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.
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 ...