Case 1:10-cv-00883-RWR Document 22 Filed 12/02/10 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________
)
COMPETITIVE ENTERPRISE )
INSTITUTE, )
)
Plaintiff, )
) Civil Action
v. ) No. 10-0883 (RWR)
)
NATIONAL AERONAUTICS )
AND SPACE ADMINISTRATION, )
)
Defendant. )
____________________________________)

REPLY MEMORANDUM IN SUPPORT OF

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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INTRODUCTION

Plaintiff’s opposition brief (“Pl.’s Opp’n”) in this FOIA case tries to employ innuendo

and semantics to paint a picture of a government agency and its employees conspiring to hide

information about the agency’s official positions about “the global warming narrative.” See Pl.’s

Opp’n at 1-2, 25-26. Plaintiff insists that NASA (“Agency”) is using a single civil servant to

advance this narrative through a private weblog in which he participates. Yet Plaintiff has

produced no evidence tending in any way to dispute a factual record that clearly demonstrates

that the reality is, simply, that an individual who happens to be a federal employee has, in his

personal capacity and with express permission of the employing agency, exercised his freedom

of speech by participating in an open, private forum discussing issues and opinions about which

Plaintiff disagrees. But Plaintiff’s theorizing is of no import to the Court in deciding this case.

Rather, critical to the Court’s review here is that Plaintiff has failed to produce any evidence

disputing the Agency’s submissions – Defendant’s Memorandum in Support of Defendant’s

Motion for Summary Judgment (“Def.’s’ Br.”), the Declaration of Larry D. Travis (“Travis

Decl.”), and the Supplemental Declaration of Larry D. Travis (“Supp. Decl.”) attached hereto –

which clearly demonstrate that the Agency is entitled to summary judgment because it has fully

complied with its obligations under the FOIA, and its determination that certain documents do

not constitute “agency records” was reasonable under the governing law. 1

ARGUMENT

I. The Agency’s Response to Requests 07-172 and 07-175 Complied With the FOIA.

As the Agency demonstrated in Defendant’s Brief and the Travis Declaration in support
1
With its opposition brief, Plaintiff filed Plaintiff’s Local Civil Rule 7(h) Counterstatement,
which contains a section entitled “Plaintiff’s Statement of Additional Material Facts in Dispute.”
See Dkt. 20-1. Even if, as a non-moving party, Plaintiff were permitted to adduce its own
separate statement of material facts, the contents of Plaintiff’s statement are not material and
consist of legal conclusions and, therefore, cannot defeat summary judgment for the Agency.
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thereof, the Agency conducted an adequate search for records responsive to requests 07-172 and

07-175. See Def.’s’ Br. at 12-17. Because Plaintiff did not exhaust available administrative

remedies with respect to any challenge to the adequacy of the Agency’s search, such claims are

not properly before the court. Even if they were, Plaintiff offers no evidence to dispute the

Agency’s submissions documenting that its search and response complied with its obligations

under the FOIA. The Agency is accordingly entitled to summary judgment on Plaintiff’s claims

related to requests 07-172 and 07-175.

A. Speculation About the Existence of Other Responsive Records is Not Sufficient to

Defeat Summary Judgment.

In support of its argument that the Agency’s search was not adequate, Plaintiff offers

nothing more than unsupported allegations to rebut the Agency’s submissions documenting the

reasonableness and adequacy of its search. Specifically, Plaintiff’s challenge to the adequacy of

the search for records responsive to requests 07-172 and 07-175 relies on Plaintiff’s speculation

that other documents not disclosed must exist. This challenge fails for two reasons.

First, Plaintiff proffers no evidence positively indicating the existence of other

documents. Contra Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)

(“[W]hat causes us to conclude that the search was inadequate arises from the fact that the record

itself reveals positive indications of overlooked materials.”) (internal quotations and citations

omitted). Rather, Plaintiff offers only its own unsupported assertions that the search should have

produced “large amounts of correspondence from the interested public,” see Pl.’s Opp’n at 15, as

well as “records or deliberations inside NASA about [Plaintiff’s] request,” id. at 16. However,

the Travis Declaration documents why Plaintiff’s assertions are not only unsupported, but also

unsupportable. As Plaintiff notes, see Pl.’s Opp’n at 15, Dr. Jim Hansen, the director of GISS,

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stated he was “being besieged by emails and calls” and “besieged by rants,” see id. (quoting Exs.

49 and 65 to Ex. F to Compl.). But as these quotations themselves show, the “correspondence”

that the Agency received included instances of non-written, oral communication (telephone calls)

that would not have been located in, or produced as a result of, a search for records. And, as

Plaintiff admits, in response to requests 07-172 and 07-175, “emails from reporters or inquiring

members of the public were produced” by the Agency. Id. As Plaintiff offers no evidence that

the Agency’s production excluded any emails, Plaintiff’s assumption that the Agency failed to

produce responsive records or that the Agency’s search was inadequate must fail.

Plaintiff also receives no support for its argument from the cases on which it relies.

Plaintiff’s unsubstantiated speculation that there should have been a greater volume of records

produced because the circumstances here were of a type that “usually generates large amounts of

correspondence,” without more, does not rise to the level of “positive indications of overlooked

material” that suffice to rebut the presumption of good faith afforded agency declarations. Id. at

14, 15. For example, in Friends of Blackwater v. U.S. Department of Interior, 391 F. Supp. 2d

115, 120 (D.D.C. 2005), the court found the existence of two documents produced by one agency

component made it “inconceivable” that drafts or correspondence relating to those documents

did not also exist within another agency component that had not searched for such related

records. Similarly, in Kean, 480 F. Supp. 2d at 158, the fact that a document produced was an

amended version of an earlier document led the court to declare the search inadequate because it

found it was “very likely” that drafts, correspondence, or underlying data related to the revision

process existed, although none were produced. The D.C. Circuit reversed the lower court’s grant

of summary judgment where the agency admitted it did not search a specific component despite

the existence in the record of a letter from the agency identifying that component as “a likely

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place where the requested documents might be located.” See Valencia-Lucena, 180 F.3d at 327.

Finally, in Boyd v. U.S. Marshal Service, Civ. No. 99-2712, 2002 U.S. Dist. LEXIS 27734 at *4

(D.D.C. 2002), the plaintiff was able to name a specific document directly related to plaintiff’s

request that was not produced. Plaintiff here, in contrast, has not pointed to documents that

make the absence of others “inconceivable,” or the existence of other, unproduced documents

“very likely,” and cannot point to a “likely place” where such theoretical unproduced documents

would be found, or to a specific unproduced document. At bottom, Plaintiff’s argument rests on

the naked assumption that the volume of produced documents should have been greater, which

cannot suffice to preclude granting summary judgment to the Agency here.

