AMENDED 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
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 Plaintiff's 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. Plaintiff contends that, as to each
of the 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. Plaintiff 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 Plaintiff's “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,
[1]
sent to the TSA in 2013.
Sai
submitted the first of these requests on January 28, 2013,
[2]
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 Sai 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 Sai 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 the
request was “too broad in scope or did not specifically
identify the records” sought, 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, re-opened 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 the “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 the 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 administrative remedies, 5
U.S.C. § 552(a)(6)(C), and, having cleared that
threshold requirement, Sai 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, Sai unsuccessfully sought to
amend the 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. Sai 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. Sai 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 a 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 the 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 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). Sai argues that the
format used by the TSA prevented access to
“metadata” and “significantly impaired
[Sai's] ability to use the documents, distribute the
documents to [Sai's] audience in a format that would be
accessible to them (which includes other people with
disabilities), ” and 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 Sai 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 the complaint before the TSA
released any records, and thus Sai did not know what format
the agency would use. But Sai 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, Sai has never sought
to amend the 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 the 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, Sai's 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 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. It is not explained,
however, how Sai's disability and the format in which the
records were released have prevented the access and use of
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 the complaint does not allege that Sai
is blind or that this same technology is necessary to
accommodate Sai's disability. Nor does Sai have standing
to assert the interests of members of Sai's
“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 the
contention that the format in which the TSA released the
relevant records violated Sai's 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. Sai 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 “spreadsheet format versions of the
Vaughn indices” has hampered Sai's 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,
Sai 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 Sai
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 Sai contends,
specifically, that the TSA's Vaughn index was
produced in a format that did not permit “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 the
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 the Policies Request.
Although
not crystal clear, Sai does adequately raise the final
objection-that the records responsive to the 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,' [Sai] 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”).[3] The question,
then, is whether Sai was entitled to receive records
responsive to the Policies Request in the “fully
digital” (non-rasterized) text PDF format 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 Sai 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.[4]
So, taken together, the final question posed by Sai's
Policies Request and BOS and SFO Re-Requests is whether the
records that Sai 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; Sai 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
business-requiring that it provide documents in that format
to others does not impose an unnecessarily harsh burden,
absent specific, compelling evidence as to significant
interference or burden.” Id. at 1195; see
also Scudder, 25 F.Supp.3d at 32.
Applying
that standard here, the Court concludes that the TSA has
not-at least on the present record-carried its burden of
demonstrating that it could not have “readily”
produced the relevant electronic records in their original
format as requested. There is no question that the TSA had
the technical capacity to format the records in the manner
requested; indeed, that is how the records were originally
formatted and used by the agency. For obvious reasons, the
TSA does not contest this point. Rather, the agency argues
that releasing records under FOIA in their original format
would be unduly burdensome because its FOIA processing
software, and its SSI review process, require reformatting
the ...