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.