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Tooley v. Bush

December 21, 2006

SCOTT TOOLEY, PLAINTIFF,
v.
PRESIDENT GEORGE W. BUSH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Scott Tooley has brought a somewhat opaque four-count Complaint before this Court. As initially brought, Plaintiff's Complaint appeared to assert three claims, Count I (Constitutional Tort - Fourth Amendment Violation); Count II (Constitutional Tort - Right to Privacy Violation); and Count III (First Amendment Violations), against a total of six defendants -- President George W. Bush, Vice President Richard B. Cheney, Attorney General Alberto Gonzales, Secretary of the Department of Homeland Security Michael Chertoff, Administrator of the Transportation Security Administration Edmund ("Kip") Hawley, and former head of the National Security Agency, General Michael Hayden. Counts I, II and III of Plaintiff's Complaint are asserted against President Bush, Vice President Cheney, and General Hayden solely in their individual capacities, while the same claims are asserted against Attorney General Gonzales, Secretary Chertoff, and Administrator Hawley in both their individual and official capacities. In addition, Count IV of Plaintiff's Complaint (Declaratory Judgment: FOIA Requests) seeks declaratory judgment against Attorney General Gonzales, Secretary Chertoff, and Administrator Hawley in their official capacities, based on Freedom of Information Act ("FOIA") requests filed with these defendants' respective agencies.

On November 30, 2006, the Court issued an Order pursuant to Federal Rule of Civil Procedure 4(m) requiring Plaintiff to inform the Court as to whether he had served any of the six named defendants in their individual capacities. In response, on December 15, 2006, Plaintiff filed a Notice of Voluntary Dismissal Without Prejudice, indicating that he had decided not to proceed with claims against any defendants in their individual capacities at this time, and was instead voluntarily dismissing this action against all defendants in their individual capacities. See Pl.'s Resp. to Rule 4(m) Order and Notice of Voluntary Dismissal Without Prejudice as to Individual Defendants. As such, the only remaining defendants to this action are Attorney General Gonzales, Secretary Chertoff, and Administrator Hawley (collectively "Defendants"), who are sued, solely in their official capacities, on all four Counts of Plaintiff's Complaint.*fn1

Presently before the Court is Defendants' motion for summary judgment as to Plaintiff's FOIA Count, and to dismiss Plaintiff's other three Counts pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction. Upon a searching review of the pleadings filed by Defendants and Plaintiff, the attached memoranda, declarations, and exhibits, and the relevant case law, the Court shall grant Defendants' motion for summary judgment as to Count IV of Plaintiff's Complaint, and shall grant the Defendants' motion to dismiss as to Counts I, II, and III of Plaintiff's Complaint.

I. BACKGROUND

A. Events Leading Up to Plaintiff's Filing of His FOIA Request

Plaintiff, Scott Tooley, was born in Nebraska and currently resides in Louisville, Kentucky. Tooley Aff. ¶¶ 1-2. Plaintiff holds a Bachelor of Science degree, as well as a Juris Doctor degree, and was previously employed on Capitol Hill as the Systems Administrator for former Congressman and current Chairman of the Securities and Exchange Commission, Christopher Cox. Id. ¶ 2. During the Spring of 2002, Plaintiff telephoned Southwest Airlines ("Southwest") to purchase airline tickets. Compl. ¶ 18. After providing his name, address, and credit card number, Plaintiff was asked whether he had any "comments, questions, or suggestions for Southwest Airlines." Id. In response to this question, Plaintiff stated that as a member of the traveling public, he would like "100 percent of everything that goes into the airplane, including cargo, to be fully screened." Tooley Aff. ¶ 4; Compl. ¶ 19. Plaintiff was asked why such a course of action was necessary and responded that the traveling public, including Plaintiff himself, "was less safe due to the potential that those who wish to harm American citizens could put a bomb on a plane." Tooley Aff. ¶ 5; Compl. ¶ 20.

