MTPD Bag Search records

Mo Co Civil Rights filed this request with the Washington Metropolitan Area Transit Authority of Washington, DC.

It is a clone of this request.

Tracking # 16-9007
Status
Rejected

Communications

From: Mo Co Civil Rights

To Whom It May Concern:

Pursuant to the District of Columbia Freedom of Information Act of 1974, D.C. Code Ann. § 2-531 et seq. ("D.C. Act"), and the WMATA Public Access to Records Policy ("PARP") (http://www.wmata.com/about_metro/docs/pi_9_3_1.pdf, 10/1/2005), I hereby request the following records:

WMATA and MTPD documents necessary and sufficient to determine or provide...

(1) the locations, dates, and times of bag search unit deployments from December 16, 2010 (the date of a first news release about the bag search program) to December 31, 2015, and, for the same time period,
(2) internal quality assurance protocols and records that bag search deployments are in fact carried out at random locations and times, and that persons requested to submit to bag searches there are in fact selected on an "every Xth person" or some similar random basis,
(3) annual numbers of false positives encountered (i.e., bags deemed to contain explosives by testing equipment that in fact did not),
(4) annual numbers of bag search refusals encountered and what actions were then taken towards these persons, and
(5) annual numbers of persons reported to federal, state, local, or joint law enforcement agencies on the basis of
(a) bag searches and, separately,
(b) bag search refusals.
(6) annual costs of the bag search program, and annual grants or other outside funding sources defraying all or part of those costs.
(7) any cost-benefit analyses or program evaluations of the bag search program performed by or made available to WMATA and/or the MTPD.

I request that all fees be waived for this request because I am a journalist/blogger for the Montgomery County Civil Rights Coalition and intend to use the requested information to educate the public. Since the requested documents will be made available to the general public free of charge as part of the public information services MuckRock.com and mococivilrights.wordpress.com, and are not being obtained for commercial usage, Section 8.4 of the PARP regulations would seem to apply: the disclosed information "will contribute significantly to public understanding of WMATA and is not primarily in the commercial interest of the Requester."

In the event that fees are not waived and their total exceeds $50, I would be grateful if you would inform me of the total unwaived charges in advance of fulfilling my request, and itemize them by the above request numbers. I would prefer the request be filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as Section 7.10.1 of WMATA's PARP policy requires.

Sincerely,

Thomas Nephew for
Montgomery County Civil Rights Coalition

From: Thom, Keysia A.

Dear Mr. Nephew,

I am no longer the Public Access to Records Policy (PARP) Administrator. Please address all future PARP inquiries to Sonia A. Bacchus, Chief Counsel, Customer Service and Regulatory Affairs or Benjamin Rashbaum, Assistant General Counsel and send them to the following email address: Parpprivreq@wmata.com<mailto:Parpprivreq@wmata.com>.
Best Regards,

Keysia A. Thom
Office of Procurement and Materials
Washington Metropolitan Area Transit Authority (WMATA)
600 5th St., NW
Washington, DC 20001

From: Mo Co Civil Rights

I will update our records and work with "muckrock.com" to do so as well.

Meanwhile, you are obviously still employed by WMATA. I submitted the PARP request as of 1/5/2015 "to whom it may concern" to someone who had handled such requests in the past. Am I correct to assume you have forwarded that request to Parpprivreq@wmata.com?

From: MuckRock

To Whom It May Concern:

Pursuant to the District of Columbia Freedom of Information Act of 1974, D.C. Code Ann. § 2-531 et seq. ("D.C. Act"), and the WMATA Public Access to Records Policy ("PARP") (http://www.wmata.com/about_metro/docs/pi_9_3_1.pdf, 10/1/2005), I hereby request the following records:

WMATA and MTPD documents necessary and sufficient to determine or provide...

(1) the locations, dates, and times of bag search unit deployments from December 16, 2010 (the date of a first news release about the bag search program) to December 31, 2015, and, for the same time period,
(2) internal quality assurance protocols and records that bag search deployments are in fact carried out at random locations and times, and that persons requested to submit to bag searches there are in fact selected on an "every Xth person" or some similar random basis,
(3) annual numbers of false positives encountered (i.e., bags deemed to contain explosives by testing equipment that in fact did not),
(4) annual numbers of bag search refusals encountered and what actions were then taken towards these persons, and
(5) annual numbers of persons reported to federal, state, local, or joint law enforcement agencies on the basis of
(a) bag searches and, separately,
(b) bag search refusals.
(6) annual costs of the bag search program, and annual grants or other outside funding sources defraying all or part of those costs.
(7) any cost-benefit analyses or program evaluations of the bag search program performed by or made available to WMATA and/or the MTPD.

I request that all fees be waived for this request because I am a journalist/blogger for the Montgomery County Civil Rights Coalition and intend to use the requested information to educate the public. Since the requested documents will be made available to the general public free of charge as part of the public information services MuckRock.com and mococivilrights.wordpress.com, and are not being obtained for commercial usage, Section 8.4 of the PARP regulations would seem to apply: the disclosed information "will contribute significantly to public understanding of WMATA and is not primarily in the commercial interest of the Requester."