Plaintiff also challenges the adequacy of the search by claiming that the Agency did not

produce any “records or deliberations inside NASA about CEI’s request,” and pointing to

statements in the Travis Declaration that “suggest[] that at least some correspondence must have

been generated that was responsive to this request.” See Pl.’s Opp’n at 16. But Plaintiff ignores

evidence in the Declaration that makes plain why no such “[i]nternal [d]eliberations,” see id.,

were produced. As Dr. Travis explained, request 07-172 sought “internal communications . . .

citing or addressing [Plaintiff’s] FOI Request [07-175],” but only those “between August 24 and

August 27, 2007, inclusive.” See Compl., Ex. B, at unnumbered page 2 (emphasis original).

However, request 07-175 was not received by GSFC’s FOIA office until September 20, 2007.

Therefore, it is not simply reasonable but expected that the Agency would not have any “internal

deliberations,” “records,” or “correspondence” about request 07-175 dated between August 24

and August 27, 2007 – a time period that entirely preceded GSFC’s processing of that request. 2

2
Moreover, the request indicated that Plaintiff sought communication to and from employees or
contractors at GISS, which, as a subcomponent of GSFC, would not have been notified of
Request 07-175 until at least the date on which that request was received by the GSFC FOIA
office for processing. Although GSFC’s FOIA office, in its discretion, extended the temporal
4
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Simply put, GISS could not have communicated about a request of which it was not aware. As

such, Plaintiff’s claim that the search was not reasonably adequate must fail.

But even if Plaintiff could identify actual responsive documents that were not produced,

which it cannot, that showing would not defeat summary judgment for the Agency, as the inquiry

for the Court in evaluating the reasonableness of the search is the adequacy of the process, not

the results. See Hornbostel v. Dep’t of Interior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003) (“[T]he

focus of the adequacy inquiry is not on the results.”); id. at 27 (“The fact that there may possibly

be additional documents relating to [the subject of the request] is not relevant to the question of

whether defendant conducted an adequate search for the documents.”) (emphasis original).

B. Plaintiff Cannot Demonstrate That the Agency’s Search Was Not Reasonably
Calculated to Identify All Records Responsive to Requests 07-172 and 07-175.

Plaintiff asserts two bases for challenging the process by which the Agency searched for

responsive records: (1) the Agency should have searched Dr. Schmidt’s @columbia.edu email

account for records responsive to requests 07-172 and 07-175, see Pl.’s Opp’n at 13; and (2) the

Agency should not have limited its search to emails only, see Pl.’s Opp’n at 14.

With respect to the first argument, the record contains no evidence suggesting that Dr.

Schmidt’s @columbia.edu email account was not searched. As Plaintiff admits, the Agency

produced emails sent to or from Dr. Schmidt’s @columbia.edu account in response to the

requests 07-172 and 07-175. See, e.g., Ex. F to Compl., at Ex. 30 (document Bates number

NASA00149-50 produced in response to request 07-175). As Plaintiff has pointed to nothing

reach of its search to the dates on which GSFC’s FOIA office received the requests rather than
the dates given by Plaintiff in its request, even with these extended cut-off dates, the Agency
could not have created any “internal deliberations,” “records,” or “correspondence” about
request 07-175 between the date it received request 07-175 and the date it received 07-172
because GSFC’s FOIA office received request 07172 (on September 12, 2007) before it received
request 07-175 (on September 20, 2007). Plaintiff does not – and could not conceivably –
explain how the Agency could have created internal deliberations or other records about a
particular FOIA request before it even received that FOIA request.
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akin to “substantial evidence,” see Pl.’s Opp’n at 13, to counter this showing, its argument fails.

Plaintiff’s second argument also fails because, as the Travis Declaration and

Supplemental Declaration demonstrate, the Agency reasonably concluded that all written

material relevant to the subjects of the requests was in email form. See Travis Decl. at ¶ 27b;

Supp. Decl. at 8. Because the Agency officials directly involved in the activities that were the

subjects of Plaintiff’s requests know and attest to the fact that there were no records other than

emails responsive to Plaintiff’s requests, the search was reasonable even though it was limited to

emails. Plaintiff cannot contradict this showing and its challenge to the search therefore fails.

C. Plaintiff Failed to Exhaust Available Administrative Remedies With Respect to

the Adequacy of the Agency’s Search for Records Responsive to Requests 07-172
and 07-175.

Plaintiff’s challenge to the Agency’s search also fails for failure to exhaust available

administrative remedies. Despite Plaintiff’s claim that its “attack” on the adequacy of the search

was “express,” see Pl. Opp’n at 22, the record demonstrates it was ambiguous, at best: Plaintiff

buried its only assertion about the adequacy of the search in a single sentence in its 26-page

administrative appeal, see Compl., Ex. F at 25 (“The totality of the facts and circumstances

suggest that the agency did not undertake a credible or reasonable search.”), and, moreover, that

sentence appeared in the 2-page section of the appeal that focused on asking the Agency to its

complete production of records responsive to requests 07-172 and 07-175. Compare Pl. Opp’n

at 22 with Compl., Ex. F at 24-26 (“NASA is Required to Produce All Responsive Information to

Requests 10-F-2007-172 & 175 Immediately”). A complete reading of that section of the appeal

suggests that Plaintiff’s lone sentence about the adequacy of the search was made to highlight

Plaintiff’s dissatisfaction with the incomplete response it had received thus far. Id. Nonetheless,

the Agency, in its March 11, 2010 decision on the appeal, responded to this ambiguous sentence.

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See Compl., Ex. G at 4. There, the Agency informed Plaintiff that any claim about the search’s

adequacy was deficient in two ways: first, in violation of Agency FOIA regulations, the appeal

did not “state the reasons” “why [Plaintiff believed] the search was not reasonably adequate,” see

id.; and second, Plaintiff’s “assertions [about the search’s adequacy] seem premature” because

the initial determination from which Plaintiff sought to appeal was “styled as a ‘partial response’

and state[d] ‘NASA is continuing to obtain and review additional information that appears to be

responsive to the requests,’” see id. As such Plaintiff was on notice that an appeal challenging

the adequacy of the search for records responsive to requests 07-172 and 07-175 would not be

ripe for consideration until the Agency completed its production and unless the Plaintiff stated

the reasons underlying any assertion that the search was not adequate. Despite this notification

to Plaintiff that, to raise a claim about the search’s adequacy, Plaintiff had to wait until the

