UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LASSANA MAGASSA,

Plaintiff,

v. Civ. Action No. 19-01953 (EGS)

TRANSPORATION SECURITY ADMINISTRATION,

Defendant.

MEMORANDUM OPINION

Plaintiff Lassana Magassa (“Mr. Magassa” or “Plaintiff”)

brings this lawsuit against Defendant Transportation Security

Administration (“TSA”) pursuant to the Freedom of Information

Act (“FOIA”),

. See Complaint, ECF No. 1. Mr.

Magassa’s lawsuit arises from a September 18, 2017 FOIA request

for records regarding the revocation of his security and

aviation-worker privileges, as well as other records relating to

travel difficulties he has experienced. See id ¶ 6. Mr. Magassa

alleges that TSA has made an inadequate search for, and

disclosure of, responsive records.

.

Pending before the Court are TSA’s Motion for Summary

Judgment, see Mem. of P. & A. in Supp. of Def.’s Mot. for Summ.

J. (“Defs.’ MSJ”), ECF No. 9-2; and Mr. Magassa’s Cross Motion

for Summary Judgment, see Pl.’s Mem. in Supp. of Mot. for Summ.

J. (“Pl.’s XMSJ”), ECF No. 11-2.

1 Upon careful consideration of the motions, responses, and

the replies thereto, the applicable law and regulations, the

entire record and the materials cited therein, the Court GRANTS

TSA’s Motion for Summary Judgment, see ECF No. 9; and DENIES Mr.

Magassa’s Motion for Summary Judgment, see ECF No. 11.

I. Background

A. Factual Background

The following facts are undisputed. In 2017, Mr. Magassa

submitted a FOIA request to the TSA seeking records relating to:

(1) additional screening of him by TSA; (2) placement or

potential placement of him on the Terrorist Watch List; (3)

placement or potential placement of him on the Selectee List;

(4) TSA questioning of him at five specific airports during five

specified date ranges; and (5) records concerning him shared

with or received from the Federal Bureau of Investigation or

U.S. Customs and Border Patrol. Declaration of Terri Miller

(Jan. 15, 2020) (“Miller Decl.”), ECF No. 9-3 ¶¶ 4-12. TSA

located 231 pages of records responsive to Mr. Magassa’s

request.

. TSA determined that 204 of the pages in whole

or in part contained Sensitive Security Information (“SSI”) and

invoked FOIA Exemption 3 to justify those withholdings.

TSA

further invoked FOIA Exemption 6 to redact information on three

pages

On or about May 8, 2018, TSA ultimately released 49

pages of responsive records, releasing 26 pages in full and 23

2 pages in part.

. TSA also provided a Glomar response,

stating that it “could neither confirm nor deny the existence of

records that, by their very existence or nonexistence, would

indicate Plaintiff’s status on a federal watch list” and

explaining that “neither confirming nor denying the existence of

records indicating placement on a federal watchlist protects the

operational counterterrorism and intelligence collection

objectives of the Federal government and the personal safety of

those involved in counterterrorism investigations.”

On July 6, 2018, Mr. Magassa timely submitted a written

appeal of the TSA’s response to his FOIA request. Exhibit I, ECF

No. 9-3. The appeal stated that, along with wrongfully redacting

information and citing exemptions which do not protect the

redacted information from disclosure, TSA also withheld

documents in its possession in their entirety and did not

properly address those documents and any corresponding

exemptions in order to justify withholding them altogether.

The appeal also challenged the adequacy of TSA’s search for

responsive records, and noted that “the undersigned counsel

previously received numerous TSA documents through other

administrative avenues that were not provided in this response,

including but not limited to the determination that Mr. Magassa

3 does not meet the eligibility requirements to hold airport-

approved and/or airport-issued media.”

On September 5, 2018, TSA responded to Mr. Magassa’s Appeal

and affirmed its withholdings, redactions, and the use of FOIA

Exemptions 3 and 6. Exhibit J, ECF No. 9-3. TSA articulated its

position that records relating to Mr. Magassa’s credentials were

not within the scope of his FOIA request.

TSA’s response

also stated that the contents of the letter constituted the

Agency’s final decision, and that Mr. Magassa could seek

judicial review.

Mr. Magassa subsequently filed this lawsuit

on June 28, 2019.

B. Procedural Background

On January 15, 2020, TSA filed a Motion for Summary

Judgment, see Def.’s MSJ., ECF No. 9-2; to which Mr. Magassa

responded, see Pl.’s Resp. and Mem. in Opp’n to Def.’s Mot for

Summ. J. (“Pl.’s Opp’n”), ECF No. 10. Mr. Magassa also filed a

Cross Motion for Summary Judgment. See Pl.’s XMSJ., ECF No. 11-

2. TSA then filed a joint opposition and reply on May 7, 2020.

See Def.’s Comb. Reply in Supp. of Mot. for Summ. J and Opp’n to

Pl.’s XMSJ for Summ. J. (“Def.’s Opp’n”), ECF No. 15. Mr.

