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9th Circuit rules disclosure by ex-air marshal is "sensitive security info"

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  1. Freedom of Information
A former federal air marshal has been dealt a major blow in his quest to regain his job after being fired for…

A former federal air marshal has been dealt a major blow in his quest to regain his job after being fired for funneling internal information to the media in 2003, the Associated Press reported.

The U.S. Circuit Court of Appeals in San Francisco (9th Cir.) denied the petition of ex-marshal Robert MacLean last Tuesday, ruling that the Department of Homeland Security correctly categorized the leaked memo as "sensitive security information" — a decision that makes his dismissal harder to combat, though not impossible.

In July 2003, MacLean received a text message from his superiors on his government-issued cell phone stating that no federal marshals would be on overnight flights until Aug. 9, in a bid to reduce hotel room costs.  The message was not distinctly labeled as classified or sensitive, but MacLean was fired in 2006 for the "unauthorized disclosure of sensitive security information."

The court agreed with the Department of Homeland Security that the release violated a Transportation Security Administration order which barred the disclosure of "sensitive security information" and denied MacLean’s request to review the lower decision. 

The order designates as "sensitive security information . . . specific details of aviation security measures . . . [which] includes information concerning specific numbers of Federal Air Marshals, deployments or missions, and methods involved in such operations," court documents state.  Information falling under this designation is immediately considered sensitive, with no additional label needed. 

MacLean argued he believed these mission cancellations were detrimental to public safety, and raised his concerns with two higher offices before taking it public, court documents state. Because of this, MacLean was also seeking protection under the Whistleblower Protection Act, which forbids the government from taking action against an employee who discloses information he believes to be a violation of law or a substantial danger to public safety. 

Though the court will not hear MacLean’s appeal, it did note the administrative remedies that remain. 

"MacLean may still contest his termination before the MSPB [Merit Systems Protection Board — the quasi-judicial agency that oversees federal employees] where he may raise the Whistleblower Protection Act and contend that the lack of clarity of the TSA’s 2003 ‘sensitive security information’ regulations is evidence that MacLean disseminated the text message under a good faith belief the information did not qualify as "sensitive," the unanimous court stated.