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Electronic Privacy Information Center v. United States Dept. of Homeland Sec.

United States District Court, District of Columbia

March 7, 2013


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Ginger P. McCall, Marc Rotenberg, Washington, DC, for Plaintiff.

Jesse Z. Grauman, U.S. Department Of Justice, Washington, DC, for Defendant.



This action concerns a Freedom of Information Act (" FOIA" ) request by the Electronic Privacy Information Center (" EPIC" ) for records held by the Department of Homeland Security (" DHS" ) pertaining to radiation emissions produced by Advanced Imaging Technology (" AIT" ) machines used to screen passengers at commercial airports. The parties have filed cross-motions for Summary Judgment. ECF Nos. 9 & 11. The Court will GRANT in part and DENY in part both motions. DHS is entitled to summary judgment as to all of its withholdings pursuant to exemptions 3, 5, and 6 and all withholdings pursuant to exemption 4 except for two reports based on the government's own testing, which DHS must disclose.


Starting in 2005, the Transportation Security Administration (" TSA" ) began using fullbody scanning machines in U.S. airports to screen travelers on U.S. commercial aircraft. Pl.'s Opp'n to Def.'s Mot. for Summ. J., Cross-Mot. for Summ. J. (" Pl.'s Opp'n" ) 1, ECF No. 11. The TSA subsequently decided to make these scanners the primary form of screening passengers. Id. at 2. These machines use either backscatter x-ray or millimeter wave technology to capture detailed, three-dimensional images of individuals and transmit them for review by Transportation Security Officers. Id. at 1-2.

In July 2010, EPIC submitted a FOIA Request to DHS seeking the following information about AIT:

1) All records concerning TSA tests regarding body scanners and radiation emission or exposure; and
2) All records concerning third party tests regarding body scanners and radiation emission or exposure.

See FOIA Request at 4, Def.'s Ex. A, ECF No. 9-1 at 1. EPIC requested expedited processing of its request and a waiver of duplication fees. Id. at 4-5. DHS referred the request to two components: the TSA and the Science and Technology Directorate (" S & T" ). Def.'s Statement of Material Facts ¶ 2, ECF No. 9; Pl.'s Statement of Material Facts ¶ 3, ECF No. 11-2.

TSA initially denied EPIC's requests for expedited processing and a fee waiver. Def.'s Ex. C, Aug. 12, 2010, ECF No. 9-1 at 35. EPIC appealed, Def.'s Ex. D, Aug. 27, 2010, ECF No. 9-1 at 39, and challenged the agency's failure to make a timely determination regarding its FOIA request. Pl.'s Statement ¶ 7; Def.'s Resp. to Pl.'s Statement of Material Facts (" Def.'s Resp." ) ¶ 7, ECF No. 13 at 29. The TSA affirmed its denial of the request for expedited processing but agreed to waive fees. Def.'s Ex. F, Nov. 24, 2010, ECF No. 9-1 at 58.

S & T denied EPIC's request for a fee waiver. EPIC appealed this determination along with S & T's failure to make a timely determination regarding EPIC's FOIA request. Pl.'s Statement ¶¶ 8-10; Def.'s Resp. ¶¶ 8-10.

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EPIC filed this FOIA action in November 2010, alleging that DHS had " failed to disclose a single record" and had " failed to comply with statutory deadlines" and seeking an order that the agency immediately disclose all responsive records. Compl. ¶ 2, ECF No. 1.

Several months later, both TSA and S & T released hundreds of pages of records responsive to EPIC's requests and withheld information pursuant to FOIA exemptions 3, 4, 5, and 6. Pl.'s Statement ¶¶ 13-16; Def.'s Statement ¶¶ 11-15. EPIC now challenges certain of these withholdings, but notably EPIC also claims it has already " substantially prevailed" by obtaining the released documents. Pl.'s Opp'n 23.


The Freedom of Information Act, 5 U.S.C. § 552, requires federal agencies to make certain records publicly available. FOIA also provides exemptions from the disclosure requirement, which are to be " narrowly construed." FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). Four of these, exemptions 3, 4, 5, and 6, are relevant to this case and are described in greater detail below.

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when " there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). FOIA actions are typically and appropriately resolved on summary judgment. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C.Cir.2011); see also COMPTEL v. FCC, 910 F.Supp.2d 100, 111-12, 2012 WL 6604528, *4 (D.D.C.2012).

