SAI v. Transp. Sec. Admin.
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Opinion
RANDOLPH D. MOSS, United States District Judge
This case is one of a series of cases that Plaintiff, who suffers from a neurological disorder, has brought arising out of his alleged mistreatment by Transportation Security Administration ("TSA") employees at various airport security checkpoints. This Court previously resolved one of those cases, which Plaintiff brought against the TSA under the Rehabilitation Act seeking to compel the agency to respond to Plaintiff's complaints of mistreatment. See Sai v. Dep't of Homeland Sec. ,
In this action, Plaintiff alleges that the TSA has failed adequately to respond to six requests under the Freedom of Information Act ("FOIA"),
After Plaintiff filed suit, the TSA responded to each of the six pending FOIA requests and eventually released almost 4,000 pages of records (some with redactions) and three closed circuit television videos. The TSA has now moved for summary judgment, arguing that it reasonably construed (and, where necessary, narrowed) Plaintiff's requests; that it thoroughly searched for responsive records;
*229and that it released all responsive, non-exempt records. Plaintiff opposes the TSA's motion and, with two minor exceptions, challenges virtually every aspect of the TSA's multiple searches and productions. Plaintiff contends that, as to each of the six requests, the TSA failed to conduct an adequate search; failed to produce segregable portions of records; withheld metadata and failed to release records in their "native," electronic format or in "fully digital, non-"rasterized" PDFs; improperly designated records as Sensitive Security Information ("SSI"); and improperly invoked FOIA Exemptions 3, 6, and 7. Plaintiff alleges, in addition, that the TSA withheld records that had been previously released; made false or misleading statements in its Vaughn indices; violated the Privacy Act by maintaining records relating to Plaintiff's "protected First [A]mendment speech," Dkt. 111-2 at 33-34; destroyed records in violation of a "clear[ ] ... evidence preservation demand,"
As explained below, many of these contentions are not properly before the Court; others are not developed with sufficient clarity to survive summary judgment; and yet others lack legal or factual merit. But there is some wheat among this abundance of chaff. The Court will, accordingly, GRANT in part and DENY in part the TSA's motion.
I. BACKGROUND
The wide-ranging history of this matter is recounted in this Court's numerous prior opinions and orders. See Dkt. 34 (denying motion for preliminary injunction and motion for sanctions); Dkt. 42 (denying motion to expedite); Dkt. 43 (granting defendant's motion for protective order); Dkt. 47 (denying motion for reconsideration regarding sanctions); Dkt. 48 (denying motion to compel); Dkt. 49 (denying motion for leave to amend); Dkt. 74 (denying motions for reconsideration, for clarification, and to strike); Dkt. 93 (denying motion to compel service of Section 46105(b) orders and for declaratory relief regarding Section 46110(a) deadline, denying plaintiff's motion for attorney fees and costs, and denying leave to file supplemental pleading); see also Sai v. TSA , No. 16-5004 (D.C. Cir. June 6, 2016) (order dismissing interlocutory appeal seeking initial hearing en banc); Sai v. TSA , No. 16-1065 (U.S. Sup. Ct. June 5, 2017) (denying petition for writ of certiorari). For present purposes, the Court need not repeat that history in its entirety, but simply recounts the allegations and procedural history relevant to the pending motion.
A. FOIA Requests
The subject of this suit are six FOIA and Privacy Act requests for records that Plaintiff, whose full name is Sai1 , sent to the TSA in 2013.
Sai submitted the first of these requests on January 28, 2013,2 requesting information relating to an incident at a security checkpoint at Boston Logan International Airport ("BOS Request"). This request initially sought "reports," "notes, correspondence, *230communications, ... relating to the incident," "any and all records related to [Sai];" "copies of [Sai's] [travel] documents that were made at the scene;" "all history of complaints" against the TSA agents with whom Sai came into contact and "similar complaints" against the TSA; and "documents and communication related to responding to this request." Dkt. 99-3 at 50-51 (McCoy Decl. Ex. A).
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RANDOLPH D. MOSS, United States District Judge
This case is one of a series of cases that Plaintiff, who suffers from a neurological disorder, has brought arising out of his alleged mistreatment by Transportation Security Administration ("TSA") employees at various airport security checkpoints. This Court previously resolved one of those cases, which Plaintiff brought against the TSA under the Rehabilitation Act seeking to compel the agency to respond to Plaintiff's complaints of mistreatment. See Sai v. Dep't of Homeland Sec. ,
In this action, Plaintiff alleges that the TSA has failed adequately to respond to six requests under the Freedom of Information Act ("FOIA"),
After Plaintiff filed suit, the TSA responded to each of the six pending FOIA requests and eventually released almost 4,000 pages of records (some with redactions) and three closed circuit television videos. The TSA has now moved for summary judgment, arguing that it reasonably construed (and, where necessary, narrowed) Plaintiff's requests; that it thoroughly searched for responsive records;
*229and that it released all responsive, non-exempt records. Plaintiff opposes the TSA's motion and, with two minor exceptions, challenges virtually every aspect of the TSA's multiple searches and productions. Plaintiff contends that, as to each of the six requests, the TSA failed to conduct an adequate search; failed to produce segregable portions of records; withheld metadata and failed to release records in their "native," electronic format or in "fully digital, non-"rasterized" PDFs; improperly designated records as Sensitive Security Information ("SSI"); and improperly invoked FOIA Exemptions 3, 6, and 7. Plaintiff alleges, in addition, that the TSA withheld records that had been previously released; made false or misleading statements in its Vaughn indices; violated the Privacy Act by maintaining records relating to Plaintiff's "protected First [A]mendment speech," Dkt. 111-2 at 33-34; destroyed records in violation of a "clear[ ] ... evidence preservation demand,"
As explained below, many of these contentions are not properly before the Court; others are not developed with sufficient clarity to survive summary judgment; and yet others lack legal or factual merit. But there is some wheat among this abundance of chaff. The Court will, accordingly, GRANT in part and DENY in part the TSA's motion.
I. BACKGROUND
The wide-ranging history of this matter is recounted in this Court's numerous prior opinions and orders. See Dkt. 34 (denying motion for preliminary injunction and motion for sanctions); Dkt. 42 (denying motion to expedite); Dkt. 43 (granting defendant's motion for protective order); Dkt. 47 (denying motion for reconsideration regarding sanctions); Dkt. 48 (denying motion to compel); Dkt. 49 (denying motion for leave to amend); Dkt. 74 (denying motions for reconsideration, for clarification, and to strike); Dkt. 93 (denying motion to compel service of Section 46105(b) orders and for declaratory relief regarding Section 46110(a) deadline, denying plaintiff's motion for attorney fees and costs, and denying leave to file supplemental pleading); see also Sai v. TSA , No. 16-5004 (D.C. Cir. June 6, 2016) (order dismissing interlocutory appeal seeking initial hearing en banc); Sai v. TSA , No. 16-1065 (U.S. Sup. Ct. June 5, 2017) (denying petition for writ of certiorari). For present purposes, the Court need not repeat that history in its entirety, but simply recounts the allegations and procedural history relevant to the pending motion.
A. FOIA Requests
The subject of this suit are six FOIA and Privacy Act requests for records that Plaintiff, whose full name is Sai1 , sent to the TSA in 2013.
Sai submitted the first of these requests on January 28, 2013,2 requesting information relating to an incident at a security checkpoint at Boston Logan International Airport ("BOS Request"). This request initially sought "reports," "notes, correspondence, *230communications, ... relating to the incident," "any and all records related to [Sai];" "copies of [Sai's] [travel] documents that were made at the scene;" "all history of complaints" against the TSA agents with whom Sai came into contact and "similar complaints" against the TSA; and "documents and communication related to responding to this request." Dkt. 99-3 at 50-51 (McCoy Decl. Ex. A). After the TSA requested additional information regarding the request on February 15, 2013, Sai expanded the request to include "all records related to" prior security incidents that occurred at New York LaGuardia Airport on June 27, 2012, and Chicago O'Hare International Airport on December 25, 2010.
On February 22, 2013, Sai submitted a second FOIA request ("CCTV Request") to TSA by email, requesting "any contract/agreement with other agencies regarding surveillance, or maintenance of surveillance footage, at Logan airport."
