Skurow v. U.S. Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
RYAN B. SKUROW, )
)
Plaintiff, )
) Civil Action No. 11-1296(EGS)
v. )
)
U.S. DEPARTMENT OF HOMELAND )
SECURITY and U.S. TRANSPORTATION)
SECURITY ADMINISTRATION, )
)
Defendants. )
)

MEMORANDUM OPINION

This case is before the Court on defendants’ motion for

summary judgment and plaintiff’s cross-motion for summary

judgment. Upon consideration of the motions, the responses and

replies thereto, the applicable law, and the entire record,

defendants’ motion is GRANTED and plaintiff’s cross-motion is

DENIED.

I. BACKGROUND

Plaintiff, who initially proceeded pro se in this action,

filed his complaint on July 19, 2011, seeking to compel

defendants the United States Department of Homeland Security

(“DHS”) and the United States Transportation Security

Administration (“TSA”) to comply with the Freedom of Information

Act, 5 U.S.C. § 552 (“FOIA)” and the Privacy Act, 5 U.S.C. §

552a (“Privacy Act”).
 Plaintiff is a United States citizen currently living in

Israel. In 1998, plaintiff traveled to Israel as a tourist and

made an excursion trip with two friends to the Sinai Peninsula

in Egypt. During the course of the trip to Egypt, plaintiff and

his friends were stopped by Egyptian police and were searched.

As a result of the search, the Egyptian police claimed to have

found a small amount of marijuana in the bag of one of

plaintiff’s friends. Plaintiff states that all three friends

were tried without the assistance of counsel, fined $200, and

were returned to Israel. Plaintiff further alleges that the

“entire trial was a farce” and that “plaintiff never used or

possessed marijuana as charged by the Egyptian police.” Pl.’s

Statement of Material Facts in Supp. of Cross-Mot. for Summ. J.

(“Pl.’s Cross-Mot. SOF”), ECF No. 16-2, ¶ 8-9.

Prior to 2007, plaintiff states he had no difficulty

traveling between the United States and Israel. In 2007,

however, plaintiff was stopped by a United States Customs and

Border Patrol (“CBP”) officer in the Miami International Airport

and detained for several hours without explanation. He was

stopped again in 2009 while traveling through the Hartsfield-

Jackson Atlanta International Airport. During this stop,

plaintiff inquired about the reasons for his detention.

Plaintiff alleges that a CBP officer told him that his name

2
appeared on a “watch list” as a result of the 1998 incident in

Egypt.

Between 2008 and 2010, plaintiff made several attempts to

clarify the reasons he was stopped and questioned. These

included contacting Congresswoman Jean Schmidt, the

Representative for the district in which plaintiff’s father

lives. Plaintiff and/or his attorney also made inquiries to the

DHS Traveler Inquiry Program (“DHS TRIP”). On August 8, 2010,

plaintiff’s counsel sent a FOIA/Privacy Act request to the TSA

for “all information [it had] relating to” plaintiff. Compl. ¶

5. 1 On August 17, 2010, the TSA sent a letter to plaintiff

acknowledging that it had received his request on August 13,

2010. Compl. ¶ 6. In that letter, the TSA stated that its goal

was to respond to the request within 20 days, but due to the

breadth of plaintiff’s request, the TSA would invoke a 10-day

extension of the request, pursuant to 5 U.S.C. § 552(a)(6)(B).

The TSA invited plaintiff to contact their FOIA office if he

desired to narrow his request.

1
There is some confusion in the record as to whether plaintiff’s
request was made pursuant to FOIA or to the Privacy Act. In
plaintiff’s August 17, 2010 request to the TSA, he states that
he is seeking records pursuant to the Privacy Act. See Compl.
Ex. A. In his appeal, however, his request is referred to as
having been made pursuant to FOIA and the Privacy Act. See id.
Ex. C. Because plaintiff has alleged in his complaint that the
TSA failed to comply with his FOIA and Privacy Act requests, the
Court will treat his request has having been made pursuant to
FOIA and the Privacy Act.
3
 On January 13, 2011, after having allegedly not received a

response from the TSA, plaintiff’s counsel sent a letter to the

DHS, reiterating plaintiff’s initial request and purporting to

appeal the denial of his FOIA/Privacy Act request. Compl. ¶ 8.

On April 8, 2011, DHS sent a letter to plaintiff’s counsel

informing him that it could not act until a determination was

made on whether any responsive records may be released in

connection with his request. Compl. ¶ 10. DHS advised

plaintiff that he could treat the letter as a denial of his

appeal and seek judicial review. Id.

After plaintiff filed this action on July 19, 2011, TSA

began responding to plaintiff’s FOIA request on a rolling basis.

On August 4, 2011, 2 TSA sent a letter to plaintiff and attached

several documents, including documents that had been redacted

pursuant to FOIA Exemptions 3, 6, and 7. 3 On August 25, 2011,

TSA sent plaintiff a supplemental response to his request. See

Declaration of Yvonne L. Coates (“Coates Decl.”), ECF No. 9-1,

Ex. F. In that letter, the TSA stated that it could neither

confirm nor deny whether plaintiff was on a Federal Watch List.

