Q: I’ve got something that just smells really fishy and I’m thinking there’s something more to it. My company forecasts when places are busy, then shares the results with the public. One vertical where we’ve had good adoption has been in airports, where we forecast TSA wait times at the top 100 US airports. In fact, the results have been good enough to be adopted by airlines, search engines and others as the industry standard.
To do this we worked with many stakeholders, TSA being one of them. TSA provided us public, non-security sensitive information with which to build our original algorithms. To keep our models up to date, we requested updated data… TSA said no. We filed a FOIA. Denied. We requested meetings with TSA senior officials. Rejected like my high school social life.
There’s something very, very odd about this. We provide this work to the public for free. The data is public. I don’t charge TSA. Many stakeholders have written TSA letters of support to keep supplying data, all of which fall on deaf ears.
If you look at what the TSA spends money on, some of the items are things we already do for free. Why would an agency, whose publicly-stated goal is to improve the passenger experience, not let private industry run with an existing solution, adopted as industry standard, that gives passengers the information? On pure statute federal agencies are required to release public data, especially when it’s been previously released.
A: The Freedom of Information Act requires that a government agency produce existing records that are not otherwise exempt. 5 U.S.C. § 552(a)(2). The FOIA applies to existing documents, but nothing in the act requires that an agency produce or compile new records for the benefit of the requesting party. If an agency denies an individual’s FOIA request, the agency must state the reason for the denial and give the individual and opportunity to appeal the decision. 5. U.S.C. 552(a)(6). A decision must be made on the appeal in 20 days (which is only slightly faster than getting through a TSA screening at SFO). Before appealing, the requesting individual may request a Vaughn Index which requires the agency to provide a list of the documents it is withholding. Vaughn v. Rosen (II), 523 F.2d 1136 (D.C. Cir. 1975). An individual may sue under the FOIA only after being denied their request on appeal. Aftergood v. Cent. Intelligence Agency, 225 F. Supp. 2d 27, 29 (D.D.C. 2002).
While it is possible to sue under the FOIA once you have appealed a denial, it seems that perhaps you may want to request a Vaughn Index. This way you could determine whether the agency in fact has the records you want and whether they are withholding them from you. If the agency previously compiled and provided you with data, they are not necessarily required to continue to do so unless they are already compiling that data as part of the agency’s business. A Vaughn Index would help you ascertain whether they still produce the kind of data you want and in the format you need.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.