Magassa v. Transportation Security Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LASSANA MAGASSA,
Plaintiff,
v. Civ. Action No. 19-01953 (EGS)
TRANSPORATION SECURITY
ADMINISTRATION,
Defendant.
MEMORANDUM OPINION
Plaintiff Lassana Magassa (“Mr. Magassa” or “Plaintiff”)
brings this lawsuit against Defendant Transportation Security
Administration (“TSA”) pursuant to the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552. See Complaint, ECF No. 1. Mr.
Magassa’s lawsuit arises from a September 18, 2017 FOIA request
for records regarding the revocation of his security and
aviation-worker privileges, as well as other records relating to
travel difficulties he has experienced. See id ¶ 6. Mr. Magassa
alleges that TSA has made an inadequate search for, and
disclosure of, responsive records. Id. ¶ 21.
Pending before the Court are TSA’s Motion for Summary
Judgment, see Mem. of P. & A. in Supp. of Def.’s Mot. for Summ.
J. (“Defs.’ MSJ”), ECF No. 9-2; and Mr. Magassa’s Cross Motion
for Summary Judgment, see Pl.’s Mem. in Supp. of Mot. for Summ.
J. (“Pl.’s XMSJ”), ECF No. 11-2.
1
Upon careful consideration of the motions, responses, and
the replies thereto, the applicable law and regulations, the
entire record and the materials cited therein, the Court GRANTS
TSA’s Motion for Summary Judgment, see ECF No. 9; and DENIES Mr.
Magassa’s Motion for Summary Judgment, see ECF No. 11.
I. Background
A. Factual Background
The following facts are undisputed. In 2017, Mr. Magassa
submitted a FOIA request to the TSA seeking records relating to:
(1) additional screening of him by TSA; (2) placement or
potential placement of him on the Terrorist Watch List; (3)
placement or potential placement of him on the Selectee List;
(4) TSA questioning of him at five specific airports during five
specified date ranges; and (5) records concerning him shared
with or received from the Federal Bureau of Investigation or
U.S. Customs and Border Patrol. Declaration of Terri Miller
(Jan. 15, 2020) (“Miller Decl.”), ECF No. 9-3 ¶¶ 4-12. TSA
located 231 pages of records responsive to Mr. Magassa’s
request. Id. ¶ 28. TSA determined that 204 of the pages in whole
or in part contained Sensitive Security Information (“SSI”) and
invoked FOIA Exemption 3 to justify those withholdings. Id. TSA
further invoked FOIA Exemption 6 to redact information on three
pages Id. On or about May 8, 2018, TSA ultimately released 49
pages of responsive records, releasing 26 pages in full and 23
2
pages in part. Id. ¶ 29. TSA also provided a Glomar response,
stating that it “could neither confirm nor deny the existence of
records that, by their very existence or nonexistence, would
indicate Plaintiff’s status on a federal watch list” and
explaining that “neither confirming nor denying the existence of
records indicating placement on a federal watchlist protects the
operational counterterrorism and intelligence collection
objectives of the Federal government and the personal safety of
those involved in counterterrorism investigations.” Id.On July 6, 2018, Mr. Magassa timely submitted a written
appeal of the TSA’s response to his FOIA request. Exhibit I, ECF
No. 9-3. The appeal stated that, along with wrongfully redacting
information and citing exemptions which do not protect the
redacted information from disclosure, TSA also withheld
documents in its possession in their entirety and did not
properly address those documents and any corresponding
exemptions in order to justify withholding them altogether. Id.The appeal also challenged the adequacy of TSA’s search for
responsive records, and noted that “the undersigned counsel
previously received numerous TSA documents through other
administrative avenues that were not provided in this response,
including but not limited to the determination that Mr. Magassa
3
does not meet the eligibility requirements to hold airport-
approved and/or airport-issued media.” Id.On September 5, 2018, TSA responded to Mr. Magassa’s Appeal
and affirmed its withholdings, redactions, and the use of FOIA
Exemptions 3 and 6. Exhibit J, ECF No. 9-3. TSA articulated its
position that records relating to Mr. Magassa’s credentials were
not within the scope of his FOIA request. Id. TSA’s response
also stated that the contents of the letter constituted the
Agency’s final decision, and that Mr. Magassa could seek
judicial review. Id. Mr. Magassa subsequently filed this lawsuit
on June 28, 2019.
B. Procedural Background
On January 15, 2020, TSA filed a Motion for Summary
Judgment, see Def.’s MSJ., ECF No. 9-2; to which Mr. Magassa
responded, see Pl.’s Resp. and Mem. in Opp’n to Def.’s Mot for
Summ. J. (“Pl.’s Opp’n”), ECF No. 10. Mr. Magassa also filed a
Cross Motion for Summary Judgment. See Pl.’s XMSJ., ECF No. 11-
2. TSA then filed a joint opposition and reply on May 7, 2020.
See Def.’s Comb. Reply in Supp. of Mot. for Summ. J and Opp’n to
Pl.’s XMSJ for Summ. J. (“Def.’s Opp’n”), ECF No. 15. Mr.
