Electronic Privacy Info. v. Dept. of Homeland Sec., Civil Action No. 04-0944 (RMU).

• Decision Date: 25 July 2005
• Docket Number: Civil Action No. 04-0944 (RMU).
• Parties: ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY et al., Defendants.
• Court: U.S. District Court — District of Columbia

384 F.Supp.2d 100

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY et al., Defendants.

Civil Action No. 04-0944 (RMU).

United States District Court, District of Columbia.

July 25, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Marcia Clare Hofmann, David L. Sobel, Electronic Privacy Information Center, Washington, DC, for Plaintiff.

Nicholas J. Patterson, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

URBINA, District Judge.

GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING THE PLAINTIFF'S REQUEST FOR IN CAMERA INSPECTION OF DOCUMENTS

I. INTRODUCTION

The plaintiff, the Electronic Privacy Information Center ("EPIC") brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522 et seq., to compel the defendants, the Department of Homeland Security ("DHS"), the Transportation Security Administration ("TSA"), and the Department of Justice ("DOJ"), to disclose various documents concerning the government's attempts to acquire passenger data from airlines. This matter is before the court on the defendants' motion for summary judgment and on the plaintiff's request for an in camera inspection of withheld documents. Because the DOJ search for documents was adequate and because the court does not have enough information to decide whether some documents are properly withheld pursuant to the FOIA exemptions, the court grants in part and denies in part the defendants' motion for summary judgment. Because in camera review of withheld documents is not necessary at this time, the court denies the plaintiff's request for an in camera inspection. The court also orders the DHS and the TSA to submit a revised Vaughn index¹ consistent with this memorandum opinion.

II. BACKGROUND

A. Factual Background

After the September 11, 2001 terrorist attacks, the TSA, an agency within the DHS, began developing a new system, the Computer Assisted Passenger Prescreening System ("CAPPS II"), to confirm passenger identities and identify terrorists or individuals with terrorist connections. Pl.'s Opp'n to Mot. for Summ. J. ("Pl.'s Opp'n") at 2. While CAPPS II was still in development, the media raised concerns about TSA's "efforts to obtain detailed passenger data from airlines." Id. at 3. For example, Wired News reported that in September 2002, TSA facilitated the transfer of five million passenger itineraries from JetBlue Airways to a contractor working for the Department of Defense for testing of "a Pentagon project unrelated to airline security." Id. at 4 (citing Ryan Singel, JetBlue Shared Passenger Data, WIRED NEWS, Sept. 18, 2003). This media coverage provoked several class action lawsuits against JetBlue, as well as internal investigations by the DHS Privacy Office and Army Inspector General. The DHS Privacy Office's final report on the investigation concluded that the TSA had indeed assisted the Department of Defense in obtaining airline passenger information from JetBlue. Id. The Privacy Office also found that, although the TSA had also sought and received offers of passenger data from other airlines for the purpose of testing CAPPS II, those airlines later rescinded their offers, and CAPPS II was never tested with passenger data. Id. at 4-5. Ultimately, "the report concluded that no TSA employees had violated the Privacy Act by facilitating transfer of passenger data." Id. at 5.

Since the release of the DHS Privacy Office's report, several airlines publicly admitted to providing passenger data to companies vying for TSA contracts to assist in the development of a passenger screening program. Id. at 5. In June 2004, TSA acknowledged that at least eight airlines have released passenger data. Id. at 6. The DHS Privacy Office is currently investigating the circumstances surrounding the data transfers. Id. at 7 (citing Defs.' Mot., Withnell Decl. ("Withnell Decl.") ¶ 55).

B. Procedural Background

The plaintiff is a non-profit organization dedicated to informing the public about privacy and civil liberties issues. Compl. ¶ 3. In 2003 and 2004, the plaintiff filed three FOIA requests with the defendants soliciting information about the transfer of airline passenger information to the government following the September 11 attacks. The plaintiff now seeks information from the Federal Bureau of Investigation ("FBI"),² the DHS, and the TSA pertaining to the access and use of air passenger data by government agencies. Defs.' Mot. for Summ. J. ("Defs.' Mot.") at 2. On June 9, 2004, the plaintiff filed the instant suit, alleging that the FBI's search for documents was inadequate and that the DHS and the TSA improperly withheld documents, and requesting an in camera review of the withheld documents. On January 19, 2005, the defendants filed their motion for summary judgment. The court now turns to that motion.

III. ANALYSIS

A. Legal Standard for Summary Judgment in a FOIA Case

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). In deciding whether there is a genuine issue of material fact, the court is to view the record in the light most favorable to the party opposing the motion, giving the non-movant the benefit of any doubt as to the existence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

FOIA affords the public access to virtually any federal government record that FOIA itself does not specifically exempt from disclosure. 5 U.S.C. § 552; Vaughn v. Rosen, 484 F.2d 820, 823 (D.C.Cir.1973). FOIA confers jurisdiction on the federal district courts to order the release of improperly withheld or redacted information. 5 U.S.C. § 552(a)(4)(B). In a judicial review of an agency's response to a FOIA request, the defendant agency has the burden of justifying nondisclosure, and the court must ascertain whether the agency has sustained its burden of demonstrating that the documents requested are exempt from disclosure under FOIA. 5 U.S.C. § 552(a)(4)(B); Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C.Cir.2001); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C.Cir.1998). An agency may meet this burden by providing the requester with a Vaughn index, adequately describing each withheld document and explaining the exemption's relevance. Summers, 140 F.3d at 1080; Vaughn, 484 F.2d 820 (fashioning what is now commonly referred to as a "Vaughn index").

The court may grant summary judgment to an agency on the basis of its affidavits if they:

[(a)] describe the documents and the justifications for nondisclosure with reasonably specific detail, [(b)] demonstrate that the information withheld logically falls within the claimed exemption, and [(c)] are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). While an agency's affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith. SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (citing Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981). But such evidence cannot be comprised of "purely speculative claims about the existence and discoverability of other documents." Id.

B. Defendant DOJ's Search was Reasonable

1. Legal Standard for Adequacy of Agency Search

"A requester dissatisfied with the agency's response that no records have been found may challenge the adequacy of the agency's search by filing a lawsuit in the district court after exhausting any administrative remedies." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999). To prevail on summary judgment, "the agency must demonstrate beyond material doubt that its search was reasonably calculated to uncover all the relevant documents." Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995) (internal quotations and citations omitted). An agency must search for documents in good faith, using methods that are reasonably expected to produce the requested information. Valencia-Lucena, 180 F.3d at 326 (citing Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir., 1990)). The principal issue is not whether the agency's search uncovered responsive documents, but whether the search was reasonable. Oglesby, 920 F.2d at 67 n. 13 (citing Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986); Moore v Aspin, 916 F.Supp. 32, 35 (D.D.C.1996)). The agency need not search every record in the system or conduct a perfect search. SafeCard Servs., Inc., 926 F.2d at 1201; Meeropol, 790 F.2d at 952, 956. Nor need the agency produce a document where "the agency is no longer in possession of the document[] for a reason that is not itself suspect." SafeCard Servs., 926 F.2d at 1201.

Instead, to demonstrate reasonableness, the agency must set forth sufficient information in affidavits for the court to determine, based on the facts of the case, that the search was reasonable. Nation Magazine, 71 F.3d at 890 (citing Oglesby, 920 F.2d at 68). Again, while an agency's...