Sai submitted the third request at issue, relating to an incident that took place at San Francisco International Airport ("SFO Request"), by email on March 15, 2013.
The fourth request, which sought TSA policies and procedures ("Policies Request"), is by far the most expansive. Sai submitted that request on March 16, 2013. It sought (1) "[a]ll TSA policy and/or procedures documents which are not already included in the TSA's 'Electronic Reading Room,' including all Management Directives, Standard Operating Procedures, Operations Directives, Security Directives, Emergency Amendments, Information Circulars, Memoranda, Handbooks, Letters, Bulletins, and Guidance ever issued, including both old [and] current versions;" (2) the "TSA's policies regarding screening procedures, both now and ... at any point in the past;" (3) the "TSA's policies regarding the treatment of passengers with disabilities, both now and in the past;" (4) the "TSA's policies regarding the enforcement of its policies when TSA personnel ... refuse to comply with TSA policy in a way that infringes on the rights of travelers;" (5) the "TSA's policies regarding cooperation with local airports and police;" (6) the "TSA's policies regarding when checkpoint video may be released;" (7) the "TSA's policies regarding 'no fly[,'] 'selectee[,'] and any similar lists;" (8) "legal justification for the TSA's public claims that passengers *231may not revoke consent to administrative search" including "formal agency legal memoranda, policy statements that include specific legal foundation arguments, court filings in which relevant arguments were advanced ..., any court opinions, appeals, or the like in which a court responded negatively to those arguments;" and (9) "all Behavior Detection Officer training materials, and any studies investigating their efficacy."
On March 25, 2017, the TSA sent Sai a letter explaining that the request was "too broad in scope or did not specifically identify the records" sought, and it invited Sai to "resubmit [the] request containing a reasonable description of the records [he was] seeking."
Sai's fifth and sixth requests cover the same ground covered by the BOS and SFO requests, but seek records created or obtained after those requests were filed ("BOS and SFO Re-Requests"). See Dkt. 28-3 at 11. Sai originally submitted the BOS and SFO Re-Requests on November 23, 2013. See
B. Procedural History
Because the TSA failed to respond within the 20-day period specified by FOIA,
The TSA has now moved for summary judgment, submitting that it has conducted a reasonable and adequate search and that its withholdings are appropriate under both FOIA and the Privacy Act. Dkt. 99. The TSA supports its motion with the declarations of Regina McCoy, the agency's FOIA officer, Dkt. 99-3 at 1 (McCoy Decl. ¶ 2), and Douglas Blair, Chief of the Sensitive Security Information Program in the agency's Office of Law Enforcement & Federal Air Marshal Service, Dkt. 99-4 at 1 (Blair Decl. ¶ 1); Dkt. 105 at 17 (Supp. Blair Decl. ¶ 1). Sai's opposition brief is only five pages long and merely lists-without analysis or support-sixteen ways in which the TSA has allegedly violated the law; as Sai puts it, the "TSA has violated nearly all the law[s] it could." Dkt. 111 at 2. Sai also requests that the Court order that the TSA supplement its Vaughn index, order "full civil discovery," and order the TSA "to provide [the] Court with an in camera copy of [its] entire production[ ] ... without redactions."
II. LEGAL STANDARD
The Freedom of Information Act is premised on the notion that "an informed *233citizenry is "vital to the functioning of a democratic society ... [and] needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co. ,
FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See Beltranena v. U.S. Dep't of State ,
III. ANALYSIS
Sai's arguments in opposition to the TSA's motion for summary judgment fall into three broad categories. Specifically, Sai challenges (1) the format of the records the TSA produced pursuant to FOIA and the Privacy Act; (2) the adequacy of the TSA's search for records responsive to the FOIA requests; and (3) the TSA's withholding of portions of the records it released pursuant to FOIA and the Privacy Act. In addition, Sai raises various allegations of misconduct by the TSA and requests the opportunity to conduct "full civil discovery." The Court will consider each set of arguments in turn.
A. Format
1. Rehabilitation Act
Sai first argues that the TSA violated the Rehabilitation Act, 29 U.S.C. § 794d, and E-FOIA,
To start, this is not a Rehabilitation Act case. The complaint does not invoke the Rehabilitation Act and, indeed, it expressly asserts that "[t]his suit is solely under FOIA and [the Privacy Act]." Dkt. 5 at 2 (Compl. ¶ 5). To be sure, Sai filed the complaint before the TSA released any records, and thus Sai did not know what format the agency would use. But Sia posits that the TSA, in general, uses software that does not result in the release of "native" format records, Dkt. 111-2 at 4, and, more importantly, despite filing multiple motions for leave to amend, see Dkt. 9; Dkt. 21, Sai has never sought to amend the complaint to assert a claim under the Rehabilitation Act. Although pro se litigants are entitled to some leeway, they must comply with the Federal Rules of Civil Procedure, Jarrell v. Tisch ,
But, even if the Court were to treat Sai's affidavit as a proposed amendment to the complaint-and, to be clear, the Court is not doing so-it would deny that motion as futile. See In re Interbank Funding Corp. Sec. Litig. ,
Subject to certain limitations, Section 508 of the Rehabilitation Act requires that federal agencies like the TSA ensure that "individuals with disabilities who are members of the public seeking information ... have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities." 29 U.S.C. § 794d(a)(1)(A)(ii). Here, Sai complains that the TSA released records with "no discretization," without "metadata," and without "spreadsheet structure." Dkt. 111-2 at 2. "The format of [the] TSA's FOIA production," according to Sai, "has significantly impaired [his] ability to use the documents" and to "distribute [them] to [his] audience in a format that would be accessible to them (which includes other people with disabilities)." Id. at 3. It is not explained, however, how Sai's disability and the format in which the records were released have prevented access and the use of the information and data in a manner that is comparable to those without disabilities. Sai at least hints at an explanation for why blind people may need "embedded metadata to assist navigation by screen readers," id. at 4, but the complaint does not allege that Sai is blind or that this same technology is necessary to accommodate Sai's disability. Nor does Sai have standing to assert the interests of members of Sai's "audience," including those who themselves have disabilities. See Gettman v. DEA ,
2. E-FOIA
Sai's contention that E-FOIA required the TSA to release the relevant records in their "native, electronic" format (with "embedded metadata") is more persuasive, although the argument produces mixed results when applied to the relevant facts. In 1996, Congress enacted the Electronic Freedom of Information Act Amendments to FOIA-or "E-FOIA" for short-to "improve public access to agency records and information" and to "maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal Government." Pub. L. No. 104-231, § 2,
Much of Sai's argument is misdirected. Sai asserts, for example, that "TSA's Vaughn declarations and exhibits are ... partially rasterized PDFs," that the agency's " Vaughn indices are spreadsheets embedded in PDF format, severely hampering [his] ability to do basic operations like copying the spreadsheets into Google Spreadsheets," and that the TSA's refusal to provide "with spreadsheet format *236versions of the Vaughn indices" has hampered Sai's ability to litigate this case. Dkt. 111-2 at 2-3. E-FOIA, however, 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. Three of Sai's FOIA requests, moreover, do not actually request that the TSA release the records in any format other than "electronic[ ]" or "digital." Dkt. 99-3 at 50-51, (McCoy Decl. Ex. A) (BOS Request) (requesting a "digital copy of all related materials" and "demand[ing] that this request be serviced electronically to the maximum extent possible");
Turning to Sai's Policies Request, Sai once again did not request that the TSA provide the responsive records in a "native" format with embedded metadata. Rather, Sai asked that the TSA release the records "in an electronic, machine-processable, accessible, open, and well-structured format to the maximum extent possible." Dkt. 99-3 at 129 (McCoy Decl. Ex. S). Presumably recognizing the ambiguity of that request, Sai further explained that, "[t]his means," for example: "individual PDFs per distinct document," "fully digital text PDFs rather than scans or rasterizations," "digital redactions rather than black marker," "lists and structured data as machine-processable spreadsheets," and "scans rather than paper copies."
