Skurow v. U.S. Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
RYAN B. SKUROW, )
)
Plaintiff, )
) Civil Action No. 11-1296(EGS)
v. )
)
U.S. DEPARTMENT OF HOMELAND )
SECURITY and U.S. TRANSPORTATION)
SECURITY ADMINISTRATION, )
)
Defendants. )
)
MEMORANDUM OPINION
This case is before the Court on defendants’ motion for
summary judgment and plaintiff’s cross-motion for summary
judgment. Upon consideration of the motions, the responses and
replies thereto, the applicable law, and the entire record,
defendants’ motion is GRANTED and plaintiff’s cross-motion is
DENIED.
I. BACKGROUND
Plaintiff, who initially proceeded pro se in this action,
filed his complaint on July 19, 2011, seeking to compel
defendants the United States Department of Homeland Security
(“DHS”) and the United States Transportation Security
Administration (“TSA”) to comply with the Freedom of Information
Act, 5 U.S.C. § 552 (“FOIA)” and the Privacy Act, 5 U.S.C. §
552a (“Privacy Act”).
Plaintiff is a United States citizen currently living in
Israel. In 1998, plaintiff traveled to Israel as a tourist and
made an excursion trip with two friends to the Sinai Peninsula
in Egypt. During the course of the trip to Egypt, plaintiff and
his friends were stopped by Egyptian police and were searched.
As a result of the search, the Egyptian police claimed to have
found a small amount of marijuana in the bag of one of
plaintiff’s friends. Plaintiff states that all three friends
were tried without the assistance of counsel, fined $200, and
were returned to Israel. Plaintiff further alleges that the
“entire trial was a farce” and that “plaintiff never used or
possessed marijuana as charged by the Egyptian police.” Pl.’s
Statement of Material Facts in Supp. of Cross-Mot. for Summ. J.
(“Pl.’s Cross-Mot. SOF”), ECF No. 16-2, ¶ 8-9.
Prior to 2007, plaintiff states he had no difficulty
traveling between the United States and Israel. In 2007,
however, plaintiff was stopped by a United States Customs and
Border Patrol (“CBP”) officer in the Miami International Airport
and detained for several hours without explanation. He was
stopped again in 2009 while traveling through the Hartsfield-
Jackson Atlanta International Airport. During this stop,
plaintiff inquired about the reasons for his detention.
Plaintiff alleges that a CBP officer told him that his name
2
appeared on a “watch list” as a result of the 1998 incident in
Egypt.
Between 2008 and 2010, plaintiff made several attempts to
clarify the reasons he was stopped and questioned. These
included contacting Congresswoman Jean Schmidt, the
Representative for the district in which plaintiff’s father
lives. Plaintiff and/or his attorney also made inquiries to the
DHS Traveler Inquiry Program (“DHS TRIP”). On August 8, 2010,
plaintiff’s counsel sent a FOIA/Privacy Act request to the TSA
for “all information [it had] relating to” plaintiff. Compl. ¶
5. 1 On August 17, 2010, the TSA sent a letter to plaintiff
acknowledging that it had received his request on August 13,
2010. Compl. ¶ 6. In that letter, the TSA stated that its goal
was to respond to the request within 20 days, but due to the
breadth of plaintiff’s request, the TSA would invoke a 10-day
extension of the request, pursuant to 5 U.S.C. § 552(a)(6)(B).
The TSA invited plaintiff to contact their FOIA office if he
desired to narrow his request.
1
There is some confusion in the record as to whether plaintiff’s
request was made pursuant to FOIA or to the Privacy Act. In
plaintiff’s August 17, 2010 request to the TSA, he states that
he is seeking records pursuant to the Privacy Act. See Compl.
Ex. A. In his appeal, however, his request is referred to as
having been made pursuant to FOIA and the Privacy Act. See id.Ex. C. Because plaintiff has alleged in his complaint that the
TSA failed to comply with his FOIA and Privacy Act requests, the
Court will treat his request has having been made pursuant to
FOIA and the Privacy Act.
3
On January 13, 2011, after having allegedly not received a
response from the TSA, plaintiff’s counsel sent a letter to the
DHS, reiterating plaintiff’s initial request and purporting to
appeal the denial of his FOIA/Privacy Act request. Compl. ¶ 8.
On April 8, 2011, DHS sent a letter to plaintiff’s counsel
informing him that it could not act until a determination was
made on whether any responsive records may be released in
connection with his request. Compl. ¶ 10. DHS advised
plaintiff that he could treat the letter as a denial of his
appeal and seek judicial review. Id.After plaintiff filed this action on July 19, 2011, TSA
began responding to plaintiff’s FOIA request on a rolling basis.
On August 4, 2011, 2 TSA sent a letter to plaintiff and attached
several documents, including documents that had been redacted
pursuant to FOIA Exemptions 3, 6, and 7. 3 On August 25, 2011,
TSA sent plaintiff a supplemental response to his request. See
Declaration of Yvonne L. Coates (“Coates Decl.”), ECF No. 9-1,
Ex. F. In that letter, the TSA stated that it could neither
confirm nor deny whether plaintiff was on a Federal Watch List.