Plaintiff alleges that thereafter -- specifically in the Fall of 2003 -- he began to notice what he describes as problematic phone connections, including "telltale" intermittent clicking noises, which continued through the filing of his Complaint. Compl. ¶ 21. Plaintiff alleges "upon information and belief" that his telephone problems are caused by illegal wiretaps, which were placed in response to the comments Plaintiff made while booking his flight with Southwest Airlines. Id. Indeed, Plaintiff alleges (also upon information and belief) roving wiretaps were placed on "his residential landline phone; his landline phone at his former Virginia Beach residence; his cellular phone; his wife's cellular phone; his father's phone; his brother's phone; his sister's phone; his in-laws' phone; and his family's phone in Lincoln, Nebraska where relatives from France made calls from France to the home, where [Plaintiff] was visiting his mother for the week." Id. ¶ 22.

Plaintiff's Complaint states that "Defendant Bush has admitted that, on numerous occasions since 2001, he ordered wiretaps and other domestic surveillance on American citizens . . . " and alleges upon "information and belief [that] Defendant Cheney also ordered the wiretaps and other domestic surveillance on American Citizens." Id. ¶ 38. Plaintiff states that "[u]pon information and belief, those wiretaps have been ordered without the issuance of a warrant by a court of appropriate jurisdiction . . . ," id. ¶ 39, and that "Defendant Bush's eavesdropping order also did not fall within any legislative exception to established legal procedure," id. ¶ 42. Plaintiff alleges that "Defendants jointly and severally conceived, ordered, and implemented the illegal wiretapping scheme," Compl. ¶ 45, and that "[u]pon information and belief, [Plaintiff] is one of the victims of Defendants' highly secret and illegal wiretapping scheme," id. ¶ 47.

In addition to alleging that he has been the subject of wiretaps, upon information and belief, Plaintiff further alleges that his vehicle and his wife's vehicle have both been "illegally subjected to permanent Radio Frequency Identification Tags ("RFIT") that monitor their vehicle movements." Id. ¶ 23. Plaintiff's Complaint alleges that when Plaintiff travels by airplane, he is improperly detained and subject to a strict search "without any probable cause." Id. ¶ 24. In his Affidavit, submitted in support of his Opposition to Defendant's motion to dismiss and for summary judgment, Plaintiff provides further detail, averring that in July 2004 he was subjected to a "degrading and unreasonable search" at Omaha, Nebraska's Eppley Airfield, in which his name was broadcast over the PA system as someone who needed further screening, and a TSA officer thereafter pulled him aside and, in full view of Plaintiff's fellow passengers, asked Plaintiff to expose the area above his groin and subjected Plaintiff to a backhanded pat-down. Tooley Aff. ¶ 14. Plaintiff states that these detentions and strict searches have occurred every time he traveled prior to filing this suit. Id. ¶ 15.

Plaintiff's Affidavit adds further allegations not included in Plaintiff's Complaint, specifically that in March 2005, during the week preceding and the week of a visit by President Bush to Louisville, Kentucky, "an officer in a Ford Crown Victoria sat out in front of [Plaintiff's] home for approximately six (6) hours a day. Id. ¶ 19. Plaintiff also alleges in his Affidavit that in March 2006, he was subjected to physical monitoring and roving wiretaps during a trip to Fort Worth, Texas for his brother's wedding. Id. ¶ 16. Moreover, Plaintiff's Complaint and Affidavit state that he believes that "he has been placed on one or more terrorist watch lists and is being illegally monitored by Defendants" as a result of his comments to the Southwest ticketing agent. Compl. ¶ 25; Tooley Aff. ¶ 13.

