Sai v. Transp. Sec. Admin., Civil Action No. 14-403 (RDM)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRANDOLPH D. MOSS United States District Judge
PartiesSAI, Plaintiff, v. TRANSPORTATION SECURITY ADMINISTRATION, Defendant.
Docket NumberCivil Action No. 14-403 (RDM)
Decision Date24 May 2018

SAI, Plaintiff,
v.
TRANSPORTATION SECURITY ADMINISTRATION, Defendant.

Civil Action No. 14-403 (RDM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

May 24, 2018


MEMORANDUM OPINION AND ORDER

This case is one of a series of cases that Plaintiff, who suffers from a neurological disorder, has brought arising out of his alleged mistreatment by Transportation Security Administration ("TSA") employees at various airport security checkpoints. This Court previously resolved one of those cases, which Plaintiff brought against the TSA under the Rehabilitation Act seeking to compel the agency to respond to his complaints of mistreatment. See Sai v. Dep't of Homeland Sec., 149 F. Supp. 3d 99 (D.D.C. 2015). Other cases, seeking damages and declaratory and injunctive relief relating to the alleged mistreatment and the TSA's policies more generally, remain pending before at least two other federal courts. See Sai v. Covenant Aviation Sec., No. 16-1024 (N.D. Cal); Sai v. Pekoske, No. 15-2356 (1st Cir.).

In this action, Plaintiff alleges that the TSA has failed adequately to respond to six requests under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act ("PA"), 5 U.S.C. § 552a. The first of these requests sought surveillance video and reports relating to an incident that occurred at Boston's Logan International Airport ("BOS"), as well any other complaints against the TSA employees involved in the incident and any similar

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complaints against the TSA, airport police, or airport agents. Plaintiff subsequently expanded this request also to seek records relating to incidents at New York LaGuardia Airport ("LGA") and Chicago O'Hare International Airport ("ORD"). The second request sought "any contract/agreement with other agencies regarding surveillance, or maintenance of surveillance footage, at Logan Airport." Dkt. 99-3 at 78 (McCoy Decl. Ex. I). The third request followed an incident at San Francisco International Airport ("SFO") and sought records like those Plaintiff sought relating to the BOS incident. The fourth—and by far the most expansive request—sought all policies and procedures that the TSA has ever issued that are not already available in the TSA's "electronic reading room." Finally, the fifth and sixth requests sought any additional records regarding the BOS and SFO incidents created after Plaintiff's original requests.

After Plaintiff filed suit, the TSA responded to each of the six pending FOIA requests and eventually released almost 4,000 pages of records (some with redactions) and three closed circuit television videos. The TSA has now moved for summary judgment, arguing that it reasonably construed (and, where necessary, narrowed) Plaintiff's requests; that it thoroughly searched for responsive records; and that it released all responsive, non-exempt records. Plaintiff opposes the TSA's motion and, with two minor exceptions, challenges virtually every aspect of the TSA's multiple searches and productions. He contends that, as to each of his six requests, the TSA failed to conduct an adequate search; failed to produce segregable portions of records; withheld metadata and failed to release records in their "native," electronic format or in "fully digital, non-"rasterized" PDFs; improperly designated records as Sensitive Security Information ("SSI"); and improperly invoked FOIA Exemptions 3, 6, and 7. He alleges, in addition, that the TSA withheld records that had been previously released; made false or misleading statements in its Vaughn indices; violated the Privacy Act by maintaining records relating to his "protected First

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A]mendment speech," Dkt. 111-2 at 33-34; destroyed records in violation of a "clear[] . . . evidence preservation demand," id. at 34; withheld records so as to commit "felony obstruction of justice," id. at 39; and, more generally, "maintained numerous unlawful policies, practices, and procedures . . . and willful violation[s of the APA, FOIA, Rehabilitation Act, Privacy Act, and SSI statutes." Dkt. 111 at 3.

As explained below, many of these contentions are not properly before the Court; others are not developed with sufficient clarity to survive summary judgment; and yet others lack legal or factual merit. But there is some wheat among this abundance of chaff. The Court will, accordingly, GRANT in part and DENY in part the TSA's motion.

