stating that privilege applies when “the factual material here was not assembled for an agency actor merely to pass along to outsiders, but rather for purely internal deliberative purposes”
How later courts described this case
- stating that privilege applies when “the factual material here was not assembled for an agency actor merely to pass along to outsiders, but rather for purely internal deliberative purposes”
- finding no Exemption 5 protection for document “prepared to assist with Congressional deliberations rather than agency deliberations”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELECTRONIC PRIVACY )
INFORMATION CENTER, )
)
Plaintiff, )
)
v. ) Civil No. 11-290 (RCL)
)
TRANSPORTATION SECURITY )
ADMINISTRATION )
)
Defendant. )
)
MEMORANDUM OPINION
This action concerns two Freedom of Information Act (“FOIA”) requests by the
Electronic Privacy Information Center (“EPIC”) for records held by the Transportation Security
Administration (“TSA”). The parties have filed cross-motions for Summary Judgment. ECF
Nos. 13 & 14. The Court will GRANT in part and DENY in part both motions. TSA is entitled
to summary judgment as to all of its withholdings pursuant to exemptions 3, 4, and 6, and all
withholdings pursuant to exemption 5 except for a PowerPoint shared with a Congressional
Committee, which TSA must disclose.
I. BACKGROUND
Starting in 2005, the TSA began using full-body scanning machines in U.S. airports to
screen travelers on U.S. commercial aircraft. Pl.’s Statement of Material Facts ¶ 2, ECF No. 14-
2. 1 In 2010 the TSA decided to make Advanced Imaging Technology scanners the primary
method of screening passengers. Def.’s Br. 2, ECF No. 13. These machines capture detailed,
1
TSA does not dispute any of the facts contained in this statement. Def.’s Response to Pl.’s Statement, ECF No. 17-
1.
three-dimensional images of individuals and transmit them for review by Transportation Security
Officers. Pl.’s Statement ¶ 3. In response to concerns about protecting the privacy of
passengers, including concerns raised by EPIC, the TSA began researching and testing
Automated Target Recognition (“ATR”) software updates for these machines. Id. ¶¶ 4–10.
According to the TSA, “[r]ather than having a [security officer] view a passenger-specific image,
scanners utilizing [ATR] software auto-detect potential threat items and indicate their location on
a generic outline of a person.” Def.’s Br. 2.
In June 2010, EPIC submitted a FOIA Request to the TSA seeking a variety of
information about the development and implementation of ATR technology and seeking a waiver
of the duplication fees pursuant to its status as a “representative of the news media.” FOIA
Request, Jun. 15, 2010 (“FOIA Request 1”), ECF Nos. 13-2, 14-5. EPIC requested the following
documents:
1) All specifications provided by TSA to automated target recognition manufacturers
concerning automated target recognition systems.
2) All records concerning the capabilities, operational effectiveness, or suitability of
automated target recognition systems, as described in [Department of Homeland
Security] Secretary [Janet] Napolitano’s letter to Senator [Susan] Collins. 2
3) All records provided to TSA from the Dutch government concerning automated
target recognition systems deployed in Schiphol Airport, as described by
Secretary Napolitano’s letter to Senator Collins.
4) All records evaluating the [full body scanner] program and determining
automated target recognition requirements for nationwide deployment, as
described in Secretary Napolitano’s letter to Senator Collins.
See FOIA Request 1 at 2. TSA acknowledged receipt of the request and stated that duplication
fees would apply. TSA Resp. to EPIC’s FOIA Request 1, Jun. 24, 2010, ECF No. 14-6. In
2
This letter, which included details about the TSA’s timetable for ATR deployment, was disclosed by TSA in
response to a separate April 2010 petition filed by EPIC and other organizations seeking suspension of the entire full
body scanner program. See Pl.’s Br. 2, ECF No. 14-1.
2
October 2010, EPIC filed an administrative appeal based on TSA’s failure to disclose records
and its denial of the fee-waiver. EPIC’s FOIA Appeal 1, Oct. 5, 2010, ECF No. 14-7.
EPIC submitted a second FOIA Request (“EPIC’s Second FOIA Request”) to the
Department of Homeland Security (“DHS”) seeking additional information about ATR and again
requesting waiver of duplication fees. See FOIA Request 2, Oct. 5, 2010, ECF Nos. 13-3, 14-10.
Specifically, EPIC requested the following information:
1) All records provided from L3 Communications or Rapiscan 3 in support of the
submission or certification of ATR software modifications;
2) All contracts, contract amendments, or statements of work related to the
submission or certification of ATR software modifications;
3) All information, including results, of government testing of ATR technology,
as referenced by Greg Soule of the TSA in an e-mail to Bloomberg News,
published September 8, 2010.
