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12 ent poses the danger of further unauthorized disclo- sidered federal records for purposes of FOIA.76 In addi- sures. tion, despite the lack of direct applicability, many states model their open records statutes on the federal stat- II. FEDERAL LEGAL ISSUES ute.77 Accordingly the rationales of court decisions and guidance for determining whether to disclose informa- A number of federal statutes and regulations govern tion under FOIA are considered persuasive by some requirements for disclosing information to the public, state courts78 and thus relevant to transit agencies' un- safeguarding information from disclosure, and main- derstanding of their disclosure obligations. taining public records. Such statutes include FOIA and a variety of laws--primarily enacted post-9/11--that 1. Overview of FOIA cover Critical Infrastructure Information (CII) and SSI. As the Supreme Court noted in one of its seminal Also covered are laws the requirements of which will FOIA cases: "The basic purpose of FOIA is to ensure an require government agencies to generate security in- informed citizenry, vital to the functioning of a democ- formation that could be considered CII or SSI. ratic society, needed to check against corruption and to This section discusses these federal requirements hold the governors accountable to the governed." 79 and their importance to transit agencies in managing FOIA is intended to assist citizens in discovering "what security information in procurement documents. The their government is up to."80 Accordingly, FOIA estab- section also addresses guidance that may be relevant to lishes a fundamental right of access to federal govern- such management, including FTA's guidance concern- ment records, except to the extent that such records are ing SSI. A. FOIA71 (D.D.C. 1990) (holding that documents submitted to FDA in 72 "`legitimate conduct of its official duties'" are agency records FOIA applies only to the federal government. It notwithstanding FDA's presubmission review regulation allow- does not create a right of access to records held by state ing submitters to withdraw their documents from agency's or local government agencies73 or municipal entities.74 files). However, if state or local agency records, such as pro- 76 See U.S. DEP'T OF JUSTICE, supra note 71 (2009), at 35, curement documents, come into the possession and/or n.68, control75 of a federal agency, those records could be con- requirements.pdf. 77 Daniel J. Solove, Modern Studies in Privacy Law: Notice, Autonomy and Enforcement of Data Privacy Legislation: Access 71 5 U.S.C. 552. See generally U.S. DEP'T OF JUSTICE, and Aggregation: Public Records, Privacy and the Constitution, UNITED STATES DEPARTMENT OF JUSTICE GUIDE TO THE 86 MINN. L. REV. 1137, 1159 (2002). See, e.g., Woodstock Acad- FREEDOM OF INFORMATION ACT (2009), emy v. FOIC, 181 Conn. 544, 436 A.2d 266 (1980) (appropriate (accessed Jan. 17, 2010). to look to federal act for guidance in interpreting Connecticut See also GIDIERE III, supra note 39. For a discussion of the FOIA). statute's legislative history, see, e.g., Michael W. Field, Rhode 78 E.g., Michaelis, 44 Cal. Rptr. 3d at 671; Fioretti v. Md. Island's Access to Public Records Act: An Application Gone State Bd. of Dental Examiners, 351 Md. 66, 716 A. 2d 258 Awry, 8 ROGER WILLIAMS U. L. REV. 293 (2003). (1998) (FOIA interpretations persuasive in Maryland Public 72 Jobson, supra note 35, at 2. Information Act cases); Educ. Law Ctr. v. N.J. DOE, 966 A.2d 73 E.g., Dunleavy v. New Jersey, 251 Fed. App'x 80, 83 (3d 1054, 1060, 198 N.J. 274, 285 (2009) (because of similarity Cir. 2007) (unpublished disposition) (stating that FOIA does between New Jersey's deliberative process exemption and not impose obligations on state agencies); State ex rel. Warren FOIA Exemption 5, New Jersey courts "have turned to federal v. Warner, 84 Ohio St. 3d 432,704 N.E.2d 1228 (1999); State ex deliberative process jurisprudence, where such law chiefly has rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St. 3d 580, developed, for guidance in ascertaining the scope of OPRA's 669 N.E.2d 835, 839 (1996). deliberative process exemption."); Progressive Animal Welfare 74 U.S. DEP'T OF JUSTICE, supra note 71 (2009), Entities Soc'y v. Univ. of Wash., 54 Wash. App. 180, 773 P.2d 114 Subject to