[384 F. Supp. 2d 100; 2005 U.S. Dist. LEXIS 14779]
[This is an unpublished decision]
ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY et al., Defendants.
Civil Action No. 04-0944 (RMU), Document No. 21
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
July 25, 2005, Decided
COUNSEL: For ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff: Marcia Clare
Hofmann, ELECTRONIC PRIVACY INFORMATION CENTER, Washington, DC; David L. Sobel,
ELECTRONIC PRIVACY INFORMATION CENTER, Washington, DC.
For DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF JUSTICE,
Defendants: Nicholas J. Patterson, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
JUDGES: RICARDO M. URBINA, United States District Judge.
OPINION BY: RICARDO M. URBINA
OPINION
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DENYING THE PLAINTIFF'S REQUEST FOR IN CAMERA INSPECTION OF
DOCUMENTS
I. INTRODUCTION
The plaintiff, the Electronic Privacy Information Center ("EPIC")
brings this action pursuant to the Freedom of Information Act
("FOIA"), 5 U.S.C. § 522 et seq., to compel the defendants,
the Department of Homeland Security ("DHS"), the Transportation
Security Administration ("TSA"), and the Department of Justice ("DOJ"), to disclose various
documents concerning the government's attempts to acquire passenger data from
airlines. This matter is before the court on the defendants' motion for summary
judgment and on the plaintiff's request for an in camera inspection of
withheld documents. Because the DOJ search for documents was adequate and
because the court does not have enough information to decide whether some
documents are properly withheld pursuant to the FOIA exemptions, the court
grants in part and denies in part the defendants' motion for summary judgment.
Because in camera review of withheld documents is not necessary at this time, the court denies the
plaintiff's request for an in camera inspection. The court also orders
the DHS and the TSA to submit a revised Vaughn index 1
consistent with this memorandum opinion.
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1 A Vaughn index is a document that describes withheld or
redacted documents and explains why each withheld record is exempt from
disclosure. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820,
826-28 (D.C. Cir. 1973).
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II. BACKGROUND
A. Factual Background
After the September 11, 2001 terrorist attacks, the TSA, an agency within the
DHS, began developing a new system, the Computer Assisted Passenger
Prescreening System ("CAPPS II"), to confirm passenger identities and
identify terrorists or individuals with terrorist connections. Pl.'s Opp'n to
Mot. For Summ. J. ("Pl.'s Opp'n") at 2. While CAPPS II was still in
development, the media raised concerns about TSA's "efforts to obtain
detailed passenger data from airlines." Id. at 3. For example,
Wired News reported that in September 2002, TSA facilitated the transfer of
five million passenger itineraries from JetBlue Airways to a contractor working
for the Department of Defense for testing of "a Pentagon project unrelated
to airline security." Id. at 4 (citing Ryan Singel, JetBlue Shared
Passenger Data, WIRED NEWS, Sept. 18, 2003). This media coverage provoked
several class action lawsuits against JetBlue, as well as internal
investigations by the DHS Privacy Office and Army Inspector General. The DHS
Privacy Office's final report on the investigation concluded that the TSA had
indeed assisted the Department of Defense in obtaining airline passenger
information from JetBlue. Id. The Privacy Office also found that, although the
TSA had also sought and received offers of passenger data from other airlines
for the purpose of testing CAPPS II, those airlines later rescinded their
offers, and CAPPS II was never tested with passenger data. Id. at 4-5.
Ultimately, "the report concluded that no TSA employees had violated the
Privacy Act by facilitating transfer of passenger data." Id. at 5.
Since the release of the DHS Privacy Office's report, several airlines publicly
admitted to providing passenger data to companies vying for TSA contracts to
assist in the development of a passenger screening program. Id. at 5. In
June 2004, TSA acknowledged that at least eight airlines have released
passenger data. Id. at 6. The DHS Privacy Office is currently
investigating the circumstances surrounding the data transfers. Id. at 7
(citing Defs.' Mot., Withnell Decl. ("Withnell Decl.") ¶ 55).
B. Procedural Background
The plaintiff is a non-profit organization dedicated to informing the public
about privacy and civil liberties issues. Compl. P 3. In 2003 and 2004, the plaintiff
filed three FOIA requests with the defendants soliciting information about the
transfer of airline passenger information to the government following the
September 11 attacks. The plaintiff now seeks information from the Federal
Bureau of Investigation ("FBI"), 2 the DHS, and the
TSA pertaining to the access and use of air passenger data by government
agencies. Defs.' Mot. for Summ. J. ("Defs.' Mot.") at 2. On June 9,
2004, the plaintiff filed the instant suit, alleging that the FBI's search for
documents was inadequate and that the DHS and the TSA improperly withheld
documents, and requesting an in camera review of the withheld documents.
On January 19, 2005, the defendants filed their motion for summary judgment.
The court now turns to that motion.
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2 The Federal Bureau of Investigation ("FBI") is a part
of the Department of Justice ("DOJ"). See Am. Civil Liberties
Union of Northern Cal. v. Dep't of Justice, 2005 U.S. Dist. LEXIS 3763,
2005 WL 588354, at *3 (N.D.Cal., 2005. Mar 11, 2005).
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III. ANALYSIS
A. Legal Standard for Summary Judgment in a FOIA Case
Summary judgment is appropriate when "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." FED. R. CIV. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265,
106 S. Ct. 2548 (1986); Diamond v. Atwood, 310 U.S. App. D.C. 113, 43
F.3d 1538, 1540 (D.C. Cir. 1995). In deciding whether there is a genuine issue
of material fact, the court is to view the record in the light most favorable
to the party opposing the motion, giving the non-movant the benefit of any
doubt as to the existence of any genuine issue of material fact. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157-59, 26 L. Ed. 2d 142, 90 S. Ct.
1598 (1970). To determine which facts are "material," a court must
look to the substantive law on which each claim rests. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A
"genuine issue" is one whose resolution could establish an element of
a claim or defense and, therefore, affect the outcome of the action. Celotex,
477 U.S. at 322; Anderson, 477 U.S. at 248.
FOIA affords the public access to virtually any federal government record that
FOIA itself does not specifically exempt from disclosure. 5 U.S.C. § 552; Vaughn
v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 823 (D.C. Cir. 1973). FOIA
confers jurisdiction on the federal district courts to order the release of
improperly withheld or redacted information. 5 U.S.C. § 552(a)(4)(B). In a
judicial review of an agency's response to a FOIA request, the defendant agency
has the burden of justifying nondisclosure, and the court must ascertain
whether the agency has sustained its burden of demonstrating that the documents
requested are exempt from disclosure under FOIA. 5 U.S.C. § 552(a)(4)(B); Al-Fayed
v. CIA, 349 U.S. App. D.C. 223, 254 F.3d 300, 305 (D.C. Cir. 2001); Summers
v. Dep't of Justice, 329 U.S. App. D.C. 358, 140 F.3d 1077, 1080 (D.C. Cir.
1998). An agency may meet this burden by providing the requester with a Vaughn
index, adequately describing each withheld document and explaining the
exemption's relevance. Summers, 140 F.3d at 1080; Vaughn, 157
U.S. App. D.C. 340, 484 F.2d 820 (fashioning what is now commonly referred to
as a "Vaughn index").