Magassa replied on May 21, 2020. See Pl.’s Reply, ECF No. 18.
The motions are ripe and ready for adjudication.
4
II. Legal Standard
A. Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary
judgment motions must be granted if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party
bears the initial burden “of informing the district court of the
basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (citation and quotation marks omitted); see also Fed. R.
Civ. P. 56(c)(1). This burden “may be discharged by showing . .
. that there is an absence of evidence to support the nonmoving
party’s case.” Celotex, 477 U.S. at 325 (quotation marks
omitted).
In evaluating a summary judgment motion, “[t]he evidence of
the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255(quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59
(1970)). Summary judgment turns on “whether the evidence
presents a sufficient disagreement to require submission to a
5
jury or whether it is so one-sided that one party must prevail
as a matter of law.” Id. at 251-52. “[I]f the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party”–and thus a “genuine” dispute over a material fact exists–
then summary judgment is not available. Id. at 248.
For purposes of summary judgment, materiality is determined
by the substantive law of the action. Id. Accordingly, the
substantive law identifies “which facts are critical and which
facts are irrelevant,” and “[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.” Id.Similarly, the applicable substantive evidentiary standards of
the action guide “whether a given factual dispute requires
submission to a jury.” Id. at 255. The Court’s role at the
summary judgment stage “is not . . . to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Id. at 249.
B. FOIA
FOIA is based on the recognition that an informed citizenry
is “vital to the functioning of a democratic society, 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). It was enacted to “pierce the veil of
administrative secrecy and to open agency action to the light of
6
public scrutiny,” and it favors “full agency disclosure.” Dep’t
of the Air Force v. Rose, 425 U.S. 352, 360–61 (1976) (quoting
Rose v. Dep’t of the Air Force, 495 F.2d 261, 263 (2d Cir.
1974)). FOIA cases are usually resolved on motions for summary
judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d
521, 527 (D.C. Cir. 2011). The agency has the burden of
justifying its response to the FOIA request it received, and the
court reviews its response de novo. 5 U.S.C. § 552(a)(4)(B).
C. Adequate Search
To prevail on summary judgment in a FOIA case, the agency
must show that it conducted an adequate search for records
responsive to the plaintiff’s FOIA request. See Morley v. CIA,
508 F.3d 1108, 1114 (D.C. Cir. 2007). To make a prima facie
showing of adequacy, the agency must demonstrate that it made a
good-faith effort to search for responsive records “using
methods which can be reasonably expected to produce the
information requested.” Reporters Comm. for Freedom of Press v.
FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (quoting Oglesby v. U.S.
Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see Iturralde
v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)
(adequacy depends on the “appropriateness of the methods used”
rather than the “fruits of the search”).
It may do so by submitting “[a] reasonably detailed
affidavit, setting forth the search terms and the type of search
7
performed, and averring that all files likely to contain
responsive materials (if such records exist) were searched.”
Reporters Comm., 877 F.3d at 402 (quoting Oglesby, 920 F.2d at
68). Such affidavits “are accorded a presumption of good faith,
which cannot be rebutted by ‘purely speculative claims about the
existence and discoverability of other documents.’” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771
(D.C. Cir. 1981)). However, “[a]t a bare minimum, the agency’s
affidavits need to specify ‘what records were searched, by whom,
and through what process.’” Rodriguez v. DOD, 236 F. Supp. 3d
26, 38 (D.D.C. 2017) (quoting Steinberg v. DOJ, 23 F.3d 548, 552
(D.C. Cir. 1994)).
“The agency fails to meet this burden such that summary
judgment is inappropriate when the agency fails to set forth the
search terms and the type of search performed with specificity
or otherwise provides ‘no information about the search
strategies of the [agency] components charged with responding to
[a] FOIA request’ and ‘no indication of what each [component’s]
search specifically yielded.’” Otero v. DOJ, 292 F. Supp. 3d
245, 251 (D.D.C. 2018) (quoting Reporters Comm., 877 F.3d at
402).
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III. Analysis
TSA argues that Mr. Magassa failed to administratively
exhaust certain issues, and judicial review is therefore
inappropriate. See Def.’s MSJ, ECF No. 9-2 at 9. TSA asserts
that it properly determined that Mr. Magassa’s initial FOIA
requests were insufficiently specific to enable TSA to conduct a
reasonable search, and also that it properly excluded records
related to his aviation worker’s credential as outside the scope
of his request. Id. at 11, 15. TSA adds that it conducted a
reasonable search for the requested records, and withheld only
exempt records. Id. at 15, 20. Finally, TSA argues that it
released all reasonably segregable records, and should therefore
be granted summary judgment. Id. at 30.