Specifically, the TSA stated that pursuant 49 U.S.C. § 114(r)
and its implementing regulation at 49 C.F.R. § 1520.15(a),
2
The copy of the letter attached as Exhibit E to the Coates
Declaration bears no date but the declaration states that it was
sent on August 4, 2011.
3
Defendants have since withdrawn the redactions made pursuant to
Exemption 7.
4
Federal Watch Lists constitute Sensitive Security Information
(“SSI”) that is exempted from disclosure. The TSA stated that
it was withholding that information pursuant to FOIA Exemption
3, which allows the withholding of records specifically
prohibited from disclosure by another statute. On October 24
and November 2, 2011, TSA sent plaintiff a second and third
supplemental response to his FOIA request, attaching documents
that contained redactions pursuant to Exemptions 3 and 6.
Coates Decl. Exs. G-H.
On November 2, 2011, defendants moved for summary judgment,
arguing that they had conducted an adequate search and produced
documents in response to plaintiff’s request, and that there
were no issues of material fact. Defendants advised the pro se
plaintiff of his obligation to respond to the arguments made by
plaintiff and cite to supporting factual evidence or those
arguments would be deemed conceded. In their motion, defendants
argued that their search was adequate, that information was
properly withheld pursuant to FOIA exemptions 3 and 6, and that
all reasonably segregable information was released.
In his opposition, plaintiff principally argues that the
government acted in bad faith. Plaintiff also argues that
defendants’ searches were inadequate and that the exemptions do
not apply. Plaintiff does not address the issue of
segregability. Plaintiff submitted a statement of facts in
5
dispute, see ECF No. 10-3, but did not specifically respond to
the factual allegations in defendants’ statement or cite to
record evidence in support of his statements of disputed fact.
Several weeks after plaintiff filed his pro se opposition
to defendant’s motion for summary judgment on January 26, 2012,
counsel appeared on behalf of plaintiff in this action. See ECF
No. 14. On June 26, 2012, three months after the initial motion
for summary judgment was fully briefed, plaintiff filed a cross-
motion for summary judgment and a request for attorneys’ fees.
On July 11, 2012, the Court held a status hearing regarding the
pending motions. At the hearing, the Court noted that a
Fox/Neal Order had not been issued after the initial summary
judgment motion was filed by defendants. The Court informed
plaintiff’s counsel that it appeared plaintiff had not properly
responded to the motion, including to the statement of facts,
and asked counsel whether he was satisfied with the opposition
that plaintiff had filed. Counsel stated that he was satisfied
with the pleadings and had no intention to make any changes.
Counsel also confirmed that he had access to the Court’s local
rules. Accordingly, the Court allowed the briefing on the
cross-motion for summary judgment to proceed. That motion, and
defendants’ initial motion, are now ripe for the Court’s
decision.
6
II. LEGAL FRAMEWORK
A. Rule 56
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted if the moving party has shown that
there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);
Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.
2002). In determining whether a genuine issue of fact exists,
the court must view all facts in the light most favorable to the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Likewise, in ruling on
cross-motions for summary judgment, the court shall grant
summary judgment only if one of the moving parties is entitled
to judgment as a matter of law upon material facts that are not
genuinely disputed. See Citizens for Responsibility & Ethics in
Wash. v. Dep’t of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.
2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.
1975)).
Rule 56 of the Federal Rules of Civil Procedure requires
that “[a] party asserting that a fact cannot be or is genuinely
disputed must support that assertion by . . . citing to
particular parts of materials in the record . . . or . . .
showing that the materials cited [by the opposing party] do not
7
establish the absence or presence of a genuine dispute . . . .”
Fed. R. Civ. P. 56(c). “If a party fails to properly support an
assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion.” Fed.
R. Civ. P. 56(e); see Local Civ. R. 7(h) (“In determining a
motion for summary judgment, the court may assume that facts
identified by the moving party in its statement of material
facts are admitted, unless such a fact is controverted in the
statement of genuine issues filed in opposition to the
motion.”). The District of Columbia Circuit has held that “[i]f
the party opposing the motion fails to comply with [Local Civil
Rule 7], then ‘the district court is under no obligation to sift
through the record’ and should ‘[i]nstead . . . deem as admitted
the moving party's facts that are uncontroverted by the
nonmoving party's Rule [Local Civil Rule 7(h)] statement.’” SEC
v. Banner Fund Int'l, 211 F.3d 602, 616 (D.C. Cir. 2000)
(citation omitted). This Circuit has affirmed the grant of
summary judgment where the nonmoving party failed to cite any
evidence in the record, and in the statement of genuine factual
issues, “did not set forth specific, material facts, but simply
asserted, without citing evidence in the record, that there was
a disputed issue[.]” Burke v. Gould, 286 F.3d 513, 518 (quoting
Tarpley v. Greene, 684 F.2d 1, 7 (D.C. Cir. 1982)).
8
B. FOIA
FOIA requires agencies to disclose all requested agency
records, 5 U.S.C. § 552(a), unless one of nine specific
statutory exemptions applies, id. § 552(b). It is designed to
“pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of Air Force v.
Rose, 425 U.S. 352, 361 (1976) (citations omitted). “Given the
FOIA’s broad disclosure policy, the United States Supreme Court
has ‘consistently stated that FOIA exemptions are to be narrowly
construed.’” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)
(quoting Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)).
