United States District Court, N.D. California
June 15, 2004.
REBECCA ALLISON GORDON, JANET AMELIA ADAMS and AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, Plaintiffs,
FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE and TRANSPORTATION SECURITY ADMINISTRATION, Defendants.
The opinion of the court was delivered by: CHARLES BREYER, District Judge
In this Freedom of Information Act ("FOIA") action plaintiffs
seek records regarding "no fly" and other transportation watch
lists, as well as agency records concerning plaintiffs Rebecca
Gordon and Janet Adams. Now pending are the parties'
cross-motions for summary judgment. In light of the nature of the
government's claimed exemptions, the Court directed the
government to produce copies of all withheld records for the
"FOIA entitles private citizens to access government records."
Minier v. Central Intelligence Agency, 88 F.3d 796, 800 (9th
Cir. 1996). "The Supreme Court has interpreted the disclosure provisions broadly, noting that the act was animated
by a `philosophy of full agency disclosure.'" Lion Raisins v.
U.S. Dept. of Agriculture, 354 F.3d 1072, 1079 (9th Cir. 2004)
(quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152
(1989)). FOIA contains nine exemptions, however, which a
government agency may invoke to protect certain documents from
public disclosure." See id. (citing 5 U.S.C. § 552(b)).
"Unlike the disclosure provisions of FOIA, its statutory
exemptions `must be narrowly construed.'" Lion Raisins, 334
F.3d at 1079 (internal quotation and citation omitted).
The agencies resisting public disclosure here, the FBI and
TSA have "the burden of proving the applicability of an
exception." Minier, 88 F.3d at 800. That burden remains with
the agency when it seeks to justify the redaction of identifying
information in a particular document as well as when it seeks to
withhold an entire document." United States Dept. of State v.
Ray, 502 U.S. 164, 173 (1991). An agency "may meet its burden by
submitting a detailed affidavit showing that the information
`logically falls within the claimed exemptions.'" Id. (internal
citation omitted). "In evaluating a claim for exemption, a
district court must accord `substantial weight' to [agency]
affidavits, provided the justifications for nondisclosure `are
not controverted by contrary evidence in the record or by
evidence of [agency] bad faith.'" Id. (quoting Hunt v. CIA,
981 F.2d 1116, 1118 (9th Cir. 1992)).
The Court has begun the process of reviewing each piece of
withheld information to determine if the defendants have met
their burden of proving that the information is exempt from
disclosure. Based on the Court's preliminary review, it appears
that the government has not met its burden in many instances;
instead, the government has applied the exemptions broadly and
without providing a detailed explanation of why the withheld
material is exempt. A few examples of the government's liberal
application of the exemptions are discussed below.
A. Exemption 3
FOIA Exemption 3 provides that FOIA "does not apply to matters
that are . . . . specifically exempted from disclosure by
statute . . . provided that such statute (A) requires that the matters be withheld from the public in such a manner as
so 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). "A two-part
inquiry determines whether Exemption 3 applies to a given case."
Minier, 88 F.3d at 801. "First, a court must determine whether
there is a statute within the scope of Exemption 3. Then, it must
determine whether the requested information falls within the
scope of the statute." Id.
Defendants claim that certain records are exempt pursuant to
49 U.S.C. § 114(s) and 49 U.S.C. § 40119(b). These
statutes provide that notwithstanding FOIA, the TSA shall develop
regulations "prohibiting the disclosure of information obtained
or developed in carrying out security" if disclosing the
information would "be detrimental to the security of
transportation." There is no dispute that these statutes fall
within Exemption 3. The question, then, is whether the withheld
information falls within the regulations adopted pursuant to
Some information is redacted pursuant to
49 C.F.R. § 1520.7(b). That regulation identifies "Security Directives and
Information Circulars . . ., and any comments, instructions, or
implementing guidance pertaining thereto" as sensitive security
information that cannot be disclosed. The TSA revealed to
plaintiffs a slide presentation that the TSA prepared in December
2002 to brief the FBI on a proposed policy that the TSA was in
the process of developing. TSA Nos. 1-8. The TSA has redacted
certain information, claiming it is covered by section 1520.7(b).
