Summary
finding information regarding communications between a FAA Deputy Administrator and technology companies concerned the operations or activities of government
Summary of this case from Cause Action v. Fed. Trade Comm'nOpinion
Civil No. 02-566-SBC.
July 7, 2005
MEMORANDUM OPINION AND ORDER
Plaintiff Judicial Watch, Inc. requested documents relating to airline luggage bomb-detection devices from the United States Department of Transportation ("DOT") and the Federal Aviation Administration ("FAA") (collectively "defendants") under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). As a result of defendants' failure to respond to its request, Judicial Watch sued for declaratory and injunctive relief under FOIA. After Judicial Watch initiated this action, DOT produced some documents and withheld others, claiming exemption from disclosure under FOIA. FAA did not locate any responsive documents. Defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56.
On March 11, 2005, the Chief Justice of the United States reassigned this case to Judge Suzanne B. Conlon of the United States District Court for the Northern District of Illinois.
BACKGROUND
Both DOT and FAA filed statements of material undisputed facts in support of their summary judgment motions. Judicial Watch failed to respond. Local Rule 7.1(h) provides: "[i]n determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." Defendants' statements of undisputed facts are deemed admitted. See Local Rule 7.1 (h); Ramey v. Darkside Productions, Inc., 2004 U.S. Dist. LEXIS 10107, at *3 (D.D.C. May 17, 2004).I. Judicial Watch's FOIA Request
On November 18, 2001, Judicial Watch sent DOT and FAA a FOIA request seeking agency records related to various airport security measures, including airport bomb-detection devices. FAA facts ¶ 1. The letter requested 10 categories of documents. Id.; Judicial Watch Response, Ex. 1. On December 19, 2001, Judicial Watch modified its request, but continued to seek 10 categories of documents related to airport security. FAA facts ¶ 1; Judicial Watch Response, Ex. 2. Judicial Watch requested a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) or, alternatively, to be designated a representative of the news media. FAA facts ¶ 1; Judicial Watch Response, Ex. 1. After DOT and FAA failed to respond to the request, Judicial Watch initiated this action on March 22, 2002.
II. FAA's Search
FAA transferred Judicial Watch's FOIA request to various internal offices for processing. FAA facts ¶¶ 2-6. FAA searched for information responsive to the request in May 2002. Id. at ¶¶ 6-7. FAA electronically searched for information that referred or related to Linda Daschle, L-3 Communications and InVision Technologies. Id.; Jefferson Decl. ¶¶ 3-6; Harley Aff. ¶¶ 3-5. This search related to information responsive to the first three categories only. FAA facts ¶ 1. FAA did not locate any responsive records. Id. at ¶ 7.
III. DOT's Search
DOT submitted several declarations explaining its search for responsive documents. The declarations filed with its summary judgment motion are confusing. They do not clearly identify the offices that searched for specific categories of documents. DOT submitted a supplemental declaration from Patricia Riep-Dice that clarifies DOT's document search. The Office of the Secretary of DOT ("OST") did not search for documents responsive to items 1 through 3 because it determined FAA was the office most likely to have responsive documents. DOT facts ¶ 2. On March 24, 2002, after this lawsuit was filed, DOT transferred Judicial Watch's FOIA request to the Transportation Safety Administration ("TSA"). DOT facts ¶ 4. DOT determined that TSA would be the office most likely to have responsive records to the remaining requests. Id. TSA searched for records responsive to items 4 through 9 and located records in each category. Riep-Dice Supp. Decl. ¶ 3-4.
OST also searched for documents responsive to items 4 through 9. OST forwarded the request to four offices that it believed were most likely to have responsive documents. Id. at ¶ 5. Three of the offices responded that they conducted searches and found no responsive records. Id. The Office of the Inspector General processes its own FOIA requests and responds directly to the requester. Id. Defendants do not know if or how the Office of the Inspector General responded. Id.
IV. Denial of Fee Waiver
On August 28, 2002, TSA denied Judicial Watch's requests for a fee waiver and for designation as a representative of the news media. DOT facts ¶ 8. TSA estimated the search and duplication fees to be $2,985.70 and refused to release any responsive information unless Judicial Watch prepaid half of the estimated fees and entered a written fee agreement by September 9, 2002. Id. at ¶ 8, Ex. A. Judicial Watch did not respond to this demand. Id. at ¶ 9.
