July 26, 2010


Phillip Mocek
[redacted]
Seattle, WA 98122-2778

FOIA Case Number: TSA09-0624

Dear Mr. Mocek:

This is in response to your Freedom of Information Act (FOIA) request dated June 16, 2009, in which you are requesting, "...access to and copies of the Transportation Security Administration Screening Management SOP (Standard Operating Procedures) manual." Your request was received in this office on June 16, 2009 and is being processed under the FOIA, 5 U.S.C. §§ 552.

A search within the Transportation Security Administration (TSA) was conducted and we have determined that the 99 page Screening Management SOP is being withheld in its entirety pursuant to Title 5 U.S.C. § 552 (b)(2)(high), and (b)(3). An explanation of each of thes exemptions is outlined below.

Exemption (b)(2)

Exemption (b)(2) of the FOIA exempts from mandatory disclosure records that are "related solely to the internal personnel rules and practices of any agency." The courts have interpreted the exemption to encompass two distinct categories of information: (1) internal matters of a relatively trivial nature often referred to as "low 2" information; and (2) more substantial internal matters, the disclosure of which would risk circumvention of a legal requirement--often referred to as "high 2" information.

We have determined that certain portions of the requested records should be withheld from disclosure as "high 2" information, in that they contain sensitive materials. Sensitive materials are exempt from mandatory disclosure under "high 2" when the requested documents are predominantly internal, and disclosure significantly risks circumvention of a regulation or statute, including civil enforcement and regulatory matters.

Sensitive materials are exempt from mandatory disclosure under "high 2" when the requested documents are predominantly internal, and disclosure significantly risks circumvention of a regulation or statute, including civil enforcement and regulatory matters. Whether there is any public interest in disclosure is legally irrelevant. Rather, the concern under "high 2" is that a FOIA disclosure should not benefit those attempting to violate the law and avoid detection.

Exemption (b)(3)

These document(s) or portions of documents reveal Sensitive Security Information (SSI) and are exempt from disclosure under Exemption 3 of the FOIA. Exemption 3 permits the withholding of records specifically exempted from disclosure by another Federal statute. Section 114(r) of title 49, United States Code, exempts from disclosure SSI that "would be detrimental to the security of transportation" if disclosed. The TSA regulations implementing Section 114(r) are found in 49 CFR Part 1520.

Pursuant to Section 1520.5(b)(9)(i), the following information regarding security screening under aviation or maritime transportation security requirements of Federal law: any procedures, including selection criteria and comments, instructions, and implementing guidance pertaining thereto, for screening of persons, accessible property, checked baggage, U.S. mail, stores, and cargo, that is conducted by the Federal government or any other unauthorized person constitutes SSI and is exempt from disclosure under 49 C.F.R. Section 1520.15(a).

Fees

The fees incurred to process your request do not exceed the minimum threshold necessary for charge and, therefore, there is no fee associated with the processing of this request.

Appeal

In the event that you may wish to appeal this determination, an administrative appeal may be made in writing to Kimberly Walton, Special Counselor, Office of the Special Counselor, Transportation Security Administration, 601 South 12th Street, East Building, E7-121S, Arlington, VA 20598-6033. Your appeal must be submitted within 60 days from the date of this determination. It should contain your FOIA request number and state, to the extent possible, the reasons why you believe the initial determination should be reversed. In addition, the envelope in which the appeal is mailed in should be prominently marked "FOIA Appeal." Please note that the Special Counselor's determination of the appeal will be administratively final.

If you have any questions pertaining to your request, please feel free to contact the FOIA Office at 1-866-364-2872 or locally at 571-227-2300.

Sincerely,



Kevin J. Janet
FOIA Officer
Freedom of Information Act Office

The letter denying my request refers to the exemption under FOIA section b(2) of material “related solely to the internal personnel rules and practices” of an agency. But the Screening management SOP does not relate solely to such rules and practices, but also to TSA relations with TSA contractors, the traveling public, and other third parties. Moreover, while the letter claims that “certain portions of the requested records should be withheld from disclosure” pursuant to this section, the denial letter fails to indicate which portions were withheld on this basis, whether the non-exempt portions were segregable or why they were not segregable, or why the segregable non-exempt portions were not released.

Your reference number: TSA10-0052

Dear Counselor Walton:

This is an appeal under the Freedom of Information Act, 5 U.S.C. §552.

On October 15, 2009 I made a FOIA request to your agency for the TSA’s current “Screening Management Standard Operating procedures” (SOP). By letter dated July 26, 2010, your agency denied my request in its entirety. Copies of my request and the denial are enclosed.

I appeal the denial of my request. The information which I have requested is clearly releasable under FOIA and, in my opinion, may not validly be protected by any of the Act’s exemptions.

The letter denying my request refers to the exemption under FOIA section b(2) of material “related solely to the internal personnel rules and practices” of an agency. But the Screening management SOP does not relate solely to such rules and practices, but also to TSA relations with TSA contractors, the traveling public, and other third parties. Moreover, while the letter claims that “certain portions of the requested records should be withheld from disclosure” pursuant to this section, the denial letter fails to indicate which portions were withheld on this basis, whether the non-exempt portions were segregable or why they were not segregable, or why the segregable non-exempt portions were not released.

The letter denying my request also refers to FOIA section b(3) as justifying the withholding from disclosure of certain information which allegedly “would be detrimental to the security of transportation” if disclosed. But the letter fails to indicate whether any determination was actually made that all or part of the requested material would actually be detrimental to the security of transportation if disclosed, whether any portions which it would not actually detrimental to the security of transportation to disclose are segregable or why they are not segregable, or why the segregable non-exempt portions were not released.

Your burden in justifying a determination of a likelihood of actual detriment to the security of transportation if the requested records are disclosed, of the non-existence of exempt portions of these records, and of the non-segregability of those non-exempt portions is particularly high in this case, where (1) segregable non-exempt portions of the Screening Management SOP were released to, and published by, the Identity Project in response to our previous FOIA request and appeal TSA08-0723, and (2) an unredacted copy of the entirety of the Screening Management SOP was posted on a public Federal government website at <http://www.fbo.gov/utils/dZip?base=d...84f01ee50bafec>, and is available on numerous other websites. (In this version, black boxes are coded to appear in places as a separate “layer” of the PDF document, but the text itself is unredacted in the raw file, and completely accessible to reading, selection, copying, and pasting from any PDF reader software.)

As the FOIA requires, I expect that you will act on this appeal and produce responsive documents within 20 working days.

Sincerely,
Edward Hasbrouck
Consultant on travel-related issues
The Identity Project