Lacson v. DHS: DC Circuit DOJ Response To Retroactive "Sensitive Security Information" Appeal

SENSl'flr.
tE SECUR:I'f)' INFORMA'fiON/UNBER SEAL

OR<\L ARGUMENT NOT YET SCHEDULED
No. 11-1447
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBlA CIRCUIT
JOSE LACSON,
Petitioner,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
and TRANSPORTATION SECURITY ADMINISTRATION.
Respondents.
ON PETITION FOR REVIEW FROM AN ORDER
OF THE TRANSPORTATION SECURITY ADMINISTRATION
BRIEF FOR THE RESPONDENTS
STUART F. DELERY
Acting Assistant Attorney General
MARK B. STER._'\l'
(202) 514-5089
SHARON SWINGLE
(202) 353-2689
EDWARD HIMMELFARB
(202) 514-3547
Attorneys, Appellate Staff
Civil Division, Room 7646
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001
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USCA Case #11-1447 Document #1389941 Filed: 08/17/2012 Page 1 of 39
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CERTIFICATE AS TOP ARTIES, RULINGS, AND RELATED CASES
PARTIES AND AMICI
Jose Lacson, Petitioner.
United States Department of Homeland Security and Transportation Security
Administration, Respondents.
RULINGS UNDER REVIEW
The petitioner seeks review of a fmal order of the Transportation Security
Administration, dated September 20, 2011, which determined that certain statements
made by the petitioner contained sensitive security information.
RELATED CASES
We are unaware of any related cases within the meaning of Circuit Rule
28(a)(l)(C).
/ sf Edward Himmelfarb
Edward Himmelfarb
Attorney for the Respondents
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KNOW," AS DEFINED
IN 49 C.F.R. P 0, EXCEPT WITH THE WRITTEN PE N OF THE
ADMINI TOR OF THE TRANSPORTATION SECURITY ADMLNI ION.
ORlZED RELEASE MAY RESULT IN CIVIL PENALTY OR OTHER AC
SENSJ'f'IVE SECURI'f'Y INFOR-1\tATION/UNBER SEAL
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ....... i
GLOSSARY .................... . ................ . . . ... . . . . . ...... vi
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF ISSUES ......... . .................................. 2
STATUTES AND REGULATIONS ........ . .................. . ... . ..... 3
STATEMENT OF THE CASE ....................... . ................. 3
STATEMENT OF FACTS ...... . .. . ........................ . ..... . ... 3
A. Statutory and Regulatory Background ....... . ................. 3
B. Facts ................................................... 7
SUMMARY OF ARGUMENT ....................... . ............ . . . . 10
STANDARD OF REVIEW ......... . ................................. 11
ARGUMENT .. . ................. . .. . ... . .............. . ... . . ...... 12
TSA'SFINALORDERDETERMININGTHATFOUROFLACSON'S
POSTS CONTAlNED SENSITIVE SECURITY INFORMATION IS
SUPPORTED BY SUBSTANTIAL EVIDENCE ... . ........ . ....... 12
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NSITIVE SECURITY INFORMAT
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A. The Four Posts Contained Sensitive Information Falling Within
An Enumerated Category OfSSI. .......... . . . . .. . ........ . . 12
B. Lacson's Challenge To The Accuracy Of His Postings Does Not
Undermine TSA's Determination That They Contain SSI. ........ 13
CONCLUSION ........... . ...... . ................ . ......... . ...... 17
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
STATUTORY AND REGULATORY ADDENDUM
ADDENDUM- FINAL ORDER WITH EXHIBIT
TABLE OF AUTHORITIES
Cases: Page(s)
Alaska Airlines, Inc. v. TSA, 588 F.3d 1116 (D.C. Cir. 2009) ............... 2
*Honeywell Int'l, Inc. v. EPA, 372 F.3d 441 (D.C. Cir. 2004) ............. 14, 15
Hoska v. Department ofthe Army, 677 F.2d 131 (D.C. Cir. 1982) ........... 15
Johnson v. United S t a t e s ~ 628 F.2d 187 (D.C. Cir. 1980) . . . . .............. 15
* Authorities upon which we chiefly rely are marked with asterisks.
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KNOW," AS DEFINED
IN 49 C.F.R. P 0, EXCEPT WITH THE WRITTEN PE N OF THE
ADMIN TOR OF THE TRANSPORTATION SECURITY ADMLNI ION.
