~i

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION ZGiZ :t;~is P
Liberty Guard 900 Circle 75 Pkwy Atlanta, GA 30339 PLAINTIFF, v.

1: 3L1

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Civil Action No.:

(., 1(;2, C

i.

(;/J? 1-/

(JldlJ

2-F /

Transportation Security Administration U.S. Dept. of Homeland Security Washington, D.C. 20528 DEFENDANT

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COMPLAINT

FOR DECLARATORY
Guard

AND INJUNCTIVE
referred

RELIEF
to as the

COMES NOW Liberty "Plaintiff")

(hereinafter

by and through undersigned

counsel

of The Law this Complaint referred to

O££iae o£ Andrew for Declaratory

E. Maa£ar~ane, P.C., and brings and Injunctive against Relief

(hereinafter

as the "Complaint") Administration

the Transportation referred

Security to

(hereinafter

to as the "Defendant")

compel compliance Section follows:
I. JURISDICTION

with the Freedom referred

of Information to as "FOIA"),

Act, 5 U.S.C. and states as

552

(hereinafter

AND VENUE

1. matter

This Honorable of this Complaint

Court has jurisdiction pursuant Section to 5 U.S.C. 1331.

over the subject

Section

552 (a) (4) (B) and 28 U.S.C. 2. Venue is proper

in this Court pursuant

to 28 U.S.C.

1

Section
II.
3.

1391 (e). PARTIES The Plaintiff informs is a 501 (c) (4), non-profit personal liberty, organization but not

that actively

the public on issues including, right to privacy the Transportation DC. Security

limited to: matters rights and citizens'
4.

affecting

Constitutional

The Defendant,

Administration, is headquartered possession, Plaintiff seeks.

is an agency of the United States Government in Washington, The Defendant has

and

custody and control of the records to which the OF FACTS AND CLAIMS 29, 2010, the Plaintiff (hereinafter referred sent an rules, (See to as the

III. STATEMENT
5.

On or about November to the Defendant seeking records and policies

FOIA Request "Request"), regulations Exhibit A.) 6.

related to the Defendant's to airport

pertaining

security.

More specifically,

the Plaintiff

sought:

.,. any documents you may have which contain any and all Administrative Directives or Memoranda from either the TSA and/or the DBS, or any component thereof, from November 5, 2010 to November 29, 2010, pertaining to instructions to staff, employees or supervisors that affect the public when members of the public are asked to submit to full body scans or "pat downs" while attempting to board aircraft, which have been adopted by the TSA or DBS. I also request any documents which discuss the aforementioned issue and contain the terms "national opt-out day," "Bob Barr", "Opt Out Alliance", "Liberty Guard", "John Tyner", "George Donnelly", "wewontfly.com", "domestic extremists", "drudgereport.com," "Matt Drudge", "prisonplanet.com", "Alex Jones" and any other term or proper name germane to the aforementioned terms and matter. 7. "Receipt"} On December on December 10, 2010, the Defendant (hereinafter referred 10, 2010, and assigned 2 acknowledged to as the it the case number

receipt of the Request

TSAI1-0196. 8. ten The Receipt stated the request would be subject per 5 U.S.C. Section 552 (a) (6) (B). in to a

(10) day extension 9.

The Plaintiff

also had contact with an attorney (hereinafter referred to as the

the Defendant's "Attorney") . 10. 11.

FOrA office

The Attorney In a timely

requested fashion,

clarification

on the the the to to

information clarification
12.

sought by the Plaintiff. the Plaintiff provided requested by the Defendant and the Attorney. 19, 2011 to respond responded by

As a result of the Ten

(10) day extension,

Defendant 13.

had until on or about January During late January, (hereinafter

the Request. 2011, the Defendant

the Plaintiff

referred had nine

to as the "Response") (9) pages of records referred to as the the

stating that the Defendant responsive 14. to the Request However,

(hereinafter

"Information"). Information, Exemption")

(See Exhibit B.) the Defendant refused to release was exempt referred from disclosure to as a

stating the Information 552 (hereinafter 114(r) and 49 U.S.C.

under 5 U.S.C.

to as a "(bJ (2) referred

(hereinafter

"(b) (3) Exemption"). 15. On or about February 9, 2011, the Plaintiff submitted

an appeal to the Defendant referred
16.

based upon the Response (See Exhibit appears program
C.)