B. Plaintiff Files His FOIA Request

In an effort to obtain information concerning what he perceives as improper governmental surveillance, on October 3, 2005, Plaintiff submitted requests under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, to the Department of Justice ("DOJ"), the Department of Homeland Security ("DHS"), and the Transportation Security Administration ("TSA"). Compl. ¶¶ 26-27; Off. Capacity Defs.' Stmt. of Mat. Facts as to Which There is No Genuine Issue (hereinafter "Defs.' Stmt. of Mat. Facts") ¶ 1. Plaintiff's FOIA requests sought "all filings, correspondence, memoranda, documents, reports, records, statements, audits, lists of names, applications, diskettes, letters, expense logs and receipts, calendar or diary logs, facsimile logs, telephone records, call sheets, tape records [sic], video recordings, notes, examinations, and/or referenced opinions, folders, files, books, manuals, pamphlets, forms, drawings, charts, photographs, electronic mail, and any other documents or things that refer to . . . Scott Tooley." Defs.' Stmt. of Mat. Facts ¶ 2 (citing Hardy Decl., Ex. A at 2-3 (10/3/05 FOIA Request to DOJ); Kendrick Decl., Att. 1 at 1-2 (10/3/05 FOIA Request to DHS); and Pavlick Decl., Ex. A at 2-3 (10/3/05 FOIA Request to TSA)).

1. Plaintiff's FOIA Request to DOJ

Plaintiff addressed his FOIA request to DOJ to the FOIA/PA Referral Unit of the Justice Management Division ("JMD"), Defs.' Stmt. of Mat. Facts; Defs.' Mot. to Dismiss/Summ. J., Ex. A (5/1/06 Decl. of David M. Hardy) (hereinafter "Hardy Decl."), Ex. A at 2-3 (10/3/05 FOIA Request to DOJ), which routed Plaintiff's FOIA request to three components of DOJ: the Federal Bureau of Investigation ("FBI"); the Executive Office of United States Attorneys ("EOUSA"); and DOJ's Criminal Division, see id. at 1 (JMD Routing Slip).

a. The FBI

The FBI received Plaintiff's FOIA request from JMD on October 25, 2005. Hardy Decl. ¶ 5. Thereafter, the FBI searched for records potentially responsive to Plaintiff's FOIA request by searching its Central Records System ("CRS"). Defs.' Stmt. of Mat. Facts ¶ 8 ; Hardy Decl. ¶ 19. The CRS is the system by which the FBI maintains all information acquired in the course of fulfilling its law enforcement responsibilities, including "administration, applicant, criminal, personnel, and other files compiled for law enforcement purposes, arranged by subject matter." Defs.' Stmt. of Mat. Facts ¶ 9; Hardy Decl. ¶ 8. The CRS is accessed through the General Indices, which includes entries, arranged in alphabetical order, that fall into two categories: (a) "main" entries, which carry names corresponding with a subject of a file contained in the CRS; and (b) "reference" entries, which are mentions or references to an individual or organization contained in documents located in another "main" entry. Defs.' Stmt. of Mat. Facts ¶¶ 10-11; Hardy Decl. ¶¶ 9-10, 14. The FBI searched the CRS General Indices for Plaintiff's name, using fifteen different combinations of his first, middle, and last names, as well as his date of birth and Social Security number. Defs.' Stmt. of Mat. Facts ¶ 15; Hardy Decl. ¶ 19. This search failed to locate any main investigatory files responsive to Plaintiff's FOIA request at FBI headquarters. Defs.' Stmt. of Mat. Facts ¶ 16; Hardy Decl. ¶ 19.