ORlZED RELEASE MAY RESULT IN CIVIL PENALTY OR OTHER AC
lll
SENSJTIVE SECUitl'f'1' INFORMA'f'ION/ UNDER SEAL
KJirnestiver v. DEA, 606 F.2d 1128 (D.C. Cir. 1979) ..... . ................ 15
MacLean v. Department of Homeland Sec., 543 F.3d 1145
(9th Cir. 2008) .............. . .......................... . ...... 12
National Ass'n of Regulatory Util. Comrn'rs v. FCC, 737 F.2d 1095
(D.C. Cir. 1984), cert. denied, 469 U.S. 1227 (1985) ................. 15
*Richardson v. Perales: 402 U.S. 389 ( 1971) ............ . ................ 14
St. Luke's Hosp. v. Sebelius, 611 F.3d 900 (D.C. Cir. 2010) ................ 11
Statutes:
Air Transportation Security Act of 1974, Pub. L. No. 93-366,
202, 88 Stat. 409, 417 (1974) .. .................................. 4
Aviation and Transportation Security Act, Pub. L. No. 107-71,
101(e), 115 Stat. 597, 603 (2001) ........................ . ....... 4
Consolidated Appropriations Act, 2008, Pub. L. No. 110-161,
Div. E, Title V, 568(a), 121 Stat. 1844, 2092 (2007) ................. 2
Federal Aviation Act of 1958, 316 .. ................ . ......... . ....... 4
Homeland Security Act of2002, Pub. L. No. 107-296, 116 Stat. 2135:
403 ............... . ... .. ........................... .. ....... 2
1511 .................... . ................................... 2
1512 ...... . ....... . .... . . .......... . ............... . ....... 2
1517 ...... . .... . ........ . .. . ... . ... . ..... . ........ . . ....... 2
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1601 ....................................................... 4
5 U.S.C. 706(2)(A) .............. .. .......................... . ...... 11
5 U.S.C. 706(2)(E) ............... .. .......................... . ...... 11
49 U.S.C. 114(b)(1) ........ . .... . ... . ....... . . . ............ . ... . .... 2
*49 U.S.C. 114(r) ........................................... . ....... 2
*49 U.S.C. 114(r)(l)(C) .. . ... . ... . .. ............... . ..... . .... . ....... 4
49 U.S.C. 114(s) ................................. . ......... . ....... 2
49 U.S.C. 44917(a)(l ) ............ .. .............. . ...... ..... . ....... 5
49 U.S.C. 44917(a)(2) ............ . ................ . ......... .. ....... 5
49 U.S.C. 46110(a) ................................................. 2
49 U.S.C. 46110(c) ................................................ 11
Regulations:
49 C.F.R. Part 1520 ..................................... . ......... 4, 6
49 C.F.R. 1520.5(a) ................................................ 12
*49 C.F.R. 1520 . .5(a)(3) ........... . ................ . ........... 5, 10, 16
*49 C.F.R. 1520 . .5(b)(8)(ii) ...... . . . . . . . . ....... . . . . . . . ... . . 5, 9, 10, 12, 13
49 C.F.R. 1520.5(c) ...... . ....... . .......... . . . ..................... 6
49 C.F .R. 1520.9 ................................................... 6
49 C.F.R. 1520.9(a) ................................................. 6
49 C.F.R. 1520.9(c) ................................................. 6
49 C.F.R. 1520.17 .................................................. 6
49 C.F.R. 1544.223 ........ .. ....................................... 5
"In-Flight Security- Federal Air Marshals (F AMS) Sensitive
Security Information Identification Guide," topic 0032.01.07 ......... 6, 13
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SITIVE SECURITY INFORMAT
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IN 49 C.F.R. P , EXCEPT WITH THE WRITTEN PER N OF THE
ADMINI OR OF THE TRANSPORTATION SECURITY ADMIN! ION.
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Abbreviation
DHS
FAA
FAM
MSPB
SAC
SSI
SSI Guide
TSA
SENSJl'PlE SECURil'Y INFORMAl'ION/ UNBER SEAL
GLOSSARY
Defmition
Department of Homeland Security
Federal Aviation Adtninistration
Federal Air Marshal
Merit Systems Protection Board
Special Agent-in-Charge
Sensitive Security Information
"In-Flight Security - Federal Air Marshals
(FAMS) Sensitive Security Information Iden-
tification Guide"
Transportation Security Administration
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Lacson v. DHS, et al., Case No. 11-1447 (D.C. .
ITIVE SECURITY INFORM
VI
SENSITIVE SECURITY INf'OJtl'fi ATIONIUNf)ER SEAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 11-1447
JOSE LACSON,
Petitioner,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
and TRANSPORTATION SECURITY ADMINISTRATION.
Respondents.
ON PETITION FOR REVIEW FROM AN ORDER
OF THE TRANSPORTATION SECURITY ADMlNISTRATION
BRIEF FOR THE RESPONDENTS
STATEMENT OF JURISDICTION
The Transportation Security Administration (TSA) issued a fmal order on
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SITIVE SECURITY INFORMAT
September 20, 2011, that Lacson's statements on a public website contain Sensitive
Security Information (SSI) under 49 U.S.C. 114(r). (A copy of the order, with its
exhibi t, is included as an addendum to this brief.) A timely petition for review was
filed in this Court on November 14, 2011. This Court has jurisdiction under 49
U.S.C. 4611 O(a), which vests exclusive jurisdiction in the court of appeals to review
certain TSA orders.
