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UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA
SAI, Plaintiff v.
Case 1:14-cv-00403-RDM
TRANSPORTATION SECURITY ADMINISTRATION, Defendant
DECLARATION OF REGINA M C COY I, Regina McCoy, declare as follows pursuant to 28 U.S.C. § 1746: 1.
I am the Freedom of Information Act (“FOIA”) Officer for the Transportation
Security Administration (“TSA”), a component agency of the U.S. Department of Homeland Security (“DHS”). I have held this position since July 2015. 2.
As the FOIA Officer, I am responsible for processing all requests made to TSA
under FOIA, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. §552a; for initiating searches for records responsive to such requests; and for supervising the determination of what records or portions thereof should be released. 3.
I am familiar with TSA’s obligations under FOIA and the Privacy Act, including
the various exemptions thereunder. I am also familiar with TSA’s records systems. 4.
The statements made in this declaration are based on my personal knowledge,
information made available to me in the performance of my official duties, and conclusions and determinations reached and made in accordance therewith.
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5.
The purpose of this declaration is to explain the chronology and correspondence
related to the FOIA and Privacy Act requests made by Plaintiff that are at issue in this case; to describe the searches conducted to identify responsive records to each of Plaintiff’s requests; to explain TSA’s procedures for processing responsive records; and to identify the bases for TSA’s decisions to withhold certain information requested by Plaintiff pursuant to 5 U.S.C. 552(b)(3), (4), (5), and (6), and 49 U.S.C. § 114(r). 1 6.
I have personal knowledge of the facts concerning the following six requests for
records filed by Plaintiff under FOIA and the Privacy Act and assigned alpha numeric identifiers by TSA: a.
BOS Request: Request 2013-TSFO-00485 was received via email by the
TSA FOIA Branch on February 5, 2013. 2 This request was administratively closed on February 7, 2013, but re-opened on February 20, 2013 as TSA13-0414. This request was later re-labeled as 2013-TSPA-00368. 3 b.
CCTV Request: Request 2013-TSFO-01096 was received via email by
the TSA FOIA Branch on February 22, 2013. 4 c.
SFO Request: Request 2013-TSPA-00339 was received via email by the
TSA FOIA Branch on March 15, 2013. 5
1
Some of the information in this declaration was previously provided to this Court in the Declaration of Amanda Deplitch, dated June 25, 2014, and the exhibits attached thereto. Dkt. 271. I repeat that information here and re-attach some of the exhibits for the sake of completeness. 2
This request was originally labeled as TSA13-0375.
3
This request was also referred to as 2013-TSFO-01088.
4
This request was originally labeled as TSA13-0424.
5
This request was originally labeled as TSA13-0488 and later 2013-TSFO-01179. 2
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d.
Policies Request: Request 2013-TSFO-00239 was received via email by
the TSA FOIA Branch on March 18, 2013. This request was later re-labeled as 2015-TSLI00004. 6 e.
BOS Re-Request: Request 2016-TSPA-00009 was received via email by
the TSA FOIA Branch on November 23, 2013. f.
SFO Re-Request: Request 2016-TSPA-00010 was received via email by
the TSA FOIA Branch on November 23, 2013. 7.
In this declaration, I explain the information released and withheld as exempt for
the above requests. Because of the relative complexity and quantity of the records responsive to the BOS Request (2013-TSPA-00368), the SFO Request (2013-TSPA-00339), and the Policies Request (2015-TSLI-00004), I have also attached to this declaration Vaughn indices for those three requests. These indices provide further details regarding the records released and material withheld as exempt for those three requests. BOS Request (2013-TSPA-00368) Chronology and Correspondence 8.
Plaintiff made a request for all surveillance video, reports, police reports, notes,
correspondence, communications, and other documents related to an incident involving him at Boston’s Logan International Airport (“BOS”) on January 21, 2013, that was received by the FOIA Branch on February 5, 2013. See Exhibit A. Plaintiff also requested the copies of his documents made at the scene; any and all history of complaints against the TSA employees involved in the incident; any and all history of similar complaints against TSA, airport police, or airport agents; any and all records of his x-ray baggage screening; any and all records related to 6
This request was originally labeled as TSA13-0494. 3
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him held by any relevant parties; and all documents and communications related to responding to the FOIA request, whether internal or external. Id. 9.
TSA acknowledged this request on February 5, 2013, and informed Plaintiff that
he was required to submit a signed perjury statement, as required by the applicable DHS Privacy Act regulations, 6 C.F.R. § 5.21(a), (d), and respond to the Not Reasonably Described (“NRD”) letter 7. TSA administratively closed the request on February 7, 2013. See Compl. ¶¶ 46-47; Deplitch Declaration, Dkt. 27-1, ¶ 5(a). 10.
On February 15, 2013, TSA emailed Plaintiff in response to a voicemail he had
left regarding his request. TSA confirmed that it had received Plaintiff’s perjury statement and asked Plaintiff to provide more details concerning his contacts with TSA in order to narrow his general request for all information on him held by TSA. Plaintiff advised TSA by email that, as of February 15, 2013, he had never applied for employment with TSA, borne a government credential, or received a citation or fine from TSA. At this time, Plaintiff expanded his request to include all records related to two prior screening experiences he had with TSA at New York’s LaGuardia Airport (“LGA”) on June 27, 2012, and at Chicago’s O’Hare International Airport (“ORD”) on December 25, 2010. See Exhibit B. 11.
On February 20, 2015, TSA informed Plaintiff via email that it had received his
signed perjury statement and response to the NRD letter and therefore had re-opened the request under a new case number. See Exhibit C.
7
The FOIA Branch sends NRD letters in response to requests, like Plaintiff’s, that are overly broad or otherwise do not reasonably describe the records sought. The NRD letter asks the requester to describe the records with as much information as possible to enable the FOIA Branch to locate them, if they exist, with a reasonable amount of effort. 4
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Search for Responsive Records 12.
TSA was not able to search for all documents responsive to Plaintiff’s broad
request for “any and all records related to [Plaintiff] held by any relevant parties.” TSA does not maintain a central index of records sorted by individuals to whom they relate, and with over 450 airports nationwide and 39 TSA program offices, conducting such a broad search would impose an undue hardship. Further, DHS’s FOIA and Privacy Act regulations require requesters to “describe the records [sought] in enough detail to enable Department personnel to locate [the records] with a reasonable amount of effort.” 6 C.F.R. §§ 5.3(b); 5.21(b). This regulation places an affirmative duty on requesters to describe the documents sought with sufficient detail to ensure the appropriate offices and employees can be tasked and any responsive documents can be located with a reasonable amount of effort. Plaintiff’s broad request did not comply with that requirement. 13.
However, based on the particular subject matters described in correspondence
with Plaintiff related to this request—namely, incidents at BOS, LGA, and ORD, and a specific request for police reports—TSA’s FOIA Branch tasked the offices it deemed likely to have responsive records. Specifically, the TSA field offices at BOS, LGA, and ORD airports were tasked with performing a reasonable search for responsive records. 14.
TSA’s airport field offices, including BOS, ORD, and LGA, are part of the Field
Operations Division within TSA’s Office of Security Operations (“OSO”) and are generally responsible for the deployment and execution of security screening services to ensure effective airport security operations. Not all airports—much less all checkpoints—where TSA operates are the same. As a result, the extent of records related to specific passenger screenings at various airports may differ.
5
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15.
BOS searched for responsive records including closed circuit television (CCTV),
electronic records such as emails using Plaintiff’s name as a search term, and for records held by the Customer Service Manager as well as the Screening and Behavior Detection Officer (BDO) departments. The search yielded records of incident statements from TSA employees, responsive emails, one letter from TSA New England Field Counsel to Plaintiff, and one CCTV video of the incident, all of which were provided to the FOIA Branch for processing. 16.
LGA searched for responsive records including using Plaintiff’s name and the
date of the LGA incident in the search engine of the database that contains comment cards maintained by the Customer Support & Quality Improvement Manager and the Stakeholder Manager, as well as letter, email, and phone records. LGA did not locate any responsive documents. 17.
ORD searched for responsive records including CCTV and electronically stored
records held by the Coordination Center as well as the Screening and Inspections departments. ORD determined that any CCTV of the incident was no longer available as the incident had occurred over two years prior to the date of the FOIA tasking. The search yielded a single entry in a database used to track checkpoint incidents regarding the encounter described in Plaintiff’s request, which was provided to the FOIA Branch for processing. 18.
ORD also recommended tasking the Transportation Security Operations Center
(“TSOC”), which is part of the Office of Law Enforcement/Federal Air Marshal Service (“OLE/FAMS”), which the FOIA Branch did. 19.
OLE/FAMS manages TSA’s law enforcement programs including the deployment
of Federal Air Marshals on U.S. aircraft world-wide; the protection, response, detection, and assessment activities in airports and other transportation systems; the maintenance of TSA’s state
6
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of preparedness and incident management coordination; training and oversight of armed pilots; and coordination of TSA’s explosive detection canine teams. The TSOC is TSA’s primary operational hub that houses a number of components of TSA’s operations, as well as elements of other government agencies including the Federal Aviation Administration and Department of Defense. 20.
OLE/FAMS searched its Boston Logan International Airport office for responsive
records, including those maintained by the Special Agent in Charge, and the TSOC, including records maintained by the TSOC Supervisory & Program Analyst. The search yielded records of incident reports, which were provided to the FOIA Branch for processing. OLE/FAMS was not tasked with searching for ORD or LGA records because Plaintiff’s request did not indicate that law enforcement was involved in either of the incidents that occurred at those airports. 21.
After the Office of Chief Counsel’s (“OCC”) initial review of the responsive
records, it was determined that a limited re-tasking was appropriate and, to that end, the FOIA Branch additionally tasked the TSA Contact Center (“TCC”) with searching for responsive records and re-tasked BOS. BOS searched for additional responsive documents in response to the re-tasking, including an email search, and did not find any additional responsive records. 22.
TCC is part of the Customer Service Branch of TSA’s Office of Civil Rights and
Liberties, Ombudsman & Traveler Engagement Division. The TCC is responsible for fielding and providing timely responses to the traveling public via telephone and email to answer questions, provide guidance, and facilitate problem resolution. 23.
TCC electronically searched its centralized database for records containing
Plaintiff’s name, phone number, and email address. TCC also searched for the date and flight number of Plaintiff’s scheduled travel on the day of the BOS incident, for complaints related to
7
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the TSA employees involved in the BOS incident, and for complaints referencing the BOS airport agents or police. The search yielded responsive records of similar complaints made by other passengers against TSA
and TCC records related to inbound communications from
Plaintiff, which were provided to the FOIA Branch for processing. 24.
In light of the foregoing, FOIA Branch believes that all files likely to contain
responsive material were searched in response to Plaintiff’s BOS Request. The full collection of records gathered was reviewed to determine whether any exemptions were applicable and processed accordingly. Release of Responsive Records 25.
By letter dated August 8, 2014, TSA provided an interim response to the BOS
Request, releasing seven pages of responsive records. See Exhibit D. TSA informed Plaintiff that it was withholding portions of some of the pages pursuant to Exemptions (b)(3), (b)(6), and/or (b)(7). By the same letter, TSA further informed Plaintiff that information pertaining to his request for police reports relating to the BOS incident would be maintained by the Massachusetts State Police and that his request should be directed to them, and that there were no responsive records related to images of his x-ray baggage screening. TSA also informed Plaintiff that the portion of the request for “any and all records related to me held by any relevant parties” was overly broad, and TSA requested a reasonable description of the records he was seeking in accordance with 6 C.F.R. § 5.3(b). 26.
Plaintiff responded to TSA’s letter via email on the same day, August 8, 2014. In
the email, he requested confirmation that TSA did not have relevant police reports, noted that his complaint stated that his bags were x-rayed, stated that certain pages of the release were illegible, asked TSA to justify “each individual redaction under 114(r),” and requested TSA provide to the
8
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office of Congresswoman Nancy Pelosi an altered version of two pages of the released material. The email did not provide a reasonable description of the records he was seeking with regard to his request for “any and all records related to me held by any relevant parties.” 8 See Exhibit E. 27.
By letter dated October 3, 2014, TSA released an additional 229 pages to Plaintiff
as well as video, which was released via United States Postal Service. See Exhibit F. TSA informed Plaintiff that portions of some of the 229 pages were being withheld pursuant to Exemptions (b)(3), (b)(5), (b)(6) and/or (b)(7)(C), while the video was being released in full. TSA informed Plaintiff that the release constituted the final release for the BOS Request. 28.
By email dated October 21, 2014, Plaintiff informed TSA’s FOIA Branch that he
had received the video for the BOS Request and that he was reviewing it, but that he “believe[s] there is more video of the incident.” Plaintiff asked TSA’s FOIA Branch to provide him with “the remaining video” or “a sworn affidavit stating that there was never any other video and explaining why” or “a sworn affidavit stating that there was video but you failed to preserve it and explaining why.” See Exhibit G. Because the FOIA Branch deemed the request to be closed and because it was already the subject of the instant litigation, the FOIA Branch did not respond to Plaintiff’s email. Exemptions 29.
The following paragraphs describe the records responsive to the BOS Request
that were withheld by TSA pursuant to FOIA’s exemptions at 5 U.S.C. § 552(b). These records are described in greater detail in the Vaughn Index for the BOS Request (2013-TSPA-00368),
8
Plaintiff sent TSA’s FOIA Branch multiple emails on August 8, 2014, related to the interim releases that he received that day. Exhibit E is the email that deals most substantively with the BOS Request. 9
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attached hereto as Exhibit H. The Vaughn Index contains a complete and accurate description of the records’ contents. 30.
In addition to the exemptions explained below, portions of Bates pages 008 and
009 were withheld and marked as non-responsive because they contained database entries that were unrelated to the request. 31.
Additionally, on Bates pages 001-007 a “(k)(2)” redaction box appears in the
upper right hand corner. This box was placed on these pages to denote that these pages would be exempt from release in full under the Privacy Act, pursuant to 5 U.S.C. § 552a(k)(2), which exempts from disclosure “investigatory material compiled for law enforcement purposes[.]” To allow for maximum disclosure, the records were processed under FOIA’s exemption provisions and, as result, these pages were released with only some portions withheld, as described below. Exemption 3 32.
Exemption 3 of FOIA, 5 U.S.C. § 552(b)(3), exempts from disclosure information
“specifically exempted from disclosure by statute . . . if that statute-- (A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld[.]” 33.
The statutes and regulations governing the designation, handling, and control of
Sensitive Security Information (“SSI”) place mandatory and non-discretionary restrictions on its public dissemination. Pursuant to 49 U.S.C. § 114(r)(1), SSI is explicitly exempt from disclosure pursuant to FOIA if TSA determines that its disclosure would “(A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; or (C) be detrimental to the security of transportation.” The regulations at
10
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49 C.F.R. part 1520, are promulgated pursuant to 49 U.S.C. § 114(r), and also impose a mandatory obligation for TSA to protect SSI from public disclosure. Specifically, under 49 C.F.R. § 1520.9, a person entrusted with SSI may not “[d]isclose, or otherwise provide access to” SSI to anyone who is not authorized to receive SSI. The list of “covered persons” authorized to receive SSI is set forth in 49 C.F.R. § 1520.7, and is limited to those with a direct role in transportation security or those assisting such individuals. Furthermore, 49 C.F.R. § 1520.15(a) specifically prohibits the disclosure of SSI pursuant to FOIA by stating that “[e]xcept as otherwise provided in this section and notwithstanding the Freedom of Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a), and other laws, records containing SSI are not available for public inspection or copying, nor does TSA or the Coast Guard release such records to persons without a need to know.” 9 34.
TSA’s SSI Program Office is responsible for all aspects of the SSI Program,
including policy, analysis, SSI determinations, and regulatory execution. The SSI Program Office serves as the primary point of contact for the DHS Office of Security, other DHS component agencies, stakeholders, and TSA as a whole on issues involving SSI in accordance with 49 C.F.R. part 1520. 35.
When TSA’s FOIA Branch receives a request for records that may contain SSI,
the FOIA Branch submits those records to the SSI Program Office for review in order to determine whether the records contain SSI and, if so, what specific portions constitute SSI. Under 49 C.F.R. § 1520.15(b), TSA may release records that contain both SSI and information
9
While 49 C.F.R. § 1520.15(e) allows for a conditional disclosure of specific records or information, such a release essentially requires a finding that the information is no longer SSI (e.g., that its release “would not be detrimental to transportation security”), and such a conditional release “is not a public release of information under the Freedom of Information Act,” 49 C.F.R. § 1520.15(g). 11
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that is not SSI provided that the SSI in that record has been redacted and the record is not otherwise exempt from disclosure under FOIA. 36.
The responsive records for the BOS Request were submitted to TSA’s SSI
Program Office for review. Following that review and final determinations regarding what information in the records constituted SSI, the SSI Program Office provided the FOIA Branch with copies of the records in which SSI was marked for redaction. The information marked for redaction by the SSI Program Office appears on the following Bates pages: 001, 005-006, 011013, and 149, as described more fully in the accompanying Vaughn index. Because the SSI Program Office is responsible for identifying SSI, and SSI must be withheld from FOIA production under 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.15(a), (b), TSA redacted all SSI pursuant to Exemption 3, and designated those redactions with the notations “49 U.S.C. § 114(r)” and/or “(b)(3).” The detailed bases for the SSI withholdings on these pages are set forth in the Declaration of Douglas E. Blair, Chief of TSA’s SSI Program. Exemption 5 37.
Under Exemption 5, FOIA’s disclosure requirements do not apply to “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). The exemption has been interpreted to include records covered by the deliberative process privilege, among other categories. 38.
The deliberative process privilege protects three primary concerns: (1) to
encourage open and frank discussion of policy matters between subordinates and supervisors; (2) to protect against the premature disclosures of proposed policies before they become final; and
12
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(3) to protect against public confusion that might result from the disclosure of reasons and rationales that were not, in fact the ultimate grounds for the agency’s action. 39.
In applying the deliberative process privilege to the records that were deemed
responsive to the BOS Request, a determination was made that portions of the records provided by TSA’s TCC (specifically, the information designated with the notation “(b)(5)” on Bates pages 152 and 155) were both pre-decisional and deliberative. These portions of the records were pre-decisional because they were generated before the agency had reached a decision regarding the outcome of the complaints in the record. These portions of the records were deliberative because they reflect the open consultative process between program offices to determine how to respond to complaints alleging a disability-related civil rights violation. As such, these portions of Bates pages 152 and 155 were deemed to be deliberative process material that is protected from disclosure under Exemption 5 and therefore were properly withheld. Exemption 6 40.
Under Exemption 6 of FOIA, agencies are permitted to withhold “personnel and
medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). This protection is afforded to information that would infringe on the personal privacy of individuals about whom it pertains. Moreover, the term “similar files” has been broadly interpreted to include any record that contains the type of information that might be found in a personnel or medical file, and thus all information that applies to a particular individual meets the threshold requirement for Exemption 6 protection. 41.
Once that threshold requirement has been met, the focus of the inquiry as to
whether to redact the information in question turns to whether disclosure of that information would constitute a clearly unwarranted invasion of personal privacy. That assessment requires a
13
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balancing of the privacy interest that would be compromised by disclosure against the public interest in the requested information. 42.
Exemption 6 has been broadly interpreted to protect personal information, to
include a person’s name, address, and phone number, regardless of whether that person is a federal employee or a third party who interacts with a federal employee. Individuals are deemed to have a protectable privacy interest in that type of information because its disclosure could expose them to unnecessary unofficial questioning, harassment, and stigmatization. The concern about such harassment is reasonable, as the personal identifying information in these records would necessarily identify the individual as working at a particular location, having played a particular role in an incident, or complaining about a particular incident. The need to preserve personally identifying information from unnecessary disclosure is amplified by the fact that the internet allows a single disclosure to be disseminated widely. This risk of far-reaching disclosure is real and substantial in this case, as demonstrated by the fact that Plaintiff has publicized responses to his FOIA requests on his website. See https://s.ai/foia/. 43.
Balanced against this privacy interest is the potential benefit of disclosing an
individual employee’s or passenger’s personal information to Plaintiff and the public. Under the circumstances of this request, the potential benefit of disclosure is negligible because the individuals’ information does not contribute to Plaintiff’s or the public’s understanding of TSA’s operations. 44.
In applying Exemption 6 to the records that were deemed responsive to the BOS
Request, a determination was made that portions of the records on the following Bates pages (designated therein with the notation “(b)(6)”) should be withheld because they contained employees’ and passengers’ personal information (including contact information) that would not
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advance an understanding of agency operations: 001-002 from OLE; 012, 014, 017, 020-021, 023 from BOS; and 030-061, 066, 095-110, 112-113, 115-118, 120-124, 128, 130, 142-152, 155156, and 173-188 from TCC. Exemption 7(C) 45.
Under 5 U.S.C. § 552(b)(7)(C), FOIA’s disclosure provisions do not apply to
“records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 46.
TSA’s security checkpoint activities are not conducted for generalized law
enforcement objectives; however, airport security screening has resulted in the discovery of items that must be referred to law enforcement since it first began in the late 1960s, well before TSA’s existence. Therefore records regarding the discovery of such items would be made and preserved for subsequent use by law enforcement personnel and entities. Further, the consideration that the records or information be “compiled for law enforcement purposes,” has been broadly understood to include both civil and criminal enforcement actions. In that respect, TSA has extensive statutory and regulatory enforcement authority, in both the civil and criminal spheres, regarding incidents arising at its security checkpoints. As such, records memorializing an incident that might give rise to a civil or criminal enforcement action—even if no prohibited item is found—fall within the meaning of a record “compiled for law enforcement purposes.” 47.
