The District Court for the Northern District of California Recognizes an Evidentiary Privilege and Supports the Airline and the Specialized Federal Agency’s Interpretation of Statutes, Which Permit Withholding of Sensitive Security Information in Discovery
In another recent order from the District Court for the Northern District of California, a plaintiff’s challenge of a commercial airline’s withholding discovery based on “sensitive security information” was rejected. The airline and the United States Transportation Security Administration’s (“TSA”) interpretation of the applicable statutes was upheld.
The plaintiff claims that in October 2001, one month after the 9/11 attacks on the United States, a commercial airline refused to permit him to board his flight allegedly because of his race and national origin. The plaintiff filed a lawsuit styled as Chowdhury v. Northwest Airlines, et al., No. C02-02665 CRB (N.D. Cal.). During the course of discovery, the plaintiff moved the district court for an “attorneys’ eyes only” protective order permitting the discovery of information the TSA had designated as “sensitive security information.”
The airline withheld certain documents from discovery on the ground that they contain “sensitive security information” that TSA regulations prohibit from disclosing. The airline also refused to answer certain interrogatories on the same ground. At the deposition of one of the airline’s employees, the airline refused to allow the employee to answer certain (apparently almost seventy) questions on the ground that the answers would contain sensitive security information that the airline is prohibited from disclosing.
The airline submitted the documents and responses to interrogatories allegedly containing “sensitive security information” to the TSA for review. The TSA reviewed the documents and interrogatory responses and redacted the information the TSA believed constitutes “sensitive security information.” On August 23, 2003, it issued a “final order” designating certain documents sought by the plaintiff as “sensitive security information” not subject to disclosure in the litigation. It then issued two more Final Orders withholding additional information. The TSA also provided unredacted copies of all of the withheld documents to the district court for in camera review.
The plaintiff moved for an “attorneys’ eyes only” protective order, arguing that the TSA regulations do not, as a matter of law, divest the district court of its traditional Federal Rules of Civil Procedure authority to oversee discovery and order the production of purported “sensitive security information” pursuant to an appropriate protective order.
The TSA regulations define “sensitive security information” as, among other things, “[a]ny approved, accepted, or standard security program...and any comments, instructions, or implementing guidance pertaining thereto,” as well as “[a]ny selection criteria used in any security screening process, including for persons, baggage, or cargo.” 49 C.F.R. section 1520.7(a) & (c).
The regulations further provide that air carriers, among others (including the airlines’ attorneys), “must restrict disclosure of access to sensitive security information... to persons with a need to know and must refer requests by other persons for such information to TSA or the applicable DOT administration.” 49 C.F.R. section 1520(a). As for who is a person with “a need to know,” the regulations provide that “[f]or some specific sensitive security information, the Administrator may make a finding that only specific persons or classes of persons have a need to know.” Otherwise, a person has a need to know sensitive security information in certain identified situations, including when the person needs the information to carry out security duties or be trained in such duties, or to supervise people carrying out such duties. 49 C.F.R. section 1520.5(b), section 1520.5(b)(1), (2), & (3). The regulations do not include a “civil litigant” or “his attorney” as a person with a “need to know.”
The plaintiff, in his motion for the “attorneys’ eyes only” protective order, argued that these regulations are silent as to discovery in civil litigation, and, in any event, the regulations do not and cannot trump the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 26, 34, & 37. The district court disagreed.
In a carefully reasoned order issued on April 2, 2004, the district court followed U.S. Supreme Court precedent, which holds that discovery, under certain circumstances, even if relevant, can be withheld. Baldridge v. Shapiro, 455 U.S. 345, 360 (1982) (“Federal Rule of Civil Procedure 26(b)(1) provides for access to all information ‘relevant to the subject matter involved in the pending action’ unless the information is privileged. If a privilege exists, information may be withheld, even if it is relevant to the lawsuit and essential to the establishment of plaintiff’s claim.”).
The question faced by the district court was whether the TSA regulations create a valid evidentiary privilege as to “sensitive security information.” The district court determined that the answer is yes.
