Will courts finally make the TSA comply with FOIA?
The tenor of questioning by the judge in a Federal court hearing last week raises hope that the Transportation Security Administration (TSA) might soon be ordered to correct some of its longest standing and most systemic violations of the Freedom Of Information Act (FOIA).
It’s no exaggeration to say that, from its creation in November 2001, the TSA has acted with complete contempt for the FOIA law and the requirements that law imposes on the TSA and all other Federal agencies. Time after time, TSA failure to comply with FOIA has delayed, complicated, or completely frustrated our research and reporting on TSA policies and procedures, and has deprived the public of the opportunity for informed scrutiny and comment on what the TSA is doing, why, and with what effects on our rights.
One chronic problem is the way the TSA responds to FOIA requests for digital records.
Provisions of the FOIA statute that went into effect as part of the Electronic FOIA Amendments Act of 1996 — years before the TSA came into existence — require that:
5 USC § 552(a)(3)(B) — In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section.
When it set up its FOIA office and procured software for responding to FOIA requests, the TSA completely ignored this provision of FOIA. In a display of either gross incompetence or gross bad faith, the TSA and its parent the Department of Homeland Security (DHS) appear to have entirely omitted this legal requirement for production of records in any form and format in which they are readily reproducible from their procurement specifications and criteria for evaluation of proposals. Instead, the DHS and TSA standardized on the use of cloud-based FOIAXpress software that is designed to munge all records by converting them to rasterized images embedded in PDF files, regardless of the original file format.
There’s lots of other software that was, and is, capable of redacting files in native formats. But it’s impossible for any Federal agency to fulfill its FOIA obligations with respect to the form and format of production of records by using FOIAXpress. FOIAXpress should have been summarily eliminated from consideration for any Federal agency contracts as not capable of satisfying the EFOIA requirements. No Federal agency should ever have used it.