Sai v. TSA, No. 14-403, 2020 WL 2801188 (D.D.C. May 29, 2020) (Moss, J.)

Sai v. TSA, No. 14-403, 2020 WL 2801188 (D.D.C. May 29, 2020) (Moss, J.)

Re:  Requests for records concerning certain incidents involving TSA, surveillance at certain airports, and certain TSA policies

Disposition:  Granting in part and denying in part defendant's renewed motion for summary judgment; denying plaintiff's motion for partial summary judgment

• Litigation Considerations:  The court holds that "[plaintiff's] entitlement to electronic records in their 'native formats' was not ripe for decision" because "unless [plaintiff] can show that the TSA is required to release certain records responsive to [two of the requests], the Court should not – and may not – reach the question whether those records, if any, must be released in their native formats."
   
• Procedural Requirements, Searching for Responsive Records:  "The Court . . . is unconvinced that [one of plaintiff's] Request[s] for distinct or discretized PDF files, as opposed to a single file containing multiple documents, constitutes a request for records in a 'form or format' different from that the TSA supplied."  Regarding the E-FOIA Amendments, which "require[] agencies to release records 'in any form or format requested . . . if the record is readily reproducible by the agency that form or format,'" the court finds that "where possible and consistent with other textual clues, courts endeavor 'to give meaning to every word' of a statute and to avoid redundancy."  "The Court can do so here by construing 'form' to refer to the media – e.g., paper or thumb drive – and construing 'format' to refer to the electronic 'structure for the processing, storage, or display' of data . . . ."  "This interpretation of the E-FOIA is also consistent with the tenet that nothing in FOIA requires the responding agency to 'arrange responsive records in [a] particular order.'"  The court finds that "[plaintiff] received the records in the 'form' they requested – electronic – and in the 'format' they requested – PDF."  The court holds that "the E-FOIA did not require the TSA to honor [plaintiff's] request for discrete PDFs."
   
  Separately, "[t]he Court concludes that the TSA has failed to proffer 'specific, compelling evidence as to significant interference or burden' imposed on the agency by releasing records to [plaintiff] as the requested non-rasterized PDFs."  The court finds that "although the TSA asserts that it would impose 'significant administrative burden on the agency' to process and redact responsive documents outside of its usual FOIAXpress process, . . . [defendant's] declaration offers little detail concerning this burden."  "It neither estimates the time or additional staffing required to take on this task nor estimates the financial burden that the project would impose."  "Moreover, [plaintiff] correctly observes that, although [defendant's] declaration asserts that the TSA is unaware of a method of producing secure redactions within a non-rasterized PDF, it does not represent that it made any effort to explore whether such a method exists or to quantify the increased risk of potential countermanding of redactions realized outside of FOIAXpress."  "True, [defendant's] declaration cites two instances in which agencies inadvertently disclosed SSI due to faulty processes."  "But the mere fact that mistakes have been made does not mean that the use of FOIAXpress is the only reliable way of ensuring that they are not repeated."  "[B]ecause the legal standard at issue here is arguably undeveloped and, more importantly, because the record is incomplete, the Court will provide the agency with a final opportunity to proffer the type of evidence that will permit the Court to determine whether the TSA can 'readily reproduce[e]' the records at issue as fully digital text PDFs rather than scans or rasterizations."  "If the TSA decides to accept that opportunity, it should provide the Court with an expert declaration addressing the technical feasibility of the request, the specific cost (in dollars) and burdens (in time) of satisfying the request, the extent of the necessary redactions, and the security risks, if any, posed by using Adobe Acrobat, as [plaintiff] suggests . . . or some other software to release redacted, non-rasterized versions of the records at issue."
   
  Also, in response to TSA's narrowed reading of one of plaintiff's requests, regarding one such request, "the Court cannot conclude that a requester has forfeited a portion of their FOIA request simply by failing explicitly to reassert it in responding to an invitation to 'provide as much information as possible to enable the FOIA Branch to locate the records being sought,' . . . or by failing to respond to a request for clarification."  Regarding another request, "[b]ecause the TSA offers only [what the court finds to be an improperly narrow reading of this request as] explanation for its failure to search the Office of Legislative Affairs, . . . the Court will deny the agency's renewed motion for summary judgment with respect to its failure to search the Office of Legislative Affairs for responsive documents."  Regarding a third request, the court relates that "TSA now offers essentially the same explanation for its failure to search the Office of the Executive Secretariat that it offered with respect to its failure to search the Office of Legislative Affairs" and "[t]he Court is, once again, unpersuaded."
   