In a letter dated October 28, 2005, the FBI notified Plaintiff that its search of the CRS at FBI headquarters had located no documents responsive to Plaintiff's FOIA request, and that Plaintiff could appeal the FBI's "no records" response in writing to the DOJ's Office of Information and Privacy within sixty (60) days. Defs.' Stmt. of Mat. Facts ¶¶ 17-18; Hardy Decl. ¶ 6; Hardy Decl., Ex. B (10/28/05 letter from D. Hardy to L. Klayman). As of March 15, 2006, DOJ had no record of receiving an administrative appeal from Plaintiff with regard to the FBI's October 28, 2005 "no records" response. Defs.' Stmt. of Mat. Facts ¶ 24; Hardy Decl. ¶ 7. Nevertheless, upon receiving Plaintiff's Complaint in this litigation, the FBI opted to a conduct a second search, this time searching the CRS for cross-references. Defs.' Stmt. of Mat. Facts ¶ 19; Hardy Decl. ¶ 20. This second search also failed to locate any main files or cross-references responsive to Plaintiff's FOIA request at FBI headquarters. Defs.' Stmt. of Mat. Facts ¶ 20; Hardy Decl. ¶ 20. In addition, after receiving Plaintiff's Complaint, the FBI conducted a search of its Electronic Surveillance ("ELSUR") indices, which are a separate system of records from the CRS containing information on individuals who are or were (1) targets of direct surveillance; (2) participants in monitored conversations; or (3) owners, leasers, or licensors of premises where the FBI conducted electronic surveillance. Defs.' Stmt. of Mat. Facts ¶¶ 21-22; Hardy Decl. ¶¶ 16, 20. The FBI's search of the ELSUR indices also failed to locate any records responsive to Plaintiff's FOIA request. Defs.' Stmt. of Mat. Facts ¶ 23; Hardy Decl. ¶ 20.

b. EOUSA

EOUSA received Plaintiff's FOIA request from JMD on October 26, 2005. Defs.' Stmt. of Mat. Facts ¶ 25; Mot. of the Off. Capacity Defs. to Dismiss and for Summ. J. (hereinafter "Defs.' Mot. to Dismiss/Summ. J."), Ex. B (4/25/06 Decl. of Anthony J. Ciccone) (hereinafter "Ciccone Decl.") ¶ 4; Ciccone Decl., Ex. 1 (10/25/05 JMD Routing Slip). By letter dated November 8, 2005, EOUSA informed Plaintiff that it had received his FOIA request, and advised Plaintiff that "[s]ince the files . . . of United States Attorneys are located in more than 100 separate offices throughout the country, we ask that you identify the specific U.S. Attorney's office(s) where you believe the requested records exist. This would primarily be the district(s) in which prosecution or litigation occurred . . . . Once you have corrected the above deficiencies, please submit a new request for the documents." Defs.' Stmt. of Mat. Facts ¶ 28; Ciccone Decl. ¶ 12 & Ex.3 (11/8/05 letter from M. O'Rourke to L. Klayman) (emphasis in original). EOUSA's request for clarification was made pursuant to DOJ regulation, 28 C.F.R. § 16.3(b), which states that "[i]f a component determines that your request does not reasonably describe records, it shall tell you . . . so that you may modify it to meet the requirements of this section." Defs.' Stmt. of Mat. Facts ¶ 26; Ciccone Decl. ¶ 10. EOUSA's November 8, 2005 letter also informed Plaintiff that EOUSA considered the letter to be a final determination and that Plaintiff could appeal EOUSA's determination in writing within sixty (60) days to the DOJ's Office of Information and Privacy. Defs.' Stmt. of Mat. Facts ¶ 29; Ciccone Decl., Ex. 3 (11/8/05 letter from M. O'Rourke to L. Klayman). EOUSA has not received either a response to its deficiency notice or a superseding request from Plaintiff, nor does EOUSA have a record that Plaintiff filed an administrative appeal within 60 days of the November 8, 2005 deficiency notice. Defs.' Stmt of Mat. Facts ¶¶ 30-31; Ciccone Decl. ¶¶ 13-14.