In its analysis, the district court recognized that the TSA regulations are enabled by 49 U.S.C. section 114(s), a statute which commands the TSA to adopt regulations prohibiting disclosure of information that would be “detrimental to the security of transportation” if disclosed. The statute does not make an exception for civil litigation. Thus, on its face, the statute authorizes the TSA to prescribe regulations prohibiting disclosure in civil litigation when the TSA determines that disclosure would be detrimental to the security of transportation. See Xi v. United States I.N.S., 298 F.3d 832, 836 (9th Cir. 2002) (“It is a venerable principle of statutory interpretation ‘that where the Legislature makes a plain provision, without making any exception, the courts can make none.’”).
The district court recognized that the enabling statute does in fact make one exception: Congress provided that the statute does not authorize the TSA to withhold information from certain congressional committees. Since Congress explicitly provided an exception to the TSA’s authority with respect to Congress, the district court reasoned that this suggests that it gave the TSA the authority to withhold information from everyone else, including civil litigants and their attorneys. The district court made the observation that sensitive security information, by its very nature, cannot be precisely identified in advance – what is sensitive security information, that is, what information would be detrimental to air transportation if disclosed, changes with the circumstances. In rejecting the plaintiff’s argument that an “attorneys’ eyes only” protective order would suffice, the district court recognized that the TSA made the determination that disclosure of certain information, even subject to a protective order, would be detrimental. The TSA’s supporting declaration, with which the district court agreed, stated as follows:
[The TSA] explains that prior to September 11, 2001, the FAA’s Office of Civil Aviation Security at times disclosed sensitive security information in civil litigation subject to strict protective orders and courtroom seals. After September 11, however, the TSA determined that no disclosure is appropriate.... The TSA based its decision in part on intelligence reports that indicate that al Qaeada operatives have – through media sources and other publicly available research – obtained access to information concerning security vulnerabilities at American airports.
The district court recognized that times have changed. Citing the TSA’s supporting declaration, the district court stated “the fact that the Department of Transportation no longer believes that disclosing certain information subject to strict protective orders is appropriate is not surprising... [T]he TSA’s opinion as to what disclosure could be harmful to the safety of air transportation changed after September 11. In fact, since September 11, ‘no civil litigant who does not otherwise have an operational need to know SSI [“sensitive security information”] has been granted access’ to SSI.”
In ruling that the TSA and the airline properly withheld sensitive security information pursuant to the governing statutes, the district court addressed and resolved other issues presented by the plaintiff.
- If the plaintiff believes that the TSA’s final orders are improper, his only recourse is with the Court of Appeals. “Congress has expressly provided that an appeal from an order of the TSA pursuant to section 114(s) (nondisclosure of certain information) lies exclusively with the Court of Appeals. See 46 U.S.C. section 46110 (2004).”
- The plaintiff’s argument that finding an evidentiary privilege presents serious separation of powers issues was rejected by the district court for two reasons. First, the TSA claimed, and the district court agreed, that Congress specifically directed the TSA to withhold from disclosure all information which the TSA believes will be detrimental to the safety of air transportation if disclosed – and the plaintiff failed to demonstrate that such a delegation violates separation of powers principles. Second, the district court has no basis to proceed since it was not addressed by the parties whether the district court, as opposed to the Court of Appeals, even has jurisdiction.
- The plaintiff’s claims that his due process rights are violated when he is prohibited from discovering information that could help him prove his statutory claim was rejected based on Supreme Court precedent (“The Supreme Court stated in Baldridge, however, that a finding of privilege ‘shields the requested information from disclosure despite the need demonstrated by the litigant.’ 455 U.S. at 362 (emphasis added).”).
The California district court, when again faced with critical security issues, considered the rights of the civil litigant while it also considered the laws that have been created since the 9/11 tragedy to safeguard the public both on the ground and in the air. The district court determined that the law supports withholding “sensitive security information” from the plaintiff and his attorneys. Further, this decision from the district court highlights the requirement that all airlines and their attorneys, when presented with discovery requests, shall properly assert the evidentiary privilege of “sensitive security information” as appropriate and as required by law.
For more information on this issue or other Aviation matters, please contact:
- Brian C. Dalrymple at (415) 984-8275
- Stephen C. Johnson at (415) 984-8222
- Hugh R. Koss at (415) 984-8414
- Kyle Levine at (415) 984-8272
- Donald B. MacDougall at (516) 832-7611
- William L. Robinson at (949) 475-6911
- Eric Strain at (415) 984-8373
- Christopher D. Thomas (585) 263-1087
- Lori Winfree at (949) 475-6916