V. FOIA Response
TSA located documents responsive to items 4 through 9. Riep-Dice Supp. Decl. ¶ 4. In September 2002, TSA produced 33 pages of records and withhold approximately 2,500 pages of documents, claiming they were covered by FOIA exemptions 1, 2, 3 and 5. DOT facts ¶¶ 10-14. DOT produced a Vaughn index listing the documents it withheld from production. Riep-Dice Supp. Decl. ¶ 4. In March 2003, TSA released additional documents listed on the original Vaughn index. Id. at ¶ 12. DOT claims that all reasonably segregable information has been released. Id. at ¶ 15.
VI. The Vaughn Index
DOT produced a 75-page revised Vaughn index. Riep-Dice Supp. Decl., Ex. B. The Vaughn index does not assign document numbers to each withheld document. As a result, there is considerable confusion in the parties' briefs with respect to document identification. Judicial Watch refers to page numbers of the original Vaughn index. DOT produced a revised Vaughn index with different pagination. A chart is attached to its reply brief cross-referencing the original Vaughn index page numbers with the revised Vaughn index page numbers. The court will identify documents by bates numbers and the revised Vaughn index page number.
The Vaughn index contains a description of each document, the bates range, and an explanation why DOT believes the document is exempted. DOT withheld 11 documents under FOIA Exemption 1, 144 documents under FOIA Exemption 2, 164 documents under FOIA Exemption 3, one document under Exemption 4, and one document under Exemption 5. Id. DOT submits declarations from Patricia M. Riep-Dice, Admiral James M. Loy and Robin C. Burke to supplement its revised Vaughn index.
VII. The Challenged Documents
Judicial Watch does not seek all of the withheld documents. It argues DOT improperly withheld 10 documents under Exemption 1, 25 documents under Exemption 2, 26 documents under Exemption 3 and one document under Exemption 4.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Kaempe v. Myers, 367 F.3d 958, 966 (D.C. Cir. 2004). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying evidence that demonstrates the absence of a genuine issue of material fact. The non-moving party must then come forward with evidence and designate specific facts that establish there is a genuine triable issue. Kingman Park Civic Ass'n. v. Williams, 348 F.3d 1033, 1041 (D.C. Cir. 2003). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002).
II. Fee Waiver
TSA denied Judicial Watch's request for a fee waiver under 5 U.S.C. § 522(A)(4)(iii). DOT argues TSA properly denied the request because Judicial Watch failed to establish that release of the requested information would likely contribute significantly to the public's understanding of government operations or activities.
A. Exhaustion of Administrative Remedies
A FOIA requestor may seek judicial review of a fee waiver denial after exhausting administrative remedies. 5 U.S.C. § 552(a)(6)(A)(i); Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003); Oglesby v. U.S. Dept. of Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990). A FOIA requestor has exhausted administrative remedies if he requests a fee waiver and the agency fails to respond within the applicable time limits provided in FOIA. 5 U.S.C. § 552 (a)(6)(C). After receiving a FOIA request, an agency is required to determine, within 20 days, whether or not to comply with the request. 5 U.S.C. Section 552(a)(6)(i)-(ii). Thus, a requestor who does not receive timely notice of an agency's decision is considered to have constructively exhausted administrative remedies and may proceed directly to federal court to enforce a FOIA request or to seek a de novo review of a fee waiver request. Rossotti, 326 F.3d at 1310-11; Oglesby, 920 F.2d at 62; Pollack v. Dept. of Justice, 49 F.3d 115, 119 (4th Cir. 1995).
Judicial Watch requested a fee waiver on November 19, 2001. After the statutory time period elapsed without a response to the request, Judicial Watch proceeded directly to federal court, by filing a complaint on March 23, 2002. Since Judicial Watch constructively exhausted administrative remedies, this court reviews de novo the fee waiver request based on the record before the agency at the time of decision. 5 U.S.C. § 552(a)(4)(A)(vii); Rossotti, 326 F.3d at 1311.
B. Statutory Test
Generally, a FOIA requestor must pay reasonable costs for the search, review, and duplication of the records sought. 5 U.S.C. § 552(4)(A)(ii)(1). Fees will be waived, however, when disclosure of information is in the public interest and it is not primarily in the commercial interest of the requestor. 5 U.S.C. § 552(4)(A)(iii); Votehemp, Inc., v. Drug Enforcement Admin., 237 F. Supp. 2d 55, 58 (D.D.C. 2002). The requestor bears the burden of showing it is entitled to a fee waiver. Larson v. Central Intelligence Agency, 843 F.2d 1481, 1483 (D.C. Cir. 1988).