c. DOJ Criminal Division

JMD referred Plaintiff's FOIA request to the DOJ Criminal Division on October 25, 2005. Defs.' Stmt. of Mat. Facts ¶ 32; Defs.' Mot. to Dismiss/Summ. J., Ex. C (4/20/06 Decl. of Kathy Hsu) (hereinafter "Hsu Decl.") ¶ 4 n.1; Hsu Decl., Ex. 1 (10/25/05 JMD Routing Slip). By letter dated November 22, 2005, the Criminal Division acknowledged receipt of Plaintiff's FOIA request and informed Plaintiff that the Criminal Division was unable to search for the records Plaintiff requested because Plaintiff had not furnished, as required by 28 C.F.R. § 16.41, a Privacy Act Identification and Request Form or a current descriptive list of the systems of records that Plaintiff wished searched. Defs.' Stmt. of Mat. Facts ¶¶ 33-34; Hsu Decl. ¶ 5; Hsu Decl., Ex. 2 (11/22/05 letter from T. McIntyre to L. Klayman). The Criminal Division enclosed the forms necessary to remedy these deficiencies with its November 22, 2005 letter, and informed Plaintiff that his request would be closed. Hsu Decl. ¶ 5; Hsu Decl., Ex. 2 (11/22/05 letter from T. McIntyre to L. Klayman). The Criminal Division's November 22, 2005 letter further informed Plaintiff that when the Criminal Division received Plaintiff's completed forms his request would be reopened under a different number, and that if Plaintiff chose to treat the November 22, 2005 letter as a denial of his FOIA request he could appeal the denial in writing within sixty (60) days to the DOJ Office of Information and Privacy. Id.

By letter dated December 21, 2005, Plaintiff returned the forms to the Criminal Division, indicating that he wanted the Criminal Division to search four systems of records for records responsive to his FOIA request. Defs.' Stmt. of Mat. Facts ¶¶ 35-36; Hsu Decl. ¶¶ 6, 10; Hsu Decl., Ex. 3 (12/21/05 letter from L. Klayman to T. McIntyre). The Criminal Division acknowledged receipt of the information provided by Plaintiff in a letter dated January 27, 2006, Defs.' Stmt. of Mat. Facts ¶ 37; Hsu Decl. ¶ 7; Hsu Decl., Ex. 4 (1/27/06 letter from T. McIntyre to L. Klayman), and subsequently searched the four systems of records identified by Plaintiff, Defs.' Stmt. of Mat. Facts ¶ 38; Hsu Decl. ¶ 11. The Criminal Division also searched an additional system of records, which is searched as a matter of course when the Criminal Division receives a request for records relating to any individual requester, and further requested that the Counterterrorism Section of the Criminal Division conduct a search for records responsive to Plaintiff's FOIA request. Defs.' Stmt. of Mat. Facts ¶¶ 39-40; Hsu Decl. ¶¶ 9, 11. None of these searches identified any records responsive to Plaintiff's FOIA request, and the Criminal Division so advised Plaintiff in a letter dated March 21, 2006. Defs.' Stmt. of Mat. Facts ¶¶ 41-42; Hsu Decl. ¶¶ 8, 13; Hsu Decl., Ex. 5 (3/21/06 letter from T. McIntyre to L. Klayman).

2. Plaintiff's FOIA Request to DHS

DHS responded to Plaintiff's FOIA request on October 5, 2005, advising Plaintiff that "[DHS] does not maintain a central index of records based on individual names," and that as a result DHS could not conduct an adequate search based on the information provided by Plaintiff in his FOIA request. Defs.' Stmt. of Mat. Facts ¶¶ 45-46; Defs.' Mot. to Dismiss/Summ. J., Ex. D (4/17/06 Decl. of J. Anthony Kendrick) (hereinafter "Kendrick Decl.") ¶ 8; Kendrick Decl., Ex. 2 (10/5/05 letter from C. Papoi to L. Klayman). DHS' October 5, 2005 letter requested that Plaintiff provide DHS with additional information, including "the DHS component agency you believe created and/or controls the records, the time period that you believe the records or files were created and the purpose for which the records were created." Kendrick Decl., Ex. 2 (10/5/05 letter from C. Papoi to L. Klayman). DHS further advised Plaintiff that if he provided the information described in the October 5, 2005 letter within sixty (60) days, DHS would undertake a search for responsive records; if, however, Plaintiff did not respond within sixty (60) days, DHS would administratively close Plaintiff's FOIA request. Defs.' Stmt. of Mat. Facts ¶ 47; Kendrick Decl. ¶ 8; Kendrick Decl., Ex. 2 (10/5/05 letter from C. Papoi to L. Klayman). DHS has no record of receiving any further communication from Plaintiff. Defs.' Stmt. of Mat. Facts ¶ 48; Kendrick Decl. ¶ 8.

