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Ryan B. Skurow v. U.S. Department of Homeland Security and U.S. Transportation

September 26, 2012


The opinion of the court was delivered by: Signed: Emmet G. Sullivan United States District Judge


This case is before the Court on defendants' motion for summary judgment and plaintiff's cross-motion for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, defendants' motion is GRANTED and plaintiff's cross-motion is DENIED.


Plaintiff, who initially proceeded pro se in this action, filed his complaint on July 19, 2011, seeking to compel defendants the United States Department of Homeland Security ("DHS") and the United States Transportation Security Administration ("TSA") to comply with the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA)" and the Privacy Act, 5 U.S.C. § 552a ("Privacy Act").

Plaintiff is a United States citizen currently living in Israel. In 1998, plaintiff traveled to Israel as a tourist and made an excursion trip with two friends to the Sinai Peninsula in Egypt. During the course of the trip to Egypt, plaintiff and his friends were stopped by Egyptian police and were searched. As a result of the search, the Egyptian police claimed to have found a small amount of marijuana in the bag of one of plaintiff's friends. Plaintiff states that all three friends were tried without the assistance of counsel, fined $200, and were returned to Israel. Plaintiff further alleges that the "entire trial was a farce" and that "plaintiff never used or possessed marijuana as charged by the Egyptian police." Pl.'s Statement of Material Facts in Supp. of Cross-Mot. for Summ. J. ("Pl.'s Cross-Mot. SOF"), ECF No. 16-2, ¶ 8-9.

Prior to 2007, plaintiff states he had no difficulty traveling between the United States and Israel. In 2007, however, plaintiff was stopped by a United States Customs and Border Patrol ("CBP") officer in the Miami International Airport and detained for several hours without explanation. He was stopped again in 2009 while traveling through the Hartsfield-Jackson Atlanta International Airport. During this stop, plaintiff inquired about the reasons for his detention. Plaintiff alleges that a CBP officer told him that his name appeared on a "watch list" as a result of the 1998 incident in Egypt.

Between 2008 and 2010, plaintiff made several attempts to clarify the reasons he was stopped and questioned. These included contacting Congresswoman Jean Schmidt, the Representative for the district in which plaintiff's father lives. Plaintiff and/or his attorney also made inquiries to the DHS Traveler Inquiry Program ("DHS TRIP"). On August 8, 2010, plaintiff's counsel sent a FOIA/Privacy Act request to the TSA for "all information [it had] relating to" plaintiff. Compl. ¶ 5.*fn1 On August 17, 2010, the TSA sent a letter to plaintiff acknowledging that it had received his request on August 13, 2010. Compl. ¶ 6. In that letter, the TSA stated that its goal was to respond to the request within 20 days, but due to the breadth of plaintiff's request, the TSA would invoke a 10-day extension of the request, pursuant to 5 U.S.C. § 552(a)(6)(B). The TSA invited plaintiff to contact their FOIA office if he desired to narrow his request.

On January 13, 2011, after having allegedly not received a response from the TSA, plaintiff's counsel sent a letter to the DHS, reiterating plaintiff's initial request and purporting to appeal the denial of his FOIA/Privacy Act request. Compl. ¶ 8. On April 8, 2011, DHS sent a letter to plaintiff's counsel informing him that it could not act until a determination was made on whether any responsive records may be released in connection with his request. Compl. ¶ 10. DHS advised plaintiff that he could treat the letter as a denial of his appeal and seek judicial review. Id.

After plaintiff filed this action on July 19, 2011, TSA began responding to plaintiff's FOIA request on a rolling basis. On August 4, 2011,*fn2 TSA sent a letter to plaintiff and attached several documents, including documents that had been redacted pursuant to FOIA Exemptions 3, 6, and 7.*fn3 On August 25, 2011, TSA sent plaintiff a supplemental response to his request. See Declaration of Yvonne L. Coates ("Coates Decl."), ECF No. 9-1, Ex. F. In that letter, the TSA stated that it could neither confirm nor deny whether plaintiff was on a Federal Watch List. Specifically, the TSA stated that pursuant 49 U.S.C. § 114(r) and its implementing regulation at 49 C.F.R. § 1520.15(a),

Federal Watch Lists constitute Sensitive Security Information ("SSI") that is exempted from disclosure. The TSA stated that it was withholding that information pursuant to FOIA Exemption 3, which allows the withholding of records specifically prohibited from disclosure by another statute. On October 24 and November 2, 2011, TSA sent plaintiff a second and third supplemental response to his FOIA request, attaching documents that contained redactions pursuant to Exemptions 3 and 6. Coates Decl. Exs. G-H.