FOIA Request 2 at 3–4. DHS referred the request to TSA, ECF No. 14-11, who assigned it a
reference number, and denied EPIC’s request to waive duplication fees. TSA Response to
EPIC’s FOIA Request 2, Nov. 8, 2010, ECF No. 14-12. In December, EPIC filed an
administrative appeal based on TSA’s failure to disclose records and its denial of the requested
fee-waiver. EPIC’s FOIA Appeal 2, Dec. 14, 2010, ECF No. 14-13.
EPIC filed this action in February 2011, alleging that TSA had “failed to disclose a single
record” and “failed to comply with agency deadlines under the FOIA.” Compl. ¶¶ 4, 46–48, 64–
66, ECF No. 1.
Several months later, TSA released hundreds of pages of records responsive to EPIC’s
requests and stated that they had withheld and redacted information pursuant to FOIA
exemptions 3, 4, 5, and 6. Def.’s Statement ¶¶ 13–17; Vaughn index, ECF No. 13-4. EPIC
3
L3 Communications and Rapiscan are the two private vendors who developed and manufactured AIT scanners.
Def.’s Br. 2.
3
challenges some of these withholdings, but notably it also claims it has already “substantially
prevailed” in the case by obtaining these documents. Pl.’s Opp’n 21.
II. LEGAL STANDARD
The Freedom of Information Act, 5 U.S.C. § 552, requires federal agencies to make
certain records publicly available. FOIA also provides exemptions from the disclosure
requirement, which are to be “narrowly construed.” FBI v. Abramson, 456 U.S. 615, 630 (1982).
Four of these, exemptions 3, 4, 5, and 6, are relevant to this case and are described in greater
detail below.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be
granted when “there is no genuine issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). FOIA actions are typically and appropriately resolved on summary
judgment. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir.
2011); see also COMPTEL v. FCC, 06-cv-1718, 2012 WL 6604528, *4 (D.D.C. Dec. 19, 2012).
The agency bears the burden in litigation to justify withholding any records. 5 U.S.C. §
552(a)(4). This is in part because of the “strong presumption in favor of disclosure,” U.S. Dep’t.
of State v. Ray, 502 U.S. 164, 173 (1991), and because FOIA requesters face an information
asymmetry given that the agency possesses the requested information and decides whether it
should be withheld or disclosed. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145–46 (D.C.
Cir. 2006). Thus, even where the requester has moved for summary judgment, the Government
“ultimately has the onus of proving that the documents are exempt from disclosure.” Pub. Citizen
Health Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999) (internal quotations and
modifications omitted); see also COMPTEL, 2012 WL 6604528 at *4.
4
To satisfy its burden, an agency may rely on detailed affidavits, declarations, a Vaughn
index, in camera review, or a combination of these tools. A Vaughn index correlates each
withheld document, or portion thereof, with a particular FOIA exemption and the justification for
nondisclosure. Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). While agency affidavits
are accorded a presumption of good faith, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991), they must “provide[] a relatively detailed justification, specifically identify[ing]
the reasons why a particular Exemption is relevant and correlating those claims with the
particular part of a withheld document to which they apply.” Judicial Watch v. FDA, 449 F.3d at
146; see also COMPTEL, 2012 WL 6604528 at *4.
III. EPIC HAS CONCEDED THE ADEQUACY OF TSA’S SEARCH FOR
RESPONSIVE DOCUMENTS AND THE PROPRIETY OF ITS
WITHHOLDINGS PURSUANT TO EXEMPTIONS 4 AND 6
TSA has moved for summary judgment as to the adequacy of its search for responsive
documents, Def.’s Br. 9–11, and the appropriateness of its withholdings. See Def.’s Br. 18–25,
28–31. EPIC does not contest the adequacy of TSA’s search or the propriety of its withholdings
pursuant to exemptions 4 or 6. See Pl.’s Opp’n. Accordingly, the Court takes these issues as
conceded and grants summary judgment to TSA as to all withholdings made under exemptions 4
and 6 as indicated in the Vaughn Index.
IV. TSA IS ENTITLED TO SUMMARY JUDGMENT AS TO ITS EXEMPTION 3
WITHHOLDINGS
Both parties move for summary judgment as to withholdings made by TSA pursuant to
exemption 3. TSA is entitled to summary judgment as to these withholdings.