Here, the TSA FOIA Branch determined that the records generated as a result of
the January 21, 2013, BOS incident were created as a result of TSA policy to document unusual events at the checkpoint, as those incidents might ultimately result in the institution of a criminal
15
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or civil enforcement proceeding. As such, some of the records responsive to this request were “compiled for law enforcement purposes.” 48.
Because these records met the threshold requirement for the application of
Exemption 7(C), TSA’s FOIA Branch redacted the name of the law enforcement officer that appeared therein, on the basis that the disclosure of this individual’s identifying information “could reasonably be expected to constitute an unwarranted invasion” of his privacy. TSA’s FOIA Branch reached that conclusion for the same reasons set forth above in connection with Exemption 6: the disclosure of personally identifying information carries an attendant concern regarding the possibility that it will be used to harass or stigmatize that individual, or expose them to unwarranted unofficial questioning regarding this incident. See ¶¶ 40-44. Against this legitimate privacy interest is the lower threshold in Exemption 7(C) for withholding such information, as it need only be “reasonably expected to constitute an unwarranted invasion” of an individual’s privacy (in contrast to “the clearly unwarranted” invasion protected by Exemption 6). 49.
Here, because the disclosure of the officer’s information was deemed to be
justifiable under Exemption 6, the second criteria for withholding the officer’s information pursuant to Exemption 7(C) was necessarily met as well. Nevertheless, TSA’s FOIA Office made a separate determination that the disclosure of the officer’s identifying information could reasonably be expected to expose that particular officer to unwarranted contact regarding this incident, and therefore to constitute an unwarranted invasion of his personal privacy. For these reasons, TSA’s FOIA Office redacted the officer’s identifying information from portions of the responsive records pursuant to Exemption 7(C) as well as Exemption 6 (designated therein with
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the notation “(b)(7)(C)” as well as “(b)(6)”) on the following Bates pages: 001-002 from OLE; and 012, 014, 017, 020-021, and 023 from BOS. CCTV Request (2013-TSFO-01096) Chronology and Correspondence 50.
By email dated February 22, 2013, Plaintiff requested “any contract/agreement
with other agencies regarding surveillance, or maintenance of surveillance footage, at Logan Airport.” See Exhibit I. Plaintiff agreed to submit this as a new request rather than amend his BOS Request. See id. Search for Responsive Records 51.
Based on the information provided in the request, TSA identified and tasked the
Office of Acquisitions with conducting a reasonable search for responsive records. 52.
The Office of Acquisitions (“OA”) maintains and manages TSA’s procurement
activities. OA is responsible for contracting for goods and services, including such activity as procurement planning, pre-solicitation, solicitation, negotiation, evaluation, award, and contract administration. OA searched its Mission Essentials Division, which is responsible for supporting various offices within TSA including those at the nation’s over 450 airports by procuring supplies and services.
OA’s search for responsive records of any contract or agreement
regarding surveillance at BOS did not locate responsive records. 53.
Thereafter, TSA’s FOIA Branch determined that a limited re-tasking was
appropriate and additionally tasked BOS with searching for responsive records. 54.
BOS searched for responsive records by tasking a program analyst who handled
CCTV matters and liaised with the Massachusetts Port Authority (Massport) regarding CCTV.
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As a result of the search, BOS located 16 pages of records related to the negotiated agreement between TSA and Massport, which were provided to the FOIA Branch for processing. 55.
In light of the foregoing, FOIA Branch believes that all files likely to contain
responsive material were searched in response to Plaintiff’s CCTV Request. The full collection of records gathered was reviewed to determine whether any exemptions were applicable and processed accordingly. Release of Responsive Records 56.
By letter dated August 8, 2014, TSA provided a response to the CCTV Request,
releasing 16 pages of responsive records in full. See Exhibit J. These 16 pages consisted of a Memorandum of Agreement between TSA and the Massachusetts Port Authority Regarding Access to and usage of Consolidated Camera Surveillance System at Logan International Airport (Bates pages 001-004), records of a modification to the Agreement (Bates page 005-011), and appendices to the Agreement (Bates 012-016). 57.
As a result of administrative error, TSA’s FOIA Branch also provided Plaintiff
with two non-responsive pages that pertained to the tasking and search for the CCTV Request itself (Bates pages 017-018). Thus, the total number of pages released in full was in fact 18, not 16. 58.
Plaintiff responded to TSA via email on August 8, 2014, requesting additional
“high quality copies” of pages 9 and 10 (Bates pages 009 and 010); “*digital* copies, not scans;” and confirmation that “there is no other contract between Massport . . . and TSA . . . having to do with video surveillance . . . and that the documents you provided reflect the latest versions of
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such contract(s).” See Exhibit K. 10 Because the FOIA Branch deemed the request to be closed and because the request was already the subject of the instant litigation, the FOIA Branch did not respond to Plaintiff’s email. SFO Request (2013-TSPA-00339) Chronology and Correspondence 59.
By email dated March 15, 2013, Plaintiff made a request for all surveillance
video, reports, notes, correspondence, communications, and other documents related to an incident involving him that occurred at San Francisco International Airport (“SFO”) on March 1, 2013. See Exhibit L. Plaintiff also requested any and all history of complaints against six TSA and Covenant Aviation Security (“CAS”) 11 employees allegedly involved in the incident; any and all history of similar complaints against “any TSA, Covenant or San Francisco airport agent;” any and all records of his baggage screening; any and all records related to him held by any relevant parties; and all documents and communications related to responding to the request, whether internal or external. See id. 60.
On March 25, 2013, TSA’s FOIA Branch sent a letter to Plaintiff informing him
that a portion of his request was determined to be too broad in scope or did not specifically identify the records which he was seeking. In the letter, TSA requested that Plaintiff resubmit that portion of his request with a reasonable description of the records he was seeking. See Exhibit M. TSA did not receive a response from Plaintiff.
10
Plaintiff sent TSA’s FOIA Branch multiple emails that day related to the interim releases that he received. Exhibit K is the email that deals most substantively with the CCTV Request. 11 CAS is contracted by TSA to provide airport screeners at SFO. 19
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Search for Responsive Records 61.
As with the BOS Request, Plaintiff failed to meet the requirement set forth in
DHS’s FOIA regulations to “describe the records [sought] in enough detail to enable Department personnel to locate them with a reasonable amount of effort,” 6 C.F.R. § 5.3(b), when he requested “any and all records related to [Plaintiff] held by any Relevant Parties” in Request 2013-TSPA-00339. Because TSA does not maintain a central index of records sorted by individuals, and has over 450 airports nationwide and 39 program offices, conducting such a broad search would impose an undue hardship. 62.
Based on the particular information reasonably described in the request, TSA
identified and tasked the offices it deemed likely to have responsive records. Specifically, the TSA field office at SFO was tasked with searching for responsive records. 63.
SFO searched for responsive records including records maintained by its database
of security-related entries generated by TSA’s Coordination Center at SFO, which handles some documentation and communication regarding incidents at security checkpoints, among other responsibilities. SFO also searched for records maintained in the databases used by TSA inspectors to document inquiries into potential security violations and those inspectors’ regulatory case processing tracking sheets. The search yielded responsive records from the Coordination Center including incident statements, incident reports, and CCTV of the incident, which were provided to the FOIA Branch for processing. 64.
After OCC’s initial review of the responsive records, it was determined that a
limited re-tasking was appropriate and, to that end, the FOIA Branch tasked TCC with searching for responsive records and re-tasked SFO.
20
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65.
TCC electronically searched its centralized database for records containing
Plaintiff’s name, the names and badge numbers of the TSA and CAS employees that Plaintiff indicated were involved in the SFO incident, and for complaints using the search terms “carry-on liquids” and “San Francisco Airport (SFO).” The search yielded responsive records including records of Plaintiff’s administrative complaints and claims for damages, and emails related to those complaints and claims, as well as records of complaints against TSA filed by other individuals, which were provided to the FOIA Branch for processing. 66.
SFO searched for additional responsive documents for the re-tasking including for
paper records in the Customer Service Office’s central filing system for complaints. SFO located one complaint file responsive to the request regarding a complaint submitted by Plaintiff. A copy of this complaint file was submitted to the FOIA Branch for processing. 67.
Additionally, in its response to the re-tasking, SFO recommended tasking the
Disability Branch; as a result, the FOIA Branch also tasked that office. 68.
The Disability Branch (“DB”) is part of TSA’s Office of Civil Rights and
Liberties, Ombudsman & Traveler Engagement Division (“CRL-OTE”). DB is the primary point of contact within TSA for supporting the DHS disability policy agenda and is responsible for advising the Assistant Administrator and other offices on ways to improve the training and knowledge of personnel regarding appropriate screening. 69.
DB searched its office for records related to Plaintiff, beyond any related to the
March 1, 2013 SFO incident. The search yielded records including emails, deliberative drafts, and administrative complaints by Plaintiff. Although DB’s search extended far beyond the scope of a reasonable search for responsive records described in the SFO Request, TSA’s FOIA Branch processed the records it received from the DB tasking.
21
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70.
In light of the foregoing, FOIA Branch believes that all files likely to contain
responsive material were searched in response to Plaintiff’s SFO Request. The full collection of records gathered was reviewed to determine whether any exemptions were applicable and processed accordingly. Release of Records 71.
By letter dated August 8, 2014, TSA provided an interim response to the SFO
Request, releasing 72 pages of responsive records in full as well as two CCTV videos. 12 See Exhibit N. The 72 pages of responsive records consisted of emails, incident statements, and incident reports as well communications between TSA and Plaintiff. By the same interim response letter, TSA informed Plaintiff that there were no responsive records related to images of his x-ray baggage screening. TSA also informed Plaintiff that the portion of the request for “any and all records related to me held by any relevant parties” was overly broad, and reminded Plaintiff that TSA had requested that he provide a reasonable description of the records he was seeking in accordance with 6 C.F.R. § 5.3(b) via a letter dated March 25, 2013. TSA further stated that it had not received this information from him and would initiate the search for records at to that part of the SFO Request once that information was received. 72.
Plaintiff responded to TSA via email that same day, August 8, 2014. In the email,
Plaintiff made eight additional requests for information including asking whether the released video was identical to what he received from “San Francisco;” asking for clarification regarding the “records request date” and request completion date; and requesting a reasonable search of
12
By email dated October 21, 2014, Plaintiff informed TSA’s FOIA Branch that he received the disc containing the CCTV video, but that it was too damaged to view. See Exhibit N. TSA’s FOIA Branch sent Plaintiff a replacement disc. 22
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email records based on “leads provided in the responsive email documents.” See Exhibit O.13 Because the matter was already in litigation, the FOIA Branch did not respond beyond providing a final release of responsive records on October 3, 2014. 73.
By letter dated October 3, 2014, TSA issued its final response to the SFO
Request, releasing an additional 427 pages. See Exhibit P. These pages consisted of DB records. TSA informed Plaintiff that some portions of those pages were being released with redactions pursuant to Exemptions (b)(2), (b)(5), and (b)(6). TSA further informed Plaintiff that 112 pages of responsive records were being withheld in full pursuant to Exemption (b)(5). Exemptions 74.
The following paragraphs describe the records responsive to the SFO Request that
were withheld by TSA pursuant to FOIA’s exemptions at 5 U.S.C. § 552(b). These records are described in greater detail in the Vaughn Index for the SFO Request (2013-TSPA-00339), attached hereto as Exhibit Q. The Vaughn Index contains a complete and accurate description of the records’ contents. Correction from Exemption 2 to Exemption 3 75.
In its letter dated October 3, 2014, TSA’s FOIA Branch informed Plaintiff that it
was withholding some portions of some responsive pages pursuant to 5 U.S.C. § 552(b)(2) (“Exemption 2”), and the records released to Plaintiff reflected those withholdings on Bates pages 145 and 422. Under Exemption 2, FOIA’s disclosure requirements do not apply to matter “related solely to the internal personnel rules and practices of an agency.” 76.
The material withheld on those two pages was a password used to protect material
potentially containing SSI that was transmitted within TSA. TSA’s FOIA Branch determined the 13
Plaintiff sent TSA’s FOIA Branch multiple emails that day related to the interim releases that he received. Exhibit O is the email that deals most substantively with the SFO Request. 23
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password constituted material used predominately for internal purposes. Having made that threshold determination, the FOIA Branch further determined that disclosure of the password could risk circumvention of the protection of such information as was transmitted using that password. Therefore, that password information was withheld on Bates pages 145 and 422 pursuant to Exemption 2. 77.
As fully explained above in ¶¶ 32-35, 5 U.S.C. § 552(b)(3) (“Exemption 3”)
exempts from disclosure information “specifically exempted from disclosure by statute.” Accordingly, pursuant to 49 U.S.C. § 114(r), SSI is explicitly exempt from FOIA disclosure if TSA determines that its disclosure would “(A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; or (C) be detrimental to the security of transportation.” 78.
In preparing this declaration, I reviewed Bates pages 145 and 422 and the
withheld information contained therein. After consultation with SSI Program Chief Blair, a determination was made that the undisclosed information on those pages should have been withheld pursuant to Exemption 3 instead of Exemption 2. Corrected versions of those two Bates pages (correctly identifying the information in question with the notation “(b)(3)” and identifying the corrected versions of the Bates pages with “145_a” and “422_a”) are attached hereto as Exhibit R. The detailed basis for these SSI withholdings is set forth in the Blair Declaration. Exemption 5 79.
Exemption 5 of FOIA exempts from disclosure information 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). The exemption has been interpreted to include materials covered by the deliberative process privilege, as fully explained above in ¶¶ 37-38, as well as the attorney-client privilege
24
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and the work product doctrine. TSA has asserted Exemption 5 to withhold information under all three of these categories in the records responsive to the SFO Request. 80.
The attorney-client privilege applies to confidential communications between an
attorney and his client relating to a legal matter for which the client seeks or requires professional advice. Although the privilege applies to facts divulged by a client to his attorney, it also encompasses any opinions given by an attorney to his client based upon, and thus reflecting, those facts. 81.
The privilege that protects material constituting attorney work product exempts
from disclosure documents and other memoranda prepared by an attorney in contemplation of litigation. Its purpose is to protect the adversarial trial process by insulating the attorney’s preparations from scrutiny. This privilege extends to administrative proceedings and covers documents prepared in anticipation of foreseeable litigation, including factual materials. 82.
The records containing withholdings pursuant to Exemption 5 are described with
specificity in the Vaughn Index for the SFO Request. These records generally fall into three main categories, described below. 83.
Category 1: Emails and attachments between TSA agency counsel and client
offices, including DB, pertaining to prospective agency action likely to result in litigation. a.
Portions of the following Bates pages (designated with the notation
“(b)(5)”) containing email records were withheld because they reflected and revealed attorneys’ opinions and thought processes with regards to pending administrative actions that were likely to result in litigation and therefore constituted attorney work-product: 130, 131, 133, 134, 181, 199, 262, 391, 419-420, 428, 430-434, 438, 440, 442, and 453.
25
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b.
Bates pages 131, 134, 181-182, 199, 250, 263, 266-267, 391, 419-420,
428, 430-434, 438, 440, 442, 453, 522, 536, 537-539, 543, and 546 were partially withheld under the attorney-client privilege. Those portions of these pages (designated with the notation “(b)(5)”) were withheld because they contained records of emails wherein TSA client offices sought legal advice regarding prospective agency action in connection with an administrative complaint and TSA agency counsel responded to the facts and information provided by the client in the course of requesting advice. c.
Portions of the following Bates pages (designated with the notation
“(b)(5)”) containing emails between TSA agency counsel and client offices were withheld because the information revealed internal pre-decisional deliberations regarding prospective agency action in connection with administrative complaints against TSA, and thus were exempt from disclosure pursuant to the deliberative process privilege: 131, 133, 134, 181-182, 199, 250, 263, 266-267, 391, 419-420, 428, 430-434, 438, 440, 442, 453, 522, 536, 537-539, 543, and 546. 84.
Category 2: Emails and attachments sent between TSA employees and program
offices pertaining to prospective agency action. a.
Bates pages 106, 135, 136, 141, 154, 162-163, 166-168, 177-179, 203,
238, 293-300, 377, 424, 474, 475, 477, 512, 523, 542, and 545 were emails between the DB manager and DB employees working on Plaintiff’s and other disability-related administrative complaints against TSA. Portions of these pages (designated with the notation “b(5)”) were withheld under Exemption 5 because they contained consultative discussions regarding the potential courses of action to take with respect to the handling of the administrative complaint. As such, the information that was both pre-decisional and deliberative.
26
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b.
Portions of Bates pages 258-260, 264, 269, 274, 281-282, 286-287, 415,
and 544 (designated with the notation “b(5)”) were withheld because they contained emails between DB and other TSA or DHS offices (including those staffed by contract employees) discussing the pre-decisional investigation into and collection and analysis of information related to administrative complaints. Bates pages 108-112, 128-129, 216-217, 221-223, and 425-427 were withheld in full because they were email attachments containing written questions and responses memorializing the back and forth between DB and the other program offices during the deliberative process leading up to a determination regarding the administrative complaint. Accordingly, they were properly withheld under the deliberative process privilege. c.
Bates page 271 is an email attachment regarding hypothetical checkpoint
screening scenarios involving medically exempt liquids. The sole page of that attachment contains information regarding potential prospective agency action and reflects the agency’s proposed courses of action and recommendations, the disclosure of which would reveal the agency’s deliberative process with regard to these types of scenarios. Accordingly, that one-page attachment has been withheld in full as deliberative pursuant to Exemption 5. 85.
Category 3: Draft documents, including comments and recommendations,
pertaining to agency determinations. a.
The following Bates pages contain draft versions of letters to Plaintiff in
response to the administrative disability rights complaint that he submitted to TSA: 073-078, 098-105, 142-144, 155-161, 169-176, 183-198, 482-506, 522, 524-529, and 531-535. Additionally, Bates pages 507-511 are draft versions of questions written by DB employees for TSA field personnel during the pre-decisional investigation into the administrative complaints.
27
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These records are pre-decisional drafts in their entirety and the release of any portion of them would reveal the agency’s preliminary steps in the process of arriving at a final determination. b.
Bates page 541 is a draft of a letter responding to Congresswoman Nancy
Pelosi’s office regarding Plaintiff’s administrative complaint. The page is a draft in its entirety, prepared in advance of the agency’s actions responding both to the Congresswoman’s office and to Plaintiff and distributed internally within TSA prior to finalization. As such, the draft is both deliberative and pre-decisional and that page has been properly withheld in full under Exemption 5. Exemption 6 86.
As explained above in ¶¶ 40-43, under 5 U.S.C. § 552(b)(6) (“Exemption 6”),
agencies may withhold information that might be found in “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Protection of such personal information—including names, phone numbers, email addresses, and information regarding an individual’s disabilities and medical conditions— requires a balancing of the privacy interest at stake if disclosure were to occur against the public benefit of access to the information. 87.
As described more specifically in the Vaughn Index for the SFO Request, TSA
asserted Exemption 6 over portions of certain responsive records to protect the personal information of federal and contract employees and airline passengers who contacted TSA. These withholdings fit into two categories, described below. 88.
Category 1: Federal employee and contract employee information. a.
Email addresses, phone numbers, and personal information related to TSA
and federal contract employees (designated with the notation “(b)(6)”) were withheld on Bates
28
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pages 113, 135, 181, 211, 214, 254, 279, 284, 481, and 520. Disclosure of this information would identify these individuals, provide a means of contacting them, and expose personal information about them, which could leave them susceptible to harassment. As noted above, the risk of harassment as a result of disclosure is substantial here, given Plaintiff’s history of publishing FOIA disclosures on the internet. These privacy interests far outweigh any negligible public interest in disclosure of such information, which provides no added insight into TSA operations. 89.
Category 2: Names and information of passengers who contacted TSA. a.
Names, email addresses, phone numbers, and personal information related
to passengers who contacted TSA (designated with the notation “(b)(6)”) were withheld on Bates pages 424, 434, 457, 466-467, 472, 474, 550, 552, 553-557, 568-569, 571, 573-574, and 582585. Disclosure of identifying information pertaining to individuals who had communicated with TCC or who had submitted administrative complaints to DB would constitute a clearly unwarranted invasion of the personal privacy of these individuals and would be of little to no value to Plaintiff or the public, nor would it advance either’s understanding of agency operations. Policies Request (2015-TSLI-00004) Chronology and Correspondence 90.
By email dated March 16, 2013, Plaintiff requested an extremely large amount of
material covering a broad spectrum. For example, the following is a non-exhaustive list of Plaintiff’s request: (1) “all TSA policy and/or procedures documents which are not already included in the TSA’s ‘Electronic Reading Room,’ including all Management Directives, Standard Operating Procedures, Operating Directives, Security Directives, Emergency Amendments, Information Circulars, Memoranda, Handbooks, Letters, Bulletins, and Guidance ever issued;” including a list of several specific documents; (2) “TSA’s policies regarding 29
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screening procedures, both now and at any point in the past;” (3) “TSA’s policies on the treatment of passengers with disabilities, both now and at any point in the past;” (4) “TSA’s policies regarding the enforcement of its policies when TSA personnel . . . refuse to comply with TSA policy;” (5) “TSA’s policies regarding cooperation with local airports and police;” (6) “TSA’s policies regarding when checkpoint video may be released;” (7) “TSA’s policies regarding ‘no fly,’ ‘selectee,’ and any similar lists;” (8) legal justification for TSA’s public claims that passengers may not revoke consent to administrative search . . . ;” (9) “all Behavior Detection Officer training materials, and any studies investigating their efficacy;” and (10) “a reasonably structured and sorted index providing a complete listing for all responsive documents.” Plaintiff’s full request, with all sub-items, is attached hereto as Exhibit S. 91.
