Expedited Processing ACLU FOIA request following a DHS report titled "Report to the Public on Events Surrounding JetBlue Data Transfer"

February 23, 2004
Expedited Processing ACLU FOIA request following a DHS report titled "Report to the Public on Events Surrounding JetBlue Data Transfer"

Elizabeth Withnell 
Departmental Disclosure Officer
U.S. Department of Homeland Security
245 Murray Lane, SW
Building 410
Washington, DC 20528

Re: Expedited Processing Freedom of Information Act request

 

Attention:

This is a request pursuant to the Freedom of Information Act (5 U.S.C. § 552) for all agency records (including, but not limited to letters, correspondence, tape recordings, notes, data, memoranda, reports, email, computer source and object code, technical manuals, technical specifications, or any other materials) held by the Department of Homeland Security related to Chief Privacy Office Nuala O'Connor Kelly's Report to the Public on Events Surrounding JetBlue Data Transfer.

This requests includes but is not limited to all documents utilized in Ms. Kelly's report including:

[D]ocuments voluntarily provided by DHS employees and other Federal employees and civilians, documents requested from TSA by the DHS Privacy Office, documents provided by airline representatives and companies involved in these events, and public documents available on the Internet and elsewhere.  Department of Homeland Security, Privacy Office, Report to the Public on Events Surrounding JetBlue Data Transfer, February 20, 2004 at 3.

and

[I]nterviews with Department of Homeland Security employees, Department of Defense employees, Department of Defense contractors, JetBlue officials, other persons involved in these events, and citizens who claimed unique knowledge of the events. Id.

This request also includes all documents collected in compiling this report.

We request a fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) & (iii) because the subject matter of the requested records concerns the operations and activities of the Federal government, the disclosure is likely to contribute to an understanding of Federal government operations or activities, disclosure of the requested information is in the public interest, the contribution to public understanding of Federal government operations or activities will be significant, and, as a non-profit 501(c)(3) organization, we do not have a commercial interest that would be furthered by the disclosure of the requested information.    

We seek expedited review of this FOIA request pursuant to 5 U.S.C. § 552(a)(6)(E)(v)(II) because this information relates to impending policy decisions to which informed members of the public might contribute. Timely public access to these materials is necessary to fully inform the public about the issues surrounding airport security devices and related technological developments.   

Specifically, we request expedited access and which allows such processing when a requester ""primarily engaged in disseminating information"" shows an ""urgency to inform the public of an actual or alleged Federal government activity."" We further note that this ""exceptional need or urgency for the records"" is such that it ""beyond the public's right generally to know about government activity"" and ""warrants prioritization"" of this request ""over other requests that were made earlier.""  Ms. Kelly's report emphasizes the need for public release of these documents.  The use of individual passenger information is a matter of great current public interest.  It is the subject of Congressional investigation and has received extensive news coverage.  Larry Greenemeier, Senate Panel Probes TSA Role In Data-Mining Project, INFORMATION WEEK, Feb. 17, 2004 (Senate Government Affairs Committee requests all communications between TSA and DoD regarding the release of JetBlue passenger data); Matthew L. Wald, U.S. Calls Release of JetBlue Data Improper, NEW YORK TIMES, February 21, 2004;  Ryan Singel, JetBlue 'Fesses Up, QuietlyWIRED NEWS, Sept. 19, 2003.

Further, Ms. Kelly acknowledged that she had limited her investigation to her agency, leaving a host of unanswered questions about JetBlue's disclosures including the purpose of the disclosure and the use that agency officials and government contractors made of this information.  Ms. Kelly also admitted that TSA violated the spirit of the 1974 Privacy Act.  It is unclear if other agencies violated the provisions of the act.  Finally, TSA is currently working to complete an airline passenger screening system, CAPPS II, that would utilize similar passenger data on a far broader scope, to investigate every airline passenger.  (See GAO-04-385, AVIATION SECURITY Computer-Assisted Passenger Prescreening Faces Significant Implementation Challenges)

In sum, the release of the JetBlue data is a matter of great public and congressional inquiry, may implicate violations of federal law and effect the implementation of a massive new federal program.  It is clear that this is a matter of great public interest and deserves expedited processing.  If this request is not granted we will pursue our other options under the statute.

Moreover, the American Civil Liberties Union Foundation (ACLU Foundation) meets the criterion laid out in National Security Archive v. Department of Defense, where a representative of the news media is defined as an entity that "gathers information of potential interest to a segment of the public" and "uses its editorial skills to turn raw materials into a distinct work, and distributes that work to an audience." 880 F. 2d at 1387. The ACLU Foundation publishes newsletters, frequent press releases, news briefings, right to know handbooks, and other materials that are disseminated to the public. Its material is widely available to everyone including tax-exempt organizations, not-for-profit groups, law students and faculty, not to mention our 400,000 members. The ACLU Foundation disseminates information through publications available on-line at www.aclu.org as well. Thus the organization meets the pertinent regulatory requirements for expedited access as well as a fee waiver.  

We have enclosed certification (for the purposes of expedited access) with this letter. If our request is denied in whole or part, we ask that you justify all deletions by reference to specific exemptions of the act. We expect you to release all segregable portions of otherwise exempt material, and we wish to have copies made and furnished of all such material.

We certify that the information contained in this request is true and correct to the best of our knowledge and belief and look forward to your reply within ten calendar days, as required under 5 U.S.C. § 552(a)(6)(E)(ii)(I).

Sincerely

Christopher R. Calabrese
Counsel, Technology & Liberty Program
 

Barry Steinhardt
Director, Technology & Liberty Program

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Cc:  Nuala O'Connor Kelly, Chief Privacy Office



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