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SAI v. Transportation Security Administration

United States District Court, District of Columbia

May 24, 2018

SAI, Plaintiff,
v.
TRANSPORTATION SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         This case is one of a series of cases that Plaintiff, who suffers from a neurological disorder, has brought arising out of his alleged mistreatment by Transportation Security Administration (“TSA”) employees at various airport security checkpoints. This Court previously resolved one of those cases, which Plaintiff brought against the TSA under the Rehabilitation Act seeking to compel the agency to respond to his complaints of mistreatment. See Sai v. Dep't of Homeland Sec., 149 F.Supp.3d 99 (D.D.C. 2015). Other cases, seeking damages and declaratory and injunctive relief relating to the alleged mistreatment and the TSA's policies more generally, remain pending before at least two other federal courts. See Sai v. Covenant Aviation Sec., No. 16-1024 (N.D. Cal); Sai v. Pekoske, No. 15-2356 (1st Cir.).

         In this action, Plaintiff alleges that the TSA has failed adequately to respond to six requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act (“PA”), 5 U.S.C. § 552a. The first of these requests sought surveillance video and reports relating to an incident that occurred at Boston's Logan International Airport (“BOS”), as well any other complaints against the TSA employees involved in the incident and any similar complaints against the TSA, airport police, or airport agents. Plaintiff subsequently expanded this request also to seek records relating to incidents at New York LaGuardia Airport (“LGA”) and Chicago O'Hare International Airport (“ORD”). The second request sought “any contract/agreement with other agencies regarding surveillance, or maintenance of surveillance footage, at Logan Airport.” Dkt. 99-3 at 78 (McCoy Decl. Ex. I). The third request followed an incident at San Francisco International Airport (“SFO”) and sought records like those Plaintiff sought relating to the BOS incident. The fourth-and by far the most expansive request-sought all policies and procedures that the TSA has ever issued that are not already available in the TSA's “electronic reading room.” Finally, the fifth and sixth requests sought any additional records regarding the BOS and SFO incidents created after Plaintiff's original requests.

         After Plaintiff filed suit, the TSA responded to each of the six pending FOIA requests and eventually released almost 4, 000 pages of records (some with redactions) and three closed circuit television videos. The TSA has now moved for summary judgment, arguing that it reasonably construed (and, where necessary, narrowed) Plaintiff's requests; that it thoroughly searched for responsive records; and that it released all responsive, non-exempt records. Plaintiff opposes the TSA's motion and, with two minor exceptions, challenges virtually every aspect of the TSA's multiple searches and productions. He contends that, as to each of his six requests, the TSA failed to conduct an adequate search; failed to produce segregable portions of records; withheld metadata and failed to release records in their “native, ” electronic format or in “fully digital, non-“rasterized” PDFs; improperly designated records as Sensitive Security Information (“SSI”); and improperly invoked FOIA Exemptions 3, 6, and 7. He alleges, in addition, that the TSA withheld records that had been previously released; made false or misleading statements in its Vaughn indices; violated the Privacy Act by maintaining records relating to his “protected First [A]mendment speech, ” Dkt. 111-2 at 33-34; destroyed records in violation of a “clear[] . . . evidence preservation demand, ” id. at 34; withheld records so as to commit “felony obstruction of justice, ” id. at 39; and, more generally, “maintained numerous unlawful policies, practices, and procedures . . . and willful violation[s of the APA, FOIA, Rehabilitation Act, Privacy Act, and SSI statutes.” Dkt. 111 at 3.

         As explained below, many of these contentions are not properly before the Court; others are not developed with sufficient clarity to survive summary judgment; and yet others lack legal or factual merit. But there is some wheat among this abundance of chaff. The Court will, accordingly, GRANT in part and DENY in part the TSA's motion.

         I. BACKGROUND

         The wide-ranging history of this matter is recounted in this Court's numerous prior opinions and orders. See Dkt. 34 (denying motion for preliminary injunction and motion for sanctions); Dkt. 42 (denying motion to expedite); Dkt. 43 (granting defendant's motion for protective order); Dkt. 47 (denying motion for reconsideration regarding sanctions); Dkt. 48 (denying motion to compel); Dkt. 49 (denying motion for leave to amend); Dkt. 74 (denying motions for reconsideration, for clarification, and to strike); Dkt. 93 (denying motion to compel service of Section 46105(b) orders and for declaratory relief regarding Section 46110(a) deadline, denying plaintiff's motion for attorney fees and costs, and denying leave to file supplemental pleading); see also Sai v. TSA, No. 16-5004 (D.C. Cir. June 6, 2016) (order dismissing interlocutory appeal seeking initial hearing en banc); Sai v. TSA, No. 16-1065 (U.S. Sup. Ct. June 5, 2017) (denying petition for writ of certiorari). For present purposes, the Court need not repeat that history in its entirety, but simply recounts the allegations and procedural history relevant to the pending motion.