On March 25, 2013, TSA’s FOIA Branch sent Plaintiff a letter acknowledging
receipt of the request 14 and informing him that, after careful review, the request was determined to be too broad in scope or did not specifically identify the records being sought. The letter advised Plaintiff that, whenever possible, a request should include specific information about each record sought, such as the date, title or name, author, recipients, and subject matter of the records, if known, or the DHS component or office that he believes created and/or controls the records. Finally, the letter concluded with a request that Plaintiff resubmit his request containing a reasonable description of the records he is seeking, and it provided contact information if he needed assistance perfecting his request. See Exhibit T. 92.
TSA’s FOIA Branch did not receive a perfected request from Plaintiff providing
more specificity as to what he was seeking in his request. As a result, the request was administratively closed on May 9, 2013. 14
The letter identified the request as TSA13-0494; however, the request was later re-labeled to 2013-TSFO-00239, and thereafter re-labeled 2015-TSLI-00004. 30
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93.
On May 28, 2014, TSA’s FOIA Branch, in its discretion, re-opened the request
and initiated a search for responsive records to the extent the items sought in the request could be reasonably discerned based on the title provided or other information that was reasonably clear from the initial request. 94.
TSA’s FOIA Branch tasked, and in several cases re-tasked, the program offices
that it deemed likely to have records responsive to the Policies Request. Specifically, the FOIA Branch tasked the following offices to conduct a reasonable search for responsive records: DB, TCC, OLE/FAMS, OCC, Office of the Audit Liaison (“Audit Office”), Office of Training and Workforce Engagement (“OTWE”), Office of Security Operations (“OSO”), Office of Human Capital (“OHC”), Office of Security Capabilities (“OSC”), Office of Global Strategies (“OGS”), Office of Chief Risk Officer (“OCRO”), Office of Professional Responsibility (“OPR”), Office of Security Policy Industry Engagement (“OSPIE”), the Office of Intelligence and Analysis (“OIA”), and the Office of the Executive Secretariat (“ExecSec”). 95.
DB was tasked with searching for responsive records because, as stated above in
¶ 68, it is the office responsible for supporting the DHS disability policy agenda and for reviewing and making determinations regarding complaints against TSA’s policies alleging discriminatory conduct on the basis of disability. DB searched its Ombudsman Database and located no responsive records. The FOIA Branch later re-tasked DB, and DB located responsive documents related to travelers’ civil rights and passengers with disabilities. 96.
TCC was tasked to search for responsive records because, as stated above, it is
responsible for providing timely responses to questions and concerns of the traveling public. Specifically, the FOIA Branch advised TCC that responsive records may include, but are not limited to, policy and guidance documents available to travelers who encounter problems with
31
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TSA personnel. TCC determined that it does not maintain policy documents of the type sought by the request and therefore did not locate any responsive records. 97.
OCRO was tasked with searching for responsive records because it is responsible
for the risk management activities across TSA, including early warning of top risks. Specifically, the FOIA Branch advised OCRO to search for responsive records including Emergency Amendments and Security Directives. In response to the tasking, OCRO determined that it does not maintain or generate Emergency Amendments or Security Directive and therefore it did not locate any responsive records. In its response to the FOIA Branch, OCRO recommended that OSPIE be tasked to search for responsive materials. 98.
OGS was tasked with searching for responsive records because it is responsible
for promoting the implementation of effective transportation security worldwide and ensuring compliance with international and TSA security standards. Specifically, the FOIA Branch tasked OGS with searching for responsive records including security programs. In response to the tasking, OGS determined that the policy and directive documentation requested was not owned by OGS and therefore it did not locate any responsive records. In its response to the FOIA Branch, OGS recommended tasking OSPIE to search for responsive materials. 99.
OSPIE was tasked with searching for responsive records. OSPIE was tasked
because OGS and OCRO specifically recommended it and because OPSIE is responsible for developing security policies and plans, and thus maintains many of TSA’s policies affecting industry partners. OSPIE’s searched for and located responsive records related to security programs, which were provided to the FOIA Branch for processing. 100.
OPR was tasked with searching for responsive records because it is responsible
for ensuring consistency in misconduct penalty determinations and the subsequent adjudication
32
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process. OPR searched the iShare Professional Responsibility webpage and located records related to employee offenses and penalties, which were provided to the FOIA Branch for processing. OPR also recommended tasking OHC to search for related records. 101.
OHC was tasked with searching for records because OPR recommended it, and
because OHC is responsible for providing guidance, resources, and information related to TSA personnel matters; consequently, it maintains TSA’s workforce and personnel policies. OHC searched the OHC iShare Portal page, an online intranet resource for TSA employees, and located responsive records related to employee conduct and responsibilities, which were provided to the FOIA Branch for processing. In its response to the FOIA Branch, OHC also recommended tasking OSO to search for responsive records. 102.
OSC was tasked with searching for responsive records because it is responsible
for developing innovative technologies to detect terrorist threats targeting commercial transportation and testing those technologies through applied research. OSC searched its electronic records for the Screening Passengers by Observation Techniques (SPOT) Validation Study and located responsive records related to the validation study. OSC was later re-tasked, and located additional responsive records regarding airport surveillance programs. Those documents were provided to the FOIA Branch for processing. 103.
The Audit Office was tasked with searching for responsive records because it is
responsible for coordinating reports and audits on TSA programs. In response to the initial tasking, the Audit Office did not locate responsive records. The FOIA Branch re-tasked the Audit Office. In response to the re-tasking, the Audit Office determined that it does not maintain any of the responsive records sought and therefore did not locate any responsive records. Also in its response to the re-tasking, the Audit Office recommended that OSO be tasked.
33
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104.
OLE/FAMS was tasked with searching for responsive records because the SSI
Program Office is a component of OLE/FAMS and is responsible for providing support to agency personnel and stakeholders for the identification, sharing, and safeguarding of SSI. The SSI Program Office searched eReview, its electronic database, for video review and assessment requests from public affairs for date rages October 2009 and November 2010 as well as its policy archives and the SSI iShare webpage for policies pertaining to review of CCTV or other material prior to public disclosures. The SSI Program Office located responsive documents, including policies related to disclosure of CCTV. OLE/FAMS was re-tasked because it is also responsible for the Federal Air Marshal Service, which deploys federal law enforcement officers on U.S. aircraft worldwide and conducts protection, response, detection, and assessment activities in airports and transportation systems. Upon the re-tasking, OLE/FAMS searched its policy archives and located responsive records related to procedures for deploying FAMs on specific flights based on a request or requirement. All of those responsive records were provided to the FOIA Branch for processing. 105.
OIA was tasked with searching for responsive records because it is responsible for
identifying security risks to prevent attacks against the transportation system using an intelligence-driven, risk-based approach. In turn, OIA tasked Intelligence Operations Specialists to conduct an electronic search for materials responsive to the Policies Request. This search yielded responsive records related to the Secure Flight program, which pre-screens commercial airline passengers by comparing passenger information against Federal government watch lists such as the No Fly and Selectee lists, and those records were provided to the FOIA Branch for processing.
34
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106.
OTWE was tasked with searching for responsive records because it is responsible
for the technical and leadership training and development of TSA programs. OTWE searched for and located responsive records related to the BDO program’s training materials, which were provided to the FOIA Branch for processing. 107.
ExecSec was tasked with searching for responsive records because it maintains
and tracks correspondence that pertains to TSA’s front office, including the Administrator and Deputy Administrator, and that pertain to TSA’s interaction with DHS’s Office of the Secretary. ExecSec searched TSA’s electronic Controlled Correspondence Management System using key words, including “U.K. Incident,” “Liquids, Aerosols, and Gels,” and “liquids plot,” and located responsive records related to TSA’s liquid policy, which were provided to the FOIA Branch for processing. 108.
In light of the foregoing, the FOIA Branch believes that all files likely to contain
responsive material were searched in response to Plaintiff’s Policies Request. The full collection of records gathered was reviewed to determine whether any exemptions were applicable and processed accordingly. Release of Responsive Records 109.
By letter dated July 30, 2015, TSA provided an interim response to Plaintiff’s
Policies Request, informing Plaintiff that it was releasing 1,416 pages of responsive records in whole or in part. See Exhibit U. 15 The letter referenced the fact that TSA had previously informed Plaintiff that this request was too broad in scope and requested clarification from 15
Due to administrative error, the number of withheld-in-full pages responsive to Item 9 was incorrectly recorded as 50 instead of 38 in the letter dated July 30, 2015. As a result, in that response letter, the total number of withheld-in-full pages was incorrectly recorded as 411 instead of 399, and the total number of released pages was incorrectly recorded as 1,416 instead of 1,428. This error was corrected in subsequent response letters for this request and did not affect the total number of pages processed. 35
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Plaintiff and noted that, despite the lack of clarification from Plaintiff, TSA in its discretion was processing the request to the extent TSA was able to reasonably identify responsive records. The letter informed Plaintiff that TSA had located and reviewed 1,827 pages of records, of which 411 pages were being withheld in full pursuant to Exemption (b)(3) or (b)(5). The letter further informed Plaintiff that TSA was releasing the remaining pages with some portions of those pages withheld pursuant to Exemptions (b)(3) and/or (b)(5). The letter explained how many pages of responsive records TSA was releasing with respect to particular items within Plaintiff’s request and which exemptions applied to the pages or portions of pages that were being withheld. To the extent that information that Plaintiff was seeking in the Policies Request was publicly available, the letter directed Plaintiff to the public resources where such records could be located. The letter also informed Plaintiff that TSA’s FOIA Branch was continuing to process the request and would provide additional release determinations as records were processed. See id. 110.
By letter dated August 20, 2015, TSA provided a second interim response to the
Policies Request, releasing 1,294 additional pages of responsive records. See Exhibit V. The letter informed Plaintiff that TSA had located and reviewed 1,395 pages of records, of which 101 pages were being withheld in full pursuant to Exemption (b)(3). The letter further informed Plaintiff that TSA was releasing the remaining 1,294 pages with certain portions of those pages withheld pursuant to Exemptions (b)(3), (b)(6), and/or (b)(7)(C). As with the first interim response, the letter further explained how many pages of responsive records TSA was releasing with respect to particular items within Plaintiff’s request and which exemptions applied to the pages or portions of pages that were being withheld. The letter also informed Plaintiff that TSA’s FOIA Branch was continuing to process the request and would provide additional release determinations as records were processed. See id.
36
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111.
By letter dated October 30, 2015, TSA provided a third interim response to the
Policies Request, releasing 329 additional pages of responsive records. See Exhibit W. The letter informed Plaintiff that TSA had located and reviewed 351 pages of records, of which 22 were being withheld in full pursuant to Exemption (b)(5). The letter further informed Plaintiff that TSA was releasing the remaining 329 pages with certain portions of those pages withheld pursuant to Exemption (b)(3). As with the other two interim responses, the letter further explained how many pages of responsive records TSA was releasing with respect to particular items within Plaintiff’s request and which exemptions applied to the pages or portions of pages that were being withheld. The letter also informed Plaintiff that TSA’s FOIA Branch had anticipated completing the processing of the request by October 31, 2015, but a limited number of additional records were still being processed and TSA would provide additional release determinations processing was completed. See id. 112.
By letter dated February 29, 2016, TSA provided its final response to the Policies
Request. See Exhibit X. The letter informed Plaintiff that TSA had located and reviewed 359 additional pages of records. The letter explained that all 359 pages were being withheld in full pursuant to Exemption (b)(3), with some portions of those pages also being withheld in part pursuant to Exemptions (b)(5) and (b)(6). Exemptions 113.
The following paragraphs describe the records responsive to the Policies Request
that were withheld by TSA pursuant to FOIA’s exemptions at 5 U.S.C. § 552(b). These records are described in greater detail in the Vaughn Index for the Policies Request (2015-TSLI-00004), attached hereto as Exhibit Y. The Vaughn Index contains a complete and accurate description of the records’ contents.
37
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Exemption 3 114.
As fully explained above in ¶¶ 32-35, 5 U.S.C. § 552(b)(3) (“Exemption 3”)
exempts from disclosure information “specifically exempted from disclosure by statute,” and 49 U.S.C. § 114(r)(1) prohibits disclosure of SSI, notwithstanding FOIA, if TSA determines that its disclosure would “(A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; or (C) be detrimental to the security of transportation.” 115.
The responsive records for the Policies Request were submitted to TSA’s
Program Office for its review. Following its review and final determinations regarding what information in the records constituted SSI, the SSI Program Office provided the FOIA Branch with copies of the records in which the SSI was marked for redaction. Some of the records were determined to constitute SSI in full, such that disclosure of those records even in redacted form would be detrimental to the security of transportation. Information marked for redaction by the SSI Program Office appears in the following Bates page ranges: 000975-001181, 001288001292, 001325-001466, 001467-001543, 001544-001789, 001828-001830, 001831-001833, 001834-001838, 001839-001871, 001872-001897, 001898-001905, 001906-001911, 001912002156, 002157-002238, 002239-002346, 002362-002399, 002444-003222, 003232-003538, 003539-003549, 003550-003560, 003561-003564, 003565-003570, and 003571-003573. 16 In addition, the SSI Program Office determined that the following Bates pages constituted SSI in
16
While Bates pages 003539-003549, and 003550-003560 were partially withheld pursuant to Exemption 3, they were withheld in full pursuant to Exemption 5 as described in the Vaughn Index and below in ¶ 118(b). 38
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full: 000001-000062, 000141-000407, 001790-001827, and 003574-003932. 17 Because SSI must be withheld from FOIA production, as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b), TSA withheld all SSI pursuant to Exemption 3. These records and exemptions are described in the attached Vaughn Index for the Policies Request, and the detailed basis for the SSI designations that are the predicates for these withholdings under Exemption 3 are set forth in the Declaration of Douglas E. Blair, Chief of TSA’s SSI Program. 116.
In preparing this declaration, I reviewed Bates pages 001318-001324 which
contain a legal memorandum that had been withheld in full pursuant to Exemption 5, as explained below in ¶ 118(a). Upon review, I determined that SSI redactions pursuant to Exemption 3 had been applied to the document, but those partial withholdings were not noted in the letter to Plaintiff, dated July 30, 2015. The Exemption 3 withholdings on Bates pages 001318-001324 have been properly accounted for in the Vaughn Index for the Policies Request and the predicate SSI determinations set forth in the Blair Declaration. Exemption 5 117.
As explained above in ¶¶ 37-38, 80-81, under Exemption 5, FOIA’s disclosure
requirements do not apply to “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). This exemption has been interpreted to include the deliberative process privilege, the attorney-client privilege, and the privilege protecting attorney work-product.
17
While Bates pages 003574-003932 were withheld in full pursuant to Exemption 3, they also contain information subject to withholding pursuant to Exemption 6 as described in the Vaughn Index and below in ¶ 121. 39
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118.
TSA asserted withholdings pursuant to Exemption 5 in the following two
categories of records (as designated by the notation “(b)(5)”), which are also described in the Vaughn Index for the Policies Request. a.
Category 1: Legal memoranda prepared by TSA agency counsel. Bates
pages 001293-001317 constitute legal memoranda that were properly withheld in full as attorney-client privileged material and attorney work-product. These memoranda were deemed responsive to Item 8 of Plaintiff’s request seeking “legal justification for TSA’s public claims that passengers may not revoke consent to administrative search once they have entered a screening area[.]” The documents were prepared by TSA agency counsel to provide legal advice to TSA’s operational leadership and in anticipation of prospective litigation that could arise from TSA’s screening checkpoint policies. These records are privileged material in their entirety and thus were withheld in full pursuant to Exemption 5. Bates pages 001318-001324 contain one legal memorandum that was prepared by TSA agency counsel for TSA’s Chief Counsel in anticipation of potential litigation regarding pat-down procedures. As such, the document constitutes attorney work-product and was properly withheld in full under Exemption 5. b.
Category 2: Draft documents. Bates pages 003539-003549 and 003550-
003560 are draft documents—specifically, a memorandum and a PowerPoint presentation— prepared in anticipation of a briefing to the Secretary of DHS regarding airport security measures in 2006. These documents are drafts in their entirety and furthermore reflect proposals and recommendations regarding agency action. Accordingly, disclosure of these draft documents
40
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would reveal the agency’s deliberative process and therefore were properly withheld in their entirety pursuant to Exemption 5. 18 Exemption 6 119.
As explained above in ¶¶ 40-43, pursuant to Exemption 6, agencies may withhold
information that might be found in “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Protection of such personal information—including names, photographs, phone numbers, and email addresses—requires a balancing of the privacy interest at stake if disclosure were to occur against the public benefit of access to the information. 120.
The records that were partially redacted pursuant to Exemption 6 are described in
the Vaughn Index for the Policies Request and below. All of these records contained TSA employees’ personal information the disclosure of which would be of little to no value to Plaintiff and the public and could expose the employees to harassment and targeting. The redacted information falls into the following two categories. 121.
Category 1: Names and photographs of TSA employees. Bates pages 002267-
002268, 002271, and 002273—all part of an OSO newsletter deemed responsive to Item 3 of Plaintiff’s Policies request—contain photographs and names of non-managerial, frontline TSA field personnel engaged in TSA operations that were withheld under Exemption 6 (as designated with the notation “(b)(6)”). Bates page 002271 also contains the name of a local law enforcement 18
TSA asserted Exemption 5 to withhold in full Bates page 003676 pursuant to the deliberative process privilege because that document—a one-page appendix to an OIA Secure Flight SOP— was marked as a draft. In preparing this declaration, I reviewed Bates page 003676 and determined that the document was a template rather than a draft and therefore need not be withheld pursuant to Exemption 5. That document, however, must still be withheld in full pursuant to Exemption 3 as it is part of a Secure Flight SOP that constitutes SSI in its entirety (as set forth more fully in the Blair Declaration). The Vaughn Index for the Policies Request reflects the corrected exemptions that apply to Bates page 003676. 41
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officer that was similarly withheld. 19 Bates pages 003575-003577, 003625-003628, 003666, 003691, 003744, 003780, 003805, and 003898 are part of OIA’s SOPs for the Secure Flight Program and contain names of non-managerial OIA analysts that were also withheld. 20 In all of these instances, the value of publicly disclosing the names and photographs of these employees is negligible as they are not high-ranking agency officials with a diminished interest in privacy nor do their identities have any bearing on TSA’s policies and procedures. Balancing the benefit of disclosing this personally identifying information against the risk of harassment and targeting of the individuals in the event the release, it is clear that the individual employees’ privacy interests outweigh any benefits of disclosure in the interest of advancing an understanding of agency operations (which would be negligible). In contrast, names and photographs of other management-level and non-frontline employees were left unredacted. In making these determinations, employees’ position titles and areas of responsibilities were considered. 122.
Category 2: Employees’ contact information. Bates page 002331 was partially
withheld pursuant to Exemption 6 (as indicated by the notation “(b)(6)”) because it contained the email address of a TSA employee who was listed as the internal TSA point of contact for disability training and related questions. This information was withheld because the employee was not a high-ranking official and the employee’s email address does not provide any insight into TSA’s policies and procedures, thus it was determined that disclosure would constitute an unwarranted invasion of privacy. In contrast, the TSA employee listed as the external point of 19
TSA asserted Exemption 7(C) as well as Exemption 6 to withhold the name of this law enforcement officer. In preparing this declaration, I reviewed Bates page 002271 and determined that this name should properly be withheld pursuant to Exemption 6 only. A corrected version of that Bates page (identified as Bates page “002271_a”) is attached hereto as Exhibit Z. 20
These pages from OIA’s Secure Flight SOPs have been withheld in full pursuant to Exemption 3 as the SOPs constitute SSI in their entirety, as explained in ¶ 115 and in the Blair Declaration. Nevertheless, TSA also asserts Exemption 6 to withhold the portions of these pages as described. 42
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contact for disability-related question was not redacted. Similarly, on Bates pages 002355 and 002392 TSA employees’ email addresses and the last four digits of their phone numbers were redacted from records of Other Transaction Agreement templates (as indicated by the notation “(b)(6)”). This information was withheld pursuant to Exemption 6 because the employees were not high ranking and disclosure of their contact information would not facilitate any understanding of agency policy, but could subject them to harassment and questioning. BOS & SFO Re-Requests (2016-TSPA-00009 & 2016-TSPA-00010) Chronology and Correspondence 123.
On November 23, 2013, Plaintiff sent an email to various TSA email addresses
including the FOIA Branch email address. See Dkt. 28-3, at 11-12. Upon receipt of the email, TSA’s FOIA Branch did not interpret it as a new FOIA or Privacy Act request because the email incorporated and reiterated the contents of two of Plaintiff’s prior requests (the BOS Request (2013-TSPA-00368) and the SFO Request (2013-TSPA-00339)) and because portions of the email were addressed to other TSA offices. Accordingly, the FOIA Branch did not assign it a new request number or create a record of it in its system of requests. 124.
After reconsideration, TSA’s FOIA Branch began processing the November 23,
2013, email as a new, unperfected request and sent Plaintiff an acknowledgment letter dated September 21, 2015. See Exhibit AA. The letter explained that the request appeared identical to prior requests submitted by Plaintiff and asked that Plaintiff specifically describe what additional records he was seeking that were not contained in the prior requests in order to perfect the new request. 125.
