Judge challenges secrecy surrounding "no fly" list

A federal judge criticized the government for making "frivolous claims of exemption" to the Freedom of Information Act in withholding records about its "no fly"list which bans people on it from boarding commercial airplanes.
June 22, 2004 -- A federal judge in San Francisco scolded the U.S. government last week for making "frivolous claims of exemption" in withholding information about a "no fly" list that bars certain people from boarding commercial airplanes.

The lawsuit was brought under the federal Freedom of Information Act by the ACLU on behalf of Rebecca Gordon and Janet Adams, who write for a national newsletter critical of President Bush. The two women were briefly detained at San Francisco International Airport in August 2002 because their names appeared on an FBI "no fly" list. They were ultimately allowed to board the plane, but were subjected to additional searches of their bags, Gordon said.

The two women are seeking all records associated with the "no fly" list, designed to keep "dangerous persons" from boarding a flight, they said in a public statement. The FBI, the Transportation Security Administration and the Justice Department are all named in the FOI Act suit.

However, the Transportation Security Administration will not disclose the number of people on the list, how names get on the list, or procedures for removal. The agency shares two lists with airlines for security measures: a "no fly" list of people who are not allowed to board aircraft, and a "selectee" list of travelers whose belongings are to be subjected to additional searches.

War Times , for which Gordon and Adams write, began publishing in February 2002 to "broaden and deepen the fight against" President Bush's "permanent war on terrorism at home and abroad." Gordan said they filed the FOI Act request to find out why they were on the "no fly" list.

"We don't know whether it's a mistake or not," she said. "We have no way of knowing."

On June 15, Judge Charles R. Breyer of U.S. District Court in San Francisco wrote that the government "has not come close" to meeting its burden of proving many documents are exempt from the FOI Act. "Instead, the government has applied the exemptions broadly and without providing a detailed explanation of why the withheld material is exempt."

Government lawyers argued that the materials the agencies withheld involved "non-disclosable sensitive security information" or other documents exempt from public disclosure under at least three FOI Act exemptions. They argued that: the matter was specifically exempted from disclosure by statutes that permit the Transportation Security Administration to develop regulations "prohibiting the disclosure of information obtained or developed in carrying out security of transportation;"and that the materials could be withheld under the privacy exemption and the privacy aim of the law enforcement exemption.

Breyer said that the agencies failed to prove that the material fell into the exemptions.

Thomas Burke, a San Francisco attorney representing the women on behalf of the ACLU, said most of the material sought is procedural or statistical information that does not jeopardize security measures.

"We were not seeking the lists themselves," Burke said.

The Transportation Security Administration said it would not comment on pending litigation.

Breyer ordered the agencies to again review all of the withheld material to determine whether they "believe in good faith that the material is in fact exempt,"and to provide a detailed sworn statement explaining why any withheld document is exempt.

The ACLU, a co-plaintiff in the suit, had previously filed a FOI Act request with the San Francisco International Airport and obtained records indicating that at least 500 people have been told at the airport that their names may appear on the "no fly" or other similar lists, Burke said.

The Transportation Security Administration reviewed the records before they were released to the ACLU and redacted names on the list and other information for "security purposes." After the lawsuit, the agency ordered all U.S. airports to direct future FOI Act requests to it, Burke said.

(Gordon v. FBI; Counsel: Thomas R. Burke, Davis Wright Tremaine LLP, San Francisco) -- AV

Related stories:

Airline did not violate passenger privacy by turning over data (6/15/2004)


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