3. Plaintiff's FOIA Request to TSA

TSA acknowledged Plaintiff's FOIA request by letter dated October 4, 2005. Defs.' Stmt. of Mat. Facts ¶ 49; Defs.' Mot. to Dismiss/Summ. J., Ex. E (5/1/06 Decl. of Catrina M. Pavlick) (hereinafter "Pavlick Decl.") ¶ 6; Pavlick Decl., Ex. C (10/4/05 letter from C. Pavlick to L. Klayman). On October 5, 2005, TSA's FOIA Officer, Catrina M. Pavlick, contacted Plaintiff's counsel, Larry Klayman, via telephone to discuss the scope of the request and to obtain more information about Plaintiff's association or contacts with TSA, in order to focus TSA's search for responsive records. Defs.' Stmt. of Mat. Facts ¶ 50; Pavlick Decl. ¶ 7. Mr. Klayman told Pavlick that Plaintiff believed himself to be on a TSA watch list as a result of comments he made to a Southwest Airlines representative and confirmed that Plaintiff sought any TSA record indicating that Plaintiff was on a TSA watch list. Pavlick Decl. ¶ 7. Based on this conversation, Pavlick understood that Mr. Klayman had narrowed the scope of Plaintiff's FOIA request, and TSA accordingly limited its initial search to records concerning the appearance of Plaintiff's name on a TSA watch list. Id. ¶¶ 7, 15; Defs.' Stmt. of Mat. Facts ¶¶ 51-52.

By letter dated November 14, 2005, TSA denied Plaintiff's request for expedited processing, and further advised Plaintiff that he was required to justify his request for a fee waiver based on six factors provided in the DHS FOIA regulation within ten days or his fee waiver would be denied. Pavlick Decl. ¶ 8; Pavlick Decl., Ex. D (11/14/05 letter from C. Pavlick to L. Klayman). Plaintiff did not provide the requested fee waiver justification, and TSA therefore denied his fee waiver request. Pavlick Decl. ¶ 8. Plaintiff appealed TSA's denial of his request for a fee waiver and expedited treatment in a letter dated December 6, 2005, reiterating that he believed immediate action was necessary regarding his FOIA request. Defs.' Stmt. of Mat. Facts ¶ 54; Pavlick Decl. ¶ 9; Pavlick Decl., Ex. E (12/6/05 letter from L. Klayman to C. Pavlick).

On December 7, 2005, TSA contacted Mr. Klayman via telephone, advised him that the TSA Office of the Ombudsman provides a watch list clearance protocol, and directed him to the TSA website so that Plaintiff could initiate the clearance process. Defs.' Stmt. of Mat. Facts ¶ 55; Pavlick Decl. ¶ 10. TSA subsequently officially responded to Plaintiff's FOIA request by letter dated December 8, 2005, in which TSA neither confirmed nor denied the existence of any records pertaining to Plaintiff on any TSA watch list, pursuant to 49 U.S.C. § 114(s) and 49 C.F.R. § 1520.15. Defs.' Stmt. of Mat. Facts ¶ 56; Pavlick Decl. ¶ 11; Pavlick Decl., Ex. F (12/8/05 letter from C. Pavlick to L. Klayman). TSA's December 8, 2005 letter also advised Plaintiff again of the TSA Office of the Ombudsman watch list clearance protocol and provided contact information for that office. Defs.' Stmt. of Mat. Facts ¶ 57; Pavlick Decl. ¶ 11; Pavlick Decl., Ex. F (12/8/05 letter from C. Pavlick to L. Klayman). By letter dated January 4, 2006, TSA responded to Plaintiff's appeal of TSA's denial of his requests for fee waiver and expedited processing by informing Plaintiff that it had responded to Plaintiff's FOIA request on December 8, 2005 and that there was no fee associated with processing his request. Defs.' Stmt. of Mat. Facts ¶ 62; Pavlick Decl. ¶ 12; Pavlick Decl., Ex. G (1/4/06 letter from C. Pavlick to L. Klayman).