DOT concedes that the requested disclosure is not primarily in Judicial Watch's commercial interest. The court must determine whether disclosure of the information is in the public interest. In order to satisfy the public interest prong, Judicial Watch must show that disclosure of the requested information serves the public interest by contributing significantly to the public's understanding of government operations. Schrecker v. U.S. Dep't of Justice, 970 F. Supp. 49, 50 (D.D.C. 1997); Fitzgibbon v. Agency for Int'l Dev., 724 F. Supp. 1048, 1050 (D.D.C. 1989); Larson, 843 F.2d at 1483.
As set forth below, DOT regulations establish four factors to consider when determining whether disclosure is in the public interest. In applying these factors, the court is guided by two recent opinions that held Judicial Watch was entitled to a fee waiver. Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003); Judicial Watch, Inc. v. United States Dep't of Energy, 310 F. Supp. 2d 271 (D.D.C. 2004). Both cases were decided after the parties filed their summary judgment briefs.
1. Government Operations or Activities
The first factor requires that the subject of the requested records "concerns the operations or activities of the Federal government." 49 C.F.R. § 7.44(f)(1). DOT argues that the requested information does not concern government operations or activities. The court disagrees. Judicial Watch's request seeks communications between former FAA Deputy Administrator Linda Daschle and technology companies that manufacture bomb-scanning devices, and information relating to FAA and DOT's use of bomb-scanning devices in airports. Id. The requests are specific and the information sought concerns DOT and FAA operations and activities. See Rossotti, 326 F.3d at 1313.
2. Understanding DOT or FAA Operations
The second factor is whether the "disclosure is likely to contribute to an understanding of Federal government operations or activities." 49 C.F.R. § 7.44(f)(2). DOT rejected the request for a fee waiver because it concluded that most of the information sought would be exempt from FOIA disclosure. Riep-Dice Decl., Ex. A. A "fee waiver request should be evaluated based on the fact of the request and the reasons given by the requestor in support of the waiver, `not on the possibility that the records may ultimately be determined to be exempt from disclosure.'" Dep't. of Energy, 310 F. Supp. 2d at 295, quoting Carney v. U.S. Dep't of Justice, 19 F.3d 807, 815 (2nd Cir. 1994); see also Rossotti, 326 F.3d at 1314. Judicial Watch's fee waiver request should have been evaluated based on the potential contribution of the requested information to the public's understanding of DOT operations, not DOT's determination that most of the information was exempt from disclosure. Information about DOT's use of bomb-scanning devices and efforts to improve airline safety may contribute to the public's understanding of DOT's activities. The second factor is satisfied. See Rossotti, 326 F.3d at 1313-14.
3. Public Information
The third factor asks whether "disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understanding of the requestor or a narrow segment of interested persons." 49 C.F.R. § 7.44(f)(3). The court considers the requestor's ability and intent to effectively convey the information to the public. Rossotti, 326 F.3d at 1312. DOT argues that Judicial Watch is not entitled to a fee waiver because it failed to provide concrete evidence that it has a specific plan to disseminate information to the general public. DOT's argument must be rejected because Judicial Watch has described its ability to rapidly disseminate information to the public via press releases, newsletters, a website, and radio and television programming. Judicial Watch Response, Ex. 1. In Rossotti, 326 F.3d at 1314, the court concluded that requiring Judicial Watch to outline a specific plan in addition to describing its methods of publication would amount to "pointless specificity." Rossotti, 326 F.3d at 1314; see also Dept. of Energy, 310 F. Supp. 2d at 291. As in Rossetti, Judicial Watch has met the third factor by detailing its ability to publicly disseminate information received.
4. Contribution to the Public's Understanding
The fourth factor assesses whether the "contribution to public understanding of Federal government operations or activities will be significant." 49 C.F.R. § 7.44(f)(4). DOT rejected plaintiff's fee waiver request based on its determination that most of the requested documents would be exempt from disclosure and the documents that were not exempt were already publicly available. DOT's reasoning is flawed for two reasons. First, "`[a] fee waiver request should be evaluated based on the face of the request and the reasons given by the requestor in support of the waiver,' not on the possibility that the records may ultimately be determined to be exempt from disclosure." Dep't. of Energy, 310 F. Supp. 2d at 295, quoting Carney, 19 F.3d at 815-816. Second, Judicial Watch requested considerably more information about FAA and DOT communications and operations than was disclosed in the news articles attached to Judicial Watch's request. Judicial Watch Response, Ex. 1. Nothing in the record suggests that the detailed information requested by Judicial Watch was already in the public domain. The release of the requested documents may contribute to the public's knowledge regarding steps taken by DOT to enhance airport security. See Rossotti, 326 F.3d at 1314-15.
