
issues, which will require further development: (1) Did the TSA fail to comply with E-FOIA
notwithstanding its failure to release the electronic records sought in Sai’s BOS and SFO Re-
Requests in their original format and its failure to release records responsive to his Policies
Request in “discretized,” “fully digital,” non-“rasterized” text PDFs; (2) Did the TSA release any
spreadsheets in response to Sai’s Policies Request; (3) Does the TSA possess legible copies of
Dkt. 143-2 at 3, 6–7 (2013-TSPA-00368 Bates 003–004, 006–007); Dkt. 141-2 at 9–10 (2023-
TSFO-01096 Bates 009–010); (4) Is the TSA required to search its FOIA Branch, Office of
Legislative Affairs, Office of Chief Counsel, and Office of the Executive Secretariat for records
responsive to Sai’s BOS and SFO Requests and Re-Requests; (5) Did the TSA’s searches for
records responsive to the BOS and SFO Requests and Re-Requests cover the relevant timeframe,
that is, from the date of the relevant incident to the date the relevant search commenced; (6) Did
the TSA conduct a search reasonably calculated to locate responsive records with respect to the
databases searched in response to the BOS and SFO Re-Requests and with respect to the search
terms used to search the offices described in Part II.B.2 in response to the BOS and SFO
Requests and Re-Requests; (7) Did the TSA redact information pursuant to Exemption 3 that was
previously released to the ACLU prior to responding to Sai’s Policies Request; (8) Did the TSA
properly redact factual information responsive to Sai’s SFO Request pursuant to Exemption 5;
(9) Does the redacted contact information for TSA contract employees, a DHS Office of Chief
Counsel employee, and a TSA Disability Branch employee implicate a “substantial privacy
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interest” under Exemption 6; and (10) Does the redacted contact information of TSA employees
contained in policy documents implicate a “substantial privacy interest” under Exemption 6.
Finally, the Court further concludes that Sai has failed to carry his burden of
demonstrating that discovery is warranted in this FOIA/PA action.
The Court will set a briefing schedule in a separate order for the parties to address these
(and only these) remaining issues.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: May 24, 2018
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