Mr. Magassa responds that neither did he fail to exhaust
all remedies, nor is this necessary. See Pl.’s XMSJ, ECF No. 11-
2 at 18. He contends that summary judgment in TSA’s favor is
unwarranted because TSA did not make a reasonable, good-faith
effort in its search. Id. at 12. He adds that he is entitled to
injunctive, declaratory, and mandamus relief. See id. at 5.
Given the overlapping nature of the issues raised by both
parties, the Court considers their arguments together for each
issue presented.
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A. Mr. Magassa Has Exhausted His Administrative Remedies
TSA does not dispute that Mr. Magassa filed an
administrative appeal. See Def.’s MSJ, ECF No. 9-2 at 10.
Instead, TSA argues that Mr. Magassa’s appeal “did not challenge
the agency’s Glomar response, the adequacy of TSA’s searches, or
TSA’s determinations that Plaintiff’s requests of September 18,
2017, and October 13, 2017, did not comply with 6 C.F.R. §
5.3(b) and were not proper FOIA requests,” and therefore “TSA
has not had the opportunity to exercise its discretion and
expertise on these matters.” Id. at 11. Mr. Magassa responds
that his appeal included language that “suffices to appeal the
entirety of the TSA’s response, as recognized by courts in this
Circuit.” Pl.’s Opp’n, ECF No. 10 at 18 (citing Wolf v. CIA, 473
F.3d 370 (D.C. Cir. 2007)). He adds that even if he had failed
to appeal any portion of the TSA’s FOIA response, this would not
provide a basis to grant TSA’s Motion. Id. The Court agrees with
Mr. Magassa.
Exhaustion of administrative remedies is “a mandatory
prerequisite” to a lawsuit under FOIA. Wilbur v. CIA, 355 F.3d
675, 676 (D.C. Cir. 2004) (per curiam) (internal citation
omitted). To exhaust administrative remedies, a FOIA requestor
must follow relevant agency regulations on administrative
appeal. See, e.g., DeBrew v. Atwood, 792 F.3d 118, 123 (D.C.
Cir. 2015) (observing that to allow requester to “pursue
10
judicial review without benefit of prior [agency] consideration
[on administrative appeal] would undercut the purposes of
exhaustion” (quoting Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C.
Cir. 2003))).
With respect to TSA’s assertions as to the limitations of
Mr. Magassa’s appeal, the Court is cognizant that Mr. Magassa’s
administrative appeal stated that “[w]e further appeal the
agency’s lack of production in response to Mr. Magassa’s request
overall.” ECF No. 9-3 at 46. Mr. Magassa also asserted that TSA
“withheld numerous documents in its possession in their entirety
and did not properly address those documents and their
corresponding exemptions in order to justify withholding them
altogether.” Id. The Court construes these statements as
sufficiently broad to challenge the entirety of TSA’s response.
TSA provides no authority establishing that Mr. Magassa must
challenge each component of TSA’s responses individually. See
generally Def.’s MSJ, ECF No. 9-2. The Court’s conclusion is
bolstered by TSA’s September 5, 2018 letter stating that the
letter constituted the Agency’s final decision, and that Mr.
Magassa could seek judicial review. Exhibit J, ECF No. 9-3. It
is inconsistent for TSA to direct Mr. Magassa to seek judicial
review of his appeal, without clarifying he may further appeal
11
other issues, and then assert before this Court that he has not
exhausted his administrative remedies.
Moreover, as TSA recognizes, “the D.C. Circuit has held
that exhaustion of administrative remedies in FOIA case is a
jurisprudential doctrine rather than a jurisdictional
prerequisite.” Def.’s MSJ, ECF No. 9-2 at 11 (citing Hildalgo v.
FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003)); see also Wilbur,
355 F.3d at 677 (“[E]xhaustion of a FOIA request is not
jurisdictional because the FOIA does not unequivocally make it
so[.]”) (internal citation and quotation marks omitted). The
Court concludes that Mr. Magassa has exhausted his
administrative remedies.
B. TSA Conducted a Reasonable Search for Responsive
Records
TSA argues that its “detailed declaration from its FOIA
Officer demonstrates that it met its FOIA obligation by
searching all locations likely to contain responsive records.”
Def.’s MSJ, ECF No. 9-2 at 15. It states that it searched the
only locations likely to yield records responsive to Mr.
Magassa’s final amended request, which concerned, in part, TSA
questioning that Mr. Magassa allegedly underwent at five
specific airports. See id. at 17. Mr. Magassa broadly counters
that TSA failed to fully search for responsive documents and did
not make a good faith effort in its searches, but he does not
specifically present any challenges to TSA’s methodology. See
12
Pl.’s Opp’n, ECF No. 10 at 9, 12. The Court concludes that TSA’s
search was adequate.