1
STATEMENT OF ISSUES
Whether TSA's conclusion that four statements posted by the petitioner on a
publicly available website contained SSI is supported by substantial evidence.
Although 49 U.S.C. 46110(a) references orders issued by the Under Secre-
tary of Transportation for Security, Congress has designated the TSA Administrator
as Under Secretary of Transportation for Security. See 49 U.S.C. 114(b)(l);
Homeland Security Actof2002, Pub. L. No. 107-296, 403, 1511, 116 Stat. 2135,
2178,2309 (6 U.S.C. 203(2), 551(d)). Statutory references to the Under Secretary of
Transportation for Security are thus deemed to refer to TSA and its Administrator.
Id. 1512, 1517 (6 U.S.C. 552(d), 557). Section 46110(a) provides for review in
the court of appeals of orders under 49 U.S.C. 114(s), but that subsection has since
been redesignated as 114(r). See Consolidated Appropriations Act, 2008, Pub. L. No.
110-161, Div. E, Title V, 568(a), 121 Stat. 1844, 2092 (2007); see also Alaska
Airlines, Inc. v. TSA, 588 F.3d 1116 (D.C. Cir. 2009) (exercising j urisdiction under
section 46110(a) to review order issued under 49 U.S.C. 114(r)).
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STATUTES AND REGULATIONS
A copy of statutes and regulations relevant to this case may be found in an
addendum to this brief.
STATEMENT OF THE CASE
Petitioner Jose Lacson is a former Federal Air Marshal who was employed by
TSA in the Miami Field Office. TSA terminated Lacson's employment after he
posted comments on a publicly available internet site that contained SSI. Lacson
sought review of his termination before the Merit Systems Protection Board (MSPB),
arguing in relevant part that his postings did not contain SSt
On September 20, 2011, TSA issued a final order determining that four of
Lacson's postings contained SSI. This petition seeks judicial review of TSA's
determination.
STATEMENT OF FACTS
A. Statutory and Regulatory Background.
Since 1974, Congress has required the federal agency responsible for civil
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aviation security to issue regulations prohibiting the disclosure of certain information
in the interest of protecting air transportation. See Federal Aviation Act of 1958,
316, as added by Air Transportation Security Act of 1974, Pub. L. No. 93-366,
202, 88 Stat. 409, 417 (1974). This authority was transferred from the Federal
Aviation Administration (FAA) to TSA when Congress created the new agency. See
Aviation and Transpor1ation Security Act, Pub. L. No. 107-71, 101(e), 115 Stat.
597, 603 (2001); see also Homeland Security Act of2002, Pub. L. No. 107-296,
1601, 116 Stat. 2135,2312 (2002).
The statute requires TSA to "prescribe regulations prohibiting the disclosure
of information obtained or developed in carrying out security * * * if the [TSA
Administrator] decides that disclosing the information would * * * be detrimental to
the security of transportation." 49 U.S.C. 114(r)(l)(C). Pursuant to this mandate,
TSA has defmed certain types of information as "Sensitive Security Information" -
SSI - and has limited the disclosure of that information to a narrow set of circum-
stances. See generally 49 C.F.R. Part 1520 .
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As relevant, the regulations define SSI as:
(a) * * * information obtained or developed in the
conduct of security activities, including research and
development, the disclosure of which TSA has determined
wou[d - * * * (3) Be detrimental to the security of trans-
portation.
49 C.,F.R. 1520.5(a)(3). Among the covered categories of information are:
(8) Security measures. Specific details of aviation
* * * security measures, both operational and technical,
whether applied directly by the Federal government or
another person, including-
* * *
(ii) Information concerning the deployments,
numbers, and operations of* * * Federal Air Marshals, to
the extent it is not classified national security information
* * *
49 C.F.R. 1520.5(b)(8)(ii) (emphasis added).
2
Information regarding the deploy-
2
Congress provided that TSA "may provide for deployment of Federal air
marshals on every passenger flight of air carriers in air transportation or intrastate air
transportation" and "shall provide for deployment of Federal air marshals on every
such flight determined by the Secretary to present high security risks." 49 U.S.C.
44917(a)( l ) & (2). See also 49 C.F.R. 1544.223.
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ments, operations and numbers of Federal Air Marshals, and the records containing
the information qualify as SSI, unless TSA determines in writing to the contrary. 49
C.F.R. 1520.5(c). TSA's "In-Flight Security - Federal Air Marshals (FAMS)
Sensitive Security Information Identification Guide
113
(SSI Guide) states that "[i]nfor-
mation on increases or decreases on [Federal Air Marshals] staffing at [Federal Air
Marshals Headquarters] or any Field Office is SSI." SSI Guide, topic 0032.01.07.
TSA has a[so promulgated regulations governing the disclosure of SSI. 49
C.F.R. 1520.9. Individuals. who have access to SSI are prohibited from disseminating
that information except to authorized persons with a need to know. See 49 C.P.R.