The court may grant summary judgment to an agency on the basis of its
affidavits if they:
[(a)] describe the documents and the
justifications for nondisclosure with reasonably specific detail, [(b)]
demonstrate that the information withheld logically falls within the claimed
exemption, and [(c)] are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.
Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724,
738 (D.C. Cir. 1981). While an agency's affidavits are presumed to be in good
faith, a plaintiff can rebut this presumption with evidence of bad faith. SafeCard
Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200, 288
U.S. App. D.C. 324
(D.C. Cir. 1991) (citing Ground Saucer Watch, Inc. v. CIA, 224 U.S. App.
D.C. 1, 692 F.2d 770, 771 (D.C. Cir. 1981). But such evidence cannot be
comprised of "purely speculative claims about the existence and
discoverability of other documents." Id.
B. Defendant DOJ's Search was Reasonable
1. Legal Standard for Adequacy of
Agency Search
"A requester dissatisfied with the agency's response that no records have
been found may challenge the adequacy of the agency's search by filing a
lawsuit in the district court after exhausting any administrative
remedies." Valencia-Lucena v. U.S. Coast Guard, 336 U.S. App. D.C.
386, 180 F.3d 321, 326 (D.C. Cir. 1999). To prevail on summary judgment,
"the agency must demonstrate beyond material doubt that its search was
reasonably calculated to uncover all the relevant documents." Nation
Magazine v. U.S. Customs Serv., 315 U.S. App. D.C. 177, 71 F.3d 885, 890
(D.C. Cir. 1995) (internal quotations and citations omitted). An agency must
search for documents in good faith, using methods that are reasonably expected
to produce the requested information. Valencia-Lucena, 180 F.3d at 326
(citing Oglesby v. U.S. Dep't of the Army, 287 U.S. App. D.C. 126, 920
F.2d 57, 68 (D.C. Cir., 1990)). The principal issue is not whether the agency's
search uncovered responsive documents, but whether the search was reasonable. Oglesby,
920 F.2d at 67 n.13 (citing Meeropol v. Meese, 252 U.S. App. D.C. 381,
790 F.2d 942, 952-53 (D.C. Cir. 1986); Moore v. Aspin, 916 F. Supp. 32,
35 (D.D.C. 1996)). The agency need not search every record in the system or
conduct a perfect search. SafeCard Servs., Inc., 926 F.2d at 1201; Meeropol,
790 F.2d at 952, 956. Nor need the agency produce a document where "the
agency is no longer in possession of the document[] for a reason that is not
itself suspect." SafeCard Servs., 926 F.2d at 1201.
Instead, to demonstrate reasonableness, the agency must set forth sufficient
information in affidavits for the court to determine, based on the facts of the
case, that the search was reasonable. Nation Magazine, 71 F.3d at 890
(citing Oglesby, 920 F.2d at 68). Again, while an agency's affidavits
are presumed to be in good faith, a plaintiff can rebut this presumption with
evidence of bad faith. SafeCard Servs., 926 F.2d at 1200. But such
evidence cannot be comprised of "purely speculative claims about the
existence and discoverability of other documents." Id. If the
record raises substantial doubts regarding the agency's efforts,
"particularly in view of well defined requests and positive indications of
overlooked materials," summary judgment is not appropriate. Valencia-Lucena,
180 F.3d at 326 (internal quotations and citations omitted).
2. The DOJ's Search for Responsive Documents
The plaintiff argues that the DOJ's search was inadequate because publicly
available information suggests that the search should have uncovered additional
documents and because the FBI acknowledged that it had acquired passenger data
through a federal grand jury subpoena. The plaintiff relies primarily on a New
York Times article in which an anonymous FBI official states that the Bureau
subpoenaed airline companies for passenger data. Pl.'s Opp'n at 15-16. The
plaintiff argues that the Bureau's failure to locate copies of those subpoenas
or records relating to their issuance shows the inadequacy of its search. Id.
at 16. Additionally, the plaintiff contends that, in light of the testimony of
airline executives before the 9/11 Commission stating that they cooperated with
the FBI after the September 11 attacks, the FBI's failure to locate
"evidence of communications or cooperation between the FBI and the
airlines" calls the sufficiency of the search into question. Id. at
16-17. Finally, the plaintiff suggests that an adequate search would have
yielded information describing how the government acquired the data, not simply
the data itself. Id. at 17.
Contrary to the plaintiff's assertion, the fundamental issue in assessing the
adequacy of the government's search is not whether any responsive documents might
exist, but rather, whether the government's search for responsive materials was
adequate. Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 128
(D.C. Cir. 1982). A search is not unreasonable simply because it fails to
produce all relevant material. Meeropol, 790 F.2d at 952-53. "After
all, particular documents may have been accidentally lost or destroyed, or a
reasonable and thorough search may have missed them." Iturralde v.
Comptroller of Currency, 354 U.S. App. D.C. 230, 315 F.3d 311, 315 (D.C.
Cir. 2003). Moreover, in contrast to the cases in which courts have denied
summary judgment - including the principal case cited by the plaintiff - the
plaintiff has not indicated where else the FBI could or should have searched. 3 See, e.g., Krikorian v. Dep't of State, 299 U.S. App.
D.C. 331, 984 F.2d 461, 468 (D.C. Cir. 1993); Campbell v. DOJ, 164 F.3d
20, 28, 334 U.S. App. D.C. 20 (D.C. Cir. 1998); Valencia-Lucena, 180
F.3d at 327; Iturralde, 315 F.3d at 315; Defenders of Wildlife v.
U.S. Dep't of Agric., 311 F. Supp. 2d 44, 54 (D.D.C. 2004); Elec.
Privacy Information Ctr. v. FBI, C.A. No. 00-19849 (JR) slip. op. at
2 (D.D.C. Mar. 25, 2002). In other words, the plaintiff "has not
demonstrated that the FBI should have proceeded any differently than it
did." Raulerson v. Ashcroft, 271 F. Supp. 2d 17, 22 (D.D.C. 2002).
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3 Indeed, the plaintiff has not offered evidence that documents
were created and maintained by the FBI; it merely infers their existence based
on the statements of airline executives and a newspaper article. When the
description of the defendant's search is sufficiently detailed, a claim that
certain documents "must exist" is insufficient to raise a material
question of fact with respect to the adequacy of the agency's search. Oglesby
v. Dep't of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 n.13 (D.C.
Cir. 1990) (citing Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d
942, 952-53 (D.C. Cir. 1986)).
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The court is satisfied that the DOJ's search was "reasonably calculated to
uncover all the relevant documents." Nation Magazine, 71 F.3d at
890. David M. Hardy, Section Chief of the Record/Information Dissemination
Section in the Records Management Division at FBI Headquarters
("FBIHQ") in Washington, DC., 4 explains that the
FBI conducted a three part search. Defs.' Mot., Hardy Decl. ("Hardy
Decl.") ¶ 1. First, the FBI used the terms "Airline Passenger
Data," "Airline Passenger," and "Airlines Data" to
search its computerized Central Records System ("CRS"). 5
Id. ¶ 17. The FBI also searched the FBIHQ offices most likely to have
potentially responsive records, id., and requested information from
"all FBIHQ Divisions" regarding the search for documents responsive
to the plaintiff's request. Id. ¶ 18. Second, the FBI contacted NASA
because the plaintiff's FOIA request included a copy of an email from NASA
indicating that the FBI had obtained passenger data from Northwest Airlines.
