[blindlaw] Opinion issued in my FOIA case v TSA; major implications for electronic format

[Sai]

** Background **

4 years ago, I sued the TSA under FOIA & Privacy Act for (a) various
documents related to how it treated me at airports, and its
investigation thereof, and (b) all of its policy & procedure
documents. (The requests are now 5 years old.)

TSA filed a motion for summary judgment 2 years ago. I made no
cross-MSJ, but only a heavily factual objection to the format of
productions, sufficiency of search, and virtually all withholdings.

The opinion came out a couple days ago. Won some, lost some, and some
kept open for more proceedings.

Opinion is attached and at
<https://drive.google.com/open?id=1sPBn2UDHjl305ewboGUH3q0JKUIUeBfq>.


** Major win **

Most notable is the decision that DHS' FOIAXpress and eReview software
is a per se violation of 5 USC 552(a)(3)(B)'s requirement to produce
records in the format requested — namely, native format — because it
irreversibly transforms records into rasterized PDFs. Same goes for
the government's failure to produce spreadsheets in spreadsheet
format.

"Increased FOIA-processing costs" are explicitly precluded as an
acceptable defense.

This has major implications for the availability of native,
accessible, machine-processable records, and for agencies'
handicapping their own FOIA offices.

It's possible that TSA may yet defeat my format claims in this request
— by showing that it'd be too burdensome, in terms of processing costs
*outside of* FOIA processing.

If they don't fix their software & practices, this'll happen again. To
prevent that, I intend to follow this up with a permanent injunction
against the use of either software in FOIA processing — or, indeed,
*any* software that's incapable of making 508 compliant, native
electronic, metadata-preserving redactions.



** Main takeaways **


* A. Requests *

1. For format, FOIA request must explicitly demand:
* “native” electronic records
* “fully digital, non-rasterized, text PDF”
* “original format”, as normally kept by the agency, i.e. before the
FOIA process
* metadata
* § 508 accessible records, together with a statement of the
requester’s own specific disability need for § 508 accessible records
(such as blindness)
* spreadsheet / database format for spreadsheet / database data

2. For issue preservation, FOIA request must explicitly be addressed
to parent agencies.

3. To get FOIA processing records, asking for “all documents and
communication[s] related to or responding to the FOIA requests,
whether internal or external” is enough.

4. New FOIA request must be made if more incidents happen while the
request is pending, even pre-search, that would expand its scope.


* B. Law *

1. FOIA offices’ use of noncompliant software — in particular, DHS’
use of FOIAXpress & eReview — is not, by itself, adequate grounds for
552(a)(3)(B) noncompliance as to producing native format records. Nor
is an interference or burden based on “increased FOIA-processing
costs”.

2. Illegible documents must be produced legibly.

3. Due to 49 USC 46110, District court lacks jurisdiction to determine
whether TSA acted without authority under 49 USC 114(r)(4) in
designating SSI.

4. Neither agency production to a third party, nor the third party’s
publication, moots agency’s obligation to provide records to
requester.

5. (b)(6) withholding of agency officials’ name & official contact
info not justified unless agency proves “that the release of their
information would subject them to a real risk of annoyance or
harassment” or “implicate a substantial privacy interest.”

6. Evidence that CCTV video was required by agency policy to be made,
and demanded & agreed to be preserved (within its retention period),
is not enough to show spoliation or agency bad faith, when the
agency’s Vaughn only claims that it searched for the video and found
only one, even though the Vaughn disputed neither the existence of
many other agency-required videos nor the preservation demand.
Discovery into this also isn’t allowed.


* C. Litigation *

1. MSJ opposition must explicitly identify what documents are:
* spreadsheets
* post-decisional
* 552(a)(1,2) material.

2. FOIA office must
* search offices that the initial search identifies as having been involved
* state times of search & cut-off dates in its Vaughn
* document search terms used by itself and by tasked offices

3. No discovery is allowed for claims made in an agency affidavit
without a detailed showing of agency bad faith, even if the affidavit
fails to directly address the problems raised.