Specifically, the TSA stated that pursuant 49 U.S.C. § 114(r)

and its implementing regulation at 49 C.F.R. § 1520.15(a),

2
The copy of the letter attached as Exhibit E to the Coates
Declaration bears no date but the declaration states that it was
sent on August 4, 2011.
3
Defendants have since withdrawn the redactions made pursuant to
Exemption 7.
4
Federal Watch Lists constitute Sensitive Security Information

(“SSI”) that is exempted from disclosure. The TSA stated that

it was withholding that information pursuant to FOIA Exemption

3, which allows the withholding of records specifically

prohibited from disclosure by another statute. On October 24

and November 2, 2011, TSA sent plaintiff a second and third

supplemental response to his FOIA request, attaching documents

that contained redactions pursuant to Exemptions 3 and 6.

Coates Decl. Exs. G-H.

On November 2, 2011, defendants moved for summary judgment,

arguing that they had conducted an adequate search and produced

documents in response to plaintiff’s request, and that there

were no issues of material fact. Defendants advised the pro se

plaintiff of his obligation to respond to the arguments made by

plaintiff and cite to supporting factual evidence or those

arguments would be deemed conceded. In their motion, defendants

argued that their search was adequate, that information was

properly withheld pursuant to FOIA exemptions 3 and 6, and that

all reasonably segregable information was released.

In his opposition, plaintiff principally argues that the

government acted in bad faith. Plaintiff also argues that

defendants’ searches were inadequate and that the exemptions do

not apply. Plaintiff does not address the issue of

segregability. Plaintiff submitted a statement of facts in

5
dispute, see ECF No. 10-3, but did not specifically respond to

the factual allegations in defendants’ statement or cite to

record evidence in support of his statements of disputed fact.

Several weeks after plaintiff filed his pro se opposition

to defendant’s motion for summary judgment on January 26, 2012,

counsel appeared on behalf of plaintiff in this action. See ECF

No. 14. On June 26, 2012, three months after the initial motion

for summary judgment was fully briefed, plaintiff filed a cross-

motion for summary judgment and a request for attorneys’ fees.

On July 11, 2012, the Court held a status hearing regarding the

pending motions. At the hearing, the Court noted that a

Fox/Neal Order had not been issued after the initial summary

judgment motion was filed by defendants. The Court informed

plaintiff’s counsel that it appeared plaintiff had not properly

responded to the motion, including to the statement of facts,

and asked counsel whether he was satisfied with the opposition

that plaintiff had filed. Counsel stated that he was satisfied

with the pleadings and had no intention to make any changes.

Counsel also confirmed that he had access to the Court’s local

rules. Accordingly, the Court allowed the briefing on the

cross-motion for summary judgment to proceed. That motion, and

defendants’ initial motion, are now ripe for the Court’s

decision.

6
 II. LEGAL FRAMEWORK

A. Rule 56

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted if the moving party has shown that

there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);

Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.

2002). In determining whether a genuine issue of fact exists,

the court must view all facts in the light most favorable to the

non-moving party. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). Likewise, in ruling on

cross-motions for summary judgment, the court shall grant

summary judgment only if one of the moving parties is entitled

to judgment as a matter of law upon material facts that are not

genuinely disputed. See Citizens for Responsibility & Ethics in

Wash. v. Dep’t of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.

2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.

1975)).

Rule 56 of the Federal Rules of Civil Procedure requires

that “[a] party asserting that a fact cannot be or is genuinely

disputed must support that assertion by . . . citing to

particular parts of materials in the record . . . or . . .

showing that the materials cited [by the opposing party] do not

7
establish the absence or presence of a genuine dispute . . . .”

Fed. R. Civ. P. 56(c). “If a party fails to properly support an

assertion of fact or fails to properly address another party’s

assertion of fact as required by Rule 56(c), the court may . . .

consider the fact undisputed for purposes of the motion.” Fed.

R. Civ. P. 56(e); see Local Civ. R. 7(h) (“In determining a

motion for summary judgment, the court may assume that facts

identified by the moving party in its statement of material

facts are admitted, unless such a fact is controverted in the

statement of genuine issues filed in opposition to the

motion.”). The District of Columbia Circuit has held that “[i]f

the party opposing the motion fails to comply with [Local Civil

Rule 7], then ‘the district court is under no obligation to sift

through the record’ and should ‘[i]nstead . . . deem as admitted

the moving party's facts that are uncontroverted by the

nonmoving party's Rule [Local Civil Rule 7(h)] statement.’” SEC

v. Banner Fund Int'l, 211 F.3d 602, 616 (D.C. Cir. 2000)

(citation omitted). This Circuit has affirmed the grant of

summary judgment where the nonmoving party failed to cite any

evidence in the record, and in the statement of genuine factual

issues, “did not set forth specific, material facts, but simply

asserted, without citing evidence in the record, that there was

a disputed issue[.]” Burke v. Gould, 286 F.3d 513, 518 (quoting

Tarpley v. Greene, 684 F.2d 1, 7 (D.C. Cir. 1982)).

8
 B. FOIA

FOIA requires agencies to disclose all requested agency

records, 5 U.S.C. § 552(a), unless one of nine specific

statutory exemptions applies, id. § 552(b). It is designed to

“pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Dep’t of Air Force v.

Rose, 425 U.S. 352, 361 (1976) (citations omitted). “Given the

FOIA’s broad disclosure policy, the United States Supreme Court

has ‘consistently stated that FOIA exemptions are to be narrowly

construed.’” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)

(quoting Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)).

