Electronic Privacy Information Center v. United States Department of Homeland Security , 928 F. Supp. 2d 139 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ELECTRONIC PRIVACY )
INFORMATION CENTER, )
)
Plaintiff, )
)
v. ) Civil No. 10-1992 (RCL)
)
UNITED STATES DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendant. )
)
MEMORANDUM OPINION
This action concerns a Freedom of Information Act (“FOIA”) request by the Electronic
Privacy Information Center (“EPIC”) for records held by the Department of Homeland Security
(“DHS”) pertaining to radiation emissions produced by Advanced Imaging Technology (“AIT”)
machines used to screen passengers at commercial airports. The parties have filed cross-motions
for Summary Judgment. ECF Nos. 9 & 11. The Court will GRANT in part and DENY in part
both motions. DHS is entitled to summary judgment as to all of its withholdings pursuant to
exemptions 3, 5, and 6 and all withholdings pursuant to exemption 4 except for two reports based
on the government’s own testing, which DHS must disclose.
I. BACKGROUND
Starting in 2005, the Transportation Security Administration (“TSA”) began using full-
body scanning machines in U.S. airports to screen travelers on U.S. commercial aircraft. Pl.’s
Opp’n to Def.’s Mot. for Summ. J., Cross-Mot. for Summ. J. (“Pl.’s Opp’n”) 1, ECF No. 11.
The TSA subsequently decided to make these scanners the primary form of screening
passengers. Id. at 2. These machines use either backscatter x-ray or millimeter wave technology
to capture detailed, three-dimensional images of individuals and transmit them for review by
Transportation Security Officers. Id. at 1–2.
In July 2010, EPIC submitted a FOIA Request to DHS seeking the following information
about AIT:
1) All records concerning TSA tests regarding body scanners and radiation emission
or exposure; and
2) All records concerning third party tests regarding body scanners and radiation
emission or exposure.
See FOIA Request at 4, Def.’s Ex. A, ECF No. 9-1 at 1. EPIC requested expedited processing of
its request and a waiver of duplication fees. Id. at 4–5. DHS referred the request to two
components: the TSA and the Science and Technology Directorate (“S&T”). Def.’s Statement
of Material Facts ¶ 2, ECF No. 9; Pl.’s Statement of Material Facts ¶ 3, ECF No. 11-2.
TSA initially denied EPIC’s requests for expedited processing and a fee waiver. Def.’s
Ex. C, Aug. 12, 2010, ECF No. 9-1 at 35. EPIC appealed, Def.’s Ex. D, Aug. 27, 2010, ECF No.
9-1 at 39, and challenged the agency’s failure to make a timely determination regarding its FOIA
request. Pl.’s Statement ¶ 7; Def.’s Resp. to Pl.’s Statement of Material Facts (“Def.’s Resp.”) ¶
7, ECF No. 13 at 29. The TSA affirmed its denial of the request for expedited processing but
agreed to waive fees. Def.’s Ex. F, Nov. 24, 2010, ECF No. 9-1 at 58.
S&T denied EPIC’s request for a fee waiver. EPIC appealed this determination along
with S&T’s failure to make a timely determination regarding EPIC’s FOIA request. Pl.’s
Statement ¶¶ 8–10; Def.’s Resp. ¶¶ 8–10.
2
EPIC filed this FOIA action in November 2010, alleging that DHS had “failed to disclose
a single record” and had “failed to comply with statutory deadlines” and seeking an order that the
agency immediately disclose all responsive records. Compl. ¶ 2, ECF No. 1.
Several months later, both TSA and S&T released hundreds of pages of records
responsive to EPIC’s requests and withheld information pursuant to FOIA exemptions 3, 4, 5,
and 6. Pl.’s Statement ¶¶ 13–16; Def.’s Statement ¶¶ 11–15. EPIC now challenges certain of
these withholdings, but notably EPIC also claims it has already “substantially prevailed” by
obtaining the released documents. Pl.’s Opp’n 23.
II. LEGAL STANDARD
The Freedom of Information Act, 5 U.S.C. § 552, requires federal agencies to make
certain records publicly available. FOIA also provides exemptions from the disclosure
requirement, which are to be “narrowly construed.” FBI v. Abramson, 456 U.S. 615, 630 (1982).
Four of these, exemptions 3, 4, 5, and 6, are relevant to this case and are described in greater
detail below.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be
granted when “there is no genuine issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). FOIA actions are typically and appropriately resolved on summary
judgment. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir.
2011); see also COMPTEL v. FCC, 06-cv-1718, 2012 WL 6604528, *4 (D.D.C. Dec. 19, 2012).
The agency bears the burden in litigation to justify withholding any records. 5 U.S.C. §
552(a)(4). This is in part because of the “strong presumption in favor of disclosure,” U.S. Dep’t
of State v. Ray, 502 U.S. 164, 173 (1991) and because FOIA requesters face an information
3
asymmetry given that the agency possesses the requested information and decides whether it
should be withheld or disclosed. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145–46 (D.C.