         A. FOIA Requests

         The subject of this suit are six FOIA and Privacy Act requests for records that Plaintiff, whose full name is Sai, sent to the TSA in 2013.

         Sai submitted the first of these requests on January 28, 2013, [1] requesting information relating to an incident at a security checkpoint at Boston Logan International Airport (“BOS Request”). This request initially sought “reports, ” “notes, correspondence, communications, . . . relating to the incident, ” “any and all records related to [Sai];” “copies of [Sai's] [travel] documents that were made at the scene;” “all history of complaints” against the TSA agents with whom he came into contact and “similar complaints” against the TSA; and “documents and communication related to responding to this request.” Dkt. 99-3 at 50-51 (McCoy Decl. Ex. A). After the TSA requested additional information regarding the request on February 15, 2013, Sai expanded the request to include “all records related to” prior security incidents that occurred at New York LaGuardia Airport on June 27, 2012, and Chicago O'Hare International Airport on December 25, 2010. Id. at 55 (McCoy Decl. Ex. B). TSA failed to respond to the expanded BOS Request within the 20-day period specified by FOIA. See Id. at 8 (McCoy Decl. ¶ 25); id. at 59 (McCoy Decl. Ex. D). On August 8, 2014, the agency provided an interim response releasing seven pages of records, with some redactions. Id. at 8 (McCoy Decl. ¶ 25). It supplemented this response on October 3, 2014 with the release of an additional 229 pages of records and video of the BOS incident. Id. at 9 (McCoy Decl. ¶ 27).

         On February 22, 2013, Sai submitted a second FOIA request (“CCTV Request”) to TSA by email, requesting “any contract/agreement with other agencies regarding surveillance, or maintenance of surveillance footage, at Logan airport.” Id. at 78 (McCoy Decl. Ex. I). The TSA did not respond to Sai's request until August 8, 2014, when it released 16 pages of responsive records in full. Id. at 18 (McCoy Decl. ¶ 56); id. at 80 (McCoy Decl. Ex. J).

         Sai submitted the third request at issue, relating to an incident that took place at San Francisco International Airport (“SFO Request”), by email on March 15, 2013. Id. at 85-86 (McCoy Decl. Ex. L). Like the BOS Request, the SFO Request sought “reports, ” “notes, correspondence, [and] communications, . . . relating to the incident;” “any and all records related to [Sai];” “all history of complaints” against the TSA agents with whom he came into contact and “similar complaints” against the TSA; and “documents and communication related to responding to this request.” Id. (McCoy Decl. Ex. L). The TSA initially responded to the request on August 8, 2014, “releasing 72 pages of responsive records in full as well as two CCTV videos.” Id. at 22 (McCoy Decl. ¶ 71); id. at 93 (McCoy Decl. Ex. N). The agency supplemented that response on October 3, 2014 with an additional 427 pages of responsive records. Id. at 23 (McCoy Decl. ¶ 73).

         The fourth request, which sought TSA policies and procedures (“Policies Request”), is by far the most expansive. Sai submitted that request on March 16, 2013. It sought (1) “[a]ll TSA policy and/or procedures documents which are not already included in the TSA's ‘Electronic Reading Room, ' including all Management Directives, Standard Operating Procedures, Operations Directives, Security Directives, Emergency Amendments, Information Circulars, Memoranda, Handbooks, Letters, Bulletins, and Guidance ever issued, including both old [and] current versions;” (2) the “TSA's policies regarding screening procedures, both now and . . . at any point in the past;” (3) the “TSA's policies regarding the treatment of passengers with disabilities, both now and in the past;” (4) the “TSA's policies regarding the enforcement of its policies when TSA personnel . . . refuse to comply with TSA policy in a way that infringes on the rights of travelers;” (5) the “TSA's policies regarding cooperation with local airports and police;” (6) the “TSA's policies regarding when checkpoint video may be released;” (7) the “TSA's policies regarding ‘no fly[, '] ‘selectee[, '] and any similar lists;” (8) “legal justification for the TSA's public claims that passengers may not revoke consent to administrative search” including “formal agency legal memoranda, policy statements that include specific legal foundation arguments, court filings in which relevant arguments were advanced . . ., any court opinions, appeals, or the like in which a court responded negatively to those arguments;” and (9) “all Behavior Detection Officer training materials, and any studies investigating their efficacy.” Id. at 125-28 (McCoy Decl. Ex. S).