Hardy Decl. ¶ 19. As a result of its communication with NASA, the FBI contacted
a special agent in one of its field offices. The special agent indicated that
field offices collecting airline data forwarded all of their materials to
FBIHQ. Id. ¶ 19-20. Third, the FBI's Cyber Division searched PENTTBOMB, a
computerized database containing "voluminous" records related to the
investigation of the September 11 attacks. Id. ¶ 17, 25. The search
yielded twelve pages summarizing the responsive records in PENTTBOMB. While the
DOJ admits that there may be other responsive information in PENTTBOMB, Defs.'
Reply to Pl.'s Opp'n to Defs.' Mot. ("Defs.' Reply") at 24, it claims
that it is impossible to extract the data in its original form because it has
been "intertwined" with other data in the database . Hardy Decl. ¶
26. Because the court concludes that the DOJ's search was reasonable and
because the plaintiff has raised no positive indications of overlooked
materials, the court holds that the FBI's search in response to the plaintiff's
FOIA request was adequate. 6
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4 David M. Hardy's declaration was not notarized, although it was subscribed to as true under penalty of perjury. A federal statute specifically permits use of unsworn declarations in all cases in which affidavits would otherwise be required. 28 U.S.C. § 1746; Judicial Watch v. Clinton, 880 F. Supp. 1, 11 n.6 (D.D.C.1995).
5 Hardy
explains that, "the generalized nature of EPIC's FOIA request, i.e.
'Airline Passenger Data,' does not lend itself readily or naturally" to a
search of the FBI's investigative files. Defs.' Mot. for Summ. J. ("Defs.'
Mot."), Hardy Decl. ("Hardy Decl.") ¶ 17. In addition, "the
subject matter of the request is relatively recent, and certain of the
potentially responsive records may not have yet been indexed to the [Central
Records System]." Id.
6 The plaintiff does not challenge any of the exemptions claimed by
the FBI, and the court has no reason to believe that FBI documents are not
exempt from disclosure. The DOJ's declaration, in conjunction with the copies
of the twelve redacted pages released to the plaintiff, explains how the
withholdings are dispersed throughout the document. See Hardy Decl., Ex. G.
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C. DHS and TSA Withholdings Pursuant to the FOIA Exemptions 7
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7 The plaintiff is not challenging the adequacy of DHS' and TSA's
search, but rather the legitimacy of the redactions and withheld documents.
Pl.'s Opp'n to Mot. For Summ. J. ("Pl.'s Opp'n") at 13; Defs.' Mot.
at 12, Ex. B. Accordingly, the court focuses its analysis on the exemptions
claimed by the DHS and TSA.
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The defendants withheld documents and portions of documents pursuant to FOIA
Exemptions 2, 3, 4, 5, 6, 7(A) and 7(C). Defs.' Mot., Statement of Material
Facts ¶ 20-26. A court cannot grant summary judgment unless the defendant's Vaughn
index provides a detailed description of the withheld information, the exemption
claimed for withholding the information, and the reasons supporting the
application of the exemption to the withheld material. 8 Vaughn,
484 F.2d at 827. Agency statements in the Vaughn index cannot support
summary judgment if they are "conclusory, merely reciting statutory
standards, or if they are too vague or sweeping." Oglesby v. United
States Dep't of the Army, 316 U.S. App. D.C. 372, 79 F.3d 1172, 1176 (D.C.
Cir. 1996). Additionally, "non-exempt portions of a document must be
disclosed unless they are inextricably intertwined with exempt portions." Mead
Data Cent. Inc., v. U.S. Dep't of Air Force, 184 U.S. App. D.C. 350, 566
F.2d 242, 260 (D.C. Cir. 1977). This requirement is known as the segregability
requirement. Schiller v. NLRB, 296 U.S. App. D.C. 84, 964 F.2d 1205,
1209 (D.C. Cir. 1992). Finally, if the defendants have withheld information on
the basis of multiple exemptions, the court need only rely on one exemption for
each piece of exempted material. Kanter v. Dep't of State, 479 F. Supp.
921, 928 n.9 (D.D.C. 1979).
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8 The defendants maintain that the court should read the submitted Vaughn
index in conjunction with the Declaration and Supplemental Declaration of
Elizabeth Withnell, Chief Counsel to the DHS Privacy Office. Defs.' Reply at 3.
It was once the rule in this circuit that an agency's Vaughn index must
consist of a single document. Church of Scientology v. Bell, 195 U.S.
App. D.C. 363, 603 F.2d 945, 949 (D.C. Cir. 1979). The Court of Appeals has
since advised, however, that the single document rule should be applied with
common sense: "So long as the affidavits [or declarations] interlock
without confusion and were clearly drafted with each other in mind, there is no
reason that they can't be thought of as a single document." Afshar v.
Dep't of State, 226 U.S. App. D.C. 388, 702 F.2d 1125, 1144 (D.C. Cir.
1983).
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1. Exemption 2 Withholdings
Exemption 2 of FOIA allows the withholding of records that are "related
solely to the internal personnel rules and practices of the agency." 5
U.S.C. § 552(b)(2). The defendants' Vaughn index, read in conjunction
with the Withnell Declaration, demonstrates that redacted portions of the
documents are properly withheld under Exemption 2 because the information would
allow access to an otherwise secure database and internal agency telephone
numbers and access codes. See Defs.' Mot., Vaughn index ("Vaughn
index") at 18; Withnell Decl. P 36, Ex. R. Additionally, the plaintiff
does not challenge the defendants' Exemption 2 withholdings. Pl.'s Opp'n at 13.
The court therefore grants the defendants' summary judgment motion with respect
to all Exemption 2 withholdings.
2. Exemption 3 Withholdings
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 other words, the statute must "on
its face, exempt matters from
disclosure." Reporters Comm. for Freedom of the Press v. U.S.
Dep't of Justice, 259 U.S. App. D.C. 426, 816 F.2d 730, 735 (D.C. Cir.),
modified on other grounds, 265 U.S. App. D.C. 365, 831 F.2d 1124 (D.C. Cir.
1987), rev'd on other grounds, 489 U.S. 749, 103 L. Ed. 2d 774, 109 S. Ct. 1468
(1989).
In the instant case, the defendants claim that some documents 9
are exempt from disclosure pursuant to 49 U.S.C. § 114(s) and 49 U.S.C. §
40119(b). 10 These statutes prohibit the disclosure of
information if the Under Secretary of the TSA or the Secretary of
Transportation decide that disclosing the information would (1) be an
unwarranted invasion of personal privacy, (2) reveal a trade secret or
privileged or confidential commercial or financial information, or (3) be
detrimental to the security of transportation. 49 U.S.C. § 114(s) and 49 U.S.C.