Some of the redacted information on its face, however, does not
fall into this category; instead, defendants seem to contend that
if any piece of information is also in a security directive then
it is sensitive security information. While there may be a reason
for deeming certain information in a security directive sensitive
security information when it appears elsewhere, it does not
follow that all information that appears in a security directive
falls within the exemption for security directives when it
The first slide on TSA no. 2, for example, contains information
on the number of persons that had been identified as "no
transport" prior to September 11, 2001. None of the defendants' affidavits explains how this information historical
fact is sensitive security information that should not be
disclosed. Nor do they explain why the number of names on the
No-Fly and Selectee Lists in 2002, see TSA no. 3, is exempt.
Defendants do not meet their burden by simply reciting that
information derived from security directives is sensitive
Other information is redacted pursuant to
49 C.F.R. § 1520.7(c) which identifies "selection criteria used in any
security screening process" as non-disclosable sensitive security
information. Some of the information redacted, however, merely
recites that the Watch Lists include persons who pose a threat to
aviation. See TSA Nos. 2, 3, 4. While this information may
technically fall within the category of "selection criteria," it
is by no means sensitive security information; rather, it is
common sense and widely known. Defendants have offered no
justification for withholding such innocuous information.
Defendants have also redacted information pursuant to section
1520.7(l), see TSA no. 7. This regulation, however, merely
provides that "[a]ny draft, proposed, or recommended change to"
sensitive security information is not protected. The redacted
information is not a draft or proposed or recommended change.
B. Exemption 7(C)
Exemption 7(C) provides that materials may be withheld by an
agency if they are "records or information compiled for law
enforcement purposes, but only to the extent that production of
such law enforcement records or information . . . (C) could
reasonably be expected to constitute an unwarranted invasion of
privacy." 5 U.S.C. § 552(b)(7)(C). Because the FBI has a clear
law enforcement mandate, it need only establish a "rational
nexus" between enforcement of federal law and the document for
which Exemption 7 is claimed. See Rosenfeld v. U.S. State
Dept. of Justice, 57 F.3d 803, 808 (9th Cir. 1995).
Defendants have applied this Exemption too broadly as well. For
example, Ann Davis, a reporter for the Wall Street Journal, sent
an FBI employee an email detailing the complaints of several
American peace activists (including the individual plaintiffs)
who claim they were told they were on a No-Fly List. Defendants
have redacted all of the information summarizing the complaints of the activists on the
ground that the information falls within Exemption 7(C).
Defendants have not met their burden for two reasons.
First, defendants have not established that there is any nexus
between this information and the enforcement of federal law. The
government merely states that "it is not at all clear why
plaintiffs' [sic] believe the letter was `compiled' by the FBI
for some purpose other than ensuring the accuracy of the No Fly
List." Amended Opp. at 26. The burden is on the government to
show that the information that is, the email from the Wall
Street Journal reporter was received for a law enforcement
purpose; the burden is not on the plaintiffs to show that it was
not. None of the government's affidavits suggest that the email
has a rational nexus to enforcement of federal law. In fact, the
unredacted portions of the email demonstrate that the reporter
was making an inquiry of the FBI because she was working on a
story and wanted to know if the activists were on the list:
"Since there are many possible reasons why these people were
stopped, it will be very helpful to hear from you and work with
you on this; I've listed contact information at the bottom of the
email. . . . Thank you again for being so responsive." FBI No.
Second, even assuming the government had established the nexus,
it has not demonstrated that disclosing the information in the
email would involve an unwarranted invasion of privacy. First, if
the government was merely concerned with protecting the privacy
rights of the activists it could have simply redacted their names
and other identifying information. It did not; instead, it
redacted the entire discussion of each incident. Second, the
email makes clear that much of the information is derived from
newspaper articles and other public sources. Indeed, the
government has produced articles discussing some of the incidents
and the name of the persons involved elsewhere in its
production. See FBI Nos. 66, TSA Nos. 19-21. It is unreasonable
for the FBI to claim that disclosing this information would be an
unwarranted invasion of the privacy of the people who made the
complaints public in the first place, especially when the
government has disclosed the information elsewhere. Defendants have also improperly used this privacy exemption to
withhold entire documents when they could have simply redacted
the third party's name. See, e.g., FBI Nos. 2-3, 71-72,
73-74, 197, 273-276. They have also redacted nearly all
references to government employees, even the name of the FBI
employee who was responsible for responding to inquiries from the
public regarding names appearing on the No Fly Lists. See
e.g., FBI Nos. 72, 73. Defendants have not met their burden of
showing that each and every name is exempt.
