Case Detail

FOIA Project Annotation: Judge Ricardo Urbina has ruled that the Department of Homeland Security can withhold most of the information concerning its efforts to get personal passenger information from airlines for use in testing its CAPPS II passenger-screening program under a variety of exemptions, including Exemption 2 (internal practices and procedures), Exemption 3 (other statutes), Exemption 4 (confidential business information), Exemption 5 (privileges), Exemption 6 (invasion of privacy), and Exemption 7 (law enforcement information). EPIC made several requests to DHS, the FBI, and the Transportation Security Administration asking for records pertaining to access and use of passenger information as a result of the terrorist attacks of Sept. 11, 2001. EPIC challenged the adequacy of the search conducted by the FBI, pointing out that the agency failed to locate copies of subpoenas or any communications with the airlines despite testimony by the airlines to the 9/11 Commission that they had cooperated fully with the FBI on these matters. Urbina noted that "contrary to the plaintiff's assertion, the fundamental issue in assessing the adequacy of the government's search is not whether any responsive document might exist, but rather, whether the government's search for responsive materials was adequate. A search is not unreasonable simply because it fails to produce all relevant materials." Interestingly, in a footnote Urbina cited approvingly the agency's affidavit indicating that "certain of the potentially responsive records may not yet been indexed to the [Central Records System]," a comment which seems to undercut the adequacy of the search claim by admitting that newer documents may not have been searched for properly. Urbina found that DHS had shown that various documents it withheld were protected by the deliberative process privilege, noting that "the defendants prepared these documents to assist in the development and testing of the CAPPS II program. Even though the defendants abandoned the CAPPS II program, the withheld information represents intermediate steps in the process that created the CAPPS II program. Contrary to plaintiff's assertion that materials lose their Exemption 5 protection once a final decision is taken, it is the document's role in the agency's decision-making process that controls." He added that "many of the Chief Privacy Officer's documents at issue were generated during the CPO's investigation of the TSA's role in the transfer of airline passenger data from the airlines the Department of Defense. These documents are predecisional because they contain opinions solicited and expressed prior to the issuance of the CPO's final report." Urbina observed that the agency had not adequately justified the application of Exemption 5 to several handwritten notes and told the agency to submit further justification. Unlike its reception in the recent case of Gordon v. FBI, in which a federal district court judge in California ruled that the TSA had not shown that names of federal employees were protected under Exemption 6, in this case Urbina readily accepted the agency's contention that disclosure of the identities of lower-ranking federal employees would constitute an invasion of privacy by providing the potential for harassment. He indicated that "this contact is the very type of privacy invasion that Exemption 6 is designed to prevent." While this conclusion is enshrined in case law pre-dating Reporters Committee and goes at least as far back as Nix v. United States, 572 F. 2d 998 (4th Cir. 1978), it is still exceedingly difficult to understand exactly what it is about working for the government that requires that fact to remain private. The theory seems to be based on the misguided belief that a majority of people hate anyone who works for the government and would most likely seek to do them harm or harass them if they knew their identities. While the popularity of government as an institution waxes and wanes depending on political and social circumstances, there is no long-term indication that people have an unmitigated dislike of individuals who work for the government. Under Exemption 6, it is not the subjective desires of individuals to remain private that determine privacy but rather an objective appraisal of whether the information constitutes a "clearly unwarranted invasion of personal privacy." It still remains a mystery as to what element of government service constitutes a "clearly unwarranted invasion of personal privacy."
Issues: Exemption 2 - Risk of circumvention, Exemption 3 - Statutory prohibition of disclosure, Exemption 4 - Confidential business information, Exemption 5 - Privileges, Exemption 6 - Invasion of privacy, Exemption 7 - Law enforcement records

Date Filed	Doc #	Docket Text
2004-06-09	1	COMPLAINT against DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, TRANSPORTATION SECURITY ADMINISTRATION (Filing fee $ 150.) filed by ELECTRONIC PRIVACY INFORMATION CENTER.(cp, ) (Entered: 06/10/2004)
