Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the Transportation Security Administration properly segregated factual information from draft Privacy Impact Assessments concerning its now abandoned CAPPS II airline-passenger screening program. In August 2004, Kollar-Kotelly found that the drafts were protected by Exemption 5 (deliberative process privilege), but agreed with the plaintiff, EPIC, that the agency had not provided enough information concerning the extent to which factual material could be disclosed. Although TSA reviewed the drafts again, released portions of them, and provided a much more detailed affidavit concerning its segregability review, EPIC complained that "the redactions in the PIAs do not suggest that TSA has conducted â€" nor does [agency FOIA officer] Catrina Pavlik claim to have performed â€" a line-by-line segregability analysis." Kollar-Kotelly agreed that the agency had not claimed to have performed a line-by-line analysis, but pointed out that "this Court will look to a variety of factors to determine if Defendants' segregability justifications were sufficiently detailed and reasonable, rather than requiring a specific checklist of form language." However, Kollar-Kotelly concluded that TSA had, for all practical purposes, conducted a line-by-line analysis to segregate out certain portions or sentences of the sections of the PIAs. She observed that "as such, ordering yet another review in order to obtain an explicit representation from Ms. Pavlik that a 'line-by-line' analysis was conducted would be redundant. Indeed, taking Plaintiff's request to its logical conclusion, it would appear that Plaintiff is suggesting that Defendants present it with a line-by-line description of all material withheld. Such a step is not required under existing law, and given the deliberative, predecisional nature of the withheld information, such a line-by-line description would effectively disclose the exempt material." Kollar-Kotelly also rejected EPIC's argument that TSA's claim that there was no more factual information that could be released was contrary to its previous position. She indicated that "Defendants simply made the general policy argument that, by its very nature, the inclusion of facts in its draft PIAs reflects the subjective editorial judgment of the program officer and other agency employees, and that the very selection of a fact for its inclusion in these documents reflects judgments concerning its relative importance and is inextricably intertwined with deliberative communication or are deliberative facts. . . Defendants' suggestion now that any non-produced factual information is inextricably intertwined with the deliberative proposals in the Draft PIAs is in no way contradictory to its prior representations." Kollar-Kotelly concluded that "besides Plaintiff's expression of unfounded incredulity in the amount of information that Defendants have released from the Draft PIAs, Plaintiff has offered little else to challenge the sufficiency of Defendants' segregability analysis, or their production."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Litigation - Segregability analysis

Date Filed	Doc #	Docket Text
2003-09-04	1	COMPLAINT against DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION (Filing fee $ 150.) , filed by ELECTRONIC PRIVACY INFORMATION CENTER.(nmw, ) (Entered: 09/22/2003)
2003-09-04		SUMMONS (4) Issued as to DEPARTMENT OF HOMELAND SECURITY ; TRANSPORTATION SECURITY ADMINISTRATION, U.S. Attorney and U.S. Attorney General (nmw, ) (Entered: 09/22/2003)
2003-09-04	2	LCvR 26.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by plaintiff. (nmw, ) (Entered: 09/22/2003)
2003-09-04	3	MOTION for Preliminary Injunction, and MOTION for Temporary Restraining Order by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Memorandum in Support# 2 Declaration of David L. Sobel)(nmw, ) (Entered: 09/22/2003)
2003-09-05	8	ATTORNEY APPEARANCE by Robert Leidenheimer. (td, ) (Entered: 10/09/2003)
2003-09-05	9	NOTICE regarding issues that both parties have reached an agreement on by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION (td, ) (Entered: 10/09/2003)
2003-10-01	4	First MOTION for Extension of Time to Respond to Complaint (Unopposed) by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION. (Leidenheimer, Robert) (Entered: 10/01/2003)
2003-10-02		MINUTE ENTRY: ORDERED that 4 Motion for Extension of Time to Respond to Plaintiff's Complaint is GRANTED. Defendant must respond to Plaintiff's Complaint by October 20, 2003. It is further ORDERED that Defendant is to electronically file the Praecipe sent to the Court on September 5, 2003, no later than October 6, 2003. Signed by Judge Colleen Kollar-Kotelly on October 2, 2003. (lcckk2) (Entered: 10/02/2003)
2003-10-02	5	STATUS REPORT (Joint) and Request for Entry of Proposed Briefing Schedule by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION. (Leidenheimer, Robert) (Entered: 10/02/2003)
2003-10-02	6	NOTICE by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION re: Resolution of Motion for TRO (Leidenheimer, Robert) (Entered: 10/02/2003)
2003-10-02	7	NOTICE of Appearance by Robert E. Leidenheimer Jr. on behalf of all defendants (Leidenheimer, Robert) (Entered: 10/02/2003)
2003-10-03	10	AMENDED COMPLAINT against DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION , filed by ELECTRONIC PRIVACY INFORMATION CENTER.(td, ) (Entered: 10/09/2003)
2003-10-23	11	ANSWER to Amended Complaint by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION.(Leidenheimer, Robert) (Entered: 10/23/2003)
