saizai

At this point: I only won an order requiring them to respond to my complaint in the first place. The underlying policy is not yet in court for this. (I've sued re the BOS incident — it's on hold pending an appeal re IFP affidavit privacy. But haven't yet sued re SFO because I've been waiting on their response to my complaint and my FTCA claim.)

Seriously, that's what they made me go through two years of litigation to get.

saizai

OP ETA 2: Here's my appeal: https://drive.google.com/file/d/0Bzm...VzY1pnTnM/view

I think it's also a reasonably concise summary of what I think is wrong with their response.

Boggie Dog

I'm curious why you are bringing HIPPA compliance in to this. Do you believe that TSA must comply with HIPPA standards? Are all government agencies required to be HIPPA compliant?

I agree that TSA has little need to know anything about a persons medical history or needs in order to conduct a screening for WEI although at times such a disclosure could expedite the screening process. TSA screeners certainly are not qualified to make medical judgements.

Just wondering what you are trying to accomplish with the HIPPA claim.

Loren Pechtel

And what reason is there to think they'll comply with this order?

saizai

If they collect protected medical information, it's an issue. (BTW it's "HIPAA", not "HIPPA".)

I don't know offhand whether gov't agencies are "covered entities" per HIPAA, but it's shorthand for the main idea: the right to privacy for medical information. E.g. I know for certain that it *is* covered under the Privacy Act, which does apply to federal agencies like TSA.

There was none. Frankly, I thought they would appeal it. But they didn't; they actually responded. See link in OP to read their response.

It's quite likely that they'll try to delay their response on administrative appeal, but they have to realize that if they do I will immediately put it back in front of the judge who just wrote that their actions were unreasonable, will probably win the motion for preliminary injunction and summary judgment, and in winning, would set an even worse precedent against them. I don't think they want to risk that.

We'll see by Feb. 15. They will obey the law — either voluntarily or by court order compelling them to. Their choice whether they want to do it the easy way or the hard way; frankly I almost hope they pick the hard way, because I'd like to set more precedent.

Loren Pechtel

Somehow I think they'll do neither--just ignore the court.

Himeno

Wouldn't that just make it more likely for more courts to want to slap them down?

GaryD

This is terrific. You just made my day. Anyone who wants to can see how the TSA has broken the law several ways in your case.

Thanks so much for your focus and persistence.

At the same time, it is so disappointing to see the lack of support or interest from journalists or activists. I think you are on the right track to change that eventually, so long as the courts, by contrast, don't fail us this time. Best wishes and good luck.

(Your link to the TSA "response" in your original post is broken, I found it by clicking through on your "case page" link.)

saizai

It also sets precedent that will affect everyone who wants to sue the government when it fails to obey the law and violates clear deadlines, or when an agency tries to deny procedural relief in court, or to violate its own regulations. It's not even just the one issue, and that's intentional. My aim is to set precedent.

Thank you. Fixed by replacing it with goo.gl shortened link.

MODS: W T F are you censoring the letters "W T F" when they appear (without spaces) in a URL? This is not reasonable:
https://drive.google.com/file/d/0Bzm...KUWNIUENB/view


Yes to both.

I think it's a tossup. I don't think they're going to want to risk Judge Moss issuing a ruling on the issue; his previous opinion was pretty bad for them, and if I get precedent to force a response to the appeal — which I would surely win, though there is some various procedural BS for how I get it that might go either way (about e.g. supplementing vs amending the complaint; if you don't know why that's different, just move along).

I also don't think they've ever obeyed a single deadline when not ordered to do so by the court. So there's that.

Himeno

Even then, they haven't done it until the last possible second (if at all).
When was the latest, legally, that they should have issued a "final rule" for the body scanners (assuming they following the law and it never had to go to court in the first place)?

saizai

After proposing it publicly and holding notice & comment, and before actually deploying the scanners.

They didn't do that. In 2011, EPIC v DHS held that they violated the APA, but the court let them continue in the meantime. In 2013, they issued the AIT NPRM. They still have not issued a final rule. Last time they were in court on this (In re CEI, DC Cir), they said March 2016. Now (in Corbett's) case they're saying sometime in 2016. I guess we'll find out.

However, IMO (and others'), the new rule about mandatory NoS is not reasonably contemplated by the NPRM. They never said they were going to make it mandatory. So their secret rule saying they are, without any rulmaking, is just plain illegal. That's not the order in which it's supposed to happen.

Himeno

So it all should have been done in early 2010 and TSA has thus been in breach (in this matter) for close to 6 years.

saizai

Correct. This is surely not a surprise.

ETA: Actually, strike that. AIT was deployed in 2007.

So they've been in violation of the APA for about 9 years, and stalling on the court order for about 5.

Himeno

Wasn't it deployed after the xmas 09 "underwear bomber" though tested before?

saizai

OP ETA: Filed.

It asks for quite a lot of records but, IMHO, quite reasonably described — enough to be able to easily find responsive records. (That category includes virtually everything releasable at all, but I figured I might as well not hold back this time.)

Includes all TSA policy & procedure, SEA incident related records, AIT, ETD & patdown testing, etc etc. etc. It's … comprehensive.