2004-06-09		SUMMONS Issued (5) as to DEPARTMENT OF HOMELAND SECURITY ; DEPARTMENT OF JUSTICE ; TRANSPORTATION SECURITY ADMINISTRATION, U.S. Attorney and U.S. Attorney General (cp, ) (Entered: 06/10/2004)
2004-06-09	2	LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER (cp, ) Additional attachment(s) added on 6/10/2004 (cp, ). (Entered: 06/10/2004)
2004-06-09	3	MOTION for Preliminary Injunction by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Declaration of Marcia Hofmann# 2 Exhibit 2`# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10-11# 11 Exhibit 1)(cp, ) (Entered: 06/10/2004)
2004-06-10	4	ORDER Signed by Judge Ricardo M. Urbina on June 10, 2004 directing that defendants file a response to the plaintiff's motion for a preliminary injunction by no later than 6/22/04. Plaintiff file a reply to the defendants' response by no later than 7/2/04. (jwd) (Entered: 06/10/2004)
2004-06-10	5	STANDING ORDER Signed by Judge Ricardo M. Urbina on June 10, 2004. READ THIS ORDER CARFULLY. IT CONTROLS THE CASE. (jwd) (Entered: 06/10/2004)
2004-06-21	6	NOTICE of Appearance by Nicholas J. Patterson on behalf of all defendants (Patterson, Nicholas) (Entered: 06/21/2004)
2004-06-22	7	NOTICE OF WITHDRAWAL OF MOTION by ELECTRONIC PRIVACY INFORMATION CENTER re: Motion for Preliminary Injunction (Attachments: # 1 Exhibit 1)(Hofmann, Marcia) (Entered: 06/22/2004)
2004-07-01	8	ENTERED IN ERROR.....AFFIDAVIT of Marcia Hofmann and Proof of Service by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Hofmann, Marcia) Modified on 7/2/2004 (nmw, ). (Entered: 07/01/2004)
2004-07-02		NOTICE OF CORRECTED DOCKET ENTRY. Document No. 8 was entered in error and counsel was instructed to refile said pleading. (nmw, ) (Entered: 07/02/2004)
2004-07-02	9	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Hofmann, Marcia) (Entered: 07/02/2004)
2004-07-02	10	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. DEPARTMENT OF HOMELAND SECURITY served on 6/9/2004, answer due 07/09/2004; DEPARTMENT OF JUSTICE served on 6/9/2004, answer due 07/09/2004; TRANSPORTATION SECURITY ADMINISTRATION served on 6/9/2004, answer due 07/09/2004 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Hofmann, Marcia) (Entered: 07/02/2004)
2004-07-02	11	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to DEPARTMENT OF HOMELAND SECURITY served on 6/9/2004, answer due 07/09/2004; DEPARTMENT OF JUSTICE served on 6/14/2004, answer due 07/09/2004; TRANSPORTATION SECURITY ADMINISTRATION served on 6/25/2004, answer due 07/09/2004. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Hofmann, Marcia) (Entered: 07/02/2004)
2004-07-09	12	ANSWER to Complaint by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, TRANSPORTATION SECURITY ADMINISTRATION.(Patterson, Nicholas) (Entered: 07/09/2004)
2004-07-12		MINUTE ORDER: An initial status conference is set for Thursday, September 2, 2004 at 1:45 pm. The parties shall file a joint report detailing the status of each of the plaintiff's FOIA requests by August 30, 2004. Signed by Judge Ricardo M. Urbina on 7/12/04. (Entered: 07/12/2004)
2004-08-06	13	NOTICE of Appearance by David L. Sobel on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Sobel, David) (Entered: 08/06/2004)
2004-08-30	14	STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Hofmann, Marcia) (Entered: 08/30/2004)
2004-08-31	15	STATUS REPORT Amended by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, TRANSPORTATION SECURITY ADMINISTRATION. (Attachments: # 1 )(Patterson, Nicholas) (Entered: 08/31/2004)
2004-09-02		Minute Entry for proceedings held before Judge Ricardo M. Urbina: Status Conference held on 9/2/2004. Parties are to submit by 9/3/2004, to the court the agreed upon schedule regarding the submission of certain documents and the schedule set by the Court for filing dispositive motions. When the schedule has been submitted for the Court's approval, it will be issued electronically. (Court Reporter William D. McAllister.) (jwd) (Entered: 09/02/2004)
2004-09-03	16	NOTICE by ELECTRONIC PRIVACY INFORMATION CENTER of Filing of Proposed Order (Attachments: # 1 Text of Proposed Order)(Hofmann, Marcia) (Entered: 09/03/2004)
2004-09-07	17	SCHEDULING ORDER. Signed by Judge Ricardo M. Urbina on 9/7/04. (Entered: 09/07/2004)
2004-12-06	18	Unopposed MOTION for Extension of Time to File Summary Judgment Motion by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, TRANSPORTATION SECURITY ADMINISTRATION. (Attachments: # 1 Proposed Order)(Patterson, Nicholas) Modified on 12/6/2004 (lc, ). (Entered: 12/06/2004)
2004-12-07		MINUTE ORDER granting 18 Motion for Extension of Time. Dispositive motions are due by January 5, 2005; oppositions by February 7, 2005; replies by February 21, 2005. Signed by Judge Ricardo M. Urbina on 12/7/04. (Entered: 12/07/2004)
