Sai v. TSA, No. 14-403, 2018 WL 2364290 (D.D.C. May 24, 2018) (Moss, J.)

Sai v. TSA, No. 14-403, 2018 WL 2364290 (D.D.C. May 24, 2018) (Moss, J.)

Re:  Six requests concerning plaintiff and certain TSA policies

Disposition:  Granting in part and denying in part defendant's motion for summary judgment

• Procedural Requirements, Responding to FOIA Requests:  In response to plaintiff's requests, the court holds that "E-FOIA . . . 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."  However, "the Court [also] 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."  "The TSA may be able to show that [plaintiff's] request that the agency release the records in their original format posed a burden on the agency of sufficient magnitude to justify its rejection of that request."  "It has yet to do so, however, and the TSA's primary contention that the request was incompatible with the agency's then-existing FOIA processing software is in tension with the language and purpose of the E-FOIA amendments."  "Even more significantly, the next sentence of the statute demands that agencies 'make reasonable efforts to maintain . . . records in forms or formats that are reproducible for purposes of' E-FOIA."  "And perhaps most significantly, Congress's goals of 'improv[ing] public access to agency records,' . . . and 'maximiz[ing] the usefulness of agency records' . . . would be easily frustrated if an agency could reject a request to release records in a particular format simply on the ground that releasing the records in that format would make the FOIA review process more difficult."
   
• Litigation Considerations, Adequacy of Search:  "The Court is not convinced on the current record, however, that the TSA has carried its burden with respect to four offices that [plaintiff] contends were not, but should have been, searched."  The court explains that "[certain] correspondence indicates that [four] offices may have possessed records responsive to [one of plaintiff's] Request[s], and, on the current record, the Court is unable to conclude that TSA conducted a search 'reasonably calculated to uncover all relevant documents' with respect to those offices."  However, "the Court agrees, with the four exceptions described above, that the TSA searched those offices that were likely to have records responsive to [plaintiff's requests]."  The court also finds that "TSA has not submitted evidence sufficient for the Court to determine when it commenced [certain] relevant searches" and, "the Court, accordingly, cannot conclude that the TSA has carried its burden on this issue for purposes of summary judgment."  "The Court also concludes that the TSA has failed to carry its burden of showing that it conducted a search 'reasonably calculated' to recover responsive records with respect to the databases searched . . . and with respect to the search terms used to search [in response to certain requests]."
   
• Procedural Requirements, Proper FOIA Requests:  The court holds that "there is little doubt that [plaintiff's] Policies Request was vastly overbroad and thus did not demand a response commensurate with the request."  "Indeed, short of asking for all agency records, it is difficult to image a request broader in scope and more burdensome than a request for all 'policy and/or procedures documents,' past and present, including all 'Management Directives, Standard Operating Procedures, Operations Directives, Security Directives, Emergency Amendments, Information Circulars, Memoranda, Handbooks, Letters, Bulletins, and Guidance.'"  "The TSA, moreover, provided [plaintiff] with ample opportunity to refine his request."  The court also notes that "[e]ven though the TSA was not required to respond to [plaintiff's] unrefined Policies Request, it nonetheless made a good faith effort to provide him with at least a partial response."
   
• Exemption 3 & Waiver:  "On the present record . . . the Court cannot determine with any certainty whether the TSA released information to [another requester] prior to responding to [plaintiff's] FOIA request, while withholding that same information from [plaintiff]."  "Ultimately, [plaintiff] will bear the burden of demonstrating that the TSA officially released information to [the other requester] and, then, later withheld that same information from [plaintiff] based on Exemption 3."  "To prevail on summary judgment, however, the TSA must demonstrate that it is entitled to prevail as a matter of law."  "Because the current record is incomplete on this issue, the Court must defer resolving it."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "[defendant's] declaration offers explanations for each of the TSA's invocations of the deliberative process privilege."  "[Defendant] attests that, in responding to [plaintiff's] [requests], the agency withheld information on two pages that was both predecisional . . . and deliberative[.]"
   
• Exemptions 6 & 7(C):  "Starting with the privacy interest of the local law enforcement officers in preventing disclosure of their identity, the Court has no basis to question the TSA's good-faith representation that these records were compiled for law enforcement purposes, nor does [plaintiff] argue to the contrary."  "[T]he Court cannot discern any significant public interest would be advanced by exposing local law enforcement officers to that potential for 'annoyance or harassment.'"  "The Court, accordingly, concludes that the TSA properly redacted the identifying information for the local law enforcement officials."  "The TSA has not, however, met its burden of showing a 'substantial privacy interest' with respect to other identifying and contact information withheld pursuant to Exemption 6."  "And, it has not explained why TSA employee names and professional contact information contained in the policy documents implicate a substantial privacy interest."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court . . . concludes that with respect to records that the TSA released, it has met its obligation to release reasonably segregable portions."  "[Plaintiff] fails to identify any evidence that the TSA withheld records in whole based on a valid FOIA exemption, where a portion of those records were reasonably segregable and could have been released without disclosing the exempt information."  "The Court, moreover, has reviewed the various Vaughn indices that the TSA has submitted in support of its motion . . . and those indices demonstrate that the agency redacted the exempt portions of otherwise responsive records where possible."
   
• Litigation Considerations, Discovery:  "The Court . . . concludes that [plaintiff] has failed to rebut the presumption of good faith applicable to the TSA's explication of its search efforts and has failed to show that discovery is warranted in this FOIA/Privacy Act action."