An agency can establish the reasonableness of its search by
“reasonably detailed, nonconclusory affidavits describing its
efforts.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473
F.3d 312, 318 (D.C. Cir. 2006). “In the absence of
countervailing evidence or apparent inconsistency of proof,
affidavits that explain in reasonable detail the scope and
method of the search conducted by the agency will suffice . . .
.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). “‘[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.’” Jennings v. Dep’t of Justice,
230 F. App’x 1, 1 (D.C. Cir. 2007) (quoting Iturralde, 315 F.3d
at 315.
Before turning to the merits of the argument, two threshold
matters are necessary to address. First, the Court is cognizant
that the scope of TSA’s search properly excluded records related
to Mr. Magassa’s aviation worker credential. Mr. Magassa
suggests that his October 13, 2017 FOIA request included records
related to his aviation worker credential. Pl.’s Opp’n, ECF No.
10 at 7. However, none of Mr. Magassa’s three requests indicated
that the nature of one of his contacts with TSA was as an
individual holding a credential, or that any of the records he
13
sought were related to his aviation worker credential. See Exs.
A, C, E, ECF No. 9-3. “[I]t is the requester’s responsibility to
frame requests with sufficient particularity.” Hall & Assoc. v.
EPA, 83 F. Supp. 3d 92, 101 (D.D.C. 2015). TSA therefore did not
err in determining that records related to Mr. Magassa’s
aviation worker credential were outside the scope of his
request. Mr. Magassa may submit another FOIA request for his
aviation worker credentials specifically, and indeed, he has
already done so. See Def.’s Reply, ECF No. 14 at 5. 1 Second, the
Court finds TSA’s critique of Mr. Magassa’s initial FOIA
requests to be irrelevant. See Def.’s MSJ, ECF No. 9-2 at 11.
Mr. Magassa’s first two requests were, at TSA’s behest,
clarified into a final request, which provides the basis for
this action. The Court does not agree that “[s]ummary judgment
for TSA on Plaintiff’s initial requests of September 18, 2017,
and October 13, 2017, is proper,” because it is the final
version of the request that is relevant. Id.Turning to the adequacy of TSA’s search for the final
request, TSA explains through affidavits where it searched for
1 TSA also brings to the Court’s attention that Mr. Magassa’s
airline worker credential has been reinstated and he was able to
gain employment with an airline (in a separate lawsuit he
filed). See Magassa v. Wolf, Case No. 2:19-cv-02036-RSM (W.D.
Wash. 2019); Compl., ECF No. 1 ¶¶ 144-145.
14
records, why it searched there, who led the search process, why
those specific individuals were chosen to lead the search
process, and what the search process entailed. See Def.’s MSJ,
ECF No. 9-2 at 15-20; see generally Miller Decl., ECF No. 9-3.
Mr. Magassa does not mount any specific challenges to this
methodology. See generally Pl.’s Opp’n, ECF No. 10. The Court
concludes that TSA has established the reasonableness of its
search by providing “reasonably detailed, nonconclusory
affidavits describing its efforts.” Baker, 473 F.3d at 318.
Accordingly, the Court GRANTS TSA’s Motion for Summary Judgment
as to the adequacy of the search, and DENIES Mr. Magassa’s
request for an order requiring TSA to demonstrate that it
employed search methods reasonably likely to lead to the
discovery of responsive records, and for an order for TSA to
conduct an adequate search.
C. TSA Withheld Only Exempt Information
1. TSA’s Withholdings Under Exemption 3 Were Proper
TSA invokes FOIA Exemption 3 to withhold the information it
has designated as SSI from disclosure, see Def.’s MSJ, ECF No.
9-2 at 20; pursuant to 49 U.S.C. § 114(r)(1)(C), on the grounds
that “public release of the information . . . could enable
terrorists to evade or circumvent transportation security
screening procedures,” Declaration of Douglas E. Blair (“Blair
Decl.”), ECF No. 9-4 ¶ 13. Exemption 3 allows an agency to
15
withhold or redact records that are “specifically exempted from
disclosure by statute ... provided that such statute (A)
requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B)
establishes particular criteria for withholding or refers to
particular types of matters to be withheld.” 5 U.S.C. §
552(b)(3).
Pursuant to 49 U.S.C. § 114(r), TSA is required to
implement regulations prohibiting disclosure of information
“[n]otwithstanding section 552 of title 5 [i.e., FOIA]” provided
TSA’s Administrator “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.” 49 U.S.C. § 114(r). Accordingly, TSA
promulgated implementing regulations that expressly prohibit the
disclosure of certain categories of SSI. See generally 49 C.F.R.
part 1520.
The Supreme Court has stated that Section 114(r)(1) allows
the TSA to deny FOIA requests and that the prohibitions set
forth in Section 114(r)(1) “currently override FOIA.” DHS v.
MacLean, 574 U.S. 383, 135 S. Ct. 913, 923 (2015). As this Court
has previously concluded, and as persuasive authority holds,
Section 114(r) qualifies as an Exemption 3 withholding statute.