In the event that fees are not waived and their total exceeds $50, I would be grateful if you would inform me of the total unwaived charges in advance of fulfilling my request, and itemize them by the above request numbers. I would prefer the request be filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as Section 7.10.1 of WMATA's PARP policy requires.

Sincerely,

Thomas Nephew for
Montgomery County Civil Rights Coalition

From: Thom, Keysia A.

Yes, you are correct. I copied the PARP team in my response to you.
Best,
Keysia

From: Mo Co Civil Rights

Thank you very much.
--Thomas

From: Deutsch, Emily K.

Dear Mr. Nephew:

Greetings and Happy New Year. On behalf of the Washington Metropolitan Area Transit Authority (WMATA), Office of General Counsel, I am writing in connection with your request for the following records:

(1) the locations, dates, and times of bag search unit deployments from December 16, 2010 (the date of a first news release about the bag search program) to December 31, 2015, and, for the same time period,

(2) internal quality assurance protocols and records that bag search deployments are in fact carried out at random locations and times, and that persons requested to submit to bag searches there are in fact selected on an "every Xth person" or some similar random basis,

(3) annual numbers of false positives encountered (i.e., bags deemed to contain explosives by testing equipment that in fact did not),

(4) annual numbers of bag search refusals encountered and what actions were then taken towards these persons, and

(5) annual numbers of persons reported to federal, state, local, or joint law enforcement agencies on the basis of

(a) bag searches and, separately,

(b) bag search refusals.

(6) annual costs of the bag search program, and annual grants or other outside funding sources defraying all or part of those costs.

(7) any cost-benefit analyses or program evaluations of the bag search program performed by or made available to WMATA and/or the MTPD.

Your request is being processed pursuant to WMATA’s Public Access to Records Policy, or PARP, a copy of which is available online at http://www.wmata.com/about_metro/public_rr.cfm under the section marked, “Legal Affairs.”

The purpose of this correspondence is two-fold: First, our office wishes to advise you of the legal authority underlying the PARP and then explain why your particular records request does not comport with that policy; we also will use this opportunity to provide suggestions, which we hope you will find helpful, for modifying your request to ensure expeditious and economical processing. Second, assuming that you do elect to appropriately amend your records request, we wish to apprise you of the requirements for obtaining a fee waiver as a recognized member of the news media.

I. The PARP: Its Legal Basis & Scope

While procedurally distinct from the Freedom of Information Act (FOIA), the PARP is substantively predicated on that federal statute. See D.C. Code Ann § 9-1107.01(12) (2001). It follows that, just as the FOIA exempts the disclosure of intra-agency or interagency evaluations, determinations, or recommendations that predate a final governmental action, the PARP similarly safeguards internal correspondence, evaluative memoranda, and related materials that WMATA would not release in the context of civil discovery. See 5 U.S.C. § 552(b)(5); see also PARP §6.1.5.

Moreover, under the FOIA – and, by extension, the PARP – the duty to release responsive records is limited to documents that currently exist and are reasonably attainable. See e.g., United States Department of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989); DiBacco v. U.S. Army, 795 F.3d 178, 191 (D.C. Cir. 2015). Put simply, this duty does not extend to every relevant document that was extant in the past, or that may exist in the future. See SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (holding that “[w]hen a plaintiff questions the adequacy of the search an agency made in order to satisfy its FOIA request, the factual question it raises is whether the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant”); see also PARP § 7.5 (directing a “[r]requester [to] describe the [r]records that are being requested in sufficient detail to enable WMATA to locate them with a reasonable amount of effort”).

Furthermore, neither the FOIA nor the PARP provides for unlimited expenditures of agency resources in response to requests for information – even those submitted by media requesters – which are overly burdensome. See U.S.C. § 552; 28 C.F.R. § 16.3(b). Perez-Rodriguez v. U.S. Dept. of Justice, 888 F. Supp. 2d 175 (D.D.C. 2012); see also Nation Magazine v. United States Customs Serv., 71 F.3d 885, 891-92 (D.C. Cir. 1995); American Federation of Government Employees, Local 2782 v. U.S. Dep’t of Commerce, 907 F.2d 203, 208-09 (D.C. Cir. 1990) (holding that an agency need not honor a request that is unreasonably burdensome). In such instances, it is incumbent upon individual requesters to narrow the scope of their requests so that the responding agency is not deterred from its overarching mission. See Brophy v. United States Department of DOD, 2006 U.S. Dist. LEXIS 11620 (D.D.C. Mar. 8, 2006), citing Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 27 (D.D.C. 2000) (quotations and citations omitted). Notably, the refusal to provide such clarification connotes a failure to exhaust administrative remedies, which, in turn, constitutes a sufficient basis for dismissing the request. See 5 U.S.C. § 552. DeBrew v. Atwood, 847 F. Supp. 2d 95 (D.D.C. 2012) (holding that a requester's failure to clarify his information request constituted a failure to exhaust administrative remedies, thus requiring dismissal of his claim under the FOIA).