1520.9(a). They are also required to report any unauthorized release of SSI. 49
C.F.R. 1520.9(c). Disclosure by covered persons in violation of the regulations is a
ground for civil penalties or corrective action by DHS, and appropriate personnel
actions for federal employees. 49 C.F .R. 1520.17.
3
This document, issued and approved by the Director ofTSA's SSI Office,
provides guidance on what information associated with Federal Air Marshal Service
(FAMS) is and is not Sensitive Security Information (SSI) under49 C.F.R. Part 1520.
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B. Facts.
Jose Lacson accepted a position as a Federal Air Marshal on June 3, 2002. J.A.
Supp. A3.
In 2010, several posts by Lacson appeared on a publicly available internet
website
1
officer.com. Lacson
1
who posted under the screen name "INTHEAIRCOP
1
"
admitted that his posts identified him as a Federal Air Marshal and that he used a
photo of a Federal Air Marshal's badge as his avatar. J.A. Supp. A8. He also admit-
ted that he stated in his profile that he was a federal agent. ld.
An investigation initiated by TSA in June 2010 initially cited five ofLacson's
posts as containing SSI:

Post # 2325: "In the year 2022 there will be a mass exodus.
More than 75 percent of the current [Federal Air Marshals] were
all hired during the 2002 push."

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J.A. Supp. Al8-Al9.
Lacson acknowledged having posted the statements in question but claimed
that he had made up the information and that it was not true. J.A. Supp. A6; J.A.
Supp. AIO. On further investigation, TSA'sManpowerOperations Special Agent-in-
Charge, Kent Jefferies, confirmed to investigators that Lacson's first, second, and
fourth postings were factually accurate. J.A. Supp. Al5. Miami Special Agent-in-
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Charge 1 ames Bauer confirmed the accuracy of the statement in Lacs on's third posting
that the Miami office's attrition rate was In addition, TSA confirmed that
all five of the disputed posts contained SSI. J.A. Supp. A16-A17.
TSA's Miami Field Office issued a notice of proposed removal to Lacson on
February 11, 201 [. The notice cited the five instances of unauthori zed release ofSSI
detalled above, as well as five specifications of misuse of government equipment and
13 specifications of making inappropriate statements. J.A. Supp. A18-A28. The
agency issued a final decision on removal on May 31, 2011, terminating Lacson's
employment as a Federal Air Marshal. J.A. Supp. A29-A39. The decision withdrew
one specification of unauthorized release ofSSI (relating to Post 2325) and one non-
SSI specification. J.A. Supp. A33.
Lacson appealed his removal to the MSPB, and also challenged TSA's conclu-
sion that his posts included SSI. TSA issued a final order on September 20, 201 1,
determining that four of Lacson's posts contained SSI, as defined in 49 C.F.R.
1520.5(b)(8)(ii). J.A. Supp. A4-A5. The order, along with tlhe exhibit it refers to, is
also found in an addendum to this brief.
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Lacson filed a timely petition for review challenging TSA's September 20
order. In the interim, Lacson dismissed his MSPB appeal without prejudice, pending
this Court's disposition of the petition for review. J.A. Supp. A42-A44.
SUMMARY OF ARGUMENT
Under TSA regulations, SSI includes "[s]pecific details of aviation *
* *
security measures, both operational and technical, whether applied directly by the
Federal government or another person, including* * * [i]nformation concerning the
deployments, numbers, and operations of* * * Federal Air Marshals." 49 C.F.R.
1520.5(b)(8)(ii). TSA's final order concluded that four posts made by Lacson on a
publk internet site disclosed information within this definition and that disclosure
was "detrimental to the security of transportation." 49 C.F.R. 1520.5(a)(3).
The agency's decision is supported by substantial evidence. On their face, the
internet postings come within the regulatory definition of SSI, because they contain
detailed factual infonnation about the number and deployment of Federal Air
Marshals. In addition, TSA reasonably determined that disclosure of this in forma-
tion, by an individual who publicly described himself as a federal air marshal, would
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be detrimental to transportation security. Lacson's only challenge to this
determination is that the postings could not have been SSI, because he made them up
and they were not true. But TSA officials with first-hand knowledge of the under-
lying facts confirmed to TSA investigators that the postings were accurate, and, in
any event, TSA may reasonably determine that certain statements, although not
technically accurate, may nevertheless disclose security vulnerabilities because they
reveal a concept or general state of affairs that should be protected in the interest of
transportation.
STANDARD OF REVIEW
TSA's determination that the four statements contain SSI must be upheld if it
is neither contrary to law nor an abuse of discretion, and is based upon substantial
evidence. 5 U.S.C. 706(2)(A) & (E); see also 49 U.S.C. 46110(c). In conducting this
review, the Court affords "substantial deference" to the agency's interpretation of its
own regulations. St. Luke's Hosp. v. Sebelius, 611 F.3d 900, 904-05 (D.C. Cir.
2010).
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ARGUMENT
TSA'SFINALORDERDETERMININGTHATFOUR
OF LACSON'S POSTS CONTAINED SENSITIVE
SECURITY INFORMATION IS SUPPORTED BY
SUBSTANTIAL EVIDENCE.