In opposing the TSA's motion for summary judgment, Sai raises three objections that are arguably relevant to this request: first, that each record was not released in a distinct, "discretiz[ed]" file; second, that spreadsheets were not released in a "useable, machine-processible format;" and, third, that the records were released as "rasterized PDF[s]." Dkt. 111-2 at 2, 4-5. The TSA, for its part, does not directly respond to the first of these objections. Although the agency stresses the limitations imposed by the software that it used to process FOIA requests at the relevant times, Dkt. 118 at 7-10; Dkt. 118-1 at 2-4 (3d Supp. McCoy Decl. ¶¶ 7-16), it fails to explain whether or why that software would have prevented the agency from generating separate PDF files for each discrete record, and it fails to argue that, as a matter of law, "discretization" does not constitute a "form or format" for purposes of
As to the second objection-that the TSA released spreadsheets in an unusable format-it is Sai that drops the ball. Although Sai asserts, generally, that the TSA FOIA response process is flawed because the agency does not release spreadsheets in a usable format, Dkt. 111-2 at 5, and although Sai contends, specifically, that the TSA's Vaughn index was produced in a *237format that did not permit "basic operations like copying the spreadsheet into Google Spreadsheets,"
Although not crystal clear, Sai does adequately raise the final objection-that the records responsive to the Policies Request were released in a "rasterized" format, and not as "fully digital text PDFs"-and the TSA at least indirectly responds to that objection. Sai explains that "[b]y 'rasterized PDF,' [Sai] mean[s] the kind that is produced by scanning paper documents ... or irreversibly rendering text into image format," Dkt. 111-2 at 4 n.10, and that understanding comports with the dictionary definition, see Rasterize, v., Oxford English Dictionary (2018) ("To convert (an image) into ... points or pixels on a grid").3 The question, then, is whether Sai was entitled to receive records responsive to the Policies Request in the "fully digital" (non-rasterized) text PDF format sought. See
The answer to that question overlaps with the sole question presented by Sai's final set of requests, the BOS and SFO Re-Requests. In those requests, Sai asked that the TSA release the relevant records "in their original electronic format or as a scan of any documents that are originally paper." Dkt. 28-3 at 11-12. The second of these alternatives does not present an issue here; Sai requested scanned copies of original, paper records, and that is what Sai received. The first alternative, however, might reasonably be construed to seek the requested non-paper files in their "native" format-for example, in "Word, Excel, or electronic PDF." Dkt. 111-2 at 4.4 So, taken together, the final question posed by Sai's Policies Request and BOS and SFO Re-Requests is whether the records that Sai sought were "readily reproducible" by the TSA at the relevant time in the format that Sai requested: Word, Excel, electronic PDF, or the like.
The TSA contends that the answer to this question is "no," and in support of that contention it once again relies on a declaration from Regina McCoy. According to McCoy, at all relevant times, the TSA used a FOIA processing software called FOIAXpress. Dkt. 118-1 at 2 (3d Supp. McCoy Decl. ¶ 8). That software, however, did not "have the capability to process records in their native formats," and, instead, records were "processed and prepared for release ... in [a] PDF format."
to create a separate tracking system unique to Plaintiff's ... requests for purposes of keeping accurate documentation of the request itself and correspondence with the requester, the tasking to various offices within the agency and follow-up correspondence with those offices, responsive records back from assigned offices, exemptions and redactions applied to the records and the various layers of review that each record underwent.
At least on the present record, the Court is unconvinced that these justifications satisfy the requirements of
Congress enacted the "readily reproducible" requirement to overrule this Court's decision in Dismukes v. Department of the Interior ,
In rejecting this holding, Congress did not mandate that agencies comply with every request for release of records in every conceivable format. Instead, E-FOIA merely requires that an agency comply with a format request if the relevant *239record is "readily" reproducible in that format. That determination requires that the Court consider the "technical feasibility" of the request, and courts must "accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility."
The present context adds a slight twist on this inquiry. In one sense, Sai is not asking that the TSA re produce the relevant records in a new format; Sai is asking that it produce them in their original format. That context, of course, is not entirely alien to
This Court's decision in Scudder provides helpful guidance. In that case, the CIA declined to release records in an electronic format, explaining that, due to security measures needed to protect classified materials, it could only produce the requested records as "paper printouts."
Applying that standard here, the Court concludes that the TSA has not-at least on the present record-carried its burden of demonstrating that it could not have "readily" produced the relevant electronic records in their original format as requested. There is no question that the TSA had the technical capacity to format the records in the manner requested; indeed, that is how the records were originally formatted and used by the agency. For obvious reasons, the TSA does not contest this point. Rather, the agency argues that releasing records under FOIA in their original format would be unduly burdensome because its FOIA processing software, and its SSI review process, require reformatting the records as PDF files, and because it lacked the technical sophistication to redact files in their original formats. See Dkt.
*240118 at 8-10; Dkt. 118-1 at 3-4 (3d Supp. McCoy Decl. ¶¶ 12-16).
The TSA may be able to show that Sai's request that the agency release the records in their original format posed a burden on the agency of sufficient magnitude to justify its rejection of that request. It may be able to show, for example, that it could not have, at the time, "readily" ensured that redactions were not countermanded. It has yet to do so, however, and the TSA's primary contention that the request was incompatible with the agency's then-existing FOIA processing software is in tension with the language and purpose of the E-FOIA amendments. The statute asks whether the record at issue "is readily reproducible by the agency in" the requested format,
3. Legibility
Finally, Sai argues that the TSA's response to the BOS and SFO Requests were deficient because six pages of records that the agency released were "completely illegible." Dkt. 111-2 at 2 (listing "2013-TSPA-00368 Bates 003-004, 006-007; 2013-TSFO-01096 Bates 009-010"). These records include a handwritten "Incident/Event Reporting Form" in response to Sai's SFO Request, Dkt. 143-2 at 6-7; scans of Sai's passport and boarding pass in response to the SFO Request, id. at 3; see also Dkt. 57-5 at 3, and a spreadsheet in response to Sai's BOS Request, Dkt. 141-2 at 9-10. Upon review of those documents, the Court agrees that the records are illegible. FOIA requesters are entitled to a legible copies of responsive agency records. Cleary, Gottlieb, Steen & Hamilton v. Dep't of Health & Human Servs. ,
* * *
In sum: many of Sai's objections regarding the format of responsive records are meritless. With respect to the following objections, however, the Court concludes that the TSA has yet to carry its burden on summary judgment: First, as to the Policies Request, the 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." Second, as to the BOS and SFO
*241Re-Requests, the TSA has failed to explain why it could not have "readily" released the records in their original Word, Excel, electronic PDF, or like format. Third, with respect to six pages of records, the agency has failed to explain why it could not have released legible copies. Finally, with respect to the Policies Request, the Court will provide Sai with the opportunity to identify any spreadsheets that Sai received in a format that was not useful. In all other respects, the TSA is entitled to summary judgment on the format issues.
B. Adequacy of Searches
Sai also argues that the searches that the TSA conducted in response to Sai's FOIA/PA requests were inadequate. Dkt. 111-2 at 5-19. The adequacy of an agency's search for records "is analyzed under the same standard" for purposes of both FOIA and the Privacy Act. Thompson v. U.S. Dep't of Justice ,
The "agency fulfills its obligations under FOIA" and the Privacy Act "if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.' " Valencia-Lucena v. U.S. Coast Guard ,
1. BOS and SFO Requests and Re-Requests
Sai raises three challenges to the adequacy of the TSA's search for records *242responsive to the BOS and SFO Requests and Re-Requests. Sai contends that the TSA (a) failed to search all offices that might have responsive records; (b) failed "to adequately document the timing," and thus the cut-off dates, for the relevant searches; and (c) failed adequately to document the "keywords" used and the "database indices" searched. Dkt. 111 at 2. The Court will consider each of these contentions in turn.