2003-10-27		SCHEDULING ORDER: Pursuant to the parties' Request for Entry of Proposed Briefing Schedule 5 , and in light of the fact Defendants filed an Answer to Plaintiff's Amended Complaint 12 , it is hereby ORDERED that Defendants have until November 21, 2003 to file their dispositive motion, with Plaintiff's Opposition due by December 24, 2003, and Defendants' Reply due January 16, 2004. Signed by Judge Colleen Kollar-Kotelly on October 27, 2003. (lcckk2) (Entered: 10/27/2003)
2003-10-29	12	ORDER Establishing Procedures for Electronic Filing for Cases Assigned to Judge Colleen Kollar-Kotelly, signed by Judge Kollar-Kotelly on October 29, 2003. (SM) (Entered: 10/29/2003)
2003-11-21	13	MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION. (Leidenheimer, Robert) (Entered: 11/21/2003)
2003-11-21	14	NOTICE by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION of Filing of Declaration of Barbara Huie (Attachments: # 1 Declaration of Barbara Huie)(Leidenheimer, Robert) (Entered: 11/21/2003)
2003-11-21	15	NOTICE by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION of Filing of Patricia Riep-Dice (Attachments: # 1 Declaration of Riep-Dice)(Leidenheimer, Robert) (Entered: 11/21/2003)
2003-11-24		MINUTE ENTRY: The Court informs the parties that when filing motions or any briefing on ECF, all documents related to the briefing should be filed in the same docket entry as exhibits to the main document. The Court also informs Plaintiff that it is to comply with Local Rules 7(h) (formerly 7.1(h)) and 56.1 with regard to its Opposition to Defendants' Motion for Summary Judgment, and that failure to do so will result in the Court's treatment of Defendants' Statement of Material Facts Not in Dispute as admitted. Signed by Judge Colleen Kollar-Kotelly on November 24, 2003. (lcckk2) (Entered: 11/24/2003)
2003-12-19	16	Memorandum in opposition to motion re 13 Defendants' Motion for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Statement of Genuine Issues)(Sobel, David) (Entered: 12/19/2003)
2004-01-12	17	Consent MOTION for Extension of Time to File Response/Reply as to 13 MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION. (Leidenheimer, Robert) (Entered: 01/12/2004)
2004-01-13		MINUTE ENTRY: ORDER granting Defendant's 17 Consent Motion for Extension of Time to File Reply. Defendant's reply is due January 23, 2004. Signed by Judge Colleen Kollar-Kotelly on January 13, 2004. (lcckk2) (Entered: 01/13/2004)
2004-01-23	18	REPLY in support of motion re 13 Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION. (Leidenheimer, Robert) (Entered: 01/23/2004)
2004-05-20	19	NOTICE of Appearance by Darrell C. Valdez on behalf of DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION (Valdez, Darrell) (Entered: 05/20/2004)
2004-08-02	20	ORDER granting in part and denying in part 13 Motion for Summary Judgment, ordering Defendant to conduct a segregability analysis of the documents inquestion, and ordering the parties to submit to the Court, no later than August 31, 2004, a Joint Status Report indicating whether or not the matter is resolved or whether the parties will be filing additional briefing. Signed by Judge Colleen Kollar-Kotelly on 8/2/2004.(lcckk2) (Entered: 08/02/2004)
2004-08-02	21	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 8/2/2004. (lcckk2) (Entered: 08/02/2004)
2004-08-04	22	NOTICE of Appearance by Marcia Clare Hofmann on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Hofmann, Marcia) (Entered: 08/04/2004)
2004-08-31	23	STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Hofmann, Marcia) (Entered: 08/31/2004)
2004-09-27		MINUTE ENTRY: Paperless ORDER adopting nunc pro tunc the briefing schedule as set out in the Status Report 23 filed by Electronic Privacy Information Center on August 31, 2004, whereby: (1) Defendants will complete the Court-ordered segregability analysis and deliver any discoverable material to Plaintiff by September 8, 2004; (2) if Plaintiff objects to the adequacy of the production, Defendants will file a Supplement to the Motion for Summary Judgment by October 18, 2004; (3) Plaintiff will file its Supplement to Opposition of Defendants' Motion for Summary Judgment by November 3, 2004; and (4) Defendants will file their Response to Plaintiff's Supplement to Opposition of Defendants' Motion for Summary Judgment by November 12, 2004. Signed by Judge Colleen Kollar-Kotelly on September 27, 2004. (SM) (Entered: 09/27/2004)
2004-10-15	24	Consent MOTION Modify Briefing Schedule re Order,,, by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION. (Valdez, Darrell) (Entered: 10/15/2004)
2004-10-21	25	Supplemental MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION. (Attachments: # 1 Exhibit Pavlik Declaration# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4)(Valdez, Darrell) (Entered: 10/21/2004)
2004-10-25		MINUTE ENTRY: Paperless ORDER granting 24 Consent Motion to Modify Briefing Schedule to file Supplemental Motion for Summary Judgement. Defendants' Supplemental Motion for Summary Judgement shall be filed by October 21, 2004, Opposition shall be filed by November 8, 2004, and Reply shall be filed by November 15, 2004. Signed by Judge Colleen Kollar-Kotelly on October 25, 2004.(SM) (Entered: 10/25/2004)
2004-11-08	26	Memorandum in opposition to motion re 25 Defendants' Supplemental Motion for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Hofmann, Marcia) (Entered: 11/08/2004)
2004-11-15	27	REPLY to opposition to motion re 25 Supplement to Motion for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION. (Valdez, Darrell) (Entered: 11/15/2004)
2006-03-12	28	ORDER granting 25 Defendants' Supplemental Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on March 12, 2006. (lcckk2) (Entered: 03/12/2006)
2006-03-12	29	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on March 12, 2006. (lcckk2) (Entered: 03/12/2006)
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