Plaintiff responded to TSA via email that same day, September 21, 2015. See
Exhibit BB, 2-3. In the email, Plaintiff made assertions of law and requests for information 43
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beyond the scope of the November 23, 2013, email request. Plaintiff concluded the September 21, 2015, email requesting that TSA “process the request as clarified in part.” Id. 126.
By email dated October 23, 2015, TSA’s FOIA Branch sent Plaintiff an email
requesting a signed perjury statement as required by 6 C.F.R. § 5.21(d). Plaintiff responded with a signed perjury statement the same day. 127.
By letter dated October 27, 2015, TSA informed Plaintiff that it was processing
his request under two separate request numbers pertaining to the incidents at BOS (2016-TSPA00009) and SFO (2016-TSPA-00010), respectively. See Exhibit CC. The letter further informed Plaintiff that the FOIA Branch had already conducted searches for these incidents for Requests 2013-TSPA-00368 and 2013-TSPA-00339. Accordingly, the letter informed Plaintiff that the scope of the searches for the new requests would begin on the date after the prior searches had concluded: February 22, 2013, for the BOS Re-Request (2016-TSPA-00009) and July 4, 2013, for the SFO Re-Request (2016-TSPA-00010). 128.
Plaintiff responded via email that same day, October 27, 2015. See Exhibit BB, 1.
In the email, Plaintiff stated: I requested *all* records. I do not authorize a start date cut-off. All I authorize is that you do not need to provide me with records under this request that you have already provided me under other requests if it would be purely duplicative. Id. Search for Responsive Records 129.
As stated above, DHS’s Privacy Act regulations require requesters to “describe
the records [sought] in enough detail to enable Department personnel to locate [the records] with a reasonable amount of effort.” 6 C.F.R. § 5.21(b). This regulation places an affirmative duty upon requesters to describe the documents sought to ensure the appropriate offices and 44
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employees can be tasked and any responsive documents can be located with a reasonable amount of effort. 130.
Plaintiff failed to meet this requirement of reasonably describing the records he
sought in the BOS Re-Request and the SFO Re-Request. In its acknowledgment letter to Plaintiff, TSA’s FOIA Branch asked him to specifically describe the records he was seeking in his November 23, 2013, request for “*all* [records] . . . which relate to either of the two incidents . . . BOS 2013-01-21 and SFO 2013-03-01” because the FOIA Branch had already produced records related to those two incidents in response to prior requests. See Exhibit AA. Rather than specifically describe the records he was seeking, Plaintiff responded with legal assertions and a host of substantially different requests from his November 23, 2013, email request, with various novel components including ones that reached far beyond records related to either of the two isolated incidents. See Exhibit BB. He further stated that by submitting this enormous expansion, he wanted the request processed “as clarified in part,” suggesting that further modification or amendment was contemplated. 131.
In light of the expansive and indefinite nature of Plaintiff’s response to TSA’s
request for a specific description of the records sought, TSA’s FOIA Branch made a good faith effort to interpret Plaintiff’s request in a manner that would facilitate a reasonable search for the records sought without searching for documents duplicative of those already released to Plaintiff in response to other requests and without imposing an undue burden on the agency. As a result of this effort, the FOIA Branch determined that it would search for records related to the BOS and SFO incidents referenced in the November 23, 2013, request using a timeframe that post-dated the prior searches conducted with respect to these two incidents.
45
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132.
When TSA notified Plaintiff of the dates it planned to use to conduct the searches,
in accordance with the DHS Privacy Act regulations, 6 C.F.R. § 5.22, Plaintiff responded that he requested “*all* records.” See Exhibit BB, 1. Plaintiff’s response in which he asserted an overly broad request for “*all* records” and failed to describe with any additional specificity the records he sought further confirmed that Plaintiff would not provide a description that would allow the appropriate offices and employees to be tasked with conducting a reasonable search that would not place an inordinate burden on agency resources. 21 133.
Given these circumstances, TSA’s FOIA Branch tasked those offices that it
deemed most likely to have records related to the SFO and BOS incidents with searching for non-duplicative responsive records. 134.
Specifically, for the BOS Re-Request, the FOIA Branch tasked BOS, TCC, and
OLE with searching for responsive, non-duplicative records related to the January 21, 2013, incident at BOS. These offices were tasked for the same reasons that they were tasked with searching for responsive records under the BOS Request (2013-TSPA-00368), as explained above. See ¶¶ 12, 19, 21. 22 Each office was tasked with searching for responsive records starting on the date that after each office’s previous search had been completed in an effort to avoid duplication. 135.
BOS and TCC searched for and did not locate any responsive records. OLE
searched for and located records, which were submitted to the FOIA Branch for processing.
21
A substantial amount of agency resources were already being allocated to the 21 other open FOIA and Privacy Act requests that Plaintiff had submitted to TSA at that time. 22
Because the original request that was submitted via email November 23, 2013 made no mention of the incidents at ORD and LGA, TSA’s FOIA Branch did not task those airport field offices for Request 2016-TSPA-00009 as it had for Request 2013-TSPA-00368. 46
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During processing, the FOIA Branch identified those records as duplicative of records released in response to the BOS Request (2013-TSPA-00368), and thus that they were non-responsive. 136.
By letter dated January 6, 2016, TSA provided a final response to the BOS Re-
Request, informing Plaintiff that no records were located. See Exhibit DD. 137.
Specifically, for the SFO Re-Request, the FOIA Branch tasked SFO, TCC, and
DB with searching for responsive, non-duplicative records related to the March 1, 2013, incident at SFO. These offices were tasked for the same reasons that they were tasked with searching for responsive records under the SFO Request (2013-TSPA-00339), as explained above. See ¶¶ 62, 64, 67. Each office was tasked with searching for responsive records starting on the date after each office’s previous search had been completed in an effort to avoid duplication. 138.
TCC searched for and did not locate any responsive records. DB and SFO
searched for and located records, which were submitted to the FOIA Branch for processing. During processing, the FOIA Branch determined that the records were either duplicative of records released in response to the SFO Request (2013-TSPA-00339) or were records related solely to the tasking and searching for the SFO Re-Request. Accordingly, TSA’s FOIA Branch determined that no responsive records located were within the scope of the request. 139.
By letter dated November 30, 2015, TSA provided a final response to the SFO
Re-Request, informing Plaintiff that no records were located. See Exhibit EE. 140.
In light of the foregoing, FOIA Branch believes that all files likely to contain
responsive material were searched in response to Plaintiff’s BOS & SFO Re-Requests. The full collection of records gathered was reviewed to determine whether any responsive, nonduplicative records were provided that required processing.
47
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1 declare under penalty of perjury that the foregoing is true and correct.
Dated:
1,1/n...0 t:'6 J Z-0 I (J2 Arlington, Virginia Transportation Security Administration U.S. Department of Homeland Security
48
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EXHIBIT A to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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EXHIBIT B to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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From: To: Subject: Date:
on behalf of Sai Sotoudeh, Paul Re: Your phone message regarding your FOIA request (13-0375) Friday, February 15, 2013 1:42:45 PM
Thank you for your clarification; I appreciate your honesty. I have never applied for employment with any government agency (including the TSA) nor borne any government credential. The TSA has never formally cited or fined me, nor had any legal justification to do so. However, I have had multiple cases of harassment by TSA agents; the one I reported is merely the most recent. For instance, on June 27, 2012, around 4pm, at LGA, Deputy Assistant Federal Security Director (A) Paul Bostic (port ID #302113857) confiscated ginger ale that I had clearly declared as a medical liquid, in direct violation of TSA's clearly stated policy. Although I showed him a printout of the TSA Special Needs Memo (from 9/25/2006), he first denied its validity, and then outright refused to obey it — and that was after escalating all the way up to him in the first place, which means that probably a half dozen TSA agents, supervisors, TSM, etc did the same thing. I want all records related to that event, and furthermore, a clear statement about what corrective measures the TSA takes when TSA agents simply refuse to obey clearly established TSA policy. On December 25, 2010, I was removed from a United Airlines flight out of ORD (eventually to Berlin; I don't remember what the stopover was), due in large part to my carrying with me a sealed 64oz jug of Odwalla Superfood — which I had declared as a medical liquid, and which was tested by xray plus puffer / ETD machine. I want all records related to that event, including any incident reports, police reports, or the like. On that occasion, as with many others, my liquid nutrition was cleared only after I insisted that the agents follow TSA policy and showed them a highlighted printout of the Special Needs Memo. TSA agents have variously claimed that juice is not a medical liquid; that a prescription is required for juice; that they are allowed to ignore the policy at their discretion; that they have a right to know the nature of my disability or to judge the medical necessity of juice to me; that "suggested" actually means "required" at their whim; etc. Though the TSA has claimed previously to have "always permitted" such items, frankly that's a lie. The TSA both currently and formerly, in actual practice by its agents, has harassed and prevented travelers with disabilities like me from travelling with perfectly legal and harmless liquids when completely adequate screening measures were available. I note, by the way, that the TSA has since removed the SNM from its website, along with its previous clear statement that "medical liquids" specifically includes water and juice and that a prescription is NOT required. Again, this rather gives the lie to a claim to "permit" such items, and encourages TSA agents who want to simply ignore the rights of disabled travelers like me.
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EXHIBIT C to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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From: To: Subject: Date:
FOIA FOIA new number TSA13-0414 Wednesday, February 20, 2013 3:01:00 PM
Dear Mr. Sai, This office previously acknowledged your request on February 5, 2013. At that time, you were informed that your FOIA request was received in this office, that it was assigned identification number TSA13-0375, and that we required you submit a signed perjury statement and respond to the Not Reasonably Describe (NRD) letter. Since we had not received the perjury statement and response to the NRD letter, this office administratively closed case TSA13-0375 on February 7, 2013. Upon receipt of your signed perjury statement and response to the NRD letter on February 20, 2013, we reopened your case under a new case number, TSA13-0414. Sincerely, Freedom of Information Act Office Transportation Security Administration
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EXHIBIT D to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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to Exemptions (b)(3), (b)(6) and/or (b)(7)(c). A more complete explanation of these exemptions is provided below. Please note that any information pertaining to item 3 of your request would be maintained by the Massachusetts State Police and you will need to make a request for this information directly to them. With respect to Item 7, there are no responsive records as TSA’s checkpoint screening process does not require retention of x-ray images or automated notes related to the images. Also, a review of the incident narrative and report associated with your checkpoint experience also fail to mention x-ray images of your baggage. With respect to Item 8, the portion of your request for “any and all records related to me held by any Relevant Parties” is overly broad and we are requesting that you provide a reasonable description of the records you are seeking in order for us to conduct a search for the documents. Pursuant to Department of Homeland Security regulations (6 CFR § 5.3(b)), requests should include specific information about each record sought, such as the date, title or name, author, recipients, and subject matter of the records, if known, or the DHS component or office you believe created and/or controls the record. Once we receive this information from you we will initiate a search for records. Privacy Act Information about an individual maintained in a Privacy Act system of records may be accessed by that individual unless the agency has exempted the system of records from the access provisions. The information you are requesting is maintained in the Transportation Security Enforcement Record System (TSERS) (DHS/TSA 001). The TSERS enables TSA to maintain an enforcement and inspections system for all modes of transportation for which TSA has security related duties and to maintain records related to the investigation or prosecution of violations or potential violations of Federal, State, local, or international criminal law. They may be used, generally, to identify, review, analyze, investigate, and prosecute violations or potential violations of transportation security laws, regulations and directives or other laws as well as to identify and address potential threats to transportation security. They may also be used to record the details of TSA security-related activity, such as passenger or property screening. Some of the information in this system of records is exempt from PA access pursuant to (k)(2). In the interest of full disclosure, however, we have processed this information for release under the FOIA. Exemption (b)(3) This information reveals Sensitive Security Information (SSI) and is exempt from disclosure under Exemption (b)(3), which permits the withholding of records specifically exempted from disclosure by another Federal statute. Section 114(r) of title 49, United States Code, exempts from disclosure SSI that “would be detrimental to the security of transportation” if disclosed. The TSA regulations implementing Section 114(r) are found in 49 CFR Part 1520. Exemption (b)(6) Exemption (b)(6) permits the government to withhold all identifying information that applies to a particular individual when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy.” This requires the balancing of the public’s right to disclosure against the individual’s right to privacy. After performing this analysis, it was determined that the privacy interest in the identities of the individuals in the records you have requested outweigh any minimal public interest in disclosure of 2
www.tsa.gov
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the information. Please note that any personal interest you may have in that information does not factor into the aforementioned balancing test. Exemption (b)(7)(C) Exemption (b)(7)(C) permits the government to withhold all law enforcement information when disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Based upon the traditional recognition of strong privacy interests in law enforcement records is ordinarily appropriated. As such, we have determined that the privacy interest in the identities of individuals in the records you have requested clearly outweighed any minimal public interest in disclosure of the information. Please note that any personal interest you may have in that information does not factor into this determination. The FOIA Branch continues to process this request and will make additional releases to you in a timely manner. Fees The fees incurred to process your request do not exceed the minimum threshold necessary for charge and, therefore, there are no fees associated with processing this request. Administrative Appeal As TSA’s response to this request is currently the subject of litigation the administrative appeal rights normally associated with a FOIA request response are not being provided. In an effort to maintain a more robust/efficient process to streamline reporting requirements, the TSA, through the Department of Homeland Security, converted to a new FOIA tracking system in October 2013. This modification has resulted in the inability to continue tracking requests with the tracking number assigned by the old system, and changed our naming convention. We are referencing both old and new tracking numbers in our response. I apologize for any confusion this may cause and appreciate your understanding. If you have any questions pertaining to your request, please feel free to contact the FOIA Office at 1-866364-2872 or locally at 571-227-2300. Sincerely,
Teri M. Miller or Amanda Deplitch Acting FOIA Branch Officers Enclosure
3
www.tsa.gov
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EXHIBIT E to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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From: To: Cc: Subject: Date: Attachments:
Sai McCoy, Regina Simon, Jeremy (USADC); Re: 2013-TSPA-00368 Interim Release Friday, August 08, 2014 9:36:58 PM 2014-08-08 2013-TSPA-00368 Interim response signed and dated - redacted.pdf 2014-08-08 Interim Release Documents August 8 2014 - redacted.pdf
Regina Again, thank you for your preliminary provision of records responsive to my request. As a preliminary response to your documents in 2013-TSPA-00368: 1. Regarding item 3, please confirm that TSA does not possess any police records relating to this incident aside from the ones provided in your interim release. 2. Regarding item 7, my own complaint states clearly that my bags were x-rayed. Evidence of this would be contained on the video surveillance, as well as with any incident reports such as the bag check incident report, with 'xray' checked, from 2013-TSPA-00339 interim release pt 2 p 9. 3. Pages 3, 4, 6, and 7 are completely illegible. Please provide higher quality copies, or if the original is digital, digital copies. (Please note my previous email today regarding electronic formatting.) 4. Pages 1 and 5 contains multiple redactions purportedly under 114(r). However, such information may only be redacted if that specific information would (I presume you are claiming (r)(1)(C)) "be detrimental to the security of transportation", and it may not be redacted per (r)(4): "(A) to conceal a violation of law, inefficiency, or administrative error; (B) to prevent embarrassment to a person, organization, or agency; (C) to restrain competition; or (D) to prevent or delay the release of information that does not require protection in the interest of transportation security, including basic scientific research information not clearly related to transportation security." You have not provided any explanation of what information was redacted, nor why it specifically qualifies under 114(r). As you know, a bare claim of what section purportedly applies to a claimed exemption is inadequate; the response must give adequate information (cf. Vaughn) to explain why the particular redaction qualifies under the cited standard. By context, I believe that (r)(4)(A, B, & D) apply here. The only factual claims made about my purportedly suspicious behavior were a) that I was wearing a shirt containing protected political speech, and b) I was unable to speak, which I repeatedly explained as due to a neurological disability (and which the BDOs confirmed by reading aloud
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 64 of 190 a card in my wallet signed by neurologist that stated exactly that, though they omitted recording this fact), and I repeatedly asked for pen and paper, or an ASL interpreter, to assist communication. Furthermore, literally refusing to speak is a classically protected 4th Amendment right in itself. To cap it off, absolutely none of the facts alleged by the BDOs are in any way unlawful, though they conveniently omit facts that don't fit their desired narrative (for instance, that the 'heavy solid unknown object' was an ocarina that looks nothing like a firearm, but rather like this: http://ep.yimg.com/ca/I/yhst-46117395216933_2269_19760854.jpg). The assertion or exercise of constitutional rights cannot give rise to suspicion. Nor can a disability, plainly asserted — and the BDOs explicitly stated that the "lack of verbal communication" (where they refused to permit me to communicate in writing or to provide an American Sign Language interpreter) was part of their reason for search. The BDOs further omit the fact that, after I was finally given access to pen and paper and used it to cite the US v Davis standard in protest of their unlawful search, they took away my pen and paper in direct retaliation — an act that is plainly and outrageously unlawful under numerous statutes. Accordingly, the facts as stated by the BDOs, and the further context which they have omitted, plainly indicate that the BDOs acted unlawfully, and therefore that the redactions conceal further violation of law (such as under § 1983 / Bivens) — which are *not* permitted under 114(r). The same can be inferred for your 114(r) redactions on page 5.
Therefore, please justify your each individual redaction under 114(r) with a level of specificity adequate for judicial review.
5. 114(r)(2) specifically exempts provision of such information to Congress. I hereby request and authorize you to provide a version of pages 1 and 5 of your interim release, without the 114(r) redactions — but redacted to remove my previous name, as I have attached — to the office of Nancy Pelosi, whose constituent services representative I have copied to this email. is already familiar with this case and has a signed Privacy Act authorization waiver from me. Nancy Pelosi has already requested TSA for information regarding my complaints, which TSA has promised to provide. Sincerely, Sai On Fri, Aug 8, 2014 at 9:07 PM, McCoy, Regina > Sai –
wrote:
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 65 of 190 > > > > Attached please find an interim release letter and responsive documents. > Should you have any problems opening the attachments please let me know.
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EXHIBIT F to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 67 of 190
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request would be maintained by the Massachusetts State Police and you would need to make a request for this information directly to them. You were also advised that there were no responsive records for Item 7 and that Item 8 was overly broad and we would need a reasonable description of the records requested in order to conduct a search. You were further advised that we would continue to process this request pursuant to the FOIA, 5 U.S.C. § 522, and the Privacy Act, 5 U.S.C. § 552a. This release constitutes the final release of responsive records for this request. Two hundred and twenty-nine additional pages have been located and processed for release to you. Portions of some of these pages are being withheld pursuant to Exemptions (b)(3), (b)(5), (b)(6), and (b)(7)(C). A more complete explanation of these exemptions is provided below. Video was located and is being released to you in full via United State Postal Service. Exemption (b)(3) This information reveals Sensitive Security Information (SSI) and is exempt from disclosure under Exemption (b)(3), which permits the withholding of records specifically exempted from disclosure by another Federal statute. Section 114(r) of title 49, United States Code, exempts from disclosure SSI that “would be detrimental to the security of transportation” if disclosed. The TSA regulations implementing Section 114(r) are found in 49 CFR Part 1520. Exemption (b)(5) Exemption (b)(5) protects from disclosure those inter- or intra-agency documents that are normally privileged in the civil discovery context. The three most frequently invoked privileges are the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege. Of those, we have determined that some of the information in the documents you have requested is appropriately withheld under the deliberative process privilege. Under the deliberative process privilege, disclosure of those records would injure the quality of future agency decisions by discouraging the open and frank policy discussions between subordinates and superiors. Exemption (b)(6) Exemption (b)(6) permits the government to withhold all identifying information that applies to a particular individual when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy.” This requires the balancing of the public’s right to disclosure against the individual’s right to privacy. After performing this analysis, it was determined that the privacy interest in the identities of the individuals in the records you have requested outweigh any minimal public interest in disclosure of the information. Please note that any personal interest you may have in that information does not factor into the aforementioned balancing test. Exemption (b)(7)(C) Exemption (b)(7)(C) permits the government to withhold all law enforcement information when disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy” based upon the traditional recognition of strong privacy interests ordinarily appropriated in law enforcement records. As such, we have determined that the privacy interest in the identities of individuals in the records you have requested clearly outweighed any minimal public interest in 2
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disclosure of the information. Please note that any personal interest you may have in that information does not factor into this determination. Fees The fees incurred to process your request do not exceed the minimum threshold necessary for charge and, therefore, there are no fees associated with processing this request. Administrative Appeal As TSA’s response to this request is currently the subject of litigation the administrative appeal rights normally associated with a FOIA request response are not being provided. In an effort to maintain a more robust/efficient process to streamline reporting requirements, the TSA, through the Department of Homeland Security, converted to a new FOIA tracking system in October 2013. This modification has resulted in the inability to continue tracking requests with the tracking number assigned by the old system, and changed our naming convention. We are referencing both old and new tracking numbers in our response. I apologize for any confusion this may cause and appreciate your understanding. If you have any questions pertaining to your request, please feel free to contact the FOIA Office at 1866-364-2872 or locally at 571-227-2300. Sincerely,
Teri M. Miller or Amanda Deplitch Acting FOIA Branch Officers Enclosure
3
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EXHIBIT G to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 71 of 190
From: To: Cc: Subject: Date:
Sai McCoy, Regina Simon, Jeremy (USADC); FOIA Broken disc in 2013-TSPA-00339; missing video in 2013-TSPA-00368 Tuesday, October 21, 2014 7:33:46 PM
Dear TSA FOIA division Today, I received your package containing two discs, one labeled 2013-TSPA-00368 and one labeled 2013-TSPA-00339. The 368 one mounted successfully, and I was able to extract from it a 914 MB, h264 mpeg4 1280x960 .avi file about 49 minutes long, from one camera angle. I have begun reviewing it. However, there is only one camera angle shown, and that it does not cover any of the events before secondary screening table. Given that there were many cameras plainly visible at the airport (more than one of which pointed at the table, screening line, etc), I believe that there is more video of the incident available and which should be released to me — both of all events before the secondary screening, and other camera angles on the secondary screening. I clearly requested *all* video of the *entire* event, not a single camera angle of a part of it. Please provide me with either the remaining video; a sworn affidavit stating that there was never any other video and explaining why; or a sworn affidavit stating that there was other video but you failed to preserve it and explaining why.