Exemption 3 permits the nondisclosure of materials that are “specifically exempted from
disclosure by statute” so long as that statute “establishes particular criteria for withholding or
refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A)(ii). Congress
5
amended exemption 3, adding language requiring “particular criteria for withholding” in order
“to overrule legislatively the Supreme Court’s decision in Administrator, FAA v. Robertson, 422
U.S. 255 (1975), which had given an expansive reading to the version of Exemption 3 then in
force.” 4 Irons & Sears v. Dann, 606 F.2d 1215, 1219 (D.C. Cir. 1979). Only statutes that
“incorporate[] a formula whereby the administrator may determine precisely whether disclosure
in any instance would pose the hazard” from disclosure that the provision was intended to protect
against will qualify under exemption 3. Am. Jewish Cong. v. Kreps, 574 F.2d 624, 628–29 (D.C.
Cir. 1978). Statutes that merely “set forth benchmarks for secrecy so general as the ‘interest of
the public’ (such as the statute at issue in Robertson) do not satisfy . . . [the] ‘particular criteria’
requirement.” Wis. Project on Nuclear Arms Control v. U.S. Dep’t of Commerce, 317 F.3d 275,
280–81 (D.C. Cir. 2003) (quoting Am. Jewish Cong., 574 F.2d at 629). But when “on the other
hand, Congress has made plain its concern with a specific effect of publicity . . . Exemption 3 is
to honor that concern.” Id.
Section 114(r) of Title 49 provides:
Notwithstanding section 552 of title 5, the Under Secretary shall prescribe
regulations prohibiting the disclosure of information obtained or developed in
carrying out security under authority of the Aviation and Transportation Security
Act (Public Law 107-71) or under chapter 449 of this title if the Under Secretary
decides that disclosing the information would . . . be detrimental to the security of
transportation.
49 U.S.C. § 114(r), (r)(C). Pursuant to that authority, TSA promulgated regulations that
expressly prohibit the disclosure of certain categories of sensitive security information. See
generally 49 C.F.R. pt. 1520.
4
Robertson upheld an exemption 3 claim based on a pre-FOIA statute which barred disclosure of information that
would “adversely affect” the agency and was “not required to be disclosed in the interest of the public.” 422 U.S. at
259.
6
Judge Kollar-Kotelly has held that § 114(r) qualifies as a “statute of Exemption as
contemplated by Exemption 3.” Tooley v. Bush, 06-cv-306, 2006 WL 3783142, *4 (D.D.C. Dec.
21, 2006) rev’d in part on other grounds sub nom. Tooley v. Napolitano, 556 F.3d 836 (D.C. Cir.
2009). Her conclusion rested on a D.C. Circuit decision which interpreted a provision containing
nearly identical language to § 114(r). Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 194 (D.C. Cir.
1993). The Public Citizen court examined withholdings made pursuant to the following
provision:
Notwithstanding section 552 of Title 5 relating to freedom of information, the
[FAA] Administrator shall prescribe such regulations as he may deem necessary
to prohibit disclosure of any information obtained or developed in the conduct of
security or research and development activities under this subsection if, in the
opinion of the Administrator, the disclosure of such information . . . (C) would be
detrimental to the safety of persons traveling in air transportation.
Pub. Citizen, 988 F.2d at 189 (quoting 49 U.S.C. § 1357(d)(2) (1993) (subsequently recodified at
49 U.S.C. § 40119(b)). The Circuit concluded that the provision 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 Id. at 195–96. The Circuit explained
that Congress added the “notwithstanding” language to ensure that the statute qualified under
FOIA’s exemption 3. 5 Id. at 195.
This Court agrees with Judge Kollar-Kotelly. Because section 114(r) contains virtually
identical language to the provision in Public Citizen, particularly the “notwithstanding”
language, the Circuit’s analysis is equally applicable to section 114(r), and that provision must
also qualify under exemption 3.
5
This belies EPIC’s charges that the Public Citizen court “does not . . . resolve the question of whether the statute at
issue in that case, 49 U.S.C. § 1357(d)(2), qualifies as an exemption 3 statute,” and the Court did “not engage in an
exemption 3 analysis at all.” See Pl.’s Reply 3, ECF No. 18.
7
Judicial review of TSA’s determination that certain material is nondisclosable security
sensitive information is available exclusively in federal circuit courts. See 49 U.S.C. § 46110(a)
(“[A] person disclosing a substantial interest in an order issued . . . in whole or in part under . . .
subsection . . . (s) of section 114 6 may apply for review of the order by filing a petition for
review in the United States Court of Appeals for the District of Columbia Circuit or in the court
of appeals of the United States for the circuit in which the person resides or has its principal
place of business.”); id. § 46110(c) (describing the prescribed jurisdiction as “exclusive”); see
also Koutny v. Martin, 530 F. Supp. 2d 84, 91 (D.D.C. 2007) (“A remedy to challenge a final
TSA classification order is provided by statute. An interested party may petition to modify or set
aside such an order in an appropriate court of appeals.” (citing § 46110(a))). Accordingly,
district courts may not review orders of TSA that designate material as security sensitive
information. See Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 77–78 (D.C. Cir.