FOIA, at 29, n.42, (1989) (FOIA interpretations may be used to construe Wash- procedural-requirements.pdf, citing Nelson v. City of Plano, ington Public Disclosure Act); Opinion of Hawaii's Office of Case No. 06CV102, docket accessible thru 2007 U.S. LEXIS Information Practices, OIP Op. Ltr. No. 07-05 (The exceptions 34992 (E.D. Tex. May 14, 2007) (dismissing FOIA claims to disclosure found in the federal Freedom of Information Act against municipal corporation); Cruz v. Superior Court Judges, ("FOIA"), on which the UIPA is indirectly based, generally are Case No. 3:04CV1103(CFD), 2006 US Dist. LEXIS 8628 (D. more specific and apply to specific types of records described in Conn. Mar. 1, 2006) (municipal police department); Jones v. the law, but under the UIPA many of the situations covered by City of Indianapolis, 216 F.R.D. 440, 443 (S.D. Ind. 2003) (mu- a specific FOIA exception fall under the general umbrella of nicipal agencies). frustration.... Thus OIP looks to the examples provided by the 75 UIPA's legislative history and to FOIA case law for guidance in See McCullough v. FDIC, CA No. 79CV1132, 1980 U.S. determining how the frustration exception applies to particular Dist. LEXIS 17685, at *6 (D.D.C. July 28, 1980) (concluding types of records.), that state report transmitted to FDIC remains under control of state and is not agency record under FOIA in light of state 79 confidentiality statute, but that other reports transmitted to Robbins Tire & Rubber Co., 437 U.S. at 242. 80 agency by state regulatory authorities might be agency records U.S. Dep't of Justice v. Reporters Comm. for Freedom of because "it is questionable whether [state authorities] retained the Press, 489 U.S. 749, 773, 109 S. Ct. 1468, 1481, 103 L. Ed. control" over them); Teich v. FDA, 751 F. Supp. 243, 24849 2d 774, 795 (1989).

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13 protected from disclosure by statutory exceptions.81 for which the information is requested.92 To facilitate FOIA is intended to balance between the public's right meaningful review of assertions of exemptions from to know and the government's need to protect certain FOIA, when an agency withholds information under information.82 The statutory language favors disclosure, one of the nine exemptions and litigation ensues, the as does judicial interpretation.83 agency must prepare an index describing the withheld When Congress amended FOIA in 2007, Congress documents and explaining why those documents fall declared that FOIA should be regularly reviewed "in under the exemptions asserted.93 Such an index is com- order to determine whether further changes and im- monly referred to as a Vaughn index,94 in reference to provements are necessary to ensure that the Govern- Vaughn v. Rosen,95 the case that first articulated the ment remains open and accessible to the American peo- need for the index. The justification for withholding 96 ple and is always based not upon the `need to know' but should be relatively detailed. upon the fundamental `right to know'."84 In an effort to Four of the nine exemptions have particular applica- ensure that the right to know is enforced, the 2007 bility to protection of security information in the con- amendment added a tracking requirement for FOIA text of procurement: requests.85 Two subsections of FOIA provide for automatic Exemption 2:97 records that relate solely to the in- 86 availability of certain government records, while a ternal personnel rules and practices of an agency. third governs requests for information.87 For informa- Exemption 3:98 information that is specifically ex- tion to be disclosable pursuant to a FOIA request, it empted from disclosure by another statute. must be contained in what is an agency record under Exemption 4:99 trade secrets/commercial or finan- FOIA, which includes electronic formats.88 cial information. Subsection (b) of FOIA contains nine exemptions. Exemption 5:100 certain inter-agency or intra- The exemptions are to be construed narrowly.89 The agency analyses or recommendations. exemptions are generally discretionary rather than mandatory,90 although the Department of Justice notes Exemption 2.