Magassa replied on May 21, 2020. See Pl.’s Reply, ECF No. 18.

The motions are ripe and ready for adjudication.

4 II. Legal Standard

A. Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary

judgment motions must be granted if “there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.

Liberty Lobby, Inc.,

(1986). The moving party

bears the initial burden “of informing the district court of the

basis for its motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

(1986) (citation and quotation marks omitted); see also Fed. R.

Civ. P. 56(c)(1). This burden “may be discharged by showing . .

. that there is an absence of evidence to support the nonmoving

party’s case.” Celotex,

(quotation marks

omitted).

In evaluating a summary judgment motion, “[t]he evidence of

the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Liberty Lobby,

(quoting Adickes v. S. H. Kress & Co.,

(1970)). Summary judgment turns on “whether the evidence

presents a sufficient disagreement to require submission to a

5 jury or whether it is so one-sided that one party must prevail

as a matter of law.”

. “[I]f the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party”–and thus a “genuine” dispute over a material fact exists–

then summary judgment is not available.

.

For purposes of summary judgment, materiality is determined

by the substantive law of the action.

Accordingly, the

substantive law identifies “which facts are critical and which

facts are irrelevant,” and “[o]nly disputes over facts that

might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.”

Similarly, the applicable substantive evidentiary standards of

the action guide “whether a given factual dispute requires

submission to a jury.”

. The Court’s role at the

summary judgment stage “is not . . . to weigh the evidence and

determine the truth of the matter but to determine whether there

is a genuine issue for trial.”

.

B. FOIA

FOIA is based on the recognition that an informed citizenry

is “vital to the functioning of a democratic society, needed to

check against corruption and to hold the governors accountable

to the governed.” NLRB v. Robbins Tire & Rubber Co.,

(1978). It was enacted to “pierce the veil of

administrative secrecy and to open agency action to the light of

6 public scrutiny,” and it favors “full agency disclosure.” Dep’t

of the Air Force v. Rose,

, 360–61 (1976) (quoting

Rose v. Dep’t of the Air Force,

(2d Cir.

1974)). FOIA cases are usually resolved on motions for summary

judgment. Brayton v. Office of the U.S. Trade Rep.,

(D.C. Cir. 2011). The agency has the burden of

justifying its response to the FOIA request it received, and the

court reviews its response de novo.

(a)(4)(B).

C. Adequate Search

To prevail on summary judgment in a FOIA case, the agency

must show that it conducted an adequate search for records

responsive to the plaintiff’s FOIA request. See Morley v. CIA,

(D.C. Cir. 2007). To make a prima facie

showing of adequacy, the agency must demonstrate that it made a

good-faith effort to search for responsive records “using

methods which can be reasonably expected to produce the

information requested.” Reporters Comm. for Freedom of Press v.

FBI,

(D.C. Cir. 2017) (quoting Oglesby v. U.S.

Dep’t of Army,

(D.C. Cir. 1990)); see Iturralde

v. Comptroller of Currency,

(D.C. Cir. 2003)

(adequacy depends on the “appropriateness of the methods used”

rather than the “fruits of the search”).

It may do so by submitting “[a] reasonably detailed

affidavit, setting forth the search terms and the type of search

7 performed, and averring that all files likely to contain

responsive materials (if such records exist) were searched.”

Reporters Comm.,

(quoting Oglesby,

). Such affidavits “are accorded a presumption of good faith,

which cannot be rebutted by ‘purely speculative claims about the

existence and discoverability of other documents.’” SafeCard

Servs., Inc. v. SEC,

(D.C. Cir. 1991)

(quoting Ground Saucer Watch, Inc. v. CIA,

(D.C. Cir. 1981)). However, “[a]t a bare minimum, the agency’s

affidavits need to specify ‘what records were searched, by whom,

and through what process.’” Rodriguez v. DOD,

(D.D.C. 2017) (quoting Steinberg v. DOJ,

(D.C. Cir. 1994)).

“The agency fails to meet this burden such that summary

judgment is inappropriate when the agency fails to set forth the

search terms and the type of search performed with specificity

or otherwise provides ‘no information about the search

strategies of the [agency] components charged with responding to

[a] FOIA request’ and ‘no indication of what each [component’s]

search specifically yielded.’” Otero v. DOJ,

(D.D.C. 2018) (quoting Reporters Comm.,

).

8 III. Analysis

TSA argues that Mr. Magassa failed to administratively

exhaust certain issues, and judicial review is therefore

inappropriate. See Def.’s MSJ, ECF No. 9-2 at 9. TSA asserts

that it properly determined that Mr. Magassa’s initial FOIA

requests were insufficiently specific to enable TSA to conduct a

reasonable search, and also that it properly excluded records

related to his aviation worker’s credential as outside the scope

of his request. Id. at 11, 15. TSA adds that it conducted a

reasonable search for the requested records, and withheld only

exempt records. Id. at 15, 20. Finally, TSA argues that it

released all reasonably segregable records, and should therefore

be granted summary judgment. Id. at 30.