1984) (“[W]here a statute commits review of agency action to the Court of Appeals, any suit
seeking relief that might affect the Circuit Court’s future jurisdiction is subject to the exclusive
review of the Court of Appeals.”).
Here, TSA has withheld information designated as security sensitive pursuant to § 114(r).
Because the Court lacks jurisdiction to review the merits of the specific withholdings made
pursuant to that provision, see 49 U.S.C. § 46110(a), (c), the legal conclusion that § 114(r)
qualifies for exemption 3 withholding takes this Court as far as it can go here. TSA is entitled to
summary judgment on its withholding of the material designated as security sensitive
information.
6
Subsection (s) of section 114 formerly authorized TSA to prohibit the disclosure of certain material found to be
detrimental to the security of transportation; in 2007, this subsection was redesignated as § 114(r). Pub. L. 110–161
§ 568, Dec. 26, 2007, 121 Stat. 1844. Section 46110(a) has not yet been updated to reflect this clerical change.
8
V. BOTH EPIC AND TSA ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT
AS TO TSA’S EXEMPTION 5 WITHHOLDINGS
Both parties move for summary judgment as to the legality of withholdings made by TSA
pursuant to FOIA’s exemption 5. 7 EPIC is entitled to summary judgment as to the TSA’s
exemption 5 withholdings within a PowerPoint shared with a Congressional Committee. TSA is
entitled to summary judgment as to all other exemption 5 withholdings.
FOIA’s exemption 5 permits the non-disclosure of “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5). “To qualify, a document must thus satisfy two
conditions: its source must be a Government agency, and it must fall within the ambit of a
privilege against discovery under judicial standards that would govern litigation against the
agency that holds it.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
(2001). One such privilege is the “deliberative process privilege,” which “protects agency
documents that are both predecisional and deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d
141, 151 (D.C. Cir. 2006). A document is predecisional if “it was generated before the adoption
of an agency policy” and deliberative if “it reflects the give-and-take of the consultative
process.” Id. The deliberative process protection covers “documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Klamath, 532 U.S. at 8. The general
purpose of the deliberative process privilege is “to prevent injury to the quality of agency
decisions.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)
EPIC only challenges TSA’s exemption 5 withholdings made by TSA in three sets of
documents: (1) a PowerPoint presentation provided to a Congressional Committee, Bates
7
EPIC only moves for summary judgment as to a small subset of these withholdings, as discussed below. This
Court will enter summary judgment in favor of TSA on all exemption 5 withholdings not challenged by EPIC.
9
Numbers 404–421, see Pl.’s Opp’n 14; Soutodeh Supp. Decl. ¶¶ 4–11; (2) a letter of assessment
and other intra-agency memoranda regarding ATR testing results and recommendations, Bates
Numbers 463–483, see Pl.’s Opp’n 18; Soutodeh Decl. ¶ 39; and (3) an intra-agency Operational
Test Plan and Operational Test and Evaluation the ATR program, Bates Numbers 484–617, see
see Pl.’s Opp’n 18. The Court will discuss each of these documents in turn.
A. The PowerPoint Was Improperly Redacted
The first contested document, Bates Numbers 404–421, is a “PowerPoint presentation
prepared by TSA’s Office of Security Technology (OST) and presented in a briefing to the
House Appropriations Committee in connection with future funding for ATR.” Soutodeh Decl. ¶
36, ECF No. 13-1. The TSA’s declaration indicates that the presentation was “provided” to the
Committee. Soutodeh Supp. Decl. ¶ 3.
TSA made five withholdings from this document pursuant to exemption 5:
TABLE 1
BATES
NUMBER DESCRIPTION FROM VAUGHN INDEX 8 PAGES WITHHELD
Detailed description of key threat detection
411–412 performance parameters and performance 2 pages partially withheld
Chart measuring operational availability [a]nd
413 passenger thoughput 1 page partially withheld
414 Measurement of passenger throughput 1 page partially withheld
Letter of Assessment findings and conclusions
pertaining to future use of ATR; security and policy
discussion of “next steps” for ATR; and description of
415–417 future testing operations at three airports 3 pages partially withheld
Future budget and purchase projections; Future
418–420 procurement schedule and deployment goals 3 pages partially withheld
8
All descriptions are direct quotations from the Vaughn Index.
10
The question is whether such a document, once provided to Congress, may be eligible for
protection under exemption 5. The Court finds that the document is not eligible for this
protection and must be disclosed.