The 339 disc arrived with a broken disc case and visible damage on both sides of the disc. I note that it was burned on a very poor quality disc, compared to the Verbatim DVD-R used for the 368 disc. I was able to force-mount it using system recovery tools and determine that it contains the main directories 030113 2C E-ELLISON 1 and 030113 2C E-ELLISON 2, and some of the filenames. The disc was, however, too badly damaged to recover any of the data beyond filenames. However, it was clear from the directory structure that the files were *not* in a normal format, such as .avi, .mov, .mpg, etc; there were Windows-only executable files and proprietary-format files. (Again, this is based only on the names; I was not able to recover the data due to physical damage to the disc in shipping, and even extracting the filenames required special software.) Please a) provide the 339 data in an open format that does *not* require a proprietary Windows-only player to read (e.g. as you did with the 368 video release), b) re-send the 339 data by mail in a more physically secure envelope (e.g. padded) that won't damage the disc, or (better) provide it to me via SFTP or similar electronic file transfer. Again, I can provide a
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 72 of 190 server I control to which you can upload data, and c) provide the remaining 368 video (or sworn affidavits) as above. Sincerely, - Sai
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EXHIBIT H to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 74 of 190 Sai v. TSA Civil Action No. 14-403-RDM (D.D.C.) Vaughn Index for the BOS Request (2013-TSPA-00368)
Bates Number(s)
Document Description
Pages Withheld
Exemption(s) Applied and Justification for Use
(b)(3) - detailed information regarding SPOT procedures, which constitutes SSI under 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.5(b)(9)(i).
001-002
TSA Office of Law Enforcement Incident Report for Incident 2013SPOTBOS154
2 pgs partially withheld
(b)(6) - name of local law enforcement officer that sheds no light on TSA operations (b)(7)(c) - name of local law enforcement officer in records compiled for law enforcement purposes that sheds no light on TSA operations
005-006
Transportation Security Operations Center (TSOC)
2 pgs
Incident Monitor Report for BOS Incident,
partially
1/21/2013
withheld
(b)(3) - information regarding Plaintiff's status with respect to the Terrorist Screening Center's No Fly and Selectee Lists, which constitutes SSI under 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.5(b)(9)(ii).
2 pgs 008-009
Database entries unrelated to Plaintiff's request
partially
Non-responsive to request
withheld (b)(3) - detailed information regarding SPOT procedures, which constitutes SSI under 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.5(b)(9)(i).
011-012
Incident Statement from Behavior Detection Officer Tricia Tonge-Riley
2 pgs partially withheld
(b)(6) - name of local law enforcement officer that sheds no light on TSA operations (b)(7)(c) - name of local law enforcement officer in records compiled for law enforcement purposes that sheds no light on TSA operations
1
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Bates Number(s)
Document Description
Pages Withheld
Exemption(s) Applied and Justification for Use
(b)(3) - detailed information regarding SPOT procedures, which constitutes SSI under 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.5(b)(9)(i). 013-014
Incident Statement from Behavior Detection Officer Shanna Kukla
2 pgs partially
(b)(6) - names of local law enforcement officers that shed no light on TSA operations
withheld (b)(7)(c) - names of local law enforcement officer in records compiled for law enforcement purposes that shed no light on TSA operations
017, 020-021, 023
Email between TSA employees with a copy of a
4 pgs
complaint written by Plaintiff regarding the BOS
partially
incident on 1/21/2013 pasted into body of email
withheld
030-061, 066, 095110, 112-113, 115-
TSA Contact Center (TCC) Records of Complaints
118, 120-124, 128,
from centralized database
130, 142-148
70 pgs partially withheld
b)(6) - name of local law enforcement officer that sheds no light on TSA operations (b)(7)(c) - name of local law enforcement officer in records compiled for law enforcement purposes that sheds no light on TSA operations
(b)(6) - aviation passengers' personal information (including names, email addresses, and phone numbers) that sheds no light on TSA operations
(b)(3) - detailed information regarding performance specifications for the checkpoint security screening of prohibited liquids, which constitutes SSI under 49 U.S.C. § 149
TCC Records of Complaints from centralized
1 pg partially
database
withheld
114(r) and 49 C.F.R. § 1520.5(b)(4)(i). (b)(6) - aviation passengers' personal information (including phone numbers) that sheds no light on TSA operations
BOS Request 2013-TSPA-00368
2
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 76 of 190
Bates Number(s)
150-151
Document Description
TCC Records of Complaints from centralized database
Pages Withheld
2 pgs partially withheld
Exemption(s) Applied and Justification for Use
(b)(6) - aviation passengers' personal information (including phone numbers) that sheds no light on TSA operations
(b)(5) - Deliberative process: internal agency discussions regarding how to handle complaint prior to final determination by the agency and reflecting open dialogue 152
TCC Records of Complaints from centralized
1 pg partially
database
withheld
between program offices about available options for agency action (b)(6) - aviation passengers' personal information (including phone numbers) that sheds no light on TSA operations (b)(5) - Deliberative process: internal agency discussions regarding how to handle complaint prior to final determination by the agency and reflecting open dialogue
155
TCC Records of Complaints from centralized
1 pg partially
database
withheld
between program offices about available options for agency action (b)(6) - aviation passenger's personal information (including name, phone number, street, and email address) that sheds no light on TSA operations
156
173-188
BOS Request 2013-TSPA-00368
TCC Records of Complaints from centralized
1 pg partially
(b)(6) - aviation passenger's personal information (including name, phone number,
database
withheld
street, and email address) that sheds no light on TSA operations
TCC Records of Complaints from centralized database
16 pgs partially withheld
(b)(6) - aviation passengers' personal information (including email addresses) that sheds no light on TSA operations
3
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EXHIBIT I to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 78 of 190
From: To: Cc: Subject: Date:
Sotoudeh, Paul Lewis, Geraldine ; Gearing, Paul Pineiro, Aeron New FOIA request Friday, February 22, 2013 11:18:47 AM
Folks, Sai has agreed to submit this as a new request since we have already begun search on his old one. So please enter this into the system and set it up for triage. The requester and contact information will be the same as that used for 13-0414.
Paul Sotoudeh Freedom of Information Act Office Transportation Security Administration (571) 227-
-----Original Message----On Behalf Of Sai From Sent: Friday, February 22, 2013 10:55 AM To: Sotoudeh, Paul Subject: Re: Your phone message regarding your FOIA request (13-0375) > Can you please add this to my request? > > * any contract/agreement with other agencies regarding surveillance, > or maintenance of surveillance footage, at Logan airport > > That's fairly specific, and shouldn't require an unreasonable search. > > Thanks, > - Sai
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EXHIBIT J to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 80 of 190
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 81 of 190
EXHIBIT K to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 82 of 190
From: To: Cc: Subject: Date:
Sai McCoy, Regina Simon, Jeremy (USADC) Re: TSA FOIA Request 2013-TSFO-01096 Friday, August 08, 2014 11:13:12 PM
Regina Thanks again for providing the document I requested. As a preliminary response: 1. Pages 9 and 10 are completely illegible. Please provide high quality copies. Also, please note my previous request for *digital* copies, not scans, as this is clearly an originally digital document with the possible exception of the signature pages. 2. Please confirm that there is no other contract between Massport (or other Logan airport entity) and TSA (or other DHS component) having to do with video surveillance of TSA checkpoints, and that the documents you provided reflect the latest versions of such contract(s). Sincerely, Sai
On Fri, Aug 8, 2014 at 8:51 PM, McCoy, Regina wrote: > Sai – > > > > Attached please find a copy of the final release letter and release > documents. Should you have any difficulties opening the attachments please > let me know.
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EXHIBIT L to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 84 of 190
From: To: Cc: Subject: Date: Attachments:
Sotoudeh, Paul Pineiro, Aeron FW: FOIA / Privacy Act / evidence preservation letter re. SFO TSA incident Friday, March 15, 2013 9:48:29 AM SFO & TSA - FOIA, Privacy Act, & evidence preservation demand.pdf
Please enter this into our system as a new FOIA request. Thanks.
Paul Sotoudeh Freedom of Information Act Office Transportation Security Administration (571) 227
-----Original Message----From: On Behalf Of Sai Sent: Friday, March 15, 2013 2:50 AM To: Sotoudeh, Paul Subject: FOIA / Privacy Act / evidence preservation letter re. SFO TSA incident Paul Please see attached, related to yet another case of TSA agents violating policy. Regarding the other FOIA we discussed earlier, I am still working on creating the request, but it'll be coming soon. Sincerely, Sai
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EXHIBIT M to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 89 of 190
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 90 of 190
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EXHIBIT N to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 93 of 190
Your request is being processed pursuant to the FOIA and Privacy Act (PA), 5 U.S.C. § 552 and 5 U.S.C. § 552(a), respectively. A reasonable search within the relevant offices of the TSA was conducted and responsive information was located. Two videos from the San Francisco International Airport and 72 pages of documents have been reviewed and are being released to you in full. The two videos are being sent via mail to you at With respect to Item 6, there are no responsive records as TSA’s checkpoint screening process does not require retention of x-ray images or automated notes related to the images. Also, a review of the incident report and witness statements associated with your checkpoint experience also fail to mention x-ray images of your baggage. With respect to Item 7, you were advised by letter dated March 25, 2013 that the portion of your request for “any and all records related to me held by any Relevant Parties” was overly broad and requested to provide a reasonable description of the records you were seeking in order for us to conduct a search for the documents. Pursuant to Department of Homeland Security regulations (6 CFR § 5.3(b)), requests should include specific information about each record sought, such as the date, title or name, author, recipients, and subject matter of the records, if known, or the DHS component or office you believe created and/or controls the record. As of this date we have not received this information from you and will initiate a search for records once it is received.
The FOIA Branch continues to process this request and will make additional releases to you in a timely manner. Fees There are no fees associated with the processing of your request. Administrative Appeal As TSA’s response to this request is currently the subject of litigation the administrative appeal rights normally associated with a FOIA request response are not being provided. If you have any questions pertaining to your request, please feel free to contact the FOIA Branch at 1-866-364-2872 or locally at 571-227-2300. Sincerely,
Teri M. Miller or Amanda Deplitch Acting FOIA Branch Officers Enclosures
2
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EXHIBIT O to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 95 of 190
From: To: Cc: Subject: Date:
Sai McCoy, Regina Simon, Jeremy (USADC) Re: 2013-TSPA-00339 Interim Release Friday, August 08, 2014 7:38:42 PM
Regina Again, thank you for your preliminary provision of records responsive to my request. As a preliminary response to your letter and documents re. 2013-TSPA-00339: 1. Could you please tell me whether the two videos you have sent to me are identical to the following, which were previously released to me by San Francisco — and if not, approximately how they are different? https://www.youtube.com/watch?v=Ix_Ilm7O2vg https://www.youtube.com/watch?v=ObZ1eMeZyh0 2. On pt 1, p. 1, "records request date" reads "06/26/14". Please explain why it is dated as such, rather than 2013-03-07 or 2013-03-15 (when the request was sent and received, per your letter). 3. Pt 1, p 3 states that you did not conduct a search for email records. However, a large proportion of the responsive documents are in fact email records. Please make a reasonable search of email records based on the leads provided in the responsive email documents. As one example, an email from Nancy Coliz to Zachary Hollenbach (pt 1, p 29) refers to a conversation between Zachary Hollenbach and Audrey Deane. There is however no record provided of that conversation, or previous communication about the matter, though clearly there was some. As a second example, SFO TSA Training Manager Susie Foster's email (pt 1 p 33), dated 2013-04-05, disseminated retraining documents. This was one day after I appeared on Right This Minute, which is a clear causal connection. Conversations I had with SFO TSA / CAS personnel specifically confirmed that the retraining was prompted by my appearance on RTM. Please include both of these leads in your search, and tell me what specific queries you have made (e.g. the "search parameters", pt 1, p 2-4). 4. Pt 1, p 3 states that there was one responsive file in the office central filing system under complaints, and is attached. Please tell me what page number(s) this refers to, and whether any of that file is not included in the documents you gave me. 5. Pt. 1, p 33 & 34 say that the emails contained attachments and included other documents by reference: a document of medically exempt liquids scenarios and a National Shift Brief for CAS TSOs. Please provide these documents to me.
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 96 of 190
6. TSM Smith's statement (pt 1, p 1) states that he spoke with (Acting) FSD Jim Adams, who ordered that my medical liquids would "not be allowed to proceed". However, there are no records provided from FSD Adams relating to this incident. Please conduct a search of and provide such records. 7. I requested all records relating to complaints against named personnel. I know that David Smith is no longer employed by SFO TSA, and that his change of employment occurred soon after my appearance on Right This Minute. The records you provided do not include any mention of this. If his change in employment was in any way related to my complaint, or there was any related investigation, disciplinary action, or the like, please provide all related documents (or at least a Vaughn index thereof). 8. Pt 2, p 33 says that part of my request was completed on 2013-12-24. However, no records were given to me at the time. Please explain why. Sincerely, - Sai On Fri, Aug 8, 2014 at 9:55 PM, Sai wrote: > Regina > > I have received three emails from you, regarding 2013-TSFO-01096, > 2013-TSPA-00368, and 2013-TSFO-01096. > > First off, I want to thank you for providing the documents that you have so far. > > I will respond on the substance of your responses soon, but there are > three things I'd like to raise immediately: > > 1. I am no longer employed by Lookout, and do not use any California > address. Please direct any mail to my Delaware address, addressed only > to me. > > > 2. Some of the records you have provided are scans of handwritten > notes. That is fine. > > Some, however, appear to be scans of documents that were originally > digital, but were printed, annotated or redacted by hand in response > to my FOIA/PA request, and then scanned. Per 5 USC 552(a)(3)(B) and > equivalently under the Privacy Act, I requested that any originally > digital documents be provided to me in digital form — i.e. with text > fully copy/pasteable and redactions made digitally. > > For those documents that you have provided so far (or will provide in > the future) that were originally digital, I ask that you please > provide them in the format I requested. > > Also, some of the scans that you have provided are of very low image > resolution, such that they are difficult to read. I would appreciate
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 97 of 190 > if you could provide higher quality scans. > > > 3. The response to 2013-TSPA-00368 contains images of my photo > identification, as well as multiple references (including > misspellings) to my former name (which I am not stating in this email > so that the email itself need not be redacted should it come up). > > I consider both to be "private facts"; my former name is a matter that > is, for personal reasons, highly private. I would be seriously > offended by its publication. > > Although I appreciate their release to me, I must ask that you agree > to redact all instances of my former name (misspelled or otherwise) > and all identification documents in any submission to a court and in > any public release of documents whatsoever. > > In particular, in accordance with 5 USC § 552a(d)(2)(B)(i), I assert > that my former name is not relevant, accurate, or timely, and > therefore I ask that, after confirming with me that I have received an > adequate copy of the records you hold which mention it (per item #2 > above), you redact all mentions of that name, misspelled or otherwise, > from those records. > > Sincerely, > Sai > > On Fri, Aug 8, 2014 at 8:55 PM, McCoy, Regina >> Sai – >> >> >> >> Attached please find an interim release letter and two files containing >> release documents. Should you have any problems opening any of the >> attachments please let me know.
wrote:
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EXHIBIT P to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 99 of 190
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 100 of 190
Your request was received by the FOIA Branch on March 15, 2013. On August 8, 2014, an interim release consisting of 72 pages and two videos was made to you. In the accompanying correspondence you were advised that there were no responsive records for Item 6 of your request and that Item 7 was overly broad and we would need a reasonable description of the records requested in order to conduct a search. You were further advised that we would continue to process this request. We have completed the processing of your request pursuant to the FOIA, 5 U.S.C. § 522, and the Privacy Act, 5 U.S.C. § 552a. Five hundred and thirty-nine additional pages have been located and processed for release to you. These documents have been reviewed and 112 pages are being withheld in full pursuant to FOIA Exemption (b)(5). The remaining 427 pages are being released with redactions taken on some of the pages pursuant to Exemptions (b)(2), (b)(5), and (b)(6). A more complete explanation of these exemptions is provided below. This release constitutes the final release of responsive records for this request. Exemption (b)(2) Exemption (b)(2) exempts from mandatory disclosure records that are “related solely to the internal personnel rules and practices of an agency.” We have determined that certain portions of the requested records contain personnel rules and/or internal practices of the TSA and are thus properly withheld from disclosure under this exemption. Exemption (b)(5) Exemption (b)(5) protects from disclosure those inter- or intra-agency documents that are normally privileged in the civil discovery context. The three most frequently invoked privileges are the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege. Of those, we have determined that some of the information in the documents you have requested is appropriately withheld under two of the privileges. Under the deliberative process privilege, disclosure of those records would injure the quality of future agency decisions by discouraging the open and frank policy discussions between subordinates and superiors. Information is also being withheld under the attorney-client privilege. This part of Exemption 5 protects the communications between an attorney and his/her client relating to a matter for which the client has sought legal advice, as well as to protect facts divulged by client to attorney and any opinions given by attorney based on these facts. Exemption (b)(6) Exemption (b)(6) permits the government to withhold all identifying information that applies to a particular individual when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy.” This requires the balancing of the public’s right to disclosure against the individual’s right to privacy. After performing this analysis, it was determined that the privacy interest in the identities of the individuals in the records you have requested outweigh any minimal public interest in disclosure of the information. Please note that any personal interest you may have in that information does not factor into the aforementioned balancing test.
2
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 101 of 190
Fees There are no fees associated with the processing of your request. Administrative Appeal As TSA’s response to this request is currently the subject of litigation the administrative appeal rights normally associated with a FOIA request response are not being provided. If you have any questions pertaining to your request, please feel free to contact the FOIA Branch at 1-866-364-2872 or locally at 571-227-2300. Sincerely,
Teri M. Miller or Amanda Deplitch Acting FOIA Branch Officers Enclosures
3
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 102 of 190
EXHIBIT Q to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 103 of 190 Sai v. TSA Civil Action No. 14-403-RDM (D.D.C.) Vaughn Index for the SFO Request (2013-TSPA-00339)
Bates Number(s)
Document Description
Pages
Exemption(s) Applied and Justification for Use
Withheld
Draft Determination Letter from TSA Office of Civil 073-078
Rights & Liberties, Ombudsman and Traveler
6 pgs
Engagement in response to Plaintiff's Section 504
withheld in
administrative complaint related to incident at San
full
(b)(5) - Deliberative process: predecisional proposed agency action on prospective administrative determination
Francisco International Airport (SFO incident) Draft Determination Letter from TSA Office of Civil Rights & Liberties, Ombudsman and Traveler 098-105
Engagement in response to Plaintiff's Section 504 administrative complaint related to incident at Boston Logan International Airport (BOS
8 pgs withheld in full
(b)(5) - Deliberative process: predecisional proposed agency action on prospective administrative determination
incident) Email between Disability Branch employees 106
pertaining to handling of Plaintiff's Section 504 administrative complaint Email attachment containing questions from
108-112
Disability Branch employee to TSA field personnel regarding subject of Plaintiff's Section 504 administrative complaint related to BOS incident
113
(b)(5) - Deliberative process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
5 pgs withheld in full
(b)(5) - Deliberative process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
Email between contract employee and TSA
1 pg partially
(b)(6) - email addresses of TSA contract employees that shed no light on agency
employee regarding Plaintiff's claims
withheld
operations
Email attachment containing responses from TSA 128-129
1 pg partially
field personnel to Disability Branch employee regarding subject of Plaintiff's Section 504 administrative complaint related to BOS incident
2 pgs withheld in full
(b)(5) - Deliberative process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
1
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 104 of 190
Bates Number(s)
Document Description
Pages Withheld
Exemption(s) Applied and Justification for Use
Email from agency counsel to Disability Branch 130
employee reflecting attorney's opinions regarding
1 pg partially
(b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions
handling of Plaintiff's Section 504 administrative
withheld
regarding prospective agency action on pending administrative complaint
complaint (b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions regarding prospective agency action on pending administrative complaint Email between agency counsel and Disability 131
Branch employees sharing predecisional opinions
1 pg partially
and seeking input regarding handling of Plaintiff's
withheld
Section 504 administrative complaint
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client offices in which client is seeking legal advice and agency counsel is providing legal opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
(b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions
Email from agency counsel to Disability Branch 133
employee reflecting attorney's opinions regarding
1 pg partially
handling of Plaintiff's Section 504 administrative
withheld
complaint
2013-TSPA-00339
regarding prospective agency action on pending administrative complaint (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
2
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 105 of 190
Bates Number(s)
Document Description
Pages Withheld
Exemption(s) Applied and Justification for Use
(b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions regarding prospective agency action on pending administrative complaint Email between agency counsel and Disability 134
Branch employees sharing predecisional opinions
1 pg partially
and seeking input regarding handling of Plaintiff's
withheld
Section 504 administrative complaint
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client offices in which client is seeking legal advice and agency counsel is providing legal opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
Email between Disability Branch employees 135
pertaining to handling of Plaintiff's Section 504 administrative complaint
Email between Disability Branch employees 136
pertaining to handling of Plaintiff's Section 504 administrative complaint Email between Disability Branch employees
141
pertaining to handling of Plaintiff's Section 504 administrative complaint
2013-TSPA-00339
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective 1 pg partially
agency action on pending administrative complaint
withheld (b)(6) - personal information of TSA employee
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
3
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 106 of 190
Bates Number(s)
Document Description
Draft Letter from TSA Office of Civil Rights & 142-144
Liberties, Ombudsman and Traveler Engagement to Plaintiff regarding his Section 504 administrative complaints related to the BOS and SFO incidents Email between Disability Branch employee and
145
TSA paralegal regarding Plaintiff's claim for damages Email between Disability Branch employees
154
pertaining to handling of Plaintiff's Section 504 administrative complaint
Pages
Exemption(s) Applied and Justification for Use
Withheld
3 pgs withheld in full
(b)(5) - Deliberative process: predecisional proposed agency action on prospective administrative determination
1 pg partially
(b)(3) - password, which constitutes SSI under 49 U.S.C. § 114(r) and 49 C.F.R. §
withheld
1520.5(b)(8)(i).