         On March 25, 2017, the TSA sent Sai a letter explaining that his request was “too broad in scope or did not specifically identify the records” he was seeking, and it invited Sai to “resubmit [the] request containing a reasonable description of the records [he was] seeking.” Id. at 30 (McCoy Decl. ¶ 91); id. at 132 (McCoy Decl. Ex. T). Because Sai did not respond, the TSA “administratively closed” the request on May 9, 2013. Id. at 30 (McCoy Decl. ¶ 92). About a year later, however, after Sai brought the present suit, the TSA “in its discretion, reopened the request and initiated a search for responsive records to the extent the items sought in the request could be reasonably discerned based on the title provided or other information that was reasonably clear from the initial request.” Id. at 31 (McCoy Decl. ¶ 93). The TSA directed that fifteen different offices, including, for example, the Disability Branch of TSA's Office of Civil Rights and Liberties, Ombudsman & Traveler Engagement Division, “conduct a reasonable search for responsive records.” Id. (McCoy Decl. ¶ 94). On July 30, 2015, the TSA made an initial release of 1, 416 pages of responsive records, some of which were redacted in part. Id. at 35-36 (McCoy Decl. ¶ 109). Although releasing these records, the TSA reminded Sai that it had previously concluded that his “request was too broad” and that it had requested that Sai “resubmit [his] request with a reasonable description of the records” sought. Id. (McCoy Decl. ¶ 109); id. at 138 (McCoy Decl. Ex. U). Notwithstanding Sai's failure to respond, the agency explained, it had decided-in its discretion-to process the request “to the extent records [could] be reasonably identified.” Id. at 138 (McCoy Decl. Ex. U). Subsequently, on August 20, 2015 and October 30, 2015, the TSA released an additional 1, 294 pages and 329 pages of responsive records, respectively, some of which were again redacted in part. Id. at 36 (McCoy Decl. ¶ 110); id. at 145 (McCoy Decl. Ex. V). Finally, on February 29, 2016, the TSA notified Sai that it had located an additional collection of records, which the agency was withholding in full. Id. at 37 (McCoy Decl. ¶ 112); id. at 158 (McCoy Decl. Ex. X).

         Sai's fifth and sixth requests cover the same ground covered by the BOS and SFO requests, but seek records created or obtained after those requests were filed (“BOS and SFO Re-Requests”). See Dkt. 28-3 at 11. Sai originally submitted the BOS and SFO Re-Requests on November 23, 2013. See Id. That email was addressed to the TSA's FOIA division and read, in relevant part, “I hereby demand that you send me *all* documents, records, statements, surveillance video, external and internal correspondence, etc. that are currently or have ever been in the TSA's possession which relate to either of the two incidents I reported wherein the TSA violated my rights.” Id. TSA initially viewed this email as duplicative of the SFO and BOS requests and did not respond. Dkt. 99-3 at 43 (McCoy Decl. ¶ 123). In an earlier opinion in this case, however, the Court held that the November 23 email was in fact more expansive than Sai's earlier requests because it “also covered records created during the interval between the requests.” Dkt. 74 at 15. Complying with that decision, the TSA acknowledged receipt of the BOS and SFO Re-Requests in September and October 2015, Dkt. 99-3 at 43-44 (McCoy Decl. ¶ 124-25, 127); id. at 178 (McCoy Decl. Ex. AA); id. at 180 (McCoy Decl. Ex. BB); id. at 185 (McCoy Decl. Ex. CC); “tasked those offices that it deemed most likely to have records related to the SFO and BOS incidents with searching for non-duplicative responsive records, ” id. at 46 (McCoy Decl. ¶ 133), and subsequently notified Sai that it found no non-duplicative records responsive to his requests, id. at 46-47 (McCoy Decl. ¶¶ 135, 138).

