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The Transportation Security Administration must sift through a draft version of its privacy assessment report on its shelved system designed to pinpoint terrorists in airports and provide an analysis on which portions of the document are secret to a public-interest group, a judge ruled Monday.

The Electronic Privacy Information Center last October sued TSA to obtain quicker access to the privacy impact assessments related to the enhanced Computer-Assisted Passenger Prescreening System (CAPPS II). A 2002 e-government law requires TSA to publish the privacy document.

EPIC initially requested the document in August 2003 under a Freedom of Information Act (FOIA) request to TSA. But TSA officials said the privacy impact assessment was exempt from that kind of request because it was only a draft document still subject to policymaking decisions. FOIA exempts documents from disclosure if an agency is still deliberating on its policies.

EPIC argued that TSA must have arrived at some conclusion because the agency published a Privacy Act notice on CAPPS II in the Federal Register on Aug. 1, 2003. The agency characterized it as "an interim final" notice and called for related comments.

The notice described some basic parameters of the CAPPS II program, such as its purpose, how the system would be used, categories of records within the system, system safeguards, how the information would be retained and eliminated, and how individuals could access the information and correct mistakes in it.

For the most part, U.S. District Judge Colleen Kollar-Kotelly agreed with TSA that the information EPIC sought is exempt from FOIA because of ongoing decision-making about CAPPS II. But she said some information in the document, such as basic facts and items that already have been decided, is not exempt from disclosure.

TSA had argued that it is impossible to separate those items from the rest of the document. Kollar-Kotelly rejected that argument.

Instead, she said because the court was not checking up on TSA by examining the document itself, TSA must provide the court and EPIC with a detailed analysis of which portions it does not intend to make public.

EPIC general counsel David Sobel said the information that could be disclosed as a result of the process could be useful, despite a claim by Homeland Security Secretary Tom Ridge that the passenger-screening system is being scrapped.

Sobel noted that TSA is required by law to create some sort of updated passenger-profiling system and that any information produced now could help in assessing the privacy impact of future profiling projects.

COMMENTS

• Lawrence, I appreciate your concern, but look at every step of the way. One side or the other has been obstructionist to every attempt to make improvements - too soft, too harsh, doesn't look deeply enough into background to be effective, tramples on personal liberties, etc., etc., etc. It's a wonder that we ever get anything done in Washington! Robert McCauslin Posted August 6, 2004 11:43 AM
• Our nation still, after four years of trying to improve a system of safety for this nation, still have failed in its efforts. Presently, the tracking system does not work, there are thousands of people in this nation, who are not screened, nor do our INS group know of their whereabouts, the last report shows, the airwaves, still remain unsafe and many people are still able to bypass the screening system, they still have the same company employees that worked in airports on September 11, 2001, also, the ports and train systems still lag behind it's scheduled date for improvement, and the border system still remains unsecure, where thousands of people this nation daily. Does this sound like a nation that is trying to protect its citizens? Things are as they were four years ago, unsafe and unprotected, and yet, claims of success are announced, and yet, trust of our leaders to provide truthful information is very questionable. Lawrence D. Pierce Posted August 5, 2004 12:36 PM
• It appears that there is a great deal of confusion over this report. People, who are not part of the agency developing, drafting, and refining the information, don't seem to care if exempt information, that could potentially cause harm to the agency or the system, is made public. From reading the article, it appears that the bottom line is ego, i.e., Do what I say. And isn't that the way it is all too often? I am surprised that a judge does not exhibit more understanding of the potential harm of allowing exempt information into the wrong hands. The lawyer does not surprise me at all. Redacting information from a report might lead a reader to reach a false conclusion or incorrect interpretation of the drafters' intentions. GovExec.com reader Posted August 5, 2004 9:50 AM