Agency completed its response, Plaintiff never did so. 3

Permitting judicial review of an unexhausted claim such as this would subvert Congress’s

intention in providing an administrative appeal scheme within the FOIA. As the D.C. Circuit

explained in Oglesby v. Department of the Army, 920 F.2d 57 (D.C. Cir. 1990), “[t]he statutory

scheme in the FOIA specifically provides for an administrative appeal process” following an

agency’s response to a FOIA request “so that the agency has an opportunity to exercise its

discretion and expertise on the matter and to make a factual record to support its decision . . .
3
The fact that the Agency issued its March 11, 2010 decision on Plaintiff’s appeal subsequent to
the date on which the Agency completed its production, February 23, 2010, does not compel the
conclusion that Plaintiff exhausted its administrative remedies, because the Plaintiff’s appeal did
not address the February 23, 2010 production which “complete[d] the [Agency’s] response,” see
Travis Decl., Ex. 4 at 1, and thereby ripened any claim Plaintiff might have had about the
search’s adequacy. Moreover, in the Agency’s letter accompanying its February 23, 2010
production, the Agency again alerted Plaintiff to the availability of administrative appeal. See id.
at 3 (“You may appeal this initial determination to the NASA Administrator.”). Significantly, on
March 11, 2010, when the Agency issued its appeal decision indicating that any claim
concerning the adequacy of the search was premature, Plaintiff’s time to appeal the February 23,
2010 “Final Response” had not yet expired.
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[and to] allow[] the top managers of an agency to correct mistakes made at lower levels and

thereby obviate[] unnecessary judicial review.” 920 F.2d at 61 (citing McKart v. United States,

395 U.S. 185, 194 (1969)). Plaintiff here asks the court to disregard the statutory scheme, deny

effect to the Congressional intent it embodies, and deny an agency the opportunity to exercise its

expertise, thereby promoting judicial inefficiency. Despite being notified twice of its obligation

to raise any claim regarding the adequacy of the search for records responsive to requests 07-172

and 07-175 following completed production of records responsive to those requests, and having

had ample time to do so, Plaintiff did not do so. Having failed to exhaust the administrative

remedies available to it, Plaintiff is not entitled to bring here a claim challenging the adequacy of

the search for records responsive to requests 07-172 and 07-175, and this court lacks jurisdiction

to hear such claims. Therefore, the Agency is entitled to judgment on these claims.

D. The Agency Released All Records Responsive to Requests 07-172 and 07-175.

Contrary to Plaintiff’s contention, the Agency did not “admit it is withholding documents

responsive to the 2007 requests,” see Pl.’s Opp’n at 8-12. Plaintiff argues that the Agency has

not complied with FOIA because it did not produce some of the material located within the

“Steve” directory or the “alternate_cleaning” subdirectory, even though the Agency withheld

such material because it reasonably determined that it was not responsive to Plaintiff’s requests.

However, whether an agency’s search and response to a particular FOIA request is reasonable

depends on the request itself. See, e.g., Campbell v. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir.

1998) (“FOIA demands only a reasonable search tailored to the nature of a particular request.”).

In evaluating whether any material in the “Steve” directory or “alternate_cleaning”

subdirectory was responsive to Plaintiff’s request, the Agency looked to the request itself.

Request 07-175 sought

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copies of all records, documents, internal communications and other

relevant covered material created by, provided to and/or sent by
NASA/Goddard Institute for Space Studies (GISS), citing, referencing,
discussing or otherwise related to the August 2007 correction by
NASA/GISS of online temperature data for over 1200 US HCN stations and
for their U.S. temperature history, as described herein . . . .

See Ex. A to Compl. Request 07-172 sought

copies of all records, documents, internal communications and other

relevant covered material created by, provided to and/or sent by
NASA/Goddard Institute for Space Studies (GISS), citing, referencing,
discussing or otherwise relating to the emails sent to James Hansen and/or
Reto A. Ruedy from a Stephen (Steve) McIntyre – possibly but not
necessarily using the address stephen.mcintyre@utoronto.ca – beginning on
or about August 3, 2007 specifically mail calling their attention to an
error(s) in NASA/GISS online temperature data, as described herein . . . .

See Ex. B to Compl. Despite the fact that Plaintiff’s requests were quite detailed in their

descriptions of what was sought, Plaintiff now suggests that the Agency, by relying on the plain

language of the requests, interpreted them too narrowly. Specifically, Plaintiff makes two

arguments: (1) the words “other relevant . . . material” should have been understood to include

underlying “data files and parameter lists that were used to create graphs and charts,” see Pl,’s

Opp’n at 8-11; and (2) the words “otherwise related to” should be interpreted to encompass

information going beyond any reasonable interpretation of its request, see id. at 11-12.

First, given the detailed description of the material sought by the requests, the Agency

acted reasonably by excluding “data files and parameter lists” which are “only intelligible if read

by a computer program or a commercial visualization tool.” See Travis Decl. at ¶ 28a. Plaintiff,

a sophisticated think tank “involved in the national debate over climate policy,” see Compl. at ¶

2, was specific in its use of terms when explaining the focus and dimensions of its requests, and

yet failed to request the underlying data, which is only machine readable, in any event. 4 Thus, it

4
The first time Plaintiff indicated an interest in the data was in its Opposition. Plaintiff may
not amend his request at this time; if Plaintiff has discovered that information may exist that it
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is reasonable to assume that had Plaintiff wanted the underlying data, it would have sought that

material specifically by using terms such as “data files,” “programs,” or “computer code” in its

request. As it did not, the Agency was reasonable to consider such material unresponsive. Were

the court to apply the standard that Plaintiff proposes, there would be no end to the search

obligations imposed on an agency responding to any request using the words “other material.”

Similarly, Plaintiff’s suggestion that any change to the “alternate_cleaning” subdirectory

is “otherwise related to” the subject matter of Plaintiff’s request, that is, the data correction that

resulted from Steve McIntyre’s August 3, 2007 email (“McIntyre email”), requires applying an

overly broad construction to the words “related to.” On its face, request 07-175 sought records

about the specific correction to data that occurred as a direct result of the McIntyre email. See

Ex. A to Compl. As Plaintiff acknowledges in its request, that email, and the subsequent data

corrections, pertained to “temperature data for over 1200 US HCN stations.” See id. at 1. As the

Travis Declaration provides, the information in the “alternate_cleaning” subdirectory does not

relate to the “over 1200 US HCN stations” but rather relates to data collected by two stations not

included within the US HCN stations. See Travis Decl. at ¶ 28c. But Plaintiff seems to argue

that any material concerning any correction to any data following the McIntyre email, however

removed or tangential, falls within its request as “otherwise related to” that email. To read the

request so broadly, however, renders it impossibly vague, requiring the Agency to guess the

parameters of a request (even when the request itself already appears to contain clear parameters)

and possibly to conduct overly broad searches for records requesters do not seek. FOIA does not

impose such obligations on an agency. Thus, the Agency is entitled to summary judgment.

