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Washington, DC 20546-0001
March 11, 2010
Reply 10 ,Attn of Office of the General Counsel
Christopher C. Horner, Esq. Competitive Enterprise Institute 1899 L Street NW
Washington, DC 20036
Re: Appeal of FOIA Nos. 07-172,07-175,08-040
Dear Mr. Homer:
This is in response to your letter dated January 29,2010, appealing two initial determinations under the Freedom of Information Act (FOIA), 5 U.S.c. § 552 et seq., issued on
December 31,2009, by Mark S. Hess, Chief of Public Affairs, Goddard Space Flight Center (GSFC). Your FOIA requests were:
1. On January 28,2008, I you sought copies of all records, documents, internal communications and other relevant covered material created by, provided to andlor sent by NASA Goddard Institute of Space Studies (GISS) relating to the content, importance or propriety of posts or entries by Gavin A. Schmidt on the weblog http://www.realclimate.orgl, alternately styled in correspondence as "RealClimate," "Real Climate," "RC," or "the blog."
2. On August 24, 2007, you sought copies of all records, documents, internal communications and other relevant covered material created by, provided to andlor sent by GISS relating to the August 2007 correction by NASAIGISS of online temperature data for over 1,200 US HCN stations and for their U.S. temperature history.
3. On August 27,2007, you sought copies of all records, documents, internal communications and other relevant covered material created by, provided to andlor sent by NASA Goddard Institute of Space Studies (GISS) relating to e-mail to James Hansen andlor Reto A. Ruedy from a Stephen (Steve) McIntyre regarding error(s) in NASA/GISS online temperature data.
1 As noted in the initial determination. since the e-mail forwarding the initial request was dated January 28,2008, it appears that the letter itself should have been dated January 28, 2008 as opposed to 2007. Consequently, this final determination will also refer to this request as the "January 28,2008 request."
In his initial determination regarding your January 28, 2008 request, Mr. Hess stated "RC e-mail correspondence between Dr. Schmidt and non-NASA external or private individuals or entities are not agency documents and as such, do not constitute documents that are responsive to your FOIA request." He based this conclusion on grounds that Dr. Schmidt did not create or receive those documents in his official capacity; the agency did not come into possession of the e-mails via the conduct of official duties; and NASA had no control over how the RealClimate correspondence was created or maintained by Dr. Schmidt. Moreover, the initial determination noted that "the RC domain is hosted by an external entity that has no relationship with NASA," citing information from Dr. Schmidt that "he maintains his RC e-mail correspondence in his personal capacity on a computer provided not by NASA, but by Columbia University." The initial determination did release RealClimate correspondence between Dr. Schmidt and other NASA officials since Mr. Hess determined this correspondence constituted agency records. Prior to releasing these documents, Mr. Hess redacted a teleconference phone number and participant code pursuant to Exemption (b )(2) of FOIA and personal information about individuals pursuant to Exemption (b)(6) of FOIA.
In his initial determination regarding your August 24 and August 27 requests, Mr. Hess made a partial disclosure stating that "NASA is continuing to obtain and review additional information that appears to be responsive to these requests." Mr. Hess explained that certain information had been redacted pursuant to Exemption 6 of the FOIA, which permits the Government to withhold information about individuals when the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.
Your appeal letter contests the characterization of RealClimate e-mail correspondence between Dr. Schmidt and non-NASA external or private individual or entities as personal records not subject to FOIA. You do not appeal the redactions made to the documents
Mr. Hess released. The letter further states that the applicable standard of review requires resolution of all doubts in favor of disclosure, referencing the legislative history of the FOIA, case law, and the recent Presidential Directive on FOIA. You assert that the initial determination misapplied relevant case law. Both the initial determination and your appeal cite the two-part test for determining whether a document is an agency record as articulated in U.S. Department of Justice [DOJ] v. Tax Analysts, 492 U.S. 136 (1989). The initial determination and your appeal also both recognize the four-part test in Burka v. HHS, 87 F.3d 508,515 (D.D.C. 1996) regarding the second prong of "control" of documents.
Your appeal asserts, however, that "control" is based upon "a totality of the circumstances test" rather than a mechanical application of the four-factor test in Burka. Consumer Federation of America v. Department of Agriculture, 455 F.3d 283,287-288 (D.C. Cir. 2006). It then sets forth your analysis of the "control" prong, stating Dr. Schmidt used Real Climate blog to execute his agency functions, responsibilities and duties; to wit
• NASA uses the Real Climate blog as a mechanism to convey news.
• There are direct links to NASA from the Real Climate blog to Dr. Schmidt's biography and to the NASA webpage.
• GISS scientists purportedly use the Real Climate web log as part of their NASA work to stay current in their fields and to communicate and collaborate with the scientific community.
Your appeal letter also asserts that "[t]he "totality of the facts and circumstances suggest that the agency did not undertake a credible or reasonable search" for records pursuant to your August 24 and August 27, 2007, requests. You note that the materials produced on December 31,2009 indicate the existence of other responsive documents. As one such indication, your appeal cites an e-mail dated August 10, 2007 in which Dr. James Hansen wrote: "I am being besieged by these [citizen complaints and comments]."