4. 5 C.F.R. § 293.311(a) is not applicable to a (b)(6) withholding on
non-OPM files.

5. Problems with the contents of agency records, e.g. 5 U.S.C. §
552a(e)(7) (keeping records of First Amendment protected activity),
can’t be litigated unless it’s pled in the complaint, even if the
records haven’t yet been produced.



** Holdings **

This is only summarizing what the opinion says. I think there are
several major problems with it, which I intend to raise when I can,
but I won't get into them here.

If you see any flaws or issues of concern — or if you know anything
that might be relevant — please contact me privately at <legal at s.ai>
and let me know.

My intent is to get the maximum possible public interest benefit —
both by establishing case law and by injunctions — not just one-off
cures for my particular situation.


* A. Format *

1. Plaintiff may not require Rehab Act § 508 compliant responses,
because it was not pled in the (pre-production) complaint nor added by
amendment; their affidavit does not specifically state that they are
blind; and they may not assert their disabled audience’s rights to
accessible records. P. 11–14.

2. Plaintiff may not assert E-FOIA as to TSA’s Vaughn indices & other
litigation filings. p. 15.

3. Requests for “digital copy”, or requiring request to be “serviced
electronically to the maximum extent possible”, are not sufficient to
invoke E-FOIA for “native” format with embedded metadata. P. 15–16.

4. TSA production of concatenated, rasterized PDFs does not satisfy
format request specifying “in an electronic, machine-processable,
accessible, open, and well- structured format to the maximum extent
possible”, “individual PDFs per distinct document”, “fully digital
text PDFs rather than scans or rasterizations”, & “lists and
structured data as machine-processable spreadsheets”. P. 16–17.

5. Objection to failure to produce spreadsheets can’t be adjudicated
due to failure to explicitly state what response documents were
spreadsheets. Leave granted to state more clearly. P. 17.

6. Request for documents “in their original electronic format”, “e.g.
Word, Excel, or electronic PDF”, may be enough to require “native”
documents. P. 17–18

7. However, this is not enough to require metadata, and metadata
possibly unavailable per CREW v DoE, 905 F. Supp. 2d 161, 172 (D.D.C.
2012). P. 18

8. TSA’s use of FOIAXpress by the FOIA office, and eReview by SSI
office, does not justify 552(a)(3)(B) noncompliance for native
records. Agency’s requirement to produce format if it “is readily
reproducible by the agency”, especially when the request is for the
original format in which the agency kept it (i.e. production, not
re-production), does not depend on “whether reproducing the file in
that format would complicate the agency’s FOIA review process”.
However, TSA might be able to sustain this if it shows “significant
interference or burden” that is “beyond increased FOIA-processing
costs”, and if it can show that “administrative costs of that type
constitute a legally sufficient basis for rejecting a format request”.
P. 18–23.

9. Pages that were produced in illegible format (due to extremely poor
scan resolution) must be produced legibly. P. 23–24.


* B. Adequacy of search *

10. As a contractor, Covenant is not covered by FOIA. p. 28–29

11. Failure to search DHS Office of Civil Rights and Liberties is OK
because request was directed to TSA. p. 29

12. A request for “all documents and communication[s] related to or
responding to” FOIA requests, “whether internal or external”, “can
only reasonably be construed to encompass FOIA processing records”, so
TSA should have searched FOIA office. P. 30

13. Because correspondence with Pelosi’s office came up in the search,
as did Office of Chief Counsel and Office of the Executive
Secretariat, TSA should have also searched the Office of Legislative
Affairs, OCC, and ExSec. P. 30–31.

14. Search cut-off date is date search starts. TSA failure to state
the times of its search and cut-off dates make its Vaughn inadequate
to support its failure to produce records, when a re-request was made
for which search was not conducted until well after the last date on
produced records. P. 32–33.

15. Requests for records related to a BOS incident, when the agency
delayed search until after another BOS incident happened, does not
expand the request to include the new incident. P. 33–34.