         B. Procedural History

         Because the TSA failed to respond within the 20-day period specified by FOIA, 5 U.S.C. § 552(a)(6)(A)(i), Sai was deemed, as a matter of law, to have exhausted his administrative remedies, 5 U.S.C. § 552(a)(6)(C), and, having cleared that threshold requirement, he brought this suit, Dkt. 5. After filing suit, Sai moved both for a preliminary injunction and to expedite the action. Dkt. 8; Dkt. 18. The Court denied both motions. Minute Order (Apr. 17, 2014); Dkt. 34; Dkt. 42. Sai also moved to impose sanctions on the government, which the Court denied, Dkt. 30; Dkt. 32, and for reconsideration of the Court's denial, Dkt. 38, which the Court also denied, Dkt. 47. In addition, he unsuccessfully sought to amend his complaint, see Dkt. 49, and unsuccessfully sought reconsideration of that decision, Dkt. 50; Dkt. 74. The TSA, for its part, moved to dismiss in part and to strike portions of Sai's complaint, Dkt. 51, which the Court also denied, Dkt. 74. Sai then moved to “compel service of [Section] 46105(b) orders, ” Dkt. 77, for attorney fees and costs, Dkt. 85, and to file a supplemental pleading, Dkt. 86, all of which the Court denied, Dkt. 93.

         The TSA has now moved for summary judgment, submitting that it has conducted a reasonable and adequate search and that its withholdings are appropriate under both FOIA and the Privacy Act. Dkt. 99. The TSA supports its motion with the declarations of Regina McCoy, the agency's FOIA officer, Dkt. 99-3 at 1 (McCoy Decl. ¶ 2), and Douglas Blair, Chief of the Sensitive Security Information Program in the agency's Office of Law Enforcement & Federal Air Marshal Service, Dkt. 99-4 at 1 (Blair Decl. ¶ 1); Dkt. 105 at 17 (Supp. Blair Decl. ¶ 1). Sai's opposition brief is only five pages long and merely lists-without analysis or support- sixteen ways in which the TSA has allegedly violated the law; as Sai puts it, the “TSA has violated nearly all the law[s] it could.” Dkt. 111 at 2. He also requests that the Court order that the TSA supplement its Vaughn index, order “full civil discovery, ” and order the TSA “to provide [the] Court with an in camera copy of [its] entire production[] . . . without redactions.” Id. at 4-5. Standing alone, Sai's opposition brief provides little analysis or argument. He has also filed a forty-page affidavit, however, which contains more extensive legal and factual argument. Dkt. 111-2. Because the Court must liberally construe pro se pleadings, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), and because the Court must, in any event, assess the legal sufficiency of a motion for summary judgment, see Winston & Strawn, LLP v. McLean, 843 F.3d 503, 507-08 (D.C. Cir. 2016), and must consider sua sponte whether any portions of the withheld records are reasonably segregable, see Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007), the Court will treat Sai's affidavit as his brief in opposition and will also consider the adequacy of the TSA's legal contentions sua sponte. The Court will also consider the various supplemental briefs and filings that the parties have submitted.

         II. LEGAL STANDARD

         The Freedom of Information Act is premised on the notion that “an informed citizenry is “vital to the functioning of a democratic society . . . [and] needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The Act embodies a “general philosophy of full agency disclosure.” U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 494 (1994) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 360 (1976)). It thus mandates that an agency disclose records on request unless they fall within one of nine exemptions. “These exemptions are ‘explicitly made exclusive' and must be ‘narrowly construed.'” Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973), and FBI v. Abramson, 456 U.S. 615, 630 (1982)).

         FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See Beltranena v. U.S. Dep't of State, 821 F.Supp.2d 167, 175 (D.D.C. 2011). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In a FOIA action, the agency may meet its burden by submitting “relatively detailed and non-conclusory” affidavits or declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index of the information withheld, Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). An agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly exempt from the [FOIA's] inspection requirements.'” Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). The Court reviews the agency's decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).

         III. ANALYSIS

         Sai's arguments in opposition to the TSA's motion for summary judgment fall into three broad categories. Specifically, Sai challenges (1) the format of the records the TSA produced pursuant to FOIA and the Privacy Act; (2) the adequacy of the TSA's search for records responsive to his FOIA requests; and (3) the TSA's withholding of portions of the records it released pursuant to FOIA and the Privacy Act. In addition, Sai raises various allegations of misconduct by the TSA and requests the opportunity to conduct “full civil discovery.” The Court will consider each set of arguments in turn.

         A. Format

         1. Rehabilitation Act

         Sai first argues that the TSA violated the Rehabilitation Act, 29 U.S.C. § 794d, and E-FOIA, 5 U.S.C. § 552(a)(3)(B), (C), by failing to release the requested records in a “native, electronic, or § 508 accessible format” and by failing to provide him with a copy of the agency's Vaughn index in a “spreadsheet format” that would permit “basic operations like copying the spreadsheets into Google Spreadsheets.” Dkt. 111-2 at 1-2 (emphasis omitted). He argues that the format used by the TSA prevented him from accessing “metadata” and “significantly impaired [his] ability to use the documents, distribute the documents to [his] audience in a format that would be accessible to them (which includes other people with disabilities), ” and he asserts that the “TSA uses DHS-wide FOIA processing software and methods that take documents that are originally [in a] native electronic [format] . . . and output paper or rasterized PDF[s].” Id. at 2-4. Finally, Sai maintains that records were not produced in discrete files (which he refers to as an absence of “discretization”) and were not produced in a “cogent” order. Id. at 2. As explained below, the Court is unpersuaded by these arguments.