§ 40119(b). TSA document LL consists of data elements in JetBlue's passenger
name records and, as such, it includes information that is "potentially
useful for an airline screening program." Defs.' Reply, Withnell Supp.
Decl. ("Withnell Supp. Decl.") P 4. The document was marked as
"confidential" by the defendants because JetBlue voluntarily provided
the information to the TSA to develop an aviation screening program. Id.
Accordingly, the court holds that TSA document LL was properly withheld.
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9 TSA document AA and the factual information in TSA documents Z,
BB, CC, and UU have been withheld under Exemption 3 and Exemption 4. Defs.'
Mot., Vaughn index (" Vaughn index") PP Z, AA, BB, CC,
UU. The plaintiff has conceded all of the Exemption 4 withholdings claimed by
the defendants. Pl.'s Opp'n at 13. Accordingly, the only documents for which an
Exemption 3 analysis is necessary are TSA documents E, LL, and TT. See
Kanter v. Dep't of State, 479 F. Supp. 921, 928 n.9 (D.D.C. 1979).
10 The plaintiff does not dispute the defendants' use of these
statutes in the Exemption 3 context. Pl.'s Mot. at 19. Further, another
district has held that these statutes qualify as Exemption 3 statutes. See Gordon
v. FBI, 390 F. Supp. 2d 897, 2004
U.S. Dist. LEXIS 10935, 2004 WL 1368858, *2 (N.D. Cal. 2004).
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TSA document TT "constitutes selection criteria proposed to be used for
aviation screening," and was marked "sensitive security
information" in the defendants' Vaughn index. Vaughn index
at 15. Because the plaintiff has agreed to exclude documents marked
"sensitive security information" from the scope of the litigation,
Pl.'s Mot. at 13, and because disclosure of document TT could be detrimental to
transportation security, the court holds that document TT was properly
withheld.
The court, however, does not have enough information to gauge whether TSA
document E falls under Exemption 3. The Vaughn index for this document
merely states that the document constitutes "sensitive security
information." Although the defendants are not required to describe the
withheld portions in so much
detail that it reveals the sensitive security information itself, they must
provide a more adequate description in order to justify the application of the
exemption to the withheld material. Mead Data 566 F.2d at 261; Vaughn,
484 F.2d at 827. Accordingly, the court denies summary judgment with respect to
document
E and orders the defendant to submit a supplemental Vaughn index with a
more detailed description of the document's contents.
3. Exemption 4
Withholdings
Exemption 4 of FOIA protects "trade secrets and commercial or financial
information obtained from a person [that is] privileged or confidential."
5 U.S.C. § 552(b)(4). The plaintiff concedes all of the Exemption 4
withholdings claimed by the defendants. 11 Pl.'s Opp'n at
13. The court has also concluded that TSA document LL, for which Exemption 4
was invoked in the defendants' reply, was properly withheld in full under
Exemption 3. When read in conjunction with the Withnell declarations, the
defendants' Vaughn index demonstrates that the defendants have not used
Exemption 4 to withhold any reasonably segregable information. 12
Vaughn index at 1, 8-11, 13-15, 25-26; Withnell Decl. P 39-41, 52, 59;
Withnell Supp. Decl. P 12, 14. For the foregoing reasons, the court grants
summary judgment with respect to the defendants'
withholdings under Exemption 4.
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11 Pursuant to Exemption 4, the defendants have withheld information in TSA documents A, Z, AA, BB, CC, PP, QQ, RR, SS, UU and the Chief Privacy Officer's document S. Defs.' Mot., Statement of Material Facts P 22.
12 The
D.C. Circuit requires district courts to check for compliance with FOIA's
segregability requirements even if the issue has not been raised by the
parties. Schiller v. NLRB, 296 U.S. App. D.C. 84, 964 F.2d 1205, 1210
(D.C. Cir. 1992) (holding that "it is error for a district court to simply
approve the withholding of an entire document without entering a finding on
segregability, or the lack thereof.")
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4. Exemption 5 Withholdings 13
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13 The plaintiff argues that the defendants withheld information
under Exemption 5 based on their knowledge of the plaintiff's intended use of
the information. Pl.'s Opp'n at 21-22. Although Withnell stated that she knew
the plaintiff wanted to use the information to demonstrate that some airlines
provided passenger name records to the government, id. (citing Withnell
Decl. P 46), Withnell explains that she "did not cite the reason plaintiff
wanted the documents as part of the rationale for invoking Exemption 5, but
only because it helped to describe the scope of the request." Withnell
Supp. Decl. at 5. The plaintiff has not introduced any evidence that would
rebut the good faith presumption customarily afforded agency affidavits in FOIA
cases. SafeCard, 926 F.2d at 1200. Indeed, the plaintiff does not cite
Withnell's statement in the declaration as evidence of bad faith but only as a
sign that the Exemption 5 withholdings require extra consideration. Further,
the court cannot ignore the obvious assumption that, if Withnell and the
defendants were truly trying to withhold information because they feared the
plaintiff's use of it, they would not advertise their supposedly nefarious acts
in a court document. The court therefore concludes that the plaintiff's
intended use of the information did not serve as the basis for the exclusion of
any information.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Exemption 5 of FOIA protects "inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in
litigation with the agency." 5 U.S.C. § 552(b)(5). The Supreme Court and
the D.C. Circuit have both construed Exemption 5 "to exempt those
documents, and only those documents, normally privileged in the civil discovery
context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 44
L. Ed. 2d 29, 95 S. Ct. 1504 (1975); Martin v. Office of Special Counsel,
260 U.S. App. D.C. 382, 819 F.2d 1181, 1184 (D.C. Cir. 1987). In other words,
Exemption 5 incorporates "all civil discovery rules." Martin,
819 F.2d at 1185. Thus, all discovery privileges that exist in civil discovery
apply to Exemption 5. United States v. Weber Aircraft Corp., 465 U.S.
792, 800, 79 L. Ed. 2d 814, 104 S. Ct. 1488 (1984). The three traditional
privileges that courts have incorporated into Exemption 5 are the
deliberative-process privilege, the attorney work-product privilege and the
attorney-client privilege. Sears, 421 U.S. at 149. At issue in this case
are the deliberative-process and the attorney-client privileges invoked by the
defendant.
a. Deliberative-Process Privilege
The general purpose of the deliberative-process privilege is to "prevent
injury to the quality of agency decisions." Sears, 421 U.S. at 151.
The three specific policy objectives underlying this privilege are: (1) to
encourage open and frank discussions on matters of policy between subordinates
and superiors; (2) to protect against premature disclosure of proposed policies
before they are finally adopted; and (3) to protect against public confusion
that might result from disclosure of reasons and rationale that were not in
fact ultimately the grounds for an agency's action. Russell v. Dep't of Air
Force, 221 U.S. App. D.C. 96, 682 F.2d 1045, 1048 (D.C. Cir. 1982); Coastal
States Gas Corp. v. Dep't of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854,
866 (D.C. Cir. 1980); Jordan v. Dep't of Justice, 192 U.S. App. D.C.
144, 591 F.2d 753, 772-73 (D.C. Cir. 1978) (en banc). In essence, the privilege
protects "decision making processes of government agencies and focuses on
documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
formulated." Sears, 421 U.S. at 150 (internal quotations omitted).