“FOIA’s strong presumption in favor of disclosure places
the burden on the agency to justify the withholding of any
requested documents.” Dep’t of State v. Ray, 502 U.S. 164, 173
(1991) (citation omitted). The government may satisfy its
burden of establishing its right to withhold information from
the public by submitting appropriate declarations and, where
necessary, an index of the information withheld. See Vaughn v.
Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). “If an agency’s
affidavit describes the justifications for withholding the
information with specific detail, demonstrates that the
information withheld logically falls within the claimed
exemption, and is not contradicted by contrary evidence in the
record or by evidence of the agency’s bad faith, then summary
9
judgment is warranted on the basis of the affidavit alone.”
ACLU v. Dep’t of the Defense, 628 F.3d 612, 619 (D.C. Cir.
2011); see id. (an agency’s justification for invoking a FOIA
exemption is sufficient if it appears logical or plausible)
(internal citations omitted).
C. Privacy Act
The Privacy Act of 1974 regulates the collection,
maintenance, use, and dissemination of an individual's personal
information by agencies within the federal government. See 5
U.S.C. § 552a(e). The Act “‘safeguards the public from
unwarranted collection, maintenance, use, and dissemination of
personal information contained in agency records ... by allowing
an individual to participate in ensuring that his records are
accurate and properly used.’” McCready v. Nicholson, 465 F.3d
1, 7–8 (D.C. Cir. 2006) (quoting Bartel v. Fed. Aviation Admin.,
725 F.2d 1403, 1407 (D.C. Cir. 1984)). “The Privacy Act—unlike
the Freedom of Information Act—does not have disclosure as its
primary goal.” Henke v. U.S. Dep't of Commerce, 83 F.3d 1453,
1456 (D.C. Cir. 1996). “Rather, the main purpose of the Privacy
Act's disclosure requirement is to allow individuals on whom
information is being compiled and retrieved the opportunity to
review the information and request that the agency correct any
inaccuracies.” Id. at 1456–57. To achieve this goal, the Act
“imposes a set of substantive obligations on agencies that
10
maintain systems of records.” Skinner v. Dep't of Justice, 584
F.3d 1093, 1096 (D.C. Cir. 2009). For example, subject to
certain exceptions, an agency that maintains a system of records
must, “upon request by any individual to gain access to his
record . . . permit him . . . to review the record” and to
request amendment of the record. 5 U.S.C. § 552a(d)(1)-(2).
III. DISCUSSION
As an initial matter, the Court notes that this case is in
a somewhat unusual procedural posture. As discussed above,
plaintiff proceeded pro se through the majority of this
litigation, including the initial summary judgment briefing.
His counsel, who appeared in the litigation shortly after
plaintiff filed his pro se opposition to defendants’ motion for
summary judgment, has adopted the arguments made by plaintiff in
his opposition to defendants’ motion for summary judgment and
did not wish to supplement that briefing. Plaintiff
subsequently filed a cross-motion for summary judgment.
Plaintiff’s response to defendants’ statement of material
facts not in dispute fails to specifically controvert
defendants’ statements of material fact because it fails to cite
to record evidence. Although the Court is “under no obligation
to sift through the record” to locate disputed issues of
material fact, the Court has reviewed the pleadings as a whole
in an effort to determine whether there are any disputed issues
11
of material fact. Upon review of plaintiff’s opposition to
defendants’ statement of material facts, and plaintiff’s own
statement of material facts in support of his cross-motion for
summary judgment, the Court finds that there are no disputed
issues of material fact in this case. Much of what has been
alleged by plaintiff is merely background information that is
not in dispute. For example, plaintiff states that “[i]n or
around November 2011, Defendants submitted affidavits from
Yvonne Coates and William Benner in an attempt to justify
withholding of information requested by plaintiff about
himself.” See Pl.’s Statement of Genuine Issues in Dispute
(“Pl.’s SOF”), ECF No. 10-3, ¶ 23. This statement is neither in
dispute, nor is it material. The few disputed allegations made
by plaintiff relate to legal issues, rather than to issues of
fact. See, e.g., id. ¶ 25 (alleging that defendants “improperly
maintain[ed] a right to withhold under Exemptions 3 and 6 and a
Glomar response based on Exemption 3”).
Accordingly, as discussed below, the issues to be resolved
by the Court are legal and relate to the propriety of
defendants’ responses to plaintiff’s FOIA request.
A. Adequacy of Search
Defendants argue that their search for documents was
adequate and that summary judgment is appropriate. Plaintiff
disagrees, contending that defendants failed to conduct a
12
reasonable and good faith search for responsive documents. As
discussed below, in view of the lack of any specific showing of
bad faith on the part of the defendants, the Court finds that
their search was adequate.
1. Bad Faith
Plaintiff makes several arguments relating to defendants’
delay in processing his FOIA request. Specifically, plaintiff
argues that the delay is evidence of defendants’ bad faith.
Plaintiff further argues that defendants’ claimed exemptions are
invalid because of this alleged bad faith. See Pl.’s Opp. to
Defs.’ Mot. for Summ J. (“Pl.’s Opp.”), ECF No. 10, at 14. The
Court disagrees.