--This exemption has been interpreted that it is not appropriate for agencies to make discre- to cover relatively trivial internal matters ("low 2") and tionary disclosure of information that comes under Ex- matters the disclosure of which would help the recipient emption 3.91 Applicability of the exemptions does not depend on the identity of the requestor nor the purpose 81 John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 52, 110 S. Ct. 471, 474, 107 L. Ed. 2d 462, 470 (1989). 92 Id. at 4046, 82 Id. at 152. procedural-requirements.pdf. 83 Rose, 425 U.S. at 366 (1976) (holding that "limited exemp- 93 Vaughn v. Rosen, 484 F.2d 820, 82728, 157 U.S. App. tions do not obscure the basic policy that disclosure, not se- D.C. 340 (D.C. Cir. 1973). crecy, is the dominant objective of the Act"); Alirez v. N.L.R.B., 94 E.g., Larson v. Dep't of State, 565 F.3d 857, 385 U.S. App. 676 F.2d 423, 425 (10th Cir. 1982); Lion Raisins v. U.S. Dep't D.C. 394 (D.C. Cir. 2009). State courts may also require prepa- of Agriculture, 354 F.3d 1072, 1079 (9th Cir. 2004). See I.C.1, ration of a Vaughn index under state public records acts. E.g., Disclosing Public Records, supra this digest. Farley v. Worley, 215 W.Va. 412, 599 S.E.2d 835 (2004). 84 Section 2(6), Openness Promotes Effectiveness in Our Na- 95 484 F.2d 820, 82728, 157 U.S. App. D.C. 340 (D.C. Cir. tional Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 1973). 2524, Dec. 31, 2007. 96 85 Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 Section 7 of Pub. L. No. 110-175 (Dec. 31, 2007), amend- F.2d 242, 251, 184 U.S. App. D.C. 350 (D.C. Cir. 1977). ing 5 U.S.C. 552(a) by adding paragraph (7). See U.S. DEP'T 97 5 U.S.C. 552(b)(2). See U.S. DEP'T OF JUSTICE, supra OF JUSTICE, supra note 71, at 26. 86 note 71, Exemption 2, 5 U.S.C. 552(a)(1), (a)(2) (2006), amended by OPEN`. Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, 98 5 U.S.C. 552(b)(3). See U.S. DEP'T OF JUSTICE, supra Dec. 31, 2007. 87 note 71, Exemption 3, Id. 552(a)(3) (2006).; 88 Id. 552(f)(2)(A) (2006). STEVENS & TATELMAN, supra note 34, at CRS-1. 89 E.g., Lion Raisons, 354 F.3d at 1079., at CRS-6CRS-9; 90 Chrysler Corp. v. Brown, 441 U.S. 281, 293, 91 S. Ct. Department of Justice, Agencies Rely on Wide Range of Ex- 1705, 1713, 60 L. Ed. 2d 208, 219 (1979). Attorney General emption 3 Statutes, FOIA Post, Holder's FOIA guidelines encourage agencies to make discre-`` (accessed tionary disclosures. Attorney General Holder's Memorandum Apr. 1, 2009). 99 for Heads of Executive Departments and Agencies Concerning 5 U.S.C. 552(b)(4). See U.S. DEP'T OF JUSTICE, supra the Freedom of Information Act (Mar. 19, 2009), note 71, Exemption 4, (accessed /exemption4.pdf. Aug. 16, 2009). 100 5 U.S.C. 552(b)(5). See U.S. DEP'T OF JUSTICE, supra 91 U.S. DEP'T OF JUSTICE, supra note 71, at 688, note 71, Exemption 5, exemption5.pdf.

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14 to circumvent a legal requirement ("high 2").101 The lat- held documents by providing the Court and Plaintiffs ter category is relevant to security information. The with reasonably detailed descriptions of the documents Justice Department, following the rule in the D.C. Cir- and with specific, particularized explanations regarding cuit, interprets Exemption 2 as requiring the informa- the reasons for withholding each portion of the docu- ments. It does not suffice to give a few examples, as DHS tion to be predominantly internal.102 The D.C. Circuit's 110 103 has done. case adopting the "predominantly internal" standard 104 is widely cited and has been explicitly adopted by the Vulnerability assessments have been withheld under Ninth Circuit.105 The "high 2" standard then requires Exemption 2.111 Although the practice of asserting Ex- that the disclosure of the requested information would emption 2 to protect vulnerability assessments112 pre- have to significantly risk the circumvention of legal dates the enactment of more specific exemptions related 106 requirements. The legal requirement to be circum- to SSI, discussed infra, Exemption 2 is still considered vented need not relate to criminal matters.107 The asser- relevant for security information.113 tion of a "high 2" exemption requires the agency to spe- Exemption 3.--This exemption allows an agency to cifically describe the potential harm from disclosure.108 withhold information prohibited from disclosure under The agency bears the burden of establishing that disclo- another federal statute, provided that "such statute (A) sure poses a significant risk of allowing recipients to requires that the matters be withheld from the public in circumvent agency regulations. 