A. The Four Posts Contained Sensitive Information Falling Within An
Enumerated Category Of SSI.
TSA's order determining that four posts made by Lacson contained SSI was
basecil on substantial evidence. A record adequate to sustain an order may be "little
more than a letter." MacLean v. DepartmentofHomeland Sec., 543 F.3d 1145, 1149
(9th Cir. 2008) (upholding TSA's SSI determination).
Sensitive security information is "information obtained or developed in the
conduct of security activities * * * the disclosure of which TSA has determined
would" - among other possibilities - "(3) Be detrimental to the security of trans-
portation." 49 C.F.R. 1520.5(a). TSA found that the sensitive information posted by
Lacson fell within the category of "deployments, numbers, and operations of* * *
Federal Air Marshals." 49 C.F.R. 1520.5(b)(8)(ii). J.A. Supp. A4-A5, Al6-Al7.
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That determination is self-evidently correct: the posts in question specifically
referenced the number, deployment, and attrition rate of Federal Air Marshals hired
at various times and deployed at various duty stations. As reflected in its SSI Guide,
TSA has reasonably detennined that the very kind of information posted by Lacson
- "[i]nformation on increases or decreases on [Federal Air Marshals] staffing at
[Federal Air Marshals Headquarters] or any Field Office" - is SSI. SSI Guide, topic
0032.01.07.
B. Lacson's Challenge To The Accuracy Of His Postings Does Not
Undermine 'fSA's Determination That They Contain SSI.
Lacson does not contest that the information in his internet postings is sensi-
tive, nor does he dispute that it comes within the enumerated category of Federal Air
Marshal"deployments, numbers, and operations" that constitutes SSI under49 C.F.R.
1520.5(b )(8)(ii). His only argument is that the postings cannot be SSI, because the
information they contain is inaccurate. Br. 12-19.
1. As described above, the agency confirmed the accuracy ofthe statements
in Lacson's postings in the course of determining that they contained SSI. A TSA
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special agent in charge ofManpower Operations confirmed the accuracy ofLacson's
statements that ; that "[ m ]ore than 75
percent of the current [Federal Air Marshals] were" hired during 2002;
J.A. Supp. Al5. The special agent in
charge of the Miami oftice confirmed that Lacson's statement about attrition
rate in Miami was accurate. Id. And another TSA official confirmed the accuracy of
Lacson's statement that'
J.A. Supp. A17.
Lacson also argues that the statements of these TSA officials cannot be "sub-
stantial evidence" because they are "hearsay. " This Court's decisions establish, how-
ever, that "administrative agencies may consider hearsay evidence as long as it bear[s]
satisfactory indicia of reliability." Honeywell Int'l, Inc. v. EPA, 372 F.3d 441, 447
(D.C. Cir. 2004) (internal quotation marks omitted); see also Richardson v. Perales,
402 U.S. 389, 402 (1971) (holding that hearsay can constitute substantial evidence
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SENS.JTIVS SECURITY INFORMATION/ UNDER SEAL
supporting an agency decision); Hoska v. Department of the Army, 677 F.2d 131,
138-39 (D.C. Cir. 1982); Johnson v. United States, 628 F.2d 187, 190-91 (D.C. Cir.
1980); Klinestiver v. DEA, 606 F.2d 1128, 1129 (D.C. Cir. 1979).
The agency officials who confmned the accuracy of the information were
officials with responsibility for and knowledge of the underlying hiring and deploy-
ment ofFederal Air Marshals. See Honeywell, 372 F.3d at 447 (agency may rely on
'"representations by parties who were uniquely in a position to know'" the relevant
information) (quoting National Ass'n of Regulatory Uti I. Comm'rs v. FCC, 737 F.2d
1095, 1125 (D.C. Cir. 1984), cert. denied, 469 U.S. 1227 (1985)). The TSA officials
properly relied on their personal knowledge in confirming that the information in
Lacson's postings was accurate. See J.A. Supp. Al5 (SAC Jefferies "can attest to the
accuracy given his knowledge of the subj ect matter'r); id. (SAC Bauer "has confirmed
the attrition rate MIA").
2. Lacson is also mistaken in assuming that his postings could not consti-
tute SSI if they were inaccurate. SSI encompasses any information "obtained or
ADMINTSTRA T
UNAUTHO RELEASE MAY RESULT I N CIVl L PENALTY OR OTH
15
developed in the conduct of security activities," for which TSA has determined that
public disclosure would "[b ]e detrimental to the security of transportation." 49 C.F .R.
1520.5(a)(3). An employee cannot avoid the restrictions on disclosure of SSI by
adjusting figures to introduce inaccuracies. Lacson's proposed "inaccuracy" excep-
tion would provide a means of circumventing the SSI regulations that would seriously
undermine their efficacy.