Having thus set forth the legal grounds and the scope of the PARP, we ask that you please consider how your own request contravenes that policy. First and foremost, by focusing “internal quality assurance protocols” for carrying out “bag search deployments at random locations and times,” your request contemplates information that, if released, could compromise the security of the entire Metrorail system. Such information also is intrinsically related to WMATA’s internal personnel rules and practices. As such, it is protected from disclosure. See PARP §§ 6.1.1, 6.1.2.

In addition, your request fails to comport with the PARP’s parameters regarding a reasonable search. See PARP § 7.5. Indeed, the sheer breadth of your request, encompassing all “bag search unit deployments from December 16, 2010,” poses a significant and undue strain on WMATA’s finite resources. To illustrate, we have estimated that it would require in excess of 200 staff hours to retrieve, copy, and review records responsive your request at a projected cost of more than $4,000.00. We hope that you can appreciate how the projected time and cost associated with your request demonstrates its overall burdensomeness, even assuming that you do, in fact, qualify for a fee waiver by meeting the criteria set forth below.

II. Fees from Media Requesters

When requests are received from a member of the news media, the PARP limits the assessment of fees to copying costs only. We charge 15 cents per page for every page in excess of the first 100 pages. Advance payment is required where the fees are likely to exceed $250. Generally, a request is considered an agreement to pay all applicable fees.

While cognizant of your affiliation with MuckRock News, we require the following information before we may classify you as a member of the news media for fee categorization purposes:

1) A written explanation of the purpose of your request for the records and your intended use of them;

2) A written explanation of how disclosure of those records will significantly further the public’s interest in the operations or activities of WMATA;

3) A written explanation of how the information/records you request is related to a current news event or is of current interest to the public;

4) A written affirmation that you will use your editorial skills to generate a news article, or other media content, based on the records you request; and

5) A written affirmation that you intend to publish a news article, or other form of media, related to the records you request.

For the foregoing reasons, we ask that you please modify your records request so that it does not require information – specifically, internal quality assurance protocols for conducting bag searches – which is categorically exempt from disclosure. We further ask that you please narrow the scope of your request to comport with the legal standard of reasonableness. For example, you may wish to the limit the date range of requested records from five years to six months, as this would likely enable our staff to process your request within a reasonable period of time. Please submit a modified request no later than 10 business days from the date of this correspondence – i.e., by Wednesday, January 27, 2016. If we do not hear from you by that date, your request will be closed.

In addition, if you wish to petition for a fee waiver, we ask that you please submit statement addressing why you meet the above criteria for consideration as a media requester. Please submit this statement no later than Wednesday, January 27, 2016; otherwise, we will have no discretion but to categorize you as a commercial requester.

In closing, please feel free to contact me at EKDeutsch@wmata.com<mailto:EKDeutsch@wmata.com>, or (202) 962-2058, if you have any additional questions regarding your request. Please also feel free to contact Adam T. Fields at AFields@wmata.com, or (202) 962-1693, with respect to any administrative matters.

Yours very respectfully,
Emily Woodward Deutsch
Assistant General Counsel
Office of General Counsel
Washington Metropolitan Area Transit Authority
600 Fifth Street NW, #2F-06
Washington, DC 20001
(202) 962-2058
ekdeutsch@wmata.com

THIS E-MAIL MESSAGE IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE RECIPIENT NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE NAMED RECIPIENT, OR THE AGENT RESPONSIBLE TO DELIVER IT TO THE NAMED RECIPIENT, YOU ARE NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, COPYING OR OTHER USE OF THIS INFORMATION/COMMUNICATION IS STRICTLY PROHIBITED AND NO PRIVILEGE IS WAIVED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE ABOVE-NAMED INDIVIDUAL IMMEDIATELY.

,.

From: Mo Co Civil Rights

Dear Ms. Deutsch,

Thank you for your detailed, informative January 12 response to our PARP request. In this email, I will address part II of your response (“Fees from Media Requesters”), in which you require 5 answers from us in order to classify us as a member of the news media for fee categorization purposes. This seems a separable issue from whether you will provide any or all of the information in our original or modified request. I'll take up your responses and suggestions about that in a second email.

(1) Purpose of your request for the records and your intended use of them

In general, we have followed the bag search issue closely since the program was first introduced in late 2010, and have informed our supporters -- many of whom signed a petition protesting the program -- at our Montgomery County Civil Rights Coalition blog and web site (http://mococivilrights.wordpress.com). We actually broke one story about the searches, the admission by then-Chief Taborn that bag search refusers were subjected to additional surveillance for exercising their Fourth Amendment rights, (http://wp.me/p1eZD4-5B). See our list of news media reactions to this story at http://wp.me/p1eZD4-6q.

In this case, I’ve outlined the purpose of our PARP request in a blog post at our web site titled “MCCRC issues FOIA request about MTPD bag searches.” (http://wp.me/p1eZD4-1Fg). Our specific concerns are to gain assurances that MTPD is not engaging in racial or other profiling (or learn that such assurance cannot be provided), to learn the accuracy, extent, costs (financial and to civil liberties), and purported benefits of the program.

Our use of the information would be to publish it, without charge, to the public.

