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Competitive Enter. Inst. v. NASA, No. 10-883, 2013 WL 5825584 (D.D.C. October 30, 2013) (Rothstein, J.)
October 30th, 2013 Posted by

Re: Request for records concerning NASA’s revision of certain global temperature data sets

Disposition: Granting in part and denying in part defendant’s motion for summary judgment

  • Litigation Considerations, Exhaustion of Administrative Remedies:  The court rejects defendant’s argument that plaintiff, “appealed only the agency’s ‘partial [interim] response;’” and, therefore, that plaintiff, “failed to exhaust available administrative remedies” as to the agency’s completed response.  The court finds that, “the purposes of the exhaustion requirement have been met.”  Specifically, “in the administrative appeal, [defendant] had the ‘opportunity to consider the very issues’ that [plaintiff] raises in this action; namely, the adequacy of the search and the adequacy of the production.”  The court suggests that, “[i]f the agency wanted an opportunity to review its response further, it should have declined to accept and process [plaintiff's] appeal” of the interim response.
  • Litigation Considerations, Adequacy of Search:  First, “the court will direct [defendant] to produce responsive documents in [one] directory or explain why they are exempt from disclosure,” because “the fact that the directory is only intelligible to a computer does not remove the directory from the category of ‘agency records.’”  However, the court also finds that, “[defendant] has shown that [another] subdirectory . . . does not hold responsive information.”  Second, the court determines that, “[defendant's] search was reasonable even though it did not search [a personal .edu] email domain, because emails located only on that domain are personal materials.”  The court determines that by “[a]pplying [the] four ‘control’ factors, . . . [the personal] emails located only on the [personal .edu] domain are not in the agency’s control.”  However, using this same test, the court found that, “[other] emails mentioning [the subject of the request] (1) that were sent to or from agency personnel, or are in [the individual's] NASA email account, and (2) that relate to agency business, are agency records.”  Third, the court finds that, “‘all files likely to contain responsive materials (if such records exist) were searched.’”  Fourth, the court finds that, “[plaintiff's] speculation that there must be records of internal discussions does not raise a sufficient issue of fact as to whether the agency conducted a reasonable search.”  Fifth, the court finds that, “the agency’s declarations adequately describe who performed the searches, explaining that the searches were conducted by [defendant] employees who worked on the issues.”  Sixth, the court finds that, “[d]elays in responding to FOIA requests are generally not sufficient to show agency bad faith.”  Seventh, the court finds that the declarant, “makes clear that he has sufficient personal knowledge to attest to what constitutes an agency matter because his duties include supervising [defendant] employees and managing [defendant's] projects and research.”  Eighth, the court reject’s plaintiff’s argument that defendant, “should have searched other record systems” because the court finds that, “the issue is whether [defendant] adequately searched for emails in existence, not whether it searched all emails that ever existed.”  Ninth, the court rejects plaintiff’s argument that defendant’s search was inadequate because the search, “failed to produce a document known to exist,” because the court finds that, “‘a search is not unreasonable simply because it fails to produce all relevant material.’”
  • Litigation Considerations, Discovery:  The court finds that, “[plaintiff's] request for discovery is not justified here because [plaintiff] has not provided any evidence that [defendant] acted in bad faith and the outstanding issues of fact do not suggest bad faith on the part of [defendant].”
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