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Electronic Privacy Information Center v. United States Department of Homeland Security

January 12, 2011

ELECTRONIC PRIVACY INFORMATION CENTER, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 18, 20

MEMORANDUM OPINION GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT;DENYING THE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the court on the parties' cross-motions for summary judgment. The plaintiff -- a non-profit organization that reviews federal activities and policies to determine their possible impacts on civil liberties and privacy interests -- submitted two requests to the defendant, the Department of Homeland Security ("DHS"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking information pertaining to whole-body imaging technology used to screen air travelers. DHS produced some responsive documents, but withheld 2,000 images produced by body scanning technology, invoking two of the exemptions enumerated in FOIA. DHS has filed a motion for summary judgment, asserting that it has produced all of the information that FOIA requires. Because the withheld images fall within FOIA's exemption 2-high, the court grants DHS's motion for summary judgment and denies the plaintiff's cross-motion for summary judgment.

II. BACKGROUND

A. Factual History

The Transportation Security Administration ("TSA"), a component of DHS, uses "body scanners," machines that produce three-dimensional images of individuals, to screen airline passengers prior to boarding their flights. Compl. ¶ 6, Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec., No. 09-2084 (D.D.C. Nov. 5, 2010). The plaintiff submitted two separate FOIA requests to DHS in April 2009 and July 2009 seeking information on the TSA's use of body scanning technology or "whole body imaging." Def.'s Statement of Material Facts Not in Dispute*fn1 ("Def.'s Statement") ¶¶ 1-2. Among other things, the plaintiff sought "[a]ll unfiltered or unobscured images captured using body scanner technology.*fn2 Id. ¶ 2.

DHS transferred the requests to TSA believing that TSA would likely possess the responsive records. Id ¶¶ 1-2. Ultimately, DHS produced 1,766 pages of responsive documents, many of which were redacted.*fn3 Def.'s Statement ¶ 5. DHS further withheld in full 2,000 images produced by the body scanners and 376 pages of TSA training materials. Def.'s Statement ¶ 5.

According to TSA, the 2,000 images contain "various threat objects dispersed over the bodies," Def.'s Mot., Roberts Decl. ¶ 20, and were "created for the purpose of testing the degree to which vendors' [body scanners] conform[ed] to the detection standards issued by TSA in its procurement specifications," id. ¶ 16. Although TSA has released a "limited number of images to the public," it has determined that "any further release of images would constitute a threat of transportation security." Id. ¶ 17.

Additionally, DHS withheld in full 376 pages of "security training materials." Id. ¶ 21. This material consists of instructor guides and training manuals that "were created to train TSA employees who operate" the body scanners. Id. ¶ 22. Many of the 2,000 withheld images were also used in developing TSA training materials. Id.¶¶ 16, 22.

B. Procedural History

The plaintiff commenced a suit on November 5, 2009 with regard to its first request, and then commenced a second suit on January 13, 2010 with regard to its second request, alleging in both cases that DHS failed to respond in a timely fashion to its FOIA requests. Id. ¶ 4. The court, upon the parties' joint motion, consolidated the actions in March 2010. Minute Order, Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec., No. 09-2084 (D.D.C. Mar. 17, 2010).

DHS has moved for summary judgment, asserting that it conducted a reasonable search for responsive records,*fn4 Def.'s Mot. at 9, properly invoked FOIA exemptions 2-high and 3, id. at 10-26, and reasonably segregated exempt from non-exempt documents, id. at 26-28. The plaintiff has filed a cross-motion for summary judgment challenging DHS's refusal to disclose the 2,000 images and 376 pages of training materials under exemptions 2-high and 3.*fn5 See generally Pl.'s ...

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