(2) How disclosure of those records will significantly further the public’s interest in the operations or activities of WMATA.

We believe that on its face, the bag search program is effectively – for commuters dependent on Metro -- an infringement of the Fourth Amendment right not to be subjected to warrantless searches and seizures. Given that colorable infringements on rights guaranteed under the Constitution are involved, the public deserves to know whether WMATA and MTPD are engaging in (1) a well conceived, effective security plan or (2) “security theater”, in which ill-conceived, ineffective programs infringing on civil liberties and civil rights are adopted merely or in large part to give the sense of security without actually improving it.

The public also deserves to know whether assurances that MTPD is not engaged in racial or other profiling – whether individually or in the aggregate(via choices of timing and location) -- can be substantiated in any way.

(3) How the information/records you request is related to a current news event or is of current interest to the public.

The event that prompted our renewed concern about this program was Chief Ron Pavlik’s November 16 announcement that the bag search program had resumed (http://www.thesentinel.com/mont/newsx/local/item/2801-metro-boosts-security-after-paris-attacks).

(4) A written affirmation that you will use your editorial skills to generate a news article, or other media content, based on the records you request.

I hereby affirm that I will do so. For examples of our prior writing about the bag search issue, see https://mococivilrights.wordpress.com/tag/bag-search/.

(5) A written affirmation that you intend to publish a news article, or other form of media, related to the records you request.

I hereby affirm our intent to publish one or more additional blog posts about this PARP inquiry and its results. I refer you again to our long-time interest in this story, as evidenced by examples of prior writing about this issue at https://mococivilrights.wordpress.com/tag/bag-search/.

From: Mo Co Civil Rights

Dear Ms. Deutsch,

Thank you again for your detailed, informative January 12 response to our PARP request; thank you also for your phone conversation with me on January 20th.

As we discussed on the phone (and as outlined in a separate email about our media status), one of our goals is simply to ascertain whether and what kinds of conscious attempts are made to *ensure* that racial or other profiling of WMATA customers were not taking place.

That is, we do *not* seek to
(1) be able to predict (whether in the future or retroactively) where bag searches will take place, or
(2) to gain access to “internal” “work product” before it is summarized,
(3) identify individual officers or WMATA clients, or
(4) place undue burdens on WMATA/MTPD staff.

Accordingly, based on your written response and comments on the phone, we are willing to modify parts (1) and (2) of our original request as follows, for records to WMATA and MTPD documents necessary and sufficient to determine or provide:

(1) the locations, dates, and times of bag search unit deployments **for the 6 month period from July 1, 2015 to December 31, 2015,** and, for the same time period,

(2) the most recent applicable training documents and/or handbooks (rather than “internal quality assurance protocols and records”)
(a) substantiating that bag search deployments are in fact *intended* to be carried out at random locations and times, and that persons requested to submit to bag searches there are in fact selected on an "every Xth person" or some similar random basis, and
(b) providing a description of quality assurance processes used to satisfy program managers that this is *in fact taking place* (rather than the raw reports involved in such a process).

Our reading of your January 12 response suggests that these were the only 2 issues you had with our PARP request.

We therefore leave the remaining requests unmodified other than time period. I.e. for each of our requests (3) to (6) -- as specified above, the numbers of false positives, bag search refusals, disposition of both with other law enforcement, costs, and grants -- we seek 2015 (or most recent available) annual figures. We assume that annual or periodic reports of some kind would supply this information to WMATA and MTPD management as concerned as we are with the civil rights, civil liberties, and cost issues raised by the program.

Similarly, request (7) -- cost-benefit analyses of the bag search program -- did not meet with objection so we leave it unmodified as well, other than to simply request the most recent available such analysis.

Thank you again for your time, attention, and best efforts in this matter.

Sincerely,

Thomas Nephew for
Montgomery County Civil Rights Coalition

From: Deutsch, Emily K.

Dear Mr. Nephews:

I apologize for my delayed response to your follow-up message, below. My supervisor has been out of the office, and I need to get her approval before I can classify you as a media requester for fee categorization purposes. At this point, I do not foresee that being a problem, but I shall let you know when my supervisor returns to the office next week if she has any concerns.

In the meantime, please know that we are working with other offices here at the Authority to retrieve the records you requested. We appreciate you taking the time to narrow your request so that it is not unduly burdensome for our staff.

I’ll be back in touch early next week. In the meantime, please just let me know if you have any additional questions or concerns.

Thanks very much,

Emily Woodward Deutsch
Assistant General Counsel, Office of General Counsel
Washington Metropolitan Area Transit Authority
ph: (202) 962-2058 fax: (202) 962-2550 ekdeutsch@wmata.com<mailto:ekdeutsch@wmata.com>
https://www.linkedin.com/in/emily-woodward-deutsch-54216551

THIS E-MAIL MESSAGE IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE RECIPIENT NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE NAMED RECIPIENT, OR THE AGENT RESPONSIBLE TO DELIVER IT TO THE NAMED RECIPIENT, YOU ARE NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, COPYING OR OTHER USE OF THIS INFORMATION/COMMUNICATION IS STRICTLY PROHIBITED AND NO PRIVILEGE IS WAIVED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE ABOVE-NAMED INDIVIDUAL IMMEDIATELY.