(hereinafter

to as the "Appeal") The Appeal as the Request an important

stated the

(b) (2) Exemption

should be that

inapplicable, may represent origins affects

to include documents that could explain the and procedure,

resource

of the TSA scanning tens of thousands

one that states

of air passengers

in the united

every day.
3

17.

Further undermining the Request

the Defendant's information

claim of a (b} (2) a number that may

Exemption, of Internet

included

regarding

sites and names of specific individuals in TSA's documents.

have been mentioned making references

Should the TSA be such

to these Websites

and individuals, privacy

actions could be construed individuals

as violating

of said

and the Websites

in contradiction

of the protection of the United

of privacy as provided States Constitution.
18.

by the Fourth Amendment

Finally,

the Plaintiff

learned that the security (hereinafter in the Request referred As could not by the Defendant.

program

that is a portion

of the Request included

to as the "Program")

was being wound-down

such, release of the documents lead to a contravention full force and effect.
19.

of the law if the law is no longer in (b) (3) Exemption, the Defendant, as

Regarding earlier,

the

mentioned

is winding

down the Program

that is the

subject matter of a portion
20.

of the Request. disclosure of the for the

As a result of this winding-down, contained

documents

in the Request would not be eligible

(b} (3) Exemption, would have little
21.

as release of the materials

in the Request security. the Information an index of the nine (9) pages

to no impact on transportation the Defendant, to provide in admitting

Finally, is required

exists,

to the Plaintiff

documents
22.

and/or portions The Plaintiff

of documents,

numbering

that have been withheld

by the TSA1. has exhausted any and all administrative Section

remedies with respect to the FOIA Request per 5 U.S.C. 552 (a} (6) (c).

lSeevdughn

v. Rosen,

484 F.2d 820

(D.C. Cir. 1973),

cert. denied.

415 U.S. 977

(1974).

4

IV. CAUSES OF ACTION COUNT I: VIOLATION The Plaintiff
23.

OJ' FOIA and states: same by

sues the Defendant hereby realleges

The Plaintiff

the allegations

contained reference 24.

in paragraphs

1 through 22 and incorporates FOIA by failing

as though they were fully set forth herein. has violated to produce

The Defendant nine

an index of the documents numbering 25. continue conform The Plaintiff

and/or portions

of documents, by the TSA2 will to harmed by reason of is compelled

(9) pages that have been withheld is being irreparably violations

the Defendant's

of FOrA, and the Plaintiff

to be harmed unless the Defendant its requirements to the law.

V. PRAYER FOR RELIEF WHEREFORE, the Plaintiff prays as follows: Court order the Defendant any and all non-exempt to records to the any a. That this Honorable

search for and produce responsive index of allegedly
b. Enjoin

to the ForA Request,

as well as a Vaughn

exempt records responsive and from continuing responsive

request by a date certain; the Defendant and and all non-exempt Request; c. Grant the Plaintiff other litigation action pursuant
d. Grant

to withhold to the

records

ForA

an award of attorney's incurred

fees and in this

costs reasonably

to 5 U.S.C. Section

552 (a) (4) (E); and

the Plaintiff

such other relief as this

Honorable

Court deems just and proper.

'See Vaughn

v. Rosen,

484 F.2d

820

(D.C. Cir. 1973),

cert. denied,

415 U.S.

977

(1974).

5

Respectfully

Submitted,

The Law Office of Andrew

E. Macfarlane,

P.C.