Thus, the deliberative-process privilege ensures that government agencies are
not "forced to operate in a fishbowl." Petroleum Info. Corp. v.
Dep't of the Interior, 298 U.S. App. D.C. 125, 976 F.2d 1429, 1434 (D.C.
Cir. 1992).
To invoke the deliberative-process privilege, the defendant must establish two
prerequisites. Id. First, the communication must be predecisional; in
other words, it must be "antecedent to the adoption of an agency
policy." Jordan, 591 F.2d at 774; Access Reports v. Dep't of
Justice, 288 U.S. App. D.C. 319, 926 F.2d 1192, 1194 (D.C. Cir. 1991). In
determining whether a document is predecisional, an agency does not necessarily
have to point specifically to a final decision, but need only establish
"what deliberative-process is involved, and the role played by the
documents in issue in the course of that process." Coastal States,
617 F.2d at 868. In other words, as long as a document is generated as part of
such a continuing process of agency decision-making, the deliberative-process
privilege protections of Exemption 5 may be applicable. Id.; Nat'l
Ass'n of Home Builders v. Norton, 353 U.S. App. D.C. 374, 309 F.3d 26, 39
(D.C. Cir. 2002) (holding that a document is predecisional if it was prepared
to assist an agency in arriving at a decision, rather than supporting a
decision already made).
Second, the communication must be deliberative; it must be "a direct part
of the deliberative-process in that it makes recommendations or express
opinions on legal or policy matters." Vaughn, 484 F.2d at 823-24.
The critical factor in determining whether the material is deliberative in
nature "is whether disclosure of the information would 'discourage candid
discussion within the agency.'" Access Reports, 926 F.2d at 1195
(quoting Dudman Communications Corp. v. Dep't of Air Force, 259 U.S.
App. D.C. 364, 815 F.2d 1565, 1567-68 (D.C. Cir. 1987)).
The defendants meet the first prerequisite for claiming the
deliberative-process privilege with respect to TSA documents B, D, J, K, Q, S,
T, U, V, X, Y, DD, GG, HH, II, JJ, NN, OO, ZZ, AAA, EEE, and FFF by
demonstrating that the documents are predecisional. 14 The
defendants prepared these documents to assist in the development and testing of
the CAPPS II program. See Defs.' Vaughn index; Withnell Decl. ¶¶ 45-46;
Withnell Supp. Decl. ¶ 9. Even though the defendants abandoned the CAPPS II
program, the withheld information represents intermediate steps in the process
that created the CAPPS II program. See Coastal States, 617 F.2d at 866,
868-869. Contrary to plaintiff's assertion that materials lose their Exemption
5 protection once a final decision is taken, it is the document's role in the
agency's decision-making process that controls. 15 Russell, 221 U.S. App. D.C. 96, 682
F.2d 1045, 1048. Similarly, TSA documents C, F, G, H, I, L, M, N, O, P, R, W,
EE, FF, MM, VV, and HHH are also predecisional because, according to the Vaughn
index, they were prepared to assist the TSA with certain decisions taken by the
agency. Many of the Chief Privacy Officer ("CPO") 16
documents at issue were generated during the CPO's investigation of the TSA's
role in the transfer of airline passenger data from the airlines to the
Department of Defense. 17
These documents are predecisional because they contain opinions solicited
and expressed prior to the issuance of the CPO's final report.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
14 The court will not analyze the applicability of Exemption 5 with regard to TSA documents Z, BB, LL, TT, UU, and BBB because the court has determined that this material has been properly withheld under different FOIA Exemptions. Kanter, 479 F. Supp. at 928 n.9.
15 The
plaintiff argues documents related to the CAPPS II program are not
predecisional because the termination of the CAPPS II program constitutes a
final agency action. Pl.'s Opp'n at 22.
16 The
court accepts the defendants' invocation, in its reply, of the deliberative
process privilege with respect to the Chief Privacy Officer's ("CPO")
documents EE, GG, HH, and II. Withnell Supp. Decl. P 5-8. The defendants are
not adding new exemptions to the withheld information; they are simply
clarifying withholdings for which they used the deliberative process rationale.
Because the plaintiff was able to surmise that the defendants were using the
deliberative process privilege for these documents, Pl.'s Opp'n at 24, it is
not unfair to the plaintiff to allow the defendant to label their withholdings
more explicitly in their reply. See Judicial Watch of Fla., Inc. v. Dep't of
Justice, 102 F. Supp. 2d 6, 12 (D.D.C. 2000).
17
Several of the CPO's documents are drafts, but the plaintiff has agreed
to exclude the "numerous drafts" in CPO document A from the scope of
this litigation. Pl.'s Opp'n at 13 n.7.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The defendants also satisfy the second prerequisite for the deliberative
process privilege with respect to TSA documents B, D, J, K, Q, S, T, U, V, X,
Y, DD, GG, HH, II, JJ, NN, OO, ZZ, AAA, EEE, and FFF because these documents
contain recommendations and discussions of proposed actions relating to the
CAPPS II program. Coastal States, 617 F.2d at 866 (holding that the
deliberative process privilege covers drafts, recommendations, proposals,
personal opinions and debates about a policy). Rather than reflecting binding
agency action, these documents reflect the give-and-take of the consultative
process. As such, these documents
represent precisely the kind of information that Exemption 5 was designed to
protect. Disclosure of such information could potentially stifle "frank
and honest communication" within an agency. Id. TSA documents C, F,
G, H, I, L, M, N, O, P, R, W, EE, FF, MM, VV, and HHH are also deliberative
because, according to the Vaughn index, they are either drafts or
contain opinions. Many of the documents from the CPO are also deliberative
because they are materials she used to complete the investigation on the
release of passenger data. 18 Accordingly, the court grants summary judgment in favor of the
defendant with respect to TSA documents B-D, F-Y, DD-JJ, MM-OO, VV, ZZ, AAA,
EEE, FFF, and HHH, and with respect to CPO documents A-D, J, N, P-S, U, X, CC,
EE and GG-JJ. 19
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
18 The plaintiff correctly observes that handwritten notes do not qualify for protection under the deliberative process privilege simply because they are handwritten. Pl.'s Opp'n at 23. Handwritten notes that do not reflect the preliminary thoughts of the agency decisionmaker or other agency personnel do not warrant Exemption 5 protection. Clinton, 880 F. Supp. at 13.
19 The
court is also satisfied that the defendants have complied with FOIA's segregability
requirement with respect to these documents. See generally Vaughn index;
Withnell Decl. ¶¶ 42-46; Withnell Supp. Decl. ¶¶ 5-9. Also, the court agrees
with the defendants that the plaintiff's argument that non-exempt factual information was improperly withheld under
the deliberative process privilege is moot because that information is already
exempt pursuant to other FOIA exemptions. Withnell Supp. Decl. ¶¶ 13-14.
Further, the court agrees with the defendants' conclusion that information such
as the CPO's signature block is not
"reasonably segregable." See, e.g. Defs.' Vaughn index at 4.