16
Skurow v. U.S. Dept. of Homeland Sec., 892 F. Supp. 2d 319, 329
(D.D.C. 2012); see also Elec. Privacy Info. Ctr. v. DHS, 928 F.
Supp. 2d 139, 146 (D.D.C. 2013), appeal dismissed (Jan. 21,
2014) (concluding Section 114(r) qualifies as an Exemption 3
withholding statute); Tooley v. Bush, No. CIV.A. 06-306 (CKK),
2006 WL 3783142, at *20 (D.D.C. Dec. 21, 2006), aff’d on other
grounds on rehearing, 586 F.3d 1006 (D.C. Cir. 2009) (same);
Elec. Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 109-10
(D.D.C. 2005) (same).
Mr. Magassa does not challenge whether Section 114(r)
qualifies as an exemption holding statute. See generally Pl.’s
Opp’n, ECF No. 10. Nor does he dispute that the Court lacks
jurisdiction to review TSA’s decision to designate certain
material as SSI. See generally id. Courts of Appeals have
“exclusive jurisdiction to affirm, amend, modify, or set aside”
the final orders issued by TSA referenced in § 46110(a),
including SSI designations made pursuant to § 114(r). 49 U.S.C.
§ 46110(c). As such, district courts, including those
adjudicating FOIA cases, may not review determinations of TSA to
designate material as SSI. Skurow, 892 F. Supp. 2d at 331.
Accordingly, the scope of this Court’s review is to
determine whether the material withheld, as described by TSA,
fits within the scope of Section 114(r). Morley v. CIA, 508 F.3d
1108, 1126 (D.C. Cir. 2007) (quoting Ass'n of Ret. R.R. Workers
17
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).
In describing the withheld material, TSA states that
the 182 pages withheld in full cover material
concerning procedures for screening of persons
and their property, including selection
criteria and any comments, instructions, and
implementing guidance pertaining thereto, and
information that may be used to determine
Plaintiff’s status on a watch list utilized by
TSA for passenger pre-board screening (i.e.,
whether Plaintiff was or was not on such a
list), which identifies information and
sources of information used by TSA’s automated
passenger prescreening system, the Secure
Flight Program.
Blair Decl., ECF No. 9-4 ¶ 12(a). TSA states that this
information is SSI pursuant to 49 C.F.R. §§ 1520.5(b)(9)(i) and
(ii) “because it is used by a passenger screening system and/or
concerns screening procedures, including selection criteria and
any comments, instructions, and implementing guidance pertaining
thereto.” Id.TSA further describes the redacted material as follows:
The redactions to the 22 pages withheld in
part cover material concerning the type of
suggested letter to be issued in response to
Plaintiff’s redress inquiry, information
related to components that conducted analyses
related to Plaintiff’s redress inquiry, and
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other information that may also be used to
determine Plaintiff’s status on a watch list
utilized by TSA for passenger pre-board
screening (i.e. whether Plaintiff was or was
not on such a list). This material identifies
information and sources of information used by
TSA’s automated passenger prescreening
system, the Secure Flight Program.
Id. ¶ 12(b). TSA states that this information is SSI pursuant to
its implementing regulations at 49 C.F.R. § 1520.5(b)(9)(ii)
“because it is used by a passenger screening system.” Id.Mr. Magassa argues that TSA has merely recited statutory
standards and relied on broad categories, thereby failing in its
obligation to provide a relatively detailed justification
explanation for its Exemption 3 withholdings. See Pl.’s XMSJ,
ECF No. 11-2 at 14-15, 18; Pl.’s Opp’n, ECF No. 10 at 15.
The Court disagrees. Again, the scope of the Court’s review is
limited to whether the material withheld, as described by TSA,
fits within the scope of Section 114(r). With regard to the 182
pages withheld in full, TSA provided a detailed description of
the withheld material. See supra. In summary, it consists of
procedures and implementing guidance for screening persons and
property, information used to determine whether Mr. Magassa is
on a watch list, and the sources of information by the Secure
Flight Program. The description fits squarely within the scope
of Section 114(r) because release of such procedures,
implementing regulations, and the specified information would
19
“be detrimental to the security of transportation.” 49 U.S.C. §
114(r)(C). Furthermore, the information is SSI pursuant to TSA’s
implementing regulations “because it is used by a passenger
screening system and/or concerns screening procedures, including
selection criteria and any comments, instructions, and
implementing guidance pertaining thereto.” Blair Decl., ECF No.
9-4 ¶ 12 (citing 49 C.F.R. §§ 1520.5(b)(9)(i) and (ii)).