         To start, this is not a Rehabilitation Act case. The complaint does not invoke the Rehabilitation Act and, indeed, it expressly asserts that “[t]his suit is solely under FOIA and [the Privacy Act].” Dkt. 5 at 2 (Compl. ¶ 5). To be sure, Sai filed his complaint before the TSA released any records, and thus he did not know what format the agency would use. But he himself posits that the TSA, in general, uses software that does not result in the release of “native” format records, Dkt. 111-2 at 4, and, more importantly, despite filing multiple motions for leave to amend, see Dkt. 9; Dkt. 21, he has never sought to amend his complaint to assert a claim under the Rehabilitation Act. Although pro se litigants are entitled to some leeway, they must comply with the Federal Rules of Civil Procedure, Jarrell v. Tisch, 656 F.Supp. 237, 239 (D.D.C. 1987), and a plaintiff-even a pro se plaintiff-may not amend her complaint by raising an issue for the first time in a brief in opposition to a motion for summary judgment, see Manna v. U.S. Dep't of Justice, 106 F.Supp.3d 16, 19 (D.D.C. 2015) (“[A plaintiff] cannot expand the scope of this litigation by merely referring to other requests in his opposition to Defendants' motion.”); Wright v. U.S. Dep't Justice, 121 F.Supp.3d 171, 183 n.7 (D.D.C. 2015) (“[I]t is inappropriate for a Court to consider new claims raised for the first time in a brief in opposition to a motion for summary judgment.”); Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F.Supp.2d 165, 170 (D.D.C. 2003) (“It is axiomatic that a complaint may not be amended by the briefs in opposition . . . .” (citation omitted)). Because Sai has not alleged a claim under the Rehabilitation Act, or, more precisely, a claim under the Administrative Procedure Act, see Sai, 149 F.Supp.3d at 112-15 (concluding that a § 504 claim for injunctive relief and, by implication, a § 508 claim, is properly brought under the APA), his first argument fails as a matter of law.

         But, even if the Court were to treat Sai's affidavit as a proposed amendment to the complaint-and, to be clear, the Court is not doing so-it would deny that motion as futile. See In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 215 (D.C. Cir. 2010) (“[A] district court has discretion to deny a motion to amend on grounds of futility where the proposed pleading would not survive a motion to dismiss.”) (quoting Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 945 (D.C. Cir. 2004)). To survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard demands more than “labels and conclusions, ” Twombly, 550 U.S. at 55, and more than “legal conclusions” unsupported by “factual allegations, ” Iqbal, 556 U.S. at 678. It follows, moreover, that a motion for leave to file an amended complaint is futile, and thus should be rejected, if the proposed pleading lacks factual allegations sufficient to clear the “plausibility” hurdle. See Clark-Williams v. WMATA, No. 14-99, 2016 WL 4186810, at *3 (D.D.C. Feb. 16, 2016). Even if construed as a proposed, amended complaint, Sai's affidavit does not clear that hurdle.

         Subject to certain limitations, Section 508 of the Rehabilitation Act requires that federal agencies like the TSA ensure that “individuals with disabilities who are members of the public seeking information . . . have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities.” 29 U.S.C. § 794d(a)(1)(A)(ii). Here, Sai complains that the TSA released records to him with “no discretization, ” without “metadata, ” and without “spreadsheet structure.” Dkt. 111-2 at 2. “The format of [the] TSA's FOIA production, ” according to Sai, “has significantly impaired [his] ability to use the documents” and to “distribute [them] to [his]

         audience in a format that would be accessible to them (which includes other people with disabilities).” Id. at 3. Sai fails to explain, however, how his disability and the format in which the records were released have prevented him from accessing and using the information and data in a manner that is comparable to those without disabilities. Sai at least hints at an explanation for why blind people may need “embedded metadata to assist navigation by screen readers, ” id. at 4, but he does not allege that he is blind or that this same technology is necessary to accommodate his disability. Nor does Sai have standing to assert the interests of members of his “audience, ” including those who themselves have disabilities. See Gettman v. DEA, 290 F.3d 430, 435-36 (D.C. Cir. 2002) (concluding that magazine lacked standing to bring suit on behalf of readers). In short, Sai offers nothing more than “labels and conclusions, ” Iqbal, 556 U.S. at 678, in support of his contention that the format in which the TSA released the relevant records violated his rights under Section 508. Accordingly, even if Sai's affidavit were treated as a proposed, amended complaint, the Court would deny leave to amend on grounds of futility.

