Court Says TSA Can Lie About Whether Or Not It Has The Information You're Requesting

Legal Issues

from the clearly-spelled-out-on-the-brand-new-FUIA-request-forms dept

In theory, the Freedom of Information Act is great. It allows citizens to pursue disclosure from government entities in order to better understand processes or look for malfeasance. In reality, however, it’s often incredibly difficult to convince these agencies to actually free up any information.

Whatever isn’t delayed indefinitely is redacted heavily. Everything else that doesn’t hit these two extremes tends to run into various bureaucratic walls. FOIA request fulfillment is often handed off to whatever part of the agency seems least likely to want the job, either because of its natural antipathy towards the public or because it’s chronically understaffed.

It’s gotten to the point where people are regularly suing the government to get documents released. No one needs to point out the sheer insanity of a system that expends public money to keep public documents from the public, especially one that is governed by an act meant to make the wall between the public and its servants so thin as to be nearly transparent.

Now, take that insanity and add to it a court decision that basically says it’s perfectly fine for government agencies to lie to the public about the availability of requested information. The blogger who runs TSA Out of Our Pants! recently had his FOIA lawsuit against the agency dismissed by a district court. In her decision, Judge Joan A. Lenard came to a conclusion that agreed with the TSA’s assertion that it didn’t have the records the blogger requested, despite evidence to the contrary.

U.S. District Judge Joan A. Lenard granted the TSA the special privilege of not needing to go that route, rubber-stamping the decision of the TSA and the airport authority to write to me that no CCTV footage of the incident existed when, in fact, it did. This footage is non-classified and its existence is admitted by over a dozen visible camera domes and even signage that the area is being recorded. Beyond that, the TSA regularly releases checkpoint video when it doesn’t show them doing something wrong (for example, here’s CCTV of me beating their body scanners). But if it shows evidence of misconduct? Just go ahead and lie.

Attached below, you’ll see his photos of the security cameras. While there may be some periodic dumps of stored footage, the likelihood of just the footage he requested not being available is pretty slim, especially since (as he points out) the TSA has no trouble locating flattering footage of its employees hard at work.

The court does seem to have a point about his second argument — that releasing unredacted info about the TSA employees involved doesn’t really serve the public interest. The TSA argued that releasing the names and faces could “expose them to unnecessary unofficial questioning, harassment, and stigmatization.” This argument is a bit of a non-starter, as any public position has a good chance of exposing employees to all of the above. The TSA’s second argument, the one the judge agreed with, is a bit more on point.

The TSA also determined that “none of the individuals’ personal information would shed light on how TSA performs its statutory duties generally or in the particular instance at issue…” The TSA concluded that “the public interest in having that information disclosed was insufficient to merit disclosure.”

This makes more sense even if it does seem a little illogical to pretend the TSA’s employees, who work in public areas and interact with many members of the public, should somehow expect this level of privacy to be retroactively applied. However, the overall point is solid: naming names doesn’t “shed light” on the issue. The TSA-opposing blogger does make a very good point, however: for all the concern the TSA has for its own members’ privacy, it’s rather careless with the privacy of others. Earlier this year, the TSA published an unredacted copy of his driver’s license in a public court filing. Presumably this was an accident and not some petty form of intimidation.]

Unfortunately for this blogger, along with anyone else filing FOIA requests with government agencies, the judge not only took the TSA’s claim that it didn’t have the footage at face value in order to dismiss one of the claims, it also gave it tacit permission to permanently lock away any other info it wished to keep undisclosed.

Judge Lenard ruled that once a document is labeled “Sensitive Security Information” (which the TSA does by merely waiving [sic] a magic wand and writing “SSI” on the cover of a document) the U.S. District Court loses its power to review that determination, and the U.S. Court of Appeals is the proper forum. But wait, the Court of Appeals doesn’t evaluate FOIA claims, so now, in order to get a document you want, you must petition 2 courts and pay over $800 in filing fees alone.

And that’s how the FOIA works in reality. Limitations, delays, redactions and over-classification. That alone would be enough of an uphill battle without courts pitching in with decisions that further distance requested information from the public.

Filed Under: foia, lying, tsa