Cir. 2006). Thus, even where the requester has moved for summary judgment, the Government
“ultimately has the onus of proving that the documents are exempt from disclosure.” Pub. Citizen
Health Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999) (internal quotations and
modifications omitted); see also COMPTEL, 2012 WL 6604528, at *4.
To satisfy its burden, an agency may rely on detailed affidavits, declarations, a Vaughn
index, in camera review, or a combination of these tools. A Vaughn index correlates each
withheld document, or portion thereof, with a particular FOIA exemption and the justification for
nondisclosure. Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). While agency affidavits
are accorded a presumption of good faith, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991), they must “provide[] a relatively detailed justification, specifically identify[ing]
the reasons why a particular exemption is relevant and correlating those claims with the
particular part of a withheld document to which they apply.” Judicial Watch v. FDA, 449 F.3d at
146; see also COMPTEL, 2012 WL 6604528 at *4.
III. EPIC HAS CONCEDED THE ADEQUACY OF DHS’S SEARCH FOR
RESPONSIVE DOCUMENTS AND HAS AGREED NOT TO CONTEST ITS
WITHHOLDINGS PURSUANT TO EXEMPTION 6
DHS has moved for summary judgment as to the adequacy of its search for responsive
documents, Def.’s Br. 10–11, and the appropriateness of all its withholdings. See Def.’s Br. 11–
34. EPIC does not contest the adequacy of DHS’s search or any of its withholdings pursuant to
exemption 6. See Pl.’s Opp’n. In addition, EPIC apparently agreed not to contest any of these
exemption 6 withholdings. See E-mail from John Verdi to Jesse Grauman, Aug. 5, 2011, Ex. 9,
4
ECF No. 9-9. Accordingly, the Court takes these issues as conceded and grants summary
judgment to DHS as to all withholdings made under exemption 6.
IV. DHS IS ENTITLED TO SUMMARY JUDGMENT AS TO ITS EXEMPTION 3
WITHHOLDINGS 1
Both parties move for summary judgment as to withholdings made by DHS pursuant to
exemption 3. DHS is entitled to summary judgment as to these withholdings.
Exemption 3 permits the nondisclosure of materials that are “specifically exempted from
disclosure by statute” so long as that statute “establishes particular criteria for withholding or
refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A)(ii). Congress
amended exemption 3, adding language requiring “particular criteria for withholding” in order
“to overrule legislatively the Supreme Court’s decision in Administrator, FAA v. Robertson, 422
U.S. 255 (1975), which had given an expansive reading to the version of exemption 3 then in
force.” 2 Irons & Sears v. Dann, 606 F.2d 1215, 1219 (D.C. Cir. 1979). Only statutes that
“incorporate[] a formula whereby the administrator may determine precisely whether disclosure
in any instance” was prohibited will qualify under exemption 3. Am. Jewish Cong. v. Kreps, 574
F.2d 624, 628–29 (D.C. Cir. 1978). Statutes that merely “set forth benchmarks for secrecy so
general as the ‘interest of the public’ (such as the statute at issue in Robertson) do not satisfy . . .
[the] ‘particular criteria’ requirement.” Wis. Project on Nuclear Arms Control v. U.S. Dep’t of
Commerce, 317 F.3d 275, 280–81 (D.C. Cir. 2003) (quoting Am. Jewish Cong., 574 F.2d at
629)). But when “on the other hand, Congress has made plain its concern with a specific effect
of publicity . . . exemption 3 is to honor that concern.” Id.1
This Part of the opinion contains analysis that is similar to that in Part IV of this Court’s opinion in EPIC v. TSA,
11-cv-290, issued this date.
2
Robertson upheld an exemption 3 claim based on a pre-FOIA statute which barred disclosure of information that
would “adversely affect” the agency and was “not required to be disclosed in the interest of the public.” 422 U.S. at
259.
5
Section 114(r) of Title 49 provides:
Notwithstanding section 552 of title 5, the Under Secretary shall prescribe
regulations prohibiting the disclosure of information obtained or developed in
carrying out security under authority of the Aviation and Transportation Security
Act (Public Law 107-71) or under chapter 449 of this title if the Under Secretary
decides that disclosing the information would . . . be detrimental to the security of
transportation.
49 U.S.C. § 114(r), (r)(C). Pursuant to that authority, TSA promulgated regulations that
expressly prohibit the disclosure of certain categories of sensitive security information. See
generally 49 C.F.R. pt. 1520.
Judge Kollar-Kotelly has held that § 114(r) qualifies as a “statute of Exemption as
contemplated by Exemption 3.” Tooley v. Bush, 06-cv-306, 2006 WL 3783142, *4 (D.D.C. Dec.
21, 2006) rev’d in part on other grounds sub nom. Tooley v. Napolitano, 556 F.3d 836 (D.C. Cir.
2009). Judge Kollar-Kotelly’s conclusion rested on a D.C. Circuit decision which interpreted a
provision containing nearly identical language to § 114(r). Pub. Citizen, Inc. v. FAA, 988 F.2d
186, 194 (D.C. Cir. 1993). The Public Citizen court examined withholdings made pursuant to
the following provision:
Notwithstanding section 552 of Title 5 relating to freedom of information, the
[FAA] Administrator shall prescribe such regulations as he may deem necessary
to prohibit disclosure of any information obtained or developed in the conduct of
security or research and development activities under this subsection if, in the
opinion of the Administrator, the disclosure of such information . . . (C) would be
detrimental to the safety of persons traveling in air transportation.