Courts routinely find that delays in responding to FOIA
requests are not, in and of themselves, indicative of agency bad
faith. See, e.g., Iturralde v. Comptroller of the Currency, 315
F.3d 311, 315 (D.C. Cir. 2003) (“initial delays in responding to
a FOIA request are rarely, if ever, grounds for discrediting
later affidavits by the agency”); Fischer v. U.S. Dep’t of
Justice, 723 F. Supp. 2d 104, 108-09 (D.D.C. 2010) (rejecting
argument that agency’s failure to produce documents until after
litigation commenced evidenced agency’s bad faith). Agency
affidavits are afforded a “presumption of good faith” and an
adequate affidavit can be rebutted only with evidence that the
agency’s search was not made in good faith. Defenders of
13
Wildlife v. Dep’t of the Interior, 314 F. Supp. 2d 1, 8 (D.D.C.
2004). In other words, a requestor cannot rebut the good faith
presumption through “‘purely speculative claims about the
existence of and discoverability of other documents.’” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1981)
(quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771
(D.C. Cir. 1981)). None of the pleadings filed by plaintiff set
forth any factual basis, other than purely speculative claims
about the agencies’ motives, to suggest that TSA or DHS acted in
bad faith. Accordingly, plaintiff has failed to rebut the
presumption of good faith. Moreover, there is nothing about the
failure of an agency to produce documents promptly that would
require the agency to waive otherwise properly claimed FOIA
exemptions. An agency’s failure to respond within the
statutorily prescribed deadlines merely means that a requesting
party may seek judicial supervision of the agency’s response, as
plaintiff has done here. See, e.g., Long v. Dep’t of Homeland
Sec., 436 F. Supp. 2d 38, 44 (D.D.C. 2006).
2. TSA’s Searches Were Adequate
An agency from which information has been requested must
undertake a search that is “reasonably calculated to uncover all
relevant documents.” Weisberg v. Dep’t of Justice, 705 F.2d
1344, 1351 (D.C. Cir. 1983). “[T]he adequacy of a FOIA search
is generally determined not by the fruits of the search, but by
14
the appropriateness of the methods used to carry out the
search.” Iturralde, 315 F.3d at 315. The Court applies a
“reasonableness test to determine the adequacy of search
methodology,” Campbell v. Dep’t of Justice, 164 F.3d 20, 27
(D.C. Cir. 1998), and requires a “reasonable and systematic
approach to locating the requested documents.” Ctr. for Pub.
Integrity v. FCC, 505 F. Supp. 2d 106, 116 (D.D.C. 2007). “The
agency must demonstrate that it ‘made a good faith effort to
conduct a search for the requested records, using methods which
can be reasonably expected to produce the information
requested.’” Fischer v. Dep’t of Justice, 596 F. Supp. 2d 34, 42
(D.D.C. 2009) (quoting Oglesby v. Dep’t of the Army, 920 F.2d
57, 68 (D.C. Cir. 1990)).
Defendants properly rely on a detailed, non-conclusory
declaration that demonstrates the adequacy of the search. See
Weisberg, 705 F.2d at 1351. TSA states that, based on
plaintiff’s request and his allegation of experiencing
difficulties traveling, it identified that the TSA offices most
likely to have responsive records were the Office of
Transportation Security Redress (“OTSR”), the Office of
Intelligence (“OI”) and the Office of Security Operations
(“OSO”). Coates Decl. ¶ 17. It explains in considerable detail
the processes undertaken to search for documents in those
15
offices. 4 It further explains the search terms used to conduct
those searches. The Court finds that these methods could be
“reasonably expected to produce the information requested” and
were therefore adequate. See Fischer, 596 F. Supp. 2d at 43.
Plaintiff attempts to establish that the searches were
inadequate by identifying individual documents that are
allegedly responsive to his requests but which were not
produced. The documents include: 1) correspondence between CBP
and Congresswoman Jean Schmidt’s office regarding plaintiff’s
4
Defendants explain that OTSR was deemed to possibly have
responsive records because it administers the DHS TRIP program
under which plaintiff submitted a complaint. Coates Decl. ¶ 18.
OTSR searched its files and located its record of plaintiff’s
complaint. Coates Decl. ¶ 19. Based on the information in that
record, OTSR conducted a keyword search of its public email
inbox within a several-month date range surrounding the date of
plaintiff’s complaint, as per OTSR’s normal practice. Coates
Decl. ¶ 21. OTSR also searched the email files of employees who
were identified as having worked on plaintiff’s complaint.
Coates Decl. ¶ 24. OI was deemed to have potentially responsive
records because it is in possession of the No Fly and Selectee
lists, and in certain cases, the derogatory information that
supports placement on those lists. Coates Decl. ¶ 26. OI
searched its email records and its shared drive for information
regarding plaintiff’s complaint. Coates Decl. ¶ 27. OI found
no documents responsive to the request. Coates Decl. ¶ 27. TSA
also searched the No Fly and Selectee lists. Pursuant to the
TSA’s current “Glomar” policy, TSA cannot confirm, nor deny,
whether OI’s search of the No Fly and Selectee lists identified
any responsive records. Coates Decl. ¶ 27. OSO manages TSA’s
domestic security operations and was asked to search its
Performance and Results Information System, a database that
holds records of incidents and inspections at U.S. airports.
