Elkins v. Federal Aviation Administration

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DAVID J. ELKINS,

Plaintiff,

v. Civil Action No. 14-476 (JEB)

FEDERAL AVIATION

ADMINISTRATION,

Defendant.

MEMORANDUM OPINION

On July 19, 2013, pro se Plaintiff David Elkins spotted an aircraft overhead that appeared

to circle his residence near St. Petersburg, Florida, and then follow him for some time thereafter.

Concerned that he was the subject of government surveillance, he submitted a Freedom of

Information Act request to the Federal Aviation Administration seeking records relating to the

suspicious aircraft. The FAA, in response, conducted a search and released to him voice

transmissions that it had partially redacted under FOIA Exemption 7(E). After Elkins challenged

such response by filing this suit, the Court denied the FAA’s summary-judgment motion,

concluding that the agency had neither adequately justified its search nor sufficiently defended

its withholdings. The FAA has since supplemented its search, released one more record to

Elkins, and identified several others, which it has withheld in full. Having done so, it now

renews its Motion for Summary Judgment. Because Defendant has not yet fully explained

pieces of its search, and because it has justified its withholdings as to only one record, the Court

will grant the Motion in part and deny it in part.

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I. Background

As the Court noted in its previous Opinion, Elkins has some history with the FAA. See

Elkins v. Fed. Aviation Admin. (Elkins I), No. 14-476, 2014 WL 4243152, at *1 (D.D.C. Aug.

28, 2014). Since 2005, he has submitted several requests to the agency seeking records

pertaining to aircraft he has observed flying overhead. See Compl. at 2-6. His stated purpose in

seeking these records is to expose and document unlawful government surveillance, id. at 3, and

his FOIA requests have met with varying levels of success. See Elkins I, 2014 WL 4243152, at

*1 (collecting cases).

Elkins originally submitted the FOIA request in contention here on July 19, 2013. See

Mot., Exh. A. His request was prompted by his observation of an aircraft that circled over his

house near St. Petersburg and then proceeded to follow him as he traveled away from home. See

Compl. at 5. He asked the FAA to provide the following records:

The N number [the number by which aircraft are registered with

the FAA], [t]he law enforcement agency op[]erating the aircraft,

the inflight radio communications between Tampa ATC or Saint

Petersburg/Clearwater and this aircraft, pre filed flight plan

allowing it to fly in this area, all records of court authority

(warrant) showing cause to FAA to conduct surv[e]illance, all

records of Department of Justice or Pinallas County sheriff

participation, all records of who has tactical of this aircraft. All

records of [Department of Justice] agreement with FAA to

withhold a determination of release of these requested records, all

records of non-privile[]ge[d] communications between DOJ and

FAA Tracon Tampa, College Park FAA.

July 19, 2013, Request. Elkins amended this request a couple days later to add:

1. All records of agreement between the entity operating this

aircraft and the FAA allowing [it] to either not turn on it[]s

transponder or the FAA agreeing not to track the plane.

2. All records of radio contact between the commercial jet and

Tampa ATC warning the jet of aircraft in the vicinity (in-flight

radio communications)

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3. All records of agreement between “passurslive” [Passur is a

private flight-monitoring company] and the FAA to allow

interruption of live feeds (end taps) to their public web site if

any.

4. All records if any, presented to the FAA by this entity showing

that they have cause of action (warrant) to pursue this

surveillance

5. All records how long actually the plane was in flight

6. All records from w[h]ere it departed, and w[h]ere it landed . . .

7. ALL RECORDS OF WHAT ENTITY HAD TACTICAL

CONTROL OVER THIS AIRCRAFT.

Mot., Exh. B (July 23, 2013, Request).

In response, the FAA notified Plaintiff that it had searched for records “at Tampa Airport

Traffic Control Tower,” and that it was releasing to him a “compact disc containing voice

[]recordings pertaining to [his] request,” from which the “Aircraft Registration Number” had

been redacted. See Compl., Exh. 1 (November 5, 2013, Response). Dissatisfied with this

response, Elkins filed suit in this Court. Defendant then filed a Motion for Summary Judgment,

claiming that it had (1) conducted an adequate search and (2) properly withheld identifying

information from the voice recording pursuant to Exemption 7(E). See ECF No. 13.