Courts do not require agencies "to commit significant time and resources
to separation of disjointed words, phrases, or even sentences which taken
separately or together have minimal or no information content." Judicial
Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 38 (D.D.C. 2000)
(citing Mead Data Cent., Inc., v. U.S. Dep't of Air Force, 184 U.S. App.
D.C. 350, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977)).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
At times, however, the defendants provide insufficient detail regarding the
content of withheld information to support a motion for summary judgment.
Accordingly, the court holds that the defendants must submit a revised Vaughn
index with more comprehensive and justificatory descriptions of TSA documents
E, KK, PP, QQ, RR, SS, WW, XX, YY, DDD, and GGG. Because the defendants invoked
both Exemption 4 and the deliberative process privilege of Exemption 5 to
withhold information in TSA documents PP, QQ, RR and SS, Vaughn index P
at 13-15, the court holds that defendants must submit a more detailed Vaughn
index explaining which portions of these documents are factual and which are
deliberative, and correlating the justifications for each exemption to the
applicable portions.
The court also does not have information to evaluate the propriety of applying
the deliberative process privilege to CPO documents O, V, Y, and Z because the
defendants' listings fail to describe the content of the handwritten notes. Id.
P O, V, Y, Z. Finally, the defendants have not indicated which FOIA exemption
they are using to withhold CPO documents E, F, and G. In their revised Vaughn
index, the defendants must explicitly invoke a FOIA exemption and provide a
justification for these particular withholdings. Similarly, the defendants use
Exemption 5 to withhold information in CPO documents K, L, and M, but they fail
to specify whether they rely on the deliberative process or attorney-client
privilege. Vaughn index at 23. The court rules that the defendants must
specify which privilege they are using to withhold CPO documents E, F, G, K, L,
and M before the court can evaluate their withholdings.
b. Attorney-Client Privilege
The attorney-client privilege protects "confidential communications
between an attorney and his client relating to a legal matter for which the
client has sought professional advice." Mead Data Cent., Inc., 566
F.2d at 252. The rationale underlying the privilege is that lawyers will be
best able to advocate and offer advice if they are "fully informed by the
client." Upjohn Co. v. United States, 449 U.S. 383, 389, 66 L. Ed.
2d 584, 101 S. Ct. 677 (1981).
Unlike the attorney work-product privilege, the attorney-client privilege is
not limited to the context of litigation. See, e.g., Mead Data Cent., Inc.,
566 F.2d at 252-53; Crooker v. Internal Revenue Serv., 1995 U.S. Dist.
LEXIS 7031, No. 94-0755, 1995 WL 430605, at *7 (D.D.C. April 27, 1995).
Although it principally applies to facts divulged by a client to his attorney,
this privilege also encompasses any opinions given by an attorney to his client
based on, and thus reflecting, those facts as well as communications between
attorneys that reflect client-supplied information. See Coastal States,
617 F.2d at 863 (finding that courts can infer confidentiality when the
communications suggest that "the government is dealing with its attorneys
as would any private party seeking advice to protect personal interests").
The privilege applies to confidential communications made to an attorney by
both high-level agency personnel and lower-echelon employees. Upjohn Co., 449 U.S. at 392-97.
The defendants invoke Exemption 5's attorney-client privilege to protect
messages and attachments sent between a TSA employee and attorneys in TSA's
Office of General Counsel. Withnell Decl. P 43. The plaintiff agreed to exclude
these withholdings from the scope of litigation. Pl.'s Opp'n at 13.
Additionally, the defendants' Vaughn index, read in conjunction with the
Withnell Declarations, demonstrates compliance with the segregability
requirements of FOIA, see, e.g., Vaughn index at 29. Accordingly, the
court grants summary judgment with respect to the defendants' withholdings
based on Exemption 5's attorney-client privilege. 20
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
20 These withholdings are in TSA documents F, H, I, O, and W, and
CPO documents H, J, T, S, FF, and GG. See Vaughn index; Withnell Decl. P
43.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
5. Exemption 6
Withholdings
a. Legal Standard for Exemption 6
Exemption 6 of FOIA 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).
"Similar files" are broadly defined to include any "government
records on an individual which can be
identified as applying to that individual." See U.S. Dep't. of State v.
Wash. Post Co., 456 U.S. 595, 601-602, 102 S. Ct. 1957, 72 L. Ed. 2d 358
(1982). To determine whether a disclosure would constitute a clearly unwarranted invasion of personal privacy,
the court must weigh the privacy interests in nondisclosure against the public
interests in disclosure. Nat'l Ass'n of Home Builders v. Norton, 353
U.S. App. D.C. 374, 309 F.3d 26, 32 (D.C. Cir. 2002) (citing Nat'l Ass'n of
Retired Fed. Employees v. Horner, 279 U.S. App. D.C. 27, 879 F.2d 873, 874
(D.C. Cir. 1989). Individuals have a privacy interest in personal information
even if it is not of an embarrassing or intimate nature. See Wash. Post,
456 U.S. at 600 (stating that "information such as place of birth, date of
birth, date of marriage, employment history, and comparable data is not
normally regarded as highly personal, and yet . . . such information ... would
be exempt from any disclosure that would constitute a clearly unwarranted
invasion of personal privacy"). The quantum of the public's interest in
disclosure depends on the degree to which disclosure would shed light on an
agency's performance of its statutory duties and its compliance with the law. Reed
v. NLRB, 288 U.S. App. D.C. 394, 927 F.2d 1249, 1252 (D.C. Cir. 1991). In
assessing the public interest, the court must examine "the nature of the
requested document and its relationship to the basic purpose of [FOIA] to open
agency action to the light of public scrutiny . . . [and official] information
that sheds light on an agency's performance of its statutory duties"
merits disclosure. Reporters Comm., 489 U.S. at 773 (citation omitted).
The purposes of FOIA are "not fostered," however, "by disclosure
of information about private citizens that is accumulated in various
governmental files but that reveals little or nothing about an agency's own
conduct." Id.
b. Identifying Information of Governmental Employees 21
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
21 The plaintiff has agreed to exclude the names and identifying
information of non-governmental employees from the scope of this litigation.
Pl.'s Opp'n at 13. The plaintiff has also conceded the withholdings made
pursuant to exemption 7(C), except for the withholding of domain names and
business identifiers. Pl.'s Opp'n at 30. Accordingly, the court is not
analyzing whether names and contact information in the CPO documents were
properly withheld under exemption 7(C). Kanter, 479 F. Supp. at 928, n.
9.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The defendants use Exemption 6 to withhold the names and other identifying
information of government employees (mainly DHS and TSA personnel) contained in
the documents responsive to the plaintiff's request. 22 See Vaughn
index; Withnell Decl. ¶ 47; Withnell Supp. Decl. ¶ 16. The defendants contend
that release of this information will make employees vulnerable to harassment
and will not help the plaintiff to understand the operations of the government.