II. The Agency’s Response to Request 08-040 Complied With the FOIA.

As the Agency demonstrated in Defendant’s Brief and Travis Declaration, Dr. Schmidt’s

wishes to obtain, its recourse is to submit a new FOIA request seeking that information.
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emails are not “agency records” under the governing law. See Def.’s’ Br. at 20-29. But, as the

Agency further demonstrated, it took it upon itself to identify and produce non-Agency emails

sent or received by Dr. Schmidt addressing the subject of request 08-040, which moots Plaintiff’s

claim in any event. Id. at 18, 29-30. Plaintiff offers no evidence to dispute these submissions;

thus, the Agency is entitled to summary judgment on Plaintiff’s claims related to request 08-040.

A. The Agency Has Properly Determined That Dr. Schmidt’s Emails Are Not
Agency Records.

As explained in Defendant’s Brief, a document must meet two criteria to constitute an

“agency record” subject to the FOIA: (1) it must have been created or obtained by the agency;

and (2) it must be in the agency’s control. See id. at 6, 21 (citing U.S. Dep’t of Justice v. Tax

Analysts, 492 U.S. 136, 144-46 (1989) (“Tax Analysts III”). In Defendant’s Brief, the Agency

demonstrated that Dr. Schmidt’s emails were neither created nor obtained by the Agency, see id.

at 21-24, and were not in its control, see id. at 24-29. Because Plaintiff offers no legal basis to

dispute the Agency’s claim that Dr. Schmidt’s emails are not “agency records” under the FOIA –

and, in some cases, fails to dispute the Agency’s argument at all – summary judgment should be

awarded to the Agency on the basis that Dr. Schmidt’s emails are not “agency records.”

1. The Emails Plaintiff Seeks Are Not Within the Agency’s Control.

Critical to the adjudication of this issue is the requirement that, to be “agency records”

under FOIA, “the agency must be in control of the requested materials at the time the FOIA

request is made.” Tax Analysts III, 492 U.S. at 145. In Tax Analysis v. U.S. Department of

Justice, 845 F.2d 1060 (D.C. Cir. 1988) (“Tax Analysts II”), the D.C. Circuit developed a four-

factor test to determine whether the criteria of “control” is met: (1) the intention of the material’s

creator to retain or relinquish control over it (the “intent” factor); (2) the agency’s ability to use

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and dispose of the material (the “use/disposal” factor); (3) the extent of agency personnel’s use

or reliance upon the material (the “use/reliance” factor); and (4) the integration of the material

into the agency’s files or records system (the “integration” factor). See 845 F.2d at 1069 (cited

in Def.’s’ Br. at 24) As the Agency demonstrated in Defendant’s Brief at 24-29, and the Travis

Declaration at ¶¶ 10-22, 32, 34-36, all four of the Tax Analysts II factors clearly support finding

that the emails are not “agency records” under FOIA. Plaintiff does not seriously dispute this

analysis. See Pl.’s Opp’n at 32-33.

Dr. Schmidt’s clear intent was not to relinquish control over the emails. See Def.’s’ Br.

at 26-2; Travis Decl. at ¶¶ 32, 34-35. Plaintiff’s contention that “Dr Schmidt’s intent is clearly

not relevant to the agency records inquiry,” see Pl.’s Opp’n at 32, runs directly contrary to

governing law. Although, as Plaintiff points out, the Supreme Court in Tax Analysts III, 492

U.S. at 147-48, stated that a “mens rea requirement is nowhere to be found in the Act,” the Court

did not, as Plaintiff suggests at Pl.’s Opp’n at 32, “hold” that intent is irrelevant to the inquiry.

Rather, the Court simply cautioned that “discerning the intent of the drafters of a document may

often prove an elusive endeavor,” see 492 U.S. at 147-48 (emphasis added), a caveat that this

District and Circuit have applied to hold that, when intent cannot be discerned easily, a court

should look to the actual use of a document to determine its classification. See, e.g., Citizens for

Responsibility & Ethics in Wash. v. Dep’t of Homeland Sec., 527 F. Supp. 2d 76, 97 (D.D.C.

2007) (“CREW v. DHS”) (“Both the Supreme Court and the Court of Appeals have explained

that an agency’s actual use of a document is often more probative than the agency’s subjective

intent.”). 5 But, as the Agency showed in Defendant’s Brief and the Travis Declaration,

discerning intent here is not hard – a point Plaintiff does not dispute – and supports finding that
5
And as the Agency does not “actually use” the emails, clearly demonstrating that they are not
“agency records,” the inquiry Plaintiff would like the court to undertake still compels judgment
for the Agency. See Def.’s Br. at 27-28; Travis Decl. at ¶¶ 10a, 12, 18, 20; Ex. 1 to Travis Decl.
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Dr. Schmidt’s emails are not “agency records.” See Op. Br. at 26-2; Travis Decl. at ¶¶ 32, 34-35.

With respect to a second Tax Analysts II factor – the “integration” factor – it is similarly

clear that the Agency has not integrated Dr. Schmidt’s emails into the Agency’s record system or

files, see Op. Br. at 28-29; Travis Decl. at ¶¶ 12b, 34-36; Ex. C to Travis Decl., and Plaintiff’s

assertion that the court should ignore this factor is contrary to governing law. In its most recent

decision on the subject, Judicial Watch, Inc. v. Federal Housing Financing Agency, Civ. No. 09-

1537, 2010 WL 3833821 at *5-6 (D.D.C. Sept. 30, 2010) (“Judicial Watch v. FHFA”), this court

found the “integration” factor to be “of particular importance,” and cited the fact that “the degree

of integration by [the defendant agency] is non-existent” as support for its conclusion that the

records were not “agency records” under the FOIA. See also, id. at *5 (reinforcing importance

of “integration” factor to inquiry by rejecting plaintiff’s contention that “possession” equates

with “integration” because such a conflation would render the “integration” factor “irrelevant”).

In addition to clearly demonstrating that the “intent” and “integration” factors support

finding Dr. Schmidt’s emails are not “agency records,” the Agency further demonstrated that the

other two Tax Analysts II factors – “use/disposal” and “use/reliance” – similarly favor so finding.

See Def.’s Br. at 27-28; Travis Decl. at ¶¶ 10a, 12, 18, 20; Ex. 1 to Travis Decl. Yet Plaintiff

does not even address the Agency’s analysis of these two remaining factors. Based on Plaintiff’s

failure to contest the Agency’s analysis, alone, the court should deem Plaintiff to have conceded

those arguments. See, e.g., U.S. v. Real Prop. Identified as: Parcel 03179-005R, 287 F. Supp. 2d

45, 61 (D.D.C. 2003) (citing cases supporting proposition that, under local rules, court should

treat arguments raised by moving party and not addressed by opposing party as conceded). 6

Rather than addressing the four factors of Tax Analysts II, which governs this case,
6
Moreover, Plaintiff’s failure to address these factors going to the Agency’s actual use of a
document is fatal to his case, because, as this court has held, “use . . . is determinative.” see, e.g.,
Judicial Watch v. FHFA, 2010 WL 3833821 at *6. Accord CREW v. DHS 527 F. Supp. 2d at 97.
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Plaintiff attempts to side step this analysis and focus, instead, on factors of its own choosing. See

Pl.’s Opp’n at 24-31 (asking court to focus on whether government time or resources were used

in creation of emails as dispositive of “agency records” question). In its reliance on Consumer

Federation of America v. Department of Agriculture, 455 F.3d 283 (D.C. Cir. 2006), Plaintiff

seems to suggest that the D.C. Circuit’s description of its “test to distinguish ‘agency records’

from ‘personal records’” as a “‘totality of the circumstances’ test,” stands for the proposition that

it has abandoned Tax Analysts II in favor of a new analytic standard. See Pl.’s Opp’n at 23-24.