109 For example, the such a manner as to leave no discretion on the issue, or Connecticut District Court addressed the need for speci- (B) establishes particular criteria for withholding or ficity in asserting a "high 2" exemption: refers to particular types of matters to be withheld."114 This proviso was added to FOIA in 1976 to overrule the The Court is not willing to accept the agency's word that documents are predominantly internal or that if dis- Supreme Court's decision in Administrator, FAA v. 115 closed, the document would reveal ongoing law enforce- Robertson, which had allowed statutes providing ad- ment techniques and risk circumvention of the law. In- ministrative discretion to withhold information to be stead, on a motion for summary judgment, it is DHS's the basis for Exemption 3 withholdings.116 responsibility to demonstrate that it has properly with- Official disclosure of information waives Exemption 3, but the mere fact that information is in the public 101 See, e.g., Schiller v. NLRB, 964 F.2d 1205, 1207, 296 U.S. domain does not. Moreover, the official disclosure must App. D.C. 84 (D.C. Cir. 1992); Judicial Watch, Inc. v. U.S. Se- be specific to constitute a waiver of the ability to claim cret Service, 579 F. Supp. 2d 182, 186 (D.D.C. 2008). Exemption 3 for the documents in question.117 Failure to 102 U.S. DEP'T OF JUSTICE, supra note 71, at 189, n.63, citing adhere to the agency's own regulations regarding circu- Schreibman v. U.S. Dep't of Commerce, 785 F. Supp. 164, 166 lation of internal agency documents may be sufficient to (D.D.C. 1991) (protecting vulnerability assessment of agency's support a finding of waiver,118 as is, under certain cir- computer security plan); Dorsett v. U.S. Dep't of the Treasury, cumstances, agency carelessness in allowing access to 307 F. Supp. 2d 28, 3637 (D.D.C. 2004) (concluding that Se- documents.119 cret Service document used to "analyze and profile factual in- When an agency's decision to withhold documents is formation concerning individuals" who may constitute threat to challenged, the court must review the documents in Secret Service protectees met "predominantly internal" stan- question de novo to determine the applicability of any dard); Schwarz v. U.S. Dep't of Treasury, 131 F. Supp. 2d 142, exemptions asserted.120 An Exemption 3 review is a two- 150 (D.D.C. 2000) (finding "the threat potential to individuals protected by the Secret Service" to be exempt from disclosure 110 Lowenstein v. Dep't of Homeland Sec., 603 F. Supp. 2d under both Exemptions 2 and 7(E)); Voinche v. FBI, 940 F. 354, 360 (D. Conn. 2009). Supp. 323, 32829 (D.D.C. 1996) (protecting as "predominantly 111 internal" information relating to security of Supreme Court TRANSTECH MANAGEMENT, INC., supra note 1, at 7. 112 building and Supreme Court Justices), FOIA Update, Vol. X, No. 3, at 34 (OIP Guidance: Pro- tecting Vulnerability Assessments Through Application of Ex- 103 Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 emption Two), F.2d 1051, 107274, 216 U.S. App. D.C. 232 (D.C. Cir. 1981) 113 (en banc). Crooker provides an exhaustive analysis of Exemp- U.S. DEP'T OF JUSTICE, supra note 71, at 20306, tion 2. 104 114 E.g., Kaganove v. E.P.A., 856 F.2d 884 (7th Cir. 1988); El 5 U.S.C. 552(b)(3); Irons & Sears v. Dann, 606 F.2d Badrawi v. Dep't of Homeland Sec., 583 F. Supp. 2d 285, 316 1215, 1220, 196 U.S. App. D.C. (D.C. Cir. 1979). (D. Conn. 2008). 115 422 U.S. 255, 95 S. Ct. 2140, 45 L. Ed. 2d 164 (1975). 105 Milner v. U.S. Dep't of Navy, 575 F.3d 959 (9th Cir. 116 Irons & Sears, 606 F.2d at 121920. 2009). 117 American Civil Liberties Union v. Dep't of Defense, 584 106 Stolt-Nielsen Transp. Group Ltd. v. United States, 534 F. Supp. 2d 19, 23 (D.D.C. 2008), citing Afshar v. Dep't of F.3d 728, 732 (D.C. Cir. 2008). State, 702 F.2d 1125, 1130, 226 U.S. App. D.C. 388 (D.C. Cir. 107 U.S. DEP'T OF JUSTICE, supra note 71, at 191201, 1983); Pub. Citizen v. Dep't of State, 11 F.3d 198, 201, 304 U.S. D.C. 154 (D.C. Cir. 1993). 108 118 Id. at 205, Shermco Indus. v. Secretary of the Air Force, 613 F.2d 1314, 1320 (5th Cir. 1980). 109 119 Crooker, 670 F.2d at 1074; El Badrawi, 583 F. Supp. 2d Goodrich v. EPA, 593 F. Supp. 2d 184, 192 (D.D.C. 2009). at 316. 120 5 U.S.C. 552(a)(4)(B).