“FOIA’s strong presumption in favor of disclosure places

the burden on the agency to justify the withholding of any

requested documents.” Dep’t of State v. Ray, 502 U.S. 164, 173

(1991) (citation omitted). The government may satisfy its

burden of establishing its right to withhold information from

the public by submitting appropriate declarations and, where

necessary, an index of the information withheld. See Vaughn v.

Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). “If an agency’s

affidavit describes the justifications for withholding the

information with specific detail, demonstrates that the

information withheld logically falls within the claimed

exemption, and is not contradicted by contrary evidence in the

record or by evidence of the agency’s bad faith, then summary

9
judgment is warranted on the basis of the affidavit alone.”

ACLU v. Dep’t of the Defense, 628 F.3d 612, 619 (D.C. Cir.

2011); see id. (an agency’s justification for invoking a FOIA

exemption is sufficient if it appears logical or plausible)

(internal citations omitted).

C. Privacy Act

The Privacy Act of 1974 regulates the collection,

maintenance, use, and dissemination of an individual's personal

information by agencies within the federal government. See 5

U.S.C. § 552a(e). The Act “‘safeguards the public from

unwarranted collection, maintenance, use, and dissemination of

personal information contained in agency records ... by allowing

an individual to participate in ensuring that his records are

accurate and properly used.’” McCready v. Nicholson, 465 F.3d

1, 7–8 (D.C. Cir. 2006) (quoting Bartel v. Fed. Aviation Admin.,

725 F.2d 1403, 1407 (D.C. Cir. 1984)). “The Privacy Act—unlike

the Freedom of Information Act—does not have disclosure as its

primary goal.” Henke v. U.S. Dep't of Commerce, 83 F.3d 1453,

1456 (D.C. Cir. 1996). “Rather, the main purpose of the Privacy

Act's disclosure requirement is to allow individuals on whom

information is being compiled and retrieved the opportunity to

review the information and request that the agency correct any

inaccuracies.” Id. at 1456–57. To achieve this goal, the Act

“imposes a set of substantive obligations on agencies that

10
maintain systems of records.” Skinner v. Dep't of Justice, 584

F.3d 1093, 1096 (D.C. Cir. 2009). For example, subject to

certain exceptions, an agency that maintains a system of records

must, “upon request by any individual to gain access to his

record . . . permit him . . . to review the record” and to

request amendment of the record. 5 U.S.C. § 552a(d)(1)-(2).

III. DISCUSSION

As an initial matter, the Court notes that this case is in

a somewhat unusual procedural posture. As discussed above,

plaintiff proceeded pro se through the majority of this

litigation, including the initial summary judgment briefing.

His counsel, who appeared in the litigation shortly after

plaintiff filed his pro se opposition to defendants’ motion for

summary judgment, has adopted the arguments made by plaintiff in

his opposition to defendants’ motion for summary judgment and

did not wish to supplement that briefing. Plaintiff

subsequently filed a cross-motion for summary judgment.

Plaintiff’s response to defendants’ statement of material

facts not in dispute fails to specifically controvert

defendants’ statements of material fact because it fails to cite

to record evidence. Although the Court is “under no obligation

to sift through the record” to locate disputed issues of

material fact, the Court has reviewed the pleadings as a whole

in an effort to determine whether there are any disputed issues

11
of material fact. Upon review of plaintiff’s opposition to

defendants’ statement of material facts, and plaintiff’s own

statement of material facts in support of his cross-motion for

summary judgment, the Court finds that there are no disputed

issues of material fact in this case. Much of what has been

alleged by plaintiff is merely background information that is

not in dispute. For example, plaintiff states that “[i]n or

around November 2011, Defendants submitted affidavits from

Yvonne Coates and William Benner in an attempt to justify

withholding of information requested by plaintiff about

himself.” See Pl.’s Statement of Genuine Issues in Dispute

(“Pl.’s SOF”), ECF No. 10-3, ¶ 23. This statement is neither in

dispute, nor is it material. The few disputed allegations made

by plaintiff relate to legal issues, rather than to issues of

fact. See, e.g., id. ¶ 25 (alleging that defendants “improperly

maintain[ed] a right to withhold under Exemptions 3 and 6 and a

Glomar response based on Exemption 3”).

Accordingly, as discussed below, the issues to be resolved

by the Court are legal and relate to the propriety of

defendants’ responses to plaintiff’s FOIA request.

A. Adequacy of Search

Defendants argue that their search for documents was

adequate and that summary judgment is appropriate. Plaintiff

disagrees, contending that defendants failed to conduct a

12
reasonable and good faith search for responsive documents. As

discussed below, in view of the lack of any specific showing of

bad faith on the part of the defendants, the Court finds that

their search was adequate.

1. Bad Faith

Plaintiff makes several arguments relating to defendants’

delay in processing his FOIA request. Specifically, plaintiff

argues that the delay is evidence of defendants’ bad faith.

Plaintiff further argues that defendants’ claimed exemptions are

invalid because of this alleged bad faith. See Pl.’s Opp. to

Defs.’ Mot. for Summ J. (“Pl.’s Opp.”), ECF No. 10, at 14. The

Court disagrees.