Coates Decl. ¶ 29. OSO ran several keyword searches in the
database but none yielded responsive records. Coates Decl. ¶
29.
16
difficulty traveling; 2) an October 2009 letter from plaintiff’s
counsel to DHS regarding plaintiff’s difficulty traveling; and
3) correspondence between plaintiff’s counsel and TSA or DHS
regarding plaintiff’s FOIA request. Plaintiff also claims that
defendants’ search was inadequate because it did not search
records from CBP or the FBI.
The Court notes at the outset that plaintiff’s FOIA request
was directed to the TSA only. Compl. Ex. A. The relevant FOIA
regulation puts the burden on a requesting party to direct his
request to the DHS component from which records are sought.
Defs.’ Reply in Support of Mot. for Summ. J. (“Defs.’ Reply”),
ECF No. 15, at 3 (citing 6 C.F.R. § 5.3(a) (“You may make a
request for records of the Department by writing directly to the
Department component that maintains those records. . . . Your
request should be sent to the component’s FOIA office at the
address listed in Appendix A to part 5.”)). Although the FOIA
regulations provide for mandatory referrals to component
agencies in certain circumstances, defendants argue that the
request did not require a referral to CBP in this case. This
issue is moot, however, in view of defendants’ referral of the
request to CBP after receiving plaintiff’s opposition to
17
defendants’ motion for summary judgment. 5 The Court also finds
that plaintiff’s claim that TSA should have searched records
from the FBI, which plaintiff alleged for the first time in his
cross-motion for summary judgment, lacks merit. The FBI is not
a component of DHS and plaintiff has cited now law that would
require TSA to search FBI records.
Plaintiff’s allegations regarding various correspondence
that was not produced in response to his FOIA request falls
short of establishing that TSA’s search was inadequate. First,
plaintiff points to several letters from plaintiff’s counsel.
Plaintiff claims that an October 21, 2009 letter from
plaintiff’s counsel inquiring about the status of plaintiff’s
FOIA request was not produced. As explained by the TSA,
however, a nearly-identical letter dated November 22, 2009 was
produced and a similar electronic version of the letter was
located in TSA’s files upon further review. March 7, 2012
Declaration of Yvonne Coates (“March 7 Coates Decl.”), ECF No.
15, at ¶¶ 8-9. The difference in date appears to have been a
clerical error and, even if not, is not a material issue with
respect to the adequacy of the search. See Iturralde, 315 F.3d
at 315.
5
The adequacy of the CBP production does not appear to be
challenged by plaintiff and, in any event, is not an issue
properly before this Court.
18
Plaintiff also argues that TSA’s search was inadequate
because TSA did not produce several letters from plaintiff’s
counsel regarding plaintiff’s FOIA request. TSA responds that
these documents post-date plaintiff’s FOIA request and are
accordingly not considered part of his request, which the TSA
interpreted as seeking information in existence at the time of
the request. The Court finds this approach reasonable and also
notes there is also no particular need to produce back to
plaintiff documents that plaintiff or his counsel already have.
Plaintiff also cites to several letters sent to the offices
of Congresswoman Jean Schmidt, who is the representative for the
Congressional district in which plaintiff’s father resides.
These letters include an October 16, 2008 letter from a CBP
official to Representative Schmidt, see ECF No. 10-2, Ex. A, and
an August 16, 2010 letter from a CBP official to Representative
Schmidt, see id. Ex. D. Plaintiff cites these letters as
further proof that the searches were inadequate. Plaintiff
fails to acknowledge, however, that the letters were sent from
CBP, rather than TSA. Because plaintiff’s FOIA request was made
to TSA, the Court finds that these letters are not evidence of
an inadequate search.
In view of the fact that the reasonableness of a FOIA
search is determined, “not by the fruits of the search, but by
the appropriateness of the methods used to carry out the
19
search,” Iturralde, 315 F.3d at 315, the Court finds that
defendants’ searches for documents responsive to plaintiff’s
FOIA request were adequate.
B. Exemptions
1. Exemption 3
Exemption 3 allows an agency to withhold or redact
information prohibited from disclosure by another statute if the
statute “establishes particular criteria for withholding or
refers to particular types of matters to be withheld.” 5 U.S.C.
§ 552(b)(3). In this case, defendants argue that certain
documents are exempt from disclosure pursuant to 49 U.S.C. §
114(r) and its implementing regulations at 49 C.F.R. § 1520.
Section 114(r) states that, “[n]otwithstanding section 552 of
Title 5, the Under Secretary shall prescribe regulations
prohibiting the disclosure of information obtained or developed
in carrying out security . . . if the Under Secretary decides
that disclosing the information would . . . be detrimental to
the security of transportation.” The specific regulation on
which the defendants rely is 49 C.F.R. § 1520.5(b)(9)(ii), which
expressly prohibits from disclosure “[i]nformation and sources
20
of information used by a passenger or property screening or
system, including an automated screening system.” 6
Plaintiff does not challenge whether Section 114(r)
qualifies as an Exemption 3 withholding statute. 7 Rather,
plaintiff argues that Section 114(r) does not apply to his case
because 1) defendants did not make a decision as to whether it
would prevent release of certain documents until after
plaintiff’s litigation was filed; 2) that even if Section 114(r)
prevents release of certain information pursuant to FOIA, it has
no effect on plaintiff’s claim under the Privacy Act; 3) that
the information he is seeking relates only to himself, and is
therefore not barred from disclosure under Section 114(r); and
(4) that a CBP employee disclosed to plaintiff that his name was
on a watch list and, accordingly, any right to withhold that
information or respond with a Glomar response has been waived.