Pub. Citizen, 988 F.2d at 189 (quoting 49 U.S.C. § 1357(d)(2) (1993) (subsequently recodified at
49 U.S.C. § 40119(b)). The Circuit concluded that the provision granted the agency authority to
“withhold security-sensitive information from members of the public, regardless of the legal
basis of the request for the information,” including FOIA Id. at 195–96. The Circuit explained
6
that Congress added the “notwithstanding” language to ensure that the statute qualified under
FOIA’s Exemption 3. 3 Id. at 195.
This Court agrees with Judge Kollar-Kotelly in finding Public Citizen persuasive.
Because section 114(r) contains virtually identical language to the provision in that case,
particularly the “notwithstanding” language, the Circuit’s analysis is equally applicable to
section 114(r), and that provision must also qualify under exemption 3.
Judicial review of TSA’s determination that certain material is nondisclosable “security
sensitive information” is available exclusively in federal circuit courts. See 49 U.S.C. § 46110(a)
(“[A] person disclosing a substantial interest in an order issued . . . in whole or in part under . . .
subsection . . . (s) of section 114 4 may apply for review of the order by filing a petition for
review 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.”); id. § 46110(c) (describing the prescribed jurisdiction as “exclusive”); see
also Koutny v. Martin, 530 F. Supp. 2d 84, 91 (D.D.C. 2007) (“A remedy to challenge a final
TSA classification order is provided by statute. An interested party may petition to modify or set
aside such an order in an appropriate court of appeals.” (citing § 46110(a))). Accordingly,
district courts may not review TSA orders that designate material as security sensitive
information. See Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 77–78 (D.C. Cir.
1984) (“[W]here a statute commits review of agency action to the Court of Appeals, any suit
3
This belies EPIC’s charges that the Public Citizen court “does not . . . resolve the question of whether the statute at
issue in that case, 49 U.S.C. § 1357(d)(2), qualifies as an Exemption 3 statute,” and the Court did “not engage in an
Exemption 3 analysis at all.” See Pl.’s Reply 3, ECF No. 18.
4
Subsection (s) of section 114 formerly authorized TSA to prohibit the disclosure of certain material found to be
detrimental to the security of transportation; in 2007, this subsection was redesignated as § 114(r). Pub. L. 110–161
§ 568, Dec. 26, 2007, 121 Stat. 1844. Section 46110(a) has not yet been updated to reflect this clerical change.
7
seeking relief that might affect the Circuit Court’s future jurisdiction is subject to the exclusive
review of the Court of Appeals.”).
Here, DHS has withheld information designated as security sensitive pursuant to § 114(r).
Because this Court lacks jurisdiction to review the merits of the specific withholdings made
pursuant to that provision, see 49 U.S.C. § 46110(a), (c), the legal conclusion that § 114(r)
qualifies for exemption 3 withholding takes this Court as far as it can go here. DHS is entitled to
summary judgment on its withholding of the material designated as security sensitive
information.
V. BOTH PARTIES ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT AS
TO THE EXEMPTION 4 WITHHOLDINGS
DHS moves for summary judgment as to its withholdings pursuant to exemption 4, and
EPIC challenges only some of these withholdings. DHS is entitled to summary judgment with
respect to the unchallenged exemption 4 withholdings and both parties are entitled to partial
summary judgment with respect to the challenged exemption 4 withholdings.
Exemption 4 protects from disclosure information that is “commercial or financial
information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4).
Information is exempt only if it is (1) commercial or financial, (2) obtained from a person, and
(3) privileged or confidential. See Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280,
1290 (D.C. Cir. 1983).
Because EPIC does not contest that any of the withheld information is “commercial” or
“privileged or confidential,” the sole question is whether the withheld information was “obtained
from a person.” Information may be “obtained from a person” if provided by individuals,
corporations, or numerous other entities, but not if it was generated by the federal government.
See Bd. of Trade v. CFTC, 627 F.2d 392, 404 (D.C. Cir. 1980). However, government-prepared
8
records may be protected if they summarize information obtained from another person. See, e.g.,
Gulf & W. Indus. v. United States, 615 F.2d 527, 529–30 (D.C. Cir. 1979). The key inquiry is
who “the source of the information [was] in the first instance,” and not necessarily who created
the particular document. See In Def. of Animals v. Nat’l Inst. of Health, 543 F. Supp. 2d 83, 103
(D.D.C. 2008).
EPIC challenges fifteen sets of exemption 4 withholdings from three documents, all
regarding the radiation emitted by body scanning machines produced by American Science &
Engineering (“AS&E”).