Courts routinely find that delays in responding to FOIA

requests are not, in and of themselves, indicative of agency bad

faith. See, e.g., Iturralde v. Comptroller of the Currency, 315

F.3d 311, 315 (D.C. Cir. 2003) (“initial delays in responding to

a FOIA request are rarely, if ever, grounds for discrediting

later affidavits by the agency”); Fischer v. U.S. Dep’t of

Justice, 723 F. Supp. 2d 104, 108-09 (D.D.C. 2010) (rejecting

argument that agency’s failure to produce documents until after

litigation commenced evidenced agency’s bad faith). Agency

affidavits are afforded a “presumption of good faith” and an

adequate affidavit can be rebutted only with evidence that the

agency’s search was not made in good faith. Defenders of

13
Wildlife v. Dep’t of the Interior, 314 F. Supp. 2d 1, 8 (D.D.C.

2004). In other words, a requestor cannot rebut the good faith

presumption through “‘purely speculative claims about the

existence of and discoverability of other documents.’” SafeCard

Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1981)

(quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771

(D.C. Cir. 1981)). None of the pleadings filed by plaintiff set

forth any factual basis, other than purely speculative claims

about the agencies’ motives, to suggest that TSA or DHS acted in

bad faith. Accordingly, plaintiff has failed to rebut the

presumption of good faith. Moreover, there is nothing about the

failure of an agency to produce documents promptly that would

require the agency to waive otherwise properly claimed FOIA

exemptions. An agency’s failure to respond within the

statutorily prescribed deadlines merely means that a requesting

party may seek judicial supervision of the agency’s response, as

plaintiff has done here. See, e.g., Long v. Dep’t of Homeland

Sec., 436 F. Supp. 2d 38, 44 (D.D.C. 2006).

2. TSA’s Searches Were Adequate

An agency from which information has been requested must

undertake a search that is “reasonably calculated to uncover all

relevant documents.” Weisberg v. Dep’t of Justice, 705 F.2d

1344, 1351 (D.C. Cir. 1983). “[T]he adequacy of a FOIA search

is generally determined not by the fruits of the search, but by

14
the appropriateness of the methods used to carry out the

search.” Iturralde, 315 F.3d at 315. The Court applies a

“reasonableness test to determine the adequacy of search

methodology,” Campbell v. Dep’t of Justice, 164 F.3d 20, 27

(D.C. Cir. 1998), and requires a “reasonable and systematic

approach to locating the requested documents.” Ctr. for Pub.

Integrity v. FCC, 505 F. Supp. 2d 106, 116 (D.D.C. 2007). “The

agency must demonstrate that it ‘made a good faith effort to

conduct a search for the requested records, using methods which

can be reasonably expected to produce the information

requested.’” Fischer v. Dep’t of Justice, 596 F. Supp. 2d 34, 42

(D.D.C. 2009) (quoting Oglesby v. Dep’t of the Army, 920 F.2d

57, 68 (D.C. Cir. 1990)).

Defendants properly rely on a detailed, non-conclusory

declaration that demonstrates the adequacy of the search. See

Weisberg, 705 F.2d at 1351. TSA states that, based on

plaintiff’s request and his allegation of experiencing

difficulties traveling, it identified that the TSA offices most

likely to have responsive records were the Office of

Transportation Security Redress (“OTSR”), the Office of

Intelligence (“OI”) and the Office of Security Operations

(“OSO”). Coates Decl. ¶ 17. It explains in considerable detail

the processes undertaken to search for documents in those

15
offices. 4 It further explains the search terms used to conduct

those searches. The Court finds that these methods could be

“reasonably expected to produce the information requested” and

were therefore adequate. See Fischer, 596 F. Supp. 2d at 43.

Plaintiff attempts to establish that the searches were

inadequate by identifying individual documents that are

allegedly responsive to his requests but which were not

produced. The documents include: 1) correspondence between CBP

and Congresswoman Jean Schmidt’s office regarding plaintiff’s

4
Defendants explain that OTSR was deemed to possibly have
responsive records because it administers the DHS TRIP program
under which plaintiff submitted a complaint. Coates Decl. ¶ 18.
OTSR searched its files and located its record of plaintiff’s
complaint. Coates Decl. ¶ 19. Based on the information in that
record, OTSR conducted a keyword search of its public email
inbox within a several-month date range surrounding the date of
plaintiff’s complaint, as per OTSR’s normal practice. Coates
Decl. ¶ 21. OTSR also searched the email files of employees who
were identified as having worked on plaintiff’s complaint.
Coates Decl. ¶ 24. OI was deemed to have potentially responsive
records because it is in possession of the No Fly and Selectee
lists, and in certain cases, the derogatory information that
supports placement on those lists. Coates Decl. ¶ 26. OI
searched its email records and its shared drive for information
regarding plaintiff’s complaint. Coates Decl. ¶ 27. OI found
no documents responsive to the request. Coates Decl. ¶ 27. TSA
also searched the No Fly and Selectee lists. Pursuant to the
TSA’s current “Glomar” policy, TSA cannot confirm, nor deny,
whether OI’s search of the No Fly and Selectee lists identified
any responsive records. Coates Decl. ¶ 27. OSO manages TSA’s
domestic security operations and was asked to search its
Performance and Results Information System, a database that
holds records of incidents and inspections at U.S. airports.
Coates Decl. ¶ 29. OSO ran several keyword searches in the
database but none yielded responsive records. Coates Decl. ¶
29.