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
Draft Determination Letter from TSA Office of Civil 155-161
Rights & Liberties, Ombudsman and Traveler
7 pgs
Engagement to Plaintiff regarding his Section 504
withheld in
administrative complaint related to the SFO
full
(b)(5) - Deliberative process: predecisional proposed agency action on prospective administrative determination
incident Email between Disability Branch employees 162-163
pertaining to handling of Plaintiff's Section 504 administrative complaint Email between Disability Branch employees
166-168
pertaining to handling of Plaintiff's Section 504 administrative complaint
2 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
2 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
Draft Determination Letter from TSA Office of Civil 169-176
Rights & Liberties, Ombudsman and Traveler
8 pgs
Engagement to Plaintiff regarding his Section 504
withheld in
administrative complaint related to the BOS
full
(b)(5) - Deliberative process: predecisional proposed agency action on prospective administrative determination
incident
2013-TSPA-00339
4
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 107 of 190
Bates Number(s)
177-179
Document Description
Pages Withheld
Email between Disability Branch employees
3 pgs
pertaining to handling of Plaintiff's Section 504
partially
administrative complaint
withheld
Exemption(s) Applied and Justification for Use
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint (b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions regarding prospective agency action on pending administrative complaint (b)(5) - Attorney-Client Privilege: communications between agency counsel and client
Email between agency counsel and Disability 181
offices in which client is seeking legal advice and agency counsel is providing legal
Branch employees sharing predecisional opinions
1 pg partially
and seeking input regarding handling of Plaintiff's
withheld
Section 504 administrative complaint
opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint (b)(6) - email address and phone number (last four digits) of TSA employee that sheds no light on agency operations (b)(5) - Attorney-Client Privilege: communications between agency counsel and client
Email between agency counsel and Disability 182
Branch employees sharing predecisional opinions and seeking input regarding handling of Plaintiff's Section 504 administrative complaint
2 pgs partially withheld
offices in which client is seeking legal advice and agency counsel is providing legal opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
Draft Letters from Office of Civil Rights & 183-198
Liberties, Ombudsman and Traveler Engagement to Plaintiff regarding his Section 504 Administrative complaints related to the BOS and SFO incidents
2013-TSPA-00339
16 pgs withheld in full
(b)(5) - Deliberative process: predecisional proposed agency action on prospective administrative determination
5
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 108 of 190
Bates Number(s)
Document Description
Pages
Exemption(s) Applied and Justification for Use
Withheld
(b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions regarding prospective agency action on pending administrative complaint Email between agency counsel and Disability 199
Branch employees sharing predecisional opinions
1 pg partially
and seeking input regarding handling of Plaintiff's
withheld
Section 504 administrative complaint
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client offices in which client is seeking legal advice and agency counsel is providing legal opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
Email between Disability Branch employees 203
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
Email between Disability Branch employee and
1 pg partially
(b)(6) - email addresses of TSA contract employees that shed no light on agency
TSA field personnel regarding Plaintiff's claims
withheld
operations
Email between Disability Branch employee and
1 pg partially
TSA field personnel regarding Plaintiff's claims
withheld
pertaining to handling of Plaintiff's Section 504 administrative complaint
211
214
Email attachment containing responses from TSA 216-217
field personnel to Disability Branch employee regarding subject of Plaintiff's Section 504 administrative complaint related to BOS incident
2013-TSPA-00339
2 pgs withheld in full
(b)(6) - personal information of TSA employee
(b)(5) - Deliberative process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
6
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 109 of 190
Bates Number(s)
Document Description
Email attachment containing responses from TSA 221-223
field personnel to Disability Branch employee regarding subject of Plaintiff's Section 504 administrative complaint related to BOS incident Email between Disability Branch employees
238
pertaining to handling of Plaintiff's Section 504 administrative complaints
Pages Withheld
3 pgs withheld in full
Exemption(s) Applied and Justification for Use
(b)(5) - Deliberative process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client offices in which client is seeking legal advice and agency counsel is providing legal
Email between agency counsel and Disability 250
Branch employees sharing predecisional opinions
1 pg partially
and seeking input regarding handling of Plaintiff's
withheld
opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
Section 504 administrative complaints
agency action on pending administrative complaint
254
Email between Disability Branch employee and
1 pg partially
TSA field personnel regarding Plaintiff's claims
withheld
(b)(6) - email addresses of TSA contract employees
Email between Disability Branch Manager and 258-260
CRL-OTE Assistant Administrator regarding
3 pgs
backlog of 504 complaints, including discussion of
partially
the investigation into and determination regarding
withheld
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending Section 504 administrative complaints
Plaintiff's administrative complaint
2013-TSPA-00339
7
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 110 of 190
Bates Number(s)
Document Description
Pages Withheld
Exemption(s) Applied and Justification for Use
Email from agency counsel to Disability Branch 262
employee reflecting attorney's opinions regarding
1 pg partially
(b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions
handling of Plaintiff's Section 504 administrative
withheld
regarding prospective agency action on pending administrative complaint
complaint
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client
Email between agency counsel and Disability 263
Branch employee sharing predecisional opinions
1 pg
and seeking input on draft language regarding the
withheld in
handling of Plaintiff's Section 504 administrative
full
complaints
264
offices in which client is seeking legal advice and agency counsel is providing legal opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
Email between Disability Branch employee and
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
TSA field personnel regarding Plaintiff's claims
withheld
agency action on pending administrative complaint
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client Email between agency counsel and Disability 266-267
Branch employees sharing predecisional opinions and seeking input regarding handling of Plaintiff's Section 504 administrative complaints
2 pgs partially withheld
offices in which client is seeking legal advice and agency counsel is providing legal opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
2013-TSPA-00339
8
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 111 of 190
Bates Number(s)
269
271
Document Description
Pages
Exemption(s) Applied and Justification for Use
Withheld
Email between Disability Branch employee and
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
TSA field personnel regarding Plaintiff's claims
withheld
agency action on pending administrative complaint
Email attachment pertaining to Medically Exempt
1 pg withheld
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
Scenarios
in full
agency action on medically exempt liquids policy
CRL-OTE employee regarding discussion of the
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
handling of Plaintiff's Section 504 administrative
withheld
agency action on pending administrative complaint
Email between TSA employee and TSA contract
1 pg partially
(b)(6) - email addresses of TSA contract employees that shed no light on agency
employee regarding Plaintiff's claims
withheld
operations
Email between Disability Branch Manager and 274
complaint
279
281-282
284
286-287
2013-TSPA-00339
Emails between Disability Branch employee and TSA field personnel regarding Plaintiff's claims
2 pgs partially withheld
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
Email between TSA employee and TSA contract
1 pg partially
(b)(6) - email addresses of TSA contract employees that shed no light on agency
employee regarding Plaintiff's claims
withheld
operations
Emails between Disability Branch employee and TSA field personnel regarding Plaintiff's claims
2 pgs partially withheld
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
9
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 112 of 190
Bates Number(s)
Document Description
Pages Withheld
Exemption(s) Applied and Justification for Use
7 pgs 293-300
Emails between Disability Branch employees
partially
pertaining to handling of Plaintiff's Section 504
withheld; 1
administrative complaint
pg withheld
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
in full
Emails between Disability Branch employees 377
pertaining to handling of Plaintiff's Section 504 administrative complaints
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
(b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions regarding prospective agency action on pending administrative complaint Emails between agency counsel and Disability 391
Branch employees sharing predecisional opinions
1 pg partially
and seeking input regarding handling of Plaintiff's
withheld
Section 504 administrative complaints
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client offices in which client is seeking legal advice and agency counsel is providing legal opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
Email between Disability Branch employee and 415
TSA operational employee regarding Plaintiff's claims
2013-TSPA-00339
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
10
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 113 of 190
Bates Number(s)
Document Description
Pages
Exemption(s) Applied and Justification for Use
Withheld
(b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions regarding prospective agency action on pending administrative complaint Email between agency counsel and Disability 419-420
Branch employees sharing predecisional opinions and seeking input regarding handling of Plaintiff's Section 504 administrative complaints
2 pgs
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client
partially
offices in which client is seeking legal advice and agency counsel is providing legal
withheld
opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
Email between Disability Branch employee and 422
OCC paralegal regarding Plaintiff's claim for damages
Email between Disability Branch employees 424
pertaining to handling of Section 504 administrative complaints, including Plaintiff's
Email attachment containing responses from TSA 425-427
field personnel to Disability Branch employee regarding subject of Plaintiff's Section 504 administrative complaint related to BOS incident
2013-TSPA-00339
1 pg partially
(b)(3) - password, which constitutes SSI under 49 U.S.C. § 114(r) and 49 C.F.R. §
withheld
1520.5(b)(8)(i).
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective 1 pg partially
agency action on pending administrative complaint
withheld (b)(6) - names and personal information of other TSA complainants
3 pgs withheld in full
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
11
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 114 of 190
Bates Number(s)
Document Description
Pages Withheld
Exemption(s) Applied and Justification for Use
(b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions regarding prospective agency action on pending administrative complaint Emails between agency counsel and Disability 428
Branch employees sharing predecisional opinions
1 pg partially
and seeking input regarding handling of Plaintiff's
withheld
Section 504 administrative complaints
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client offices in which client is seeking legal advice and agency counsel is providing legal opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
(b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions regarding agency action on pending agency action
Email between agency counsel and Disability Branch employees, as well as between Disability 430-433
Branch employees, sharing predecisional opinions and seeking input regarding investigation into and determination on Plaintiff's Section 504 administrative complaints
4 pgs
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client
partially
offices in which client is seeking legal advice or agency counsel is providing legal
withheld
opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint alleging discrimination
2013-TSPA-00339
12
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 115 of 190
Bates Number(s)
Document Description
Pages Withheld
Exemption(s) Applied and Justification for Use
(b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions regarding agency action on pending agency action Email between agency counsel and Disability Branch employees sharing predecisional opinions 434
and seeking input regarding handling of Section 504 administrative complaints, including
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client 1 pg partially withheld
Plaintiff's
offices in which client is seeking legal advice or agency counsel is providing legal opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint alleging discrimination (b)(6) - name of other TSA complainant
(b)(5) - Attorney Work-Product: agency counsel opinion and mental impressions regarding agency action on pending agency action
438, 440, 442, 453
Emails from agency counsel to Disability Branch
4 pgs
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client
employee reflecting attorney's opinions regarding
partially
offices in which client is seeking legal advice or agency counsel is providing legal
Plaintiff's administrative action
withheld
opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint alleging discrimination
2013-TSPA-00339
13
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 116 of 190
Bates Number(s)
Document Description
Email from Disability Branch employee to agency 457
counsel regarding Section 504 administrative complaints, including Plaintiff's
Pages
Exemption(s) Applied and Justification for Use
Withheld
1 pg partially withheld
(b)(6) - names of other TSA complainants
2 pgs 466-467
Disability Branch Complaints Records
partially
(b)(6) - names of other TSA complainants
withheld Email from Disability Branch employee to DHS 472
Civil Rights and Liberties employees regarding weekly 504 complaint report
1 pg partially withheld
(b)(6) - names of other TSA complainants (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action
Email among Disability Branch employees 474
regarding Section 504 administrative complaints, including Plaintiffs
1 pg partially withheld
(b)(6) - names of other TSA complainants Non-responsive - discussions of handling of administrative complaints brought by indiviudals other than Plaintiff
475, 477
481
Email between Disability Branch employees
2 pgs
pertaining to handling of Plaintiff's Section 504
partially
administrative complaints
withheld
Email from Disability Branch employee to himself
1 pg partially withheld
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action
(b)(6) - TSA emplyee's email address that sheds no light on agency operations
Drafts of Determination Letter from TSA Office of 482-506
Civil Rights & Liberties, Ombudsman and Traveler
25 pgs
Engagement to Plaintiff regarding Section 504
withheld in
administrative complaint relating to the BOS
full
(b)(5) - Deliberative process: predecisional proposed agency action on prospective administrative determination
incident
2013-TSPA-00339
14
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 117 of 190
Bates Number(s)
Document Description
Drafts of questions written by Disability Branch 507-511
employee for TSA field personnel regarding subject of Plaintiff's Section 504 administrative complaint related to BOS incident Email between Disability Branch employees
512
Pages
Exemption(s) Applied and Justification for Use
Withheld
5 pgs withheld in full
(b)(5) - Deliberative process: predecisional proposed agency action on prospective administrative determination
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action
to TSA Office of Legislative Affairs regarding
1 pg partially
(b)(6) - Congressional employee's email address and phone number
constituent's complaints
withheld
pertaining to handling of Plaintiff's Section 504 administrative complaint Email from Congresswoman Nancy Pelosi's office
520
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client offices in which client is seeking legal advice or agency counsel is providing legal 522
Draft letter from Disability Branch to Plaintiff
1 pg withheld
regarding informal resolution process
in full
opinions based on facts provided by the client (b)(5) - Deliberative process: predecisional proposed agency action on prospective administrative determination
Email between Disability Branch employees 523
pertaining to handling of Plaintiff's Section 504 administrative complaint
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action
Draft Determination Letter from TSA Office of Civil Rights & Liberties, Ombudsman and Traveler 524-529
2013-TSPA-00339
Engagement to Plaintiff regarding Section 504
6 pgs
administrative complaint relating to the SFO
withheld in
incident
full
(b)(5) - Deliberative process: predecisional proposed agency action on prospective administrative determination
15
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 118 of 190
Bates Number(s)
Document Description
Pages Withheld
Exemption(s) Applied and Justification for Use
Draft Determination Letter from TSA Office of Civil Rights & Liberties, Ombudsman and Traveler 531-535
Engagement to Plaintiff regarding Section 504
5 pgs
administrative complaint relating to the BOS
withheld in
incident
full
(b)(5) - Deliberative process: predecisional proposed agency action on prospective administrative determination
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client offices in which client is seeking legal advice and agency counsel is providing legal
Email between agency counsel and Disability 536
Branch employees sharing predecisional opinions
1 pg partially
and seeking input regarding handling of
withheld
opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
administrative complaint
agency action on pending administrative complaint
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client
Email attachment containing responses from TSA field personnel to Disability Branch employee 537-539
regarding subject of Plaintiff's Section 504 administrative complaint related to the BOS incident with additional predecisional notes from
3 pgs withheld in full
2013-TSPA-00339
Draft letter from TSA Office of Legislative Affairs to 1 pg withheld Congresswoman Nancy Pelosi's office
opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
Disability Branch employee to agency counsel
541
offices in which client is seeking legal advice and agency counsel is providing legal
in full
(b)(5) - Deliberative process: proposed draft of agency response
16
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Bates Number(s)
Document Description
Email between Disability Branch employees 542
pertaining to handling of Plaintiff's Section 504 administrative complaints
Pages
Exemption(s) Applied and Justification for Use
Withheld
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client offices in which client is seeking legal advice and agency counsel is providing legal
Email between agency counsel and Disability 543
Branch employees sharing predecisional opinions
1 pg partially
and seeking input regarding handling of Plaintiff's
withheld
opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
Section 504 administrative complaints
agency action on pending administrative complaint
544
Email between Disability Branch employee and
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
TSA field personnel regarding Plaintiff's claims
withheld
agency action
1 pg partially
(b)(5) - Deliberative Process: internal predecisional discussions regarding prospective
withheld
agency action on pending administrative complaint
Email between Disability Branch employees 545
pertaining to handling of Plaintiff's Section 504 administrative complaint
2013-TSPA-00339
17
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Bates Number(s)
Document Description
Pages Withheld
Exemption(s) Applied and Justification for Use
(b)(5) - Attorney-Client Privilege: communications between agency counsel and client Email between agency counsel and Disability 546
offices in which client is seeking legal advice and agency counsel is providing legal
Branch employees sharing predecisional opinions
1 pg partially
and seeking input regarding handling of Plaintiff's
withheld
Section 504 administrative complaint
opinions based on facts provided by the client (b)(5) - Deliberative Process: internal predecisional discussions regarding prospective agency action on pending administrative complaint
550
Email from Disability Branch employee to himself Email from Disability Branch employee to DHS
552
Civil Rights and Liberties employees regarding weekly Section 504 complaint report
553-557, 568-569, 571, 573-574, 582585
2013-TSPA-00339
1 pg partially withheld 1 pg partially withheld
(b)(6) - names of other TSA complainants
(b)(6) - names of other TSA complainants
14 pgs Record Log of Complaints at SFO
partially
(b)(6) - personal information of other TSA complainants
withheld
18
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EXHIBIT R to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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2013-TSPA-00339
145_a
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2013-TSPA-00339
422_a
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EXHIBIT S to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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EXHIBIT T to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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EXHIBIT U to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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b. the TSA’s policy regarding the use of electronic strip search machines (such as backscatter x-ray or millimeter wave machines) as primary screening devices; c. the TSA’s policy regarding informing the public of their right to refuse electronic strip search, and regarding TSA agents deliberately blocking walkthrough metal detectors (WTMDs) or otherwise giving the impression to travelers that WTMDs are not a permissible screening method or that electronic strip search is mandatory; d. the TSA’s “selectee” policy, including its policy for choosing which passengers are subject to increased screening, pat-downs, electronic strip search, or any other screening method other than walking through a metal detector or putting one’s bags through an x-ray machine; e. the TSA’s policy regarding manual search of bags that have been screened by x-ray, including the limits of any such search and what events may justify such search; and f. the TSA’s policy regarding any kind of search not strictly limited to the search for weapons or explosives, including: i. any demand for identification at any point during a screening process, and whether such demand can be refused by travelers wishing to travel without identification; ii. any search of travelers’ documents; and iii. any search by TSA agents motivated by law enforcement purposes, such as a search for illegal substances that are not weapons or explosives (such as drugs), large amounts of cash, multiple forms of identification, etc.; 3. the TSA’s policies regarding the treatment of passengers with disabilities, both now and at any point in the past, including: a. all documents having to do with the screening or confiscation of liquids, medical or otherwise; b. legal justification for confiscating or prohibiting liquids that are not declared as medical, but would be permissible if they were, and could be adequately screened using available technology (e.g. x-ray scanners and explosive trace detection machines); c. legal justification for requiring nonmedical liquids to be carried in 3 ounce containers, including specific information about what threats might arise from larger liquid containers; d. legal justification for permitting a traveler to carry e.g. a quart of liquid separated into 3 ounce containers together with an empty quart-sized container, but not a quart-sized container of liquid; e. a list or description of what kinds of liquids can or cannot be definitively determined to be hazardous vs nonhazardous by extant screening technology (xray, ETD, LCS); f. the TSA’s policy regarding whether the TSA considers water, juice, ginger ale, or similar liquids to be permissible medical liquids that may be carried in any quantity;
2
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g. the TSA’s policy regarding whether the TSA permits any TSA agent to require passengers to provide a prescription for declared medical liquids such as juice; h. the TSA’s policy regarding passengers who refuse to provide any information about their medical condition whatsoever (including e.g. a description of their medical condition; an explanation for why a liquid is medically necessary for them; a doctor’s note or prescription; etc.) but declare an item as medical; i. the TSA’s policy regarding providing assistance to passengers with communication related disabilities, specifically including deafness, mutism, or limited knowledge of English; and j. the TSA’s policy regarding access to communication aids, such as hearing aids, pen & paper, computers, phones, documents, interpreters/translators, etc., during all parts of a checkpoint search; 4. the TSA’s policies regarding the enforcement of its policies when TSA personnel (at any level from a bottom ranking Transportation Security Officer through to an airport's Federal Security Director) refuse to comply with TSA policy in a way that infringes on the rights of travelers, including: a. measures taken by the TSA to proactively prevent such actions; b. what is done if such actions are reported, and what kind of reporting is required to trigger such corrective response; and c. what recourse or resources travelers have to correct TSA agents on the ground who refuse to comply with TSA policy; 5. the TSA’s policies regarding cooperation with local airports and police, including: a. its standard “air transportation security agreement” (or “ASP”); and b. its policies and standard agreements regarding conducting, storage, or access to video surveillance of TSA checkpoints; 6. the TSA’s policies regarding when checkpoint video may be released, which encompasses its previous releases, e.g. those on youtube.com/tsa dated Oct 18, 2009 and Nov 17, 2010, specifically including all internal and external correspondence relating to the decision to release those two sets of videos; 7. the TSA’s policies regarding “no fly”, “selectee”, and any similar lists; 8. legal justification for TSA’s public claims that passengers may not revoke consent to administrative search once they have entered a screening area, and that the TSA can fine or detain passengers who revoke consent, elect not to fly, and leave the screening area; 9. all Behavior Detection Officer training materials, and any studies investigating their efficacy; and 10. a reasonably structured and sorted index providing a complete listing, for all responsive documents (whether or not they are exempt or SSI), of: a. document title; 3
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b. content summary; c. document identifier; d. issue date; e. revocation/supersession date (if no longer in force); f. superseding document identifier (if not obvious from context, e.g. a simple sequence like 1080103G, 1080103H, 1080103I, etc.); g. degree of provision (complete, redacted, withheld); h. hyperlink to the document file (for documents provided or available online at least in part); and i. reason for complete exemption (for documents withheld in their entirety). On March 25, 2013, we informed you that your request was too broad in scope and did not specifically identify the records you were seeking. Further, we asked you to resubmit your request with a reasonable description of the records you were seeking and informed you that your request would not be processed until we received further clarification from you. Although you have failed to further clarify your request by reasonably identifying the records that you seek, TSA, in its own discretion, is processing your request to the extent records can be reasonably identified. To the extent TSA was able to reasonably identify the records you were seeking, a reasonable search within the relevant offices of TSA was conducted and responsive material was located. One thousand eight hundred and twenty-seven pages have been reviewed and 411 pages are being withheld in full pursuant to FOIA Exemptions (b)(3) and (b)(5). The remaining 1,416 pages are being released to you with portions of some of the pages withheld pursuant to FOIA Exemptions (b)(3) and (b)(5). A more complete explanation of these exemptions is provided below. The FOIA Branch continues to process this request and will provide additional release determinations to you as records are processed. With respect to Request 1(a), TSA located 62 pages responsive to your request, which are being withheld in their entirety pursuant to Exemption (b)(3). With respect to Requests 1(b) TSA is releasing 11 pages, and with respect to Request 1(c), TSA is releasing 67 pages. With respect to Requests 2(a) through 2(f), TSA located 267 responsive pages, which are being withheld in their entirety pursuant to Exemption (b)(3), in addition to 62 pages that have already been accounted for in response to Request 1(a). TSA is releasing one (1) page with respect to Request 2 generally. With respect to Requests 3(a), 3(e), 3(f), and 3(g) TSA located 203 responsive pages, which are being withheld in their entirety pursuant to Exemption (b)(3) and have already been accounted for in response to Requests 1(a) and 2(a) through 2(f). With respect to 3(i), TSA is releasing 523 pages. In addition, there is publically available information with respect to Request 3 on the following pages of TSA’s website: Travelers with Disabilities and Medical Conditions, available at https://www.tsa.gov/traveler-information/travelers-disabilities-and-medicalconditions; Screening for Passengers Requiring Special Assistance, available at https://www.tsa.gov/traveler-information/screening-passengers-requiring-special-assistance; 3-1-
4
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1 Liquids Rule, available at https://www.tsa.gov/traveler-information/3-1-1-liquids-rule; Prohibited Items, available at https://www.tsa.gov/traveler-information/prohibited-items. With respect to Request 4(a) and 4(b), TSA located and is releasing 31 pages, in addition to 67 pages that have already been accounted for in response to Request 1(c). With respect to Request 4(c), TSA is releasing eight (8) pages. In addition, there is publically available information with respect to Request 4(c) on the following pages of TSA’s website: TSA Contact Center Information, available at https://www.tsa.gov/contact-us; Talk to TSA Online Inquiry Form, available at https://www.tsa.gov/content/talk-tsa; For Travelers: Filing a Complaint, available at http://www.tsa.gov/traveler-information/travelers-filing-complaint-0. With respect to Request 5(a), TSA located and is releasing 211 pages with partial withholdings pursuant to Exemption (b)(3). With respect to Request 5(b), policies and standard agreements regarding “video surveillance of TSA checkpoints,” we have determined that such agreements utilize standard contract clauses with variations taking into account each airport’s unique requirements. As such, we call your attention to FOIA Request 2013-TSFO-01096 through which TSA provided you with a copy of the closed circuit television agreement between TSA and Boston Logan Airport. This agreement is a representative sample and was released to you in full. In addition, TSA is releasing six (6) pages with respect to Request 5(b). With respect to Request 6, TSA located and is releasing 100 pages. With respect to Request 7, TSA located and is releasing five (5) responsive pages with partial withholdings pursuant to Exemption (b)(3). In addition, regulations at 49 C.F.R. Parts 1540, 1544, and 1560 are publically available. With respect to Request 8, TSA located 32 responsive pages, which are being withheld in their entirety under Exemption (b)(5) as attorney-client privileged material. In addition, there are several publically available legal opinions and briefs addressing Request 8. See, e.g., United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc); United States v. Hartwell, 436 F.3d 174 (3d Cir.), cert. denied, 549 U.S. 945 (2006); and Torbet v. United Airlines, 298 F.3d 1087 (9th Cir. 2002). With respect to the second part of Request 9, studies pertaining to the Behavior Detection Officer program, the TSA located 503 responsive pages. Fifty pages are being withheld in their entirety pursuant to Exemption (b)(3) and 453 pages are being released with partial withholdings pursuant to Exemption (b)(3). In addition, the following reports are publically available: Government Accountability Office, TSA Should Limit Future Funding for Behavior Detection Activities, GAO Report 14-159, November 2013, available at http://www.gao.gov/assets/660/658923.pdf, and the Department of Homeland Security Office of Inspector General, TSA’s Screening of Passengers by Observation Techniques, OIG-13-91, May 2013, available at http://www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-91_May13.pdf. With respect to Request 10, the FOIA does not require agencies to create documents in response to FOIA requests. Therefore, this portion of your request has been administratively closed.