A. 2006 Report
The first contested document is a 33-page 2006 report authored by a government official
evaluating the radiation safety of a body scanning machine called the “Dual Smart Check”
produced by AS&E. See Pl.’s Ex. 1 § II (challenging withholdings at Bates numbers 926, 933,
934, 936, 937, 940, 941, 942, 944–45, 946, 947, & 954–56); Def.’s Opp’n 14; Def.’s Ex. C to
Decl. of Pamela Beresford (“TSL 5 Vaughn Index”), ECF No. 9-3.
DHS concedes that “the withholdings in this report reflect the government’s own
radiation measurements conducted on an AS&E Smart Check machine . . . .” Def.’s Opp’n 15;
see also id. at 16 (describing the information at issue as “radiation testing results performed on
machines that were obtained by the government from AS&E for testing purposes”).
Accordingly, the “source of the information in the first instance” was the government, not a
“person.” See In Def. of Animals, 543 F. Supp. 2d at 103.
DHS argues that the “ultimate source” of information was not the testing but the machine
provided by the company for testing. Def.’s Opp’n 16. This argument fails. DHS relies on
5
The Transportation Security Laboratory is a unit within S&T. Beresford Decl. ¶ 3, ECF No. 9-3.
9
cases finding that information collected by the government at on-site visits to private
manufacturing plants were “obtained from a person” and protected from disclosure. See Lion
Raisins, Inc. v. USDA, 354 F.3d 1072 (9th Cir. 2004); Mulloy v. Consumer Prod. Safety
Comm’n, 1985 U.S. Dist. LEXIS 17194 (S.D. Ohio). But these cases are neither binding on this
Court nor persuasive in the present case. First, neither case addressed the issue of whether the
information was “obtained from a person.” See Def.’s Opp’n 15, 16 n.13. Second, even
assuming that information gathered from an on-site visit to a plant qualifies as “obtained from a
person,” information gathered from a test of equipment already in the government’s possession
does not. This information was generated by the government’s own testing, not by a private
party, and therefore is not entitled to exemption 4 protection. This Court will order DHS to
disclose this information.
B. 2008 Report
The second document is a 3-page 2008 report authored by the same government official
evaluating a later version of the same machine. See Pl.’s Ex. 1 § II, ECF No. 11-5 (challenging
withholdings at Bates numbers 897–99, 1190–91); Def.’s Opp’n 13-14; TSL Vaughn Index 14,
20. The TSL Vaughn Index asserts that the information included in this document was based on:
(1) a third-party compliance report . . . submitted to the government as part of
AS&E’s Qualification Package . . . demonstrating compliance with certain
requirements . . . (2) radiation dosage maps submitted by AS&E . . . , (3) designs
and other information obtained from AS&E, and (4) a prior evaluation conducted
by Mr. Cerra [citing the Bates number of the 2006 Report] based on an earlier-
model AS&E system obtained by the government for testing.
TSL Vaughn Index 14 (emphasis added); see also Def.’s Opp’n 14–15. Thus, this 3-page report
was based in part on the 2006 report, which, this Court has found was not “obtained from a
person.” Information based on that earlier report would also not be “obtained from a person.”
10
With respect to the report, Bates numbers 897–99, the TSL Vaughn Index states that the
withholdings from this report include the following:
• Descriptions of design features and scanning mechanisms used by AS&E
Dual SmartCheck, including measurements and geometry of x-ray beam
• Specific Radiation Dose Levels Emitted by AS&E Dual SmartCheck at
various locations
• Assessments of, and recommendations for improving, radiation safety of
AS&E Dual SmartCheck
TSL Vaughn Index 14. The government bears the burden to justify withholding any records. 5
U.S.C. § 552(a)(4). These descriptions fail to demonstrate that any particular piece of the
withheld information was not based on the 2006 report, so the Court finds that these
withholdings were invalid under exemption 4. The Court will order DHS to produce the
report—save for any parts that were properly withheld under other exemptions.
DHS also withheld information from an attachment to the report, Bates numbers 1190–
91. This attachment, a “dosage map,” was “submitted by AS&E in connection with the
evaluation of AS&E’s Dual Smart Check . . . .” Id. Because the information withheld from this
attachment was “obtained from a person” this withholding was valid.
C. E-mail
The third document is an email submitted by AS&E to a TSL official regarding
compliance with radiation safety standards. Pl.’s Ex. 1 § II (challenging withholdings at Bates
numbers 1192–93); Def.’s Opp’n 13–14; TSL Vaughn Index 20–21. Because this e-mail was
“obtained from a person,” the withholding pursuant to exemption 4 was valid.
11
VI. DHS IS ENTITLED TO SUMMARY JUDGMENT AS TO ITS EXEMPTION 5
WITHHOLDINGS
DHS moves for summary judgment as to its withholdings pursuant to exemption 5. EPIC
challenges only some of these withholdings. DHS is entitled to summary judgment with respect
to all of its exemption 5 withholdings.
