MCCRC appeals WMATA denial of request to document bag searches are “random”

mtpd-patch[SIGN OUR PETITION AGAINST BAG SEARCHES]

Today, MCCRC continued to press our “PARP” (public access records process) with the regional transit authority WMATA, appealing the agency’s 2/24/16 administrative decision that the first six elements of our request could not be provided on grounds that they are “Sensitive Security Information.” As we reported in January, MCCRC was seeking information regarding:

1) locations and times of bag search unit deployments over the 6 month period ending at the end of last December.
2) documents from the same time frame substantiating that bag searches were truly “random,” including measures taken to ensure that,
3, 4) numbers of false positives and bag search refusals over the same time period.
5, 6) costs and subsidies of the program over the same time period, and the most recent cost-benefit analysis or program evaluation of the program.

Each of these requests was denied on “sensitive security information” grounds.  Yet it’s hard to see why.  Referring to the “alleged random explosive screening program” as “ARESP”, Thomas Nephew wrote in the appeal,

…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.

and continuing later,

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.

“Randomness” of bag searches is not inconsequential; the Macwade v. Kelly case WMATA itself cites in their response, upholding a New York subway bag search program, actually insists on the randomness of bag searches as a prerequisite for upholding the program.
We appealed the denials of both items 1 (locations and times of bag search deployments) and 2 on those grounds.

We appealed denials of requests 5 and 6 on the grounds that revealing the aggregate cost, funding sources, and latest cost-benefit or program evaluations do not in themselves reveal sensitive security information, and that the public is entitled to data supporting the efficacy of the program, if there is any, which we doubt.  The same applies to item 3 (false positives); we can infer (and WMATA essentially confirmed in denying a 7th request for data about persons forwarded to other agencies) that there have been no true positives, since we can be sure we’d never hear the end of it if an attacker were actually apprehended via a bag search, and that hasn’t happened.  The question is how many times the program results in accusations towards innocent Metro customers.

Re the denial of information about bag search refusals, we wrote,

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.”

As also noted in the appeal, it is our suspicion that rather than being “sensitive” information, there may in truth be no information at all for some of our requests — and that’s not good either, either in itself or especially when obscured behind a ‘sensitive information’ smokescreen:

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.

We await WMATA’s administrative appeal decision with interest.

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