Magassa v. TSA, No. 23-2526, 2025 WL 561296 (D.D.C. Feb. 20, 2025) (Alikhan, J.)

Magassa v. TSA, No. 23-2526, 2025 WL 561296 (D.D.C. Feb. 20, 2025) (Alikhan, J.)

Re:  Request for records concerning revocation of defendant’s airport security credential

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 3:  “[T]he court will grant summary judgment to TSA on its withholdings under FOIA Exemption 3.”  The court relates that “TSA withheld forty-eight pages in whole or in part pursuant to Exemption 3 on the basis of 49 U.S.C. § 114(r).”  “[T]he parties agree that the Homeland Security Act, 49 U.S.C. § 114(r), meets the requirements of Exemption 3.”  The court relates that defendant “provided a detailed breakdown of the withholdings, identifying which regulations covered which records and explaining why the withheld records were SSI.”  “Specifically, [defendant] explained that” the withheld information consisted of:  “‘specific steps taken and sources used in TSA’s security threat assessments, as well as results that may be used to determine Plaintiff’s status on a watch list utilized by TSA for passenger pre-board screening (i.e., whether Plaintiff was or was not on such a list);’” “‘cover dates showing the applicable retention schedule, as well as dates and specific processing steps of Plaintiff’s security threat assessments, either of which may be used to determine Plaintiff’s status on a watch list utilized by TSA for passenger pre-board screening (i.e., whether Plaintiff was or was not on such a list),’”  “‘information about Plaintiff that may be used to determine Plaintiff's status on a watch list utilized by TSA for passenger pre-boarding screening (i.e., whether Plaintiff was or was not on such a list),’” “‘names, email addresses and/or phone numbers of low-level TSA Intelligence & Analysis employees involved in processing Plaintiff’s security threat assessment(s), the release of which could result in harassment and/or retaliation for the processing and result of the security threat assessment and Plaintiff’s experience with TSA;’” and “‘names of Transportation Security Inspectors and related low-level TSA personnel involved in responding to and/or evaluating a potential security incident involving Plaintiff at the Seattle Tacoma International Airport the release of which could result in harassment and/or retaliation for the potential security incident and Plaintiff’s experience with TSA related to the potential security incident.’”  The court finds that, “[f]or each class of records, [defendant] identified the type of information that was being withheld or redacted and tied it to the relevant regulation.”  “[Defendant] then explained why disclosure of the information would be detrimental to national security.”  “TSA’s Vaughn index was ‘relatively specific in describing the kinds of documents the agency is withholding’ and providing the reasons why.”
  
  “[Plaintiff] next challenges TSA’s Glomar response, in which it refused to confirm or deny the existence of records that might indicate [plaintiff’s] status on a federal watch list.”  “Again, the court disagrees with [plaintiff’s] characterization.” “As TSA explained in its Glomar response, ‘acknowledging the existence or nonexistence of records regarding [plaintiff] would reveal whether he was or was not on a watch list utilized by TSA for passenger pre-board screening.’”  “‘Releasing an individual’s status on a federal watch list used by TSA for passenger pre-board screening could enable terrorists planning an attack on an aircraft to identify operatives who have or have not previously been identified as a threat,’ and ‘[f]ederal watch lists remain effective tools . . . because their contents are not disclosed.’”
   
• Exemption 5, Attorney Work-Product Privilege & Attorney-Client Privilege:  The court relates that “TSA redacted two pages – one sentence from one email and language from one document – pursuant to Exemption 5.”  “The parties do not dispute that the withheld records are ‘inter-agency or intra-agency memorandums or letters,’ . . . but they do dispute whether TSA has properly justified the redactions under either the work-product privilege or the attorney-client privilege.”  “TSA explains that the redacted email and document were created during the course of administrative proceedings concerning the revocation of [plaintiff’s] [Security Identification Display Area] credential and in reasonable anticipation of further litigation.”  “Additionally, the redactions to the email are ‘limited [to] the attorney’s mental impressions and analysis for the client following the administrative hearing concerning the security threat assessment,’ and the redactions to the document were ‘limited [to] the attorney’s confidential advice to the Intelligence & Analysis Office on that matter.’”  “[Plaintiff] contends that TSA’s explanations are insufficient because TSA ‘merely recites the standard for the two privileges, rather than demonstrating how those privileges apply to the withheld records.’”  “Again, the court is unpersuaded.”  “As it relates to both privileges, the court disagrees that TSA merely ‘regurgitate[d] the relevant standard[s],’ as [plaintiff] suggests.” “In both the [defendant’s] declaration and the Vaughn index, TSA substantiated the bases for its redactions – including that the redacted information was authored by an agency attorney for an agency client, concerned the attorney’s analysis or advice, and was generated in relation to an administrative proceeding and in reasonable anticipation of future civil litigation (which did, in fact, occur . . . .)” “Accordingly, the court will grant summary judgment to TSA regarding its withholdings under FOIA Exemption 5.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court relates that “[defendant] explained that she had personally reviewed the records withheld under Exemptions 3 and 5 and concluded that ‘[t]o the extent possible, non-exempt responsive records and portions thereof have been segregated and released to [plaintiff],’ . . . and [defendant] explained that ‘the smallest possible portion of the record necessary to protect SSI’ was redacted . . . .”  “The D.C. Circuit held that a similar explanation was sufficient in another of [plaintiff’s] cases . . . and this court sees no reason to depart from that conclusion here.”