On November 2, 2011, defendants moved for summary judgment, arguing that they had conducted an adequate search and produced documents in response to plaintiff's request, and that there were no issues of material fact. Defendants advised the pro se plaintiff of his obligation to respond to the arguments made by plaintiff and cite to supporting factual evidence or those arguments would be deemed conceded. In their motion, defendants argued that their search was adequate, that information was properly withheld pursuant to FOIA exemptions 3 and 6, and that all reasonably segregable information was released.

In his opposition, plaintiff principally argues that the government acted in bad faith. Plaintiff also argues that defendants' searches were inadequate and that the exemptions do not apply. Plaintiff does not address the issue of segregability. Plaintiff submitted a statement of facts in dispute, see ECF No. 10-3, but did not specifically respond to the factual allegations in defendants' statement or cite to record evidence in support of his statements of disputed fact.

Several weeks after plaintiff filed his pro se opposition to defendant's motion for summary judgment on January 26, 2012, counsel appeared on behalf of plaintiff in this action. See ECF No. 14. On June 26, 2012, three months after the initial motion for summary judgment was fully briefed, plaintiff filed a cross-motion for summary judgment and a request for attorneys' fees. On July 11, 2012, the Court held a status hearing regarding the pending motions. At the hearing, the Court noted that a Fox/Neal Order had not been issued after the initial summary judgment motion was filed by defendants. The Court informed plaintiff's counsel that it appeared plaintiff had not properly responded to the motion, including to the statement of facts, and asked counsel whether he was satisfied with the opposition that plaintiff had filed. Counsel stated that he was satisfied with the pleadings and had no intention to make any changes. Counsel also confirmed that he had access to the Court's local rules. Accordingly, the Court allowed the briefing on the cross-motion for summary judgment to proceed. That motion, and defendants' initial motion, are now ripe for the Court's decision.


A.Rule 56

Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Likewise, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Citizens for Responsibility & Ethics in Wash. v. Dep't of Justice, 658 F. Supp. 2d 217, 224 (D.D.C. 2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975)).

Rule 56 of the Federal Rules of Civil Procedure requires that "[a] party asserting that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to particular parts of materials in the record . . . or . . . showing that the materials cited [by the opposing party] do not establish the absence or presence of a genuine dispute . . . ." Fed. R. Civ. P. 56(c). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e); see Local Civ. R. 7(h) ("In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion."). The District of Columbia Circuit has held that "[i]f the party opposing the motion fails to comply with [Local Civil Rule 7], then 'the district court is under no obligation to sift through the record' and should '[i]nstead . . . deem as admitted the moving party's facts that are uncontroverted by the nonmoving party's Rule [Local Civil Rule 7(h)] statement.'" SEC v. Banner Fund Int'l, 211 F.3d 602, 616 (D.C. Cir. 2000) (citation omitted). This Circuit has affirmed the grant of summary judgment where the nonmoving party failed to cite any evidence in the record, and in the statement of genuine factual issues, "did not set forth specific, material facts, but simply asserted, without citing evidence in the record, that there was a disputed issue[.]" Burke v. Gould, 286 F.3d 513, 518 (quoting Tarpley v. Greene, 684 F.2d 1, 7 (D.C. Cir. 1982)).


FOIA requires agencies to disclose all requested agency records, 5 U.S.C. § 552(a), unless one of nine specific statutory exemptions applies, id. § 552(b). It is designed to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citations omitted). "Given the FOIA's broad disclosure policy, the United States Supreme Court has 'consistently stated that FOIA exemptions are to be narrowly construed.'" Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)).

"FOIA's strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents." Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (citation omitted). The government may satisfy its burden of establishing its right to withhold information from the public by submitting appropriate declarations and, where necessary, an index of the information withheld. See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU v. Dep't of the Defense, 628 F.3d 612, 619 (D.C. Cir. 2011); see id. (an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible) (internal citations omitted).

C.Privacy Act

The Privacy Act of 1974 regulates the collection, maintenance, use, and dissemination of an individual's personal information by agencies within the federal government. See 5 U.S.C. ยง 552a(e). The Act "'safeguards the public from unwarranted collection, maintenance, use, and dissemination of personal information contained in agency records ... by allowing an individual to participate in ensuring that his records are accurate and properly used.'" McCready v. Nicholson, 465 F.3d 1, 7--8 (D.C. Cir. 2006) (quoting Bartel v. Fed. Aviation Admin., 725 F.2d 1403, 1407 (D.C. Cir. 1984)). "The Privacy Act-unlike the Freedom of Information Act-does not have disclosure as its primary goal." Henke v. U.S. Dep't of Commerce, 83 F.3d 1453, 1456 (D.C. Cir. 1996). "Rather, the main purpose of the Privacy Act's disclosure requirement is to allow individuals on whom information is being compiled and retrieved the opportunity to review the information and request that the agency correct any inaccuracies." Id. at 1456--57. To achieve this goal, the Act "imposes a set of substantive obligations on agencies that maintain systems of records." Skinner v. Dep't of Justice, 584 F.3d ...

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