Andrew E. Macfarlane, Esq. VSB #75144 803 West Broad St., Suite 720 Falls Church, VA 22046 Tel: (703) 493-0396 Fax: (703) 241-4919 Attorney for Plaintiff

6

A

November

29, 2010

Transportation Security Administration TSA-20, East Tower FOrA Division 601 South 12th Street Arlington, VA 20598-6020

VIA ELECTRONIC

MAIL ONLY

FREEDOM

OF

INFORMATION

ACT

REQUEST

Re:

Disclosure of any and all Administrative Directives from either the Transportation Security Administration ("TSA") and/or the Department of Homeland Security ("DHS") pertaining to instructions to staff that affect the public when members of the public are asked to submit to full body scans or "pat downs" while attempting to board aircraft.

Dear Sir or Madam, This is a request under the Freedom of Information (5 U.S.C. §552, as amended) . Act

By this letter I am requesting any documents you may have which contain any and all Administrative Directives from either the TSA and/or the DHS pertaining to instructions to staff that affect the public when members of the public are asked to submit to full body scans or "pat downs" while attempting to board aircraft, which have been adopted by the TSA and ~he DHS. I also request any documents which discuss the aforementioned issue and contain the terms "national opt-out day," "Bob Barr", "Opt Out Alliance", "Liberty Guard", "John Tyner", "George Donnelly", "wewontfly.com", "domestic extremists", "drudgereport.com," "Matt Drudge",

"prisonplanet.com", "Alex Jones" and any other term or proper name germane to the aforementioned terms and matter. In light of the ongoing and contentious public pO~lCy controversy regarding the aforementioned matter and terms, I note that time is of the essence. There is a great need for prompt disclosure so that the released information may more adequately inform the public debate. I am making this request on behalf of Liberty Guard. Liberty Guard is a non-profit organization that actively informs the public on issues including, but nOL limited to: matters affecting personal liberty, Constitutional rights and citizens' right for privacy. These documents will illuminate in a clear and direct way, the operations and activities of the TSA and DHS as they pertain to the alleged protection of passengers that are processed through our nation's airports, as well as the penalties for those citizens that do not comply with the TSA and DHS commands. As such, these documents' release will significantly contribute to public understanding and oversight of both the TSA and DHS operations, particularly regarding the quality, guidelines and effectiveness of the TSA and DHS's activities. This request is not meant to be exclusive of any other records which, though not specifically named, would have a reasonable relationship to the subject matter of this request. In the event that access to any of the requested records is denied, please note that the FOIA provides that if only portions of a requested file are exempted from release under the FOIA, the remainder must still be released. I therefore request that I be provided with all non-exempt portions which are reasonably taken from the whole. I further request that you describe the deleted material, if any, in detail and specify the statutory basis for the denial as well as your reasons for believing that the alleged statutory justification applies in this instance. please sepa~ately state your reasons for not invoking your discretionary powers to release the requested documents in the public interest. Such statements will be helpful in deciding whether to appeal an adverse determination, and in formulating arguments in case an appeal is filed. The TSA and DHS's written justification might also help to avoid unnecessary litigation, should the matter require it. I of course reserve my right to

appeal the withholding or deletion of any information and expect that you will list the office and address were such an appeal can be sent. I anticipate, however, that you will make the reqLested materials available within the statutorily prescribed period. I thus also request that you waive any applicable fees since disclosure meets the statutory standard for waiver of fees in that it is clearly "in the public interest because furnishing the information can be considered as primarily benefiting the general public:." In this regard, I have no intention of using the information requested and subsequently disclosed for my own or for Liberty Guard's financial gain. If for some reason, the fee waiver request is denied, while reserving my right to appeal such a decision, I am willing to pay Twenty and 00/100 Dollars ($20.00) to cover TSA and DHS's costs, as long as an itemized invoice is sent to my office. Per the FOIA, access to the requested records should be granted within twenty (20) working days from the date of receipt of this letter. F~y failure to respond in a timely manner shall be viewed as a denial of this request and Liberty Guard will i~~ediately file an administrative appeal. Thank you in advance for your prompt Very Truly Yours, reply.