FOIA’s exemption 5 permits the non-disclosure of “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). “To qualify, a document must thus satisfy two
conditions: its source must be a Government agency, and it must fall within the ambit of a
privilege against discovery under judicial standards that would govern litigation against the
agency that holds it.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
(2001). One such privilege is the “deliberative process privilege,” which “protects agency
documents that are both predecisional and deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d
141, 151 (D.C. Cir. 2006). A document is predecisional if “it was generated before the adoption
of an agency policy” and deliberative if “it reflects the give-and-take of the consultative
process.” Id. The deliberative process protection covers “documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Klamath, 532 U.S. at 8. The general
purpose of the deliberative process privilege is “to prevent injury to the quality of agency
decisions.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
EPIC challenges certain withholdings because they consist of “purely factual” material.
EPIC also challenges other withholdings from documents DHS refers to as “drafts” because
DHS failed to point to a final version of the document. The Court will address these arguments
and the related documents in turn.
12
A. Factual Material
The D.C. Circuit has explained that “[p]urely factual material usually cannot be withheld
under exemption 5 unless it reflects an exercise of discretion and judgment calls.” Ancient Coin
Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011) (internal quotations
and citations omitted). “Thus the legitimacy of withholding does not turn on whether the
material is purely factual in nature or whether it is already in the public domain, but rather on
whether the selection or organization of facts is part of an agency’s deliberative process.” Id.For instance, in Montrose Chemical Corp. of California v. Train the Circuit held that
factual summaries compiled into documents used by the administrator in the resolution of a
difficult, complex question were within the protection of exemption 5, because “[t]o probe the
summaries of record evidence would be the same as probing the decision-making process itself.”
491 F.2d 63, 68 (D.C. Cir. 1974). Similarly, in Mapother v. Dep’t of Justice, the Circuit held
that factual materials included in a report were immune from disclosure where that information
“was assembled through an exercise of judgment in extracting pertinent material from a vast
number of documents for the benefit of an official called upon to take discretionary action.” 3
F.3d 1533, 1539 (D.C. Cir. 1993); see also Ancient Coin Collectors Guild, 641 F.3d at 513–14.
In contrast, in Playboy Enterprises, Inc. v. Department of Justice, the Circuit found that
factual materials contained in a report were not protected because the report was “prepared only
to inform the Attorney General of facts which he in turn would make available to members of
Congress.” 677 F.2d 931, 936 (D.C. Cir. 1982).
EPIC challenges four of DHS’s withholdings of what it considers to be “purely factual”
material:
1. Draft Fact Sheet on Radiation Exposure: This document, withheld in
full, contains “[e]arly, internal draft versions of a fact sheet on
13
radiation exposure and AIT.” Def.’s Ex. A to Decl. of Bert Coursey
(“TES 6 Vaughn Index”) 604–05, ECF No. 9-2.
2. Working Document on Radiation Exposure: This document, withheld
in full, is an “[i]nternal working DHS document compiling estimates
of radiation exposure from various types of AIT based on external,
unverified data.” TES Vaughn Index 606.
3. Draft Fact Sheets on Health & Safety: These documents, withheld in
full, are “working drafts of DHS ‘fact sheet[s]’ on health and safety
issues related to AIT.” TSL Vaughn Index WHIF B.
4. E-mails re: Dosimeters: This e-mail exchange, withheld in full,
“contains an informal question-and-answer discussion between two
government employees regarding types of dosimeters (personal
radiation monitors) that could be appropriate for measuring radiation
from AIT.” TSL Vaughn Index WHIF H.
See Pl.’s Opp’n, Ex. 1 § III (a). 7
The Court finds that all of these materials, factual or not, were properly withheld under
exemption 5, because they are all part of DHS’s deliberative process regarding the future of the
AIT program. Disclosure of these deliberations would cause “injury to the quality of agency
decisions” and will not be required. Sears, Roebuck & Co., 421 U.S. at 151.
EPIC quotes from DHS’s brief and the Vaughn Index to bolster its claim that these
materials are ineligible because the materials are purely factual documents: “[t]he agency is
withholding ‘fact sheets,’ ‘preliminary testing results,’ and information regarding types of
dosimeters (personal radiation monitors that could be appropriate for measuring radiation from
AIT devices.)” Pl.’s Opp’n 17–18 (quoting Def.’s Br. 14, 16; TSL Vaughn Index WHIF H.).
6
Test, Evaluation, and Standards office of the Science and Technology Directorate, a component of DHS. See
Coursey Decl. ¶ 2, ECF No. 9-2.
7
EPIC refers to an additional withholding not listed above: TSL Vaughn Index WHIF C. See Pl.’s Reply 14 (“It
would be difficult to think of a more axiomatic example of a factual document than one that the agency itself has
described as a ‘fact sheet.’” (citing TSL Vaughn, WHIF C). However, the Vaughn Index does not describe that
document as a “fact sheet,” but rather as a “talking-point” memo. And, as noted above, the Vaughn Index does
describe WHIF B, as a “fact sheet.” For the foregoing reasons, and because EPIC failed to list this document in its
master list of challenged withholdings, the Court will not address this document further.
14
EPIC’s quotation is misleading: the government’s brief actually states that DHS withheld
“records related to the drafting process of . . . fact sheets.” Def.’s Br. 14 (emphasis added).