In any event, TSA could reasonably determine that certain statements, although
not technically accurate, might nevertheless be detrimental if disclosed because they
reveal a concept or general state of affairs that should be protected in the interest of
transportation security. For example, although a statement identifying a specific
number of Federal Air Marshals at a field office might be inexact or exaggerated, it
could still indicate a vulnerability such as the extent of a given field office's ability
to provide FAM coverage on fli ghts or actual FAM understaffing in a given region
ofthe country. Likewise, ifTSA guarded against the unauthorized di sclosure of only
absolute truths, its failure to prevent the disclosure of falsehoods could, in certain
NSITIVE SECURITY INFORM N
ADMINTSTRA T
UNAUTHO . D RELEASE MAY RESULT I N CfVl L PENALTY OR OTHE
16
SENSITIVE SECURI'f'l' 1Nf'Oiti'i>IATION/ UN6Eit SEAL
contexts, reveal SSI by implication. In light of such security concerns, Lacson's
sweeping assertion that covered persons are free to disclose "fictional" SSI whenever
they wish should be rejected.
CONCLUSION
For the foregoing reasons, the petition for review should be denied.
AUGUST 2012
ADMINTSTRA T
Respectfully submitted,
STUART F. DELERY
Acting Assistant Attorney General
MARK B. STERN
(202) 514-5089
SHARON SWINGLE
(202) 353-2689
EDWARD HIMMELFARB
(202) 514-3547
Attorneys, Appellate Staff
Civil Division, Room 7646
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001
UNAUTHO D RELEASE MAY RESULT I N CfVl L PENALTY OR OTHE
17
CERTIFICATE OF COMPLIANCE
I certify that this brief is proportionately spaced, using Times New Roman font,
14 point type. Based on a word count under Corel Word Perfect X5, thi s brief con-
tains 2,712 words, excluding the Certificate as to Parties, Rulings, and Related Cases,
the glossary, table of contents, table of authorities, addenda, and certificates of
counsel.
ADM
/ s/ Edward Himmelfarb
EDWARD HIMMELFARB
U HORlZED RELEASE MAY RESULT I N CfVlL PENALTY OR OTHER AC
CERTIFICATE OF SERVICE
I hereby certify that on August 3, 2012, I served the foregoing Brief for the
Respondents on the following by causing two copi es to be sent by Federal Express,
for Monday delivery, to:
Lawrence Allen Berger, Esq.
Mahon & Berger
70 Glen Street
Suite 280
Glen Cove, NY 11542
Is/ Edward Himmelfarb
Edward Himmelfarb
CT TO SENSITlVE SECURITY INFORMATION PROTECTI
Lacson v. DHS, et al., Case No. 11-1447 (D.C. .
SENSJTI YE SECURiTY INFORMATlON/ UNBER SEAL
STATUTORY AND REGULATORY ADDENDUM
ADMINTSTRATO
UNAUTHORr RELEASE MAY RESULT I N CfVlL PENALTY OR OTHE
SENSITIVE SECURITY INFORMATION/ UNBER SEAL
Table of Contents
49 U.S.C. 114(r) . . . . .... . .. .. ... . ... . ... . ............ . ...... . .. . .. A-1
49 U.S.C. 46110 .......... 0 0 0 0 0 0 0 0 0 0 0 0 0 0 A-2
49 C .. F.R. 1520.5 ... 0 0 0 A-4
Sensitive Security Information Identification Guide, topic 0032.01.07 0 0 0 0 0 0 A-6
AD MINTS
UNAUT lZED RELEASE MAY RESULT I N CfVl L PENALTY OR OTHER A
SENSITIVE SECURITY INf'OJtl'fi ATIONIUNf)ER SEAL
49 U.S.C. 114(r)(l)
114. Transportation Security Administration
* * * * *
(r) Nondisclosure of security activities.-
(1) In generaL- Notwithstanding section 552 of title 5, the Under Secretary
shall prescri be regulations prohibiting the disclosure of information obtained or
developed in carrying out security under authority of the Avi ation and Transportation
Security Act (Public Law 107-71) or under chapter 449 of this title if the Under
Secretary decides that disclosing the information would-
(A) be an unwarranted invasion of personal privacy;
(B) reveal a trade secret or privileged or confidential commercial or financial
information; or
(C) be detrimental to the security of transportation.
* * * * *
SENSJ'fiVE SECURI'fY INFORMATlON/ UNBER SEAL
49 u.s.c. 46110
46110. Judicial review
(a) Filing and venue.- Except for an order related to a foreign air carrier
subject to disapproval by the President under section 41307 or 41509() of this title,
a person disclosing a substanti al interest in an order issued by the Secretary of
Transportation (or the Under Secretary ofTransportation for Security with respect to
security duties and powers designated to be carried out by the Under Secretary or the
Administrator of the Federal Aviation Administration with respect to aviation duties
and powers designated to be carried out by the Administrator) in whole or in part
under this part, part B, or subsection (I) or (s) of section 114 may apply for review of
the order by filing a petition for review in the United States Court of Appeals for the
District of Columbia Circuit or in the court of appeals of the United States for the
circuit in which the person resides or has its principal place of business. The petition
must be filed not later than 60 days after the order is issued. The court may allow the
petition to be filed after the 60th day only if there are reasonable grounds for not
fi ling by the 60th day.
