A part of my lawsuit from when the TSA detained me in FLL airport in 2011 relates to a Freedom of Information Act request I submitted after the incident, which asks for all documents relating to their illegal detention: incident reports, video, e-mails, etc. After the airport initially lied to me (because they were worried about giving away the “secret” fact that they videotape TSA checkpoints), the airport and TSA have given me most of the documents — with the exception that they took out all the names of all the TSA employees who wrote the documents, and blurred the video so that you can’t see the faces of the screeners. That’s right — the TSA has the right to digitally strip search you, but a video of their faces might violate their privacy.
My brief explains why this is legally wrong, but also why it’s not in the public interest:
The public has an undeniable right to review the actions of its government, and this concept is the very reason for the existence of public records laws like FOIA. As any citizen who has contested a traffic violation has found out, in the context of where a member of the public offers a version of the facts that contradicts a version offered by an employee of the government, all other things equal, courts uniformly adopt the version proffered by the government employee, even in situations where the burden of proof is high. Often times, video evidence is the only means a criminal defendant has in order to dislodge an accusation by a police officer.
But, the public interest of the release of videos of government interaction goes far beyond that of the individual whose liberty or property is on the line. Release of video provides accountability of government officials to the public. When an official knows that his or her actions are being recorded and may be published on the evening news, it is axiomatic that he or she will be more likely to act lawfully and in the public interest.
If there were ever a government agency that could benefit from increased accountability to the public, the Transportation Security Administration is it. In 2012, the TSA has admitted that hundreds of its employees have been caught stealing from members of the public. It admitted to strip-searching grandmothers without lawful authority. It admitted that it hires former clergy accused of sex offenses against children to search children. And, regardless of whether or not such actions are technically legal, it is accused on a daily basis of bullying everyone from grown men to women and children. The TSA is more disdained by Americans than the Internal Revenue Service, a distinction which they have well earned.
Accountability is achieved not by releasing redacted video with blurred faces, but rather by the knowledge that the public – your friends, family, neighbors, letter carrier, Starbucks barista, and anyone else – will judge you if you make a 3-year-old on her way to Disney World cry because you were a power-hungry, arrogant, insensitive, and pathetic individual in the course of your service of the American people. When both the courts and Congress refuse to – or work at a snail’s pace to – leash an out-of-control agency such as the TSA, this is all that we, the people, have left. On the flip side, with the release of video, members of the public who make accusations of mistreatment when they were in fact to blame for an incident will lose their power to malign the agency and its employees.
Defendant TSA is absolutely correct that when the Court releases the full video to Plaintiff, he will publish this video for the world to see. However, if TSA and its employees have done nothing wrong, they should be proud to have that video published, demonstrating their faithful service and that Plaintiff is simply a “troublemaker.” The truth of the matter is that the TSA does not want disclosure of the videos in this case and many others because it knows that while it can argue the legality of its actions in court, it cannot justify its actions to the citizens.
The most awesome part of writing this brief was that the Department of Justice actually did all the research for me. As I was researching case law, I came across the Department of Justice Guide to the Freedom of Information Act, which was written (surprisingly) from an entirely neutral perspective and thoroughly analyzes, with case citations, privacy exemptions to the Freedom of Information Act. Lo and behold, the DoJ opines that “civilian federal employees who are not involved in law enforcement generally have no expectation of privacy regarding their names, titles, grades, salaries, and duty stations as employees…” I couldn’t have said it better myself!
If you want to see what the paperwork looks like when you say “no” to the TSA, check the end of the TSA’s motion (below).
Corbett v. TSA – Motion for Summary Judgment (Broward) (.pdf)
Corbett v. TSA – Motion for Summary Judgment (TSA) (.pdf) (3 MB)
Corbett v. TSA – Motion for Summary Judgment (Corbett) + Opposition to Defendants’ Motions (.pdf)