The Court disagrees. Plaintiff’s claim that defendants
have waived their right to withhold information pursuant to
6
Section 144(r) was previously numbered as 114(s) until 2007.
Earlier case law and statutes that have not yet been revised
refer to the statute by its earlier number.
7
Several courts, including courts in this district, have
considered whether Section 114(r) qualifies as an Exemption 3
withholding statute and have concluded that it does. See Tooley
v. Bush, No. 06-306 (CKK), 2006 WL 3783142 (D.D.C. Dec. 21,
2006), aff’d on rehearing on other grounds, 586 F.3d 1006 (D.C.
Cir. 2009); Elec. Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d
100, 109-10 (D.D.C. 2005); Gordon v. FBI, 390 F. Supp. 2d 897,
900 (N.D. Cal. 2004) (“no dispute” that Section 114(r) qualifies
as an Exemption 3 withholding statute).
21
Exemption 3 because they may or may not have designated the
information as SSI until after receiving his FOIA request, or
indeed, even after this litigation was filed, fails. Plaintiff
cites to no law that would require defendants to designate
certain information as SSI prior to a FOIA request or risk
waiving their ability to withhold such information.
The Court also rejects plaintiff’s argument that the
information should be released because plaintiff has requested
the information under the Privacy Act, in addition to FOIA.
Plaintiff’s argument ignores the provision in the TSA’s SSI
regulation that specifically addresses this issue. See Defs.’
Reply at 7 (quoting 49 C.F.R. § 1520.15(a)) (“[N]otwithstanding
the Freedom of Information Act (5 U.S.C. 5552), the Privacy Act
(5 U.S.C. 552(a)), and other laws, records containing SSI are
not available for public inspection or copying, nor does TSA . .
. release such records to persons without a need to know.”).
Plaintiff has not established that he would qualify as a person
with “need to know.” Plaintiff has also not cited any case law
in support of his third and related argument that he should
receive the records simply because they are about him.
Plaintiff’s fourth argument also fails. Plaintiff alleges
that information regarding plaintiff’s presence on a watch list
should be produced because a CBP official told him that he was
on a watch list when he was stopped at the Hartsfield-Jackson
22
Atlanta International Airport in 2009. In this respect,
plaintiff appears to allege that the waiver doctrine applies.
The D.C. Circuit has held that “when information has been
‘officially acknowledged,’ its disclosure may be compelled even
over an agency’s otherwise valid exemption claim.” Fitzgibbon
v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). In Fitzgibbon, the
court identified three requirements to determine whether the
government has waived its right to withhold information by
officially acknowledging it. Specifically, plaintiff must
establish that the information requested is as specific as the
information previously released, must match the information
previously disclosed, and must have already been made public
through an official and documented disclosure. Id. Plaintiff
does not attempt to argue that the comment by the CBP official,
even if true, was an “official and documented disclosure.”
Furthermore, plaintiff’s citation to Wolf v. CIA, 473 F.3d 370(D.C. Cir. 2007) does not support his argument because that case
involved an official admission of the existence of specific
records by a CIA official during a public Congressional hearing.
In contrast, in this case, the alleged disclosure was made by an
unnamed CBP employee while plaintiff was stopped at an airport.
There is nothing official about it, nor was it documented.
Accordingly, plaintiff’s waiver claim fails.
23
a. Scope of the Court’s Review
Moving on to the Court’s review of the information withheld
under Exemption 3, defendants argue that this Court lacks
jurisdiction to review TSA’s designation of the withheld
information as SSI. Under 49 U.S.C. § 46610, a person
challenging the TSA’s designation of information as SSI “may
apply for review of the order by filing a petition 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.”
The Court agrees that it lacks jurisdiction to review the
substance of the TSA’s SSI designations. See In re September 11
Litigation, 236 F.R.D. 164, 175 (S.D.N.Y. 2006); Shqeirat v.
U.S. Airways Group, Inc., No. 07-1513 (ADM/AJB), 2008 WL
4232018, *2 (D. Minn. Sept. 9, 2008) (“To the extent that these
requests seek Sensitive Security Information (“SSI”) and
plaintiffs object to U.S. Airways’ production of documents after
review by the TSA, the Court directs plaintiffs to the Court of
Appeals, which have ‘exclusive jurisdiction to affirm, amend,
modify or set aside’ final orders issued by the TSA pursuant to
49 U.S.C. § 114(s).”).
Although the Court has found that it lacks jurisdiction to
review the TSA’s decision to designate certain material as SSI,
24
the Court must still determine whether the material withheld, as
described by TSA, fits within the scope of Section 114(r). See
Morley v. CIA, 508 F.3d 1108, 1126 (D.C. Cir. 2007) (quoting
Ass’n of Ret. R.R. Workers v. U.S. R.R. Ret. Bd., 830 F.2d 331,
336 (D.C. Cir. 1987) (“‘[T]he sole issue for decision is the
existence of a relevant statute and the inclusion of the
withheld material within the statute’s coverage.’”); James
Madison Project v. CIA, 607 F. Supp. 2d 109, 126 (D.D.C. 2009).
b. Documents Redacted Pursuant to Exemption 3
TSA redacted several documents pursuant to Exemption 3 and
49 U.S.C. § 114(r). Specifically, the redactions indicated as
R.1, R.2, R.3, R.4, R.6, R.7, R.10, R.11, and R.21 were redacted
because they would “reveal information and sources of
information providing insight into passenger screening systems,
the knowledge about which would undermine a TSA screening system
and therefore be detrimental to transportation security.”