16
difficulty traveling; 2) an October 2009 letter from plaintiff’s

counsel to DHS regarding plaintiff’s difficulty traveling; and

3) correspondence between plaintiff’s counsel and TSA or DHS

regarding plaintiff’s FOIA request. Plaintiff also claims that

defendants’ search was inadequate because it did not search

records from CBP or the FBI.

The Court notes at the outset that plaintiff’s FOIA request

was directed to the TSA only. Compl. Ex. A. The relevant FOIA

regulation puts the burden on a requesting party to direct his

request to the DHS component from which records are sought.

Defs.’ Reply in Support of Mot. for Summ. J. (“Defs.’ Reply”),

ECF No. 15, at 3 (citing 6 C.F.R. § 5.3(a) (“You may make a

request for records of the Department by writing directly to the

Department component that maintains those records. . . . Your

request should be sent to the component’s FOIA office at the

address listed in Appendix A to part 5.”)). Although the FOIA

regulations provide for mandatory referrals to component

agencies in certain circumstances, defendants argue that the

request did not require a referral to CBP in this case. This

issue is moot, however, in view of defendants’ referral of the

request to CBP after receiving plaintiff’s opposition to

17
defendants’ motion for summary judgment. 5 The Court also finds

that plaintiff’s claim that TSA should have searched records

from the FBI, which plaintiff alleged for the first time in his

cross-motion for summary judgment, lacks merit. The FBI is not

a component of DHS and plaintiff has cited now law that would

require TSA to search FBI records.

Plaintiff’s allegations regarding various correspondence

that was not produced in response to his FOIA request falls

short of establishing that TSA’s search was inadequate. First,

plaintiff points to several letters from plaintiff’s counsel.

Plaintiff claims that an October 21, 2009 letter from

plaintiff’s counsel inquiring about the status of plaintiff’s

FOIA request was not produced. As explained by the TSA,

however, a nearly-identical letter dated November 22, 2009 was

produced and a similar electronic version of the letter was

located in TSA’s files upon further review. March 7, 2012

Declaration of Yvonne Coates (“March 7 Coates Decl.”), ECF No.

15, at ¶¶ 8-9. The difference in date appears to have been a

clerical error and, even if not, is not a material issue with

respect to the adequacy of the search. See Iturralde, 315 F.3d

at 315.

5
The adequacy of the CBP production does not appear to be
challenged by plaintiff and, in any event, is not an issue
properly before this Court.
18
 Plaintiff also argues that TSA’s search was inadequate

because TSA did not produce several letters from plaintiff’s

counsel regarding plaintiff’s FOIA request. TSA responds that

these documents post-date plaintiff’s FOIA request and are

accordingly not considered part of his request, which the TSA

interpreted as seeking information in existence at the time of

the request. The Court finds this approach reasonable and also

notes there is also no particular need to produce back to

plaintiff documents that plaintiff or his counsel already have.

Plaintiff also cites to several letters sent to the offices

of Congresswoman Jean Schmidt, who is the representative for the

Congressional district in which plaintiff’s father resides.

These letters include an October 16, 2008 letter from a CBP

official to Representative Schmidt, see ECF No. 10-2, Ex. A, and

an August 16, 2010 letter from a CBP official to Representative

Schmidt, see id. Ex. D. Plaintiff cites these letters as

further proof that the searches were inadequate. Plaintiff

fails to acknowledge, however, that the letters were sent from

CBP, rather than TSA. Because plaintiff’s FOIA request was made

to TSA, the Court finds that these letters are not evidence of

an inadequate search.

In view of the fact that the reasonableness of a FOIA

search is determined, “not by the fruits of the search, but by

the appropriateness of the methods used to carry out the

19
search,” Iturralde, 315 F.3d at 315, the Court finds that

defendants’ searches for documents responsive to plaintiff’s

FOIA request were adequate.

B. Exemptions

1. Exemption 3

Exemption 3 allows an agency to withhold or redact

information prohibited from disclosure by another statute if the

statute “establishes particular criteria for withholding or

refers to particular types of matters to be withheld.” 5 U.S.C.

§ 552(b)(3). In this case, defendants argue that certain

documents are exempt from disclosure pursuant to 49 U.S.C. §

114(r) and its implementing regulations at 49 C.F.R. § 1520.

Section 114(r) states that, “[n]otwithstanding section 552 of

Title 5, the Under Secretary shall prescribe regulations

prohibiting the disclosure of information obtained or developed

in carrying out security . . . if the Under Secretary decides

that disclosing the information would . . . be detrimental to

the security of transportation.” The specific regulation on

which the defendants rely is 49 C.F.R. § 1520.5(b)(9)(ii), which

expressly prohibits from disclosure “[i]nformation and sources

20
of information used by a passenger or property screening or

system, including an automated screening system.” 6

Plaintiff does not challenge whether Section 114(r)

qualifies as an Exemption 3 withholding statute. 7 Rather,

plaintiff argues that Section 114(r) does not apply to his case

because 1) defendants did not make a decision as to whether it

would prevent release of certain documents until after

plaintiff’s litigation was filed; 2) that even if Section 114(r)

prevents release of certain information pursuant to FOIA, it has

no effect on plaintiff’s claim under the Privacy Act; 3) that

the information he is seeking relates only to himself, and is

therefore not barred from disclosure under Section 114(r); and

(4) that a CBP employee disclosed to plaintiff that his name was

on a watch list and, accordingly, any right to withhold that

information or respond with a Glomar response has been waived.