C. Conclusion
Because Judicial Watch's November 19, 2001 request demonstrates with reasonable specificity that disclosure was in the public interest, DOT should have granted Judicial Watch's fee waiver request. DOT's summary judgment motion on this issue must be denied. Because there are no disputed factual issues regarding the fee waiver, DOT is directed to grant Judicial Watch's fee waiver request with respect to the documents produced. See Dep't of Energy, 310 F. Supp. 2d at 296.
Because Judicial Watch is entitled to a public interest fee waiver, there is no need to address whether Judicial Watch is entitled to a waiver of search and review costs as a representative of the news media.
III. Sufficiency of Defendants' Document Search
Judicial Watch challenges the sufficiency of both defendants' document search. In deciding whether an agency's document search is adequate, the issue is not whether other responsive records might possibly exist, but whether the search was adequate, judged by a reasonableness standard. Wilbur v. Central Intelligence Agency, 273 F. Supp. 2d 119, 124 (D.D.C. 2003). The burden rests with the agency to establish that it made a good faith effort to conduct a search for the requested records, using methods that can be reasonably expected to produce the requested information. Oglesby, 920 F.2d at 68. An agency may rely on affidavits to demonstrate the reasonableness of its search. Ferranti v. Bureau of Alcohol, Tobacco Firearms, 177 F. Supp. 2d 41, 45 (D.D.C. 2001). FOIA does not require an agency to search every division or field office when responsive documents are likely to be located in one place. Kowalczyk v. U.S. Dep't of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996). The affidavits must set forth the type of search conducted and attest that all files likely to contain responsive materials were searched. Oglesby, 920 F.2d at 68. If the court determines that a search was inadequate, it may order the agency to continue searching. Landmark Legal Foundation v. Environmental Protection Agency, 272 F. Supp. 2d 59, 69 (D.D.C. 2003).
A. DOT's Search
Judicial Watch argues DOT failed to adequately search for documents responsive to request numbers 1 through 5. DOT failed to search for documents responsive to items 1 through 3 because it believed FAA was the administration most likely to have responsive information. FAA located no responsive documents. Riep-Dice Supp. Decl. ¶¶ 3-5. DOT determined TSA was the office most likely to have documents responsive to the remaining items and forwarded Judicial Watch's request to TSA. TSA searched for responsive documents and either released them to Judicial Watch or accounted for them on its Vaughn index. Id. DOT has established that it made a good faith effort to conduct a search reasonably calculated to uncover all records responsive to items 4 through 9.
As to items 1 through 3, DOT admittedly failed to search for documents because it concluded FAA was the agency most likely to have responsive documents. Items 1 through 3 of Judicial Watch's FOIA request seek communications between FAA Deputy Administrator Linda Daschle and technology companies and communications regarding a meeting between Daschle and former DOT Inspector General. According to FAA declarations, the Office of the Administrator ("the Office") provides correspondence support and control services to the FAA Administrator and FAA personnel. The Office logs, processes and files correspondence for the FAA Administrator, Jefferson Decl. ¶ 2. As set forth below, the Office searched for information regarding Daschle, L-3 Communications and In Vision Technologies in the Administrator's Correspondence Control Information System database. Id. at ¶¶ 3-5; Harley Decl. ¶ 2. The Office also maintains calendars for current FAA staff members. Harley Decl. ¶ 4. Because Daschle was the Deputy Administrator from November 1993 through January 1997, more than four years before Judicial Watch's FOIA request, the Office no longer maintained her calendars. Id.; Harley Supp. Decl. ¶ 8. FAA located no responsive documents. Based on FAA and DOT's undisputed declarations, FAA was the office most likely to have documents responsive to the first three categories of requested information. Simply because FAA found no responsive documents does not mean DOT's search was inadequate.