Withnell Decl. ¶ 47. The plaintiff argues that Exemption 6 does not apply in
this context because federal employees have only a "negligible"
privacy interest and the threatened privacy invasion cited by the defendants is
only speculative. Pl.'s Opp'n at 26-27. The court disagrees and grants summary
judgment in favor of the defendants with respect to the names withheld pursuant
to Exemption 6.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
22 The plaintiff has agreed not to challenge the defendants'
invocation of Exemption 6 to withhold the names, phone numbers, addresses, and
email user names of non-governmental employees. Pl.'s Opp'n at 13 (citing
Defs.' Mot., Ex. A).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The privacy interest of civilian federal employees includes the right to control information related to themselves and to avoid disclosures that "could conceivably subject them to annoyance or harassment in either their official or private lives." Lesar v. Dep't of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 487 (D.C. Cir. 1980); see also Nix v. United States, 572 F.2d 998, 1006 n.8 (4th Cir. 1978) (noting that, to implicate a federal employee's privacy interest under FOIA, harassment does not have to rise to the level that life or physical safety is in danger). The fact that federal employees have an identifiable privacy interest in avoiding disclosures of information that could lead to annoyance or harassment, however, does not authorize a "blanket exemption" for the names of all government employees in all records. Baez v. Dep't of Justice, 208 U.S. App. D.C. 199, 647 F.2d 1328, 1338 (D.C. Cir. 1980); Lesar, 636 F.2d at 487. To justify their Exemption 6 withholdings, the defendants must show that the threat to employees' privacy is real rather than speculative. 23 Dep't of the Air Force v. Rose, 425 U.S. 352, 380 n.19, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). In this case, the defendants explain that the threat to the privacy of DHS and TSA personnel derives from the nature of their employment. 24 As "advocates for security measures that may be unpopular," DHS and TSA employees are likely to experience annoyance or harassment following the disclosure of their involvement with the CAPPS II program. 25 Withnell Decl. ¶ 47. Furthermore, unfettered access to the identities of those who help to formulate policy for airline security screening programs could have substantial security implications. 26 Withnell Supp. Decl. ¶ 16. The documents released by the defendants will likely be published on the Internet once released to the plaintiff, 27 and it is likely that readers of the plaintiff's reports, including media reporters as well as private individuals, would seek out the employees mentioned for further information. See Southam News v. Immigration and Naturalization Serv., No. 85 Civ. 2721, slip. op. at 3 (D.D.C. Aug. 30, 1989) (holding that the "the only imaginable contribution that" personal identifying information could make "would be to enable the public to seek out individuals" to question them). This contact is the very type of privacy invasion that Exemption 6 is designed to prevent. 28
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
23 Contrary to the plaintiff's assertion, the court can use case
law concerning Exemption 7(C) to identify the privacy interests relevant to an
Exemption 6 balancing test. Pl.'s Opp'n at 26. While Exemption 7(C), which
deals with information found in law enforcement documents, has a lower
threshold for justifying withholdings
than Exemption 6, courts conducting a balancing test under Exemption 6 can
still look to Exemption 7(C) cases for assistance in the identification of the
interests at stake. Dep't of Defense v. Fed. Labor Relations Auth., 510
U.S. 487, 496 n.6, 127 L. Ed. 2d 325, 114 S. Ct. 1006 (1994) (applying 7(c)
case law to an Exemption 6 analysis); see also Fed. Labor Relations Auth. v.
Dep't of Treasury, 280 U.S. App. D.C. 236, 884 F.2d 1446, 1451-52 (D.C.
Cir. 1989) (noting that the difference between Exemptions 6 and 7(C) "goes
only to the weight of the privacy interest needed to outweigh disclosure")
(emphasis in original).
24 The defendants' explanation of the threat to DHS and TSA
employees' privacy is most comprehensively set out in the Withnell Supplemental
Declaration:
DHS was . . . created to prevent
and deter terrorist attacks and protect
against and respond to threats and hazards to the United States. That mission has the potential to
place DHS employees in harm's way directly or indirectly. Even employees who
work on policy matters, as opposed to law enforcement activities, are not
immune from unwarranted and unwanted contacts as a direct result of the work
they do. Accordingly, the agency takes pains to be transparent about its
programs but much more opaque about its employees, because identifying those
involved with DHS or its component agencies, including TSA, makes the
individuals susceptible to harassment and unwarranted attention, whether it be
to further criminal purposes or merely to
vent misplaced frustrations.
Withnell Supp. Decl. ¶ 16.
25
Courts have protected the identities of other governmental employees for
similar reasons. See, e.g., Judicial Watch, Inc. v. Rossotti, 285 F.
Supp. 2d 17, 30 (D.D.C. 2003) (allowing the Internal Revenue Service to
withhold the names of lower level employees).
26 Other
sectors of the government have used a similar rationale to withhold employee
information. See Department of Defense Director for Administration and
Management Memorandum 1-2 (Nov. 9, 2001), available at www.defenselink.mil/pubs/foi/withhold.pdf
(explaining the post-September 11 Department of Defense policy of withholding
personally identifying information of military and civilian employees if
disclosure would "raise security or privacy concerns").
27 The
plaintiff disseminates information to the public in several ways: it
"maintains a heavily visited Web site" featuring summaries of
privacy-related news and scanned images of documents obtained under FOIA,
publishes a bi-weekly electronic newsletter with a readership of over 15,000,
and publishes books on civil liberties and technology issues. Withnell Decl.,
Ex. A.
28 The defendants cite two additional rationales for invoking
Exemption 6 to protect DHS and TSA employees. First, they contend that many DHS
employees "fear harassment and unwarranted attention as a direct result of
their work." Withnell Supp. Decl. ¶ 16. Second, they state that, "it
is a simple fact that, given the world security climate, federal employees,
especially those involved in homeland security, are at a heightened risk of
harassment or endangerment." Id. The court does not base its
conclusion that the defendants have shown a "real" possibility of
privacy invasion on either of these statements. An agency cannot establish that
a threat to privacy exists based on an employee's subjective fears of
harassment. Furthermore, in holding that the defendants can redact the names of
DHS and TSA employees mentioned in documents pertaining to the development of
an airline screening program, the court is not endorsing a blanket exemption
for all federal employees involved in homeland security.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
On the other side of the Exemption 6 balance, the public interest in learning
the names of these lower-echelon employees is small. The plaintiff has not
demonstrated that knowledge of the names of the employees involved in CAPPS II
development will help them to understand how the agency performs its
statutory duties. Reporters Comm., 489 U.S. 749, 773, 103 L. Ed. 2d 774,
109 S. Ct. 1468. Names alone will not shed any light on how the agencies worked
with the airlines. See, e.g., Voinche v. FBI, 940 F. Supp. 323, 330
(D.D.C. 1996) (finding that "there is no reason to believe that the public
will obtain a better understanding of
the workings of various agencies by learning the identities of the people
mentioned" in agency documents); see also Fed. Labor Rels. Auth. v.
Dep't of Treasury, 280 U.S. App. D.C. 236, 884 F.2d 1446, 1453 (D.C. Cir.