Congress is not an “agency” for purposes of the FOIA. See 5 U.S.C. § 551(1)(A). This
suggests that documents shared with Congress should not qualify under exemption 5, which is
limited to intra-agency and inter-agency documents. But, notably, Congress also expressly noted
in the FOIA statute that “[t]his section is not authority to withhold information from Congress.”
§ 552(d). This provision arguably implies that Congress intended to permit agencies to freely
share information with Congress without thereby incurring the consequence of being forced to
disclose that document more broadly. See Murphy v. Dep’t of the Army, 613 F.2d 1151, 1156
(D.C. Cir. 1979).
The D.C. Circuit has held that “communications between an agency and Congress [may]
receive protection as intra-agency memoranda if they [a]re ‘part and parcel of the agency’s
deliberative process,’” but may not receive this protection if “created specifically to assist
Congress” and shared “for the sole purpose of assisting [a] Committee with its deliberations.”
Rockwell Int’l Corp. v. Dep’t of Justice, 235 F.3d 598, 604 (D.C. Cir. 2001) (quoting and citing
Dow Jones & Co., Inc. v. Dep’t of Justice, 917 F.2d 571, 574–75 (D.C. Cir. 1990)); see also Dow
Jones, 917 F.2d at 574 (“It may well be true that if Congress had thought about this question, the
Exemption would have been drafted more broadly to include Executive Branch communications
to Congress . . . . But Congress did not, and the words simply will not stretch to cover this
situation, because Congress is simply not an agency.”).
For instance, in Rockwell International Co., the Circuit held that documents provided by
the Justice Department to a congressional subcommittee were eligible for exemption 5 protection
11
where the documents were not “created specifically to assist Congress, but rather memoranda
and correspondence created as part of the Justice Department’s deliberative processes” and
where the Department “gave the documents to the Subcommittee only after the Subcommittee
expressly agreed not to make them public.” 235 F.3d at 604. In Ryan v. Dep’t of Justice, the
Circuit held that questionaires sent by the Justice Department to senators were still protected by
exemption 5 where the documents were designed to collect information to assist the agency’s
internal deliberations. 617 F.2d 781, 789–90 (D.C. Cir. 1980). And earlier, in Murphy v.
Department of the Army, the Circuit held that a document disclosed by the Army to a
congressman was protected under exemption 5 even where the army did not actively condition
disclosure on confidentiality. 613 F.2d at 1156 (citing § 552(c), which later became § 552(d),
and which provides that FOIA is not “authority to withhold information from Congress”).
In contrast, in Dow Jones, the Circuit held that a Department of Justice letter submitted to
the Chairman of the House Ethics Committee was not eligible for exemption 5 protection
because “the Department had unquestionably ended its consideration” on the issue in question
“before it sent the letter to Congress,” so that the letter could not be considered “part and parcel
of the agency’s deliberative process.” 917 F.2d at 575.
Under these principles, the PowerPoint may not be protected by Exemption 5. First, and
most importantly, the document was assembled and presented to assist the Appropriations
Committee in its own funding determinations. See Pl.’s Opp’n 15; Pl.’s Reply 6–7. Second,
there was apparently no express agreement by the Committee that the material would remain
confidential, unlike in Rockwell. Third, unlike the surveys in Ryan, there was no apparent
information-gathering purpose to this document.