B. FAA's Search
Judicial Watch challenges the adequacy of FAA's search. Specifically, Judicial Watch challenges FAA's removal of a file cabinet that allegedly contained potentially responsive documents. As set forth above, the Office is responsible for maintaining the day-to-day calendar and for scheduling meetings for the Deputy Administrator. Harley Decl., ¶ 2. In May 2002, the Office was asked to search for information responsive to items 1 through 3 — communications between Daschle and L-3 Communications or InVision Technologies, Inc., and any documents regarding a meeting between Daschle and Mary Schiavo, former DOT Inspector General. Id. at ¶ 3. FAA searched its electronic database for responsive documents. Jefferson Decl. ¶¶ 3-5; Harley Decl. ¶ 2. The search yielded zero responsive documents. In early 2002, FAA removed an old file cabinet and any remaining contents from the Office as part of a renovation. Id. at ¶ 4. Judicial Watch asserts that FAA's removal of the file cabinet raises serious questions about the adequacy of its search.
In a supplemental declaration, Harley clarified that the file cabinet was empty long before the renovation work and thus contained no information about Daschle's calendars, schedules or communications. Harley Supp. Decl. ¶¶ 5-6. Any calendar books created during Daschle's tenure, from 1993 to 1997, were destroyed long before the Office received Judicial Watch's FOIA request in late 2001. Id. at ¶ 8. To demonstrate the adequacy of its search, an agency may rely upon reasonably detailed, non-conclusory affidavits submitted in good faith. Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1979). Agency affidavits are accorded a presumption of good faith which cannot be rebutted by "purely speculative claims about the existence and discoverability of other documents." Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981); Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). FAA's declarations attest that no responsive documents were destroyed after the Office received Judicial Watch's FOIA request. FAA's declarations are accorded a presumption of good faith and there is no evidence to dispute them. Accordingly, FAA has met is burden of establishing that it made a good faith effort to search for responsive documents.
III. Sufficiency of Vaughn Index
The court must next determine whether DOT's Vaughn index is sufficiently detailed to support the claimed exemptions. A Vaughn index must adequately describe each withheld document, state which exemption the agency claims, and explain the exemption's relevance. Johnson v. Executive Office for United States Attorneys, 310 F.3d 771, 774 (D.C. Cir. 2002). A Vaughn index must be sufficiently detailed so the court can review the applicability of the claimed FOIA exemptions on a document by document basis. Judicial Watch, Inc. v. United States Postal Service, 297 F.Supp.2d 252, 270 (D.D.C. 2004). The Vaughn index must correlate facts in or about each document with the elements of the asserted privilege. Id. at 260. An agency may submit other materials to supplement its Vaughn Index, such as declarations, that give the court enough information to determine whether the claimed exemptions are properly applied. Id. at 257.
A. FOIA Exemption 1 — Classified Documents
Judicial Watch contends DOT improperly withheld 11 documents under FOIA exemption 1. The 11 documents consist of certification tests and evaluation reports ("evaluation reports") for explosive detection systems. The Vaughn index contains a description of each document and lists the person who classified the document. Admiral James M. Loy's declaration describes the reports in more detail. Loy describes how portions of the reports were classified at the confidential level by the FAA's Associate Administrator for Civil Aviation Security pursuant to properly issued classification guides. Loy Decl. ¶ 8. The Associate Administrator was the senior FAA official responsible for civil aviation security prior to TSA assuming civil aviation responsibilities. Id. Loy was delegated original classification authority on April 5, 2002, and he classified the May 2002 evaluation report. Id. at ¶ 9. At the time the reports were classified, it was determined that their public release would harm national security. Id.
Loy attests that he personally reviewed each of the evaluation reports withheld under exemption 1. The classified evaluation reports consist of minimum detection rates and false alarm rates for specific types of explosives when the explosives were tested by the "eXaminer" explosive detection systems. Id. at ¶ 13. He states that public disclosure of the information contained in the evaluation reports would reveal information about the vulnerabilities and capabilities of the explosive detection systems used at airports and that release of the information would enable an individual to circumvent the protection provided by these systems. Id. at ¶ 14. He further attests that all reasonably segregable information has been released. Id. at ¶ 15.
Exemption 1 exempts matters that are:
(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.
5 U.S.C. § 522(b)(1). Executive Order 12958 sets forth the criteria for classification of documents:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the United States Government;
(3) the information falls within one or more categories of information listed in section 1.5 of this order; and
(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security and the original classification authority is able to identify or describe the damage.60 FR 19825, § 1.2.