         2. E-FOIA

         Sai's contention that E-FOIA required the TSA to release the relevant records in their “native, electronic” format (with “embedded metadata”) is more persuasive, although the argument produces mixed results when applied to the relevant facts. In 1996, Congress enacted the Electronic Freedom of Information Act Amendments to FOIA-or “E-FOIA” for short-to “improve public access to agency records and information” and to “maximize the usefulness of agency records and information collected, maintained, used, retained, and disseminated by the Federal Government.” Pub. L. No. 104-231, § 2, 110 Stat. 3048 (1996). Under those amendments, when responding to a FOIA request, an agency must “provide the [requested] record[s] in any form or format requested by the [FOIA requester] if the record is readily reproducible by the agency in that form or format.” 5 U.S.C. § 552(a)(3)(B). “Each agency, ” moreover, is required to “make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of” E-FOIA. Id. Courts, however, must “accord substantial weight to an affidavit of an agency concerning the agency's determination as to . . . reproducibility under” E-FOIA. 5 U.S.C. § 552(a)(4)(B).

         Much of Sai's argument is misdirected. He asserts, for example, that “TSA's Vaughn declarations and exhibits are . . . partially rasterized PDFs, ” that the agency's “Vaughn indices are spreadsheets embedded in PDF format, severely hampering [his] ability to do basic operations like copying the spreadsheets into Google Spreadsheets, ” and that the TSA's refusal to provide him “with spreadsheet format versions of the Vaughn indices” has hampered his ability to litigate this case. Dkt. 111-2 at 2-3. E-FOIA, however, applies only to records released pursuant to FOIA; it has no bearing on the form or format of declarations, indices, and exhibits filed with the Court, or served on the opposing party, in the course of litigating a FOIA suit. Three of Sai's FOIA requests, moreover, do not actually request that the TSA release the records in any format other than “electronic[]” or “digital.” Dkt. 99-3 at 50-51, (McCoy Decl. Ex. A) (BOS Request) (requesting a “digital copy of all related materials” and “demand[ing] that this request be serviced electronically to the maximum extent possible”); id. at 85-86 (McCoy Decl. Ex. L) (SFO Request) (requesting a “digital copy of all Related Material” and “demand[ing] that this request be serviced electronically to the maximum extent possible”); id. at 78 (McCoy Decl. Ex. I) (CCTV Request) (requesting “any contract/agreement with other agencies regarding surveillance, or maintenance . . . footage, at Logan airport” without specifying the format of production). All of the requested records, however, were produced in an electronic format to Sai, Dkt. 118-1 at 2 (3d Supp. McCoy Decl. ¶ 7), and Sai agrees that responses provided in PDF format “fulfill the absolute minimum requirements of being electronically accessible, ” Dkt. 111-2 at 4. Accordingly, as to Sai's BOS, SFO, and CCTV Requests, the format of TSA's responses met the requirements of E-FOIA. See 5 U.S.C. § 552(a)(3)(B).

         Turning to Sai's Policies Request, Sai once again did not request that the TSA provide the responsive records in a “native” format with embedded metadata. Rather, he asked that the TSA release the records “in an electronic, machine-processable, accessible, open, and well-structured format to the maximum extent possible.” Dkt. 99-3 at 129 (McCoy Decl. Ex. S). Presumably recognizing the ambiguity of that request, Sai further explained that, “[t]his means, ” for example: “individual PDFs per distinct document, ” “fully digital text PDFs rather than scans or rasterizations, ” “digital redactions rather than black marker, ” “lists and structured data as machine-processable spreadsheets, ” and “scans rather than paper copies.” Id. (McCoy Decl. Ex. S).

         In opposing the TSA's motion for summary judgment, Sai raises three objections that are arguably relevant to this request: first, that each record was not released in a distinct, “discretiz[ed]” file; second, that spreadsheets were not released in a “useable, machine-processible format;” and, third, that the records were released as “rasterized PDF[s].” Dkt. 111-2 at 2, 4-5. The TSA, for its part, does not directly respond to the first of these objections. Although the agency stresses the limitations imposed by the software that it used to process FOIA requests at the relevant times, Dkt. 118 at 7-10; Dkt. 118-1 at 2-4 (3d Supp. McCoy Decl. ¶¶ 7-16), it fails to explain whether or why that software would have prevented the agency from generating separate PDF files for each discrete record, and it fails to argue that, as a matter of law, “discretization” does not constitute a “form or format” for purposes of 5 U.S.C. § 552(a)(3)(B). Based on this limited record, the Court cannot determine whether the TSA is entitled to summary judgment with respect to the “discretization” of the records released in response to Sai's Policies Request.

