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Davis v. DHS, No. 11-CV-203, 2013 WL 3288418 (E.D.N.Y. June 27, 2013) (Ross, J.)
June 27th, 2013 Posted by

Re: Request for documents from the Transportation Security Administration relating to a flight in a specified date range as well as records concerning three named individuals and records concerning electronic storage of flight records; Request for records on self and records concerning surveillance footage from BOP; Request for records on self from the FBI

Disposition: Granting defendants’ motions for summary judgment in part and denying in part

  • Adequacy of declarant: The Court finds that although TSA’s declarant “does not elaborate on the extent of her involvement in processing plaintiff’s search request . . . her supervisory position, combined with the thorough description of the search and her familiarity with TSA search procedures, constitutes sufficient personal knowledge for Rule 56(c)(4).”

    With respect to one declaration submitted by BOP, the Court finds that the declaration provided was insufficient.  The declarant “attests to familiarity with the procedures regarding the processing of FOIA requests, but says nothing about her personal knowledge or familiarity with the documents in question.”  The Court notes that it “will not presume personal knowledge of the declarant,” and accordingly finds the declaration insufficient to support BOP’s motion for summary judgment.  The Court finds another BOP declaration to be similarly deficient, but because the request at issue was misplaced, the Court directs BOP to re-open this particular request for processing now that plaintiff has clarified that he still wishes to pursue the request.

    The Court finds that BOP’s declaration with regard to the search for video surveillance “presents sufficient evidence of personal knowledge.”  The declarant “states that he conducted the search for plaintiff’s requested video surveillance materials himself.”

  • Adequacy of search: The Court holds that TSA conducted an adequate and reasonable search for responsive records concerning the named individuals.  The “declaration describes in detail the function each component office serves within the TSA, the databases searched, and the search terms used.”  However, the Court concludes that TSA has not conducted an adequate search for records concerning electronic storage of flight records.  TSA stated that there were no responsive records, but “[t]he declaration does not explain how these experts arrived at this determination; what, if any, databases they searched; what actions were taken to determine whether responsive records existed in other components; or whether plaintiff was asked to provide a more specific request.”  Likewise, with respect to plaintiff’s request for records concerning a flight in a specified date range, the Court determines that TSA has not conducted an adequate and reasonable search for responsive records.  TSA advised plaintiff that it was unable to determine which flight he referenced, however, “TSA was required under the DHS’s FOIA regulations, to tell plaintiff what additional information was needed or why plaintiff’s request was insufficient.”  “Plaintiff made a request that reasonably described the records he was seeking, and the TSA conducted no search at all.”

    With regard to BOP’s search for responsive records, the Court finds that FOIA “does not obligate BOP to turn over the deleted video recordings.”  BOP provided information regarding its retention policy for video surveillance and explained that many of the records responsive to plaintiff’s request would have been deleted according to normal retention schedules.  “With regard to the video recordings that have been deleted ‘FOIA is only directed at requiring agencies to disclose those agency records for which they have chosen to retain possession or control.’”  “With regard those video recordings that were retained, as well as the audio recordings and records of telephone calls placed by plaintiff from the [detention center], these records are within the possession of the [detention center],” and because BOP has not asserted a basis for withholding them, the Court directs BOP to release them.

  • Glomar/Exemption 3: The Court upholds the TSA’s assertion of a Glomar response with respect to its search of the No Fly and Selectee Lists and its Secure Flight database for records concerning the named individuals.  TSA tethered its refusal to confirm or deny the existence of responsive records to Exemption 3 and 49 U.S.C. § 114 which prohibits the disclosure of information that would be “detrimental to the security of transportation.”  Noting that Courts have previously examined 49 U.S.C. § 114(r) have “unanimously concluded” that it qualifies as an Exemption 3 statute, the Court finds that “TSA properly invoked a Glomar response to plaintiff’s inquiry, having ‘tether[ed] its refusal to respond to one of the . . . FOIA exemptions.’”
  • Fees: The Court grants the FBI’s motion for summary judgment because plaintiff failed to pay the fees associated with his request.  The Court notes that “the FBI properly assessed plaintiff a fee for the search and duplication costs associated with his request.”  Plaintiff agreed to pay fees, but did not remit payment.  The FBI informed plaintiff that it had stopped processing his request once the fees were overdue and informed him that he would have to prepay the outstanding balance.  The FBI also provided him “an opportunity to narrow his request and pay a smaller fee.”  Plaintiff still had not paid his fees as of the date of defendant’s motion, and accordingly, the Court grants the FBI’s motion for summary judgment.
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