1989) (finding that the public interest in release of the names and home
addresses of federal employees does not "outweigh the workers' significant
interest in privacy"). Indeed, "information that does not directly
reveal the operation or activities of the federal government 'falls outside the
ambit of the public interest that the
FOIA was enacted to serve.'" Id. at 1457 (quoting Reporters Comm.,
489 U.S. at 775).
Because the privacy interest of DHS and TSA employees in avoiding the unwanted
contact or harassment that would result from the release of their names
outweighs the public interest in disclosure, the court concludes that the
defendants properly invoked Exemption 6 to redact the names of the federal
employees included in the documents at issue.
c. Domain Names and Business Identifiers
The defendants also claim that, pursuant to Exemption 6, they properly withheld
the domain names of email addresses and the names of agencies and businesses 29 that cooperated with the TSA. Pl.'s Opp'n at 25; Withnell
Supp. Decl. ¶ 16. The defendants argue that once other information in the
document is redacted, the domain names and business identifiers by themselves
do not add anything "to the store of information responsive to plaintiff's
request" 30 and are not reasonably segregable. Withnell
Supp. Decl. ¶ 16. The court, however, is unable to analyze the defendants'
arguments because they do not specify which documents (or portions of
documents) contain domain names or business identifiers, as opposed to
individuals' names. Furthermore, the defendants have already released documents
to the plaintiff with redactions for "personal identifiers" or
"individual identities." See, e.g., Vaughn index at 7, 13,
16-18. It is possible that these documents also contain domain names or
business identifiers that, when read in context, do actually add to the
plaintiff's knowledge of the government's activities. 31 The
court therefore denies the defendants' motion with respect to the withholding
of domain names and business identifiers under Exemption 6. The defendants must
submit a more detailed Vaughn index in which they specify why domain names and
business identifiers were withheld.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
29 The defendants do not claim a need to protect the identities of
the businesses themselves, for neither corporations nor business associations
have privacy interests that can be protected under Exemption 6. See, e.g.,
Sims v. CIA, 206 U.S. App. D.C. 157, 642 F.2d 562, 572 n.47 (D.C. Cir.
1980); Nat'l Parks &
Conservation Ass'n v. Kleppe, 178 U.S. App. D.C. 376, 547 F.2d 673, 685
n.44 (D.C. Cir. 1976); Ivanhoe Citrus Ass'n v. Handley, 612 F. Supp.
1560, 1567 (D.D.C. 1985). Ultimately, then, the appropriateness of withholding
identifying business information hinges on the segregability of the domain
names and
business identifiers.
30 The
defendants also argue that this information, "together with a name[],"
will identify employees or individuals who merit Exemption 6 protection.
Withnell Supp. Decl. ¶ 16. Because the court has determined that the names of
both federal and non-federal employees are exempt from disclosure under
Exemption 6, this justification for withholding domain names and business
identifiers is moot.
31 If
the non-exempt information is so interspersed that segregation will yield only
meaningless snippets of words that add nothing to plaintiff's understanding of
agency activity, the defendants should state as much in their revised Vaughn
index.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
6. Exemption 7(A) Withholdings
Exemption 7(A) of FOIA permits the withholding of records or information
compiled for law enforcement purposes, to the extent that the production of
this information could reasonably be expected to interfere with enforcement
proceedings. 5 U.S.C. § 552(b)(7)(A). The defendants withheld documents
pertaining to the CPO's investigation of the alleged transfer of PNR data from
airlines and Global Distribution Services companies to TSA. Withnell Decl. ¶
55-57; Vaughn index at 30-31. The plaintiff concedes all of the
defendants' Exemption 7(A) withholdings but reserves the right to renew its
request once the CPO completes her investigation. Pl.'s Opp'n at 13. Because
the release of this information could undermine the effectiveness of the CPO's
investigation, the court upholds the withholding of these documents in full and
grants the defendants summary judgment with respect to their Exemption 7(A)
withholdings.
7. Exemption 7(C) Withholdings
FOIA's Exemption 7(C) protects records or information compiled for law
enforcement purposes to the extent that disclosure could reasonably be expected
to constitute an unwarranted invasion of personal privacy. 5 U.S.C. §
552(b)(7)(C) (2000). The defendants used Exemption 7(C) to withhold the names
and other identifying information of federal and non-federal employees
mentioned in the CPO's documents. Withnell Decl. ¶ 58; Withnell Supp. Decl. ¶
16; Vaughn index. The plaintiff concedes the defendants' 7(C)
withholdings with respect to the names and contact information of all persons
mentioned. Pl.'s Opp'n at 30. Domain names and business identifiers, however,
are still in dispute. Because the defendants have again justified their
withholdings on segregability grounds, but neglected to describe them
adequately, the court denies their motion for summary judgment with respect for
domain names and business identifiers. See Discussion III.C.5.c., supra.
D. In Camera
Inspection is not Appropriate in this Case
The plaintiff has moved this court for an in camera inspection of the
withheld documents. FOIA authorizes courts to examine agency records in
camera to determine the validity of a defendant agency's withholdings but
endorses the court with broad discretion in rendering its decision. 5 U.S.C. §
552(a)(4)(B); Spirko v. U.S. Postal Serv., 331 U.S. App. D.C. 178, 147
F.3d 992, 996 (D.C. Cir. 1998). In camera inspection may be appropriate,
for example, when "agency affidavits are insufficiently detailed to permit
meaningful review of exemption claims," Spirko, 147 F.3d at 996
(quoting Quinon v. FBI, 318 U.S. App. D.C. 228, 86 F.3d 1222, 1228 (D.C.
Cir. 1996)); when "the number of records involved is relatively small, Quinon,
86 F.3d at 1228; when a discrepancy exists between an agency's affidavit and
other information that the agency has publicly disclosed, Mehl v. Envtl.
Prot. Agency, 797 F. Supp. 43, 46 (D.D.C. 1992); and "when the dispute
turns on the contents of the documents, and not the parties' interpretations of
those documents." Spirko, 147 F.3d at 996 (quoting Quinon,
86 F.3d at 1228).
Ultimately, however, courts disfavor in camera inspection and it is more
appropriate in only the exceptional case. NLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214, 224, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978) (explaining
that FOIA's in camera review provision "is designed to be invoked
when the issue before the
District Court could not otherwise be resolved"); PHE, Inc. v. Dep't of
Justice, 299 U.S. App. D.C. 223, 983 F.2d 248, 252-53 (D.C. Cir. 1993)
(noting that in camera review is "generally disfavored" but
permissible); Animal Legal Def. Fund, Inc. V. Dep't of Air Force, 44 F.
Supp. 2d 295, 304 (D.D.C. 1999) (observing that, "in camera review
should not be resorted to as a matter of course") (quoting Quinon,
86 F.3d at 1228).
The court concludes that in camera review is not necessary at this stage
in the proceedings. The defendants' descriptions and justifications for many of
their withholdings are adequate. The court permits the defendants an
opportunity to first correct those that are not adequate by submitting a
revised Vaughn index consistent with this memorandum opinion. If the
defendants' revised Vaughn index still does not meet the statutory
requirements, the plaintiff may renew its request for in camera
inspection.
IV. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part the
defendants' motion for summary judgment, denies the plaintiff's request for in
camera inspection of documents, and orders defendants DHS and TSA to submit
a revised Vaughn index with respect to the specified withholdings. An
order directing the parties in a manner consistent with this Memorandum Opinion
is separately and contemporaneously issued this 25th day of July, 2005.
RICARDO M. URBINA
United States District Judge