5
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Exemption (b)(3) This information reveals Sensitive Security Information (SSI) and is exempt from disclosure under Exemption (b)(3), which permits the withholding of records specifically exempted from disclosure by another Federal statute. Section 114(r) of title 49, United States Code, exempts from disclosure SSI that “would be detrimental to the security of transportation” if disclosed. The TSA regulations implementing Section 114(r) are found in 49 C.F.R. Part 1520. Exemption (b)(5) Exemption (b)(5) protects from disclosure those inter- or intra-agency documents that are normally privileged in the civil discovery context. The three most frequently invoked privileges are the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege. Of those, we have determined that some of the information in the documents you have requested is appropriately withheld under the attorney-client privilege. The attorney-client privilege protects the communications between an attorney and his/her client relating to a matter for which the client has sought legal advice, as well as facts divulged by the client to his/her attorney and any opinions given by the attorney based on these facts. Fees TSA is waiving any fees associated with the processing of this request. Administrative Appeal Because TSA’s response to this request is currently the subject of litigation, the administrative appeal rights normally associated with a FOIA request response are not being provided.
In an effort to maintain a more robust/efficient process to streamline reporting requirements, TSA, through the Department of Homeland Security, converted to a new FOIA tracking system in October 2013. This modification has resulted in the inability to continue tracking requests with the tracking number assigned by the old system, and changed our naming convention. We are referencing both old and new tracking numbers in our response. I apologize for any confusion this may cause and appreciate your understanding. If you have any questions pertaining to your request, please contact the FOIA Office at 1-866364-2872 or locally at 571-227-2300. Sincerely,
Regina McCoy FOIA Branch Officer Enclosure 6
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EXHIBIT V to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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b. the TSA’s policy regarding the use of electronic strip search machines (such as backscatter x-ray or millimeter wave machines) as primary screening devices; c. the TSA’s policy regarding informing the public of their right to refuse electronic strip search, and regarding TSA agents deliberately blocking walkthrough metal detectors (WTMDs) or otherwise giving the impression to travelers that WTMDs are not a permissible screening method or that electronic strip search is mandatory; d. the TSA’s “selectee” policy, including its policy for choosing which passengers are subject to increased screening, pat-downs, electronic strip search, or any other screening method other than walking through a metal detector or putting one’s bags through an x-ray machine; e. the TSA’s policy regarding manual search of bags that have been screened by x-ray, including the limits of any such search and what events may justify such search; and f. the TSA’s policy regarding any kind of search not strictly limited to the search for weapons or explosives, including: i. any demand for identification at any point during a screening process, and whether such demand can be refused by travelers wishing to travel without identification; ii. any search of travelers’ documents; and iii. any search by TSA agents motivated by law enforcement purposes, such as a search for illegal substances that are not weapons or explosives (such as drugs), large amounts of cash, multiple forms of identification, etc.; 3. the TSA’s policies regarding the treatment of passengers with disabilities, both now and at any point in the past, including: a. all documents having to do with the screening or confiscation of liquids, medical or otherwise; b. legal justification for confiscating or prohibiting liquids that are not declared as medical, but would be permissible if they were, and could be adequately screened using available technology (e.g. x-ray scanners and explosive trace detection machines); c. legal justification for requiring nonmedical liquids to be carried in 3 ounce containers, including specific information about what threats might arise from larger liquid containers; d. legal justification for permitting a traveler to carry e.g. a quart of liquid separated into 3 ounce containers together with an empty quart-sized container, but not a quart-sized container of liquid; e. a list or description of what kinds of liquids can or cannot be definitively determined to be hazardous vs nonhazardous by extant screening technology (xray, ETD, LCS); f. the TSA’s policy regarding whether the TSA considers water, juice, ginger ale, or similar liquids to be permissible medical liquids that may be carried in any quantity;
2
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g. the TSA’s policy regarding whether the TSA permits any TSA agent to require passengers to provide a prescription for declared medical liquids such as juice; h. the TSA’s policy regarding passengers who refuse to provide any information about their medical condition whatsoever (including e.g. a description of their medical condition; an explanation for why a liquid is medically necessary for them; a doctor’s note or prescription; etc.) but declare an item as medical; i. the TSA’s policy regarding providing assistance to passengers with communication related disabilities, specifically including deafness, mutism, or limited knowledge of English; and j. the TSA’s policy regarding access to communication aids, such as hearing aids, pen & paper, computers, phones, documents, interpreters/translators, etc., during all parts of a checkpoint search; 4. the TSA’s policies regarding the enforcement of its policies when TSA personnel (at any level from a bottom ranking Transportation Security Officer through to an airport's Federal Security Director) refuse to comply with TSA policy in a way that infringes on the rights of travelers, including: a. measures taken by the TSA to proactively prevent such actions; b. what is done if such actions are reported, and what kind of reporting is required to trigger such corrective response; and c. what recourse or resources travelers have to correct TSA agents on the ground who refuse to comply with TSA policy; 5. the TSA’s policies regarding cooperation with local airports and police, including: a. its standard “air transportation security agreement” (or “ASP”); and b. its policies and standard agreements regarding conducting, storage, or access to video surveillance of TSA checkpoints; 6. the TSA’s policies regarding when checkpoint video may be released, which encompasses its previous releases, e.g. those on youtube.com/tsa dated Oct 18, 2009 and Nov 17, 2010, specifically including all internal and external correspondence relating to the decision to release those two sets of videos; 7. the TSA’s policies regarding “no fly”, “selectee”, and any similar lists; 8. legal justification for TSA’s public claims that passengers may not revoke consent to administrative search once they have entered a screening area, and that the TSA can fine or detain passengers who revoke consent, elect not to fly, and leave the screening area; 9. all Behavior Detection Officer training materials, and any studies investigating their efficacy; and 10. a reasonably structured and sorted index providing a complete listing, for all responsive documents (whether or not they are exempt or SSI), of: a. document title; 3
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b. content summary; c. document identifier; d. issue date; e. revocation/supersession date (if no longer in force); f. superseding document identifier (if not obvious from context, e.g. a simple sequence like 1080103G, 1080103H, 1080103I, etc.); g. degree of provision (complete, redacted, withheld); h. hyperlink to the document file (for documents provided or available online at least in part); and i. reason for complete exemption (for documents withheld in their entirety). On March 25, 2013, we informed you that your request was too broad in scope and did not specifically identify the records you were seeking. Further, we asked you to resubmit your request with a reasonable description of the records you were seeking and informed you that your request would not be processed until we received further clarification from you. Although you have failed to further clarify your request by reasonably identifying the records that you seek, TSA, in its own discretion, is processing your request to the extent records can be reasonably identified. On July 30, 2015, TSA sent you an interim release reflecting the processing of 1,827 pages of responsive material of which 1,428 pages were released to you. TSA advised you that we would continue to process this request. One thousand three hundred and ninety-five additional pages have been located and processed for release to you. TSA has reviewed these materials and 101 pages are being withheld in full pursuant to FOIA Exemptions (b)(3). The remaining 1,294 pages are being released to you with portions of some of the pages withheld pursuant to FOIA Exemptions (b)(3), (b)(6), and (b)(7)(C). A more complete explanation of these exemptions is provided below. The FOIA Branch continues to process this request and will provide additional release determinations to you as records are processed. With respect to Request 1(d), you requested Emergency Amendment (EA) “129-01-05” among other EAs. TSA does not have a 129 series for Emergency Amendments. TSA located 70 pages responsive to your request, however, and is releasing them with partial withholdings pursuant to Exemption (b)(3). With respect to Request 1(e), you requested Security Directives (SDs) “107*” and “108*” among other SDs. TSA does not have a 107 or 108 series for Security Directives. TSA located 14 pages responsive to your request, however, and is releasing them with partial withholdings pursuant to Exemption (b)(3). With respect to Request 1(f), TSA located 327 pages responsive to your request and is releasing them with partial withholdings pursuant to Exemption (b)(3). With respect to Request 3, TSA located 111 responsive pages, which are being released with partial withholdings pursuant to Exemptions (b)(3), (b)(6), and (b)(7)(C). With respect to Request 3(b), 3(c), and 3(d), there is information regarding TSA’s statutory authority publically available. See, e.g., 49 U.S.C. §§ 114(d), (e), and (f); 49 U.S.C. §§ 44901-03. 4
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With respect to Request 5(b), TSA has located 94 responsive pages and is releasing them with partial withholdings pursuant to Exemptions (b)(3) and (b)(6). With respect to Request 7, TSA has located 160 pages responsive to your request that have already been accounted for in response to Requests 1(d), 1(e), and 1(f). See Bates nos. 001834001897, 001898-001911, and 002157-002238, respectively. These pages are being released with partial withholdings pursuant to Exemption (b)(3). With respect to the first part of Request 9, training materials pertaining to the Behavior Detection Officer program, the TSA located 779 responsive pages. One hundred and one pages are being withheld in their entirety pursuant to Exemption (b)(3), and 678 pages are being released with partial withholdings pursuant to Exemption (b)(3). Exemption (b)(3) This information reveals Sensitive Security Information (SSI) and is exempt from disclosure under Exemption (b)(3), which permits the withholding of records specifically exempted from disclosure by another Federal statute. Section 114(r) of title 49, United States Code, exempts from disclosure SSI that “would be detrimental to the security of transportation” if disclosed. The TSA regulations implementing Section 114(r) are found in 49 C.F.R. Part 1520. Exemption (b)(6) Exemption (b)(6) permits the government to withhold all identifying information that applies to a particular individual when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy.” This requires the balancing of the public’s right to disclosure against the individual’s right to privacy. After performing this analysis, it was determined that the privacy interest in the identities of the individuals in the records you have requested outweigh any minimal public interest in disclosure of the information. Please note that any personal interest you may have in that information does not factor into the aforementioned balancing test. Exemption (b)(7)(C) Exemption (b)(7)(C) permits the government to withhold all law enforcement information when disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy” based upon the traditional recognition of strong privacy interests ordinarily appropriated in law enforcement records. As such, we have determined that the privacy interest in the identities of individuals in the records you have requested clearly outweighed any minimal public interest in disclosure of the information. Please note that any personal interest you may have in that information does not factor into this determination.
5
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Fees TSA is waiving any fees associated with the processing of this request. Administrative Appeal Because TSA’s response to this request is currently the subject of litigation, the administrative appeal rights normally associated with a FOIA request response are not being provided.
In an effort to maintain a more robust/efficient process to streamline reporting requirements, TSA, through the Department of Homeland Security, converted to a new FOIA tracking system in October 2013. This modification has resulted in the inability to continue tracking requests with the tracking number assigned by the old system, and changed our naming convention. We are referencing both old and new tracking numbers in our response. I apologize for any confusion this may cause and appreciate your understanding. If you have any questions pertaining to your request, please contact the FOIA Office at 1-866364-2872 or locally at 571-227-2300. Sincerely,
Regina McCoy FOIA Branch Officer Enclosure
6
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EXHIBIT W to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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b. the TSA’s policy regarding the use of electronic strip search machines (such as backscatter x-ray or millimeter wave machines) as primary screening devices; c. the TSA’s policy regarding informing the public of their right to refuse electronic strip search, and regarding TSA agents deliberately blocking walkthrough metal detectors (WTMDs) or otherwise giving the impression to travelers that WTMDs are not a permissible screening method or that electronic strip search is mandatory; d. the TSA’s “selectee” policy, including its policy for choosing which passengers are subject to increased screening, pat-downs, electronic strip search, or any other screening method other than walking through a metal detector or putting one’s bags through an x-ray machine; e. the TSA’s policy regarding manual search of bags that have been screened by xray, including the limits of any such search and what events may justify such search; and f. the TSA’s policy regarding any kind of search not strictly limited to the search for weapons or explosives, including: i. any demand for identification at any point during a screening process, and whether such demand can be refused by travelers wishing to travel without identification; ii. any search of travelers’ documents; and iii. any search by TSA agents motivated by law enforcement purposes, such as a search for illegal substances that are not weapons or explosives (such as drugs), large amounts of cash, multiple forms of identification, etc.; 3. the TSA’s policies regarding the treatment of passengers with disabilities, both now and at any point in the past, including: a. all documents having to do with the screening or confiscation of liquids, medical or otherwise; b. legal justification for confiscating or prohibiting liquids that are not declared as medical, but would be permissible if they were, and could be adequately screened using available technology (e.g. x-ray scanners and explosive trace detection machines); c. legal justification for requiring nonmedical liquids to be carried in 3 ounce containers, including specific information about what threats might arise from larger liquid containers; d. legal justification for permitting a traveler to carry e.g. a quart of liquid separated into 3 ounce containers together with an empty quart-sized container, but not a quartsized container of liquid; e. a list or description of what kinds of liquids can or cannot be definitively determined to be hazardous vs nonhazardous by extant screening technology (x-ray, ETD, LCS); f. the TSA’s policy regarding whether the TSA considers water, juice, ginger ale, or similar liquids to be permissible medical liquids that may be carried in any quantity; g. the TSA’s policy regarding whether the TSA permits any TSA agent to require passengers to provide a prescription for declared medical liquids such as juice; h. the TSA’s policy regarding passengers who refuse to provide any information about their medical condition whatsoever (including e.g. a description of their medical condition; an explanation for why a liquid is medically necessary for them; a doctor’s note or prescription; etc.) but declare an item as medical;
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i. the TSA’s policy regarding providing assistance to passengers with communication related disabilities, specifically including deafness, mutism, or limited knowledge of English; and j. the TSA’s policy regarding access to communication aids, such as hearing aids, pen & paper, computers, phones, documents, interpreters/translators, etc., during all parts of a checkpoint search; 4. the TSA’s policies regarding the enforcement of its policies when TSA personnel (at any level from a bottom ranking Transportation Security Officer through to an airport's Federal Security Director) refuse to comply with TSA policy in a way that infringes on the rights of travelers, including: a. measures taken by the TSA to proactively prevent such actions; b. what is done if such actions are reported, and what kind of reporting is required to trigger such corrective response; and c. what recourse or resources travelers have to correct TSA agents on the ground who refuse to comply with TSA policy; 5. the TSA’s policies regarding cooperation with local airports and police, including: a. its standard “air transportation security agreement” (or “ASP”); and b. its policies and standard agreements regarding conducting, storage, or access to video surveillance of TSA checkpoints; 6. the TSA’s policies regarding when checkpoint video may be released, which encompasses its previous releases, e.g. those on youtube.com/tsa dated Oct 18, 2009 and Nov 17, 2010, specifically including all internal and external correspondence relating to the decision to release those two sets of videos; 7. the TSA’s policies regarding “no fly”, “selectee”, and any similar lists; 8. legal justification for TSA’s public claims that passengers may not revoke consent to administrative search once they have entered a screening area, and that the TSA can fine or detain passengers who revoke consent, elect not to fly, and leave the screening area; 9. all Behavior Detection Officer training materials, and any studies investigating their efficacy; and 10. a reasonably structured and sorted index providing a complete listing, for all responsive documents (whether or not they are exempt or SSI), of: a. document title; b. content summary; c. document identifier; d. issue date; e. revocation/supersession date (if no longer in force); f. superseding document identifier (if not obvious from context, e.g. a simple sequence like 1080103G, 1080103H, 1080103I, etc.); g. degree of provision (complete, redacted, withheld); h. hyperlink to the document file (for documents provided or available online at least in part); and i. reason for complete exemption (for documents withheld in their entirety).