Mr. Magassa responds that neither did he fail to exhaust

all remedies, nor is this necessary. See Pl.’s XMSJ, ECF No. 11-

2 at 18. He contends that summary judgment in TSA’s favor is

unwarranted because TSA did not make a reasonable, good-faith

effort in its search. Id. at 12. He adds that he is entitled to

injunctive, declaratory, and mandamus relief. See id. at 5.

Given the overlapping nature of the issues raised by both

parties, the Court considers their arguments together for each

issue presented.

9 A. Mr. Magassa Has Exhausted His Administrative Remedies

TSA does not dispute that Mr. Magassa filed an

administrative appeal. See Def.’s MSJ, ECF No. 9-2 at 10.

Instead, TSA argues that Mr. Magassa’s appeal “did not challenge

the agency’s Glomar response, the adequacy of TSA’s searches, or

TSA’s determinations that Plaintiff’s requests of September 18,

2017, and October 13, 2017, did not comply with

(b) and were not proper FOIA requests,” and therefore “TSA

has not had the opportunity to exercise its discretion and

expertise on these matters.”

. Mr. Magassa responds

that his appeal included language that “suffices to appeal the

entirety of the TSA’s response, as recognized by courts in this

Circuit.” Pl.’s Opp’n, ECF No. 10 at 18 (citing Wolf v. CIA,

(D.C. Cir. 2007)). He adds that even if he had failed

to appeal any portion of the TSA’s FOIA response, this would not

provide a basis to grant TSA’s Motion.

The Court agrees with

Mr. Magassa.

Exhaustion of administrative remedies is “a mandatory

prerequisite” to a lawsuit under FOIA. Wilbur v. CIA,

(D.C. Cir. 2004) (per curiam) (internal citation

omitted). To exhaust administrative remedies, a FOIA requestor

must follow relevant agency regulations on administrative

appeal. See, e.g., DeBrew v. Atwood,

(D.C.

Cir. 2015) (observing that to allow requester to “pursue

10 judicial review without benefit of prior [agency] consideration

[on administrative appeal] would undercut the purposes of

exhaustion” (quoting Hidalgo v. FBI,

(D.C.

Cir. 2003))).

With respect to TSA’s assertions as to the limitations of

Mr. Magassa’s appeal, the Court is cognizant that Mr. Magassa’s

administrative appeal stated that “[w]e further appeal the

agency’s lack of production in response to Mr. Magassa’s request

overall.” ECF No. 9-3 at 46. Mr. Magassa also asserted that TSA

“withheld numerous documents in its possession in their entirety

and did not properly address those documents and their

corresponding exemptions in order to justify withholding them

altogether.”

The Court construes these statements as

sufficiently broad to challenge the entirety of TSA’s response.

TSA provides no authority establishing that Mr. Magassa must

challenge each component of TSA’s responses individually. See

generally Def.’s MSJ, ECF No. 9-2. The Court’s conclusion is

bolstered by TSA’s September 5, 2018 letter stating that the

letter constituted the Agency’s final decision, and that Mr.

Magassa could seek judicial review. Exhibit J, ECF No. 9-3. It

is inconsistent for TSA to direct Mr. Magassa to seek judicial

review of his appeal, without clarifying he may further appeal

11 other issues, and then assert before this Court that he has not

exhausted his administrative remedies.

Moreover, as TSA recognizes, “the D.C. Circuit has held

that exhaustion of administrative remedies in FOIA case is a

jurisprudential doctrine rather than a jurisdictional

prerequisite.” Def.’s MSJ, ECF No. 9-2 at 11 (citing Hildalgo v.

FBI,

(D.C. Cir. 2003)); see also Wilbur,

(“[E]xhaustion of a FOIA request is not

jurisdictional because the FOIA does not unequivocally make it

so[.]”) (internal citation and quotation marks omitted). The

Court concludes that Mr. Magassa has exhausted his

administrative remedies.

B. TSA Conducted a Reasonable Search for Responsive Records TSA argues that its “detailed declaration from its FOIA

Officer demonstrates that it met its FOIA obligation by

searching all locations likely to contain responsive records.”

Def.’s MSJ, ECF No. 9-2 at 15. It states that it searched the

only locations likely to yield records responsive to Mr.

Magassa’s final amended request, which concerned, in part, TSA

questioning that Mr. Magassa allegedly underwent at five

specific airports. See id. at 17. Mr. Magassa broadly counters

that TSA failed to fully search for responsive documents and did

not make a good faith effort in its searches, but he does not

specifically present any challenges to TSA’s methodology. See

12 Pl.’s Opp’n, ECF No. 10 at 9, 12. The Court concludes that TSA’s

search was adequate.