Christopher

L.

Markham,

Esq.

1 See

5 U. S .

c.

§ 552 (a)

(4)

(AJ

t :.S. j)cp"rtm~llt

!lr ",wld""d

Security

Freedom of Information Ad Office 601 Soulh 12'• Street, TS,\-20 ,\rJinellJn, \,,\ 2059H-6U20

Transportation Security Administration
Mr. Christopher Markham, Esquire The Law Office of Christopher L. Markham, LLC 751 Rockville Pike, Suite 4A Rockville, MD 20852 TSA Case Number: Dear Mr. Markham: This letter responds to your Freedom of Information Act (FOIA) request dated November 29, 2010, to the Transportation Security Administration (TSA) requesting: TSAI1-0196

1.

"any and all Administrative Directives or Memoranda from either the TSA and/or the DBS, or any component thereof, from November 5,2010 to November 29,2010, pertaining to instructions to staff, employees, or supervisors that affect the public when members of the public are asked to submit to full body scans or "pat downs" while attempting to board aircraft, which have been adopted by the TSA or DHS"

2. "any documents which discuss the aforementioned issue and contain the terms 'national opt-out day,' 'Bob Barr', 'Opt Out Alliance', 'Liberty Guard', 'John Tyner', 'George Donnelly', 'wewontfly.com', 'domestic extremists', 'drudgereport.corn;' 'Matt Drudge', 'prisonplanet.com ', 'Alex Jones' and any other term or proper name germane to the aforementioned terms and matter."
Your request was received in this office on December 10,2010.

Request #1 Request #1 for documents was processed pursuant to the FOIA, 5 U.S.c. § 552. A search within the Transportation Security Administration (TSA) was conducted and nine pages responsive to your request were located. However, all nine pages are being withheld in their entirety pursuant to Exemptions "High 2" and 3 of the FOlA. An explanation of these exemptions is outlined below. Exemption Cb)(2)

www.tsa.gov

Exemption (b) (2) of the FOrA exempts from mandatory disclosure records that are "related solely to the internal personnel rules and practices of an agency." The courts have interpreted the exemption to encompass two distinct categories of information: (1) internal matters ofa relatively trivial nature -- often referred to as "Low" 2 information; and (2) more substantial internal matters, the disclosure of which would risk circumvention of a legal requirement -- often referred to as "High" 2 information.

We have determined that the requested records should be withheld from disclosure as "high" (b)(2) information, in that they contain sensitive materials, Sensitive materials are exempt from mandatory disclosure under "high 2" when the requested documents are predominantly internal, and disclosure significantly risks circumvention of a regulation or statute, including civil enforcement and regulatory matters.
Sensitive materials are exempt from disclosure under "high" (b)(2) when the requested document is predominantly internal, and disclosure significantly risks circumvention of a regulation or statute, including civil enforcement and regulatory matters. Whether there is any public interest in disclosure is legally irrelevant. Rather, the concern under "high" (b)(2) is that a FOrA disclosure should not benefit those attempting to violate the law and avoid detection. Exemption Cb)(3) This information reveals Sensitive Security Information (SS1) and is exempt from disclosure under Exemption 3 of the FOrA. Exemption 3 permits the withholding of records specifically exempted from disclosure by another Federal statute. Section 114(r) of title 49, United States Code, exempts from disclosure SSI that "would be detrimental to the security of transportation" ifdisclosed. The TSA regulations implementing Section 114(r) are found in 49 CFR Part 1520. Pursuant to Section 1520.5(b)(9)(i), the following information regarding security screening under aviation or maritime transportation security requirements of Federal law: any procedures, including selection criteria and comments, instructions, and implementing guidance pertaining thereto, for screening of persons, accessible property, checked baggage, U.S. mail, stores, and cargo, that is conducted by the Federal government or any other unauthorized person constitutes SSI and is exempt from disclosure under 49 C.F.R. Section lS20.15(a). Request #2 With regard to Request #2, this portion of your FOJA request does not identify the records that
you arc seeking with sufficient specificity for us to reasonably identify where responsive records

might be located. DHS regulations, 6 C.F.R. Section 5.3(b) require that you describe the records you are seeking with as much information as possible to ensure that OUr search can locate them with a reasonable amount of effort. Whenever possible, a request should include specific information about each record sought, such as the date, title or name, author, recipients, and subject matter of the records, if known, or the DHS component or office you believe created and/or controls the record.