Similarly, with regard to the redactions to the 22 pages
withheld in part, TSA provided a detailed description of the
withheld material. In summary, it consists of some of the same
information withheld in the fully withheld documents plus
additional internal guidance for responding to Mr. Magassa’s
redress petition and internal analyses. Again, the description
fits squarely within the scope of Section 114(r) because release
of such procedures, implementing regulations, and the specified
information would “be detrimental to the security of
transportation.” 49 U.S.C. § 114(r)(C). Furthermore, the
information is SSI pursuant to TSA’s implementing regulations
“because it is used by a passenger screening system.” Blair
Decl., ECF No. 9-4 ¶ 12 (citing 49 C.F.R. §§ 1520.5(b)(9)(ii)).
TSA has employed a categorical approach to its redactions and
withholdings.
A categorical approach to redactions or
withholdings is permissible under FOIA when
“the FOIA litigation process threatens to
20
reveal ‘the very information the agency hopes
to protect.’” Citizens for Responsibility
& Ethics in Washington v. U.S. Dep't of
Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014)
(“CREW ”) (quoting ACLU v. CIA, 710 F.3d 422,
432 (D.C. Cir. 2013)). The government may
justify its withholdings and redactions
“category-of-document by category-of-
document, so long as its definitions of
relevant categories are sufficiently distinct
to allow a court to determine whether specific
claimed exemptions are properly applied.” Id.(quoting Gallant v. NLRB, 26 F.3d 168, 173
(D.C. Cir. 1994)). The range of circumstances
included in the category must
“characteristically support [ ] an inference
that the statutory requirements for exemption
are satisfied.” Id. at 1088–89 (quoting Nation
Magazine v. U.S. Customs Serv., 71 F.3d 885,
893 (D.C. Cir. 1995)).
Prison Legal News v. Samuels, 787 F.3d 1142, 1149-50 (D.C. Cir.
2015).
Here, the two categories described in the Blair Declaration
support the application of Exemption 3 for the reasons explained
supra. Furthermore, the Blair Declaration attests that “[t]he
redacted and withheld information cannot be described with more
particularity than the descriptions provided [] without
revealing SSI.” Blair Decl., ECF No. 9-4 ¶ 12 n.3. This fits
squarely within the permissible reasons for using a categorial
approach. See CREW, 746 F.3d at 1088.
Mr. Magassa’s second argument is that to the extent TSA
elaborated on why the release of the information would be
detrimental to transportation security, its rationale is without
21
merit as applied to him. Pl.’s Opp’n, ECF No. 10 at 12-14.
However, the implementing regulations define security screening
procedures, as well as information and sources of information
used by a passenger or property screening program or system, as
SSI under 49 C.F.R. §§ 1520.5(b)(9)(i) and (ii). Even though the
information is about Mr. Magassa himself, as the government
points out, “SSI regulation sets out in detail those individuals
who may and who may not access SSI,” and Mr. Magassa does not
explain why he is entitled to that information. Def.’s Reply,
ECF No. 14 at 8. The cases Mr. Magassa cites in other districts
in support of his argument do not address the narrow question of
SSI in this context, but rather focus on constitutional
challenges, unlike the case at hand. See Pl.’s Opp’n, ECF No. 10
at 13-14. As explained supra, the Court’s role in the present
context is limited to determining “whether the material
withheld, as described by TSA, fits within the scope of Section
114(r).” Skurow, 892 F. Supp. 2d at 330-31.
2. TSA Properly Issued A “Glomar Response” Subject To
Exemption 3
TSA issued a Glomar response “with respect to its searches
of certain locations that principally contain information
bearing on whether an individual’s name appears on a watch list,
and any potentially responsive documents that might have been
returned by such searches . . ..” Def.’s MSJ, ECF No. 9-2, ECF
22
No. 9-2 at 26. TSA argues that the results of searches in
particular places cannot be publicly disclosed, and the Glomar
response provided to Plaintiff was appropriate, because
“acknowledging the existence or nonexistence of records
regarding Plaintiff in these locations would reveal whether he
was or was not on a watch list utilized by TSA for passenger
pre-board screening.” Id. at 26; Def.’s Reply, ECF No. 15 at 10.
Mr. Magassa argues that “[TSA’s] Glomar response is not
applicable here, because many of the referenced documents have
already been produced in other contexts.” Pl.’s XMSJ, ECF No.
11-2 at 20. TSA replies that “[t]his argument is misplaced, as
the purported documents which TSA previously confirmed existed
to [Mr. Magassa] pertain to his aviation worker credential, and,
as noted above, TSA did not search for such documents because
they were outside of the scope of Plaintiff’s request.” Def.’s
Reply, ECF No. 15 at 11.