2004-12-07		Set Deadlines/Hearings: Dispositive Motions are due by 1/5/2005. Oppositions to Dispositive Motions are due by 2/7/2005. Replies to Oppositions to Dispositive Motions are due by 2/21/2005. (jwd) (Entered: 12/07/2004)
2005-01-04	19	Unopposed MOTION for Extension of Time to File Summary Judgment Motion by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Patterson, Nicholas) (Entered: 01/04/2005)
2005-01-04		MINUTE ORDER granting 19 Consent Motion for Extension of Time. Dispositive motions shall be filed by January 18, 2005; oppositions by February 18, 2005; replies by March 4, 2005. Signed by Judge Ricardo M. Urbina on 1/4/05. (Entered: 01/04/2005)
2005-01-04		Set Deadlines/Hearings: Dispositive Motions due by 1/18/2005. Oppositions to Dispositive Motions due by 2/18/2005. Replies to Oppositions to Dispositive Motions due by 3/4/2005. (jwd) (Entered: 01/04/2005)
2005-01-18	20	Unopposed MOTION for Extension of Time to File Summary Judgment Motion by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Patterson, Nicholas) (Entered: 01/18/2005)
2005-01-19		MINUTE ORDER granting 20 Motion for Extension of Time. The defendant's motion for summary judgment is due by January 19, 2005; opposition by February 22, 2005; reply by March 8, 2005. Signed by Judge Ricardo M. Urbina on 1/19/05. (Entered: 01/19/2005)
2005-01-19		Set/Reset Deadlines: Summary Judgment motions due by 1/19/2005. Response to Motion for Summary Judgment due by 2/22/2005. Reply to Motion for Summary Judgment due by 3/8/2005. (clv, ) (Entered: 01/19/2005)
2005-01-19	21	MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF JUSTICE. (Attachments: # 1 Summary Judgment Motion Memorandum# 2 Exhibit A# 3 Exhibit B# 4 Statement of Material Facts# 5 Text of Proposed Order # 6 Hardy Declaration# 7 Hardy Declaration Exhibits# 8 DHS Vaughn Index# 9 DHS Declaration# 10 DHS Declaration Exhibits AO# 11 DHS Declaration Exhibits PQ# 12 DHS Declaration Exhibit R# 13 DHS Declaration Exhibit S)(Patterson, Nicholas) (Entered: 01/20/2005)
2005-01-19		Set Deadlines/Hearings: Defendant's Motion for Summary Judgment due by 1/19/2005. Opposition to Dispositive Motions due by 2/22/2005. Reply to Opposition to Dispositive Motions due by 3/8/2005. (jwd) (Entered: 01/24/2005)
2005-02-22	22	Memorandum in opposition to motion re 21 Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Response to Statement of Material Facts# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7)(Hofmann, Marcia) (Entered: 02/22/2005)
2005-03-03	23	ENTERED IN ERROR.....Unopposed MOTION for Extension of Time to File Reply by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF JUSTICE. (Patterson, Nicholas) Modified on 3/3/2005 (lc, ). (Entered: 03/03/2005)
2005-03-03	24	Unopposed MOTION for Extension of Time to File Reply by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF JUSTICE. (Patterson, Nicholas) (Entered: 03/03/2005)
2005-03-03		MINUTE ORDER granting 24 Consent Motion for Extension of Time. The defendants' reply is due by March 22, 2005. Signed by Judge Ricardo M. Urbina on 3/3/05. (Entered: 03/03/2005)
2005-03-03		Set Deadlines/Hearings: Reply due by 3/22/2005. (jwd ) (Entered: 03/03/2005)
2005-03-18	25	Unopposed MOTION for Extension of Time to File Response/Reply Second by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A - order resetting preliminary injunction hearing)(Patterson, Nicholas) (Entered: 03/18/2005)
2005-03-18		MINUTE ORDER granting 25 Consent Motion for Extension of Time to File Response/Reply. The defendant shall file its reply by March 29, 2005. Signed by Judge Ricardo M. Urbina on 3/18/05. (Entered: 03/18/2005)
2005-03-21		Set Deadlines/Hearings: Defendants' Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment due by 3/29/2005. (jwd) (Entered: 03/21/2005)
2005-03-29	26	REPLY to opposition to motion re 21 Defendants' Motion for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A# 2 Withnell Supplemental Declaration)(Patterson, Nicholas) (Entered: 03/29/2005)
2005-07-25	27	ORDER granting in part and denying in part 21 the defendants' Motion for Summary Judgment, and denying the plaintiff's request for in camera inspection of documents. Signed by Judge Ricardo M. Urbina on 7/25/04. (md) (Entered: 07/25/2005)
2005-07-25	28	MEMORANDUM OPINION. Signed by Judge Ricardo M. Urbina on 7/25/05. (md) (Entered: 07/25/2005)
2005-09-30	29	NOTICE of Filing of Supplemental Vaughn Index by DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF JUSTICE (Attachments: # 1 Supplemental Vaughn Index)(Patterson, Nicholas) (Entered: 09/30/2005)
2006-06-22	30	STIPULATION of Dismissal With Prejudice of All Remaining Claims by ELECTRONIC PRIVACY INFORMATION CENTER, DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEPARTMENT OF JUSTICE. (Hofmann, Marcia) (Entered: 06/22/2006)
2006-06-26	31	STIPULATION OF DISMISSAL WITH PREJUDICE OF ALL REMAINING CLAIMS. Signed by Judge Ricardo M. Urbina on 6/27/06. (lm ) (Entered: 06/26/2006)
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