www.tss.gov

The FOIA docs not require an agency to create new records, answer questions posed by requesters, or attempt to interpret a request that does not identify specific records. This portion of your request has been administratively closed. You may resubmit your request containing a reasonable description of the records you are seeking. Once we receive your revised request, this case will be re-opened separately with a new case number.

The fees incurred to process this request do not exceed the minimum threshold necessary for charge and, therefore, there is no fee associated with the processing of this request. Administrative Appeal In the event that you wish to appeal this determination, an administrative appeal may be made in writing to Kimberly Walton, Special Counselor, Office of the Special Counselor, Transportation Security Administration, 60 I South tih Street, East Building, E7-121 S, Arlington, VA 20598~ 6033. Your appeal must be submitted within 60 days from the date of this determination. It should contain FOIA request number TSAll-0095 and state, to the extent possible, the reasons why she believes the initial determination should be reversed. In addition, the envelope in which the appeal is mailed in should be prominently marked "FOrA Appeal." Please note that the Special Counselor's determination of the appeal will be administratively final. If you have any questions pertaining to your request, please feci free to contact the FOIA Office at 1-866-3642872 or locally at 571-227-2300.

Sincerely,

(-~~WV~

\..2:ne

Coates Freedom of Information Act Officer

www.tsu.g

ov

February

9, 2011

Ms. Kimberly Walton Special Counselor Office of the Special Counsel Transportation Security Administration 601 South 12th Street, East Building E7-l21S Arlington, Virginia 20598-6033

FREEDOM OF INFORMATION Re: Subject:

ACT REQUEST

Disclosure of any and all Administrative Directives from either the Transportation Security Administration ("TSA") and/or the Department of Homeland Security ("DHS") pertaining to instructions to staff that affect the public when members of the public are asked to submit to full body scans or "pat downs" while attempting to board aircraft. Case No.: TSAll-0196

Dear Ms. Walton: This is an appeal pursuant to 5 U.S.C. § 552 (a) (6) (1990), concerning the Transportation Security Administration's (hereinafter referred to as the "TSA") refusal to disclose certain documents that are within the TSA's control. The requested documents were included in Liberty Guard's Freedom of Information Act (hereinafter referred to as the "FOIA")request dated November 29, 2010, are any and all Administrative Directives or Memoranda from either the TSA and/or the Department of Homeland Security (hereinafter referred to as the
lSees u.s.c.
§

552 et seq.
Page 1 of 9

"DHS"), or any component thereof, from November 5, 2010 to November 29, 2010, pertaining to instructions to staff, employees or supervisors that affect the public when members of the public are asked to submit to full body scans or "pat downs" while attempting to board aircraft, which have been adopted by the TSA or DHS. The Request also asked for any documents which discuss the aforementioned issue and contain the terms "national opt-out day," "Bob Barr", "Opt Out Alliance", "Liberty Guard", "John Tyner", "George Donnelly", "wewontfly.com", "domestic extremists", "drudgereport.com," "Matt Drudge", "prisonplanet.com", "Alex Jones" and any other term or proper name germane to the aforementioned terms and matter (hereinafter referred to as the "Request"). The Agency's refusal to honor the Request violates the as amended. In light of the ongoing and contentious public policy controversy regarding the aforementioned matter and terms, as well as the winding-down of the TSA's security program in American airports, r note that TIME IS OF THE ESSENCE. There is a great need for prompt disclosure so that the released information may more adequately inform the public debate.