Elsewhere, as in the above withholdings descriptions drawn from the Vaughn indices, DHS
acknowledged withholding fact sheets, but only “draft or preliminary fact sheets as well as
deliberations concerning those drafts.” Def.’s Reply 19 (emphasis added). EPIC has apparently
failed to acknowledge, much less rebut, this important qualification on the nature of the
withholdings. Again, the drafts and deliberations surrounding these fact sheets were part of
DHS’s deliberations on the future of the body scanner program. Thus, whether “factual” or not,
they are part of DHS’s deliberative process. The government’s descriptions of these
withholdings are sufficiently specific to justify protection under the deliberative process
privilege.
As to “preliminary testing results” and the information on “dosimeters,” EPIC’s
characterization is accurate, but nevertheless does not merit disclosure. The fact that the “testing”
was preliminary is key: these preliminary results were part of the agency’s deliberations in how
to approach the potential risks of the body scanning technology. As to the “dosimeter”
document, the description indicates that it contains an “informal question-and-answer discussion
between two government employees”—exactly the sort of agency deliberation that this
exemption is meant to protect. The government’s descriptions of these withholdings is sufficient
to demonstrate that the factual material was part of the agency’s deliberative process regarding
the future testing and implementation of the body scanner program and thus qualifies for
protection under exemption 5.
15
B. Drafts
A document designated as a “draft” does not automatically obtain protection pursuant to
exemption 5. “Even if a document is a draft of what will become a final document, the court
must also ascertain whether the document is deliberative in nature.” Arthur Andersen & Co. v.
IRS, 679 F.2d 254, 257–58 (D.C. Cir. 1982); see also Dudman Commc’ns Corp. v. Dep't of Air
Force, 815 F.2d 1565, 1569 (D.C. Cir. 1987) (“disclosure of editorial judgments—for example,
decisions to insert or delete material or to change a draft’s focus or emphasis—would stifle . . .
creative thinking and candid exchange of ideas . . . .”).
EPIC claims that “[w]hen an agency uses the deliberative process privilege to withhold
draft documents under Exemption 5, it must identify a corresponding final decision” and relies
on several cases from this district in support of this position. Pl.’s Opp’n 19. But this overstates
the burden on agencies. As the Supreme Court explained:
Our emphasis on the need to protect pre-decisional documents does not mean that
the existence of the privilege turns on the ability of an agency to identify a
specific decision in connection with which a memorandum is prepared. Agencies
are, and properly should be, engaged in a continuing process of examining their
policies; this process will generate memoranda containing recommendations
which do not ripen into agency decisions; and the lower courts should be wary of
interfering with this process.
Sears, Roebuck & Co., 421 U.S. at 153 n.18. Accordingly, to protect a “draft” document, an
agency need not necessarily identify a corresponding final document but must provide adequate
description of the document to demonstrate that it was genuinely part of the agency’s
deliberative process.
EPIC’s reliance on three cases from this district in support of its proposed rigid rule is
misplaced. Pl.’s Opp’n 19. EPIC’s reliance on Exxon Corp. v. Department of Energy is
particularly misleading. EPIC omitted the key modifying phrase “In some instances” that
16
precedes the language they quote: “where DOE has failed to identify a final document
corresponding to a putative draft, the ‘draft’ shall be ordered produced . . . .” 585 F. Supp. 690,
698 (D.D.C. 1983). Moreover, even the language EPIC does not selectively omit reflects a more
nuanced rule than the one EPIC proposes; the sentence concludes: “. . . to the extent that the
agency has provided no basis for determining that it in fact has such status.” Id. Similarly, in
Mayer, Brown, Rowe & Maw LLP v. IRS, Judge Collyer found that the documents at issue were
“too removed from an actual policy decision” to warrant protection under exemption 5, but the
case does not stand for the proposition that an agency seeking to withhold a draft must always
point to a final version of that document. 537 F. Supp. 2d 128, 136 (D.D.C. 2008). Finally, in
Judicial Watch, Inc. v. U.S. Postal Serv., Judge Kennedy faulted the government for failing to
“identify specific final decisions or decisionmaking processes to which the documents
contributed” where the government had merely suggested in a general way that the documents
related to the issues raised in the FOIA request. 297 F. Supp. 2d 252, 264 (D.D.C. 2004).
Judicial Watch does not stand for the rule EPIC proposes.
With these principles in mind, the Court turns to the contested withholdings. EPIC
challenges numerous withholdings of “drafts”:
1. Response to EPIC: This document, withheld in part pursuant to both
the deliberative process privilege and the attorney client privilege
under Exemption 5, contained “draft language, from [an] attorney in
TSA[‘s] Office of Chief Counsel to [a] TSA official regarding [a]
suggested response letter to EPIC’s petition to suspend use of AIT.”
from Def.’s Ex. K to Decl. of Paul Sotoudeh (“TSA Vaughn Index”)
26–27.
2. Draft Document On Standards and Testing: This document, withheld
in full, is a “marked-up draft of a document called ‘Standards and
Testing for Radiation Safety for Airport Backscatter X-Ray Systems.’”
TSL Vaughn Index WHIF I.