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15 part process: first the court determines whether the Competitors may invoke Exemption 4 in filing "re- statute relied upon falls within the ambit of Exemption verse" FOIA actions.127 For example, ERG Transit Sys- 3, then it determines whether the information at issue tems (USA), Inc. (ERG) sued the Washington Metro- falls within the scope of the statute relied upon.121 Both politan Area Transit Authority (WMATA) to prevent prongs must be satisfied for Exemption 3 to form a ba- WMATA from releasing ERG's requests for change or- sis for withholding requested information. ders and for an equitable adjustment on a WMATA con- Exemption 4.--While Exemption 4 protects confiden- tract to its competitor, Cubic Transportation Systems, tial information, FOIA does not define the term "confi- Inc., under WMATA's Public Access to Records Policy. dential." Courts have held that confidentiality of re- The district court rejected WMATA's argument that cords may be determined by looking at the legislative because the contract required ERG to submit the docu- purpose of FOIA. The D.C. Circuit has articulated the ments if it wanted to pursue a change and ERG submit- following standard for information involuntarily dis- ted them to obtain additional compensation, the sub- closed to the government: mission was involuntary. Such a finding would have [C]ommercial or financial matter is "confidential" for pur- held the information to a standard of confidentiality poses of the exemption if disclosure of the information is that it did not meet. Instead, the court held that infor- likely to have either of the following effects: (1) to impair mation submitted to get a contract adjustment was vol- the Government's ability to obtain necessary information untarily submitted and therefore subject to the more in the future; or (2) to cause substantial harm to the com- lenient standard of what constitutes confidential infor- petitive position of the person from whom the information mation: "of a kind that would customarily not be re- 122 was obtained. leased to the public by the person from whom it was National Parks is considered the leading case on Ex- obtained."128 emption 4. The D.C. Circuit subsequently adopted two Exemption 5.--This exemption, which has been con- modifications to National Parks that have not been uni- strued to protect information that would be privileged versally accepted. The first was when the D.C. Circuit in the civil discovery context, has been interpreted to accepted the First Circuit's "third prong" analysis allow- incorporate three privileges: deliberative process privi- ing the government to withhold information under Ex- lege, the attorney work-product privilege, and the at- emption 4 if disclosure would damage the efficient exe- torney-client privilege.129 The attorney-client privilege, cution of the government's statutory responsibilities.123 which could be asserted in the contract negotiation con- The other was when the D.C. Circuit modified its rule text, will only apply if the communication is based on to apply the National Parks standard to information confidential information provided by the client. The involuntarily submitted, and to find that financial or privilege does not apply if the information has been commercial information voluntarily submitted is confi- shared with a third party, at the time of the communi- dential under Exemption 4 "if it is of a kind that would cation or later.130 However, generally speaking, of the customarily not be released to the public by the person available Exemption 5 privileges, the deliberative proc- from whom it was obtained."124 The voluntary submis- ess privilege is most likely to be relevant for protection sion standard under Critical Mass requires that the of contract documents. This privilege has clearly been agency possess the authority to require submission of held to be relevant to agency discussions of contract the information at issue