C. Exemption 6
Defendants have also misapplied FOIA Exemption 6. Exemption 6
protects "personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of privacy." 5 U.S.C. § 552(b)(6). "The Supreme Court
has defined `similar file' broadly as government records
containing `information which applies to a particular
individual.'" Minnis v. Dept. of Agriculture, 737 F.2d 784, 786
(9th Cir. 1984) (applying Exemption 6 to permit applicant list).
"Exemption 6 is intended to protect `individuals from the injury
and embarrassment that can result from the unnecessary disclosure
of personal information.'" Bowen v. U.S. Food & Drug
Administration, 925 F.2d 1225, 1228 (9th Cir. 1991) (internal
citation omitted); see also Dobronski v. F.C.C.,
17 F.3d 275 (9th Cir. 1994) (applying Exemption 6 to sick leave records);
Van Bourg, Allen, Weinberg & Roger v. N.L.R.B., 728 F.2d 1270,
1273 (9th Cir. 1984) (applying Exemption 6 to names and addresses
of employees eligible to vote for a union).
The TSA has withheld information pursuant to Exemption 6 that
is not a personnel, medical or similar file. See Nos. 19-23.
For example, it has withheld the name of the Associate Director
of the TSA Legislative Affairs Office, see TSA No. 21, and the
name of the Special Assistant to the Associate Under Secretary
for Security Regulation & Policy, U.S. Department of
Transportation from an email forwarding an Associated Press
article about Larry Musarra, a retired Coast Guard lieutenant
commander whose name is similar to a name on the No-Fly list.
See TSA No. 19. The redaction of the names of these officials
is unjustified. First, who holds a particular office at a
particular time is a matter of public record; thus, the redaction makes no sense. Second, the documents
from which the names are redacted do not disclose personal
information about the officials. The TSA even redacted the
message that was written along with the forwarded email,
including the message that Mussara "is a retired Coastie,"
information that appears in the Associated Press article.
The Court's preliminary review of the voluminous material
demonstrates that in many instances the government has not come
close to meeting its burden, and, in some instances, has made
frivolous claims of exemption. The appropriate remedy is to have
defendants review all of the withheld material to determine
whether they believe in good faith that the material is in fact
exempt and, if defendants contend it is exempt, to provide a
detailed affidavit that explains why the particular material is
exempt. General statements that, for example, the information is
sensitive security information, are inadequate to satisfy the
government's burden. That material which is not exempt shall be
promptly disclosed to plaintiffs in response to their FOIA
The Court has not reviewed every piece of withheld information
and every claimed exemption. Accordingly, that this Order does
not mention a particular exemption or particular piece of
withheld information does not mean that the Court agrees the
information should be withheld. Defendants are directed to review
all withheld material and reconsider whether it is exempt from
disclosure, keeping in mind that it is defendants' burden to
prove that an exemption applies and that exemptions are to be
Once defendants' review is complete, and a further production
has been made to plaintiffs, defendants shall file a further
motion for summary judgment that addresses the remaining
material. Defendants shall be careful to specify which exemption
is being applied to particular information on any given document.
Defendants need not address the classified material as the Court
has reviewed that information in camera and determined that it
is exempt. The motion for summary judgment shall be accompanied
by a certification from government counsel attesting that counsel
has personally reviewed all of the withheld information and in counsel's good faith opinion the withheld
material is exempt from disclosure.
The parties shall meet and confer with regard to a schedule for
defendants' further production and revised motion for summary
IT IS SO ORDERED.
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