17
3. Memoranda on Body Scanner Radiation and Safety: One document,
withheld in part, is an “internal memorandum on AIT safety.” TSA
Vaughn Index 38. The withheld portion “contains recommendation[s]
from [an] internal memorandum regarding future efforts by TSA
regarding development of [body scanner] radiation safety standards.”
Id. Another document, withheld in part, contains “[i]nternal
deliberations concerning [a] cover memo for [a] report on AIT safety,
including draft language for [the] memorandum.” TSA Vaughn Index
69–70. A third document, withheld in part, contains “preliminary
versions, edits, and revisions of excerpts of a memorandum to the
Undersecretary of DHS on AIT radiation safety.” TES Vaughn Index
87–88. A fourth document, withheld in full, contains “comments and
suggested revisions to a draft document on AIT radiation safety.” TES
Vaughn Index 608. A fifth group of documents, withheld in full,
contain “draft versions of memorandum on AIT safety, emails
containing comments on the drafts, and emails concerning releasing
the memoranda and fact sheets on AIT safety to a wider audience.”
TES Vaughn Index 665–80, 688–726. A sixth document, withheld in
full, contains “comments concerning a draft version of memorandum
on AIT safety.” TES Vaughn Index 741–42. A seventh set of
documents, withheld in full, are “draft versions of a document on AIT
radiation safety standards, with changes tracked.” TES Vaughn Index
743–54, 750–52, 1057–59. A ninth document, withheld in full,
contains “comments concerning a draft version of a fact sheet on AIT
safety, as well as draft versions of the fact sheet.” TES Vaughn Index
785–88, 792–838. A tenth document, withheld in full, contains
“deliberations concerning a draft NIST [National Institute of Standards
and Technology] technical bulletin on AIT radiation safety, and draft
versions of the NIST technical bulletin.” TES Vaughn Index 1060–
1100, 1108–1146, 1149–86. Finally, an eleventh document, withheld
in part, contains “suggestions of points to be included in [a] draft
memorandum to [the] Deputy Secretary of DHS on radiation safety.”
TSL Vaughn Index 908–910.
4. Drafts of Fact Sheet: These documents, withheld in full, contains
“working drafts of [a] DHS ‘fact sheet’ on health and safety issues
related to AIT.” TSL Vaughn Index WHIF B.
5. Draft Summary of AIT Radiation Safety: This document, withheld in
full, is “an early draft of [a] policy document concerning AIT radiation
safety” entitled “Summary of Advanced Imaging Technology (AIT)
Radiation Safety: Standards and Ensuring Compliance, April 22,
2010.” TSL Vaughn Index WHIF J.
6. Response to Congressional Inquiries: One document, withheld in part,
contains “[i]nternal deliberations concerning TSA’s response to [a]
18
congressional inqury, including draft language for [the] response.”
TSA Vaughn Index 52. A second document, withheld in part,
“reflect[s] deliberations regarding the formulation of a response by
DHS to inquiries by Congress, including a draft version of the
response to one question.” TES Vaughn Index 80–82. A third set of
documents, withheld in part, consist of “deliberations concerning a
proposed response to a letter by Senators Collins, Coburn, and Burr
concerning backscatter radiation safety.” TES Vaughn Index 951–58,
971–72, 980–82, 990–1023. A fourth set of documents, withheld in
full, consist of “discussions regarding how to respond to an inquiry
from a congressional committee concerning AIT radiation safety.”
TES Vaughn Index 746–49. A fifth set of documents, withheld in full,
contain “comments, revisions, and internal memoranda making
recommendations concerning a proposed response to a letter by
Senators Collins, Coburn, and Burr concerning backscatter radiation
safety, as well as draft versions of the response letters and
accompanying white paper.” TES Vaughn Index 959–70, 973–79,
983–89, 1024–48.
7. Draft TSA Assessments and Findings: This document, withheld in full,
is a “[d]raft version (including tracked changes) of TSA
assessment/findings regarding radiation output of AIT machines.”
TSA Vaughn Index 108A–F. 8
8. Response to Scientists: One document, withheld in part, “describes the
contents of a draft letter responding to scientists’ concerns about AIT
and radiation safety.” TES Vaughn Index 113–15. A second
document, withheld in part, contains “the authors’ discussions and
opinions regarding reactions to the government’s response to the
UCSF letter of concern, and future steps to take to address these
reactions.” TES Vaughn Index 440–48. A third document, withheld
in part, contains “the author’s discussions of future steps she intends to
take regarding correspondence between Dr. Holdren and UCSF.” TES
Vaughn Index 535. 9 A fourth document, withheld in part, “consist[s]
of opinions concerning a proposed response to a letter from scientists
at UCSF concerning backscatter radiation safety.” TES Vaughn Index
943–44. A fifth set of documents, withheld in full, “consist of
comments and revisions concerning a proposed response to a letter
from scientists at UCSF concerning backscatter radiation safety, as
well as draft versions of the response letter.” TES Vaughn Index 839–
60, 866–89, 896–907, 911–42, 949–50.