(b) Judicial procedures.- When a petition is filed under subsection (a) of this
section, the clerk of the court immediately shall send a copy of the petition to the
Secretary, Under Secretary, or Administrator, as appropriate. The Secretary, Under
Secretary, or Administrator shall file with the court a record of any proceeding in
which the order was issued, as provided in section 21 12 of title 28.
(c) Authority of court.-When the petition is sent to the Secretary, Under
Secretary, or Administrator, the court has exclusive jurisdiction to affirm, amend,
modify, or set aside any part of the order and may order the Secretary, Under
Secretary, or Administrator to conduct further proceedings. After reasonable notice
to the Secretary, Under Secretary, or Administrator, the court may grant interim relief
ECT TO SENSITlVE SECURI TY I NFORMATI ON PROTECTIV
in Lacson v. DHS, et al., Case No. 11-1447 (D.C. C
NSITIVE SECURITY LNFORMAT
ADMINTSTRATO
UNAUTHOR RELEASE MAY RESULT I N CfVl L PENALTY OR OTH
A-2
SENSJTIVE SECURITV INFORMATION/ UN6 ER SEAL
by staying the order or taking other appropriate action when good cause for its action
exists. Findings of fact by the Secretary, Under Secretary, or Administrator, if
supported by substantial evidence, are conclusive.
(d) Requirement for prior objection.-In reviewing an order under this
section, the court may consider an objection to an order of the Secretary, Under
Secretary, or Administrator only if the objection was made in the proceeding
conducted by the Secretary, Under Secretary, or Administrator or if there was a
reasonable ground for not making the objection in the proceeding.
(e) Supreme Court review.- A decision by a court under this section may be
reviewed only by the Supreme Court under section 1254 of title 28.
J ECT TO SENSITlVE SECURITY INFORMATION PROTECTI
ADMINTSTR
UNAUT ED RELEASE MAY RESULT IN CIVl L PENALTY OR OTHER A
A-3
SENSITIVE SECURITY INfORMATION/ UN6 ER SEAL
49 C.F .R. 1520.5
1520.5 Sensitive security information.
(a) In general. In accordance with 49 U.S.C. 114(s), SSI is iinformation
obtained or developed in the conduct of security activities, including research and
development, the disclosure of which TSA has determined would-
( 1) Constitute an unwarranted invasion of privacy (including, but not limited
to, information contained in any personnel, medical, or similar file);
(2) Reveal trade secrets or privileged or confidential information obtained
from any person; or
(3) Be detrimental to the security of transportation.
(b) Information constituting SSI. Except as otherwise provided in writing
by TSA in the interest of public safety or in furtherance of transportation security, the
following information, and records containing such information, constitute SSI:
* * * * *
(8) Security measures. Specific details of aviation, manhme, or rail
transportation security measures, both operational and technical, whether applied
directly by the Federal government or another person, including-
(i) Security measures or protocols recommended by the Federal govern-
ment;
(ii) Information concerning the deployments, numbers, and operations of
ECT TO SENSITlVE SECURI TY I NFORMATI ON PROTEC
in Lacson v. DHS, et al., Case No. 11-1447 (D.
NSITIVE SECURITY INFO ON
ADMINTSTRA
UNAUTHO D RELEASE MAY RESULT I N CIVl L PENALTY OR OTHE
A-4
SENSITIVE SECURITY INFORI\f ATION/ UNBER SEAL
Coast Guard personnel engaged in maritime security duties and Federal Air Marshals,
to the extent it is not classified national security information; and
(iii) Information concerning the deployments and operations ofFederal Flight
Deck Officers, and numbers of Federal Flight Deck Officers aggregated by aircraft
operator.
( iv) Any armed security officer procedures issued by TSA under 49 CFR part
1562.
ECT TO SENSITlVE SECURI TY I NFORMATI ON PROTECT
NSITIVE SECURITY LNFORMA
ADMINTSTRATO
UNAUTHORlZ ELEASE MAY RESULT I N CI VlL PENALTY OR OTHE
A-5
TRANSPORTATION SECURITY ADMINISTRATION
IN-FLIGHT SECURITY
Federal Air Marshals FAMs
SENSITIVE SECURITY INFORMATION
IDENTIFICATION GUIDE
SSIIDG 0032 Version 1.1
August 2008
Issued and Approved By:
Andrew Co/sky
Director, SSI Office
Transportation Security Administration
August13,2008
1
0032.01.06 FAMs perform
surveillance of transportation assets
FAMs perform airport and other transportation
asset surveillance as part of the FAM mission.
0032.01.07 Changes in deployment I FAM deployment is constantly re-assessed
patterns based on the most current intelligence, threat
information and incidents.
