U.S. Department of Homeland Security ‘Arlington, VA. 22202 Transportation Security Administration Final Order on Requests for Conditional Disclosure of SSI I. _ Requests for Conditional Disclosure A. Counsel for the plaintiffs and the cross-claim plaintiffs in In Re September 11 Litigation, 21 MC 97 (S.D.N.Y.), and In Re September 11 Property Damage and Business Loss Litigation, 21 MC 101 (S.D.N.Y.) (collectively “September 11 Actions") (hereinafter “Plaintiff Requesters”), request access to Sensitive Security Information (“SSI”) contained in documents that are responsive to discovery requests served in the litigation. See Letters from plaintiffs’ liaison counsel (Nov. 3, 2005) (hereinafter “Plaintiffs’ Letter”) and cross-claim plaintiffs (Dec. 8, 2005), attached at Tab A. Counsel for certain defendants in the September 11 Actions (hereinafter “Defendant Requesters”) request authorization to disclose to counsel for the plaintiffs, to counsel for other defendants, to certain fact and expert witnesses, and to others, specific documents that constitute SSI that they plan to use in their litigation defense. See Letters from American Airlines (Dec. 12, 2005), Globe Aviation Services Corp. (Dec. 13, 2005), Huntleigh USA Corp. (Dec. 13, 2005), Argenbright Security (Dec. 14, 2005), The Boeing Company (Dec. 15, 2005), U.S. Airways (Dec. 15, 2005), and Colgan Air (Dec. 15, 2005), attached at Tab B. Ii, Standard for Determination Whether the disclosure of the requested SSI, subject to the proposed conditions, “would not be detrimental to transportation security.” 49 CFR. § 1520.15(e). I. Statutory and Regulatory Background In furtherance of a congressional mandate to “prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out [civil aviation] security .. .ifthe [TSA Administrator] decides that disclosing the information would . . . be detrimental to the security of transportation,” see 49 U.S.C. § 114(s)(1)(c), TSA regulations prescribe the maintenance, safeguarding, and disclosure of SSI. See 49 CER. Part 1520. SSI, by definition, is “information obtained or developed in the conduct of security activities, including research and development, the disclosure of Page 1 wow.tsa.govwhich TSA has determined would . . . be detrimental to the security of transportation.” 49 CER. § 1520.5(a)(3). Access to SSI is strictly limited to those persons with a need to know, as defined in 49 CER. § 1520.11, and to those persons to whom TSA authorizes disclosure under 49 C.F.R. § 1520.15. In general, a person has a need to know specific SSI when he or she requires access to the information: (1) to carry out transportation security activities that are government-approved, -accepted, -funded, -recommended, or -directed, including for purposes of training on, and supervision of, such activities; (2) to provide legal or technical advice to airport operators, air carriers or their employees regarding security- related requirements; or (3) to represent airport operators, air carriers or their employees in judicial or administrative proceedings regarding security-related requirements, 49 CFR. § 1520.11(@). Members of the public, including civil litigants, their attorneys, and their expert witnesses, do not have a regulatory need to know, unless they fall into the categories noted above. 49 C.F.R. §§ 1520.11, 1520.15(a). TSA may authorize a conditional disclosure of specific SSI to a person who does not otherwise have a regulatory need to know “upon written determination by TSA that disclosure of such records or information . .. would not be detrimental to transportation security.” 49 CFR. § 1520.15(e). TSA also grants access to prescribed groups of persons without a regulatory need to know, including members of Congress and persons who require access to specific SSI in order to respond to enforcement actions brought by the agency. 49 CER. § 1520.15(c), (d). IV. Request Specifies and Supporting Bases The Plaintiff Requesters seek access to SSI — both in documents and in deposition testimony — for a “small group of attorneys in the September 11 Actions and their agents,” subject to appropriate background checks and protective orders. See Plaintiffs’ Letter at 2. In support of this request, the Plaintiff Requesters state that this proposal will “protect{] against any legitimate concem that TSA may have with respect to SSI,” and that itis “consistent with the historical practice and procedure employed not only in cases involving SSI, but even in cases involving highly classified documents.” Plaintiffs’ Letter at 3. Similarly, the Defendant Requesters request that TSA permit disclosure to designated counsel for plaintiffs and defendants and to certain fact and expert witnesses of the following documents and categories of documents: : The complete Air Carrier Standard Security Program with all appendices and exhibits, in effect as of September 11, 2001, for operations at Logan International Airport, Dulles Intemational Airport, and Newark International Airport. . All Security Directives issued by the Federal Aviation Administration (“FAA”) for the period January 1, 1996, through September 11, 2001. Page 2 www.tsa.gov. The complete Checkpoint Operations Guide, with exhibits and appendices thereto, in use as of September 11, 2001. . All Information Circulars issued by the FAA for the period January 1, 1996, through September 11, 2001. See American letter at 1-3: Globe letter at 1-2; Argenbright letter at 1-2; U.S. Airways letter at 1; Colgan letter at 1-2.; Huntleigh letter at 1-2. In support, the Defendant Requesters argue that an exception to the regulatory bar on SSIis justified by what they consider to be the exigencies of the litigation, including: (1) the national importance of the September 11 Actions, which involve approximately 100 wrongful death and personal injury actions and numerous property damage claims aggregating to many billions of dollars in alleged losses; (2) the high relative importance of the documents to the fair adjudication and joint defense of the litigation; and (3) the allegation that the documents are no longer in force and “have been superseded since September 11, 2001, by substantially modified requirements.” See American letter at 3; Globe letter at 2-3; Argenbright letter at 2-3; Huntleigh letter at 2-3. v. Analysis Since its inception in the wake of the devastating attacks of September 11, 2001, TSA has placed stringent protections on SSI, as the agency has determined that it is in the best interests of the public to restrict, to the greatest extent possible, the dissemination of any information that could be used to thwart security countermeasures by those intent upon committing criminal acts against civil aviation. Since September 11, 2001, it has been the consistent policy of TSA that the present and continuing threat of terrorist attacks against aviation interests requires that the number of persons having access to SSI be significantly and continually decreased, rather than increased. TSA initially reached this conclusion in significant part because intelligence reports indicated that al-Qa’ida operatives have, through media sources and other publicly available research, obtained access to information conceming existing security vulnerabilities at American airports. Current intelligence information indicates that the terrorist threat against civil transportation targets continues to be a grave and ongoing concem. Reports indicate that al-Qa’ida and other terrorist operatives continue to develop plans for catastrophic attacks against targets in the United States and against United States’ interests overseas. Intelligence information demonstrates that terrorists actively seek to discover security methods and vulnerabilities they can exploit in planning future attacks against civil aviation. This intelligence information is supported by the recent audiotape warnings issued by Usama Bin Ladin and Ayman Al-Zawahiri in January 2006, the deadly attacks carried * Not all defendants requested disclosure of all listed documents. This list encompasses the total documents requested by any and all defendants, The specific requests are identified in the attached letters. Page 3 www.tsa.gov