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On March 25, 2013, we informed you that your request was too broad in scope and did not specifically identify the records you were seeking. Further, we asked you to resubmit your request with a reasonable description of the records you were seeking and informed you that your request would not be processed until we received further clarification from you. Although you have failed to further clarify your request by reasonably identifying the records that you seek, TSA, in its own discretion, is processing your request to the extent records can be reasonably identified. On July 30, 2015, TSA sent you an interim release reflecting the processing of 1,827 pages of responsive material of which 1,428 pages were released to you. On August 20, 2015, TSA sent you a second interim release reflecting the processing of 1,395 pages of responsive material of which 1,294 pages were released to you. TSA advised you that we would continue to process this request. Three hundred and fifty-one additional pages have been located and processed for release to you. TSA has reviewed these materials and 22 pages are being withheld in full pursuant to FOIA Exemption (b)(5). The remaining 329 pages are being released to you with portions of some of the pages withheld pursuant to FOIA Exemption (b)(3). A more complete explanation of these exemptions is provided below. The FOIA Branch had anticipated completing the processing of this request by October 31, 2015; however, a limited number of additional records are still being processed at this time. We will continue to process those records and will provide an additional release determination to you when processing is completed. With respect to Request 1(f), TSA located an additional 307 pages responsive to your request and is releasing these pages with partial withholdings pursuant to Exemption (b)(3). With respect to Request 3(a), TSA located an additional 35 pages responsive to your request and is releasing 13 of these pages with partial withholdings pursuant to Exemption (b)(3). The remaining 22 pages have been withheld in their entirety pursuant to Exemption (b)(5). These 22 pages that have been withheld in their entirety are also exempt from disclosure in part pursuant to Exemption (b)(3). With respect to Request 5(b), TSA located an additional nine responsive pages and is releasing these pages in full. Exemption (b)(3) This information reveals Sensitive Security Information (SSI) and is exempt from disclosure under Exemption (b)(3), which permits the withholding of records specifically exempted from disclosure by another Federal statute. Section 114(r) of title 49, United States Code, exempts from disclosure SSI that “would be detrimental to the security of transportation” if disclosed. The TSA regulations implementing Section 114(r) are found in 49 C.F.R. Part 1520. Exemption (b)(5) Exemption (b)(5) protects from disclosure those inter- or intra-agency documents that are normally privileged in the civil discovery context. The three most frequently invoked privileges are the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege. Of those, we have determined that some of the information in the documents you have requested is appropriately withheld under the attorney-client privilege. The attorney-client privilege protects the communications between an attorney and his/her client relating to a matter for which the client has
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 153 of 190
sought legal advice, as well as facts divulged by the client to his/her attorney and any opinions given by the attorney based on these facts. Fees TSA is waiving any fees associated with the processing of this request. Administrative Appeal Because TSA’s response to this request is currently the subject of litigation, the administrative appeal rights normally associated with a FOIA request response are not being provided. In an effort to maintain a more robust/efficient process to streamline reporting requirements, TSA, through the Department of Homeland Security, converted to a new FOIA tracking system in October 2013. This modification has resulted in the inability to continue tracking requests with the tracking number assigned by the old system, and changed our naming convention. We are referencing both old and new tracking numbers in our response. I apologize for any confusion this may cause and appreciate your understanding. If you have any questions pertaining to your request, please contact the FOIA Office at 1-866-3642872 or locally at 571-227-2300. Sincerely,
Regina McCoy FOIA Officer Enclosures
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EXHIBIT X to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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EXHIBIT Y to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 161 of 190 Sai v. TSA Civil Action No. 14-403-RDM (D.D.C.) Vaughn Index for the Policies Request (2015-TSLI-00004)
Bates Number(s)
Document Description
Exemption Applied
000001 - 000062
Screening Management Standard Operating Procedures (SOP), Revision (Rev. 4), dated March 8, 2011
b(3) (withheld in full)
Security screening SOP withheld in full as Sensitive Security Information (SSI), as required by 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.15(a); 1520.5(b)(9)(i).
000141 - 000152
Resolution Pat Down SOP, Rev. 1, Change 3, dated July 9, 2012
b(3) (withheld in full)
Security screening SOP withheld in full as SSI, as required by 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.15(a); 1520.5(b)(9)(i).
000153 - 000157
Advanced Imaging Technology (AIT) Tier 2 SOP, dated November 13, 2014
b(3) (withheld in full)
Security screening SOP withheld in full as SSI, as required by 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.15(a); 1520.5(b)(9)(i).
2015-TSLI-00004
Description of Information Withheld and Justification
1
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Exemption Applied
Description of Information Withheld and Justification
000158 - 000163
AIT in Risk-Based Security (RBS) Pre ✓™ SOP, dated August 7, 2014
b(3) (withheld in full)
Security screening SOP withheld in full as SSI, as required by 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.15(a); 1520.5(b)(9)(i).
000164 - 000304
Screening Checkpoint SOP, Rev. 10, dated December 16, 2013
b(3) (withheld in full)
Security screening SOP withheld in full as SSI, as required by 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.15(a); 1520.5(b)(9)(i).
000305 - 000373
Checked Baggage SOP, Rev. 6, dated February 3, 2014
b(3) (withheld in full)
Security screening SOP withheld in full as SSI, as required by 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.15(a); 1520.5(b)(9)(i).
Bates Number(s)
2015-TSLI-00004
Document Description
2
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Bates Number(s)
000374 - 000407
000975 - 001181
001288 - 001292
2015-TSLI-00004
Document Description
Travel Document Check SOP, Rev. 1, Change 2, dated September 21, 2012
Airport Security Program and 49 C.F.R. § 1542 Implementation Guidance, dated September 26, 2014
Office of Law Enforcement/Federal Air Marshal Service (OLE/FAMS) Policy document: FLD 7102, Special Mission Coverage, dated May 24, 2011
Exemption Applied
Description of Information Withheld and Justification
b(3) (withheld in full)
Security screening SOP withheld in full as SSI, as required by 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.15(a); 1520.5(b)(9)(i).
b(3) (partially redacted)
Airport operator security program information, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(1)(i).
b(3) (partially redacted)
Specific definitions, responsibilities, policies, and procedures for FAMS Special Mission Coverage, which constitute SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(8)(ii).
3
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Bates Number(s)
Document Description
Exemption Applied
001293 - 001307
Legal Memorandum: Fourth Amendment Search and Seizure Law; Administrative Search, dated April 2008
b(5) (withheld in full)
Entire legal memorandum withheld in full as attorneyclient privileged material and attorney work-product.
001308 - 001312
Legal Memorandum: The Role of State and Local Law Enforcement Officers in Transportation Security Screening, dated May 5, 2010
b(5) (withheld in full)
Entire legal memorandum withheld in full as attorneyclient privileged material and attorney work-product.
001313 - 001317
Legal Memorandum: Interpretation of "Screening" under Chapter 449 of Title 49 U.S.C., dated August 1, 2002
b(5) (withheld in full)
Entire legal memorandum withheld in full as attorneyclient privileged material and attorney work-product.
001318 - 001324
2015-TSLI-00004
Legal Memorandum: Standard and Resolution Pat-Downs & the Fourth Amendment, dated September 29, 2010
Description of Information Withheld and Justification
b(3) (partially redacted)
Details of security screening procedures information, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(9(i).
b(5) (withheld in full)
Entire legal memorandum withheld in full as attorney workproduct.
4
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Bates Number(s)
001325 - 001466
001467 - 001543
2015-TSLI-00004
Document Description
Screening Passengers by Observation Techniques (SPOT) Referral Report Validation Study Final Report Volume I: Technical Report, dated April 5, 2011
SPOT Referral Report Validation Study Final Report Volume II: Appendices A Through E, dated April 5, 2011
Exemption Applied
Description of Information Withheld and Justification
b(3) (partially redacted)
Detailed information regarding the SPOT security screening program and testing thereof, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(9)(i), (iii), and (v).
b(3) (partially redacted)
Detailed information regarding the SPOT security screening system and testing thereof, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(9)(i) and (v).
5
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Bates Number(s)
Document Description
001544 - 001789
SPOT Referral Report Validation Study Final Report Volume III: Appendices F Through H, dated April 5, 2011
001790 - 001827
SPOT Referral Report Validation Study Final Report volume IV: Appendix I: SPOT Standard Operating Procedures (SOP) (Rev. 1, dated January 23, 2009), dated April 5, 2011
001828 - 001830
Emergency Amendment (EA) 1546-1105D, Cargo Security Measures - Passenger Aircraft, effective June 15, 2014
2015-TSLI-00004
Exemption Applied
Description of Information Withheld and Justification
b(3) (partially redacted)
Detailed information regarding the SPOT security screening system and testing thereof, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(9)(i) and (v).
b(3) (withheld in full)
Validation Study Final Report Appendix consisting of security screening SOP withheld in full as SSI, as required by 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.15(a); 1520.5(b)(9)(i).
b(3) (partially redacted)
Emergency aviation security measures containing details of specific security requirements that regulated entities must employ, which constitute SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(8)(i).
6
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Bates Number(s)
Document Description
001831 - 001833
EA 1546-11-05C, Cargo Security Measures - Passenger Aircraft, effective June 15, 2013
001834 - 001838
Memorandum from TSA Administrator John S. Pistole to Foreign Air Carriers regarding EA 1546-12-07, Security Measures for Flights Departing From or Operating Within the United States, dated October 17, 2012
001839 - 001871
EA 1546-12-07, Security Measures for Flights Departing From or Operating Within the United States, effective November 26, 2012
2015-TSLI-00004
Exemption Applied
Description of Information Withheld and Justification
b(3) (partially redacted)
Emergency aviation security measures containing details of specific security requirements that regulated entities must employ, which constitute SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(8)(i).
b(3) (partially redacted)
Specific information regarding emergency aviation security measures containing details of specific security requirements that regulated entities must employ, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(8)(i).
b(3) (partially redacted)
Emergency aviation security measures containing details of specific security requirements that regulated entities must employ, which constitute SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(8)(i).
7
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Exemption Applied
Description of Information Withheld and Justification
Bates Number(s)
Document Description
001872 - 001897
EA 1546-12-07B, Security Measures for Flights Departing From or Operating Within the United States, effective January 31, 2014
b(3) (partially redacted)
Emergency aviation security measures containing details of specific security requirements that regulated entities must employ, which constitute SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(8)(i).
001898 - 001905
Security Directive (SD) 1544-01-20I, Threat to U.S. Aircraft Operators - No Fly List Procedures, dated June 1, 2009
b(3) (partially redacted)
Security directive information issued by TSA, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(2)(i).
001906 - 001911
SD 1544-01-21F, Threat to U.S. Aircraft Operators - Selectee List Procedures, dated March 8, 2007
b(3) (partially redacted)
Security directive information issued by TSA, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(2)(i).
2015-TSLI-00004
8
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Bates Number(s)
001912 - 002156
002157 - 002238
2015-TSLI-00004
Document Description
Foreign Air Carrier Model Security Program, Change 26, effective December 18, 2014
Twelve-Five Standard Security Program, Change 4, effective January 13, 2015
Exemption Applied
Description of Information Withheld and Justification
b(3) (partially redacted)
Aircraft operator and air cargo security program information containing details of specific security measures required, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(1)(i).
b(3) (partially redacted)
Aircraft and air cargo security program information containing details of specific security measures required, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520(b)(1)(i).
9
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Bates Number(s)
Document Description
Exemption Applied
b(3) (partially redacted)
002239 - 002346
Disability Branch Training and Informational Materials b(6) (partially redacted)
002350 - 002361
2015-TSLI-00004
Advanced Surveillance Program: Other Transaction Agreement Template
b(6) (partially redacted)
Description of Information Withheld and Justification
Security screening procedures information and security training materials related to screening of individuals with disabilities and medical conditions, which constitute SSI in part, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(10). Names, photographs, and email address of TSA and local law enforcement officer employees the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Phone number (last four digits) and email address of TSA employees, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
10
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Bates Number(s)
002362 - 002399
002444 - 003222
2015-TSLI-00004
Document Description
Office of Security Capabilities Advanced Surveillance Program: Planning Guidelines and Design Recommendations, dated September 5, 2012
SPOT Program Training Materials
Exemption Applied
b(3) (partially redacted)
b(6) (partially redacted)
b(3) (partially redacted)
Description of Information Withheld and Justification
Airport operator security surveillance program details regarding areas that are considered critical to airport security screening operation, which constitute SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(1)(i). Phone number (last four digits) and email address of TSA employees, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Security training materials for the SPOT program containing details of security procedures and methods used therein, which constitute SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(10).
11
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Bates Number(s)
Document Description
003232 - 003538
Aircraft Operator Standard Security Program, dated December 18, 2014
003539 - 003549
Draft Memorandum from TSA Administrator Kip Hawley to DHS Secretary Michael Chertoff regarding Path Forward on Airport Security Measures Following U.K. Incident, dated August 30, 2006
2015-TSLI-00004
Exemption Applied
Description of Information Withheld and Justification
b(3) (partially redacted)
Aircraft operator security program information containing details of specific security measures required, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(1)(i).
b(3) (partially redacted)
b(5) (withheld in full)
Specific information related to security measures and threats against transportation, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(7), (8)(i), (9)(i). Entire draft document withheld as deliberative.
12
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Bates Number(s)
003550 - 003560
003561 -003564
2015-TSLI-00004
Document Description
TSA Administrator Kip Hawley's PowerPoint for Briefing to Secretary on Current Status and Proposed Path Forward on Airport Security Measures Following UK Incident, dated August 25, 2006
Answers to Government Accountability Office Request: Questions on Liquids and Gels SOP Changes
Exemption Applied
b(3) (partially redacted)
b(5) (withheld in full)
b(3) (partially redacted)
Description of Information Withheld and Justification
Specific information related to security measures and threats against transportation, which constitutes SSI, withheld as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(7), (8)(i), (9)(i).
Entire draft document withheld as deliberative.
Specific information regarding threats against transportation, security measures, and security screening information, which constitutes SSI, redacted as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(7), (8)(i), (9)(i).
13
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Bates Number(s)
Document Description
Exemption Applied
Description of Information Withheld and Justification
003565 - 003570
Screening Checkpoint SOP - APPENDIX 5, Change 5, dated November 14 2006
b(3) (partially redacted)
Security screening SOP, which constitutes SSI, redacted as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(9)(i).
b(3) (partially redacted)
Security screening procedures and threat information, which constitute SSI, redacted as required by 49 U.S.C. § 114(r) and 49 C.F.R. §§ 1520.15(a), (b); 1520.5(b)(7), (9)(i).
003571 - 003573
Government Accountability Office Table: Liquids and Gels SOP Changes
b(3) (withheld in full) 003574 - 003932
Office of Intelligence and Analysis Secure Flight SOPs b(6) (partially redacted)
2015-TSLI-00004
Security screening SOPs pertaining to the Secure Flight Program withheld in full as SSI, as required by 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.15(a); 1520.5(b)(4)(i), (8)(i), (9)(i), (9)(ii), and (13). Names of individual TSA employees, the disclosure of which would constitute an unwarranted invasion of privacy.
14
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EXHIBIT Z to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 176 of 190
2015-TSLI-00004
002271_a
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 177 of 190
EXHIBIT AA to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 178 of 190
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 179 of 190
EXHIBIT BB to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 180 of 190
From: To: Subject: Date:
Sai FOIA Re: FOIA Request 2016-TSPA-00009 and 2016-TSPA-00010 Acknowledgment Tuesday, October 27, 2015 4:07:02 PM
Thank you. Re. the start date: I requested *all* records. I do not authorize a start date cut-off. All I authorize is that you do not need to provide me with records under this request that you have already provided me under other requests if it would be purely duplicative. Sincerely, Sai On Tue, Oct 27, 2015 at 4:01 PM, FOIA wrote: > Sai, > > > > Attached is our acknowledgment to your TSA FOIA request. If you need to > contact this office again concerning your request, please provide the TSA > reference numbers. This will enable us to quickly retrieve the information > you are seeking and reduce our response time. This office can be reached at > 571-227-2300. > > > > Regards, > > > > U.S. Department of Homeland Security > > Transportation Security Administration > > Freedom of Information Act Branch > > 601 S. 12th Street > > Arlington, VA 20598-6020 > > 571-227-2300 > > > > ---------- Forwarded message ---------> From: Sai > To: FOIA > Cc: "Nebeker, Mark (USADC)" , "Simon, Jeremy > (USADC)" > Date: Mon, 21 Sep 2015 16:14:09 +0000 > Subject: Re: Sai Acknowlegment 2015-0268
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Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 181 of 190 > Also, please note some relevant SORs to be searched (*not* exclusive): > > DHS/TSA-001: TSERS > DHS/TSA-002: T-STAS > DHS/TSA 005: IIRS > DHS/TSA-006: CMTR > DHS/TSA 007: FOIA/PA RS > DHS/TSA 009: GLR > DHS/TSA-011: TSIS > DHS/TSA-019: Secure Flight > > - Sai > > On Mon, Sep 21, 2015 at 11:55 AM, Sai wrote: >> Thank you for your (extremely delayed) response to my FOIA request. >> >> 1. As the court in Sai v TSA noted, the temporal scope of this request >> is not the same as prior requests, and your "determination" to the >> contrary has already been held by the court to be invalid as a matter >> of law. >> >> Rather, the temporal scope of a request is up through the date when >> the search is actually conducted, i.e. when you respond to this >> clarified request. >> >> See Pub. Citizen v Dep't of State, 276 F.3d 634 (DC Cir. 2002), Or. >> Natural Desert Ass'n v. Guiterrez, 409 F. Supp. 2d 1237 (D. Or. 2006), >> 419 F. Supp 2d 1284 (D. Or. 2006). >> >> >> 2. To clarify, responsive documents include: >> * my "complaint file" (see e.g. email from Foster to Bromer, 2014-07-13) >> >> * ALL emails held by TSA *and* DHS — not limited to OCRL-DMD >> (including e.g. OCC, OSO, OLA, OSI, ODPO, OES, etc) >> - note that TSA is a component of DHS and is obliged to refer to all >> other components that may have responsive documents 5 USC 552(a)(6)(A) >> - as noted above, the time period is up through the date you conduct >> the search in response to this clarification, NOT up through July or >> November 2013 >> - for instance, the 2013-TSPA-00339 email disclosures end on July 7, >> 2014, and do not include non-DMD emails or attachments. >> >> * ALL email attachments >> - see e.g. emails from: >> -- Bromer to McKenney 2013-04-04 (x2), 2013-04-05, 2013-04-11 >> -- McKenney to Bromer 2013-04-08 >> -- Blanciforte to Bromer 2013-04-05 >> -- Buzzell to Bromer 2013-04-29, 2013-09-09 >> -- Bromer to Klein 2013-04-29, 2013-11-27 >> -- Klein to Bromer 2013-04-30 >> -- Bromer to Buzzell 2013-04-30, 2013-07-03, 2013-09-04, 2013-09-06, >> 2013-09-27 >> -- TSAOLA to ExecSec 2013-05-09 >> -- Bromer to Barber 2013-05-15 >> -- Bromer to unknown 2013-06-28 >> -- Foster to many 2013-04-05 2
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 182 of 190 >> -- Bromer to Blanciforte 2013-09-30 >> -- Sun to Bromer 2013-11-21 >> -- Bernardini to Bromer 2013-11-27, 2013-12-04 >> -- Hall to Bromer 2013-12-27 >> -- Foster to Walton 2014-07-02 >> -- Foster to many 2014-07-07 >> >> - BOS: >> -- note that due to your delay, this now also encompasses records >> relating to the 2015-09-10 BOS incident as well >> * ALL statements, reports, emails, etc relating to the incident >> * police records >> * bag check incident report(s) >> * records of complaints against named personnel >> * SPOT report(s), incident report(s), PARIS report(s), PMIS report(s), >> etc. >> * ALL video of the incident, not just the one angle of secondary screening >> - note that this was subject to an acknowledged evidence preservation >> / litigation hold, and failure to preserve creates liability for >> spoliation >> * ALL responses to my complaints >> >> - SFO: >> * ALL statements, reports, emails, etc relating to the incident >> - note the absence of anything released to me from FSD Adams >> * records of complaints against named personnel >> * ALL responses to my complaints >> >> >> For all documents, as always, I have requested native format, >> electronic documents, § 508 compliant, etc. >> >> You've failed to do so thus far. For instance, emails should be in >> .msg format (or whatever is native), with native attachments (PDF, >> XLSX, PPT — whatever they were). >> >> In the event that there is any confusion whatsoever as to whether I do >> or do not intend to include something, as expressed in e.g. Foster's >> 2014-07-13 email, please contact me for clarification. Do *not* make a >> unilateral determination that restricts what is responsive. >> >> Please further provide a complete list of what record systems TSA, >> DHS, BOS, and/or SFO have, and what information is in each, so that I >> can further clarify my request. >> >> In the meantime, please process the request as clarified in part. >> >> Sincerely, >> - Sai >> >> On Mon, Sep 21, 2015 at 10:41 AM, FOIA wrote: >>> Sai, >>> >>> >>> >>> Attached to this email is the acknowledgment letter pertaining to your >>> November 23, 2013 FOIA/PA request. 3
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 183 of 190 >>> >>> >>> >>> Sincerely, >>> >>> >>> >>> U.S. Department of Homeland Security >>> >>> Transportation Security Administration >>> >>> Freedom of Information Act Branch >>> >>> 601 S. 12th Street >>> >>> Arlington, VA 20598-6020 >>> >>> 571-227-2300 >>> >>> >
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Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 184 of 190
EXHIBIT CC to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
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Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 186 of 190
EXHIBIT DD to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 187 of 190
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 188 of 190
If you have any questions pertaining to your request, please feel free to contact the FOIA Branch at 1-866-364-2872 or locally at 571-227-2300. Sincerely,
Regina McCoy FOIA Officer
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 189 of 190
EXHIBIT EE to the Declaration of Regina McCoy
Sai v. Transportation Security Administration, No. 1:14-cv-403-RDM (D.D.C.) June 9, 2016
Case 1:14-cv-00403-RDM Document 99-3 Filed 06/09/16 Page 190 of 190
