Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has ruled that the Transportation Security Administration properly withheld information pertaining to whether or not Ryan Skurow was on the "No Fly List" under Exemption 3 (other statutes). Skurow, an American citizen residing in Israel, was stopped and detained on several occasions when he flew to the United States after 2007. When he was stopped in 2009 at Atlanta, he was told by a Customs and Border Patrol officer that he was stopped because he was on the "No Fly List." In an attempt to clarify his situation, he contacted Rep. Jean Schmidt (R-OH), his father's representative, as well as the Traveler Inquiry Program at the Department of Homeland Security. He finally submitted a FOIA/Privacy Act request to TSA for records concerning himself. When there was no progress on his request, his counsel contacted DHS, which told him it could do nothing until TSA provided a substantive response. Skurow then filed suit and TSA began responding to his request by invoking Exemption 3. The agency told Skurow it could neither confirm nor deny the existence of records concerning whether or not he was on the "No Fly List" based on 49 U.S.C. § 114(r), which protects sensitive security information. Skurow filed a pro se opposition to the withholdings, which was subsequently ratified by his counsel. Skurow challenged the adequacy of the search, but Sullivan noted that "Defendants properly rely on a detailed, non-conclusory declaration that demonstrates the adequacy of the search." Skurow argued the search was inadequate because it did not uncover correspondence sent to DHS by Schmidt and his counsel. Sullivan pointed out that Schmidt's letter went to CBP, not TSA. As to some of the correspondence with counsel, Sullivan indicated that "TSA responds that these documents post-date plaintiff's FOIA request and are accordingly not considered part of his request, which the TSA interpreted as seeking information in existence at the time of the request. The Court finds this approach reasonable and also notes there is also no particular need to produce to plaintiff documents that plaintiff or his counsel already have." While Skurow admitted that 49 U.S.C. § 114(r) qualified as an Exemption 3 statute, he argued the agency had waived its right to assert it because it had already publicly identified him as being on the Watch List. Pointing out that such a waiver would occur only as the result of an official acknowledgement, Sullivan observed that "the alleged disclosure was made by an unnamed CBP employee while plaintiff was stopped at an airport. There is nothing official about it, nor was it documented." Sullivan noted that he did not have jurisdiction to consider whether TSA had properly identified the information as sensitive security information since by statute such a remedy fell within the jurisdiction of a court of appeals. However, he explained that he could decide whether or not the information fell within the parameters of the non-disclosure statute. Finding that the information was covered by 49 U.S.C. § 1149(r), he pointed out that "the TSA's Glomar response to plaintiff's FOIA request was entirely proper and squarely within the realm of its authority."
Issues: Exemption 3 - Statutory prohibition of disclosure

Date Filed	Doc #	Docket Text
2011-07-19	1	COMPLAINT against TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 350, receipt number 4616040834) filed by RYAN B. SKUROW. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(jf, ) (Entered: 07/19/2011)
2011-07-19		SUMMONS (4) Issued as to TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 07/19/2011)
2011-07-19	2	MOTION for leave to obtain cm/ecf password by RYAN B. SKUROW (jf, ) (Entered: 07/19/2011)
2011-07-22		MINUTE ORDER granting 2 plaintiff's motion for CM/ECF password. Signed by Judge Emmet G. Sullivan on July 22, 2011. (lcegs2) (Entered: 07/22/2011)
2011-08-16	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TRANSPORTATION SECURITY ADMINISTRATION served on 7/28/2011; U.S. DEPARTMENT OF HOMELAND SECURITY served on 7/28/2011, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/28/2011., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/2/2011. ( Answer due for ALL FEDERAL DEFENDANTS by 9/1/2011.) (zrdj, ) (Entered: 08/17/2011)
2011-08-17	4	NOTICE of Appearance by Alan R. Burch on behalf of All Defendants (Burch, Alan) (Entered: 08/17/2011)
2011-08-26	5	First MOTION for Extension of Time to File Answer re 1 Complaint or Otherwise Respond to Complaint by TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY (Burch, Alan) (Entered: 08/26/2011)
2011-08-31		MINUTE ORDER treating 5 defendant's motion for extension of time as opposed and GRANTING the motion over objection. Defendant shall answer or otherwise respond to the complaint by no later than September 28, 2011. Signed by Judge Emmet G. Sullivan on August 31, 2011. (lcegs2 ) (Entered: 08/31/2011)
2011-08-31		Set/Reset Deadlines: Answer due by 9/28/2011, (clv, ) (Entered: 08/31/2011)
2011-09-26	6	Second MOTION for Extension of Time to File Answer re 1 Complaint or Otherwise Respond to Complaint by TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY (Burch, Alan) (Entered: 09/26/2011)