An agency can establish the reasonableness of its search by

“reasonably detailed, nonconclusory affidavits describing its

efforts.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce,

(D.C. Cir. 2006). “In the absence of

countervailing evidence or apparent inconsistency of proof,

affidavits that explain in reasonable detail the scope and

method of the search conducted by the agency will suffice . . .

.” Perry v. Block,

(D.C. Cir. 1982). “‘[T]he

adequacy of a FOIA search is generally determined not by the

fruits of the search, but by the appropriateness of the methods

used to carry out the search.’” Jennings v. Dep’t of Justice,

, 1 (D.C. Cir. 2007) (quoting Iturralde,

.

Before turning to the merits of the argument, two threshold

matters are necessary to address. First, the Court is cognizant

that the scope of TSA’s search properly excluded records related

to Mr. Magassa’s aviation worker credential. Mr. Magassa

suggests that his October 13, 2017 FOIA request included records

related to his aviation worker credential. Pl.’s Opp’n, ECF No.

10 at 7. However, none of Mr. Magassa’s three requests indicated

that the nature of one of his contacts with TSA was as an

individual holding a credential, or that any of the records he

13 sought were related to his aviation worker credential. See Exs.

A, C, E, ECF No. 9-3. “[I]t is the requester’s responsibility to

frame requests with sufficient particularity.” Hall & Assoc. v.

EPA,

(D.D.C. 2015). TSA therefore did not

err in determining that records related to Mr. Magassa’s

aviation worker credential were outside the scope of his

request. Mr. Magassa may submit another FOIA request for his

aviation worker credentials specifically, and indeed, he has

already done so. See Def.’s Reply, ECF No. 14 at 5. 1 Second, the

Court finds TSA’s critique of Mr. Magassa’s initial FOIA

requests to be irrelevant. See Def.’s MSJ, ECF No. 9-2 at 11.

Mr. Magassa’s first two requests were, at TSA’s behest,

clarified into a final request, which provides the basis for

this action. The Court does not agree that “[s]ummary judgment

for TSA on Plaintiff’s initial requests of September 18, 2017,

and October 13, 2017, is proper,” because it is the final

version of the request that is relevant.

Turning to the adequacy of TSA’s search for the final

request, TSA explains through affidavits where it searched for

1 TSA also brings to the Court’s attention that Mr. Magassa’s airline worker credential has been reinstated and he was able to gain employment with an airline (in a separate lawsuit he filed). See Magassa v. Wolf, Case No. 2:19-cv-02036-RSM (W.D. Wash. 2019); Compl., ECF No. 1 ¶¶ 144-145.

14 records, why it searched there, who led the search process, why

those specific individuals were chosen to lead the search

process, and what the search process entailed. See Def.’s MSJ,

ECF No. 9-2 at 15-20; see generally Miller Decl., ECF No. 9-3.

Mr. Magassa does not mount any specific challenges to this

methodology. See generally Pl.’s Opp’n, ECF No. 10. The Court

concludes that TSA has established the reasonableness of its

search by providing “reasonably detailed, nonconclusory

affidavits describing its efforts.” Baker,

.

Accordingly, the Court GRANTS TSA’s Motion for Summary Judgment

as to the adequacy of the search, and DENIES Mr. Magassa’s

request for an order requiring TSA to demonstrate that it

employed search methods reasonably likely to lead to the

discovery of responsive records, and for an order for TSA to

conduct an adequate search.

C. TSA Withheld Only Exempt Information

1. TSA’s Withholdings Under Exemption 3 Were Proper

TSA invokes FOIA Exemption 3 to withhold the information it

has designated as SSI from disclosure, see Def.’s MSJ, ECF No.

9-2 at 20; pursuant to

(r)(1)(C), on the grounds

that “public release of the information . . . could enable

terrorists to evade or circumvent transportation security

screening procedures,” Declaration of Douglas E. Blair (“Blair

Decl.”), ECF No. 9-4 ¶ 13. Exemption 3 allows an agency to

15 withhold or redact records that are “specifically exempted from

disclosure by statute ... provided that such statute (A)

requires that the matters be withheld from the public in such a

manner as to leave no discretion on the issue, or (B)

establishes particular criteria for withholding or refers to

particular types of matters to be withheld.”

(b)(3).

Pursuant to

(r), TSA is required to

implement regulations prohibiting disclosure of information

“[n]otwithstanding section 552 of title 5 [i.e., FOIA]” provided

TSA’s Administrator “decides that disclosing the information

would (A) be an unwarranted invasion of personal privacy; (B)

reveal a trade secret or privileged or confidential commercial

or financial information; or (C) be detrimental to the security

of transportation.”

(r). Accordingly, TSA

promulgated implementing regulations that expressly prohibit the

disclosure of certain categories of SSI. See generally 49 C.F.R.

part 1520.

The Supreme Court has stated that Section 114(r)(1) allows

the TSA to deny FOIA requests and that the prohibitions set

forth in Section 114(r)(1) “currently override FOIA.” DHS v.

