928 F. Supp. 2d 139
D.D.C.2013Background
- EPIC filed a FOIA request to DHS seeking records about radiation emissions from TSA Advanced Imaging Technology (AIT) body scanners, with cross-motions for summary judgment.
- DHS granted in part and denied in part; DHS asserted exemptions 3, 4, 5, and 6 to withhold records, while two reports based on government testing must be disclosed.
- TSA and S&T processed the request; initial denials of expedited processing and fee waivers were followed by appeals; records were released but with numerous redactions.
- EPIC challenged certain exemptions, while conceding the adequacy of DHS’s search and not contesting exemption 6 withholdings.
- The court applied FOIA standards, including the burden on the agency to justify withholdings and the presumption of disclosure, and addressed the import of Vaughn indices and segregability.
- The court granted DHS summary judgment on exemption 6 and most exemption 3 and 5 issues, ordering disclosure of two government-testing reports under exemption 4, and preserving other redactions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 114(r) qualifies for Exemption 3 protection | EPIC contends § 114(r) does not support Exemption 3 disclosure blocks. | DHS argues § 114(r) authorizes withholding as security-sensitive information and fits Exemption 3. | § 114(r) qualifies for Exemption 3 withholding. |
| Whether certain Exemption 4 withholdings were 'obtained from a person' | EPIC argues the government-generated testing content cannot be protected under Exemption 4. | DHS contends some materials were 'obtained from a person' (AS&E) or based on third-party data. | Some 2006/2008 report materials were not 'obtained from a person' and must be disclosed; other portions based on third-party data remained protected. |
| Whether the 2006 report content was protected under Exemption 4 | EPIC maintains the 2006 report contains government-generated testing results and is not protected as 'obtained from a person.' | DHS argues components are 'obtained from a person' and protected. | 2006 report content generated by government testing is not 'obtained from a person' and must be disclosed. |
| Whether the 2008 report and its attachments were properly withheld under Exemption 4 | EPIC challenges withholding based on 2008 content tied to the 2006 report. | DHS asserts portions were based on third-party data and thus protectable. | 2008 report portions derived from the 2006 report were improperly withheld and must be disclosed; the dosage map attached to the 2008 report was properly withheld as 'obtained from a person.' |
| Whether Exemption 5 withholdings (deliberative process) were proper | EPIC argues many 'drafts' and related materials are purely factual and should not be withheld as deliberative. | DHS maintains these materials are deliberative, involving ongoing development of AIT safety concepts and responses. | Drafts and related deliberations were protected under Exemption 5; segregability was satisfied and remaining materials not protected were released. |
Key Cases Cited
- Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006) (deliberative process privilege standards for withholding)
- Sears, Roebuck & Co. v. NLRB, 421 U.S. 132 (U.S. 1975) (predecisional deliberations and protecting decision quality)
- Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280 (D.C. Cir. 1983) (exemption 4 and sources of information; protectors of confidential information)
- Montrose Chemical Corp. of California v. Train, 491 F.2d 63 (D.C. Cir. 1974) (limits on withholding as deliberative material in evaluating evidence)
- Mapother v. DOJ, 3 F.3d 1533 (D.C. Cir. 1993) (courts protect factual material when integrated with deliberative process)
- Playboy Enterprises, Inc. v. DOJ, 677 F.2d 931 (D.C. Cir. 1982) (context where factual material inside reports not protected)
- Wis. Project on Nuclear Arms Control v. U.S. Dep’t of Commerce, 317 F.3d 275 (D.C. Cir. 2003) (statutory exemption 3 interpretation and 'particular criteria' requirement)
- Tooley v. Napolitano, 556 F.3d 836 (D.C. Cir. 2009) (exemption 3 and TSA-related withholding analysis (Noting circuit discussion))
- Public Citizen, Inc. v. FAA, 988 F.2d 186 (D.C. Cir. 1993) (§ 114(r)-style provisions enabling withholding in Exemption 3 context)