and actually exercise that au- positions.131 In terms of protecting the agency's delib- thority in order for the submission not to be voluntary. erative process, documents must be both deliberative The submitter's mistaken belief that the agency has and predecisional to be covered by Exemption 5. After such authority does not make the submission involun- the fact explanatory communications are not covered by tary.125 No other court of appeal has adopted the Critical Exemption 5, nor are predecisional but nondeliberative 132 Mass distinction between voluntary and involuntarily documents. The deliberative process privilege will submitted information, although some district courts have done so.126 127 See U.S. DEP'T OF JUSTICE, supra note 71, at 86380, 121 Cent. Intelligence Agency v. Sims, 471 U.S. 159, 167, 105 S. Ct. 1881, 1887, 85 L. Ed. 2d 173, 182 (1985); Minier v. Cen- 128 ERG Transit Systems (USA), Inc. v. Wash. Metro. Area tral Intelligence Agency, 88 F.3d 796, 801 (9th Cir. 1996). Transit Auth., 593 F. Supp. 2d 249, 253 (D.D.C. 2009). 122 Nat'l Parks and Conservation Ass'n v. Morton, 498 F.2d 129 Nat'l Labor Relations Bd. v. Sears, Roebuck Co., 421 U.S. 765, 770, 162 U.S. App. D.C. 223 (D.C. Cir. 1974) (footnote 132, 149, 95 S. Ct. 1504, 1515, 44 L. Ed. 2d 29, 4647 (1975). omitted). 130 123 Mead Data v. U.S. Air Force, 566 F.2d 242, 25354 GIDIERE III, supra note 39, at 24041, citing 9 to 5 Or- (1977). ganization for Women Office Workers v. Bd. of Governors of the 131 Id. at 257, where the court stated: "Discussions among Fed. Reserve Sys., 721 F.2d 1 (1st Cir. 1983) and Critical Mass agency personnel about the relative merits of various positions Energy Project v. Nuclear Regulatory Comm., 830 F.2d 278, which might be adopted in contract negotiations are as much a 286, 265 U.S. App. D.C. 130 (D.C. Cir. 1987). 124 part of the deliberative process as the actual recommendations Critical Mass Energy Proj. v. Nuclear Regulatory Comm., and advice which are agreed upon. As such they are equally 975 F.2d 879, 298 U.S. App. D.C. 8 (D.C. Cir. 1992). protected from disclosure by exemption five." 125 GIDIERE III, supra note 39, at 242. 132 Sears, Roebuck, 421 U.S. at 15152; Tax Analysts v. IRS, 126 Id. at 24142. 117 F.3d 607, 616, 326 U.S. App. D.C. 53 (D.C. Cir. 1997); Con-

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16 apply "as long as a document is generated as part of burden of demonstrating that the information is pub- such a continuing process of agency decision-making."133 licly available. Prior release of documents may waive Key to determining whether the communication is de- the release of the same documents, but not similar un- liberative is whether "disclosure of the information released documents.142 However, the release of similar would `discourage candid discussion within the information in the past may support a finding that the agency.'"134 143 exemption asserted does not in fact apply. Unofficial Segregability.--Part of the court's responsibility in disclosure or leaks may not be sufficient to constitute a reviewing withheld documents is to make a finding re- waiver,144 and, generally speaking, mistaken releases of garding the segregability of any nonexempt material:135 otherwise exempt information do not waive the applica- that is whether the material that is not properly subject ble FOIA exemption.145 146 to exemption can be segregated from the properly ex- Mosaic Effect. --Agencies may be able to withhold empt material and released, rather than withholding information that is not valuable in and of itself but that the entire document based on the exempt status of a when combined with other available information may portion of the document. The judicial concept of segre- be damaging to disclose. This effect applies to Exemp- gability136 was codified by the 1974 amendments to tion 4 and could apply in the context of security infor- 137 FOIA. The concept of segregability applies to SSI as mation. well as to other security information.138 Agency Implementation.