2011-10-06	7	MINUTE ORDER treating 6 defendant's motion for extension of time as opposed and GRANTING the motion over objection. Defendant shall answer or otherwise respond to the complaint by no later than October 28, 2011. Signed by Judge Emmet G. Sullivan on October 6, 2011. (lcegs2 ) . Modified on 10/7/2011 (ztcb, ). Modified on 10/7/2011 (ztd, ). (Entered: 10/06/2011)
2011-10-07		Set/Reset Deadlines: Answer due by 10/28/2011, (clv, ) (Entered: 10/07/2011)
2011-10-28	8	Third MOTION for Extension of Time to File Answer re 1 Complaint or Otherwise Respond to Complaint by TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY (Burch, Alan) (Entered: 10/28/2011)
2011-11-02	9	MOTION for Summary Judgment and Supporting Memorandum and Statement of Material Facts by TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Coates Declaration, # 2 Benner Declaration)(Burch, Alan) (Entered: 11/02/2011)
2011-11-09		MINUTE ORDER treating 8 defendant's motion for extension of time as opposed and GRANTING the motion over objection nunc pro tunc. Signed by Judge Emmet G. Sullivan on November 9, 2011. (lcegs2 ) (Entered: 11/09/2011)
2012-01-26	10	Memorandum in opposition to re 9 MOTION for Summary Judgment and Supporting Memorandum and Statement of Material Facts filed by RYAN B. SKUROW. (Attachments: # 1 Certificate of Service Opposition to Motion for Summary Judgment and Certificate of Service, # 2 Declaration Declaration of Plaintiff and Exhibits, # 3 Statement of Facts Statement of Genuine Issues in Dispute)(SKUROW, RYAN) (Entered: 01/26/2012)
2012-01-26	11	Consent MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment and Supporting Memorandum and Statement of Material Facts by RYAN B. SKUROW (SKUROW, RYAN) (Entered: 01/26/2012)
2012-01-27		MINUTE ORDER granting 11 plaintiff's motion for an extension of time nunc pro tunc. Signed by Judge Emmet G. Sullivan on January 27, 2012. (lcegs2) (Entered: 01/27/2012)
2012-02-06	12	First MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment and Supporting Memorandum and Statement of Material Facts by TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit Sotoudeh Declaration)(Burch, Alan) (Entered: 02/06/2012)
2012-02-07		MINUTE ORDER treating as opposed and granting over objection 12 defendants' motion for extension of time. Defendants shall file their reply by no later than March 7, 2012. SO ORDERED. Signed by Judge Emmet G. Sullivan on February 7. 2012. (lcegs2) (Entered: 02/07/2012)
2012-02-07		Set/Reset Deadlines: Replies due by 3/7/2012. (clv, ) (Entered: 02/07/2012)
2012-02-09	13	RESPONSE to 12 First MOTION for Extension of Time to File Response/Reply as to 9 MOTION for Summary Judgment and Supporting Memorandum and Statement of Material Facts filed by RYAN B. SKUROW. (ztnr, ) (Entered: 02/09/2012)
2012-02-21	14	NOTICE of Appearance by Lawrence Marc Zell on behalf of RYAN B. SKUROW (Zell, Lawrence) (Entered: 02/21/2012)
2012-03-07	15	REPLY to opposition to motion re 9 MOTION for Summary Judgment and Supporting Memorandum and Statement of Material Facts filed by TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit 1 - Coates Declaration, # 2 Exhibit 2- CBP response)(Burch, Alan) (Entered: 03/07/2012)
2012-06-26	16	MOTION for Summary Judgment by RYAN B. SKUROW (Attachments: # 1 Memorandum in Support Memorandum in Support of Cross-Motion for Summary Judgment and Attorneys Fees, # 2 Statement of Facts Statement of Material Facts not in Dispute in Support of Cross-Motion for Summary Judgment, # 3 Certificate of Service, # 4 Text of Proposed Order)(Zell, Lawrence). Added MOTION for Attorney Fees on 6/27/2012 (znmw, ). (Entered: 06/26/2012)
2012-07-08		MINUTE ORDER. The Court, sua sponte, schedules a brief status hearing to discuss the timing of the pending summary judgment motions. The status hearing will take place via conference call on July 11, 2012 at 12:00 p.m. Eastern Daylight Time. A dial-in and passcode will be sent to the parties via email. Signed by Judge Emmet G. Sullivan on July 8, 2012. (lcegs2) (Entered: 07/08/2012)
2012-07-09		Set/Reset Hearings: Telephone Conference set for 7/11/2012 12:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 07/09/2012)
2012-07-11		Minute Entry for proceedings held before Judge Emmet G. Sullivan: Telephone Conference held on 7/11/2012. (Court Reporter LISA FORDORI.) (clv, ) (Entered: 07/11/2012)
2012-07-13	17	Memorandum in opposition to re 16 MOTION for Summary Judgment MOTION for Attorney Fees and Response to Plaintiff's Statement of Material Facts filed by TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY. (Burch, Alan) (Entered: 07/13/2012)
2012-07-22	18	REPLY to opposition to motion re 16 MOTION for Summary Judgment MOTION for Attorney Fees filed by RYAN B. SKUROW. (Attachments: # 1 Certificate of Service)(Zell, Lawrence) (Entered: 07/22/2012)
2012-09-26	19	ORDER granting 9 Motion for Summary Judgment; denying 16 Motion for Summary Judgment; denying 16 Motion for Attorney Fees. Signed by Judge Emmet G. Sullivan on September 26, 2012. (lcegs2) (Entered: 09/26/2012)
2012-09-26	20	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on September 26, 2012. (lcegs2) (Entered: 09/26/2012)
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