(a) Offices Searched
Sai first asserts that the TSA did not search the following offices "for records, such as emails, in relation to [Sai's] complaints" of mistreatment at the TSA checkpoints: the Office of Security Operations ("OSO"), the Office of Strategic Communications and Public Affairs ("OPA"), the Office of Civil Rights and Liberties, the office of Ombudsman and Traveler Engagement ("OCR & L"), the SFO field office, Covenant Aviation Security, the TSA FOIA Branch, the BOS field office, the TSA Contact Center ("TCC"), the Office of Chief Counsel ("OCC"), the Office of the Executive Secretariat, the Office of Legislative Affairs ("OLA"), the Department of Homeland Security ("DHS"), and the DHS Office for Civil Rights and Liberties. Dkt. 111-2 at 5-6.
As explained in the McCoy declaration, the TSA has 39 program offices and operates at over 450 airports, and it "does not maintain a central index of records sorted by individuals to whom they relate." Dkt. 99-3 at 5 (McCoy Decl. ¶ 12). The TSA was not required to search every office or location for potentially responsive records, Oglesby ,
McCoy attests that, in response to the BOS Request, the TSA's FOIA Branch tasked the field offices for the Logan, LaGuardia, and O'Hare Airports with searching for responsive records. Dkt. 99-3 at 5 (McCoy Decl. ¶ 13). Those field offices are part of the OSO, one of the offices that Sai says the TSA neglected to search.
In responding to the SFO Request, the TSA tasked the TSA's field office at the San Francisco Airport and TCC with searching for responsive records. Id. at 20 (McCoy Decl. ¶ 62, 64). The TSA also searched the Disability Branch of the Office of Civil Rights and Liberties, Ombudsman and Traveler Engagement, which is the "primary point of contact within TSA for supporting the DHS disability policy agenda." Id. at 21 (McCoy Decl. ¶¶ 67-68). The Disability Branch searched for all records relating to Sai (not just records relating to the SFO incident), which located emails, deliberative drafts, and Sai's administrative complaints. Id. (McCoy Decl. ¶ 69).
*243Finally, in response to the BOS and SFO Re-Requests, the TSA tasked the Logan and San Francisco Airport field offices, the TCC, and OLE/FAMS with searching for records that post-dated those found in the earlier search. Id. at 44 (McCoy Decl. ¶ 127). TSA found no responsive records to these requests that were not already included in the productions for the BOS and SFO Requests. Id. at 47 (McCoy Decl. ¶¶ 136, 139).
The McCoy declaration must be accorded a presumption of good faith, see SafeCard Servs. ,
A number of the other offices that Sai claims the TSA should have searched lie beyond the TSA's purview or beyond the scope of Sai's request and this litigation. As Sai recognizes, Covenant Aviation Security is a private contractor, Dkt. 111-2 at 6 n.13, and thus is not subject to FOIA, Roman v. Dep't of the Air Force ,
The 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. First, Sai faults the TSA for failing to conduct a search of the agency's FOIA Branch for responsive records. Dkt. 111-2 at 6. The TSA, for its part, offers no relevant response. It merely asserts that Sai's request for all records "related to [him] held by any relevant parties" was overly broad, Dkt. 99-3 at 5 (McCoy Decl. ¶ 12), requiring the agency to focus its search on specific offices "based on the particular subject matters described in correspondence with [Sai] related to [his] request[s],"
Although less clear, the Court is also unconvinced based on the current record that the TSA correctly declined to search for responsive records held by its Office of Legislative Affairs. To be sure, Sai did not specifically request records from the Office of Legislative Affairs, and that office does not leap to mind when asked where records relating to incidents that occurred at various airport security checkpoints might be found. But correspondence from and to Speaker Pelosi's office relating to the incident evidently came to the TSA's attention in the course of responding to Sai's FOIA requests, see, e.g. , Dkt. 145-2 at 123, and that correspondence should have caused the agency to inquire whether the Office of Legislative Affairs possessed other, potentially responsive records. See Campbell v. U.S. Dep't of Justice ,
Finally, the Court is not convinced that TSA correctly declined to search for responsive records held by its Office of Chief Counsel and Office of the Executive Secretariat. Email correspondence released to Sai indicates that individuals in those offices had some involvement, even if only minimal, in addressing Sai's complaints, see Dkt. 145-2 at 61, 123, 143; Dkt. 144-3 at 58-62, 73, and the TSA has acknowledged that it did not search those offices for records responsive to Sai's SFO request, see Dkt. 99-3 at 20-21 (McCoy ¶¶ 63, 66-68). This correspondence indicates that these offices may have possessed records responsive to the SFO Request, and, on the current record, the Court is unable to conclude that TSA conducted a search "reasonably calculated to uncover all relevant documents" with respect to those offices. See Valencia-Lucena ,
In sum: the Court agrees, with the four exceptions described above, that the TSA searched those offices that were likely to have records responsive to Sai's BOS and SFO Requests and Re-Requests. The exceptions are the TSA's FOIA Branch, its *245Office of Legislative Affairs, its Office of Chief Counsel, and its Office of the Executive Secretariat. For present purposes, the Court holds only that the TSA has yet to carry its burden with respect to those four offices.
(b) Time Frame for the Search
Sai also argues that the TSA has failed to demonstrate that it searched for records covering the relevant time frame. The Court agrees.
The governing DHS FOIA regulations at the time of Sai's request provided that, "[i]n determining which records are responsive to a [FOIA/PA] request, a component," like the TSA, should "ordinarily ... include only records in its possession as of the date that it begins its search."
The problem here is that the TSA has not submitted evidence sufficient for the Court to determine when it commenced each of the relevant searches. Sai asserts, without contradiction from the TSA, that the most recent e-mail released in response to Sai's FOIA/PA requests was dated July 7, 2014, and that Sai did not receive responses to some of the requests until 2016. Dkt. 111-2 at 7; see also Dkt. 99-3 at 187 (McCoy Decl. Ex. DD). From this and the fact that the TSA continued to review Sai's administrative Rehabilitation Act complaints in the interval between July 7, 2014, and January 6, 2016, when Sai received the final response to the BOS and SFO Re-Requests, Sai infers that the TSA's search could not have encompassed the entire, relevant timeframe. Dkt. 111-2 at 7; see also Dkt. 99-3 at 187 (McCoy Decl. Ex. DD) (final response to BOS and SFO Re-Requests).
In response, the TSA notes that the July 7, 2014 email was dated "just weeks" after it issued its "interim and final releases in the BOS and SFO Requests" and that "[i]t is not unreasonable for an agency to take time after the completion of a FOIA search to review and process the responsive records." Dkt. 118 at 12. That response, however, ignores the BOS and SFO Re-Requests, which were not processed until much later. Indeed, the TSA acknowledges that it did not initially treat the Re-Requests as distinct FOIA/PA requests and that was not until September 21, 2015 that the agency sent Sai "an acknowledgement letter" for those requests. Dkt. 99-3 at 43 (McCoy Decl. ¶¶ 123-24). Although the TSA correctly observes that Sai's objection is premised on the "speculat[ion] as to the dates that [the relevant] searches ended," Dkt. 118 at 13, that speculation is a product of the fact that the TSA, which has sole access to the relevant information, has not revealed when the search occurred and what cut-off date that the agency applied.5
Finally, the TSA argues that because the BOS and SFO Re-Requests "sought records related to two incidents that occurred in 2013, and because the agency had already conducted adequate, reasonable *246searches for responsive records," it is "unsurprising" that "no new records were uncovered" in response to those requests. Dkt. 118 at 14. That may be so, but there is reason to believe that new records were created after the date of the original requests in the course of the TSA's consideration of Sai's Rehabilitation Act complaints, and, without evidence regarding the temporal scope of the TSA's search, it is impossible to know whether the search was adequate. Under these circumstances, the Court, accordingly, cannot conclude that the TSA has carried its burden on this issue for purposes of summary judgment.
One last, related issue bears note, however. The TSA is correct that the BOS and SFO Re-Requests required the agency to search only for records relating to the original BOS and SFO incidents, which occurred in early 2013. That is what Sai sought when Sai made the re-requests in November 2013, Dkt. 28-3 at 11-12, and, as the TSA correctly observes, a FOIA requester cannot, years later and after a dispute is in litigation, expand the scope of a request by merely asserting, as Sai did, that "due to the [the agency's] delay," the request "now also encompasses records relating to" events that occurred long after the original request. Dkt. 99-3 at 182 (McCoy Decl. Ex. BB); see Houser v. Church ,
(c) Adequacy of the Searches
Sai further contends that the TSA "failed to provide adequate record evidence ... document[ing]" the "keywords" and "database indices" searched. Dkt. 111 at 2. The Court agrees that the TSA has failed to meet its burden with respect to some of the offices searched.
