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

[Sai]

Sorry, paste fail. Here's the correct twitter link:

https://twitter.com/saizai/status/1000715792181284864
Sincerely,
Sai
President, Fiat Fiendum, Inc.


On Sun, May 27, 2018 at 2:18 PM, Sai <sai at fiatfiendum.org> wrote:
> PS Someone asked for a public link. So here you go:
>
> https://plus.google.com/+saizai/posts/cFjYiRdEQqv
> https://twitter.com/saizai/status/898707013160534018
> Sincerely,
> Sai
> President, Fiat Fiendum, Inc.
>
>
> On Sun, May 27, 2018 at 1:03 PM, Sai <sai at fiatfiendum.org> wrote:
>> ** 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.