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Electronic Privacy Information Center v. Transportation Sec. Admin.

United States District Court, District of Columbia

March 7, 2013


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[Copyrighted Material Omitted]

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Marc Rotenberg, Electronic Privacy Information Center, Washington, DC, for Plaintiff.

Joseph Wilfred Mead, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Defendant.



This action concerns two Freedom of Information Act (" FOIA" ) requests bye the Electronic Privacy Information Center (" EPIC" ) for records held by the Transportation Security Administration (" TSA" ). The parties have filed cross-motions for Summary Judgment. ECF Nos. 13 & 14. The Court will GRANT in part and DENY in part both motions. TSA is entitled to summary judgment as to all of its withholdings pursuant to exemptions 3, 4, and 6, and all withholdings pursuant to exemption 5 except for a PowerPoint shared with a Congressional Committee, which TSA must disclose.


Starting in 2005, the TSA began using full-body scanning machines in U.S. airports to screen travelers on U.S. commercial aircraft. Pl.'s Statement of Material Facts ¶ 2, ECF No. 14-2.[1] In 2010 the

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TSA decided to make Advanced Imaging Technology scanners the primary method of screening passengers. Def.'s Br. 2, ECF No. 13. These machines capture detailed, three-dimensional images of individuals and transmit them for review by Transportation Security Officers. Pl.'s Statement ¶ 3. In response to concerns about protecting the privacy of passengers, including concerns raised by EPIC, the TSA began researching and testing Automated Target Recognition (" ATR" ) software updates for these machines. Id. ¶¶ 4-10. According to the TSA, " [r]ather than having a [security officer] view a passenger-specific image, scanners utilizing [ATR] software auto-detect potential threat items and indicate their location on a generic outline of a person." Def.'s Br. 2.

In June 2010, EPIC submitted a FOIA Request to the TSA seeking a variety of information about the development and implementation of ATR technology and seeking a waiver of the duplication fees pursuant to its status as a " representative of the news media." FOIA Request, Jun. 15, 2010 (" FOIA Request 1" ), ECF Nos. 13-2, 14-5. EPIC requested the following documents:

1) All specifications provided by TSA to automated target recognition manufacturers concerning automated target recognition systems.
2) All records concerning the capabilities, operational effectiveness, or suitability of automated target recognition systems, as described in [Department of Homeland Security] Secretary [Janet] Napolitano's letter to Senator [Susan] Collins.[2]
3) All records provided to TSA from the Dutch government concerning automated target recognition systems deployed in Schiphol Airport, as described by Secretary Napolitano's letter to Senator Collins.
4) All records evaluating the [full body scanner] program and determining automated target recognition requirements for nationwide deployment, as described in Secretary Napolitano's letter to Senator Collins.
See FOIA Request 1 at 2. TSA acknowledged receipt of the request and stated that duplication fees would apply. TSA Resp. to EPIC's FOIA Request 1, Jun. 24, 2010, ECF No. 14-6. In October 2010, EPIC filed an administrative appeal based on TSA's failure to disclose records and its denial of the fee-waiver. EPIC's FOIA Appeal 1, Oct. 5, 2010, ECF No. 14-7.

EPIC submitted a second FOIA Request (" EPIC's Second FOIA Request" ) to the Department of Homeland Security (" DHS" ) seeking additional information about ATR and again requesting waiver of duplication fees. See FOIA Request 2, Oct. 5, 2010, ECF Nos. 13-3, 14-10. Specifically, EPIC requested the following information:

1) All records provided from L3 Communications or Rapiscan [3] in support of the submission or certification of ATR software modifications;
2) All contracts, contract amendments, or statements of work related to the submission or certification of ATR software modifications;
3) All information, including results, of government testing of ATR technology,

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as referenced by Greg Soule of the TSA in an e-mail to Bloomberg News, published September 8, 2010.
FOIA Request 2 at 3-4. DHS referred the request to TSA, ECF No. 14-11, who assigned it a reference number, and denied EPIC's request to waive duplication fees. TSA Response to EPIC's FOIA Request 2, Nov. 8, 2010, ECF No. 14-12. In December, EPIC filed an administrative appeal based on TSA's failure to disclose records and its denial of the requested fee-waiver. EPIC's FOIA Appeal 2, Dec. 14, 2010, ECF No. 14-13.

EPIC filed this action in February 2011, alleging that TSA had " failed to disclose a single record" and " failed to comply with agency deadlines under the FOIA." Compl. ¶¶ 4, 46-48, 64-66, ECF No. 1.

Several months later, TSA released hundreds of pages of records responsive to EPIC's requests and stated that they had withheld and redacted information pursuant to FOIA exemptions 3, 4, 5, and 6. Def.'s Statement ¶¶ 13-17; Vaughn index, ECF No. 13-4. EPIC challenges some of these withholdings, but notably it also claims it has already " substantially prevailed" in the case by obtaining these documents. Pl.'s Opp'n 21.


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 (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 111-12.

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, ...

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