Judicial Watch argues that because Loy was not the original classification source for all withheld documents, his declaration cannot satisfy the fourth element. Judicial Watch's argument must be rejected. Loy's affidavit describes in sufficient detail how each document withheld under exemption 1 was properly classified under Executive Order 12958. Loy attests, "[a]t the time that these reports were classified, it was determined that the release of the classified information would cause harm to the national security." Loy Decl. ¶ 9. He also attests that he has personal knowledge of the matters set forth in his declaration in light of his position as acting Under Secretary of Transportation for Security, TSA, DOT. Id. at ¶¶ 1, 4. Moreover, he states that he personally reviewed each document to ensure that each warranted continued confidential classification. Id. at ¶ 14. The Vaughn index and Loy's declaration sufficiently establish that the evaluation reports are covered by exemption 1. Summary judgment for DOT must be granted with respect to the evaluation reports withheld under exemption 1.
B. FOIA Exemption 2 — Documents Relating to Internal Agency Rules or Practices
Judicial Watch challenges TSA's assertion of exemption 2 with respect to 25 documents. See DOT's Reply, Exhibits A B. Exemption 2 exempts from disclosure records "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b) (2). To be exempt under exemption 2, the withheld material must be predominantly internal and its disclosure must significantly risk circumvention of agency regulations or statutes. Cooker v. Bureau of Alcohol, Tobacco Firearms, 670 F.2d 1051, 1073 (D.C. Cir. 1981); Voinche v. FBI, 940 F. Supp. 323, 328 (D.D.C. 1996). Exemption 2 is not limited to internal personnel rules and practices; rather, it is construed more generally to encompass documents that are used for predominantly internal purposes, Crooker, 670 F.2d at 1073; Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992).
DOT submitted two charts listing the revised Vaughn Index page numbers for the challenged documents. DOT Reply, Ex. A B.
Judicial Watch argues that nine documents are not predominantly internal and that the Vaughn index and supporting declarations fail to establish that 15 documents are predominantly internal. According to DOT, TSA withheld a limited amount of information solely on the basis of exemption 2. Indeed, the revised Vaughn index lists no documents withheld solely on the basis of exemption 2. The only information withheld under exemption 2 alone is locations of warehouses where explosive detection systems are stored prior to shipment to airports or government facilities. According to TSA, disclosure of this information would allow circumvention of the law. Riep-Dice Decl. ¶ 29. Riep-Dice explains that the release of this information would enable an individual or group to cause harm to the explosive detection systems prior to their installation. Id. Her supplemental declaration attests that the records were created in furtherance of work assigned to FAA contractors and are used internally by FAA. Riep-Dice Supp. Decl. ¶ 6. DOT has satisfied its burden of establishing that information regarding warehouses it uses to store explosive detection systems is predominantly internal information covered by exemption 2. Summary judgment for DOT must be granted with respect to this limited category of information covered by exemption 2.
C. FOIA Exemption 3 — Sensitive Security Information
Judicial Watch challenges DOT's assertion of exemption 3 with respect to 15 documents. 5 U.S.C. § 552(b)(3). Judicial Watch further argues that DOT has not met its burden of establishing that it released all segregable information on 11 documents. DOT contends that its Vaughn index and supporting declarations show that all documents were properly withheld under exemption 3.
Exemption 3 covers records that are:
specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.5 U.S.C. § 552 (b)(3). The withholding agency must provide reasonably specific detail and demonstrate that the information withheld or redacted from the documents logically falls within the claimed exemption. Landmark Legal Foundation v. Internal Revenue Service, 87 F.Supp. 2d 21, 26-27 (D.D.C. 2000). 49 U.S.C. § 20119(b) provides that DOT shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security or research and development activities if the Under Secretary decides disclosing the information would be detrimental to the safety of passengers in transportation. TSA prescribed a regulation that exempts from disclosure records that contain sensitive security information. 49 C.F.R. § 1520. Sensitive security information ("SSI") is information "the release of which would be detrimental to the safety of passengers in transportation." 49 C.F.R. § 1520.3(b)(3). TSA's regulations define SSI as including "technical specifications of any device used for the detection of any deadly or dangerous . . . explosive," information that reveals a "systematic vulnerability of the aviation system or . . . facilities," and a "description of or technical specifications of, objects used to test screening equipment." 49 C.F.R. § 1520.7(e), (f), (h).