The agency bears the burden in litigation to justify withholding any records. 5 U.S.C. § 552(a)(4). This is in part because of the " strong presumption in favor of disclosure," U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) and because FOIA requesters face an information asymmetry given that the agency possesses the requested information and decides whether it should be withheld or disclosed. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145-46 (D.C.Cir.2006). Thus, even where the requester has moved for summary judgment, the Government " ultimately has the onus of proving that the documents are exempt from disclosure." Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904-05 (D.C.Cir.1999) (internal quotations and modifications omitted); see also COMPTEL, 910 F.Supp.2d at 111, 2012 WL 6604528, at *4.

To satisfy its burden, an agency may rely on detailed affidavits, declarations, a Vaughn index, in camera review, or a combination of these tools. A Vaughn index correlates each withheld document, or portion thereof, with a particular FOIA exemption and the justification for nondisclosure. Vaughn v. Rosen, 484 F.2d 820, 827(D.C.Cir.1973). While agency affidavits are accorded a presumption of good faith, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991), they must " provide[ ] a relatively detailed justification, specifically identify[ing] the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Judicial Watch v. FDA, 449 F.3d at 146; see also COMPTEL, 910 F.Supp.2d at 111, 2012 WL 6604528 at *4.

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DHS has moved for summary judgment as to the adequacy of its search for responsive documents, Def.'s Br. 10-11, and the appropriateness of all its withholdings. See Def.'s Br. 11-34. EPIC does not contest the adequacy of DHS's search or any of its withholdings pursuant to exemption 6. See Pl.'s Opp'n. In addition, EPIC apparently agreed not to contest any of these exemption 6 withholdings. See E-mail from John Verdi to Jesse Grauman, Aug. 5, 2011, Ex. 9, ECF No. 9-9. Accordingly, the Court takes these issues as conceded and grants summary judgment to DHS as to all withholdings made under exemption 6.


Both parties move for summary judgment as to withholdings made by DHS pursuant to exemption 3. DHS is entitled to summary judgment as to these withholdings.

Exemption 3 permits the nondisclosure of 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." 5 U.S.C. § 552(b)(3)(A)(ii). Congress amended exemption 3, adding language requiring " particular criteria for withholding" in order " to overrule legislatively the Supreme Court's decision in Administrator, FAA v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975), which had given an expansive reading to the version of exemption 3 then in force." [2] Irons & Sears v. Dann, 606 F.2d 1215, 1219 (D.C.Cir.1979). Only statutes that " incorporate[ ] a formula whereby the administrator may determine precisely whether disclosure in any instance" was prohibited will qualify under exemption 3. Am. Jewish Cong. v. Kreps, 574 F.2d 624, 628-29 (D.C.Cir.1978). Statutes that merely " set forth benchmarks for secrecy so general as the ‘ interest of the public’ (such as the statute at issue in Robertson ) do not satisfy ... [the] ‘ particular criteria’ requirement." Wis. Project on Nuclear Arms Control v. U.S. Dep't of Commerce, 317 F.3d 275, 280-81 (D.C.Cir.2003) (quoting Am. Jewish Cong., 574 F.2d at 629). But when " on the other hand, Congress has made plain its concern with a specific effect of publicity ... exemption 3 is to honor that concern." Id.

Section 114(r) of Title 49 provides:

Notwithstanding section 552 of title 5, the Under Secretary shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security under authority of the Aviation and Transportation Security Act (Public Law 107-71) or under chapter 449 of this title if the Under Secretary decides that disclosing the information would ... be detrimental to the security of transportation.

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49 U.S.C. § 114(r), (r)(1)(C). Pursuant to that authority, TSA promulgated regulations that expressly prohibit the disclosure of certain categories of sensitive security information. See generally 49 C.F.R. pt. 1520.

Judge Kollar-Kotelly has held that § 114(r) qualifies as a " statute of Exemption as contemplated by Exemption 3." Tooley v. Bush, 06-cv-306, 2006 WL 3783142, *4 (D.D.C. Dec. 21, 2006) rev'd in part on other grounds sub nom. Tooley v. Napolitano, 556 F.3d 836 (D.C.Cir.2009). Judge Kollar-Kotelly's conclusion rested on a D.C. Circuit decision which interpreted a provision containing nearly identical language to § 114(r). Pub. Citizen, Inc. v. FAA, 988 ...

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