12
It is true that the PowerPoint was generated at least in part out of existing intra-agency
documents. See Soutodeh Supp. Decl. ¶¶ 4–6. And, like Rockwell and unlike Dow Jones, the
documents were merely “preliminary agency opinions” rather than articulations of a final
decision. Def.’s Opp’n 13. However, these arguments do not undermine the main conclusion:
this document was prepared to assist with Congressional deliberations rather than agency
deliberations. Moreover, in FOIA actions, the agency bears the burden in litigation to justify
withholding any records. 5 U.S.C. § 552(a)(4). The Agency has failed to meet its burden, and
the PowerPoint is not eligible for protection under exemption 5. Accordingly, EPIC is entitled to
summary judgment as to these claims, and the Court will order TSA to disclose any material
withheld pursuant to exemption 5 from the PowerPoint that was not also withheld pursuant to
exemption 3, compare Vaughn Index 10, with id. at 9, or later designated as security sensitive
information, see Sotoudeh Supp. Decl. ¶¶ 8–9, and which has not already been disclosed by the
agency, see id. at ¶¶ 7, 11. 9
B. The Letter of Assessment and Other ATR Memoranda Were Properly Redacted
Next, several ATR memoranda raise the same issues and are properly dealt with as a
class. First, Bates Numbers 463–76 is a memorandum “prepared by OST and used to brief the
9
The Vaughn index indicates that the first four withholdings listed in the table above, Bates Numbers 411–12, 413,
414, 415–17, were also withheld under exemption 3, but does not provide adequate specificity to determine whether
the overlap is partial or complete. Compare Vaughn Index 10, with id. at 9. The Court has granted summary
judgment to TSA on all of its exemption 3 withholdings, and thus will not order TSA to produce materials redacted
pursuant to both exemptions. See ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 620 n.2 (D.C. Cir. 2011) (“[T]he
government need not prevail on both exemptions, but under the statute may refuse disclosure if the withheld records
satisfy one Exemption.”). TSA also claims that more of its exemption 5 withholdings should have also been
exemption 3 withholdings. Sotoudeh Supp. Decl. ¶¶ 8–9 (“The redacted information contained in the last bullet on
bates page 000416 and in the last three bullets located on bates page 000417 . . . should have been designated as
Sensitive Security Information . . . .”). As explained above, the Court lacks jurisdiction to review the agency’s
designation of material as security sensitive information. See 49 U.S.C. § 46110(a). The Court will treat these
additional redactions as properly redacted under exemption 3. In addition, parts of the fourth and fifth withholdings
listed above, Bates Numbers 415–17, 418–20, have been subsequently disclosed by TSA. See Sotoudeh Supp.
Decl. ¶¶ 7, 11 (stating that TSA would disclose the first bullet redacted on page 416, the sole redaction on 418, and
the Letter of Assessment findings on 415). The Court will not Order TSA to produce any documents it has already
disclosed.
13
DHS Undersecretary for Management in furtherance of TSA’s request for authority to procure
the ATR security upgrade.” Soutodeh Decl. ¶ 38. The letter was prepared for the DHS Under
Secretary for Management and recommended that DHS authorize the implementation of ATR.
See Def.’s Statement ¶ 69 (not contested in Pl.’s Statement, ECF 14-2). Second, at Bates
Numbers 478–83, are four 2011 memoranda regarding ATR testing results and
recommendations. Soutodeh Decl. ¶ 39. These include a June 6 memorandum “prepared by the
Office of Security Operations (OSO) and provided to OST to convey concurrence with and
comment on OST’s recommendations regarding deferring some of the . . . ATR specification due
dates”; a June 7 memorandum, provided to OST from OSO which “discusses qualification
testing results and provides recommendations concerning those results”; a February 2011
memorandum provided to OSO from OST advancing “opinions about the testing results and
mak[ing] recommendations regarding the contemplated changes to ATR qualification testing”;
and a January memorandum, provided to OSO from OST discussing “qualification testing results
and provid[ing] recommendations concerning those results.” Id.
TSA made four sets of withholdings from these documents pursuant to exemption 5:
TABLE 2
BATES
NUMBER DESCRIPTION FROM VAUGHN INDEX PAGES WITHHELD
Discussion of analysis and thought processes of DHS
office operational testing and evaluation, and follow-
463–464 on recommendations for ATR program 2 pages partially withheld
Analysis of possible implementation of ATR,
including analysis of DHS’s operational testing and
466–467 evaluation of proposed ATR usage 2 pages partially withheld
Analysis of ATR’s compliance with specific security
performance objectives; conclusions and 7 pages partially withheld;
468–475 recommendations for future testing and evaluations 1 page withheld in full
Memoranda seeking concurrence with
recommendations, and making recommendations
478–483 pertaining to ATR 6 pages partially withheld.
14
The issue presented is whether TSA impermissibly withheld “factual” material from this
letter. Pl.’s Opp’n 18. The Court finds that TSA’s withholdings were acceptable.
The D.C. Circuit has explained that “[p]urely factual material usually cannot be withheld
under exemption 5 unless it reflects an exercise of discretion and judgment calls.” Ancient Coin
Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011) (internal quotations
and citations omitted). “Thus the legitimacy of withholding does not turn on whether the
material is purely factual in nature or whether it is already in the public domain, but rather on
whether the selection or organization of facts is part of an agency’s deliberative process.” Id.
For instance, in Montrose Chem. Corp. of California v. Train the Circuit held that factual
summaries compiled into documents used by the administrator in the resolution of a difficult,
complex question were within the protection of exemption 5, because “[t]o probe the summaries
of record evidence would be the same as probing the decision-making process itself.” 491 F.2d
63, 68 (D.C. Cir. 1974). Similarly, in Mapother v. Department of Justice, the Circuit held that
factual materials included in a report were immune from disclosure where that information “was
assembled through an exercise of judgment in extracting pertinent material from a vast number
of documents for the benefit of an official called upon to take discretionary action.” 3 F.3d 1533,
1539 (D.C. Cir. 1993); see also Ancient Coin Collectors Guild, 641 F.3d at 513–14.