This is incorrect. See Consumer Fed’n, 455 F.3d at 287 and 287 n.7 (citing Bureau of Nat’l

Affairs v. Dep’t of Justice, 742 F.2d 1484, 1490 (D.C. Cir. 1984) (on which Tax Analysts II relies

to arrive at the four factors), Burka v. Dep’t of Health & Human Servs., 87 F.3d 508, 515 (D.C.

Cir. 1996) (relying on Tax Analysts II), and Tax Analysts II, 845 F.2d at 1069). Since Consumer

Federation, this court has understood that case to clarify how courts could consider the Tax

Analyst II factors; rather than a conjunctive, “all or nothing” test, courts must balance the Tax

Analyst II factors as they relate to the totality of the circumstances, including “the creation,

possession, control, and use of the document by the agency,” to classify a given document. See

455 F.3d at 287. As this court explained,

To determine whether the documents sought are under agency control, the
court must balance four factors under a totality of the circumstances test:
(1) “the intent of the document's creator to retain or relinquish control over
the records,” (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.”

Wash. Post v. Dep’t of Homeland Sec., 459 F. Supp. 2d 61, 70 (D.D.C. 2006) (citing Consumer

Fed’n, 455 F.3d at 287). In CREW v. DHS, 527 F. Supp. 2d at 92-98, this court explained how

this balancing process works: when the Tax Analysts II analysis results in two factors

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(use/disposal and use/reliance) favoring classification as “agency records” and two factors (intent

and integration) disfavoring such classification, the court relied on Consumer Federation to

break the tie. Id. at 97 (“In the face of these contradictory sides, . . . the Court concludes that use

trumps intent. Both the Supreme Court and the Court of Appeals have explained that an

agency’s actual use of a document is often more probative than the agency’s subjective intent.”)

(quoting Tax Analysts III, 492 U.S. at 147, and Consumer Fed’n, 455 F.3d at 290 n.11).

Even more indicative of this court’s understanding of the effect of Consumer Federation

on the persistence of Tax Analysts II is that, since Consumer Federation, this court has continued

to apply the four-factor test to classify material as agency records or not. See, e.g., Judicial

Watch, Inc. v. U.S. Secret Serv., 579 F. Supp. 2d 143, 150 (D.D.C. 2008) (applying Tax Analysts

II four-factor test to determine whether materials are “agency records” under FOIA); In Def. of

Animals v. Nat’l Insts. of Health, 543 F. Supp. 2d 83, 100 (D.D.C. 2008) (same); CREW v. DHS,

527 F. Supp. 2d at 92-98; Wash. Post, 459 F. Supp. 2d at 70-72 (same). Most recently, in

Judicial Watch v. FHFA, 2010 WL 3833821 at *4-6, this court applied the four Tax Analysts II

factors (citing to Consumer Federation in doing so, see 2010 WL 3833821 at *4), to determine

how to classify the material at issue there. As the court did in CREW v. DHS, the court in

Judicial Watch v. FHFA found the factors split evenly for and against classifying the material at

issue as “agency records.” Id. at *6. And, as did the CREW v. DHS court, the Judicial Watch v.

FHFA court found the “use/reliance” factor “most important” and, as that factor weighed against

classifying the material as “agency records,” the court did not so classify them but awarded

summary judgment to the defendant agency. Id. (citing Consumer Fed’n, 455 F.3d at 288).

In the end, Plaintiff wants the Court to ignore that the “use” factors weigh strongly

against classifying Dr. Schmidt’s emails as “agency records.” As explained in Defendant’s Brief

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at 27-28, and nowhere disputed by Plaintiff, see generally Pl.’s Opp’n, the Agency lacks an

ability to use or dispose of Dr. Schmidt’s emails as it sees fit. Agency personnel do not read or

rely upon those emails. See Def.’s Br. at 28 (“Given that the Agency had never accessed the

emails . . . prior to FOIA request 08-040 (and in fact, has only ever accessed the emails from the

@giss.nasa.gov and @nasa.gov domains when Dr. Schmidt voluntarily provided them to Agency

counsel in response to FOIA request 08-040, and has never accessed the emails from the

@columbia.edu and @realclimate.org domains), it is clear that Agency personnel do not read or

rely upon the records.”). Because the Agency’s actual use of the emails unambiguously supports

finding they are not agency records, summary judgment should be awarded to the agency. See

Judicial Watch v. FHFA, 2010 WL 3833821 at *6 (awarding summary judgment to defendant

agency based on finding that agency personnel did not actually use or rely on documents);

CREW v. DHS, 527 F. Supp. 2d at 97 (finding agency’s actual use dispositive).

2. The Emails Were Not Created and Are Not Maintained by the Agency.

In addition to considering whether the Agency controls the emails, the Supreme Court’s

two-part test requires this Court to consider whether the Agency created or maintains them. See

Tax Analysts III, 492 U.S. at 144-46. Plaintiff tries to make much of the fact that Dr. Schmidt

exchanged personal emails while in the office, at limited times using agency resources. Plaintiff

puts far too much weight on these facts which, even if true, are not dispositive of the issues here.

Indeed, to credit this argument would be tantamount to finding that government employees have

no privacy or personal interest in anything they write, say, or create while on government

property, during some construct of “work hours,” or using any government resource, which lies

in sharp contrast to the law. See, e.g., Gallant v. NLRB, 26 F.3d 168, 172 (D.C. Cir. 1994)

(rejecting argument that “employing agency resources . . . is sufficient to render a document an

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‘agency record’”). As the Supreme Court held in Kissinger v. Reporters Committee for Freedom

of the Press, 445 U.S. 136, 157 (1980), “[i]f mere physical location of papers and materials could

confer status as an ‘agency record’ Kissinger's personal books, speeches, and all other

memorabilia stored in his office would have been agency records subject to disclosure under the

FOIA. It requires little discussion or analysis to conclude that the lower courts correctly resolved

this question in favor of Kissinger.” Similarly, it requires “little discussion or analysis” to

conclude that emails sent or received by an agency employee, on whatever email domain, do not

constitute “agency records” just because they might have been created or received at the agency.