MacLean,

,

(2015). As this Court

has previously concluded, and as persuasive authority holds,

Section 114(r) qualifies as an Exemption 3 withholding statute.

16 Skurow v. U.S. Dept. of Homeland Sec.,

(D.D.C. 2012); see also Elec. Privacy Info. Ctr. v. DHS,

(D.D.C. 2013), appeal dismissed (Jan. 21,

2014) (concluding Section 114(r) qualifies as an Exemption 3

withholding statute); Tooley v. Bush, No. CIV.A. 06-306 (CKK),

, at *20 (D.D.C. Dec. 21, 2006), aff’d on other

grounds on rehearing,

(D.C. Cir. 2009) (same);

Elec. Privacy Info. Ctr. v. DHS,

(D.D.C. 2005) (same).

Mr. Magassa does not challenge whether Section 114(r)

qualifies as an exemption holding statute. See generally Pl.’s

Opp’n, ECF No. 10. Nor does he dispute that the Court lacks

jurisdiction to review TSA’s decision to designate certain

material as SSI. See generally

Courts of Appeals have

“exclusive jurisdiction to affirm, amend, modify, or set aside”

the final orders issued by TSA referenced in § 46110(a),

including SSI designations made pursuant to § 114(r).

(c). As such, district courts, including those

adjudicating FOIA cases, may not review determinations of TSA to

designate material as SSI. Skurow,

.

Accordingly, the scope of this Court’s review is to

determine whether the material withheld, as described by TSA,

fits within the scope of Section 114(r). Morley v. CIA,

(D.C. Cir. 2007) (quoting Ass'n of Ret. R.R. Workers

17 v.U.S. R.R. Ret. Bd.,

(D.C. Cir. 1987)

(“‘[T]he sole issue for decision is the existence of a relevant

statute and the inclusion of the withheld material within the

statute's coverage.’”)); James Madison Project v. CIA,

(D.D.C. 2009).

In describing the withheld material, TSA states that

the 182 pages withheld in full cover material concerning procedures for screening of persons and their property, including selection criteria and any comments, instructions, and implementing guidance pertaining thereto, and information that may be used to determine Plaintiff’s status on a watch list utilized by TSA for passenger pre-board screening (i.e., whether Plaintiff was or was not on such a list), which identifies information and sources of information used by TSA’s automated passenger prescreening system, the Secure Flight Program.

Blair Decl., ECF No. 9-4 ¶ 12(a). TSA states that this

information is SSI pursuant to

(b)(9)(i) and

(ii) “because it is used by a passenger screening system and/or

concerns screening procedures, including selection criteria and

any comments, instructions, and implementing guidance pertaining

thereto.”

TSA further describes the redacted material as follows:

The redactions to the 22 pages withheld in part cover material concerning the type of suggested letter to be issued in response to Plaintiff’s redress inquiry, information related to components that conducted analyses related to Plaintiff’s redress inquiry, and

18 other information that may also be used to determine Plaintiff’s status on a watch list utilized by TSA for passenger pre-board screening (i.e. whether Plaintiff was or was not on such a list). This material identifies information and sources of information used by TSA’s automated passenger prescreening system, the Secure Flight Program.

(b). TSA states that this information is SSI pursuant to

its implementing regulations at

(b)(9)(ii)

“because it is used by a passenger screening system.”

Mr. Magassa argues that TSA has merely recited statutory

standards and relied on broad categories, thereby failing in its

obligation to provide a relatively detailed justification

explanation for its Exemption 3 withholdings. See Pl.’s XMSJ,

ECF No. 11-2 at 14-15, 18; Pl.’s Opp’n, ECF No. 10 at 15.

The Court disagrees. Again, the scope of the Court’s review is

limited to whether the material withheld, as described by TSA,

fits within the scope of Section 114(r). With regard to the 182

pages withheld in full, TSA provided a detailed description of

the withheld material. See supra. In summary, it consists of

procedures and implementing guidance for screening persons and

property, information used to determine whether Mr. Magassa is

on a watch list, and the sources of information by the Secure

Flight Program. The description fits squarely within the scope

of Section 114(r) because release of such procedures,

implementing regulations, and the specified information would

19 “be detrimental to the security of transportation.”

(r)(C). Furthermore, the information is SSI pursuant to TSA’s

implementing regulations “because it is used by a passenger

screening system and/or concerns screening procedures, including

selection criteria and any comments, instructions, and

implementing guidance pertaining thereto.” Blair Decl., ECF No.

9-4 ¶ 12 (citing

(b)(9)(i) and (ii)).

Similarly, with regard to the redactions to the 22 pages

withheld in part, TSA provided a detailed description of the

withheld material. In summary, it consists of some of the same

information withheld in the fully withheld documents plus

additional internal guidance for responding to Mr. Magassa’s

redress petition and internal analyses. Again, the description

fits squarely within the scope of Section 114(r) because release

of such procedures, implementing regulations, and the specified

information would “be detrimental to the security of

transportation.”