In contrast, in Playboy Enterprises, Inc. v. Department of Justice, the Circuit found that
factual materials contained in a report were not protected because the report was “prepared only
to inform the Attorney General of facts which he in turn would make available to members of
Congress.” 677 F.2d 931, 936 (D.C. Cir. 1982).
Here, the parties dispute whether the withheld material is “factual.” Compare Pl.’s
Opp’n 18, with Table 2 (quoting the Vaughn Index), and Def.’s Opp’n 14 (“EPIC fails to identify
15
what material it considers to be factual.”). But, even assuming some or all of the contested
withholdings were factual, “the legitimacy of withholding does not turn on whether the material
is purely factual in nature . . . , but rather on whether the selection or organization of facts is part
of an agency’s deliberative process.” Ancient Coin Collectors Guild, 641 F.3d at 513.
Here, the Court finds that these materials are protected under exemption 5 because they
were part of the agency’s deliberative process. It is not contested that the purpose of these
documents was to promote deliberation as to the future of the ATR program. The Letter of
Assessment was written to assist in the deliberation of the DHS Undersecretary for Management
regarding the implementation of ATR, and the other memoranda were similarly focused on
furthering intra-agency deliberations. Soutodeh Decl. ¶¶ 38–39. The 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. See,
e.g., Def.’s Statement ¶¶ 69–72; Soutodeh Decl. ¶¶ 38–39; Vaughn Index 13–14. And EPIC has
offered no reason to contest the deliberative nature of these documents.
As to the specific nature of the factual materials withheld, EPIC argues that these
materials are like those found to have been wrongly withheld in Playboy Enterprises, rather than
those properly withheld in Montrose. See Pl.’s Reply 9. But EPIC provides no reasoning to
support this conclusion. Moreover, unlike Playboy Enterprises, the factual material here was not
assembled for an agency actor merely to pass along to outsiders, but rather for purely internal
deliberative purposes. See 677 F.2d at 636. The Court finds that the agency has provided
adequately specific descriptions of its withholdings to demonstrate that these materials must be
protected in order to safeguard the agency’s deliberative process. The TSA is entitled to
summary judgment on these exemption 5 claims.
16
C. Operational Test Plan for Operational Test and Evaluation
Finally, TSA also withheld parts of the Appendix to the Operational Test Plan for
Operational Testing and Evaluation for ATR, Bates Numbers 484–617; Soutodeh Decl. ¶ 40.
This document “describes the proposed testing methodology to be used in pilot testing of . . .
ATR.” Soutodeh Supp. Decl. ¶ 12. “The purpose of the Test and Evaluation (T&E) effort is to
provide credible, timely, and sufficient information to support the evaluation of the effectiveness
and suitability of the Advanced Imaging Technology . . . system with . . . ATR.” Id. The testing
proposal was submitted by TSA to DHS’s Office of Testing and Evaluation for review,
deliberation and ultimately for approval by DHS. Soutodeh Decl. ¶ 40. The field testing
proposed in this document was ultimately approved, but the testing itself was implemented in
order to assist with deliberations regarding “the ultimate question of whether to pursue the
technological upgrade or enhancement.” Soutodeh Supp. Decl. ¶ 12.
TSA made fourteen sets of exemption 5 withholdings from this document. See Table 3.
TABLE 3
BATES
NUMBER DESCRIPTION FROM VAUGHN INDEX PAGES WITHHELD
Description of proposed testing process for
upcoming operational testing; discussion of vendor
capability requirements; reference and table
revealing security screening requirement and
490 rationale 1 page partially withheld
Discussion of opinion about purpose and need for . . 1 page partially withheld; 1
493–494 . ATR. page withheld in full
Planned operational testing schedule and activity
plan revealing framework and though [sic] processes
on how to test security equipment; discussion of
495–500 additional testing goals 6 pages partially withheld
Discussion of overall testing methodology to be
deployed; discussion of planned testing of specific
threats; Data collection methods to be deployed
including security screening techniques; proposed
501 testing schedule 1 page partially withheld
Proposed testing features and criteria, testing data
503 collection methodology 1 page partially withheld
17
504–514 Planned testing evaluation methodology 11 pages partially withheld
Proposed testing objective/issue, testing criteria and
source of specific requirement to be tested; Provides
operational testing data collection methodology; data
515–536 analysis methodology 22 pages withheld in full
539 Planned testing data review designations 1 page partially withheld
Planned scoring criteria for operational testing
541 criteria 1 page partially withheld
548–550 Planned sensitive operational testing criteria 3 pages partially withheld
Screen shots of planned operational testing data 3 pages withheld in full; 5
551–558 collection forms pages partially withheld
Discussion of proposed authentication codes and
562 purpose 1 page partially withheld
Discussion of each specific performance requirement
planned to be tested; planned testing criterion or
measure, planned operational testing measure of
566–616 performance, and comments 51 pages partially withheld
617 Discussion of proposed testing articles 1 page withheld in full
EPIC alleges that TSA wrongly withheld purely factual material from these documents.