From: Mo Co Civil Rights

Thank you very much for last Friday's update. I'm writing because the MuckRock system seemed to be notifying me of some update on February 9, but I'm not seeing it. Maybe I've misunderstood the MuckRock system, but in case I've missed some communication from WMATA -- particularly anything with a reply date deadline -- could you please re-send/re-post it? Thank you!

Thomas Nephew for
Montgomery County Civil Rights Coalition

From: Deutsch, Emily K.

Dear Mr. Nephew:
On behalf of the Washington Metropolitan Area Transit Authority (WMATA), Office of General Counsel, I am writing in response to your modified request for records concerning the Metro Transit Police Department (MTPD)’s random explosive screening program, to specifically include:

1) documents showing the locations, dates, and times of bag search unit deployments from July 1, 2015, to December 31, 2015;

2) the most recent training documents and/or handbooks pertaining to MTPD bag search deployments substantiating that such deployments are in fact intended to be carried out at random locations and times, and that persons requested to submit to bag searches there are in fact selected on an “every Xth person” or some similar random basis, and are intended to provide a description of quality assurance processes used to satisfy program managers that this is in fact taking place (rather than the raw reports involved in such a process);

3) documents showing the numbers of false positives encountered (i.e., bags deemed to contain explosives by testing equipment that in fact did not) from July 1, 2015, to December 31, 2015;

4) documents showing the numbers of bag search refusals encountered and what actions were then taken from July 1, 2015, to December 31, 2015;

5) documents showing the costs of the bag search program, and annual grants or other outside funding sources defraying all or part of those costs from July 1, 2015, to December 31, 2015;

6) any cost-benefit analyses or program evaluations of the bag search program performed by or made available to WMATA and/or the MTPD from July 1, 2015, to December 31, 2015; and

7) documents showing the numbers of persons reported to federal, state, local, or joint law enforcement agencies on the basis of (a) bag searches and, separately, (b) bag search refusals from July 1, 2015, to December 31, 2015.
Your request has been processed pursuant to WMATA’s Public Access to Records Policy (PARP). A close analog of the Freedom of Information Act (FOIA), the PARP is available online at http://www.wmata.com/about_metro/public_rr.cfm under the section marked, “Legal Affairs.”
Although, as discussed in further detail below, our office has denied your request, we would like to inform you of the following documents, which are available on WMATA’s web site regarding the random explosive screening program:

§ MTPD to step up system security:
http://www.wmata.com/about_metro/news/PressReleaseDetail.cfm?ReleaseID=4776

§ MTPD increases patrols, inspections system-wide:
http://www.wmata.com/about_metro/news/PressReleaseDetail.cfm?ReleaseID=5997

§ MTPD anti-terror initiatives fact sheet:
https://www.wmata.com/about_metro/transit_police/security.cfm

§ MTPD random explosive screening program information brochure (PDF):
http://www.wmata.com/about_metro/news/pressroom/attachments/bag_search_takeone.pdf
In addition, we would like to inform you that the random explosive screening program is based on initiatives that have been undertaken by other law enforcement agencies to prevent and deter terror attacks and to enhance the security of public transit systems. Such efforts include the random, suspicionless container searches implemented on the New York City subway system, which have been consistently upheld under the Fourth Amendment of the United States Constitution. See MacWade v. Kelly, 2005 WL 3338573 (S.D.N.Y. Dec. 7, 2005) aff’d by MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006). Notably, legal scholars have observed that, compared to its New York counterpart, the MTPD program employs less-invasive technology, and is thus more likely to withstand judicial scrutiny. See American Bar Association, Law Practice Division, Metro Bag Searches: Inconvenient or Unconstitutional? (April 2011) available at <http://www.americanbar.org/publications/law_practice_today_home/law_practice_today_archive/april11/metro_bag_searches.html>.
Our office hopes that you will find the above information helpful in addressing your questions regarding the random explosive screening program. While pleased to offer such information as a professional courtesy, however, we are not at liberty to turn over records that directly respond to your seven-part PARP request. That is because, for the reasons that follow, the records regarding parts 1-6 of your request are legally precluded and/or exempt from release under the PARP, and there are no records pertaining to part 7.
Parts 1-6 of PARP Request – Sensitive Security Information:
The first six parts of your request all contemplate records that exceed the scope of any previously released data about the random explosive screening program. Indeed, this is evident from the fact that WMATA has never disclosed details concerning where, when, and how its bag screenings are conducted, the specific results of those screenings, or the strategic costs associated with them. Moreover, it is the judgment of MTPD leadership that, if released, such records could be exploited by terrorists or other bad actors. This, in turn, could compromise the security of the Metrorail system’s infrastructure, customers, and employees. It follows that each of the records responsive to parts 1-6 falls under the definition of “sensitive security information,” which is legally protected from disclosure. See generally 49 U.S.C. § 40119(b); 49 C.F.R. § 1520.5. Such records also are categorically exempt from release under PARP § 6.1.1. Hence, WMATA has no discretion to provide those records in this instance.
Part 7 of PARP Request – No Responsive Records:
WMATA also has no discretion to provide records responsive to the seventh and final part of your request. Put simply, there are no records pertaining to the numbers of persons reported to federal, state, local, or joint law enforcement agencies on the basis of bag searches and refusals. WMATA does not share such information with other agencies. In any event, MTPD leadership has advised that there has not been a single arrest arising from the random explosive screening program since its inception.
Appeal Rights:
If you disagree with any aspect of our decision, you may file a written appeal in accordance with PARP § 9.1. Such action must be submitted to WMATA’s Chief of Staff within 30 business days of the date of this correspondence – in other words, no later than Wednesday, April 6, 2016. See PARP § 9.1. Further details about our appeals process can be found on our website.
In closing, please feel free to contact me at (202) 962-2058, or ekdeutsch@wmata.com, if you have any other questions or concerns regarding your PARP request. To ensure an accurate and expeditious response, please remember to caption all future correspondence with the PARP request number set forth above.
Yours very respectfully,