--The DOT has issued regu- Information Publicly Available.139--Whether prior lations governing FOIA requests for DOT. Both DOT disclosures of information constitute a waiver of an oth- and FTA provide guidance on making FOIA requests.147 erwise applicable exemption is fact specific.140 It de- pends on the circumstances of the prior disclosure 2. Cases Construing FOIA in Transportation Security (manner of prior disclosure and form and completeness Context of the information already disclosed), and on the harm Both 49 U.S.C. 114(s) and 49 U.S.C. 40119(b) re- to be caused by the release based on the exemption as- late to nondisclosure of SSI.148 At least two federal dis- serted.141 The requester of the information bears the trict courts have found both provisions to constitute Exemption 3 statutes.149 In Gordon, plaintiffs sought information about the cepcion v. F.B.I., 606 F. Supp. 2d 14 (D.D.C. 2009); James TSA's no-fly list. The Federal Bureau of Investigation Madison Project v. C.I.A., 607 F. Supp. 2d 109 (D.D.C. 2009). 133 (FBI) and TSA claimed that requested records were Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 39, exempt from disclosure pursuant to 114(s) and 353 U.S. App. D.C. 374 (D.C. Cir. 2002) (holding that document is predecisional if it was prepared to assist agency in arriving 40119(b). Citing the prohibitions in the Title 49 provi- at decision, rather than supporting decision already made); sions, the court held that there was "no dispute that Elec. Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 112 these statutes fall within Exemption 3," the question (D.D.C. 2005). being rather whether the withheld information fell 134 Access Reports v. Dep't of Justice, 926 F.2d 1192, 1195, within the regulations adopted under those statutes.150 288 U.S. App. D.C. 319 (D.C. Cir. 1991); Elec. Privacy, 384 F. In reviewing the redacted information, the court re- Supp. 2d at 112. 135 Nat'l Law Ctr. on Homelessness & Poverty v. U.S. Dep't 142 of Veteran Affairs, 964 F.2d 1210, 296 U.S. App. D.C. 89 (D.C. Mobil Oil, 879 F.2d at 70001. 143 Cir. 1992); ACLU v. U.S. Dep't of Defense, 584 F. Supp. 2d 23 Army Times Pub. Co. v. Dep't of Air Force, 998 F.2d (D.D.C. 2008). 1067, 1071, 305 U.S. App. D.C. 432 (D.C. Cir. 1993). 144 136 EPA v. Mink, 410 U.S. 73, 91, 93 S. Ct. 827, 35 L. Ed. 2d GIDIERE III, supra note 39, at 285. 145 117, 134 (1973). U.S. DEP'T OF JUSTICE, supra note 71, at 690703, 137 Pub. L. No. 93-502, 88 Stat. 1561, Nov. 21, 1974. 2(c), inserted the provision relating to availability of segregable But see GIDIERE III, supra note 39, at 285 (prior releases due to portion of records: "Any reasonably segregable portion of a the agency's error may constitute a waiver). 146 record shall be provided to any person requesting such record See generally GIDIERE III, supra note 39, at 8.13, Mosaic after deletion of the portions which are exempt under this sub- Effect. section." 147 49 C.F.R. pt. 7. subpt. C--Availability of Reasonably De- 138 See U.S. GOV'T ACCOUNTABILITY OFFICE, CLEAR POLICIES scribed Records Under the Freedom of Information Act, AND OVERSIGHT NEEDED FOR DESIGNATION OF SENSITIVE; DOT's SECURITY INFORMATION 4 (2005), FOIA Reference Guide, (accessed Mar. 1, 2009); foiareferenceguide.htm#where; FTA's instructions for FOIA U.S. GOV'T ACCOUNTABILITY OFFICE, TRANSPORTATION requests, SECURITY ADMINISTRATION'S PROCESSES FOR DESIGNATING AND 148 See II.B, Critical Infrastructure Information (CII)/SSI, RELEASING SENSITIVE SECURITY INFORMATION 5 (2007), infra this digest. (accessed July 30, 2009). 149 Gordon v. FBI, 390 F. Supp. 2d 897, 900 (N.D. Cal. 2004); 139 GIDIERE III, supra note 39, at 284. Gordon v. FBI, 388 F. Supp. 2d 1028 (N.D. Cal. 2005) (cross- 140 Mobil Oil Corp. v. Envtl. Protection Agency, 879 F.2d motions for summary judgment); Elec. Privacy Info., 384 F. 698, 700 (9th Cir. 1989). Supp. 2d 110 n.10. 141 150 GIDIERE III, supra note 39, at 284. Gordon, 390 F. Supp. 2d at 900.