The Court denied the Motion on both issues. First, it found that the FAA’s explanation of

the search left it with “distinct uncertainty as to whether the agency appreciated the whole of

Plaintiff’s FOIA request.” Elkins I, 2014 WL 4243152, at *4. Specifically, the FAA appeared to

understand “Plaintiff’s request as limited in scope to records likely to be housed at an airport

traffic-control tower.” Id. Yet some of the records Elkins requested – e.g., “DOJ agreement[s]

with FAA” – were “likely to be housed elsewhere.” Id. The Court, accordingly, advised the

FAA to “make clear in any future declaration that the Tampa Airport Traffic Control Tower is

the only location that might house records responsive to each one of Plaintiff’s enumerated

requests.” Id.

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Second, the Court concluded, the FAA had failed to adequately explain its withholdings.

On this front, the agency’s “briefing [was] replete with vague and conflicting references to

redacted material.” Id. at *5. For instance, the FAA at times noted that only the airplane’s “‘N’

number [had been] redacted,” while at other times it alluded to “broader redactions,” including

the plane’s “call sign.” Id. “Before renewing its Motion,” the Court advised, the agency should

“provide[] a full explanation of its withholdings for any records and redacted portions not made

available to [Plaintiff].” Id. at *6.

Heeding these admonitions, the FAA broadened its search, which in turn uncovered

several additional responsive records. It then contacted Plaintiff in a letter dated October 8,

2014, summarizing its findings and itemizing its responses to his request by category. See Mot.,

Exh. D. The agency explained that it was still withholding records that included the identifying

information of the law-enforcement agency operating the aircraft, records regarding who had

tactical control of the aircraft, and records detailing the plane’s flight path. Id. at 1-3. The FAA

did, however, release to Elkins its vendor agreement and current renewal with Passurs. Id. at 4-

17. In a follow-up letter, dated October 20, 2014, the agency advised Elkins that it was

withholding in full records relating to participation by DOJ or the Pinallas County Sheriff. See

Mot., Exh. E.

Having supplemented its search and reasserted its withholdings, the FAA now renews its

Motion for Summary Judgment.

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A genuine issue of material fact is one that would change the outcome of the litigation.

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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that

might affect the outcome of the suit under the governing law will properly preclude the entry of

summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to

construe the conflicting evidence in the light most favorable to the non-moving party. See

Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

FOIA cases typically and appropriately are decided on motions for summary judgment.

See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In FOIA cases,

the agency bears the ultimate burden of proof. See Dep’t of Justice v. Tax Analysts, 492 U.S.

136, 142 n.3 (1989). The Court may grant summary judgment based solely on information

provided in an agency’s affidavits or declarations when they describe “the documents and the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption

of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and

discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.

Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. Analysis

Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)

(citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the

functioning of a democratic society, needed to check against corruption and to hold the

governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,

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152 (1989) (citation omitted). The statute provides that “each agency, upon any request for

records which (i) reasonably describes such records and (ii) is made in accordance with

published rules . . . shall make the records promptly available to any person.” 5 U.S.C.

§ 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order

the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B);

Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).

“Unlike the review of other agency action that must be upheld if supported by substantial

evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to

sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters

Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in

mind that FOIA mandates a ‘strong presumption in favor of disclosure’ . . . .” Nat’l Ass’n of

Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502

U.S. 164, 173 (1991)).

The FAA argues that summary judgment is proper because it has now conducted an

adequate search for responsive records and any not released were properly withheld under

Exemption 7(E). The Court, unfortunately, cannot fully agree with either contention.

A. Adequacy of the Search

“An agency fulfills its obligations under FOIA if it can demonstrate beyond material

doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-

Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897

F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.

Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents

possibly responsive to the request, but rather whether the search for those documents was

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adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The adequacy

of an agency’s search for documents requested under FOIA “is judged by a standard of

reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To meet its

burden, the agency may submit affidavits or declarations that explain the scope and method of its

search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Absent

contrary evidence, such affidavits or declarations are sufficient to show that an agency complied

with FOIA. See id. On the other hand, if the record “leaves substantial doubt as to the

sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at

542.

As noted above, the FAA in earlier briefing appeared to construe Elkins’s request as

limited to records likely housed at an airport traffic-control tower, even though it “also itemized

records likely to be housed elsewhere.” Elkins I, 2014 WL 4243152, at *4. The Court,

accordingly, advised the agency “to submit new documentation to Elkins that demonstrates the

adequacy of its search for each requested record . . . .” Id. at *6 (emphasis added). The FAA

took this advice to heart.

