Federal Agency Fails To Prove Adequacy Of FOIA Search

Following an altercation at a Philadelphia airport in 2006, Plaintiff filed a FOIA request with the U.S. Transportation Security Administration (TSA) seeking “copies of all records, reports, follow-up reports, and similar material from any TSA office containing her name initiated by any and all TSA officers, officials, investigators, and personnel.”  The TSA identified 375 responsive pages and released 285 pages.  Following various objections, the U.S. District Court for the Eastern District of Pennsylvania reviewed the withheld documents in camera and concluded that the TSA properly withheld them on claims of work product protection and attorney-client privilege.

The court explained, however, that the agency failed to meet its burden that it had performed an adequate search in response to the FOIA request and the court left that question open.  The court, citing Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999), explained that there was no specific procedure for a FOIA search to be “adequate” but that “the search must be adequate enough to reasonably assure that all files likely to contain the requested information have been searched.”  In this case, the TSA failed to provide sufficient information on its affidavit to demonstrate an adequate search:  “Beyond stating that the TSA outsourced the records search to these offices, the affidavit contains no actual information on how these searches were conducted.  There is no information about what the tasking forms said, what records were searched, what search terms were used, or what procedures were followed.  Additionally, there is no averment from the affiant that ‘all files likely to contain responsive material were searched.'”  The court ordered the TSA to provide a more detailed affidavit and will give Plaintiff an opportunity to respond.