16. A Vaughn index that fails to document the search terms, absent
enough other documentation, precludes grant of MSJ. P. 34–35. Agency’s
documentation was insufficient for the searches conducted by other
tasked offices which didn’t document their search parameters.

17. Request for “all policies and procedures” is “vastly overbroad”
and “unreasonably burdensome” because it didn’t allow “a professional
employee of the agency who [is] familiar with the subject area of the
request to locate the record with a reasonable amount of effort”.  P.
37–39.

18. TSA re-opening the request post-litigation at its “discretion” did
not waive its objection to breadth. P. 40–41.


* C. Withholdings *

19. District court lacks jurisdiction, due to 49 USC 46110, to
determine whether TSA acted without authority under 49 USC 114(r)(4)
in designating SSI. P. 42–46.

20. TSA’s production of formerly-designated-SSI records to third party
(ACLU), which then released them, does not moot its obligation to
provide Plaintiff with those records — if the designation change
happened before the search. P. 46–49.

21. Plaintiff may not take discovery as to a matter affirmed by agency
affidavit, without first making a detailed showing of agency bad
faith. P. 52–53.

22. Factual material may not be withheld unless “the disclosure of
even purely factual material may so expose the deliberative process
within an agency that the material is appropriately held privileged”,
so (b)(5) withholding of information gathered in course of Rehab Act
investigation is not adequately justified. P. 53–54.

23. Plaintiff’s “contention that “policies, memoranda of law, and
similar documents” are “post-decisional” and thus not protected by the
deliberative process privilege” “is far too amorphous to defeat TSA’s
motion for summary judgment.” P. 55–56.

24. Inconsistencies in redacting identical information are not
sufficient to object to (b)(5). P. 56.

25. Argument that agency delayed processing of administrative
complaints is not enough to show obstruction of justice to pierce
agency attorney-client privilege. P. 56–57.

26. 5 C.F.R. § 293.311(a) “applies only to information contained in
“official personnel folder[s],” “performance file system folders,”
“their automated equivalent records,” and other “personnel record
files . . . which are under the control of the Office” of Personnel
Management (“OPM”)”, and therefore is not applicable to contest a
(b)(6) withholding in other files. P. 59–60.

27. Plaintiff’s knowledge of (b)(6) withheld information is irrelevant. P. 60.

28. (b)(6) withholding of “similar” information made available in
other cases is not sufficient to justify an objection. P. 61.

29. (b)(6) withholding of parts a record, when other parts release the
same record without the withholding, is moot. P. 61.

30. The court has no basis to question the agency’s claim that
Plaintiff's civil rights complaint, and TSA screeners' incident
reports, are records “compiled for law enforcement purposes”. P. 62.

31. (b)(7)(C) withholding of names of local police is assumed, without
deciding, to “subject them to annoyance or harassment in either their
official or private lives”, and therefore allowed. P. 62–63..

32. (b)(6) withholding of the whom someone hoped “enjoyed herself
today”, or “why another TSA employee was unavailable to provide a
statement”, “reveals little or nothing about an agency’s own conduct”,
and is therefore OK. P. 63.

33. (b)(6) withholding of other TSA officials’ info is not justified
on the record, because it has not explained “that TSA contract
employees, the DHS Office of Chief Counsel employee, or the TSA
Disability Branch employee played “a particular role in an incident”
or “complain[ed] about a particular incident” such that the release of
their information would subject them to a real risk of annoyance or
harassment”; or “why TSA employee names and professional contact
information contained in the policy documents implicate a substantial
privacy interest.” P. 64.


* D. Segregability *

34. The Government “bears the burden of justifying nondisclosure”,
“must show with reasonable specificity why the documents cannot be
further segregated”, and “must provide a ‘detailed justification’ for
[withheld records’] non-segregability”, but “segregation is not
required where the ‘exempt and nonexempt information are inextricably
intertwined, such that the excision of exempt information would impose
significant costs on the agency and produce an edited document with
little informational value”. P. 65.