Moreover, Plaintiff’s argument that Dr. Schmidt’s emails pertaining to RealClimate must

be considered to have been “created by” the Agency because they contain time-stamps reflecting

“work-hours,” see Pl.’s Opp’n at 26-27, must be rejected because it relies on Plaintiff’s own

construct of “work hours” or “agency time,” see id. at 29. Plaintiff’s apparent view that each

moment between 9 a.m. and 6 p.m. represents “work hours” for Dr. Schmidt belies both common

sense and the facts. First, as explained in the Travis Declaration, some time-stamps that appear

to be during “work hours” represent Dr. Schmidt’s “authorized short breaks during regular

business hours.” See Travis Decl. at ¶ 21c. Additionally, as the Supplemental Declaration

clarifies, neither Dr. Schmidt nor most GISS personnel work “regular business hours.” See

Supp. Decl. at ¶ 7 (“Many of the personnel at GISS work quite a bit more than the minimum 40

hours per week, and . . . Dr. Schmidt likely puts in, on average, at least ten hours of work per

day.”); id. (“All GISS employees who are members of the civil service are permitted to work

flexible schedules; moreover, GISS does not require its employees to formally set a specific

alternative schedule in advance . . . .”). Plaintiff’s construct, therefore, does not contradict the

Agency’s determination that Dr. Schmidt’s RealClimate activities do not constitute “official

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agency business.”

Ultimately, Plaintiff’s reliance on innuendo is unavailing. The Agency has consistently

refuted any notion that Dr. Schmidt’s work on the RealClimate blog represents the Agency, or

that any posting on or portion of the blog in any way constitutes official agency statements. 7

However, rather than providing any evidence to dispute that NASA has “no official or unofficial

relationship” with RealClimate, see Travis Decl. at ¶ 14, or that the Agency considers Dr.

Schmidt’s work on RealClimate to be “outside the scope of his employment with the Agency,”

see id. at ¶ 19, Plaintiff suggests that Dr. Jim Hansen’s “A Light on Upstairs?” represents an

example of “Dr. Schmidt and his NASA colleagues unquestionably us[ing] RealClimate as a

conduit for agency business.” See Pl.’s Opp’n at 25. But rather than disproving the Agency’s

averral that it has no official relationship with RealClimate, the emails concerning “A Light on

Upstairs” to which Plaintiff points demonstrate the cooperative relationship between Columbia

University and NASA. 8 In fact, of the individuals included on the email chains about “A Light

7
See Travis Decl. at ¶ 13 (“The RealClimate blog . . . is a non-governmental web-based forum
administered on a voluntary basis by Dr. Schmidt and a group of internationally-based climate
scientists (none of whom work for NASA or any other federal agency).”), 14 (“NASA, GSFC,
and GISS do not have any official or unofficial relationship with the RealClimate blog. . . . I
have no reason to believe that GISS personnel are relying on the blog’s commentaries or other
posts as a primary means of performing their official duties. . . . NASA has neither formally nor
informally adopted this website as a dedicated resource for either scientific research or outreach
done on behalf of the Agency.”), 19 (“Dr. Schmidt has received ‘outside employment
permission’ from NASA for outside activity to work with the RealClimate blog in his personal
capacity . . . and this ‘outside employment permission’ demonstrates an acknowledgment by
NASA management that Dr. Schmidt’s involvement with the RealClimate blog is done outside
the scope of his employment with the Agency.”); Supp. Decl. at ¶ 6 and Ex. 1 to Supp. Decl.
8
Dr. Hansen is not only a NASA employee; he is also an Adjunct Professor at Columbia
University. See http://www.columbia.edu/~jeh1/ (Dr. Hansen’s webpage on the Columbia
domain). As explained in the Travis Declaration, 6 of the 25 NASA employees housed at the
GISS facility also hold adjunct appointments at Columbia, and more than half of the personnel
(55 full-time and 20-30 part-time personnel) housed at GISS are Columbia University personnel,
not NASA employees. See Travis Decl. ¶ 6. Also, in addition to being part of NASA, GISS is
an affiliate of Columbia’s Earth Institute. Id. As explained in the Travis Declaration, “[e]ach
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on Upstairs?” only Dr. Hansen is actually a NASA employee, 9 and, as explained at note 7, he

concurrently holds an appointment at Columbia University. Contrary to Plaintiff’s suggestion,

see Pl.’s Opp’n at 25, the emails Plaintiff identifies make clear that Dr. Hansen did not prepare

“A Light on Upstairs?” as part of official agency business, but in his non-agency capacity as an

adjunct professor at Columbia University. Moreover, and also contrary to Plaintiff’s contention,

see Pl.’s Opp’n at 24-27 and 30, simply because communication about Dr. Hansen’s “A Light on

Upstairs?” occurred via email sent and received by email accounts on the @giss.nasa.gov

domain does not render that article, nor the communication about it, “official agency business.”

Furthermore, even if Plaintiff could show that “A Light on Upstairs?” was “official

agency business,” that fact alone does not compel the conclusion that Dr. Schmidt’s RealClimate

posting, “1934 and All That,” is “official agency business.” Unlike for “A Light on Upstairs?,”

Plaintiff has proffered no evidence showing that Dr. Schmidt communicated with other Agency

employees (or even used his @giss.nasa.gov email account) in the preparation of “1934 and All

That.” In fact, the evidence on which Plaintiff demonstrates no more than an acknowledgment

by members of the press, the public, and scientists (including those affiliated with NASA), that

RealClimate is a resource for information and opinions about subject of climate change. See,

e.g., Ex. F to Compl. at Ex. 41 (Reto Ruedy, a contractor located at GISS, recognizing

RealClimate is a forum for opinion discussions about climate change); Ex. X to Declaration of

Samuel Dewey (Dr. Schmidt suggesting RealClimate as a place to locate “a reference to some

published paper that provides an authoritative answer” to a climate change question); Ex. F to

individual who is employed or otherwise conducts research at the GISS facility has an email
account on the @giss.nasa.gov domain,” id. at ¶ 12, and, even for NASA employees, NASA
explicitly permits de minimis personal use of NASA email accounts, id. at ¶ 18 & Ex. 2 to id.
9
Makiko Sato is solely affiliated with Columbia, and Darnell Cain, Reto Ruedy, and Robert
Schmunk are all solely affiliated with Sigma Space Partners LLC, a contractor that provides only
“systems and programming support” for GISS. See http://www.giss.nasa.gov/about/.
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Compl. at Ex. 56 (acknowledging that RealClimate is a forum for discussion of climate change

issues). A closer look at the other references to RealClimate cited by Plaintiff shows that those

references are mere passing comments, rather than substantive discussions about the content of

RealClimate or connecting it to Agency business in any way. See, e.g., Ex. Y to Dewey Decl.

