Burke v. United States Department of Homeland Security
272 F. Supp. 3d 120
| D.D.C. | 2017Background
- Burke, a federal inmate proceeding pro se, filed a FOIA suit against DHS/TSA claiming a FOIA request dated October 26, 2014 received no response.
- TSA’s uncontroverted declaration (Miller) shows it did not receive Burke’s submission until June 6, 2016, and that the June 2016 submission included three attachments (including the 2014-dated request).
- TSA searched its centralized PARIS system (the only likely central repository for passenger/security records) and found no records for Burke, his aliases, or his son for July 2009.
- TSA also had previously searched for records responsive to a 2015 request by Vicki Garland and located none; TSA requested airports to search local systems and they found no responsive travel records or video.
- TSA explained routine retention policies: reservation data retained about seven days and airport video typically deleted after ~30 days; Miller declared airports control video unless TSA specifically requests and receives footage.
- Burke did not oppose DHS’s motion for summary judgment; the court treated the agency’s declaration as undisputed and granted summary judgment for the Department.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness/receipt of FOIA request | Burke contends his FOIA request dated Oct 26, 2014 was not responded to | TSA says it did not receive the request until June 6, 2016 (the 2014-dated letter was only an attachment) | Court accepts uncontested declaration that TSA received request in June 2016 |
| Adequacy of search | Burke claims TSA failed to locate requested records (including video) | TSA conducted targeted searches of PARIS and tasked airports to search local systems; no records found; methods appropriate | TSA’s search was reasonably calculated and therefore adequate; summary judgment for DHS |
| Scope of search for third parties (wife/son/aliases) | Burke argued TSA failed to search aliases, his son, and his wife Vicki Garland | TSA searched aliases and son after appeal; Garland’s records had been searched previously; airports also tasked to search for Garland | Searches were adequate as to aliases, son, and Garland; no responsive records |
| Agency control over airport video (agency-records issue) | Implicit claim that TSA should produce video | TSA asserts airports control video and footage is generally deleted; video only becomes TSA record if requested/obtained | Court found it unnecessary to resolve fully whether airport video are TSA records because airports searched and retention policies made recovery unlikely; summary judgment sustained |
Key Cases Cited
- Winston & Strawn, LLP v. McLean, 843 F.3d 503 (D.C. Cir.) (court must still assess legal merits even if nonmovant fails to oppose)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment standard)
- Steinberg v. U.S. Dep't of Justice, 23 F.3d 548 (D.C. Cir. 1994) (agency entitled to summary judgment if it shows adequate search and disclosure of non-exempt records)
- Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476 (D.C. Cir. 1984) (affidavits may demonstrate adequacy of search)
- Oglesby v. U.S. Dep't of the Army, 920 F.2d 57 (D.C. Cir. 1990) (no requirement to search every record system)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (adequacy judged by methods, not fruits, and search must be reasonably calculated)
- U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136 (U.S. 1989) (standards for when materials qualify as agency records)
- Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir. 2013) (four-factor test for agency control over records)