ForA

INTRODUCTION I am writing this letter on behalf of Liberty Guard. Liberty Guard is a non-profit organization that actively informs the public on issues including, but not limited to: matters affecting personal liberty, Constitutional rights and citizens' right for privacy. As noted in Liberty Guard's original FOIA request, dated November 29, 2010, the requested materials:
It ••• will illuminate in a clear and direct way, the operations and activities of the TSA and DHS as they pertain to the alleged protection of passengers that are processed through our nation's airports, as well as the penalties for those citizens that do not comply with the TSA and DHS commands. As such, these documents' release will significantly contribute to public understanding and oversight of both the TSA and DHS operations, particularly regarding the quality, guidelines and effectiveness of the TSA and DHS's acti vi t i es'.

Unfortunately, in an undated denial letter that simply included text to statutory exemptions, the TSA, while
2see original ForA Request, Page 2, paragraph 3. page 2 of 9

identifying nine (9) documents responsive to the Request3, refused to disclose any of the Request. The stated rationales are that the information contained in the Request fall under exemption (b) (2) and exemption (bl (3)4. By this letter, Liberty Guard is making a timely appeal pursuant to 5 U.S.C. § 552(a) (6), 36 C.F.R. § 200.11, 7 C.F.R. § 1.S(a), in response to the TSA's denial of the Request.

and

Because Liberty Guard does not agree that the documents responsive to the Request are exempt from disclosure, it asks that the TSA reverse the denial of their Request and waive all associated fees. They further pray that if any portions of the Request are withheld, the TSA should provide an indexed list of the documents withheld, describe the deleted material in detail and specify the statutory basis for the denial as well as the TSA's reasons for believing that the alleged statutory justification applies in this instances. Finally, Liberty Guard asks that those portions of the documents which may indeed be properly exempted from disclosure should be released pursuant to the TSArs powers of discretionary release under 36 C.F.R. § 200.11(b), and 7 C.F.R. § 1.17(b). DISCUSSION A. Exemption 2

The FOIA generally provides that the public has a right of access, enforceable in court, to federal agency records6• The FOIA is to be broadly construed in favor of 7 disclosure, and its exemptions are to be narrowly construed • federal agency resisting disclosure bears the burden of justifying nondisclosure8•

The

The FOIA does not require disclosure, however, of all government documents, but permits access "only to information that sheds light upon the government's performance of its duties.,,9 Accordingly, the FOIA contains nine (9) specific exemptions from disclosure. In this case, the TSA claims that a
See Response Letter, Page I, Paragraph U.S.C. § 552(b) (2) and 5 U.S.C. § SSeevdughn v. Rosen, 484 F.2d 820 (D.C. 6See Anderson v. Department of Health & Cir.1990) .
3

5
552(b)(3).

4See5

Cir. Hu~n

1973), cert. denied, 415 U.S. 977 Servs., 907 F.2d 936, 941 (10th

(1974).

., Id. e Id.

9

see

Sheet Metal

Workers,

63 F.3d at 996. Page 3 of 9

portion of the information10 included in the Request met the requirements of Exemption 2, which permits withholding of more substantial internal matters, the disclosure information of which would risk circumvention of a legal requirement."Il, otherwise known as a "high 2 exemption" (hereinafter referred to as "high 2") .
I1