Your appeal has been reviewed and processed pursuant to applicable statutes and regulations, specifically 14 CFR Part 1206. This process involved consideration of your original request, the initial determination, the assertions made in your appeal, the records at issue and their location, FOIA case law, and consultations with NASA personnel responsible for the documents. Based upon this review, I will affirm the initial determination in part and reverse in part.
FOIA case law places the burden on the agency to demonstrate the materials sought are not "agency records." DOJ v. Tax Analysts at 144 (footnote 3). There is no dispute as to this burden when the documents "were created by an agency employee and located within the agency." Consumer Federation, citing Gallant v. National Labor Relations Board, 26 F. 3d 168 (D.C. Cir, 1994). No one test exists to distinguish personal records from agency records. The initial determination and your appeal recognize the two-part test articulated in DO] v. Tax Analysts, at 144-145. First, an agency "must either create or obtain the requested materials" and second, the agency "must be in control of the requested materials" in the sense that they "have come into the agency's possession in the legitimate conduct of its official duties." Subsequent case law focuses primarily on the issue of agency control of the document. Burka identified four factors relevant to determining whether an agency's control of a document was sufficient to render it an "agency record": (1) the intent of the document's creator to retain or relinquish control over records (i.e., not to release them outside the U.S. Government); (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency's record system or files. Burka at 515.
Other case law applies a "totality of circumstances test" or a "use" test to determine whether a document is an "agency record" subject to FOIA. Consumer Federation; Bureau of National Affairs, Inc. [BNA] v. United States Department of Justice, 742 F2d 1484, (D.C. Cir. 1983); Grand Central Partnership, Inc. v. Cuomo, 166 F3d 473, (Second Cir. 1999). The court in Consumer Federation resorted to a "use" test when the tests regarding creation, possession and control from Burka were not dispositive as to whether the requested material constituted an "agency record." The central inquiry remains "whether, when an employee creates a document, that creation can be attributed to the agency under the FOIA." Washington Post v. United States Department of State, 623 F. Supp. 607 (D.D.C. 1986) citing BNA at 1492. Any test to determine whether a document is an "agency record," however, is incapable of precise
definition and may well change as relevant factors assume varying importance from case to case. Crooker v. United States Parole Commission, 730 F.2d 1, 5 (l st CiL 1984).
Courts do not look to the intent of the creator of the document because a "mens rea requirement is nowhere to be found in [FOIAr and "discerning the intent of the drafter of the document may often prove an elusive endeavor." Consumer Federation, citing Tax Analysts at 147. But mere possession of the records by an agency official is not sufficient for a document to qualify as an agency record; some nexus between the agency's work and the records must be established. BNA, citing Illinois Institute for Continuing Legal Education v. United States Department of Labor, 545 F. Supp. 1229 (N.D. IlL 1982). However, the nature or location of an e-mail server is not determinative of whether the records it contains are agency records. Democratic National Committee v. United States Department of Justice, 539 F Supp 363,367 (D.D.c' 2008).
Accordingly, I will reverse the conclusion in the initial determination that "RC e-mail correspondence between Dr. Schmidt and non-NASA external or private individuals or entities are not agency documents" pending further review of these records consistent with the legal standards cited above. I will direct GSFC to conduct a new search for all electronic mail or other correspondence sent or received by Dr. Gavin Schmidt at GISS/GSFC relating to the content, importance or propriety of posts or entries on the weblog
http://www.realclimate.orgi. GSFC's search will encompass all servers, databases, computers, etc., wherever located, which may reasonably be expected to contain electronic records Dr. Schmidt either created or received in the conduct of activities within scope of his employment at NASA. It shall include all email accounts Dr. Schmidt uses to conduct such activities, including but not limited to those maintained in the following domains:
@nasa.gov; @giss.nasa.gov; @columbia.edu; and @realclimate.org. GSFC will review the records located as a result of this search for release under the FOIA and issue a new initial determination expeditiously. Depending upon the number of records located and consequent time period needed for review, an initial determination will be issued as quickly as possible but no later than May 14,2010.
Concerning your appeal of the initial determination with respect to your August 24 and 27, 2007, requests, I concur in Mr. Hess' finding no evidence suggesting the records search was incomplete. NASA regulations require that an appeal letter must "to the extent possible, state the reasons why the requester believes the adverse initial determination should be reserved." See: 14 CFR §1206.60S. Your appeal speculates as to the scope of the search without indicating why the search was not reasonably adequate. Moreover, your assertions seem premature: the initial determination is styled as a "partial response" and states "NASA is continuing to obtain and review additional information that appears to be responsive to the requests" dated August 24 and August 27,2007.
Thus, for the reasons explained above, I affirm the initial determination with respect to the August 24 and 27, 2007, requests and reverse with respect to the January 28, 2008, request. By copy of this letter I am directing GSFC to conduct a new search, consistent with the legal standards set forth in this final determination, for records sought in the latter request.
This is a final determination and is subject to judicial review under the provisions of 5 U.S.C § 552(a)(4), a copy of which is enclosed.
Thomas S. Luedtke Associate Administrator
For Institutions and Management
GSFC 1Mr. Hess