Thursday, March 7, 2013
Re: Request for records pertaining to radiation emissions produced by Advanced Imaging Technology (AIT) machines used to screen passengers at commercial airports Disposition: Granting partial summary judgment to defendant and plaintiff
- Exemption 3: The court concludes that DHS is entitled to summary judgment on its withholding of [certain] material designated as security sensitive information. "Pursuant to [49 U.S.C. § 114(r)], TSA promulgated regulations that expressly prohibit the disclosure of certain categories of sensitive security information." The court continues, "that provision must…qualify under exemption 3" because it "granted the agency authority to 'withhold security-sensitive information from members of the public, regardless of the legal basis of the request for the information,' including FOIA." Because "[j]udicial review of TSA's determination that certain material is nondisclosable 'security sensitive information' is available exclusively in federal circuit courts…district courts may not review TSA orders that designate material as security sensitive information."
- Exemption 4: The court concludes that both parties are entitled to partial summary judgment as to the Exemption 4 withholdings. The only question pertaining to this exemption is "whether the withheld information was 'obtained from a person.'" The court explains, "[t]he key inquiry is who 'the source of the information [was] in the first instance,' and not necessarily who created the particular document." Noting that the information at issue "'reflect the government's own radiation measurements conducted on an AS & E Smart Check machine,'" the court determines that "the 'source of the information in the first instance' was the government, not a 'person.'" The court affirms DHS's withholding of a "'dosage map'…'submitted by AS & E in connection with the evaluation of AS & E's Dual Smart Check'…[b]ecause the information…was 'obtained from a person.'"
- Exemption 5/Deliberative Process Privilege: The court concludes, "DHS is entitled to summary judgment with respect to all of its exemption 5 withholdings." First, plaintiff challenges DHS's withholdings of "what it considers to be 'purely factual' material." The court finds "that all of these materials, factual or not, were properly withheld under exemption 5, because they are all part of DHS's deliberative process regarding the future of the AIT program." The primary testing results were properly withheld as well because "'[t]he fact that the 'testing' was preliminary is key: these preliminary results were part of the agency's deliberations in how to approach the potential risks of the body scanning technology." The court rejects the plaintiff's assertion that DHS must "'identify a corresponding final decision'" when using the "deliberative process privilege to withhold draft documents." "[T]o protect a 'draft' document, an agency…must provide adequate description of the document to demonstrate that it was genuinely part of the agency's deliberative process." Segregability: The court finds that all reasonably segregable material was disclosed when "many of the contested withholdings under exemption 5 were partial redactions from specific pages, rather than complete withholdings of entire documents,…[the] agency has twice made supplemental release of documents after determining that further segregable material could be released[,] and has declared in a sworn affidavit that it has released the segregable portion of each of these records."
Updated August 6, 2014