(containing a complimentary acknowledgement of Dr. Schmidt’s involvement with RealClimate)

and Ex. Z to Dewey Decl. (containing an acknowledgement of the existence of RealClimate as a

forum for discussion of climate change issues). As Plaintiff has not – and cannot – proffer any

evidence rebutting the Agency’s declaration, which adequately details the basis for the Agency’s

determination that Dr. Schmidt’s RealClimate activities are not “official agency business,”

Plaintiff has not rebutted the presumption of good faith afforded the Agency’s declaration and

the expertise of the Agency that it reflects, and cannot defeat summary judgment for the Agency.

B. The Agency’s Search for Records Responsive to Request 08-040 Was

Reasonable.

While the foregoing, as well as Defendant’s Brief and Travis Declaration, demonstrate

that no “agency records” exist for which the Agency had an obligation to search under the FOIA,

see Def.’s Br. at 17-29, Plaintiff’s attempt to discredit the adequacy of the Agency’s search for

records responsive to request 08-040 also fails because the Agency did, in fact, adequately search

for, and release to Plaintiff, non-agency records responsive to the request, see id. at 29-30. To

conduct its search, the Agency had the individual most familiar with the records at issue – their

custodian, Dr. Schmidt – search for responsive records. As the Travis Declaration explained at

¶¶ 29, 32, 34, Dr. Schmidt conducted this search following consultation with a GSFC attorney

about his FOIA obligations. Plaintiff has pointed to no law or facts suggesting that Dr.

Schmidt’s search of his own records was not reasonably calculated to identify all responsive

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records, see Pl.’s Opp’n at 37, which it was. Moreover, the Agency was careful to ensure Dr.

Schmidt’s search was adequate. With respect to Dr. Schmidt’s @giss.nasa.gov email account,

Agency counsel supervised Dr. Schmidt’s search for responsive emails. See Travis Decl. at ¶ 32.

With respect to Dr. Schmidt’s @columbia.edu email account, the Agency used a “belt and

suspenders” approach: in addition to having Dr. Schmidt search for responsive emails, the

Agency also asked all other GISS employees to search their own accounts for responsive emails

exchanged with Dr. Schmidt. See id. at ¶ 33. In its caution, the Agency subsequently added

another “belt” to this part of the search: it asked GISS employees to confirm that they had not

overlooked and failed to turn over any responsive emails exchanged with Dr. Schmidt, using his

@columbia.edu account. See Supp. Decl. at ¶ 9. By this additional effort, no additional

responsive emails were identified. Id. The Agency’s search was clearly adequate.

III. Discovery Is Not Warranted Here Because The Agency Has Not Acted In Bad Faith.

Finally, although Plaintiff asks the court for discovery, Plaintiff has not and cannot show

this is the exceptional case in which such an extraordinary request should be entertained. The

law is clear that discovery is generally unavailable in FOIA cases, see, e.g., Wheeler v. CIA, 271

F. Supp. 2d 132, 139 (D.D.C. 2003), and “[f]ederal courts have consistently ruled that discovery

should only be used in rare circumstances, and requests for discovery should be denied where” as

here, “an agency’s declarations are reasonably detailed, submitted in good faith and the court is

satisfied that no factual dispute remains.” See People for the American Way Found. v. Nat’l Park

Serv., 503 F. Supp. 2d 284, 308 (D.D.C. 2007) (internal quotations and citations omitted). 10

10
See also Wolf v. CIA, 569 F. Supp. 2d 1, 9-10 (D.D.C. 2008) (“Discovery is generally
unavailable in FOIA actions.”); Voinche v. FBI, 412 F. Supp. 2d 60, 71-72 (D.D.C. 2006)
(“FOIA actions are typically resolved without discovery.”); Judicial Watch, Inc. v. Dep’t of
Justice, 185 F. Supp. 2d 54, 65 (D.D.C. 2002) (“Discovery is not favored in lawsuits under the
FOIA.”); Broaddrick v. Exec. Office of the President, 139 F. Supp. 2d 55, 63 (D.D.C. 2001)
(noting that “discovery is not typically a part of FOIA . . . cases”).
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Courts make exceptions to this established rule only where a plaintiff provides actual

evidence “‘rais[ing a] sufficient question as to the agency’s good faith in processing or in its

search.’” See Wolf, 569 F. Supp. 2d at 10 (quoting Judicial Watch, Inc. v. Export-Import Bank,

108 F. Supp. 2d 19, 25 (D.D.C. 2000)). “[P]urely speculative claims” or “hypothetical

assertions” will not suffice to rebut the good faith presumption afforded to the agency, see Wolf,

569 F. Supp. 2d at 10 (citing SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.

1991), and Oglesby, 920 F.2d at 68 n.13); only “actual evidence” suffices to rebut this

presumption and support awarding discovery, see Voinche, 412 F. Supp. 2d at 72. Plaintiff here

has offered nothing but speculation to support its attempts to discredit the Agency’s declaration

on the issues about which it seeks discovery. See Pl.’s Opp’n at 40-41. 11

Contrary to Plaintiff’s contention, whatever delay may have characterized the Agency’s

response to Plaintiff’s FOIA requests does not rise to the level of “bad faith.” As courts have

repeatedly recognized, “delays in responding to a FOIA request are rarely, if ever, grounds for

discrediting later affidavits by the agency.” See Iturralde v. Comptroller of the Currency, 315

F.3d 311, 315 (D.C. Cir. 2003). See also Hornbostel v. Dep’t of Interior, 305 F. Supp. 2d 21, 28

(D.D.C. 2003) (“a lack of timeliness does not preclude judgment for an agency in a FOIA case”).

11
As explained, supra, Plaintiff cannot dispute that Dr. Schmidt received “outside employment
permission” for his RealClimate activities, see Supp. Decl. at ¶ 6, and failed to proffer any
evidence disputing the Agency’s detailed determination that Dr. Schmidt’s RealClimate
activities do not constitute “official agency business,” see supra at 17-19 and note 6, or the
Agency’s process of distinguishing records that discuss “agency business” from those that do
not, see generally Pl.’s Opp’n (nowhere asserting evidence that Agency did not properly apply to
records its determination as to what constitutes “official agency business”). Similarly, Plaintiff’s
hypothesis that spoliation “almost certain[ly]” occurred is not only unsubstantiated, but were it to
prevail, would be tantamount to the court imposing its own record retention requirements on the
Agency. See Pl.’s Opp’n at 33-34 and infra at 23. And finally, Plaintiff is not entitled to
discovery into “GISS employees’ performance reviews and job responsibilities,” see Pl.’s Opp’n
at 40-41, which raises privacy concerns and which Plaintiff itself does not even believe is
relevant to the “agency records” inquiry, see id. at 31-32.
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Rather, “[t]he only question for summary judgment is whether the agency finally conducted a

reasonable search . . . .” Id. And the cases Plaintiff cites in support of its argument that

whatever delay occurred here amounts to bad faith are inapposite, because the court’s finding of

bad faith in those cases rested on the defendant agency’s inability to provide any explanation for

the delay, see Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice, Civ. No.