A Glomar response is appropriate “only when confirming or
denying the existence of records would itself ‘cause harm
cognizable under a FOIA exception.’” ACLU v. CIA, 710 F.3d 422,
426 (D.C. Cir. 2013) (quoting Roth v. U.S. Dep’t of Justice, 642
F.3d 1161, 1178 (D.C. Cir. 2011)). “When addressing an agency’s
Glomar response, courts must accord ‘substantial weight’ to
agency determinations.” Sea Shepherd Conservation Soc’y v. IRS,
208 F. Supp. 3d 58, 89 (D.D.C. 2016) (citing Gardels v. CIA, 689
23
F.2d 1100, 1104 (D.C. Cir. 1982)). The agency must “tether its
refusal to respond to one of the nine FOIA Exemptions.”
Montgomery v. IRS, No. 17-918, 2019 WL 2930038, at *2 (D.D.C.
July 8, 2019) (citation omitted). “Ultimately, an agency’s
justification for invoking a FOIA exemption is sufficient if it
appears ‘logical’ or ‘plausible.’” Wolf, 473 F.3d at 374-75(quoting Gardels, 689 F.2d at 1105).
“To overcome a Glomar response, the plaintiff[s] can either
challenge the agency’s position that disclosing the existence of
a record will cause harm under the FOIA exemption asserted by
the agency, or the plaintiff[s] can show that the agency has
‘officially acknowledged’ the existence of records that are the
subject of the request.” James Madison Project, 320 F. Supp. 3d
at 148.
Mr. Magassa selected the first route to challenge the
Glomar response, asserting that “many of the referenced
documents have already been produced in other contexts.” Pl.’s
XMSJ, ECF No. 11-2 at 20; see also Compl., ECF No. 1 ¶ 15
(“[U]ndersigned counsel previously received numerous TSA
documents through other administrative avenues that were not
provided in this response, including but not limited to the
determination that Mr. Magassa does not meet the eligibility
requirements to hold airport-approved and/or airport-issued
media”). However, and as TSA argues, Mr. Magassa’s argument is
24
misplaced because the “purported” documents TSA previously
confirmed existed did not pertain to the subject of the Glomar
response – specifically that TSA cannot confirm or deny whether
Mr. Magassa is on a watch list, but they pertain to Mr.
Magassa’s aviation worker credential and are therefore outside
the scope of the FOIA request at issue. ECF No. 14 at 11. Mr.
Magassa does not meaningfully respond to TSA’s argument, but
merely reiterates his opening arguments. See Pl.’s Reply, ECF
No. 18 at 10.
Here, TSA argues that FOIA Exemption 3 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 concludes
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 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
25
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 concludes that TSA
properly responded to Mr. Magassa’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.
For these reasons, the Court GRANTS TSA’s Motion for
Summary Judgment as to Exemption 3. The Court DENIES Mr.
Magassa’s request for injunctive relief by way of a Court Order
enjoining TSA from withholding any and all non-exempt records,
see Pl.’s XMSJ, ECF No. 11-2 at 14; and DENIES Mr. Magassa’s
request for a declaration that he is entitled to disclosure of
the records he requests, see id. at 17.
3. TSA Properly Withheld Information Pursuant To
Exemption 6
TSA argues that its Exemption 6 withholdings of the names
of individuals involved in processing Plaintiff’s redress
inquiry, and the name of a U.S. Customs and Border Patrol
(“CBP”) agent, are appropriate because “the privacy interests
in this information was [sic] substantial and, considering the
sensitive work TSA redress employees and CBP officers conduct
related to, respectively, inquiries by individuals who allege
travel-related difficulties and seek removal from watchlists,
26
and the enforcement of federal laws, that [sic] the release of
such information—tied directly to TSA and CBP employees—could
subject them to harassment and retaliation.” Def.’s MSJ, ECF No.
9-2 at 28. Mr. Magassa responds that government employees have
no legitimate privacy right to the redaction of their names. See
Pl.’s XMSJ, ECF No. 11-2 at 16.
Exemption 6 exempts from disclosure “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). The Court must first determine whether the records at
issues are “personnel, medical, or similar files,” and then
determine “whether their disclosure would ‘constitute a clearly
unwarranted invasion of personal privacy,’ which requires
balancing ‘the privacy interest that would be compromised by
disclosure against any public interest in the requested
information.’” Smith v. Central Intelligence Agency, 246 F.
Supp. 3d 117, 128 (D.D.C. 2017) (quoting Multi Ag Media LLC v.
Dep’t of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008)). “The
Supreme Court has stated that the term ‘similar files’ is to be
construed broadly and includes any ‘disclosure of information
which applies to a particular individual.’” Id. (quoting U.S.
Dep’t of State v. Wash. Post Co., 456 U.S. 595, 600 (1982)).
“[U]nless a FOIA request advances ‘the citizens’ right to be
informed about what their government is up to,’ no relevant
27
public interest is at issue.” Nat’l Ass’n of Home Bldgs v.
Norton, 309 F.3d 26, 34 (D.C. Cir. 2002) (quoting U.S. Dep’t of
Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749,
773 (1989)).
