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Sensor Systems Support, Inc. v. Federal Aviation Administration

February 9, 2012


The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 037


Sensor Systems Support, Inc. ("Sensor Systems") filed an amended complaint on October 3, 2011, seeking to compel the Federal Aviation Administration ("FAA") to produce records in response to its request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The FAA filed a motion to dismiss for lack of subject matter jurisdiction or in the alternative for summary judgment. Sensor Systems responded with a combined filing that is both a cross-motion for summary judgment and an objection to the FAA's motion.*fn1 For the reasons provided below,

I deny Sensor Systems' motion and grant in part and deny in part the FAA's motion.


Sensor Systems sent a FOIA request to the FAA on June 26, 2009. It sought all correspondence from Michael Hawthorne, FAA Program Manager, from July 1, 2008 to the time of the request that pertained to Sensor Systems or Daniel J. Oberlander. Hawthorne searched his computer files and found a total of 467 pages of responsive documents. On August 17, 2009, the FAA sent Sensor Systems 171 pages of correspondence and withheld 296 pages based on a determination that the withheld pages were exempt from disclosure.

On September 10, 2009, Sensor Systems submitted a timely appeal of the FAA's initial determination. Between October 2009 and May 2010, Sensor Systems sent four letters to the FAA Director of Administration informing him that the FAA had failed to timely respond to its appeal.

On July 6, 2010, in response to the FAA's continuing failure to respond to its appeal, Sensor Systems filed this action. On July 20, the FAA informed Sensor Systems that it was granting the appeal in part and released 261 of the 296 withheld pages, albeit with redactions on approximately 70 pages.*fn2 On October 27, the FAA released all 296 pages of the previously withheld documents. This final round of production included 67 pages with partial redactions claimed to be exempt from disclosure.


A. Summary Judgment Standard

The FAA seeks dismissal of this action on the ground that the court lacks subject matter jurisdiction because the FAA has not unlawfully withheld records. In the alternative, the FAA moves for summary judgment.

Ordinarily, a motion to dismiss for lack of subject matter jurisdiction is analyzed under Rule 12(b)(1). A court, however, must treat a motion challenging subject matter jurisdiction as a motion for summary judgment "where jurisdictional issues cannot be separated from the merits of the case." Gonzales v. United States, 284 F.3d 281, 287 (1st Cir. 2002); see Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 & n.3 (1st Cir. 2001). "A jurisdictional issue is intertwined with the merits where the court's subject matter jurisdiction depends upon the statute that governs the substantive claims in the case." Gonzales, 284 F.3d at 287.

To invoke subject matter jurisdiction under the FOIA, the plaintiff must allege that the agency "(1) 'improperly' (2) 'withheld' (3) 'agency records.'" Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980); see 5 U.S.C. § 552(a)(4)(B). If the elements of jurisdiction are properly alleged, the burden shifts to the agency to show that the records sought by the plaintiff are not agency records or were not improperly withheld. U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). "[B]ecause FOIA serves as the source of both this court's subject matter jurisdiction and the plaintiff['s] cause of action, the jurisdictional inquiry is intertwined with the merits of [its] claim." Wilkinson v. Chao, 292 F. Supp. 2d 288, 291 (D.N.H. 2003); see United States ex rel. Fine v. MK--Ferguson Co., 99 F.3d 1538, 1543 (10th Cir. 1996). Accordingly, I must analyze the FAA's motion under Rule 56.

Summary judgment is appropriate when the record reveals "no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The evidence submitted in support of the motion must be considered in the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor. See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to "produce evidence on which a reasonable finder of fact, under the appropriate proof burden, could base a verdict for it; if that party cannot produce such evidence, the motion must be granted." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.

B. The FOIA Standard

The FOIA requires government agencies to make their records available to the public upon request, unless at least one of several enumerated exemptions applies. 5 U.S.C. §§ 552(a)(3),(b). An agency seeking to withhold materials requested under the FOIA has the burden of proving that those materials are exempt from disclosure. Orion Research Inc. v. EPA, 615 F.2d 551, 553 (1st Cir. 1980) (citing 5 U.S.C. § 552(a)(4)(B)). The court conducts a de novo review as to the validity of the asserted exemptions. Church of Scientology Int'l v. U.S. Dep't of Justice, 30 F.3d 224, 228 (1st Cir. 1994). Although the FOIA authorizes courts to conduct in camera review of challenged documents, "[t]he legislative history indicates that, before in camera inspection is ordered, an agency should be given the opportunity to demonstrate by affidavit or testimony that the documents are clearly exempt from disclosure, and that the court is expected to accord 'substantial weight' to the agency's affidavit." Bell v. United States, 563 F.2d 484, 487 (1st Cir. 1977); see Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979) ("When the agency meets its burden by means of affidavits, [i]n camera review is neither necessary nor appropriate.").

To satisfy its burden under the FOIA without submitting undisclosed records for in camera inspection, "the agency must furnish a detailed description of the contents of the withheld material and of the reasons for nondisclosure, correlating specific FOIA exemptions with relevant portions of the withheld material." Orion Research, 615 F.2d at 553; see Church of Scientology, 30 F.3d at 231 ("[The agency] must supply a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." (internal quotation marks and emphasis omitted)). The agency's justification for the withholding must be sufficient to give "'the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding.'" Church of Scientology, 30 F.3d at 231 (quoting Wiener v. FBI, 943 F.2d 972, 977-78 (9th Cir. 1991)). If the agency's justification for the withholding is sufficient, the court "'need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith.'" Bell, 563 F.2d at 487 (quoting Weissman v. CIA, 565 F.2d 692, 697 (D.C. Cir. 1977)).


The FAA moves for summary judgment on the ground that the redacted parts of the requested documents are exempt from disclosure under the FOIA. It relies on an affidavit from Hawthorne and what is commonly referred to as a Vaughn index.*fn3

The index provides a brief description of each redacted document and identifies the exemptions claimed to justify nondisclosure. Sensor Systems objects to the FAA's motion, arguing that the FAA's affidavit and Vaughn index are too vague and conclusory to allow the court to meaningfully evaluate the claimed exemptions. Consequently, Sensor Systems contends, the court should order the agency to produce the records for in camera review.*fn4

The FAA defends its redactions by invoking three of the FOIA's enumerated exceptions. First, it relies on Exception 5 in claiming that certain redactions are authorized either because the redacted information is protected by the deliberative process privilege or the attorney-client privilege. Second, it argues that other redactions are authorized by Exception 6 because the redacted information qualifies as exempt personal information. Finally, it argues that its remaining redactions are authorized by Exemption 7(C) because the redacted information was compiled for law enforcement purposes and its disclosure would result in an unauthorized invasion of personal privacy. I consider each of the FAA's arguments in turn.

A. Exemption 5

The FOIA exempts from disclosure ...

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