Under the "high 211 approach, government information is exempted if: (1) the information falls within the language of the exemption--that is, it relates to the "internal personnel rules and practices IIof the agency and is "predominantly internalH; and (2) its disclosure would risk circumvention of federal statutes or regulations::. The TSA argues, in its scant denial, that release of the requested materials to Liberty Guard would constitute the latter part of the high 2, i.e., risk that certain TSA rules and regulations would heretofore be circumvented, or disregarded entirely. Without any further context or detailed facts to the TSA's argument, said argument should fail. In the current matter, disclosure of the Request certainly would be in the public interest, the TSA should release any materials which happen to be covered by the high 2 by utilizing its discretionary release powers. Release of material is to be IIconsidered in the public interest if the benefit to the public in releasing the document outweighs any harm likely to result from disclosure, "l3 As noted above, the Request appears to include documents that may represent an important resource that could explain the genesis of the TSA scanning program and procedure, one that affects tens of thousands of air passengers in the United States every day, It would be difficult to imagine materials falling more squarely within the goal of FOIA; the full illumination of governmental activities in areas directly affecting the public good. Compared to that important goal, and considering the immediacy of this particular issue, any balancing must tip in favor of complete disclosure. Additionally, the Request included information regarding a number of Internet sites and names of specific individuals that may have been mentioned in TSA's documents.
The TSA did not include which of the nine (9) documents were allegedly exempt under (2) and/or (b) (3) • l1See5 U.S.C. § 552(b) (2) 12see Crooker, 670 F.2d at 1074; Schwdner v. Depdrtn~nt of Air Force, 898 F.2d 793, 794 (D.C.Cir.1990) .
l~

(b)

13See7

C.F.R.

§

1.17(b).

Page 4 of 9

Should the TSA be making references to these Websites and individuals, such actions could be construed as violating privacy of said individuals and the Websites in contradiction of the protection of privacy as provided by the Fourth Amendment of the United States Constitution. This is a very serious charge, and one that the TSA should not take lightly, Further, it has come to Liberty Guard's attention that the security program that is a portion of the Request (hereinafter referred to as the "Program") is in the process of being wound-down by the TSA14• As such, the question must be posed: "how would release of the docwnents included in the Request lead to a contravention of the law if the law is no longer in full force and effect?" As the Program is no longer operative, or, at the very least, in the process of being wound down, the TSA's high 2 argument should fail. Finally, at a minimum, it is well-established that Liberty Guard is entitled to an index of the documents and/or portions of documents, numbering nine (9) pages that have been withheld by the TSAl5• Moreover, the description of the withheld material must be "sufficiently specific to permit a reasoned judgment as to whether the material is actually exempt under FOIA.,,16It would be of great assistance if the TSA were to provide such an index if the TSA was to decide to continue withholding a portion or any portions of the Request. Therefore, the TSA's high 2 argument against responding to the Request should fail as the Request is in the public interest; that the personal information in the Request could violate the Fourth Amendment of the United Constitution; the Program is in the process of being wound down, thus there would be no further need for the high 2i and, at the very least, Liberty Guard, by law, should receive an index of the nine (9) pages identified by the TSA as being responsive to the Request. B. EXemption
3

As previously mentioned, the FOIA generally provides that the public has a right of access, enforceable in court, to federal agency records.

14"TSA shuts the Door on PriVate Screening Program," Mike Ahlers and Jeanne Meserve, January 29, 2011. lSSeevdughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973J, cert. denied, 415 U.s. 977 (1974J. 16seeFounding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Dir. 1979).
CNN,

Page 5 of 9

In the current matter, the TSA claims that a portion of the information included in the Request fit under Exemption 3, which permits withholding of information "[that] would be detrimental to the security of transportation,,17, otherwise known as a "(b) (3) exemption" (hereinafter referred to as "(b) (3)") . The TSA, in describing the (b) (3), references 49 CFR Part 1520, relating to protection of sensitive security information (hereinafter referred to as "Part 1520"). Part 1520.5, specifically Section (b) (9) states; (b) Information constituting SSI. Except as otherwise provided in writing by TSA in the interest of public safety or in fUrtherance of transportation security, the following information, and records containing such information, constitute SSI; ... ...(9) Security screening information. The following information regarding security screening under aviation or maritime transportation security requirements of Federal law: (i) Any procedures, including selection criteria and any comments, instructions, and implementing guidance pertaining thereto, for screening of persons, accessible property, checked baggage, U.S. mail, stores, and cargo, that is conducted by the Federal government or any other authorized person. (ii) Information and sources of information used by a passenger or property screening program or system, including an automated screening system. (iii) Detailed information about the locations at which particular screening methods or equipment are used, only if determined by TSA to be SSI. (iv) Any security screener test and scores of such tests. (v) Performance or testing data from security equipment or screening systems. (vi) Any electronic image shown on any screening equipment monitor, including threat images and descriptions of threat images for threat image projection systems. Thus, the TSA argues, in its scant justification for its denial, that release of the requested materials to Liberty Guard is prohibited by Part 1520.5, Section (b) (9), which qualifies the Request as "Sensitive Security Information
17

See S

u. s . c.