(r)(C). Furthermore, the

information is SSI pursuant to TSA’s implementing regulations

“because it is used by a passenger screening system.” Blair

Decl., ECF No. 9-4 ¶ 12 (citing

(b)(9)(ii)).

TSA has employed a categorical approach to its redactions and

withholdings.

A categorical approach to redactions or withholdings is permissible under FOIA when “the FOIA litigation process threatens to

20 reveal ‘the very information the agency hopes to protect.’” Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice,

(D.C. Cir. 2014) (“CREW ”) (quoting ACLU v. CIA,

(D.C. Cir. 2013)). The government may justify its withholdings and redactions “category-of-document by category-of- document, so long as its definitions of relevant categories are sufficiently distinct to allow a court to determine whether specific claimed exemptions are properly applied.”

(quoting Gallant v. NLRB,

(D.C. Cir. 1994)). The range of circumstances included in the category must “characteristically support [ ] an inference that the statutory requirements for exemption are satisfied.”

at 1088–89 (quoting Nation Magazine v. U.S. Customs Serv.,

(D.C. Cir. 1995)).

Prison Legal News v. Samuels,

(D.C. Cir.

2015).

Here, the two categories described in the Blair Declaration

support the application of Exemption 3 for the reasons explained

supra. Furthermore, the Blair Declaration attests that “[t]he

redacted and withheld information cannot be described with more

particularity than the descriptions provided [] without

revealing SSI.” Blair Decl., ECF No. 9-4 ¶ 12 n.3. This fits

squarely within the permissible reasons for using a categorial

approach. See CREW,

.

Mr. Magassa’s second argument is that to the extent TSA

elaborated on why the release of the information would be

detrimental to transportation security, its rationale is without

21 merit as applied to him. Pl.’s Opp’n, ECF No. 10 at 12-14.

However, the implementing regulations define security screening

procedures, as well as information and sources of information

used by a passenger or property screening program or system, as

SSI under

(b)(9)(i) and (ii). Even though the

information is about Mr. Magassa himself, as the government

points out, “SSI regulation sets out in detail those individuals

who may and who may not access SSI,” and Mr. Magassa does not

explain why he is entitled to that information. Def.’s Reply,

ECF No. 14 at 8. The cases Mr. Magassa cites in other districts

in support of his argument do not address the narrow question of

SSI in this context, but rather focus on constitutional

challenges, unlike the case at hand. See Pl.’s Opp’n, ECF No. 10

at 13-14. As explained supra, the Court’s role in the present

context is limited to determining “whether the material

withheld, as described by TSA, fits within the scope of Section

114(r).” Skurow,

.

2. TSA Properly Issued A “Glomar Response” Subject To Exemption 3

TSA issued a Glomar response “with respect to its searches

of certain locations that principally contain information

bearing on whether an individual’s name appears on a watch list,

and any potentially responsive documents that might have been

returned by such searches . . ..” Def.’s MSJ, ECF No. 9-2, ECF

22 No. 9-2 at 26. TSA argues that the results of searches in

particular places cannot be publicly disclosed, and the Glomar

response provided to Plaintiff was appropriate, because

“acknowledging the existence or nonexistence of records

regarding Plaintiff in these locations would reveal whether he

was or was not on a watch list utilized by TSA for passenger

pre-board screening.” Id. at 26; Def.’s Reply, ECF No. 15 at 10.

Mr. Magassa argues that “[TSA’s] Glomar response is not

applicable here, because many of the referenced documents have

already been produced in other contexts.” Pl.’s XMSJ, ECF No.

11-2 at 20. TSA replies that “[t]his argument is misplaced, as

the purported documents which TSA previously confirmed existed

to [Mr. Magassa] pertain to his aviation worker credential, and,

as noted above, TSA did not search for such documents because

they were outside of the scope of Plaintiff’s request.” Def.’s

Reply, ECF No. 15 at 11.

A Glomar response is appropriate “only when confirming or

denying the existence of records would itself ‘cause harm

cognizable under a FOIA exception.’” ACLU v. CIA,

(D.C. Cir. 2013) (quoting Roth v. U.S. Dep’t of Justice,

(D.C. Cir. 2011)). “When addressing an agency’s

Glomar response, courts must accord ‘substantial weight’ to

agency determinations.” Sea Shepherd Conservation Soc’y v. IRS,

(D.D.C. 2016) (citing Gardels v. CIA, 689

, 1104 (D.C. Cir. 1982)). The agency must “tether its

refusal to respond to one of the nine FOIA Exemptions.”

Montgomery v. IRS, No. 17-918,

, at *2 (D.D.C.

July 8, 2019) (citation omitted). “Ultimately, an agency’s

justification for invoking a FOIA exemption is sufficient if it

appears ‘logical’ or ‘plausible.’” Wolf,

-75

(quoting Gardels, 689 F.2d at 1105).