"To establish that it has conducted an adequate FOIA search, [an agency] must provide a 'reasonably detailed' affidavit containing 'search terms and the type of search performed, and averring that all files likely to contain responsive materials ... were searched ... to allow the district court to determine if the search was adequate in order to grant summary judgment.' " Anderson v. U.S. Dep't of State ,
With respect to the databases searched, the McCoy declaration describes in sufficient detail the locations and databases within each office searched in response to the BOS and SFO Requests, see Dkt. 99-3 at 6-8 (McCoy Decl. ¶¶ 15-17, 20, 23) (BOS Request); id. at 20-21 (McCoy Decl. ¶¶ 63, 65-66, 69) (SFO Request). In response to the BOS and SFO Re-Requests, however, the TSA merely states that the FOIA Branch tasked the SFO, BOS, TCC, and Disability Branch offices to search for responsive records, but does not explain which databases or locations were searched within those offices. Id. at 46, 47 (McCoy Decl. ¶¶ 134, 137). Although the Court assumes that the TSA searched the same databases and locations as it did in response to the BOS and SFO Requests, the agency must describe its searches in greater detail to meet its burden on summary judgment.
With respect to the search terms used, the McCoy declaration provides an accounting of the terms used for the majority of the offices searched. In response to the BOS Request, for example, the McCoy declaration reports that the BOS field office searched electronic records "using Plaintiff's name as a search term," Dkt. 99-3 at 6 (McCoy Decl. ¶ 15); the LGA field office searched "using Plaintiff's name" as well as "the date of the LGA incident," id. (McCoy Decl. ¶ 16); and the TCC office "electronically searched its centralized database for records containing Plaintiff's name, phone number, and email address" as well as "the date and flight number of Plaintiff's scheduled travel on the day of the BOS incident, for complaints related to the TSA employees involved in the BOS incident, and for complaints referencing the BOS airport agents or police,"id. at 7-8 (McCoy Decl. ¶ 23). Similarly, in response to Sai's SFO Request, the McCoy declaration explains that the TSA searched the TCC office "for records containing Plaintiff's name, the names and badge numbers of the TSA and CAS employees ..., for complaints using the search terms 'carry-on liquids' and 'San Francisco Airport (SFO).' " Id. at 21 (McCoy Decl. ¶ 65). As to the McCoy declaration's description of its search of these offices, the Court finds that it has provided "necessary details ... about the scope or methods of the searches conducted," Defs. of Wildlife v. U.S. Border Patrol ,
The TSA has failed, however, adequately to describe the searches it conducted for records in the following offices: the ORD field office and OLE/FAMS office in response to the BOS Request; the SFO field office and Disability Branch office in response to the SFO Request; and the BOS, SFO, TCC, and Disability Branch offices in response to the Re-Requests. For those offices, the TSA does not identify the search terms it used, instead merely stating that it searched "for responsive records," Dkt. 99-3 at 6-7, 20-21, 46-47 (McCoy Decl. ¶¶ 17, 20, 63, 66, 69, 134, 137), or "records related to Plaintiff," id. at 21 (McCoy Decl. ¶ 69). Without knowing the search terms the TSA used, the Court cannot determine whether its efforts were "reasonably calculated" to locate responsive records in those offices.
In sum: the Court concludes that the TSA has failed to carry its burden of showing that its searches for the records Sai requested in the BOS and SFO Requests *248and Re-Requests covered the relevant timeframe-from the date of the relevant incident to the date the search commenced. The Court also concludes that the TSA has failed to carry its burden of showing that it conducted a search "reasonably calculated" to recover responsive records with respect to the databases searched in response to the BOS and SFO Re-Requests and with respect to the search terms used to search the ORD and OLE/FAMS offices in response to the BOS Request; the SFO and Disability Branch offices in response to the SFO Request; and the BOS, SFO, TCC, and Disability Branch offices in response to the Re-Requests.
2. Policies Request
The scope of the TSA's search for records responsive to Sai's Policies Request raises a distinct set of issues. The parties agree about two things: First, Sai requested "[a]ll TSA policy and/or procedures documents" that were "not already" available through the agency's electronic reading room, "including both old [and] current versions" of those documents. Dkt. 99-3 at 125 (McCoy Decl. Ex. S); Dkt. 118 at 15. Second, the TSA did not search for-and, thus, did not release-"all" such records. Dkt. 111-2 at 8; Dkt. 118 at 15. At that point, however, the parties' agreement ends. Sai lists dozens of policies that Sai contends the TSA released in response to third-party FOIA requests, that the TSA identified in other litigation, or that "confidential source(s)" brought to Sai's attention. Dkt. 111-2 at 8-10, 17; Dkt. 116-1 at 1-3. Those policies, which the TSA failed to release in response to Sai's request, run the gamut from the TSA's "Checked Baggage," "Advanced Imaging Technology," "Colorimetric," "Expedited Screening," "Travel Document Checkpoint," and "K9" Standard Operating Procedures ("SOPs"), Dkt. 111-2 at 8-10, to various reports relating to the TSA's "Screening Passengers Through Observations Techniques" ("SPOT") program, Dkt. 116 at 1; Dkt. 116-1 at 1-3. The TSA, for its part, does not engage on whether these records exist, but rather argues that Sai's request for "all" TSA policies and procedures-past and present-not already available through the agency's electronic reading room was vastly overbroad and that all that the agency could do was make a reasonable effort to respond to what it perceived to be the core of Sai's request. Dkt. 118 at 16-17.
The Court agrees with the TSA. An agency is required to respond to a FOIA request only if the request "reasonably describes" the records sought.
*249Tereshchuk v. Bureau of Prisons ,
Measured against this standard, there is little doubt that the Policies Request ''reasonably describe'' a class of documents subject to disclosure. Am. Fed'n of Gov't Emps. ,
The TSA, moreover, provided Sai with ample opportunity to refine the request. Shortly after Sai submitted the request, the TSA wrote to Sai, explaining: "After careful review of your FOIA request, we [have] determined that the request is too broad in scope or [does] not specifically identify the records [that] you are seeking." Dkt. 99-3 at 132 (McCoy Decl. Ex. T). The TSA, accordingly, invited Sai to "resubmit [the] request containing a reasonable description of the records [sought]" and cautioned that the "request [would] not be entered into [the agency's] processing queue until [it] receive[d] clarification."
Although the TSA did, in an exercise of "discretion," subsequently process Sai's request "to the extent" it was able "reasonably" to identify responsive records, id. at 31 (McCoy Decl. ¶ 93), it never agreed to search for "[a]ll TSA policy and/or procedures documents," past and present, Dkt. 118-1 at 5 (3d Supp. McCoy Decl. ¶ 17); Dkt. 118 at 16-17, nor-for the reasons explained above-was it required to do so. It is thus both unsurprising and unavailing that Sai has been able to identify "policy and procedures documents" that Sai says the TSA failed to release. The TSA represents that complying in full with Sai's request "would have created an extreme burden on and undue hardship for the entire agency and, in particular, the FOIA Branch." Dkt. 118-1 at 6 (3d Supp. McCoy Decl. ¶ 19). That assertion is entitled to a presumption of good faith, SafeCard Servs. ,
Even though the TSA was not required to respond to Sai's unrefined Policies Request, it nonetheless made a good faith effort to provide at least a partial response. The FOIA Branch tasked-and, on occasion, re-tasked-fifteen offices with searching for the records that the agency reasonably believed lay at the heart of *250Sai's request. Dkt. 99-3 at 31, 31-35 (McCoy Decl. ¶¶ 94-107). The McCoy declaration provides a detailed account of the efforts of each of these offices to locate potentially responsive records, while necessarily construing and limiting Sai's request to avoid the "unreasonable burden" that a full response would have entailed. Am. Fed'n of Gov't Emps. ,
Sai's opposition ignores the fact that the TSA reasonably, and lawfully, concluded that the request was overbroad and that the agency would have acted well within its rights had it simply declined to conduct any search until Sai accepted its invitation to clarify and narrow the request. See Dkt. 111-2 at 8-19. Apparently, in Sai's view, having provided some response, the TSA was obligated to provide a full response. That contention, however, is at odds with FOIA's "dominant objective" of disclosure. Rose ,
C. Withholdings
Sai also challenges the TSA's reliance of FOIA Exemptions 3, 5, 6, and 7(C) to withhold or to redact certain records. The Court will address each exemption in turn.