The Court disagrees. Plaintiff’s claim that defendants

have waived their right to withhold information pursuant to

6
Section 144(r) was previously numbered as 114(s) until 2007.
Earlier case law and statutes that have not yet been revised
refer to the statute by its earlier number.
7
Several courts, including courts in this district, have
considered whether Section 114(r) qualifies as an Exemption 3
withholding statute and have concluded that it does. See Tooley
v. Bush, No. 06-306 (CKK), 2006 WL 3783142 (D.D.C. Dec. 21,
2006), aff’d on rehearing on other grounds, 586 F.3d 1006 (D.C.
Cir. 2009); Elec. Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d
100, 109-10 (D.D.C. 2005); Gordon v. FBI, 390 F. Supp. 2d 897,
900 (N.D. Cal. 2004) (“no dispute” that Section 114(r) qualifies
as an Exemption 3 withholding statute).
21
Exemption 3 because they may or may not have designated the

information as SSI until after receiving his FOIA request, or

indeed, even after this litigation was filed, fails. Plaintiff

cites to no law that would require defendants to designate

certain information as SSI prior to a FOIA request or risk

waiving their ability to withhold such information.

The Court also rejects plaintiff’s argument that the

information should be released because plaintiff has requested

the information under the Privacy Act, in addition to FOIA.

Plaintiff’s argument ignores the provision in the TSA’s SSI

regulation that specifically addresses this issue. See Defs.’

Reply at 7 (quoting 49 C.F.R. § 1520.15(a)) (“[N]otwithstanding

the Freedom of Information Act (5 U.S.C. 5552), the Privacy Act

(5 U.S.C. 552(a)), and other laws, records containing SSI are

not available for public inspection or copying, nor does TSA . .

. release such records to persons without a need to know.”).

Plaintiff has not established that he would qualify as a person

with “need to know.” Plaintiff has also not cited any case law

in support of his third and related argument that he should

receive the records simply because they are about him.

Plaintiff’s fourth argument also fails. Plaintiff alleges

that information regarding plaintiff’s presence on a watch list

should be produced because a CBP official told him that he was

on a watch list when he was stopped at the Hartsfield-Jackson

22
Atlanta International Airport in 2009. In this respect,

plaintiff appears to allege that the waiver doctrine applies.

The D.C. Circuit has held that “when information has been

‘officially acknowledged,’ its disclosure may be compelled even

over an agency’s otherwise valid exemption claim.” Fitzgibbon

v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). In Fitzgibbon, the

court identified three requirements to determine whether the

government has waived its right to withhold information by

officially acknowledging it. Specifically, plaintiff must

establish that the information requested is as specific as the

information previously released, must match the information

previously disclosed, and must have already been made public

through an official and documented disclosure. Id. Plaintiff

does not attempt to argue that the comment by the CBP official,

even if true, was an “official and documented disclosure.”

Furthermore, plaintiff’s citation to Wolf v. CIA, 473 F.3d 370

(D.C. Cir. 2007) does not support his argument because that case

involved an official admission of the existence of specific

records by a CIA official during a public Congressional hearing.

In contrast, in this case, the alleged disclosure was made by an

unnamed CBP employee while plaintiff was stopped at an airport.

There is nothing official about it, nor was it documented.

Accordingly, plaintiff’s waiver claim fails.

23
 a. Scope of the Court’s Review

Moving on to the Court’s review of the information withheld

under Exemption 3, defendants argue that this Court lacks

jurisdiction to review TSA’s designation of the withheld

information as SSI. Under 49 U.S.C. § 46610, a person

challenging the TSA’s designation of information as SSI “may

apply for review of the order by filing a petition in the United

States Court of Appeals for the District of Columbia Circuit or

in the court of appeals of the United States for the circuit in

which the person resides or has its principal place of

business.”

The Court agrees that it lacks jurisdiction to review the

substance of the TSA’s SSI designations. See In re September 11

Litigation, 236 F.R.D. 164, 175 (S.D.N.Y. 2006); Shqeirat v.

U.S. Airways Group, Inc., No. 07-1513 (ADM/AJB), 2008 WL

4232018, *2 (D. Minn. Sept. 9, 2008) (“To the extent that these

requests seek Sensitive Security Information (“SSI”) and

plaintiffs object to U.S. Airways’ production of documents after

review by the TSA, the Court directs plaintiffs to the Court of

Appeals, which have ‘exclusive jurisdiction to affirm, amend,

modify or set aside’ final orders issued by the TSA pursuant to

49 U.S.C. § 114(s).”).

Although the Court has found that it lacks jurisdiction to

review the TSA’s decision to designate certain material as SSI,

24
the Court must still determine whether the material withheld, as

described by TSA, fits within the scope of Section 114(r). See

Morley v. CIA, 508 F.3d 1108, 1126 (D.C. Cir. 2007) (quoting

Ass’n of Ret. R.R. Workers v. U.S. R.R. Ret. Bd., 830 F.2d 331,

336 (D.C. Cir. 1987) (“‘[T]he sole issue for decision is the

existence of a relevant statute and the inclusion of the

withheld material within the statute’s coverage.’”); James

Madison Project v. CIA, 607 F. Supp. 2d 109, 126 (D.D.C. 2009).

b. Documents Redacted Pursuant to Exemption 3

TSA redacted several documents pursuant to Exemption 3 and

49 U.S.C. § 114(r). Specifically, the redactions indicated as

R.1, R.2, R.3, R.4, R.6, R.7, R.10, R.11, and R.21 were redacted

because they would “reveal information and sources of

information providing insight into passenger screening systems,

the knowledge about which would undermine a TSA screening system

and therefore be detrimental to transportation security.”