8
EPIC intended to list this document rather than TSA Vaughn Index 107–08. See Pl.’s Reply 12. The Court finds
that considering this document will not prejudice DHS, although they have not had the opportunity to respond to the
specific challenge, because DHS’s description of the document is materially similar to several other documents.
9
There is a discrepancy here. EPIC refers to TES Vaughn Index 535–36, but the index contains no such
document—referring only to “535, 546.” The Court assumes that EPIC refers to this document.
19
9. Response to Pilots: One set of documents, withheld in part, contains
“draft language and deliberations concerning a DHS/TSA response to
the concerns raised by American Airlines pilots.” TES Vaughn Index
381–82, 384–86. A second document, withheld in part, contains “the
author’s reflections regarding concerns raised by the Allied Pilots
Association.” TES Vaughn Index 391–92.
10. Documents for DHS Leadership on Radiation Safety: One document,
withheld in full, “contains comments regarding an upcoming response
by the DHS Undersecretary on radiation safety.” TES Vaughn Index
609. A second set of documents, withheld in full, “contain comments
on, edits to, and draft versions of a memorandum to the Deputy
Secretary of DHS on AIT safety.” TES Vaughn Index 620–29. A
third document, withheld in full, “consists of comments and
suggestions regarding the content of a proposed memorandum to the
Deputy Secretary of DHS on AIT radiation safety.” TES Vaughn
Index 631–35. A fourth document, withheld in full, “consist[s] of a
draft version of a memorandum to the Deputy Secretary of DHS on
AIT safety, with changes tracked, and an email forwarding the draft
memorandum.” TES Vaughn Index 651–55. A fifth document,
“consist[s] of comments and deliberations concerning draft versions of
a question-and-answer memorandum to the DHS Secretary concerning
backscatter radiation safety, as well as draft versions of the
memorandum.” TES Vaughn Index 753–84.
11. Draft AIT Standard Operating Procedures: This document, withheld in
full, consists of “emails forwarding a draft section regarding employee
safety from TSA’s Advanced Imaging Technology Standard Operating
Procedure (SOP), and the draft SOP sections themselves.” TES
Vaughn Index 611–19.
12. Response to Foreign Government: This document, withheld in full,
consists of “discussions between agency personnel regarding how to
respond to an inquiry from a foreign government concerning AIT
radiation safety.” TES Vaughn Index 729–40.
13. FDA Testing: This document, withheld in full, “is a preliminary
progress report, resulting from an interagency agreement between
DHS and FDA, by the FDA concerning the testing of the effects of the
L3 Provision on personal medical devices.” TSL Vaughn Index WHIF
L. The report “reflects an interim report prior to the completion of
testing of the effects of the L3 Provision on medical devices.” Id.20
As a preliminary matter, the first of these withholdings, TSA Vaughn Index 26–27, was
withheld pursuant to both the deliberative process privilege and the attorney client privilege, but
EPIC challenges only the former. Accordingly, DHS is entitled to summary judgment as to this
withholding.
As to the remaining documents, EPIC’s sole argument with respect to these withholdings
is that DHS failed to indicate a corresponding “final” document that would justify withholding
these “drafts.” As discussed above, this overstates the agency’s burden. Instead, the agency
must only demonstrate that each withholding, “draft or otherwise,” was genuinely part of the
agency’s deliberative process. The Court is satisfied with the descriptions provided in the
Vaughn indices that each of these withholdings meets this requirement and finds that these
withholdings were proper pursuant to exemption 5.
Finally, EPIC’s assertion that DHS failed to produce segregable portions of the withheld
documents also fails. See Pl.’s Opp’n 19–20. “Agencies are entitled to a presumption that they
complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). According to the Vaughn indicies
provided by the agency, many of the contested withholdings under exemption 5 were partial
redactions from specific pages, rather than complete withholdings of entire documents. See
Vaughn Index 13–14, 17–19. Moreover, the agency has twice made supplemental release of
documents after determining that further segregable material could be released and has declared
in a sworn affidavit that it has released the segregable portion of each of these records. Sotoudeh
Decl. ¶¶ 22–23, 72. As EPIC has failed to offer any argument in support of its allegation that
might cast doubt on DHS’s sworn statement, the Court finds that all reasonably segregable
materials were disclosed.
21
VI. ATTORNEYS’ FEES AND COSTS
EPIC has moved for attorneys’ fees and costs. Pl.’s Opp’n 20–24. The Court will not
address that motion here. Pursuant to the local rules, the Court shall “enter an order directing the
parties to confer and to attempt to reach agreement on fee issues” and shall set a status
conference at which the Court will
(1) determine whether settlement of any and or all aspects of the fee matter has
been reached, (2) enter judgment for any fee on which agreement has been
reached, (3) make the determination [regarding pending appeals] required by
paragraph (b) of . . . [LCvR 54.2], and (4) set an appropriate schedule for
completion of the fee litigation.
LCvR 54.2.
VII. CONCLUSION
For the foregoing reasons, EPIC and DHS are both entitled to partial summary judgment.
An Order shall issue with this opinion.
Signed by Royce C. Lamberth, Chief Judge, on March 7, 2013.
22