1. Exemption 3
FOIA Exemption 3 shields from disclosure materials that are "specifically exempted from disclosure by statute" so long as that statute "establishes particular criteria for withholding or refers to particular types of matters to be withheld."
Sai does not dispute that properly designated SSI is exempt from disclosure under both FOIA and the Privacy Act and, instead, argues that the TSA acted "without authority" in designating certain records as SSI. Dkt. 111-2 at 25. As Sai correctly observes,
This is not the first time that this Court has addressed whether it has jurisdiction to consider the contention that the TSA exceeded its authority in designating records that Sai sought as SSI. Shortly after Sai filed this action, the TSA moved to strike the complaint to the extent it sought to challenge the TSA's designation of information as SSI. Dkt. 51 at 9. Such a challenge, the TSA argued, must be brought-if at all-in the Court of Appeals.
In returning to this issue, Sai now argues that the TSA improperly designated certain information as SSI in violation of
To start, the language of § 46110(a) draws no distinction between review of SSI determinations based on § 114(r)(1) -which defines the circumstances under which an SSI designation is proper-and those based on § 114(r)(4) -which defines the circumstances under which such a designation is improper. Compare
The statute does not distinguish between the subparagraphs of § 114(r) ; rather, the courts of appeals have exclusive jurisdiction over all challenges to orders premised on § 114(r). Sai argues that the distinction Sai proposes can be found in Congress's use of the word "order." See Dkt. 111-2 at 26. Although some SSI designations constitute "orders," those that are ultra vires are not "orders" and thus not subject to § 46110(a).
Finally, Sai suggests that, in responding to a separate FOIA request submitted by the ACLU, the TSA publicly disclosed portions of the information that it claimed in Sai's case were exempt from disclosure as SSI. Dkt. 116-1 at 1 (records released to Sai contained "more SSI redaction[s] than made" to records released to the ACLU). To the extent Sai intends to invoke the "official acknowledgement" doctrine, a three-part showing is required: "First, the information [Sai] requested must be as specific as the information previously released. Second, the information requested must match the information previously disclosed .... Third, ... the information requested must already have been made public through an official and documented disclosure." Fitzgibbon v. CIA ,
The TSA does not dispute that the ACLU may have received information that was withheld from Sai as SSI, but urges the Court to reject Sai's "official acknowledgement" argument for three reasons. First, it argues that because Sai has evidently already obtained the withheld material from the ACLU website, Sai's claim is now "moot." Dkt. 118 at 29-30. In support of this contention the TSA cites to the D.C. Circuit's decision in Crooker v. U.S. State Department ,
The TSA also returns to the theme that Sai's Policies Request was vastly overbroad and that, as a result, it cannot be faulted for failing to find and release every responsive record. The ACLU's request, the TSA contends, was "comparatively tailored" in seeking records relating to the "TSA's behavior detection programs" and thus, unsurprisingly, resulted in a more complete production of those records. Dkt.
*254118 at 31. That argument is, as noted above, persuasive as far as it goes. It fails to explain, however, why the TSA redacted SSI from records released to Sai, but, according to Sai, did not in every instance redact the same purported SSI from the records released to the ACLU. Dkt. 116-1 at 1-2. The TSA's excessive burden argument has no application in this context.
This, then, leaves the TSA's final argument, which is more promising but remains incomplete. As the TSA explains, after it released records to Sai in response to the Policies Request in 2015, see Dkt. 99-3 at 35-37 (McCoy Decl. ¶¶ 109-11), the ACLU-in pressing its own FOIA request-convinced the TSA to "withdr[a]w some of the identified redactions" the agency had previously made, and the TSA "re-released" the relevant records. Dkt. 118-1 at 6-7 (3d Supp. McCoy Decl. ¶ 23). To the extent the TSA revisited its SSI determinations after it released the responsive records to Sai, the TSA is correct that it did not have an obligation to "update or supplement [its] prior response." See James v. U.S. Secret Serv. ,
On the present record, however, the Court cannot determine with any certainty whether the TSA released information to the ACLU prior to responding to Sai's FOIA request, while withholding that same information from Sai. For present purposes, the TSA merely asserts that it "made a diligent, good-faith effort to ensure consistency with respect to the information withheld." Dkt. 118-1 at 6 (3d Supp. McCoy Decl. ¶ 22). Ultimately, Sai will bear the burden of demonstrating that the TSA officially released information to the ACLU and, then, later withheld that same information from Sai based on Exemption 3. See Cottone v. Reno ,
2. Exemption 5
Exemption 5 protects "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency."
The deliberative process privilege protects "documents 'reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.' " Sears, Roebuck & Co. ,
"To qualify for withholding under Exemption 5's executive privilege, information must be both 'predecisional' and 'deliberative.' " Petroleum Info. Corp. v. U.S. Dep't of Interior ,
The McCoy declaration offers explanations for each of the TSA's invocations of the deliberative process privilege. She attests that, in responding to the BOS 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 *256deliberative-the records "reflect the open consultative process between program offices" considering "how to respond" to the complaints. Dkt. 99-3 at 13 (McCoy Decl. ¶ 39). Similarly, in responding to the SFO Request, the TSA once again invoked Exemption 5 to withhold information that was both predecisional-the information pertained to "prospective agency action"-and deliberative-it reflected deliberations involving agency counsel regarding how the agency should respond to "administrative complaints against [the] TSA." Id. at 26 (McCoy Decl. ¶ 83(c) ). It reached the same conclusion with respect to other predecisional deliberations regarding (1) the Disability Branch's assessment of how to handle Sai's "administrative complaint[s]," (2) the investigation, collection, and analysis of information relating to Sai's "administrative complaints," (3) "hypothetical checkpoint screening scenarios involving medically exempt liquids," and (4) "a draft ... letter ... to Congresswoman Nancy Pelosi's office regarding [Sai's] administrative complaint." Id. at 26-28 (McCoy Decl. ¶¶ 84-85). Finally, in responding to the Policies Request, the TSA withheld "a memorandum and a PowerPoint presentation ... prepared in anticipation of a briefing to the Secretary of DHS regarding airport security measures," which "reflect proposals and recommendations regarding agency action."Id. at 40 (McCoy Decl. ¶ 118(b) ).
Sai challenges the TSA's reliance on the deliberative process privilege on five grounds: First, Sai contends that information that the TSA shared with Corbin Stewart in an email falls beyond the privilege because "a simple Google search" and the email format (i.e. the capitalization of Stewart's name) demonstrate that Stewart was not a TSA or DHS employee.8 Dkt. 111-2 at 24. Even if Stewart was not a TSA or DHS employee, the deliberative process privilege might still apply. See, e.g., Competitive Enter. Inst. v. EPA ,
*257Schrecker v. U.S. Dep't of Justice ,
Second, Sai argues that portions of the withheld information responsive to his SFO Request reflect facts, not deliberations. Dkt. 111-2 at 24-25. The TSA counters that this contention is "without any substantive or logical support." Dkt. 118 at 22. It is the TSA, however, that bears the burden of establishing that the deliberative privilege was properly invoked, Senate of the Commonwealth of P.R. ,
Third, Sai maintains that one document uses the phrase "we decided," demonstrating in Sai's view that the document is post-decisional; that a second document contains a "post-decisional response and re-training;" and, more generally, that "policies, memoranda of law, and similar documents" are "post-decisional" and thus not protected by the privilege. Dkt. 111-2 at 25. Sai's first contention-that the use of past-tense "we decided" indicates that the document is post-decisional-has little force. The mere fact that a document uses the past tense does not resolve whether it falls within Exemption 5. The unredacted portions of the document do not indicate that the redacted portions are anything other than what TSA says: "internal predecisional discussions regarding prospective agency action." Dkt. 99-3 at 116 *258(McCoy Decl. Ex. Q). The document in question reads: "We decided to hold-off on sending Sai and [redacted, citing Exemption 6] to DHS. With Sai, we are [redacted, citing Exemption 5]." See Dkt. 145-2 at 77. Significantly, the TSA disclosed what had been decided-not to "send[ ] Sai"-and only redacted other information that the TSA attests was predecisional. The same is true with respect to the document Sai characterizes as containing "post-decisional response and re-training." Dkt. 111-2 at 25. Although the redacted record is part of an email chain that discusses training on how to screen medical liquids, Dkt. 144-3 at 197, it is not evident that the redacted information relates to the Disability Branch's review of Sai's Rehabilitation Act complaints, id. at 197, and there is no reason to question the TSA's representation that its review was ongoing, Dkt. 99-3 at 111 (McCoy Decl. Ex. Q). Finally, with respect to Sai's contention that "policies, memoranda of law, and similar documents" are "post-decisional" and thus not protected by the deliberative process privilege, this attack is far too amorphous to defeat TSA's motion for summary judgment. Sai does not identify what documents were improperly redacted or withheld, and fails to develop the contention with sufficient detail (or, indeed, any detail) to permit the Court to consider it on the merits.