§

552 (b) (3) Page 6 of 9

(hereinafter referred to as "551"). Again, without any further context to the TSArs argument, said argument should fail because Part 1520 provides numerous exceptions that allow the release of information that could be considered to fall under (b) (3). Additionally, as mentioned previously in this appeal, the Program that is a portion of the subject matter of the Request is being wound-down in what could be assumed to be a discontinuation of the Program. Part 1520.15 allows at least two (2) occasions when the TSA can make available SSI to outside parties. First, Part 1520.15(e), which provides: (e) Other conditional disclosure. TSA may authorize a conditional disclosure of specific records or information that constitute SSI upon the written determination by TSA that disclosure of such records or information, subject to such limitations and restrictions as TSA may prescribe, would not be detrimental to transportation security. In this instance, the TSA is winding down the Program that is the subject matter of a portion of the Request. As a result of this winding-down, disclosure of the documents contained in the Request would not be "detrimental to transportation security." Thus, if the Program no longer exists, or exists in a scaled-back or reduced capacity, release of the materials in the Request would have little to no impact on transportation security. The second occasion provided in Subsection (b), which states: by Part 1520.15 is found

(b) Disclosure under the Freedom of Information Act and the Privacy Act. If a record contains both SSI and information that is not SSI, TSA or the Coast Guard, on a proper Freedom of Information Act or Privacy Act request, may disclose the record with the SSI redacted, provided the record is not otherwise exempt from disclosure under the Freedom of Information Act or Privacy Act. This section allows the TSA to release SSI in its entirety by simply redacting the parts that are determined SS1. As there are only nine (9) documents responsive to the Request, the task of redacting any SSI would be a rather simple process,

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thereby allowing the Request summarized manner.

to be fulfilled,

albeit

in a

Thus, it would appear that the TSA's argument for (b) (3) should fail as a result of a closer reading of Part 1520, specifically Part 1520.15, would allow for the release of the Request as the Program is being either wound-down or terminated, and therefore could not be classified as SSI, and, at the very least, the Request could be released in a redacted form, with the TSA eliminating from the Request any portions that would be considered SSI. CONCLUSION It appears that the Agency has acted arbitrarily capriciously by improperly denying the disclosure of the documents requested by Liberty Guard. and

The TSA's high 2 argument against responding to the Request should fail as the Request is in the public interest; that the personal information in the Request could violate the Fourth Amendment of the United Constitution; the Program is in the process of being wound down, thus there would be no further need for the high 2; and, at the very least, Liberty Guard, by law, should receive an index of the nine (9) pages identified by the TSA as being responsive to the Request. Furthermore, it would appear that the TSA's argument for (b) (3) should fail as a result of a closer reading of Part 1520, specifically Part 1520.15, which would allow for the release of the Request as the Program is being either wound-down or terminated, and therefore could not be classified as 551, and, at the very least, the Request could be released in a redacted form, with the TSA eliminating from the Request any portions that would be considered SSI. In the event this appeal is denied, the Agency is required to provide a written response describing the reasons for the denial, names and titles of each person responsible for the denial, and the procedures required to invoke judicial assistance in this matter. 5 U.S.C. § 552 (a) (6) (ii), 7 C.F.R. § 1.8(d). As noted above, time is of the essence in this matter, if this appeal is denied or the TSA's response is not forthcoming within twenty (20) working days, my clients reserve their rights under the FOIA to seek judicial review, including the award of attorney's fees. I await your prompt reply. a

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Very Truly Yours, \S\ Christopher L. Markham, Esq.

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