Emily Woodward Deutsch
Assistant General Counsel, Office of General Counsel
Washington Metropolitan Area Transit Authority
ph: (202) 962-2058 fax: (202) 962-2550 ekdeutsch@wmata.com<mailto:ekdeutsch@wmata.com>
https://www.linkedin.com/in/emily-woodward-deutsch-54216551

THIS E-MAIL MESSAGE IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE RECIPIENT NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE NAMED RECIPIENT, OR THE AGENT RESPONSIBLE TO DELIVER IT TO THE NAMED RECIPIENT, YOU ARE NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, COPYING OR OTHER USE OF THIS INFORMATION/COMMUNICATION IS STRICTLY PROHIBITED AND NO PRIVILEGE IS WAIVED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE ABOVE-NAMED INDIVIDUAL IMMEDIATELY.

From: Mo Co Civil Rights

In your message, you state that we have until Wednesday, April 6, 2016 to appeal.

By our reckoning, that response, dated 2/24/16, was over a week late by your own administrative guidelines. We filed our request on 1/5/16; your guidelines envision a 20 day response period with 10 additional business days if a revision like ours was agreed to. Thus, your response was due no later than 2/16/16.

Accordingly, we request an extension of the response period by a similar 8 day amount of time: to Thursday, April 13.

Thank you.

From: Deutsch, Emily K.

Thank you for your follow-up email. I shall consult the relevant officials here regarding your request for an extension to file an administrative appeal.

In the meantime, please understand that, pursuant to section 7.3 of the Public Access to Records Policy (PARP), the date of receipt of a request “shall be the date it is received by the PARP Administrator.” (Emphasis added.) In this instance, our office did not receive your initial request until January 11, 2016. (Indeed, this is documented in the attached correspondence.) Therefore, pursuant to the administrative guidelines that you yourself have cited, our decision on your request was due 30 business days following that date of receipt. This translates to February 24, 2016, which was, in fact, the date we issued our decision. That notwithstanding, however, I shall get back to you as soon as practicable regarding your request for additional time to appeal. That discretionary determination must be made by my supervisors here in the Office of General Counsel.

Yours very respectfully,

Emily Woodward Deutsch
Assistant General Counsel, Office of General Counsel
Washington Metropolitan Area Transit Authority
ph: (202) 962-2058 fax: (202) 962-2550 ekdeutsch@wmata.com<mailto:ekdeutsch@wmata.com>
https://www.linkedin.com/in/emily-woodward-deutsch-54216551

THIS E-MAIL MESSAGE IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE RECIPIENT NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE NAMED RECIPIENT, OR THE AGENT RESPONSIBLE TO DELIVER IT TO THE NAMED RECIPIENT, YOU ARE NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, COPYING OR OTHER USE OF THIS INFORMATION/COMMUNICATION IS STRICTLY PROHIBITED AND NO PRIVILEGE IS WAIVED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE ABOVE-NAMED INDIVIDUAL IMMEDIATELY.

From: Mo Co Civil Rights

^April 14.

From: Mo Co Civil Rights

Thank you for your response, Ms. Deutsch! I hadn't seen it when I made my correction. Re your assertion that you didn't receive our request until 1/11, Ms. Keysia Thom (formerly a PARP administrator, now Office of Procurement and Materials) wrote us on the 11th she had copied her response of the 6th to your office at that time. Perhaps it was overlooked at the time? Or perhaps I misunderstood her answer. Please see https://www.muckrock.com/foi/washington-48/mtpd-bag-search-records-23113 for a record of the emails involved.

Be all that as it may, while you and your office may not have known about or recognized the request, an official at WMATA who was reaonably contacted about the matter did. I believe my point stands.

From: Deutsch, Emily K.

Understood; I appreciate your perspective, and will be sure to let my supervisors know your position re: filing your request with Ms. Thom (who no longer works here) on the earlier date.

Thanks for your consideration, and have a good evening.

