Federal air marshal Jose Lacson argued he didn't disclose sensitive security information online because, well, he'd made up the stuff. None of the details, he said, were true.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit didn't buy the argument today, upholding the Transportation Security Administration's determination that Lacson had, indeed, revealed sensitive information about staffing and attrition rates.
In the appeals court, Lacson, who was fired in 2011, wasn't challenging his termination. He was fighting the government's argument that the information he disclosed on Officer.com—under the name "INTHEAIRCOP"—was sensitive security information.
"Like many people, Jose Lacson posted things online that he should not have," D.C. Circuit Chief Judge Merrick Garland wrote today. "The problem is that, unlike most people, Lacson was a Federal Air Marshal. And the things he posted did not concern relationships gone awry or parties that he should have avoided."
Lacson, the appeals court wrote, "denied that he knew or even had access to the true numbers, locations, or attrition rates of his colleagues."
The TSA, represented in the D.C. Circuit by Justice Department lawyer Edward Himmelfarb, said in court papers that a false statement could still contain sensitive security information if the disclosure revealed "a concept or general state of affairs that should be protected in the interest of transportation security."
The D.C. Circuit wasn't entirely supportive of the TSA position in the litigation. Garland said the agency "barely" provided sufficient information to the court for its review.
"Although our standard of review is relatively forgiving, in the future TSA would be well-advised to provide more direct evidence of the facts at issue, or affidavits by officials who possess personal knowledge of the facts, or more expansive explanations of the manner in which the officials confirmed those facts," Garland wrote. "If TSA wants to be confident that its orders will survive judicial scrutiny, it should have that kind of evidence in its decisional records.
The appeals court ultimately found three out of the four statements Lacson made were accurate. The substance of each statement was not printed in the court's opinion, and certain paragraphs in the briefs were blacked out to block disclosure of the sensitive security information, or SSI.
Lacson's attorney, Lawrence Berger of Glen Cove, N.Y.'s Mahon & Berger, was not immediately reached for comment this afternoon.
"When interviewed by internal affairs officers of the Agency about these posts, Lacson swore that the posts were 'fictitious,' 'made up,' and not 'based on factual information,'" Berger wrote in a brief. "The record does not contain any direct evidence of the veracity of the posts nor any SSI source for the information contained in the posts."
The Merit Systems Protection Board, where Lacson is challenging his termination, dismissed the legal action there pending the D.C. Circuit's review of whether the online disclosures included sensitive security information.