Here, the Court agrees with TSA that there are privacy
interests involved for the employees whose names have been
withheld, particularly given the nature of the underlying
material. Against this privacy interest, the Court is unable to
identify any public interest in the disclosure of identifying
information. As TSA argues, “the release of these individuals’
names and identifying information would do nothing to shed light
on the operations and activities of the federal government.”
Def.’s MSJ, ECF No. 9-2 at 23. Mr. Magassa does not engage with
TSA’s detailed argument, or with the substantial caselaw TSA
presents in support, instead only stating briefly that
government employees have no legitimate privacy right to
redaction of their names and citing a decades old case from a
different District. See Pl.’s XMSJ, ECF No. 11-2 at 16. The
Court concludes that TSA validly withheld names under Exemption
6. Accordingly, TSA’s Motion for Summary Judgment as to the
information withheld pursuant to FOIA Exemption 6 is GRANTED.
D. TSA Has Satisfied Its Segregability Obligations
Under FOIA, “even if [the] agency establishes an exemption,
it must nonetheless disclose all reasonably segregable,
28
nonexempt portions of the requested record(s).” Roth v. U.S.
Dept. of Justice, 642 F. 3d 1161, 1167 (D.C. Cir. 2001)
(internal quotation marks and citation omitted). “[I]t 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.” Wilderness Soc'y v. U.S.
Dep't of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004) (quoting
Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F. 2d 242,
260 (D.C. Cir. 1977)). Thus, an agency must provide “a detailed
justification and not just conclusory statements to demonstrate
that all reasonably segregable information has been released.”
Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010)
(internal quotation marks and citation omitted). However,
“[a]gencies are entitled to a presumption that they complied
with the obligation to disclose reasonably segregable material,”
which must be overcome by some “quantum of evidence” from the
requester. Sussman v. U.S. Marshals Serv., 494 F. 3d 1106, 1117
(D.C. Cir. 2007).
With regard to the redactions to the 22 pages withheld in
part and the 182 pages withheld in full pursuant to Exemption 3,
the Blair Declaration attests that “I have determined that all
of the redacted information described above is in fact SSI under
49 C.F.R. §§ 1520.5(b)(9)(i) and/or (ii).” Blair Decl., ECF No.
9-4 ¶ 13. The Blair Declaration further explains “that the SSI
29
Program procedures that call for the public release of as much
information as possible without compromising transportation
security and require redaction of the smallest possible portion
of the record necessary to protect SSI were followed and that
the redactions were necessary to protect SSI.” Id. ¶ 10.
With regard to the 3 pages of documents withheld in part
pursuant to Exemption 6, the Miller Declaration attests that “I
have also evaluated the three (3) pages of responsive records
withheld in part pursuant to Exemption 6. Those redactions cover
names of individuals that I have determined were properly
redacted in whole, as release of any part of those names could
result in the privacy harms identified above.” Miller Decl. ECF
No. 9-3 ¶ 44.
Mr. Magassa asserts generally that TSA’s “Declarations are
insufficient, because they do not ‘show with reasonable
specificity why the documents cannot be further segregated.’”
XMSJ, ECF No. 11-2 at 16 (quoting Hertzberg v. Veneman, 273 F.
Supp. 2d 67, 90-91 (D.D.C 2003)); Pl.’s reply, ECF No. 18 at 9.
He further contends that TSA’s explanations fail to explain “in
detail which portions of the documents are disclosable and which
are all allegedly exempt.” XMSJ, ECF No. 11-2 at 17. The Court
disagrees and concludes that TSA has satisfied its burden
regarding segregable information.
30
As an initial matter, Mr. Magassa has failed to point to
any “quantum of evidence” to overcome the presumption that TSA
complied with its obligation to disclose reasonably segregable
material. Sussman 494 F. 3d at 1117. And rather than identifying
any specific problems with TSA’s declarations, Mr. Magassa
simply points to the applicable legal standard. With regard to
the Exemption 3 withholdings, the Blair Declaration explains in
detail why the redacted and withheld information is SSI and
states that, consistent with its SSI Program procedures,
additional information could not be released without harming
transportation security. With regard to the Exemption 6
redactions, the Miller Declaration attests that the only
redactions made pursuant to Exemption 6 were the names of
individuals. Based on these explanations and Mr. Magassa’s
failure to point to any quantum of evidence, the Court concludes
that TSA has satisfied its segregability obligations. See
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2007)
(quoting Mead Data Cent., 566 F.2d at 251) (The agency has
“provide[d] [] relatively detailed justification[s],
specifically identif[ying] the reasons why [] particular
exemption[s] [are] relevant [] with the particular part[s] of []
withheld document[s] to which they apply.”).
31
IV. Conclusion
For the foregoing reasons, the Court GRANTS TSA’s Motion
for Summary Judgment, see ECF No. 9; and DENIES Mr. Magassa’s
Motion for Summary Judgment, see ECF No. 11. An appropriate
Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 31, 2022
32