Emily Woodward Deutsch
Assistant General Counsel, Office of General Counsel
Washington Metropolitan Area Transit Authority
ph: (202) 962-2058 fax: (202) 962-2550 ekdeutsch@wmata.com<mailto:ekdeutsch@wmata.com>
https://www.linkedin.com/in/emily-woodward-deutsch-54216551

THIS E-MAIL MESSAGE IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE RECIPIENT NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE NAMED RECIPIENT, OR THE AGENT RESPONSIBLE TO DELIVER IT TO THE NAMED RECIPIENT, YOU ARE NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, COPYING OR OTHER USE OF THIS INFORMATION/COMMUNICATION IS STRICTLY PROHIBITED AND NO PRIVILEGE IS WAIVED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE ABOVE-NAMED INDIVIDUAL IMMEDIATELY.

From: Deutsch, Emily K.

Mr. Nephew:

Good morning. In response to your inquiry, below, my supervisor has advised that our Public Access to Records Policy (PARP) does not allow for extensions to file written appeals of denials of public records requests. Therefore, please submit your written appeal by April 6, 2016 – i.e., 30 business days following the date of our February 24, 2016, decision letter – or your right to seek administrative review will be waived.

Future correspondence regarding this matter should reference the PARP request number noted above. If you have any additional questions, please contact me at ekdeutsch@wmata.com<mailto:ekdeutsch@wmata.com>, or (202) 962-2058. If I am unavailable, please contact my supervisor – Sonia Bacchus, Chief Counsel for Customer Service and Regulatory Affairs – at sbacchus@wmata.com or (202) 962-1093.

Your very respectfully,

Emily Woodward Deutsch
Assistant General Counsel, Office of General Counsel
Washington Metropolitan Area Transit Authority
ph: (202) 962-2058 fax: (202) 962-2550 ekdeutsch@wmata.com<mailto:ekdeutsch@wmata.com>
https://www.linkedin.com/in/emily-woodward-deutsch-54216551

THIS E-MAIL MESSAGE IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE RECIPIENT NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE NAMED RECIPIENT, OR THE AGENT RESPONSIBLE TO DELIVER IT TO THE NAMED RECIPIENT, YOU ARE NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, COPYING OR OTHER USE OF THIS INFORMATION/COMMUNICATION IS STRICTLY PROHIBITED AND NO PRIVILEGE IS WAIVED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE ABOVE-NAMED INDIVIDUAL IMMEDIATELY.

From: Mo Co Civil Rights

In that case we will file a response by April 6th, although we will mention our complaint about the time frame again at that time.

From: Mo Co Civil Rights

We hereby appeal WMATA's decision to deny our PARP request.

We believe WMATA and MTPD's responses to our PARP requests for are unjustified and unacceptable, and that WMATA and MTPD will eventually be compelled to agree -- hopefully sooner rather than later -- whether by our arguments below, by administrative order, or by court order. We argue below that far from meriting a "sensitive security information" risk to WMATA operations, honoring our information request is actually a necessity , both for the security of WMATA operations and to secure the legal basis for those operations.

=== Re Part 2 of our request: WMATA's allegedly random explosive screening program " must be publicly proven to be random or it fails security and legal requirements ===

We believe WMATA's refusal to part with the requested information requested is wholly inconsistent with WMATA and MTPD's own , public portrayal of their allegedly random explosive screening program (henceforth ARESP). In item after item supplied by WMATA's Office of General Counsel in support of denial of our PARP request, MTPD is at very public pains to portray the ARESP as "random":

• MTPD to step up system security (..ReleaseID=4776 above; 12/16/10) : "Metro Transit Police today advised customers they will conduct random inspections..."
• MTPD increases patrols, inspections system-wide (..ReleaseID=5997 above; 11/15/15: " MTPD has expanded random explosives screening at station entrances...)
• MTPD "For Your Safety and Security" brochure, (.pdf above; undated): "police will randomly select bags or packages... Anyone who is randomly selected..."

These citations alone disprove the OGC's contention that "WMATA has never disclosed details concerning where, when, and how its screenings have been conducted." To the contrary, WMATA has repeatedly, publicly described the ARESP as a random search process. One purpose of our PARP request is to require them to prove that contention.
To see that this cannot, by definition, be sensitive security information, it is worth consulting a dictionary definition of "random." Webster's Online Dictionary supplies two:
1. a : lacking a definite plan, purpose, or pattern
b : made, done, or chosen at random <read random passages from the book>
2. a : relating to, having, or being elements or events with definite probability of occurrence <random processes>
b : being or relating to a set or to an element of a set each of whose elements has equal probability of occurrence <a random sample>; also : characterized by procedures designed to obtain such sets or elements <random sampling>
("Random." Merriam-Webster.com. Merriam-Webster, n.d. Web. 5 Apr. 2016.). All these definitions suggest that the description of methods used to assure any truly random inspection or selection process cannot be sensitive security information -- since there should be no systematic, planned pattern to divulge. Indeed, it would be to WMATA and the public's clear benefit to divulge just how the "randomness" of their bag searches is assured: the more convincing that demonstration, the clearer the program's (alleged) deterrent effect will be to would-be attackers.

