Magassa v. TSA, No. 22-5155, 2023 WL 8826564 (D.C. Cir. Dec. 21, 2023) (per curiam)

Magassa v. TSA, No. 22-5155, 2023 WL 8826564 (D.C. Cir. Dec. 21, 2023) (per curiam)

Re:  Request for records concerning requester

Disposition:  Affirming district court’s grant of government’s motion for summary judgment

• Exemption 3:  The Court of Appeals for the District of Columbia Circuit relates that “[b]ased on Exemption 3, TSA withheld 182 pages and redacted 20 pages of responsive documents as ‘specifically exempted from disclosure by [another] statute.’”  “The parties agree that the Homeland Security Act, 49 U.S.C. § 114(r), is a proper Exemption 3 withholding statute.”  The court finds that “[t]he information withheld by TSA fits within its scope.”  “Section 114(r) exempts information from disclosure which, if made public, would be ‘detrimental to the security of transportation.’”  “In affidavits, TSA explained that the information at issue is ‘used by a passenger screening system and/or concerns screening procedures, including selection criteria and any comments, instructions, and implementing guidance pertaining thereto.’”  “If this type of information about security screening processes were made public, TSA states, bad actors and ‘terrorists [could better] evade or circumvent transportation security screening procedures’ and those planning attacks could ‘identify operatives who have or have not previously been identified as a threat.’”  “[The requester] contends that this explanation is too vague and general to identify any concrete risk of harm to transportation security.”  “Especially in national security contexts, agency affidavits ‘will always be speculative to some extent, in the sense that [they] describe[ ] a potential future harm.’”  “The court affords TSA’s expert assessment of these contingent harms ‘great deference,’ . . . and will not ‘substitute [its] own assessment for the Executive’s predictive judgments on such matters, all of which are delicate, complex, and involve large elements of prophecy.’”  “TSA’s explanation here is reasonable.”

• Exemption 6:  The Court of Appeals for the District of Columbia Circuit relates that “[o]n three pages, TSA redacted the names of certain agents who were ‘responsible for processing [the requester’s] redress inquiry.’”  The court finds that “[it] has upheld the redaction of the names of government employees whose sensitive positions might subject them to a heightened risk of harassment or harm.”  “[TSA’s] explanation that the nature of these specific agents’ work, which involves screening potentially violent and dangerous people, including those on national security Watch Lists, ‘plausibl[y],’ . . . identifies a concrete and heightened risk of retaliation sufficient to establish a non de minimis privacy interest.”  “Nor is there a strong public interest in the disclosure of the names.”  “The relevant inquiry focuses only on ‘the extent to which disclosure would serve’ FOIA’s raison d’être of ‘contribut[ing] significantly to public understanding of the operations or activities of the government.’”  “To the extent that these documents shed light on TSA’s operations, it does not follow that the incremental disclosure of the names of specific employees conducting sensitive screening would further such a transparency interest.”

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  The Court of Appeals for the District of Columbia Circuit relates that “[the requester] contends that TSA failed to conduct a sufficiently wide-ranging search for potentially responsive documents . . . .”  “TSA had two of its national program branches and its local offices at the five airports where [the requester] indicated he had been questioned run searches based on [the requester’s] name across the agency’s email, share-drive, screening system, and database systems.”  The court finds that “[t]his suffices to demonstrate that TSA conducted ‘a good faith’ search using ‘reasonabl[e]’ methods.”  “[The requester] maintains that the search was insufficiently exhaustive because it was not aimed at identifying a separate category of records related to [the requester’s] status as an airport employee credential holder.”  “But despite clarifying the request’s scope in several emails with TSA, [the requester’s] counsel never referenced these records or [the requester’s] status as an airport employee badge holder.”  “Agencies are ‘not obliged to look beyond the four corners of [a FOIA] request for leads to the location of responsive documents,’ . . . nor search for documents ‘not reasonably suggest[ed]’ by a request.”

• Litigation Considerations, “Reasonably Segregable” Requirements:  The Court of Appeals for the District of Columbia Circuit holds that “TSA also met its segregability burden.”  “For the Exemption 3 redactions and withholdings, the affidavit of TSA’s [Sensitive Security Information (“SSI”)] program chief explains that he confirmed that all the withheld and redacted information constituted statutorily exempt SSI and that ‘the smallest possible portion of the record possible’ was redacted.”  “For the Exemption 6 redactions, the affidavit of TSA’s FOIA officer indicates that she redacted only the specific agent names.”  “Absent contrary evidence, TSA is therefore entitled to the presumption of compliance with its segregability obligations.”

• Litigation Considerations, In Camera Inspection:  The Court of Appeals for the District of Columbia Circuit holds that “[n]or was the district court required to conduct in camera review before making a segregability finding, as in camera review is generally at the district court’s discretion and is neither ‘necessary nor appropriate’ when, as here, an agency has met its burden through public affidavits.”  “It is especially disfavored in national security contexts.”

• Litigation Considerations, Exhaustion of Administrative Remedies:  The Court of Appeals for the District of Columbia Circuit relates that “[the requester] also challenges TSA’s Glomar response, . . . refusing to confirm or deny the existence of records that might indicate [the requester’s] Watch List status.”  “But [the court finds that] [the requester] failed to exhaust these objections in his administrative appeal.”  “Even though TSA’s initial response included express Glomar text, [the requester’s] administrative appeal does not raise it or the Watch List records.”  “A failure to exhaust the administrative appeals process precludes judicial review in FOIA cases.”  “[The requester’s] failure to put TSA on notice of his objections to the Glomar response, or to give the agency an opportunity to respond, precludes any belated judicial review of those contentions.”