Thursday, March 7, 2013
Re: Request for records concerning the development and implementation of Automated Target Recognition (ATR) technology and categorization as "representative of the news media" Disposition: Granting partial summary judgment for defendant and partial summary judgment for plaintiff
- Exemption 3: The court concludes that the Transportation Security Administration (TSA) 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 prohibits 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 orders of TSA that designate material as security sensitive information."
- Exemption 5/Deliberative Process Privilege: The court grants plaintiff's motion for summary judgment as to "withholdings within a PowerPoint shared with a Congressional Committee." The question before the court "is whether such a document, once provided to Congress, may be eligible for protection under Exemption 5." A document shared with Congress may be protected as an "intra-agency memoranda if [it is] 'part and parcel of the agency's deliberative process.'" When it is shared "'for the sole purpose of assisting [a] Committee with its deliberations,'" it does not receive protection. Here, "the document was assembled and presented to assist the Appropriations Committee in its own funding determinations[,]…there was apparently no express agreement by the Committee that the material would remain confidential[, and]…there was no apparent information-gathering purpose to this document." The plaintiff next argues that certain memoranda and letters were not properly redacted because TSA "impermissibly withheld 'factual' material." The court notes that the memoranda and letters were "prepared for the DHS Under Secretary for Management and recommended that DHS authorize the implementation of ATR." "It is not contested that the purpose of these documents was to promote deliberation as to the future of the ATR program." The court grants defendant's motion for summary judgment as to these documents because "[t]he TSA's Statement of Facts Not in Genuine Dispute, the TSA declaration, and the Vaughn Index all describe these documents in sufficiently specific terms to demonstrate that they qualify for the privilege." To "[allow] the public to 'probe'… factual information…'would be the same as probing the decision-making process itself.'" Finally, the plaintiff argues that "[a]t some point this information was pre-decisional, but it does not remain predecisional after the tests have been completed." The court explains it is "the document's role in the agency's decision-making process that controls" and TSA has "met this burden by demonstrating that each of these documents was part of the agency's deliberative process in determining whether to use ATR."
- Segregability: The court finds that the plaintiff's "assertion that TSA failed to produce segregable portions of the withheld documents also fails." The agency "has declared in a sworn affidavit that it has released the segregable portion of each of these records" and the Vaughn Index demonstrates that "most of the contested withholdings under exemption 5 were partial redactions from specific pages, rather than complete withholdings of entire documents."
Updated August 6, 2014