See Pl.’s Opp’n 18. Again, the Court disagrees.
The TSA’s Statement of Facts Not in Genuine Dispute, the TSA declaration, and the
Vaughn Index all describe these documents in sufficient specificity to demonstrate terms that
qualify for the privilege. See, e.g., Def.’s Statement ¶ 73; Soutodeh Decl. ¶ 40; Vaughn Index
17–19. Again EPIC offers no reason to dispute the deliberative nature of these documents. The
Court finds that these materials must be protected as deliberative. It follows that whether or not
some of the material withheld was “purely factual” is of no moment because this factual material
was critical to the agency’s deliberative process in determining whether to implement ATR.
Allowing the public to “probe” this factual information, therefore, “would be the same as
probing the decision-making process itself.” Montrose, 491 F.2d at 68. The Court will grant
TSA summary judgment on these claims.
18
D. EPIC’S Other Arguments for Disclosure All Fail
EPIC’s assertion that some of the withheld information reviewed above was post-
decisional, and thus was improperly withheld pursuant to exemption 5, is incorrect. Pl.’s Reply
9–10. EPIC points to two statements: first, TSA’s description of one document as containing
“what the staff decided to test for, how it decided to carry out these tests”; and second, TSA’s
description of another document containing “TSA’s decisions regarding what to test for reveals
which factors it thought (at an early stage) were important in the decision whether to use ATR.”
See id. (quoting Def.’s Reply 14, 16). EPIC argues that “[a]t some point this information was
pre-decisional, but it does not remain predecisional after the tests have been completed.” Pl.’s
Reply 9. This evinces a misunderstanding of the deliberative process privilege. As the Supreme
Court has explained:
The purpose of the privilege for predecisional deliberations is to insure that a
decisionmaker will receive the unimpeded advice of his associates. The theory is
that if advice is revealed, associates may be reluctant to be candid and frank. It
follows that documents shielded by executive privilege remain privileged even
after the decision to which they pertain may have been effected, since disclosure
at any time could inhibit the free flow of advice, including analysis, reports, and
expression of opinion within the agency.
Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 359–60 (1979); see also
Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 112–13 (D.D.C. 2005)
(“Contrary to plaintiff’s assertion that materials lose their exemption 5 protection once a final
decision is taken, it is the document’s role in the agency’s decision-making process that
controls.”). True, the agency has “the burden of establishing what deliberative process is
involved, and the role played by the documents in issue in the course of that process.” Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). Here, as explained
19
above, 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.
EPIC’s assertion that TSA failed to produce segregable portions of the withheld
documents also fails. See Pl.’s Opp’n 19–20. “Agencies are entitled to a presumption that they
complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). According to the Vaughn Index provided
by the agency, most of the contested withholdings under exemption 5 were partial redactions
from specific pages, rather than complete withholdings of entire documents. See Vaughn Index
13–14, 17–19. Moreover, the agency has declared in a sworn affidavit that it has released the
segregable portion of each of these records. Soutodeh Decl. ¶ 55. As EPIC has failed to offer
any argument in support of its allegation that might cast doubt on TSA’s sworn statement, the
Court finds that all reasonably segregable materials were disclosed.
VI. ATTORNEYS’ FEES AND COSTS
EPIC has moved for attorneys’ fees and costs. Pl.’s Opp’n 20–24. The Court will not
address that motion here. Pursuant to the local rules, the Court shall “enter an order directing the
parties to confer and to attempt to reach agreement on fee issues” and shall set a status
conference at which the Court will
(1) determine whether settlement of any and or all aspects of the fee matter has
been reached, (2) enter judgment for any fee on which agreement has been
reached, (3) make the determination [regarding pending appeals] required by
paragraph (b) of . . . [LCvR 54.2], and (4) set an appropriate schedule for
completion of the fee litigation.
LCvR 54.2.
20
VII. CONCLUSION
For the foregoing reasons, EPIC and TSA are both entitled to partial summary judgment.
An Order shall issue with this opinion.
Signed by Royce C. Lamberth, Chief Judge, on March 7, 2013.
21