Judicial Watch argues that DOT's Vaughn index and supporting declarations are too vague to establish that each of the withheld documents are covered by exemption 3. DOT submitted a revised Vaughn index with its reply that contains detailed descriptions and identifies particular subsections of 49 C.F.R. § 1520.7 implicated by information in each document. The court has reviewed the revised Vaughn index and the supporting declarations, including Robin Burke's declaration, and concludes that they sufficiently establish the challenged documents were properly withheld under exemption 3. For example, Judicial Watch challenges bates pages 300-310, on page 37 of the revised index. The Vaughn index describes the document as a "Survey Report for an airport EDS System which included information on historical data, poor image issues and product reliability." Revised Vaughn index, p. 37, bates pages 300-310. It further explains that the document is withheld in full under exemption 3 because it contains SSI. It describes how the information may reveal a systematic vulnerability of the aviation system or a vulnerability of aviation facilities and discloses the location or locations of screening equipment. Id. Burke's declaration provides further explanation of the reports and why they are covered by exemption 3. Burke Decl. ¶ 24.
See DOT Reply, Exhibit B for a list of the challenged documents.
Judicial Watch also challenges bates pages 815-819, on page 42 of the revised Vaughn index. The index describes the documents as "[d]eficiencies of EDS in undated report including descriptions of major, moderate and minimal deficiencies in quality of image, display of information and user training." Id. at p. 42. The index explains that the document is withheld under exemption 3 because it contains SSI. TSA has determined that the release of this information may reveal a systematic vulnerability of the aviation system, or a vulnerability of aviation facilities to attack. Id. Burke's declaration further describes the document and why it is covered by exemption 3. Burke Decl. ¶ 24.
The revised Vaughn index contains similarly detailed descriptions for other documents withheld under exemption 3. Moreover, Burke's declaration describes why the categories of documents are withheld under exemption 3 based on the asserted subsections of 49 C.F.R. § 1520.7. Burke Decl. ¶¶ 21-29. Based on the Vaughn index and supporting declarations, DOT has satisfied its burden of establishing that the challenged documents were properly withheld under exemption 3.
Finally, Judicial Watch contends that DOT has failed to release all reasonably segregable information withheld under exemption 3. After receiving Judicial Watch's response, DOT produced an additional 123 pages of documents. Riep-Dice's supplemental declaration attests that she reviewed each challenged record and released additional information that was segregable. Riep-Dice Supp. Decl. ¶¶ 10-13. Her undisputed declaration attests that the remaining pages contain no reasonably segregable information. Id. at ¶ 13. DOT has satisfied its burden of establishing that it produced all reasonably segregable factual information not covered by exemption 3. DOT's summary judgment motion must be granted as to the documents withheld under exemption 3.
D. Exemption 4
Judicial Watch challenged DOT's assertion of exemption 4 for one document, bates numbers 1511-1532; 2335 and 1533-1566. In the revised Vaughn index, DOT withdrew its assertion of exemption 4 and asserted exemptions 2 and 3 instead. The document is described as a letter from Will Jowers to Ed Ocker, FAA, re; eXaminer System Upgrades. Revised Vaughn index, p. 51. DOT asserted exemption 2 because the document relates to internal administrative matters. Id. It asserted exemption 3 because the document contains information that relates to technical specifications of the eXaminer used for the detection of explosives. Id. TSA determined the release of the information may reveal systematic vulnerabilities of the aviation system or facilities. Id.
DOT has not not satisfied its burden of establishing the Jowers letter is covered by exemption 2. It does not explain how the document satisfies each element of exemption 2. For example, it does not provide evidence that the document is used predominantly for internal purposes. However, the revised Vaughn index and supporting declarations establish that the Jowers letter is covered by exemption 3. The index states that the document is withheld under 49 C.F.R. § 1520.7 (e) and (h) because it contains SST that relates to technical specifications of an explosive detection device. Revised Vaughn index, p. 51; see also Burke Decl. ¶¶ 21, 24. DOT properly withheld the Jowers letter under exemption 3.
CONCLUSION
There are no disputed factual issues. DOT's summary judgment motion is denied with respect to Judicial Watch's fee waiver request. DOT is directed to grant Judicial Watch a fee waiver for the documents already produced. As to the withheld documents, DOT and FAA have established that they are entitled to judgment as a matter of law. Their summary judgment motions are granted with respect to the withheld documents.