Declaration of William E. Benner, Jr., (“Benner Decl.”), ECF No.
9-2, ¶ 9. The TSA further explains that the information
withheld
may reveal a specific name that may or may not appear
on the government “No-Fly” or “Selectee” lists. The
information provided in these fields can include notes
about people, sources of information, and actions
taken by particular agencies that may be used in
combination to determine whether an individual is or
is not on the “No-Fly” or “Selectee” lists. In
addition, the redacted information from an internal
electronic mail, labeled R.21, also contains
25
information that can be used to determine whether an
individual is or is not on the “No Fly” or “Selectee”
lists. That information is prohibited from disclosure
under 49 C.F.R. § 1520.5(9)(b)(ii). The disclosure of
this information would be detrimental to the security
of transportation because it would enable those
planning an attack on an aircraft to identify
operatives who have or have not previously been
identified as a threat.
Benner Decl. ¶ 10. The Court finds that this information, as
described, fits squarely within the scope of Section 114(r) and
that the information redacted by TSA was appropriately withheld.
c. Glomar Response Pursuant to Exemption 3
In the TSA’s August 25, 2011 supplemental response to
plaintiff’s FOIA request, the TSA stated that it could neither
confirm nor deny whether plaintiff’s name was on a Federal Watch
List. Specifically, the TSA stated that pursuant 49 U.S.C. §
114(r) and its implementing regulation at 49 C.F.R. §
1520.15(a), Federal Watch Lists constitute “Sensitive Security
Information” that is exempted from disclosure. The TSA stated
that it was withholding that information pursuant to FOIA
Exemption 3. TSA argues that this refusal is a proper Glomar
response 8 because “the existence of responsive records uncovered
during these searches would reveal whether the Plaintiff’s name
matches an identity” on the lists. Benner Decl. ¶ 11. Because
the TSA uses these lists for passenger pre-board screening,
8
The term “Glomar” response refers to the subject of a FOIA
request pertaining to a ship, the Hughes Glomar Explorer, at
issue in Phillipi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).
26
“merely acknowledging the presence or absence of information
identifying Plaintiff constitutes SSI.” Id. ¶ 11 (citing 49
C.F.R. § 1520.5(b)(9)(ii)). TSA argues that this information
must therefore be withheld under Exemption 3.
Plaintiff challenges the justification for the TSA’s Glomar
response as set forth in the declaration of William Benner.
Plaintiff asserts that “[w]hen Benner states that it would be
endangering national security to reveal to me whether my name is
on the list, he is either entering the realm of the Kafkesque
[sic] or he has exceeded his authority under Section 114(r).”
Pl.’s Opp. at 20.
The D.C. Circuit has recognized that an agency “may refuse
to confirm or deny the existence or records where to answer the
FOIA inquiry would cause harm cognizable under a FOIA
exemption.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir.
1982). Here, the TSA argues that FOIA exemption 3, which
applies to matters specifically exempted by statute, applies to
TSA’s Glomar response based on 49 U.S.C. § 114(r) and the
implementing regulations at 49 C.F.R. § 1520.5(b)(9)(ii).
The Court finds that the TSA’s Glomar response to
plaintiff’s FOIA request was entirely proper and squarely within
the realm of its authority. See Tooley, 2006 WL 3783142, at *20
(finding that Glomar response to request regarding a person’s
presence on TSA watch lists was entirely proper under Section
27
114(r) where the TSA explained that if the TSA “were to confirm
in one case that a particular individual was not on a watch
list, but was constrained in another case merely to refuse to
confirm or deny whether a second individual was on a watch list,
the accumulation of these answers over time would tend to reveal
SSI.”); see also Gordon v. FBI, 388 F. Supp. 2d 1028, 1037 (N.D.
Cal. 2005) (“Requiring the government to reveal whether a
particular person is on the watch lists would enable criminal
organizations to circumvent the purpose of the watch lists by
determining in advance which of their members may be
questioned.”). Accordingly, the Court finds that defendants
have established that TSA properly responded to plaintiff’s
request for information about whether his name appeared on a
watch list by refusing to confirm or deny that information
pursuant to FOIA Exemption 3.
2. Exemption 6
Exemption 6 covers “personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(6). A determination of proper withholding under
Exemption 6 requires “weigh[ing] the privacy interest in non-
disclosure against the public interest in the release of records
in order to determine whether, on balance, the disclosure would
work a clearly unwarranted invasion of personal privacy.”
28
Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999) (internal
quotation marks omitted). Moreover, the agency has a duty to
engage in this balancing test before deciding whether to
disclose or withhold each record. Judicial Watch v. U.S. Dep’t
of Homeland Sec., 598 F. Supp. 2d 93, 96 (D.D.C. 2009).