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17 jected TSA's position that all information within a secu- 3.156 Although the plaintiffs had agreed to exclude rity directive is SSI, even if that information appears documents marked as SSI from the scope of the litiga- elsewhere. tion, the court did require more of a showing than that The Gordon court found that simply reciting that in- a document was marked as SSI. The court found that formation derived from security directives is SSI did not describing a document as constituting selection criteria meet defendants' burden of explaining why the infor- proposed for aviation screening and marking it as SSI mation was exempt from disclosure. The court also was adequate indication that its disclosure would be found that defendants had not met the burden of ex- detrimental to transportation security, and therefore it plaining why innocuous information such as the fact was properly withheld; merely marking a document as "the Watch lists include persons who pose a threat to SSI without further description was not adequate to aviation" should be withheld.151 The court held that support the failure to disclose.157 general statements that the information is SSI do not meet the government's burden. The court ordered the 3. DOT Use of Exemption 3 federal defendants to review all of the withheld mate- As indicated by Parts IV and V of the USDOT FOIA rial to determine whether they believed "in good faith" reports for fiscal years 20042008, during that time that the material was in fact exempt and if so to submit frame agencies within USDOT did cite 49 U.S.C. a detailed affidavit that explains why particular mate- 40119 in support of denying FOIA requests. In addition, rial was exempt. The court admonished that statements agencies cited the National Defense Authorization Act that information is SSI would not meet the govern- of 1997,158 which prohibits disclosing contract propos- ment's burden. The court further ordered that any sub- als.159 However, FTA did not cite Exemption 3 at all dur- sequent motion for summary judgment must be accom- ing that time as the basis for withholding information panied by a certification by government counsel that under FOIA.160 "counsel has personally reviewed all of the withheld information and in counsel's good faith opinion the 4. Release of Security Information 152 withheld material is exempt from disclosure." Federal employees who make unauthorized disclo- Following the court's 2004 order, the TSA submitted sures of SSI may be subject to disciplinary action. 161 a declaration addressing each redaction and explaining specifically why TSA had determined the redaction to 156 be SSI. Upon reviewing the submission, the District Id. at 110 n.10. 157 Court found that the redacted SSI was appropriately Id. at 110. withheld.153 Although not discussed in the 2004 opinion, 158 41 U.S.C. 253b(m). 159 Exemption 2 was discussed in the 2005 opinion. The Hornbostel v. Dep't. of Interior, 305 F. Supp. 2d 21 court reviewed whether the information withheld under (D.D.C. 2003). 160 Exemption 2 would "assist terrorists in circumventing U.S. DEP'T OF TRANSP., FREEDOM OF INFORMATION ACT 154 the purpose of the watch lists." The court did not ex- (FOIA) 2004 ANNUAL REPORT, plain specifically why information was correctly with-; U.S. DEP'T OF held, but did find that the FBI had not adequately ex- TRANSP., FREEDOM OF INFORMATION ACT (FOIA) 2005 ANNUAL plained how certain information--the legal basis for REPORT,; U.S. DEP'T OF TRANSP., FREEDOM OF INFORMATION ACT (FOIA) 2006 detaining someone whose name appears on a watch ANNUAL REPORT, list--could be used to circumvent agency regulations,; and therefore ordered that the FBI release that infor- U.S. DEP'T OF TRANSP., FREEDOM OF INFORMATION ACT (FOIA) mation. 2007 ANNUAL REPORT, In Electronic Privacy Information Center, the plain-; U.S. DEP'T OF tiff sought documents about TSA's attempts to get pas- TRANSP., FREEDOM OF INFORMATION ACT (FOIA) 2008 ANNUAL senger data from airlines for the Computer Assisted REPORT, Passenger Prescreening System. In reviewing the de- 161 49 C.F.R. 15.17; MacLean v. Dep't of Homeland Sec., fendants' assertion that certain documents were exempt 543 F.3d 1145 (9th Cir. 2008). Cf., Driver Privacy Protection from disclosure pursuant to 49 U.S.C. 114(s) and 49 Act penalties: 18 U.S.C. 2723. The statute is intended to pro- U.S.C. 40119(b), the court noted that to come under tect the privacy of driver records held by state departments of Exemption 3, "the statute must `on its face, exempt transportation. State departments of motor vehicles in sub- 155 stantial noncompliance with the statutory requirements for matters from disclosure."' There was no dispute that maintaining privacy are subject to fines of up to $5,000 per day the statutes provided a basis for asserting Exemption for each day of substantial noncompliance, 151 Id. bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc18.wais& 152 Id. at 902. start=4193565&SIZE=900&TYPE=TEXT; 18 U.S.C. 2724 153 authorizes a private right of action against "[a] person who Gordon, 388 F. Supp. 2d at 1028. 154 knowingly obtains, discloses or uses personal information from Id. at 1036. a motor vehicle record, for a purpose not permitted..., [and 155 Elec. Privacy Info, 384 F. Supp. 2d at 10910, citing Re- makes the person who violates the DPPA] liable to the individ- porters Comm. for Freedom of the Press v. U.S. Dep't of Jus- ual to whom the information pertains...," without any showing tice, 816 F.2d 730, 735 (D.C. Cir. 1987). that the person to whom the personal information pertains