I. BACKGROUND

The wide-ranging history of this matter is recounted in this Court's numerous prior opinions and orders. See Dkt. 34 (denying motion for preliminary injunction and motion for sanctions); Dkt. 42 (denying motion to expedite); Dkt. 43 (granting defendant's motion for protective order); Dkt. 47 (denying motion for reconsideration regarding sanctions); Dkt. 48 (denying motion to compel); Dkt. 49 (denying motion for leave to amend); Dkt. 74 (denying motions for reconsideration, for clarification, and to strike); Dkt. 93 (denying motion to compel service of Section 46105(b) orders and for declaratory relief regarding Section 46110(a) deadline, denying plaintiff's motion for attorney fees and costs, and denying leave to file supplemental pleading); see also Sai v. TSA, No. 16-5004 (D.C. Cir. June 6, 2016) (order dismissing interlocutory appeal seeking initial hearing en banc); Sai v. TSA, No. 16-1065 (U.S. Sup. Ct. June 5, 2017) (denying petition for writ of certiorari). For present purposes, the Court need not repeat that history in its entirety, but simply recounts the allegations and procedural history relevant to the pending motion.

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A. FOIA Requests

The subject of this suit are six FOIA and Privacy Act requests for records that Plaintiff, whose full name is Sai, sent to the TSA in 2013.

Sai submitted the first of these requests on January 28, 2013,1 requesting information relating to an incident at a security checkpoint at Boston Logan International Airport ("BOS Request"). This request initially sought "reports," "notes, correspondence, communications, . . . relating to the incident," "any and all records related to [Sai];" "copies of [Sai's] [travel] documents that were made at the scene;" "all history of complaints" against the TSA agents with whom he came into contact and "similar complaints" against the TSA; and "documents and communication related to responding to this request." Dkt. 99-3 at 50-51 (McCoy Decl. Ex. A). After the TSA requested additional information regarding the request on February 15, 2013, Sai expanded the request to include "all records related to" prior security incidents that occurred at New York LaGuardia Airport on June 27, 2012, and Chicago O'Hare International Airport on December 25, 2010. Id. at 55 (McCoy Decl. Ex. B). TSA failed to respond to the expanded BOS Request within the 20-day period specified by FOIA. See id. at 8 (McCoy Decl. ¶ 25); id. at 59 (McCoy Decl. Ex. D). On August 8, 2014, the agency provided an interim response releasing seven pages of records, with some redactions. Id. at 8 (McCoy Decl. ¶ 25). It supplemented this response on October 3, 2014 with the release of an additional 229 pages of records and video of the BOS incident. Id. at 9 (McCoy Decl. ¶ 27).

On February 22, 2013, Sai submitted a second FOIA request ("CCTV Request") to TSA by email, requesting "any contract/agreement with other agencies regarding surveillance, or

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maintenance of surveillance footage, at Logan airport." Id. at 78 (McCoy Decl. Ex. I). The TSA did not respond to Sai's request until August 8, 2014, when it released 16 pages of responsive records in full. Id. at 18 (McCoy Decl. ¶ 56); id. at 80 (McCoy Decl. Ex. J).

Sai submitted the third request at issue, relating to an incident that took place at San Francisco International Airport ("SFO Request"), by email on March 15, 2013. Id. at 85-86 (McCoy Decl. Ex. L). Like the BOS Request, the SFO Request sought "reports," "notes, correspondence, [and] communications, . . . relating to the incident;" "any and all records related to [Sai];" "all history of complaints" against the TSA agents with whom he came into contact and "similar complaints" against the TSA; and "documents and communication related to responding to this request." Id. (McCoy Decl. Ex. L). The TSA initially responded to the request on August 8, 2014, "releasing 72 pages of responsive records in full as well as two CCTV videos." Id. at 22 (McCoy Decl. ¶ 71); id. at 93 (McCoy Decl. Ex. N). The agency supplemented that response on October 3, 2014 with an additional 427 pages of responsive records. Id. at 23 (McCoy Decl. ¶ 73).

The fourth request, which sought TSA policies and procedures ("Policies Request"), is by far the most expansive. Sai submitted that request on March 16, 2013. It sought (1) "[a]ll 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, Operations Directives, Security Directives, Emergency Amendments, Information Circulars, Memoranda, Handbooks, Letters, Bulletins, and Guidance ever issued, including both old [and] current versions;" (2) the "TSA's policies regarding screening procedures, both now and . . . at any point in the past;" (3) the "TSA's policies regarding the treatment of passengers with disabilities, both now and in the past;" (4) the "TSA's policies regarding the enforcement of its

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policies when TSA personnel . . . refuse to comply with TSA policy in a way that infringes on the rights of travelers;" (5) the "TSA's policies regarding cooperation with local airports and police;" (6) the "TSA's policies regarding when checkpoint video may be released;" (7) the "TSA's policies regarding 'no fly[,'] 'selectee[,'] and any similar lists;" (8) "legal justification for the TSA's public claims that passengers may not revoke consent to administrative search" including "formal agency legal memoranda, policy statements that include specific legal foundation arguments, court filings in which...

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