To see if any additional responsive records existed, Carol Might, Special Operations

Liaison for the FAA, broadened the agency’s search. See Mot., Exh. C (Declaration of Carol

Might), ¶ 6. In her declaration, she explains the actions she took regarding each individual

category of records Elkins requested in both letters, an approach that greatly clarifies the

situation at hand. The Court begins by mentioning the requests that did not yield responsive

documents and then discusses those that did.

Might learned, for instance, from the agency that operated the plane that, per policy, there

was no pre-flight plan for the craft. Id., ¶ 7(D). As to Elkins’s request for authorizations to

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conduct surveillance, she explains that the National Airspace System is open, and aircraft like the

one in question do not need warrants to fly within it. Id., ¶¶ 7(E), 7(4). Were any mission

records to exist, she continues, they would be found in the Office of Security and Hazardous

Materials Safety or the AJR-2 at FAA Headquarters. Id. A search turned up no records in either

place. Id. Might also relates that it is FAA policy not to memorialize agreements with law-

enforcement agencies regarding release of records, and, accordingly, no such records exist in this

case. Id., ¶ 7(H). She further notes that there were no “non-privileged communications”

between DOJ and FAA Tracon or FAA Regional Office at College Park, Georgia. Id., ¶ 7(I).

Nor, for reasons that will be made clear below, were there any authorizations for the aircraft to

fly without its transponder on. Id., ¶ 7(1). And aside from the voice recordings already released

to Elkins, there were no other records of radio contact found at Tampa Air Traffic Control – the

only location such records would be located. Id., ¶¶ 7(C), 7(2). Finally, although the FAA

originally claimed to be redacting the craft’s N number from the audio recordings, as a law-

enforcement plane, it actually identified itself with a call sign. Id., ¶ 7(A). The FAA, as a result,

does not know the craft’s “N number.” Id.

On the other hand, some of Elkins’s requests did obtain results in the FAA’s broadened

search. Records of the participation of DOJ or the Pinallas County Sheriff, Might reveals, would

be found at Tampa Approach, AHE-320 or AJR-2. Id., ¶ 7(F). Although she located no such

records there, she did uncover a document that she thought could be construed as evidence of the

“participation” of a government agency. Id. Specifically, coordinating with the ATO System

Operations Services Data Management office to search the National Offload Program, Might

uncovered a flight track of the subject aircraft – a record the FAA has withheld at the request of

the law-enforcement agency operating the plane. Id., ¶ 7(5). As to what entity had tactical

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control of the aircraft, Might found an FAA Order for Law Enforcement Operations, which

contains “the identity” of the law-enforcement agency that operated the craft – a document the

FAA also withheld in full. Id., ¶ 7(G). Finally, with the help of Dean Torgensen, FOIA Group

Manager in the FAA’s ATO Litigation Support Group, Might was able to locate the FAA’s

agreement with Passur – which was released to Elkins. Id., ¶ 7(3).

While Might’s declaration is commendable in its attention to each category of requested

records, it proves wanting, as Plaintiff points out, as to three of them. Elkins disbelieves, for

instance, the representation that there were no communications between DOJ and Tampa

TRACON or between DOJ and the FAA located in College Park. See Opp. at 15. As to this

category of his request, Might states summarily that were no responsive records. See Might

Decl., ¶ 7(I). She does not, however, describe the place such a record would be stored if it did

exist, what she did to search that location, or any detail regarding how she came to conclude that

no responsive records exist. See Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.

1990) (“A reasonably detailed affidavit, setting forth the search terms and the type of search

performed, and averring that all files likely to contain responsive materials (if such records exist)

were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy

of the search and to allow the district court to determine if the search was adequate in order to

grant summary judgment.”). Similarly, as to records of the participation of DOJ or the Pinallas

County Sheriff, Might does note where they would be found – Tampa Approach, AHE-320 or

AJR-2 – but not what search she conducted there. See Might Decl., ¶ 7(F). Without any further

information on the search regarding these categories, the Court cannot conclude that it “was

reasonably calculated to uncover all relevant documents.” Valencia-Lucena, 180 F.3d at 325

(internal quotation marks omitted).

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Plaintiff, moreover, has provided evidence that in other FOIA cases, the agency has

released to him agreements between itself and law-enforcement agencies to withhold records.

