Yesterday, CREW (on behalf of itself), the ACLU, the Electronic Frontier Foundation, and OpenTheGovernment.org filed an amicus or friend of the court brief in two consolidated cases before the D.C. Circuit, Electronic Privacy Information Center v. U.S. Dep’t of Homeland Security and Electronic Privacy Information Center v. Transportation Security Administration. EPIC is seeking under the FOIA test results, fact sheets, and data concerning radiation exposure pertaining to the Advanced Imaging Technology machines used by DHS and TSA to screen airline passengers. Although the material EPIC seeks is purely factual, the district court held it was protected by Exemption 5 of the FOIA as within the deliberative process privilege, which protects an agency’s deliberations as part of the decision-making process.
CREW participated as an amicus in the two cases to prevent the expansion of Exemption 5, which under the district court’s holding would allow agencies to shroud their decisions in total secrecy and undermine the integrity disclosing factual information brings to agency deliberations.