“To overcome a Glomar response, the plaintiff[s] can either

challenge the agency’s position that disclosing the existence of

a record will cause harm under the FOIA exemption asserted by

the agency, or the plaintiff[s] can show that the agency has

‘officially acknowledged’ the existence of records that are the

subject of the request.” James Madison Project, 320 F. Supp. 3d

at 148.

Mr. Magassa selected the first route to challenge the

Glomar response, asserting that “many of the referenced

documents have already been produced in other contexts.” Pl.’s

XMSJ, ECF No. 11-2 at 20; see also Compl., ECF No. 1 ¶ 15

(“[U]ndersigned counsel previously received numerous TSA

documents through other administrative avenues that were not

provided in this response, including but not limited to the

determination that Mr. Magassa does not meet the eligibility

requirements to hold airport-approved and/or airport-issued

media”). However, and as TSA argues, Mr. Magassa’s argument is

24 misplaced because the “purported” documents TSA previously

confirmed existed did not pertain to the subject of the Glomar

response – specifically that TSA cannot confirm or deny whether

Mr. Magassa is on a watch list, but they pertain to Mr.

Magassa’s aviation worker credential and are therefore outside

the scope of the FOIA request at issue. ECF No. 14 at 11. Mr.

Magassa does not meaningfully respond to TSA’s argument, but

merely reiterates his opening arguments. See Pl.’s Reply, ECF

No. 18 at 10.

Here, TSA argues that FOIA Exemption 3 applies to TSA's

Glomar response based on

(r) and the implementing

regulations at

(b)(9)(ii). The Court concludes

that the TSA's Glomar response to plaintiff's FOIA request was

entirely proper and squarely within the realm of its authority.

See Tooley,

, at *20 (finding that Glomar

response to request regarding a person's presence on TSA watch

lists was entirely proper under Section 114(r) where the TSA

explained that if the TSA “were to confirm in one case that a

particular individual was not on a watch list, but was

constrained in another case merely to refuse to confirm or deny

whether a second individual was on a watch list, the

accumulation of these answers over time would tend to

reveal SSI.”); see also Gordon v. FBI,

(N.D. Cal. 2005) (“Requiring the government to reveal

25 whether a particular person is on the watch lists would enable

criminal organizations to circumvent the purpose of the watch

lists by determining in advance which of their members may

be questioned.”). Accordingly, the Court concludes that TSA

properly responded to Mr. Magassa’s request for information

about whether his name appeared on a watch list by refusing to

confirm or deny that information pursuant to FOIA Exemption 3.

For these reasons, the Court GRANTS TSA’s Motion for

Summary Judgment as to Exemption 3. The Court DENIES Mr.

Magassa’s request for injunctive relief by way of a Court Order

enjoining TSA from withholding any and all non-exempt records,

see Pl.’s XMSJ, ECF No. 11-2 at 14; and DENIES Mr. Magassa’s

request for a declaration that he is entitled to disclosure of

the records he requests, see id. at 17.

3. TSA Properly Withheld Information Pursuant To Exemption 6

TSA argues that its Exemption 6 withholdings of the names

of individuals involved in processing Plaintiff’s redress

inquiry, and the name of a U.S. Customs and Border Patrol

(“CBP”) agent, are appropriate because “the privacy interests

in this information was [sic] substantial and, considering the

sensitive work TSA redress employees and CBP officers conduct

related to, respectively, inquiries by individuals who allege

travel-related difficulties and seek removal from watchlists,

26 and the enforcement of federal laws, that [sic] the release of

such information—tied directly to TSA and CBP employees—could

subject them to harassment and retaliation.” Def.’s MSJ, ECF No.

9-2 at 28. Mr. Magassa responds that government employees have

no legitimate privacy right to the redaction of their names. See

Pl.’s XMSJ, ECF No. 11-2 at 16.

Exemption 6 exempts from disclosure “personnel and medical

files and similar files the disclosure of which would constitute

a clearly unwarranted invasion of personal privacy.”

(b)(6). The Court must first determine whether the records at

issues are “personnel, medical, or similar files,” and then

determine “whether their disclosure would ‘constitute a clearly

unwarranted invasion of personal privacy,’ which requires

balancing ‘the privacy interest that would be compromised by

disclosure against any public interest in the requested

information.’” Smith v. Central Intelligence Agency,

(D.D.C. 2017) (quoting Multi Ag Media LLC v.

Dep’t of Agric.,

(D.C. Cir. 2008)). “The

Supreme Court has stated that the term ‘similar files’ is to be

construed broadly and includes any ‘disclosure of information

which applies to a particular individual.’”

(quoting U.S.

Dep’t of State v. Wash. Post Co.,

(1982)).

“[U]nless a FOIA request advances ‘the citizens’ right to be

informed about what their government is up to,’ no relevant

27 public interest is at issue.” Nat’l Ass’n of Home Bldgs v.

Norton,

(D.C. Cir. 2002) (quoting U.S. Dep’t of

Justice v. Reporters Comm. for Freedom of Press,

(1989)).