The information redacted by the TSA pursuant to Exemption 6
includes the “names, initials, position titles, and/or the last
four digits of the telephone number of federal employees who are
involved in the DHS TRIP process.” Coates Decl. ¶ 37. TSA
determined that the public’s interest in the names or other
personal information of the federal employees involved in the
DHS TRIP process was outweighed by the federal employees’
privacy interest in that information. Id. ¶ 38. TSA determined
that the information would provide very little insight into the
manner in which the TSA performs its statutory duties. TSA also
considered the likelihood that disclosure would result in
harassment and annoyance of TSA employees in light of their
involvement in traveler redress activities.
In his opposition, plaintiff appears to mostly concede the
Exemption 6 issue. He states that he has “no qualms with the
legal principles applicable to Exemption 6 claims” and then
cites several cases relied upon by defendants. Pl.’s Opp. at
22. Plaintiff then says that he is “willing to stipulate that
29
the identities of any third party federal workers be redacted
from the documents to be disclosed” to him. Id. at 23.
Upon the Court’s review of the redacted documents, the
majority very clearly indicate that they bear only minor
redactions to the names and other personal identifying
information, such as phone numbers, of federal employees who
wrote and/or received emails about plaintiff’s case. The Court
finds that these redactions were properly made pursuant to
Exemption 6 and, in addition, that plaintiff has conceded that
defendants may redact personal information about federal
employees.
A limited number of redactions made by defendants,
indicated as R. 6, R. 7, and R. 10, do not clearly indicate that
they are redacting personal information about federal employees.
Because the Court has determined that these redactions were
properly made pursuant to Exemption 3, see supra, the Court need
not determine whether they were also properly redacted pursuant
to Exemption 6.
C. Segregability
Plaintiff does not dispute that all reasonably segregable
information was produced to him. Even after determination that
documents are exempt from disclosure, however, FOIA analysis is
not properly concluded unless a court determines whether “any
reasonably segregable portion of a record” can “be provided to
30
any person requesting such record after deletion of the portions
which are exempt.” 5 U.S.C. § 552(b). “So important is this
requirement that ‘[b]efore approving the application of a FOIA
exemption, the district court must make specific findings of
segregability regarding the documents to be withheld.’” Elec.
Frontier Found. v. Dep’t of Justice, 826 F. Supp. 2d 157, 173
(D.D.C. 2011) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d
1106)). The Court errs if it “simply approve[s] the withholding
of an entire document without entering a finding on
segregability or the lack thereof.” Powell v. U.S. Bureau of
Prisons, 927 F.2d 1239, 1242 n. 4 (D.C. Cir. 1992) (citations
omitted).
“It has long been the rule in this Circuit that non-exempt
portions of a document must be disclosed unless they are
inextricably intertwined with exempt portions.” Mead Data
Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir.
1977). The agency should, for example, “‘describe what
proportion of the information in [the] documents,’ if any, ‘is
non-exempt and how that material is dispersed through the
document[s].” Elec. Frontier Found., 826 F. Supp. 2d at 174
(citing Mead Data Cent., Inc., 566 F.2d 242, 261 (D.C. Cir.
1977)); see King v. Dep’t of Justice, 830 F.2d 210, 219 (D.C.
Cir. 1987) (agency must sufficiently identify the withheld
material to enable the district court to make a rational
31
decision whether the withheld material must be produced without
actually viewing the documents).
Upon review of the documents, the Court finds that
defendants have made very limited, specific redactions and have
explained in detail the basis for those redactions. See Coates
Decl. ¶¶ 30-40. It appears that defendants have redacted only
what was necessary to protect the exempt information, and
defendants are not withholding any documents in full.
Accordingly, the Court finds that all segregable information has
been disclosed to plaintiff.
D. Attorneys’ Fees
In his cross-motion for summary judgment, plaintiff argues
that he is entitled to attorneys’ fees pursuant to 5 U.S.C. §
552(a)(4)(E)(i). Plaintiff’s request misses a crucial point:
plaintiff filed this action pro se and his counsel did not enter
an appearance until after plaintiff had filed his opposition to
defendants’ motion for summary judgment. Accordingly, to the
extent plaintiff’s counsel has incurred fees, those fees could
only be attributed to his work on plaintiff’s cross-motion for
summary judgment. That motion advances substantially all of the
same arguments made while plaintiff was pro se and, as discussed
above, plaintiff has not prevailed on any of those arguments.
Furthermore, plaintiff did not respond to defendants’ arguments
regarding the inapplicability of attorneys’ fees in his reply,
32
thereby conceding the issue. See Day v. D.C. Dep’t of Consumer
& Regulatory Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002)
(“If a party fails to counter an argument that the opposing
party makes in a motion, the court may treat that argument as
conceded.”). Accordingly, the Court finds that plaintiff is not
entitled to an award of fees. See Elec. Priv. Info. Ctr., 811
F. Supp. 2d at 238-39 (fees incurred in preparing unsuccessful
motions are properly denied under FOIA); see Weisberg, 745 F.2d
at 1499.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’
motion for summary judgment and DENIES plaintiff’s cross-motion
for summary judgment. An appropriate Order accompanies this
Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
September 26, 2012
33