Fourth, Sai contends that the "TSA made inconsistent redactions of identical information, demonstrating the arbitrary and capricious nature of its" invocation of Exemption 5. Dkt. 111-2 at 22 (citing "2013-TSPA-00339 Bates 266 (unredacted) vs[.] 428, 431 (redacted); 106 (unredacted) vs[.] 294, 295, 300 (redacted); 214 (unredacted) vs[.] 287 (redacted)"). Sai 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. Sai 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. See Crooker ,
Finally, Sai argues that "all of TSA's privilege claims"-including the deliberative, work product, and attorney-client privilege-"are void" because the "TSA deliberately obstructed the processing of" Sai's FOIA request and administrative complaints. Dkt. 111-2 at 37, 39-40. For support, Sai cites to email correspondence suggesting that TSA officials decided to "hold-off" on processing Sai's Rehabilitation Act complaints. Id. at 37-41. "Taken together," Sai argues, the email correspondence demonstrates that the TSA was engaged in a "deliberate cover-up[ ]" of "felony obstruction of justice in refusing to process, delaying the processing, and refusing to release the results of two former federal civil rights investigations." Id. at 39. From this, Sai then posits that the crime-fraud exception-or some similar doctrine-precludes the TSA from relying on any common-law privilege. Id.
This imaginative contention merits only cursory discussion. As the D.C. Circuit has explained:
*259To establish the [crime-fraud] exception to the attorney-client privilege, the court must consider whether the client "made or received the otherwise privileged communication with the intent to further an unlawful or fraudulent act," and establish that the client actually "carried out the crime or fraud." In re Sealed Case ,107 F.3d 46 , 49 (D.C. Cir. 1997). To establish the exception to the work-product privilege, courts ask a slightly different question, focusing on the client's general purpose in consulting the lawyer rather than on his intent regarding the particular communication: "Did the client consult the lawyer or use the material for the purpose of committing a crime or fraud?"Id. at 51 .
In re Sealed Case ,
3. Exemptions 6 & 7(C)
FOIA Exemptions 6 and 7(C) protect personal privacy. The two exemptions protect similar interests, but they differ in scope. Exemption 6 shields "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
Exemption 7(C) applies to a narrower category of records than Exemption 6, but it offers more robust protection of those records. See Tracy v. U.S. Dep't of Justice ,
Here, the TSA invoked Exemption 6 in support of each of the redactions that it made on privacy grounds. It also relied on Exemption 7(C) with respect to one narrow subset of redactions-those designed to protect the identities of local law enforcement officers. Because Exemption 7(C) is more protective than Exemption 6, the Court will apply the Exemption 7(C) standard to this one subset of redactions, but will otherwise apply the Exemption 6 standard. Before applying these standards, however, the Court first addresses Sai's threshold contentions that the TSA's privacy redactions were improper because (1) disclosure was required under
Sai's first argument is a nonstarter. Sai is correct that
Sai's second contention-the redacted private information is already known to Sai-is equally unavailing. Agencies releasing records pursuant to FOIA requests must be mindful that "[d]ocuments released in a FOIA action must be made available to the public as a whole." Stonehill v. IRS ,
Third, Sai's contention that similar information was not redacted "in other cases" is also unpersuasive. It is unclear what Sai means by this. To the extent Sai means that the TSA disclosed the names or contact information of agency employees to other FOIA requesters involved in other litigation, that contention does not undercut the TSA's reliance on Exemptions 6 and 7(C) here. The "standards for invoking the [official-acknowledgement] doctrine are high." Shapiro , 153 F.Supp.3d at 285. "Prior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure." Wolf , 473 F.3d at 378. Nor does a prior disclosure of "similar" information suffice to show that the asserted privacy interest is not real. As the D.C. Circuit has recognized, the appropriate balance between "the privacy interest in non-disclosure [and] the public interest in the release of the records" necessarily varies from case to case. See Lepelletier v. FDIC ,
Finally, Sai contends that "[t]he official contact information of federal officials has no relation to their 'personal privacy' " and that "[t]he disclosure of the identities of officials involved in [Sai's] Rehabilitation Act complaints is not 'clearly unwarranted.' " Dkt. 111-2 at 23 (emphasis removed). As the TSA's Vaughn index and the redacted documents show, the TSA redacted the following information, which Sai now seeks: (1) the names and contact information for non-TSA employees, including local law enforcement officers, see Dkt. 99-3 at 74-75 (McCoy Decl. Ex. H); Dkt. 143-2 at 1-2, Dkt. 146-2 at 4-7, 10, 13-14, 16; contract employees, see Dkt. 99-3 at 103 (McCoy Decl. Ex. Q); Dkt. 144-3 at 41, 139, 182; Dkt. 145-1 at 7, 12; and a congressional staffer, see Dkt. 99-3 at 117 (McCoy Decl. Ex. Q); Dkt. 145-2 at 84; (2) TSA employees' non-work-related personal information, compare Dkt. 99-3 at 105, 108 (McCoy Decl. Ex. Q), with Dkt. 144-3 at 63, 142; (3) email addresses and telephone numbers for a DHS employee working in the Office of Chief Counsel and a TSA employee working in the agency's Disability Branch, Dkt. 144-3 at 109, Dkt. 145-2 at 84; and (4) names and contact information for TSA employees found in policy documents prepared for internal use, see Dkt. 99-3 at 170-71, 174 (McCoy Decl. Ex. Y); Dkt. 133-2 at 29-30, 33, 35, 93; Dkt. 134-1 at 6, 43.
The TSA explains that release of the "personal identifying information" in the redacted records "could expose [the government officers] to unnecessary unofficial questioning, harassment, and stigmatization." Dkt. 99-3 at 14 (McCoy Decl. ¶ 42). This concern is a reasonable one, TSA asserts, because "the personal identifying information in these records would necessarily identify the individual" as "having played a particular role in an incident, or complaining about a particular incident" and would reveal the locations where the individuals work and how to contact them.