Here, the Court agrees with TSA that there are privacy

interests involved for the employees whose names have been

withheld, particularly given the nature of the underlying

material. Against this privacy interest, the Court is unable to

identify any public interest in the disclosure of identifying

information. As TSA argues, “the release of these individuals’

names and identifying information would do nothing to shed light

on the operations and activities of the federal government.”

Def.’s MSJ, ECF No. 9-2 at 23. Mr. Magassa does not engage with

TSA’s detailed argument, or with the substantial caselaw TSA

presents in support, instead only stating briefly that

government employees have no legitimate privacy right to

redaction of their names and citing a decades old case from a

different District. See Pl.’s XMSJ, ECF No. 11-2 at 16. The

Court concludes that TSA validly withheld names under Exemption

6. Accordingly, TSA’s Motion for Summary Judgment as to the

information withheld pursuant to FOIA Exemption 6 is GRANTED.

D. TSA Has Satisfied Its Segregability Obligations

Under FOIA, “even if [the] agency establishes an exemption,

it must nonetheless disclose all reasonably segregable,

28 nonexempt portions of the requested record(s).” Roth v. U.S.

Dept. of Justice,

(D.C. Cir. 2001)

(internal quotation marks and citation omitted). “[I]t has long

been the rule in this Circuit that non-exempt portions of a

document must be disclosed unless they are inextricably

intertwined with exempt portions.” Wilderness Soc'y v. U.S.

Dep't of Interior,

(D.D.C. 2004) (quoting

Mead Data Cent., Inc. v. U.S. Dep't of Air Force,

(D.C. Cir. 1977)). Thus, an agency must provide “a detailed

justification and not just conclusory statements to demonstrate

that all reasonably segregable information has been released.”

Valfells v. CIA,

(D.D.C. 2010)

(internal quotation marks and citation omitted). However,

“[a]gencies are entitled to a presumption that they complied

with the obligation to disclose reasonably segregable material,”

which must be overcome by some “quantum of evidence” from the

requester. Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007).

With regard to the redactions to the 22 pages withheld in

part and the 182 pages withheld in full pursuant to Exemption 3,

the Blair Declaration attests that “I have determined that all

of the redacted information described above is in fact SSI under

(b)(9)(i) and/or (ii).” Blair Decl., ECF No.

9-4 ¶ 13. The Blair Declaration further explains “that the SSI

29 Program procedures that call for the public release of as much

information as possible without compromising transportation

security and require redaction of the smallest possible portion

of the record necessary to protect SSI were followed and that

the redactions were necessary to protect SSI.”

.

With regard to the 3 pages of documents withheld in part

pursuant to Exemption 6, the Miller Declaration attests that “I

have also evaluated the three (3) pages of responsive records

withheld in part pursuant to Exemption 6. Those redactions cover

names of individuals that I have determined were properly

redacted in whole, as release of any part of those names could

result in the privacy harms identified above.” Miller Decl. ECF

No. 9-3 ¶ 44.

Mr. Magassa asserts generally that TSA’s “Declarations are

insufficient, because they do not ‘show with reasonable

specificity why the documents cannot be further segregated.’”

XMSJ, ECF No. 11-2 at 16 (quoting Hertzberg v. Veneman,

(D.D.C 2003)); Pl.’s reply, ECF No. 18 at 9.

He further contends that TSA’s explanations fail to explain “in

detail which portions of the documents are disclosable and which

are all allegedly exempt.” XMSJ, ECF No. 11-2 at 17. The Court

disagrees and concludes that TSA has satisfied its burden

regarding segregable information.

30 As an initial matter, Mr. Magassa has failed to point to

any “quantum of evidence” to overcome the presumption that TSA

complied with its obligation to disclose reasonably segregable

material. Sussman

. And rather than identifying

any specific problems with TSA’s declarations, Mr. Magassa

simply points to the applicable legal standard. With regard to

the Exemption 3 withholdings, the Blair Declaration explains in

detail why the redacted and withheld information is SSI and

states that, consistent with its SSI Program procedures,

additional information could not be released without harming

transportation security. With regard to the Exemption 6

redactions, the Miller Declaration attests that the only

redactions made pursuant to Exemption 6 were the names of

individuals. Based on these explanations and Mr. Magassa’s

failure to point to any quantum of evidence, the Court concludes

that TSA has satisfied its segregability obligations. See

Judicial Watch, Inc. v. FDA,

(D.C. Cir. 2007)

(quoting Mead Data Cent.,

) (The agency has

“provide[d] [] relatively detailed justification[s],

specifically identif[ying] the reasons why [] particular

exemption[s] [are] relevant [] with the particular part[s] of []

withheld document[s] to which they apply.”).

31 IV. Conclusion

For the foregoing reasons, the Court GRANTS TSA’s Motion

for Summary Judgment, see ECF No. 9; and DENIES Mr. Magassa’s

Motion for Summary Judgment, see ECF No. 11. An appropriate

Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge March 31, 2022

32