         As to the second objection-that the TSA released spreadsheets in an unusable format- it is Sai that drops the ball. Although he asserts, generally, that the TSA FOIA response process is flawed because the agency does not release spreadsheets in a usable format, Dkt. 111-2 at 5, and although he contends, specifically, that the TSA's Vaughn index was produced in a format that did not permit him to perform “basic operations like copying the spreadsheet into Google Spreadsheets, ” id. at 2, Sai fails to assert that the TSA released any spreadsheets in response to his Policies Request. Absent some reason to conclude that Sai's general objection to the manner in which the TSA releases spreadsheets has any bearing on the Policies Request, the Court cannot opine on that question. Simply put, “[t]he judicial power does not extend to the determination of abstract questions.” Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 324 (1936). Because this decision will require further litigation of a handful of specified issues, however, the Court will provide Sai with the opportunity to demonstrate that the TSA released spreadsheets in response to his Policies Request.

         Although not crystal clear, Sai does adequately raise his final objection-that the records responsive to his Policies Request were released in a “rasterized” format, and not as “fully digital text PDFs”-and the TSA at least indirectly responds to that objection. Sai explains that “[b]y ‘rasterized PDF, ' [he] mean[s] the kind that is produced by scanning paper documents . . . or irreversibly rendering text into image format, ” Dkt. 111-2 at 4 n.10, and that understanding comports with the dictionary definition, see Rasterize, v., Oxford English Dictionary (2018) (“To convert (an image) into . . . points or pixels on a grid”).[2] The question, then, is whether Sai was entitled to receive records responsive to his Policies Request in the “fully digital” (non-rasterized) text PDF format that he sought. See 5 U.S.C. § 552(a)(3)(B).

         The answer to that question overlaps with the sole question presented by Sai's final set of requests, the BOS and SFO Re-Requests. In those requests, Sai asked that the TSA release the relevant records “in their original electronic format or as a scan of any documents that are originally paper.” Dkt. 28-3 at 11-12. The second of these alternatives does not present an issue here; Sai requested scanned copies of original, paper records, and that is what he received. The first alternative, however, might reasonably be construed to seek the requested non-paper files in their “native” format-for example, in “Word, Excel, or electronic PDF.” Dkt. 111-2 at 4.[3] So, taken together, the final question posed by Sai's Policies Request and BOS and SFO Re-Requests is whether the records that he sought were “readily reproducible” by the TSA at the relevant time in the format that Sai requested: Word, Excel, electronic PDF, or the like. 5 U.S.C. § 552(a)(3)(B).

         The TSA contends that the answer to this question is “no, ” and in support of that contention it once again relies on a declaration from Regina McCoy. According to McCoy, at all relevant times, the TSA used a FOIA processing software called FOIAXpress. Dkt. 118-1 at 2 (3d Supp. McCoy Decl. ¶ 8). That software, however, did not “have the capability to process records in their native formats, ” and, instead, records were “processed and prepared for release . . . in [a] PDF format.” Id. at 2-3 (3d Supp. McCoy Decl. ¶ 8). Likewise, records that contained possible sensitive security information (“SSI”) were provided to the SSI Program Office in a PDF format; were reviewed, sanitized, and returned to the FOIA Branch as PDFs; and were then entered into the FOIAXpress system and prepared for release as PDFs. Id. at 3 (3d Supp. McCoy Decl. ¶¶ 9-11). Against this backdrop, the TSA argues that the records responsive to Sai's requests were not “readily reproducible” in their native format because, without the availability of the FOIAXpress system, the agency would have been required

to create a separate tracking system unique to Plaintiff's . . . requests for purposes of keeping accurate documentation of the request itself and correspondence with the requester, the tasking to various offices within the agency and follow-up correspondence with those offices, responsive records back from assigned offices, exemptions and redactions applied to the records and the various layers of review that each record underwent.