Starting with the privacy interest of the local law enforcement officers in preventing disclosure of their identity, the Court has no basis to question the TSA's good-faith representation that these records were compiled for law enforcement purposes, nor does Sai argue to the contrary. The Court must, accordingly, apply the Exemption 7(C) standard to assess whether the TSA has met its burden of showing that the redactions were proper. The D.C. Circuit has "adopted a categorical rule permitting an agency to withhold information identifying private citizens mentioned in law enforcement records, unless disclosure is 'necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity.' " Schrecker v. U.S. Dep't of Justice ,
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. In both cases, moreover, there is no discernible public interest in the redacted information. All that the public would learn in one case is who Zachary Bromer, a TSA employee, hoped "enjoyed herself today," Dkt. 144-3 at 63 ("I hope [redacted] enjoyed herself today"), and why, in another case, another TSA employee was unavailable "to provide a statement," id. at 142. 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." Beck v. Dep't of Justice ,
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 disclosure of names and contact information "is not inherently and always a significant threat to ... privacy," Horner ,
*263The TSA has failed to explain, for example, how the release of contact information for the TSA and contract employees that handled Sai's complaint would constitute a "clearly unwarranted" invasion of their privacy. It has not explained-nor is it obvious from the face of the documents-that TSA contract employees, the DHS Office of Chief Counsel employee, or the TSA Disability Branch employee played "a particular role in an incident" or "complain[ed] about a particular incident" such that the release of their information would subject them to a real risk of annoyance or harassment. See Dkt. 99-3 at 14 (McCoy Decl. ¶ 42). And, it has not explained why TSA employee names and professional contact information contained in the policy documents implicate a substantial privacy interest. A substantial privacy interest may well be at stake but, on the current record, the TSA has not met its burden with respect to the following redactions: Dkt. 133-2 at 29-30, 33, 35, 93 (2015-TSLI-00004 Bates 2267-68, 2271, 2273, 2331); Dkt. 134-1 at 6, 43 (2015-TSLI-00004 Bates 2355, 2392); Dkt. 144-3 at 109 (2013-TSPA-00339 Bates 181); Dkt. 144-3 at 41, 139, 182 (2013-TSPA-00339 Bates 113, 211, 254); Dkt. 145-1 at 7, 12 (2013-TSPA-00339 Bates 279, 284); and Dkt. 145-2 at 84 (2013-TSPA-00339 Bates 481).
D. Segregability
Sai also challenges TSA's assertion that it released all reasonably segregable records in response to the Policies Request. See Dkt. 111-2 at 20. FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions [that] are exempt."
Sai presses two arguments related to segregability, both of which turn on arguments considered, and rejected, above. Sai first argues that the TSA improperly failed to release various Standard Operating Procedures ("SOPs")-or alternative versions of SOPs-that Sai sought in the Policies Request. But, as discussed above, the request was defectively overbroad, and the fact that the TSA made an effort to answer the request in part did not obligate the agency to release every policy or procedure document that it had ever created, and was not already available in the TSA's electronic reading room. See supra Part III.B.2. Sai's assertions learned from "confidential source(s)," mistakenly released records, and documents posted by third parties that purport to represent "authentic" copies of TSA documents, Dkt. 111-2 at 19-21, does not change that conclusion. Second, Sai contends that inconsistencies in the TSA's redactions under the deliberative process privilege show that the agency has not released certain segregable *264material. Id. at 22. But, as also discussed above, those minor inconsistencies do not establish a lack of good faith, and, in any event, Sai has already received copies of the less thoroughly redacted records. See supra Part III.C.2.
More generally, Sai fails to identify any evidence that the TSA withheld records in whole based on a valid FOIA exemption, where a portion of those records were reasonably segregable and could have been released without disclosing the exempt information. The Court, moreover, has reviewed the various Vaughn indices that the TSA has submitted in support of its motion, see Dkt. 99-3 at 73-76 (McCoy Decl. Ex. H); id. at 102-20 (McCoy Decl. Ex. Q); id. at 160-74 (McCoy Decl. Ex. Y), and those indices demonstrate that the agency redacted the exempt portions of otherwise responsive records where possible. The Court, accordingly, concludes that with respect to records that the TSA released, it has met its obligation to release reasonably segregable portions.
E. Allegations of Bad Faith and Misconduct
The remainder of Sai's opposition contains a variety of other accusations that the TSA has engaged in misconduct. Construed liberally, these allegations may present an argument-albeit a flawed one-that the TSA acted in bad faith in responding to the requests and that, in light of this bad faith, Sai should be allowed to conduct discovery regarding the TSA's actions. Among these claims, Sai argues that TSA despoiled CCTV video of the Logan Airport incident. Dkt. 111-2 at 34-36. In support of this contention, Sai posits that (1) TSA policy requires 15 "[c]amera views" of each passenger during screening and requires that the surveillance video be maintained for 30 days; (2) Sai submitted a FOIA request seeking the Logan Airport surveillance video within that 30-day window; (3) the TSA released only one video showing Sai's screening at Logan Airport and informed Sai that no other video exists; and (4) "the only possible conclusion is that TSA and BOS committed spoliation." Id. at 35-36.
That theory, however, cannot be squared with McCoy's declaration, submitted under the penalty of perjury, which recounts that "BOS searched for responsive records including closed circuit television (CCTV)" and located "one CCTV video of the incident." Dkt. 99-3 at 6 (McCoy Decl. ¶ 15). As this Court has explained, agency declarations, like McCoy's, "are accorded a presumption of good faith," and that presumption "cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.' " SafeCard Servs. ,
Sai also argues that TSA violated Sai's rights under the Privacy Act by documenting "protected First Amendment speech" at checkpoints, including documentation of the "parody DHS" t-shirt Sai was wearing while going through the Logan Airport screening and Sai's act of partially disrobing at the O'Hare Airport screening. Dkt. 111-2 at 33-34. For support, Sai cites to 5 U.S.C. § 552a(e)(7), which provides that "[e]ach agency that maintains a system of records shall ... maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity." This argument, however, is not properly before the Court because Sai brought this suit to "challeng[e] the failure of [the TSA] to respond to plaintiff Sai's multiple requests for records," Dkt. 5 at 1 (Compl. ¶ 1), not to challenge the content of those records.9
Finally, Sai argues that the TSA deliberately delayed processing the Logan and San Francisco Airport Rehabilitation Act complaints. Dkt. 111-2 at 37-40. Those contentions, however, also have nothing to do with the present action. Indeed, this Court has previously resolved Sai's separate lawsuit raising just that issue. See Sai , 149 F.Supp.3d at 99. Sai offers no basis to conclude that the TSA's delay in processing the Rehabilitation Act complaints shows that it improperly withheld records responsive to Sai's FOIA requests. Cf. House v. U.S. Dep't Justice ,
The Court, accordingly, 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.
CONCLUSION
For these reasons, the Court will GRANT in part and will DENY in part the TSA's motion for summary judgment. In particular, the motion is granted, except as to the following issues, which will require further development: (1) Did the TSA fail to comply with E-FOIA notwithstanding its failure to release the electronic records sought in Sai's BOS and SFO Re-Requests in their original format and its failure to release records responsive to the Policies Request in "discretized," "fully digital," non-"rasterized" text PDFs; (2) Did the TSA release any spreadsheets in response to Sai's Policies Request; (3) Does the TSA possess legible copies of Dkt. 143-2 at 3, 6-7 (2013-TSPA-00368 Bates 003-004, 006-007); Dkt. 141-2 at 9-10 (2013-TSFO-01096 Bates 009-010); (4) Is the TSA required to search its FOIA Branch, Office of Legislative Affairs, Office of Chief Counsel, and Office of the Executive Secretariat for records responsive to Sai's BOS and SFO Requests and Re-Requests; (5) Did the TSA's searches for records responsive to the BOS and SFO Requests and Re-Requests cover the relevant timeframe, that is, from the date of the relevant incident to the date the relevant search commenced; (6) Did the TSA conduct a search reasonably calculated to locate responsive records with respect to *266the databases searched in response to the BOS and SFO Re-Requests and with respect to the search terms used to search the offices described in Part II.B.2 in response to the BOS and SFO Requests and Re-Requests; (7) Did the TSA redact information pursuant to Exemption 3 that was previously released to the ACLU prior to responding to Sai's Policies Request; (8) Did the TSA properly redact factual information responsive to Sai's SFO Request pursuant to Exemption 5; (9) Does the redacted contact information for TSA contract employees, a DHS Office of Chief Counsel employee, and a TSA Disability Branch employee implicate a "substantial privacy interest" under Exemption 6; and (10) Does the redacted contact information of TSA employees contained in policy documents implicate a "substantial privacy interest" under Exemption 6.
Finally, the Court further concludes that Sai has failed to demonstrate that discovery is warranted in this FOIA/PA action.
The Court will set a briefing schedule in a separate order for the parties to address these (and only these) remaining issues.
SO ORDERED .
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Cite This Page — Counsel Stack
315 F. Supp. 3d 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sai-v-transp-sec-admin-cadc-2018.