Sai v. TSA, 315 F. Supp. 3d 218 (D.D.C. 2018) (Moss, J.)

Sai v. TSA, 315 F. Supp. 3d 218 (D.D.C. 2018) (Moss, J.)

Re:  Requests for records concerning various surveillance and incident reports, as well as general policies and procedures

Disposition:  Granting in part and denying in part defendant's motion for summary judgment

• Procedural Requirements, Responding to FOIA Requests:  The court finds that "many of [plaintiff's] objections regarding the format of responsive records are meritless."  Specifically, the court rejects plaintiff's assertions that this concept applies to litigation related documents and finds that "E-FOIA . . . applies only to records released pursuant to FOIA; it has no bearing on the form or format of declarations, indices, and exhibits filed with the Court, or served on the opposing party, in the course of litigating a FOIA suit."  However, the court does find that "TSA has failed to explain why it could not 'readily' have released the records as distinct PDFs or in 'fully digital,' non-'rasterized' 'text PDFs[,]'" "TSA has failed to explain why it could not have 'readily' released the records in their original Word, Excel, electronic PDF, or like format[,]" and "the agency has failed to explain why it could not have released legible copies [of certain pages]."
   
• Litigation Considerations, Adequacy of Search:  First, the court finds that "[defendant's] declaration must be accorded a presumption of good faith . . . and it demonstrates that much of [plaintiff's] concern about the scope of the TSA's search is incorrect or overstated."  "Despite [plaintiff's] assertions to the contrary, the uncontroverted record demonstrates that relevant portions of the Logan, LaGuardia, O’Hare, and San Francisco Airport field offices were searched, along with relevant portions of the Office of Security Operations, Office of Civil Rights and Liberties, and the TSA Contact Center."  However, "[t]he Court is not convinced on the current record, however, that the TSA has carried its burden with respect to four offices that Sai contends were not, but should have been, searched[]" because "TSA offers no meaningful explanation for why it did not search [four locations]."  Second, the court agrees "that the TSA has failed to demonstrate that it searched for records covering the relevant time frame."  The court explains that "TSA has not submitted evidence sufficient for the Court to determine when it commenced each of the relevant searches."  Third, the court finds that "[defendant's] declaration provides an accounting of the terms used for the majority of the offices searched."  However, concerning certain searches, defendant "fails to explain whether key words were used and if so which key words were used to search for responsive documents."  It also "does not explain which databases or locations were searched within those offices."
   
• Procedural Requirements, Searching for Responsive Records:  The court holds that "it is difficult to imagine how the TSA could have complied with [plaintiff's] request for all 'policy and/or procedures documents,' past and present . . . short of searching virtually every file at the agency and then guessing what [plaintiff] actually hoped to receive."  "TSA, moreover, provided [plaintiff] with ample opportunity to refine the request."  Finally, regarding defendant's attempt to conduct some search, the court finds that "[h]aving failed to frame the request with sufficient specificity, [plaintiff] cannot now fault the TSA for conducting an onerous, but not exhaustive, search based on its best assessment of what records were most important to [plaintiff]."
   
• Exemption 3:  The court rejects plaintiff's "argu[ment] that the TSA acted 'without authority' in designating certain records as SSI" and finds that "the Court [cannot] perceive any textual or other reason to accept [plaintiff's] invitation to do so."  The court relates that 49 U.S.C. § 114(r) creates such a specific, statutory exemption to disclosure."  "It provides, in relevant part, that notwithstanding FOIA, the TSA 'shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security under authority of the Aviation and Transportation Security Act, . . . or under chapter 449 of [title 49 of the U.S. Code] if the [TSA] decides that disclosing the information would (A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; or (C) be detrimental to the security of transportation.'"  "The SSI implementing regulations, in turn, specify a number of categories of information and records constituting SSI,"  The court therefore rejects plaintiff's argument.  However, "the Court cannot determine with any certainty whether the TSA released information to the ACLU prior to responding to [plaintiff's] request, while withholding that same information from Sai."  The court explains that, "[u]ltimately, [plaintiff] will bear the burden of demonstrating that the TSA officially released information to the ACLU and, then, later withheld that same information from [plaintiff] based on Exemption 3."  "To prevail on summary judgment, however, the TSA must demonstrate that it is entitled to prevail as a matter of law."  "Because the current record is incomplete on this issue, the Court must defer resolving it."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "[defendant's] declaration offers explanations for each of the TSA's invocations of the deliberative process privilege."  "[Defendant] attests that, in responding to [one] Request, the agency withheld information on two pages that was both predecisional – the records 'were generated before the agency had reached a decision regarding' how to respond to 'complaints alleging a disability-related civil rights violation' – and deliberative – the records 'reflect the open consultative process between program offices' considering 'how to respond' to the complaints."  However, "[o]n the present record, the Court cannot determine whether or how the TSA applied [the] test [of "whether disclosure of the withheld information would 'reveal an agency's or official's mode of formulating or exercising policy-implicating judgment'"] to the information that it gathered in responding to the [one] Request."  Finally, regarding plaintiff's argument, the court finds that "[plaintiff] is correct that the TSA redacted slightly more information on three pages of materials than it did on duplicate copies of those same materials."  "The Court has reviewed those minor inconsistencies and concludes that they do not demonstrate a lack of good faith or a failure of the TSA to release reasonably segregable materials; rather, they reflect nothing more than modest differences regarding the precise line between deliberative and background material."  "[Plaintiff] has already received the less-substantially redacted versions, moreover, and thus has no basis to complain about the more substantial redactions made to duplicate copies."
   
• Exemption 6 & 7(C):  The court first rejects plaintiff's argument and finds that "[plaintiff's] purported knowledge of the redacted information does not call into question the TSA's withholding of the information pursuant to Exemption ."  Next, "[t]he Court . . . concludes that the TSA properly redacted the identifying information for the local law enforcement officials."  "[T]he Court cannot discern any significant public interest would be advanced by exposing local law enforcement officers to that potential for 'annoyance or harassment.'"  "Although assessed under the Exemption 6 standard, the Court reaches a similar conclusion with respect to the 'personal information' regarding two TSA employees that the agency redacted from the responsive records."  "Such information 'reveals little or nothing about an agency's own conduct' and therefore 'does not further the statutory purpose' and 'the public has no cognizable interest in [its] release.'"  "The TSA has not, however, met its burden of showing a 'substantial privacy interest' with respect to other identifying and contact information withheld pursuant to Exemption 6."  The court explains that "the TSA has offered little more than conclusory assertions applicable to each redaction, without regard to the position held by the relevant employee, the role played by that employee, the substance of the underlying agency action, or the nature of the agency record at issue."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court . . . has reviewed the various Vaughn indices that the TSA has submitted in support of its motion . . . and those indices demonstrate that the agency redacted the exempt portions of otherwise responsive records where possible."
   
• Litigation Considerations, Discovery:  "The Court . . . concludes that Sai has failed to rebut the presumption of good faith applicable to the TSA's explication of its search efforts and has failed to show that discovery is warranted in this FOIA/Privacy Act action."