35. Plaintiff’s presentation of a previously released SOP, which was
SSI designated only in part, is not relevant because it is about a
“defectively overbroad” request, and therefore “Sai fails to identify
any evidence that the TSA withheld records in whole based on a valid
FOIA exemption, where a portion of those records were reasonably
segregable and could have been released without disclosing the exempt
information. P. 66.

36. TSA’s Vaughn index is enough to bear the TSA’s burden of proof to
release reasonably segregable portions, p. 66, even though it gives no
detail at all about whether there are any segregable portions of
documents withheld in full.

37. Re CCTV video, Plaintiff’s statements that
 “(1) TSA policy requires 15 “[c]amera views” of each passenger during
screening and requires that the surveillance video be maintained for
30 days; (2) [they] submitted a FOIA request seeking the Logan Airport
surveillance video within that 30-day window; (3) the TSA released
only one video showing [their] screening at Logan Airport and informed
him that no other video exists; and (4) “the only possible conclusion
is that TSA and BOS committed spoliation” …
“cannot be squared with McCoy’s declaration, submitted under the
penalty of perjury, which recounts that “BOS searched for responsive
records including closed circuit television (CCTV)” and located “one
CCTV video of the incident.”.

Because TSA is entitled to “presumption of good faith”, even though
“TSA policy may have required additional “views,” and it may have
required that video records be maintained for thirty days”, “that does
not mean that the videos Sai sought, in fact, existed at the time
[they] filed [their] FOIA request, and it certainly does not mean that
the TSA destroyed some (but not all) of the videos Sai sought in order
to avoid its obligation of production.”

This is not enough “to give rise to a disputed issue of fact regarding
an agency’s good faith” because if “a FOIA requester’s reasonable
belief that other records should have been found were sufficient,
discovery would likely be the norm, rather than exception, in FOIA
cases.” P. 66–67. Therefore — although this is on TSA’s MSJ — “Sai has
failed to rebut the presumption of good faith applicable to the TSA’s
explication of its search efforts and has failed to show that
discovery is warranted in this FOIA/Privacy Act action”. P. 68.

38. 5 U.S.C. § 552a(e)(7) (keeping records of First Amendment
protected activity) can’t be raised because it wasn’t in the
pre-production complaint. P. 68.



** Conclusion **

* A. For my FOIA requester & litigator kith: *

I hope the takeaways section above is useful. You may want to update
your request, complaint, & MSJ opposition templates / checklists.


* B. For my disabled kith (especially fellow blindies): *

Although I didn't win on Rehab Act grounds per se, I hope the
electronic format win should lead to more availability of accessible,
native documents.

It'll take some time, but agencies won't be able to get away with
producing rasterized documents, when they could've just given you a
nice Word document like they started with. Down with scans!


* C. For those of you on the agency side: *

You should probably start pressing ASAP for updated FOIA processing &
redaction software. Otherwise, you're going to be facing much higher
costs in the long run. Maybe send your IT department a copy of p.
18–23 of the opinion. ;-)


** Help wanted! **

I need help on litigating this; taking an appeal from final judgment;
research; drafting / editing; having a devil's advocate for my prep
work; PR / public communications; document review; etc.

If you could help with any of that, please contact me privately at
<legal at s.ai> or other methods listed at <https://s.ai/contact>.


I've been doing this for the last 4 years, without a salary, despite
multiple major disabilities, and my own poverty. Because I'm pro se,
given the Supreme Court's decision in Kay v Ehrler, it's unlikely that
I will be able to recover even a cent for my time over the last four
years of litigating this, despite it being primarily public interest.

So if you appreciate my work, please support my 501(c)(3) nonprofit,
Fiat Fiendum, so that it can finally pay me a salary to do this sort
of stuff: <https://patreon.com/fiatfiendum>.

Sincerely,
Sai
President, Fiat Fiendum, Inc.
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