Unless the ARESP is in fact nonrandom, it is wholly immaterial whether this PARP request to WMATA or MTPD "exceed the scope of any previously released data about the [ARESP]." Rather, all information gained , from every one of the first 6 parts of our PARP request -- should point to a random, unsystematic, unpredictable bag search process -- knowledge that could not be of any use and would potentially be discouraging (under the theory of MacWade v. Kelly and public statements by WMATA) to potential attackers.

To sum up bluntly, either (1) WMATA and MTPD have been lying that the ARESP is a truly random bag search program, or (2) they have no acceptable basis for refusing to divulge just how that randomness is assured; rather, they should welcome that demonstration. That, in turn, means this is precisely the kind of inquiry that FOIA and PARP processes were designed to illuminate: whether or not our public agencies are misleading us and serving us badly. Refusal to turn over information substantiating that the bag searches are random can only be interpreted as an admission of guilt that they are in fact nonrandom, biased searches.

As OGC knows, an "NRESP" -- non random explosive search program -- might pose serious legal problems for WMATA and the MTPD. In the MacWade v. Kelly case they cite, the New York subway system search program was upheld was because the court accepted the contention that "police exercise no discretion in selecting whom to search, but rather employ a formula that ensures they do not arbitrarily exercise their authority." In part 2 of our request, we seek that formula. It cannot and must not simply be asserted that there is one, it must be demonstrated.

We do not seek to score mere debating points. Nearly every day, there is news of law enforcement behavior that is disappointing or worse, often having to do with racial or ethnic bias towards some Americans but not others. We seek, and the public deserves, public, indisputable proofs that a system is in place guaranteeing the publicly asserted claim that bag searches are "random."

We suspect, though, that there is in fact no such system, and no such guarantee to be made. Rather, to WMATA and MTPD, "random" may mean (improperly) something much more like "arbitrary": police officers waiting for "a while," then selecting someone "at random" from the crowd of commuters hurrying by, with no attention from supervisors whether any random selection process is actually followed. That would be a recipe for unequal, biased decisionmaking by officers.

If so, WMATA's refusal to provide documents substantiating how the randomness of searches was assured would not be based on the risk of revealing so-called "sensitive security information", it would in truth be based on the nonexistence or inadequacy of such documentary evidence -- and with the public none the wiser. It is critical that either an administrative judge or a regular court judge insist that that the "sensitive security information" rationale be disallowed, at least for Part 2 of our request. If there are no supporting documents supporting WMATA's repeated public contention that its bag searches are truly random, WMATA and MTPD should be required both to admit that , correct that, and publicly document that.

=== Our objection to WMATA's denial of Part 1 follows from our objection to their denial of Part 2 ===
Part 1: Location, times of bag search unit deployments:
Any convincing demonstration of the randomness of WMATA's random explosive screening program would also involve demonstrating the randomness of locations and times of deployment. Accordingly, WMATA's denial of Part 1 should be overturned.

=== WMATA's denial of Part 4 must be overturned, since a 6 month count of the number of times a constitutional right was exercised can not be "sensitive security information" ===
We are at a loss to imagine how a 6 month count of bag search refusals -- a constitutional right admitted by even by WMATA and insisted on by MacWade v. Kelly -- can be permitted to constitute "sensitive security information."

=== WMATA's denial of Part 3 must be overturned, since counts of false positives help the public to judge whether the bag search program is in fact an effective security measure in the first place.===
Were WMATA to deploy dowsing rod teams or magic wands in its search for potential attackers, there would be no question that a PARP demanding evidence of the number of times the method gave a wrong answer would be honored. WMATA and MTPD can not merely assert that they are deploying a (constitutional rights abrogating) security method, they must be required to publicly prove it.

=== WMATA's denial of Part 5 and 6 must be overturned for the same reason as Part 4: it must not be true that documents accounting the costs and benefits of a very likely questionable program are themselves "sensitive security information" ===
In this case we also take exception with OGC's misunderstanding of our request. We do not merely seek "any cost-benefit analyses or program evaluations of the bag search program performed by or made available to WMATA and/or the MTPD from July 1, 2015, to December 31, 2015," we altered our request (at their behest) to ask for the "most recent available such analysis."
Both such a cost-benefit or program evaluation document and the sources of funding for the bag search program can not be sensitive security information, or there is no limit to what WMATA and MTPD could claim to be such. While -- as with random search quality assurance processes -- we suspect there are in fact no cost-benefit or program evaluations at all, WMATA should be compelled to admit that, correct that, and make the documents available to the public.

We thank the reviewer of this appeal for his or her time and for his or her attention to these matters.

From: Mo Co Civil Rights

I'm writing to learn whether you have received my appeal of April 6th -- inexplicably dated April 8th by the "MuckRock" system at https://www.muckrock.com/foi/washington-48/mtpd-bag-search-records-23113/ -- and what you can tell me about the status of the administrative decision about that appeal. Thank you!

Thomas Nephew

From: Richardson, Barbara

See attached response to PARP Appeal No 16-9007. Hard copy to follow in U.S. mail.

Barbara Richardson
Chief, External Affairs
Washington Metropolitan Area Transit Authority

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