See Opp. at 4-5. Yet Might again does not describe any action she took as to this category,

relating only that it is not the FAA’s policy to create such documents. If responsive records can

exist, however, then presumably there is a place Might could search to find them – a search she

must describe.

Finally, Plaintiff contends that the FAA does, in fact, “know” the N number of this

particular aircraft or at least could derive it from other identifying information. See id. at 10-11.

According to Elkins, the aircraft would have transmitted an eight-digit “Mode S code,” which,

through a proprietary algorithm, the FAA could translate into an N number. Id. This assertion

does not, however, undermine the adequacy of the FAA’s search. Even if the FAA did have the

resources to determine the plane’s N number, “FOIA imposes no duty on the agency to create

records.” Forsham v. Harris, 445 U.S. 169, 186 (1980) (emphasis added). And since the

agency’s search did not uncover records related to the N number, its obligation ended there.

In the end – although more detailed than those provided in the first round of briefing –

the FAA’s declarations still fail to explain what search it undertook to locate: (1) non-privileged

communications between DOJ and FAA Tracon or DOJ and FAA Regional Office at College

Park; (2) records of DOJ’s or the Pinallas County Sheriff’s participation; and (3) any agreement

with law enforcement regarding the withholding of records. The Court will, therefore, deny

summary judgment on the search issue.

B. The FAA’s Withholdings

Plaintiff also challenges the FAA’s withholdings. By way of review, the agency’s

aggregate search produced the following four records:

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• The FAA’s original and renewal agreement with Passur, both of which it released in

full;

• Radio communications between the airplane and control tower – which the FAA

released after redacting the identifying information or “call sign” of the craft;

• Flight-tracking records, which the FAA withheld in full; and

• An FAA Order for Law Enforcement Operations, which contains the identity of the

law-enforcement agency that operated the craft, also withheld in full.

In its communications with Elkins and in the declarations submitted with its Motion, the

FAA invoked two exemptions in withholding these records: 7(A) and 7(E). In briefing,

however, it appears to have abandoned any reliance on 7(A) and bases its withholdings on 7(E)

alone.

This exemption covers “records or information compiled for law enforcement purposes,

but only to the extent that the production of such law enforcement records or information . . .

would disclose techniques and procedures for law enforcement investigations or prosecutions, or

would disclose guidelines for law enforcement investigations or prosecutions if such disclosure

could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). In the

present case, it is the first requirement – the purpose for which the records were compiled – that

proves a stumbling block for the FAA on the majority of its withholdings.

In considering this requirement, the D.C. Circuit recently made clear that it is not the

nature of the agency that controls, but the character of the records withheld. In Pub. Employees

for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740

F.3d 195 (D.C. Cir. 2014), the court stated, “Under the text of Exemption 7, the withheld record

must have been compiled for law enforcement purposes; the withholding agency need not have

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statutory law enforcement functions.” Id. at 203-04 (citing 5 U.S.C. § 552(b)(7)) (emphasis in

original). The agency’s law-enforcement capacity, however, is not immaterial. “If the agency’s

principal function is law enforcement,” the Court is “‘more deferential’ to the agency’s claimed

purpose for the particular records.” Id. at 203 (quoting Tax Analysis v. IRS, 294 F.3d 71, 77

(D.C. Cir. 2002)). “If,” on the other hand, “the agency has mixed law enforcement and

administrative functions, [the Court] will scrutinize with some skepticism the particular purpose

claimed.” Id. (quotation marks omitted). Because the FAA’s principal function is not law

enforcement, therefore, the Court will kick the tires of its claimed exemptions with a bit more

force.

The FAA maintains that all three of its withholdings – the redacted call sign in the voice

recordings, the flight-tracking records, and the FAA Order – were compiled for law-enforcement

purposes. Its briefing on the issue, however, is laconic to say the least. As to the first, for

instance, the agency does not clearly single out the voice recordings in discussing its purposes

for creating the disputed records. The closest it comes is to note that “records pertaining to who

had tactical control of the aircraft” were “filed for a law enforcement purpose.” Mot. at 7. Even

assuming this blanket description covers the call sign redacted from the voice recordings, this

“explanation” is nothing more than a restatement of the standards governing the withholding of

the information. It provides no information as to what law-enforcement purpose the voice

recordings were created for, which is the key question in the first requirement of Exemption 7.

And, as Plaintiff points out, identifying information such as call signs is transmitted to the FAA

as a matter of course when flying in regulated airspace. These types of records are “produced . .