Declaration of William E. Benner, Jr., (“Benner Decl.”), ECF No.

9-2, ¶ 9. The TSA further explains that the information

withheld

may reveal a specific name that may or may not appear
on the government “No-Fly” or “Selectee” lists. The
information provided in these fields can include notes
about people, sources of information, and actions
taken by particular agencies that may be used in
combination to determine whether an individual is or
is not on the “No-Fly” or “Selectee” lists. In
addition, the redacted information from an internal
electronic mail, labeled R.21, also contains

25
 information that can be used to determine whether an
individual is or is not on the “No Fly” or “Selectee”
lists. That information is prohibited from disclosure
under 49 C.F.R. § 1520.5(9)(b)(ii). The disclosure of
this information would be detrimental to the security
of transportation because it would enable those
planning an attack on an aircraft to identify
operatives who have or have not previously been
identified as a threat.

Benner Decl. ¶ 10. The Court finds that this information, as

described, fits squarely within the scope of Section 114(r) and

that the information redacted by TSA was appropriately withheld.

c. Glomar Response Pursuant to Exemption 3

In the TSA’s August 25, 2011 supplemental response to

plaintiff’s FOIA request, the TSA stated that it could neither

confirm nor deny whether plaintiff’s name was on a Federal Watch

List. Specifically, the TSA stated that pursuant 49 U.S.C. §

114(r) and its implementing regulation at 49 C.F.R. §

1520.15(a), Federal Watch Lists constitute “Sensitive Security

Information” that is exempted from disclosure. The TSA stated

that it was withholding that information pursuant to FOIA

Exemption 3. TSA argues that this refusal is a proper Glomar

response 8 because “the existence of responsive records uncovered

during these searches would reveal whether the Plaintiff’s name

matches an identity” on the lists. Benner Decl. ¶ 11. Because

the TSA uses these lists for passenger pre-board screening,

8
The term “Glomar” response refers to the subject of a FOIA
request pertaining to a ship, the Hughes Glomar Explorer, at
issue in Phillipi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).
26
“merely acknowledging the presence or absence of information

identifying Plaintiff constitutes SSI.” Id. ¶ 11 (citing 49

C.F.R. § 1520.5(b)(9)(ii)). TSA argues that this information

must therefore be withheld under Exemption 3.

Plaintiff challenges the justification for the TSA’s Glomar

response as set forth in the declaration of William Benner.

Plaintiff asserts that “[w]hen Benner states that it would be

endangering national security to reveal to me whether my name is

on the list, he is either entering the realm of the Kafkesque

[sic] or he has exceeded his authority under Section 114(r).”

Pl.’s Opp. at 20.

The D.C. Circuit has recognized that an agency “may refuse

to confirm or deny the existence or records where to answer the

FOIA inquiry would cause harm cognizable under a FOIA

exemption.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir.

1982). Here, the TSA argues that FOIA exemption 3, which

applies to matters specifically exempted by statute, applies to

TSA’s Glomar response based on 49 U.S.C. § 114(r) and the

implementing regulations at 49 C.F.R. § 1520.5(b)(9)(ii).

The Court finds that the TSA’s Glomar response to

plaintiff’s FOIA request was entirely proper and squarely within

the realm of its authority. See Tooley, 2006 WL 3783142, at *20

(finding that Glomar response to request regarding a person’s

presence on TSA watch lists was entirely proper under Section

27
114(r) where the TSA explained that if the TSA “were to confirm

in one case that a particular individual was not on a watch

list, but was constrained in another case merely to refuse to

confirm or deny whether a second individual was on a watch list,

the accumulation of these answers over time would tend to reveal

SSI.”); see also Gordon v. FBI, 388 F. Supp. 2d 1028, 1037 (N.D.

Cal. 2005) (“Requiring the government to reveal whether a

particular person is on the watch lists would enable criminal

organizations to circumvent the purpose of the watch lists by

determining in advance which of their members may be

questioned.”). Accordingly, the Court finds that defendants

have established that TSA properly responded to plaintiff’s

request for information about whether his name appeared on a

watch list by refusing to confirm or deny that information

pursuant to FOIA Exemption 3.

2. Exemption 6

Exemption 6 covers “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). A determination of proper withholding under

Exemption 6 requires “weigh[ing] the privacy interest in non-

disclosure against the public interest in the release of records

in order to determine whether, on balance, the disclosure would

work a clearly unwarranted invasion of personal privacy.”

28
Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999) (internal

quotation marks omitted). Moreover, the agency has a duty to

engage in this balancing test before deciding whether to

disclose or withhold each record. Judicial Watch v. U.S. Dep’t

of Homeland Sec., 598 F. Supp. 2d 93, 96 (D.D.C. 2009).