Id. at 3-4 (3d Supp. McCoy Decl. ¶ 13). On top of this, the TSA adds, “without FOIAXpress, the FOIA Branch would have had to identify and procure an alternative method for applying redactions, ” and, “[a]t all relevant times, [it] did not have the knowledge, training, or capability ready to apply such redactions to records in formats such as Excel (e.g., .xls); Outlook (e.g., .msg), or Word (e.g., .doc).” Id. at 4 (3d Supp. McCoy Decl. ¶ 14).

         At least on the present record, the Court is unconvinced that these justifications satisfy the requirements of 5 U.S.C. § 552(a)(3)(B). In order to prevail on this issue, the TSA must show that the records that Sai sought were not “readily reproducible” in their original electronic format. Id. “Relatively few cases discuss the application of the . . . ‘readily reproducible' requirement, ” Scudder v. CIA, 25 F.Supp.3d 19, 31 (D.D.C. 2014), however, and neither party has briefed the issue in any detail. The only D.C. Circuit precedent addressing the “readily reproducible” requirement, moreover, deals with the distinct question whether an agency may consider the “characteristics of the requester”-in that case, a prison inmate who was not permitted to possess electronic media-in applying the standard. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1088 (D.C. Cir. 2006).

         Congress enacted the “readily reproducible” requirement to overrule this Court's decision in Dismukes v. Department of the Interior, 603 F.Supp. 760 (D.D.C. 1984), holding that a FOIA requester was not entitled “to obtain a copy of a computer tape listing [the] name[s] and address[es] [of] participants in” bimonthly Bureau of Land Management oil and gas lease lotteries, id. at 760-61. See H.R. Rep. No. 104-795, at 21 (1996). The Bureau rejected the plaintiff's request, advising him that the lists were made available to the public on microfiche and that they would be provided to him in that format. Dismukes, 603 F.Supp. at 761. This decision was justified, according to the Bureau, by the fact that “microfiche [was] the format more likely to be readily readable by the largest number of requesters, ” even though the computer tape provided a less costly option for those “who need[ed] to obtain a . . . copy of the information for further study.” Id. at 762-63. The Court agreed, holding that even if “computer tape [might] offer[] the least expensive, most convenient means of access to the” data for “this particular requester, ” agencies have “no obligation under FOIA to accommodate” every requester's preferences; agencies “need only provide responsive, nonexempt information in a reasonably accessible form.” Id. at 763.

         In rejecting this holding, Congress did not mandate that agencies comply with every request for release of records in every conceivable format. Instead, E-FOIA merely requires that an agency comply with a format request if the relevant record is “readily” reproducible in that format. That determination requires that the Court consider the “technical feasibility” of the request, and courts must “accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility.” 5 U.S.C. § 552(a)(4)(B). But “technically feasibile” is not “synonymous” with “readily reproducible, ” and the Court must also “consider the burden on the defendant” in producing records in a format that, although “technically feasible, ” is not “readily” achieved. Scudder, 25 F.Supp.3d at 38; see also Long v. ICE, 149 F.Supp.3d 39, 55 (D.D.C. 2015). Assessing both the “technical feasibility” of a proposed format and the burden that would be imposed on the agency is necessarily a fact-dependent inquiry. Scudder, 25 F.Supp.3d at 31.

         The present context adds a slight twist on this inquiry. In one sense, Sai is not asking that the TSA reproduce the relevant records in a new format; he is asking that it produce them in their original format. That context, of course, is not entirely alien to 5 U.S.C. § 552(a)(3)(B). As recounted above, Congress enacted the “readily reproducible” requirement in response to a judicial decision that involved a similar scenario. In Dismukes, the Bureau of Land Management kept data on computer tapes, yet it reproduced that information on microfiche for public disclosure. 603 F.Supp. at 760. Congress adopted the “readily reproducible” requirement in response, leaving little doubt that the “readily reproducible” requirement applies both to records that require conversion to a new format and to records, like those at issue here, that are sought in their original format, notwithstanding the fact that the agency can more easily release the records in a different format.

         This Court's decision in Scudder provides helpful guidance. In that case, the CIA declined to release records in an electronic format, explaining that, due to security measures needed to protect classified materials, it could only produce the requested records as “paper printouts.” 25 F.Supp.3d. at 22. The district court rejected the contention that the CIA “is de facto exempt from the requirements of 5 U.S.C. § 552(a)(3)(B), ” id. (emphasis omitted), and, instead, applied a fact-intensive approach, id. at 31. In doing so, the court adopted the test first articulated by the Court of Appeals for the Ninth Circuit in TPS, Inc. v. United States Department of Defense, 330 F.3d 1191 (9th Cir. 2003): “When an agency already creates or converts documents in a certain format-be it for FOIA requestors, under a contract, or in the ordinary course of ...


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