05-2078, 2006 WL 1518964, at *4 (D.D.C. June 1, 2006), or offered conflicting explanations of

the delay, see Carney v. Dep’t of Justice, 19 F.3d 807, 812-13 (2d Cir. 1994) and Hawthorn

Mgmt. Serv. Inc. v. Dep’t of Housing & Urban Dev., Civ. No. 96-2435, 1997 WL 821767, at *2

(D. Conn. Dec. 18, 1997). No such problems exist here because, as Plaintiff recognizes, the

Agency’s Inspector General determined that the Agency’s delays are attributable not to some

concerted effort to evade the Agency’s obligations under FOIA or hide information about

Agency activities, but rather to communication problems and inadequate staffing. See Ex. I to

Dewey Decl. Accordingly, as Plaintiff provides no support for its blanket assertion that “The

Travis Declaration contradicts the[] findings [of the report],” see Pl.’s Opp’n at 19, nor does

Plaintiff in any way show the delay was a result of bad faith, Plaintiff cannot defeat summary

judgment with its timeliness argument.

Similarly, Plaintiff’s disputations that the Travis Declaration is undeserving of deference

must fail. Plaintiff’s assertions that the Travis Declaration is “internally contradictory” rely on a

purely semantic argument that defies reason and lacks credibility. For example, Plaintiff argues

that there is inconsistency between paragraph 32a of the Travis Declaration, which states that the

Agency released “[a]ll such emails that had any reference whatsoever to Agency matters,” and

paragraph 32b, which states that Agency did not release emails that “did not refer to NASA or

raise or discuss any matters or projects related to Dr. Schmidt’s official duties.” See Pl.’s Opp’n

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at 35 (internal quotation omitted). This alleged inconsistency is a contrivance based on

semantics. Paragraph 32b does not state that the Agency withheld only those records that did not

relate to Dr. Schmidt’s official duties. As the excerpt quoted by Plaintiff shows, it also withheld

those records that “did not refer to NASA.” In addition, Plaintiff’s selective quotation of

paragraph 32b omits the portion of that paragraph clarifying that the emails the Agency withheld

made “no mention of Agency-related initiatives.” The Travis Declaration’s unedited explanation

makes clear that the Agency released all emails referring to “official agency business.” 12

Finally, Plaintiff’s accusations of “almost certain spoliation,” see Pl.’s Opp’n at 33, lack

evidentiary and legal foundation, and must be rejected, because Plaintiff has adduced no

evidence that any emails were lost. As Plaintiff has presented no evidence, but relies solely on

unfounded speculation, discovery is not warranted here. 13

Similarly, Plaintiff’s request that the court issue “an order that NASA search for an

produce all responsive documents subject to a protective order” to “permit counsel [for Plaintiff]

12
Plaintiff’s related assertion that the Declaration “violates the personal knowledge requirement
of Rule 56(e) of the Federal Rules of Civil Procedure,” see Pl.’s Opp’n at 35, is contrary to
established FOIA law and deserves no credence. See, e.g., Carney v. Dep’t of Justice, 19 F.3d
807, 814 (2d Cir, 1994) (“An affidavit from an agency employee responsible for supervising a
FOIA search is all that is needed to satisfy Rule 56(e).”) (quoted in Brophy v. Dep’t of Defense,
Civ. No. 05-360, 2006 WL 571901, at *4 (D.D.C. Mar. 8, 2006) (citing cases)).
13
Moreover, the cases Plaintiff cites in support of its discovery request do not support ordering
discovery here because each of those cases involved the revelation of actual evidence to dispute
the Agency’s declarations. See Meeropol v. Meese, 790 F.2d 942, 947 (D.C. Cir. 1986)
(permitting discovery only after in camera review demonstrated that agency had not properly
invoked FOIA exemptions); Citizens for Responsibility & Ethics in Washington v. Office of
Admin., Civ. No. 07-964 (D.D.C. Feb. 22, 2008) (Ex. BB to Dewey Decl.) (refusing to allow
discovery into issues about which plaintiff could not dispute record evidence); Citizens for
Responsibility & Ethics in Washington v. Dep’t of Justice, Civ. No. 05-2078, 2006 WL 1518964,
at *1 (D.D.C. June 1, 2006) (permitting discovery after government at oral argument, had no
explanation for why “two-hour search” took months to complete); Elec. Privacy Info. Ctr. v.
Office of Homeland Sec., Civ. No. 02-620, (D.D.C. Dec. 26, 2002) (permitting deposition where
defendant agency did not submit declaration). That Plaintiff could only identify two published
decisions ordering discovery attests to the disfavor with which courts view such a remedy.
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to review the materials to verify” that the Agency’s determination of which material constitutes

“agency records,” must be rejected. See id. at 41. Such a request perverts the statutorily-

provided system for judicial review of agency compliance with the FOIA, which recognizes the

necessary role of the agency, in its expertise, in crafting a search reasonably likely to identify all

responsive material and determining what material is properly released or withheld. Cf.

Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974) (“Interference with

[administrative] agency proceeding opens the way to the use of the FOIA as a tool of discovery,

[which] is not an expressly indicated purpose of the Act.”). Plaintiff offers no basis for why the

court should allow Plaintiff to substitute its own judgment for the reasoned, experienced

judgment of the Agency here. Moreover, in the rare cases in which a court finds that an agency’s

declaration lacks the requisite specificity, it does not do as Plaintiff asks but, instead follows one

of two courses: (1) the court may give the agency the opportunity to supplement its declarations

with additional detail or explanation, accord Wolf, 569 F. Supp. 2d at 10 (“Where an agency's

declarations are deficient, courts generally will request that an agency supplement its supporting

declarations rather than order discovery.”) (internal quotations and citations omitted; or (2) the

court may undertake in camera review, see Ray v. Turner, 587 F.2d 1187, 1214 (D.C. Cir. 1978).

However, as the Agency’s submissions here satisfy its obligations under the FOIA, no such

remedy is proper and summary judgment should be awarded to the Agency.

CONCLUSION

Based on the foregoing, Defendant’s Brief, the Travis Declaration, and the Supplemental

Declaration, Defendant respectfully requests that the Court grant summary judgment in its favor.

Dated: December 2, 2010 Respectfully submitted,

TONY WEST

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Assistant Attorney General

JOHN R. TYLER
Assistant Branch Director

/s/ Julie Straus

Julie Straus
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
Mailing Address
P.O. Box 883
Washington, D.C., 20044
Delivery Address
20 Massachusetts Ave., NW., Room 6126
Washington, DC 20001
Telephone: (202) 514-7857
Fax: (202) 616-8460
Julie.Straus@usdoj.gov

COUNSEL FOR DEFENDANT

26