. twenty four hours a day, seven days a week . . . for regulatory purposes.” Opp. at 5. The voice

communications, moreover, are apparently broadcast on open airwaves by all airplane operators.

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The fact that this craft happened to be controlled by a law-enforcement agency does not

somehow transform the FAA’s purpose in recording its voice transmissions. See Benavides v.

Bureau of Prisons, 774 F. Supp. 2d 141, 146 (D.D.C. 2011) (records of inmate telephone calls

not compiled for law-enforcement purposes by Bureau of Prisons where they were routinely

collected and agency’s only justification for withholding them was its overall “mission” of law

enforcement).

Similarly, as to the flight-tracking records, the FAA relates summarily that, although “the

flight was tracked because it had the transponder on throughout the flight, the tracking records

are being withheld as it was [sic] compiled for a law enforcement purpose.” Mot. at 7. Again,

the aircraft was tracked because it was an aircraft. And the FAA’s purpose in creating such

records appears to be general to all planes within its airspace (or at least Defendant has given the

Court no reason to believe otherwise).

Contrast these records with those that the D.C. Circuit found properly withheld in PEER.

The plaintiff there sought portions of action plans that “contain guidelines outlining the steps that

law enforcement and emergency personnel should take in response to a failure of [certain]

dams.” The D.C. Circuit concluded that they “plainly were created” for law-enforcement

purposes:

[T]hey describe the security precautions that law enforcement

personnel should implement around the dams during emergency

conditions. . . . [I]t is also apparent that the inundation maps serve

security purposes – namely, to assist law enforcement personnel in

maintaining order and security during emergency conditions, and

to help prevent attacks on dams from occurring in the first place. . .

. In this context, preventing dam attacks and maintaining order and

ensuring dam security during dam emergencies qualify as valid

law enforcement purposes under the statute. . . . Because the

emergency action plans and the inundation maps were created in

order to help achieve those purposes, among others, they were

compiled for law enforcement purposes.

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Id. at 204 (emphasis added). Unlike the material withheld in PEER, these flight records contain

no information intended to assist law-enforcement personnel in maintaining “order and security.”

There is no indication, furthermore, that they were created to help achieve any law-enforcement

purpose.

Of course, the term “compiled for law enforcement purposes” does not limit Exemption

7 to records that were “originally compiled” or created for that reason. John Doe Agency v. John

Doe Corp., 493 U.S. 146, 154 (1989). An agency can also establish that such records were later

gathered or used for “law enforcement purposes at some time before the agency invokes the

exemption,” PEER, 740 F.3d at 203, even if the information was “generated on an earlier

occasion and for a different purpose.” John Doe, 493 U.S. at 154. In this case, however, the

FAA has provided no basis upon which to conclude that these specific records – i.e., the voice

recordings and flight-tracking records – although originally created for non-law-enforcement

purposes, were ever subsequently compiled to enforce the law.

What remains then is the FAA Order for Law Enforcement Operations, which, the

agency notes, contains “the identity” of the law-enforcement agency that operated the craft. In

briefing, the FAA’s justification for withholding this record is as summary as its explanation of

the others. See Mot. at 7 (withheld because “the record was filed for a law enforcement

purpose”). Were this all the FAA had provided, the Order would be subject to disclosure just

like the flight data and voice identification. The FAA, however, supplemented its briefing with

sealed declarations that – although the Court cannot discuss the details of the justifications they

contain – reassure it that the Order does, in fact, satisfy the requirements of 7(E). The Order was

indisputably created for law-enforcement purposes; its production would disclose techniques and

procedures for law-enforcement activities; and disclosure would risk circumvention of the law.

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See 5 U.S.C. § 552(b)(7)(E). The Court is satisfied, moreover, that no releasable material could

be segregated from the Order.

The Court concludes, accordingly, that as to the voice recordings and the flight-tracking

information, the FAA has not met its burden of establishing that these records were compiled for

law-enforcement purposes. It has, however, properly justified its withholding of the FAA Order

identifying the agency that had tactical control over the plane.

IV. Conclusion

For the foregoing reasons, the Court will grant the FAA’s Motion for Summary Judgment

in part and deny it in part. An Order accompanies this Memorandum Opinion.

/s/ James E. Boasberg

JAMES E. BOASBERG

United States District Judge

Date: April 16, 2015

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