The information redacted by the TSA pursuant to Exemption 6

includes the “names, initials, position titles, and/or the last

four digits of the telephone number of federal employees who are

involved in the DHS TRIP process.” Coates Decl. ¶ 37. TSA

determined that the public’s interest in the names or other

personal information of the federal employees involved in the

DHS TRIP process was outweighed by the federal employees’

privacy interest in that information. Id. ¶ 38. TSA determined

that the information would provide very little insight into the

manner in which the TSA performs its statutory duties. TSA also

considered the likelihood that disclosure would result in

harassment and annoyance of TSA employees in light of their

involvement in traveler redress activities.

In his opposition, plaintiff appears to mostly concede the

Exemption 6 issue. He states that he has “no qualms with the

legal principles applicable to Exemption 6 claims” and then

cites several cases relied upon by defendants. Pl.’s Opp. at

22. Plaintiff then says that he is “willing to stipulate that

29
the identities of any third party federal workers be redacted

from the documents to be disclosed” to him. Id. at 23.

Upon the Court’s review of the redacted documents, the

majority very clearly indicate that they bear only minor

redactions to the names and other personal identifying

information, such as phone numbers, of federal employees who

wrote and/or received emails about plaintiff’s case. The Court

finds that these redactions were properly made pursuant to

Exemption 6 and, in addition, that plaintiff has conceded that

defendants may redact personal information about federal

employees.

A limited number of redactions made by defendants,

indicated as R. 6, R. 7, and R. 10, do not clearly indicate that

they are redacting personal information about federal employees.

Because the Court has determined that these redactions were

properly made pursuant to Exemption 3, see supra, the Court need

not determine whether they were also properly redacted pursuant

to Exemption 6.

C. Segregability

Plaintiff does not dispute that all reasonably segregable

information was produced to him. Even after determination that

documents are exempt from disclosure, however, FOIA analysis is

not properly concluded unless a court determines whether “any

reasonably segregable portion of a record” can “be provided to

30
any person requesting such record after deletion of the portions

which are exempt.” 5 U.S.C. § 552(b). “So important is this

requirement that ‘[b]efore approving the application of a FOIA

exemption, the district court must make specific findings of

segregability regarding the documents to be withheld.’” Elec.

Frontier Found. v. Dep’t of Justice, 826 F. Supp. 2d 157, 173

(D.D.C. 2011) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d

1106)). The Court errs if it “simply approve[s] the withholding

of an entire document without entering a finding on

segregability or the lack thereof.” Powell v. U.S. Bureau of

Prisons, 927 F.2d 1239, 1242 n. 4 (D.C. Cir. 1992) (citations

omitted).

“It has long been the rule in this Circuit that non-exempt

portions of a document must be disclosed unless they are

inextricably intertwined with exempt portions.” Mead Data

Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir.

1977). The agency should, for example, “‘describe what

proportion of the information in [the] documents,’ if any, ‘is

non-exempt and how that material is dispersed through the

document[s].” Elec. Frontier Found., 826 F. Supp. 2d at 174

(citing Mead Data Cent., Inc., 566 F.2d 242, 261 (D.C. Cir.

1977)); see King v. Dep’t of Justice, 830 F.2d 210, 219 (D.C.

Cir. 1987) (agency must sufficiently identify the withheld

material to enable the district court to make a rational

31
decision whether the withheld material must be produced without

actually viewing the documents).

Upon review of the documents, the Court finds that

defendants have made very limited, specific redactions and have

explained in detail the basis for those redactions. See Coates

Decl. ¶¶ 30-40. It appears that defendants have redacted only

what was necessary to protect the exempt information, and

defendants are not withholding any documents in full.

Accordingly, the Court finds that all segregable information has

been disclosed to plaintiff.

D. Attorneys’ Fees

In his cross-motion for summary judgment, plaintiff argues

that he is entitled to attorneys’ fees pursuant to 5 U.S.C. §

552(a)(4)(E)(i). Plaintiff’s request misses a crucial point:

plaintiff filed this action pro se and his counsel did not enter

an appearance until after plaintiff had filed his opposition to

defendants’ motion for summary judgment. Accordingly, to the

extent plaintiff’s counsel has incurred fees, those fees could

only be attributed to his work on plaintiff’s cross-motion for

summary judgment. That motion advances substantially all of the

same arguments made while plaintiff was pro se and, as discussed

above, plaintiff has not prevailed on any of those arguments.

Furthermore, plaintiff did not respond to defendants’ arguments

regarding the inapplicability of attorneys’ fees in his reply,

32
thereby conceding the issue. See Day v. D.C. Dep’t of Consumer

& Regulatory Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002)

(“If a party fails to counter an argument that the opposing

party makes in a motion, the court may treat that argument as

conceded.”). Accordingly, the Court finds that plaintiff is not

entitled to an award of fees. See Elec. Priv. Info. Ctr., 811

F. Supp. 2d at 238-39 (fees incurred in preparing unsuccessful

motions are properly denied under FOIA); see Weisberg, 745 F.2d

at 1499.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS defendants’

motion for summary judgment and DENIES plaintiff’s cross-motion

for summary judgment. An appropriate Order accompanies this

Memorandum Opinion.

Signed: Emmet G. Sullivan
United States District Judge
September 26, 2012

33