0032.01.08 Deployment on non-
flight security missions
0032.02 Security Procedures
0032.02.01 General process
0032.02.02 Current boarding
processes and other tradecraft
methods used to gain access to
aircraft and airport secure areas
FAMs perform airport and other transportation
asset surveillance as part of the FAM mission.
FAMs are law enforcement officers (LEOs) and
are governed by federal laws associated with
LEOs.
FAMs must identify themselves to aircraft
operators.
Flight crew must be informed when FAMs are
scheduled to be onboard.
Approved language: "Boarding procedures vary
by mission.".
General discussion of generic methods of
boarding.
Specific details on the tradecraft of surveillance
performed are SSI under 8(ii). Reasons for
selection of individuals or assets for surveillance
may be SSI under (7).
Information on increases or decreases on F AMs
staffing at FAMS HQ or any Field Office is SSI.
Information on shifting deployments to or from
international travel or domestic cities or regions
under 8(ii).
See 0032.04 VIPR
FAM procedures, tactics, and tradecraft that
differs from standard law enforcement practices
due to aircraft and airport environment are SSI
under 8(ii).
For specific airports and/or aircraft operators, the
individuals who must be notified and the timing of
the notification, and specifics on procedures used
to gain access to AOA, SIDA, or sterile areas are
SSI under 8(ii).
ADDENDUM- FINAL ORDER WITH EXHffiiT
ADMINTSTRATO
UNAUTHORfZ ELEASE MAY RESULT I N CfVlL PENALTY OR OTHER " ' L . " ~
A-6
SENSIIIVE SECORII t IIIIFORMATIOI<I/ UI<IOER SI!:A:t
U.S. Deparfllcnt of Homeland Security
Arlington, VA 22202
Final Order on Sensitive Security Information in connection with
Lacson v. Dep't o[Home/and Sec., AT-0752-11-0765-I-1
I. Introduction
Former Federal Air Marshal (F AM) Jose Lacson is challenging his removal by the
Transportation Security Administration (TSA) for, among other reasons, releas:ing Sensitive
Security Information (SSI) by posting it to a public website. F AM Lacson, tluough his
representative; has contested whether the statements posted to this public website include SSI.
The TSA SSI Program has conducted a review of these statements and hereby issues a final
determination that four of these statements, which are attached hereto as Exhibit A, contain SSI.
II. Authority to Make Final SST Determinations
The Administrator ofTSA is authorized by 49 U.S.C, 114(r), formerly 49 U.S.C. 114(s),' and
49 C.F.R. part 1520 to determine whether information pe1taining to transpottation security
constitutes SSI. The authority to identify information pertaining to transpmtation security as
SSI has been delegated from the Administrator to the Deputy Administrator, pursuant to a
delegation order si gned by then Administrator J.M. Loy, on April 10, 2003. The Deputy
Administrator further delegated the authority to the Director of the SSI Office, now referred to as
the Chief of the SST Program, pursuant to a delegation order signed by then Acting Deputy
Administrator, Kenneth Kasprisin, on April 29, 2005. Both delegation orders are in effect as of
the date of this Final Order and have not been amended.
III. Review ofF AM Lacson' s Statements
Pursuant to 49 U.S.C. 114(r) and 49 C.F.R. part 1520, TSA security expetis reviewed the
statements posted by Lacson on the public website for the purpose of determining .whether they
contain SSI. Based upon this review, I have determined that the statements included in Exhibit
A of this Final Order contain SSI, under the following subsection of 49 C.F.R. patt 1520:
"Security measures. Specific details of aviation, maritime, or rail
transportation security measures, both operational and technical,
whether applied directly by the Federal govemment or another
person, including ... [i]nformation concerning the deployments,
1
Subsection (s) of section I I 4 was redesignated as subsection (r) by the Consolidated Appropriations Act 2008,
Pub. L. No. 110-161, Div. E, 568(a), 121 Stat. 1844, 2092 (2007).
VVPi.ftNI.Q!b: 1HIS RECORD MAY CONTAIN SENSITIVE SECURI
!3Ef4!31TIVE SECURITY SEAL
numbers, and operations of ... Federal Air Marshals .... " 49
C.F.R. 1520.5(b )(8)(ii).
IV. Final Order
This Order is issued under 49 U.S.C. 114(r) and is final. Pursuant to 49 U.S.C. 46110, any
person disclosing a substantial interest in this Order may, within 60 days of its issuance, apply
for review by filing a petition for review in an appropriate U.S. Court of Appeals.
(D sU;N'">" ...
William E.
Chief, SSI Program
Office of Security Services and Assessments
Office of Law Enforcement/Federal Air Marshal Service
Transpmiation Security Administration
U.S. Depat1ment of Homeland Security
SENSITIVE SECUIUT'r' IMFORMATIOM
Exhibit A to Final Order on Sensitive Security Information
in connection with Lacson v. Dep 't o[Homeland Sec. , AT-0752- 11-0765-I-l

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