Plaintiff appealed TSA's December 8, 2005 response to his FOIA request by letter dated February 7, 2006. Defs.' Stmt. of Mat. Facts ¶ 63; Pavlick Decl. ¶ 13; Pavlick Decl., Ex. H (2/7/06 letter from J. Goodman to D. Callen). Plaintiff appealed on two grounds: (1) that TSA's refusal to confirm or deny whether Plaintiff is on a watch list was unresponsive because Plaintiff's FOIA request was not limited to information concerning watch lists; and (2) that, even if the request encompassed information concerning TSA watch lists, Plaintiff was entitled to such information because he believed he was improperly placed on a watch list. Id. Based on Plaintiff's appeal, TSA initiated a more extensive search for responsive records by identifying ten offices that were most likely to have records concerning members of the general public and requesting that those offices search for responsive documents. Defs.' Stmt. of Mat. Facts ¶¶ 64-65; Pavlick Decl. ¶ 16. These offices included: Executive Secretariat, Office of Chief Counsel, Legislative Affairs, Office of Transportation Security Intelligence, Operations and Technical Training Divisions, Internal Affairs, Office of Human Capital, Security Operations, Office of Threat Assessment and Credentialing ("TTAC"), and the Office of the Ombudsman. Defs.' Stmt. of Mat. Facts ¶ 66; Pavlick Decl. ¶ 16.

Eight of these ten offices failed to locate any documents responsive to Plaintiff's FOIA request, while two of the ten offices -- the Office of the Ombudsman and TTAC -- each located a record that may be responsive to Plaintiff's request. Defs.' Stmt. of Mat. Facts ¶¶ 67-68; Pavlick Decl. ¶¶ 17-18. However, TSA could not determine whether the potentially responsive records pertained to Plaintiff because the personal information provided by Plaintiff on his DOJ Certification of Identity Form did not match the identifying information contained in the potentially responsive records. Defs.' Stmt. of Mat. Facts ¶¶ 68-70; Pavlick Decl. ¶ 18.

On April 24, 2006, TSA responded to Plaintiff's February 7, 2006 letter by affirming TSA's initial determination to neither confirm nor deny the existence of records indicating whether Plaintiff is on a TSA watch list, thus denying Plaintiff's appeal in part. Defs.' Stmt. of Mat. Facts ¶ 71; Pavlick Decl. ¶ 14; Pavlick Decl., Ex. I (4/24/06 letter from T. Miller to L. Klayman). TSA's April 24, 2006 letter also granted in part Plaintiff's appeal as to the scope of the records searched, and informed Plaintiff that TSA's FOIA office had conducted a new search for records responsive to Plaintiff's FOIA request. Defs.' Stmt. of Mat. Facts ¶ 72; Pavlick Decl. ¶ 14; Pavlick Decl., Ex. I (4/24/06 letter from T. Miller to L. Klayman). TSA told Plaintiff that its new search had revealed two potentially responsive documents, but that TSA was unable to ensure that the potentially responsive records pertained to Plaintiff and that to mistakenly release the documents could constitute a violation of the Privacy Act, 5 U.S.C. § 552a(b). Id. As such, TSA requested that Plaintiff provide to TSA: (1) any addresses used by Plaintiff during June 2004; and (2) information concerning any contacts Plaintiff had initiated with TSA, including the offices contacted, the general subject matter of the contact, and the approximate date range. Id. TSA requested that Plaintiff provide TSA with this information by November 27, 2006, Pavlick Decl., Ex. I (4/24/06 letter from T. Miller to L. Klayman); ...


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