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GORDON v. FEDERAL BUREAU OF INVESTIGATION

June 15, 2004.

REBECCA ALLISON GORDON, JANET AMELIA ADAMS and AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, Plaintiffs,
v.
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

ORDER

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 Court's review.

LEGAL STANDARD

  "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)).

  DISCUSSION

  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 these statutes.

  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 appears elsewhere.

  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 security information.

  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 ...


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