  Regarding TSA's search cut-off dates, "[t]he Court concludes that the TSA has not filled the gap identified in the Court's previous opinion."  "First, the Court rejects the TSA's argument that the tasking date is the only appropriate date to consider as the search commencement date because, if the Court were to instead consider each date that an agency sub-office ran a search, there would be multiple search commencement dates for each sub-office."  The court finds that "[t]here is an obvious potential middle ground:  The Court could consider the search commencement date to be the date on which the tasked sub-office ran its first search pursuant to that tasking – thus commencing that sub-office's search efforts."  Additionally, regarding re-requests for information requested in earlier requests for an updated timeframe, the court holds that "the start date for the TSA's Re-Request searches should have aligned with the cut-off date for its initial Request searches," rather than the date of the final response for those earlier requests, because the "gap between the tasking dates for the initial Requests (or the dates on which the sub-offices actually began searching in response to those taskings) and the corresponding signed response dates present a problem."
   
  Regarding TSA's search terms, "the Court . . . cannot determine whether the different search terms were a product of some 'discernable reason' or 'methodology' or were a result of mere happenstance."  The court explains that "[a] good explanation might posit, for example, that the TSA's search terms varied across component offices because those offices organized their records differently, used different databases, or played different roles in the underlying dispute; it might posit that some offices swept more broadly than necessary to find all responsive records; or it might posit the different search terms simply represented different paths to the same end point."  "The problem is that Defendants fail to offer any explanation for the inconsistencies . . . ."
   
• Litigation Considerations, Adequacy of Search:  The court holds that, by providing a supplementary explanation, TSA has now remedied its earlier failure to "'explain which databases or locations were searched within those office[s],' [and] fail[ure] to establish that the agency had conducted an adequate search of those offices."  The court finds that "TSA has now carried its burden to 'describe what records were searched, by whom, and through what processes' . . . ."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court finds that "[TSA's declarant] attests that she is 'responsible for overseeing the processing of all requests made to [the] TSA under FOIA' and is 'familiar with [the] TSA's records systems' and that she based her declaration on 'personal knowledge [and] information made available to [her] in the performance of [her] official duties.'"  Contrary to plaintiff's argument, "[t]he Court concludes that [defendant's declarant] has laid an adequate foundation for her declaration."
   
• Waiver and Discretionary Disclosure, Waiver:  Responding to plaintiff's argument that a greater release to a third party by defendant subsequent to the release to plaintiff constituted an official acknowledgment, the court holds that "[b]ecause the official disclosure doctrine focuses on whether the specific information [at] issue had been previously disclosed by the agency, . . . '[i]t does not . . . apply to information that was confidential at the time the agency responded to the plaintiff's FOIA request and was only subsequently officially released' . . . ."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court is persuaded that the TSA properly invoked the deliberative process privilege, despite Sai’s previous contention that the withheld information was factual and not deliberative."  The court explains that "because the unrebutted evidence shows that the material withheld pursuant to Exemption 5 reveals the predecisional impressions, interpretations, beliefs, and opinions of agency staff, . . . the Court will grant summary judgment in the TSA's favor with respect to these withholdings."
   
• Exemption 6:  The court relates that "TSA asserts that [its] declaration 'describes in detail why the redacted names and contact information of TSA employees implicates a substantial privacy interest' and 'how the release of the redacted information would constitute a clearly unwarranted invasion of privacy' and 'subject identified individuals to the risk of annoyance or harassment.'"  "The Court concludes that [defendant's] declaration, which fills the gaps identified [earlier by the court] concerning the 'position held by the relevant employee, the role played by that employee, the substance of the underlying agency action, [and] the nature of the agency record at issue,' . . . has established that the withholdings pursuant to Exemption 6 were proper."
   
• Litigation Considerations:  "[T]he Court will deny [plaintiff's] request for production [of certain] additional information[]" "[b]ecause these claims for additional records neither fall within the ten areas that the Court's earlier opinion highlighted as inadequacies in Defendant's previous motion for summary judgment, . . . nor are sufficiently developed in [plaintiff's] cross-motion for partial summary judgment to allow the Court to evaluate them."