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Kean v. National Aeronautics and Space Administration

March 27, 2007

LESLIE KEAN, PLAINTIFF,
v.
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff Leslie Kean brings this suit against the National Aeronautics and Space Administration ("NASA") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks the production of documents responsive to a January 31, 2003 request for documents related to an incident in Kecksburg, Pennsylvania, on December 9, 1965. Plaintiff contends, and indeed NASA admits, that NASA's first two searches for responsive documents were inadequate. Nevertheless, NASA maintains that its third search, undertaken on December 2, 2003, and now its fourth search, undertaken in July 2006, were exhaustive and satisfied NASA's burden under FOIA. Pending before the Court are defendant's renewed motion for summary judgment and plaintiff's cross-motion for summary judgment. Upon consideration of the motions, the responses and replies thereto, the arguments made at the hearing on March 20, 2007, the applicable law, and the entire record, the Court determines that defendant has not yet met its burden of demonstrating that the search for documents was adequate. Therefore, for the reasons stated herein, defendant's motion for summary judgment is GRANTED in part and DENIED in part without prejudice, and plaintiff's cross-motion for summary judgment is DENIED without prejudice.

BACKGROUND

I. NASA's FOIA Searches

This action arises from plaintiff's request for historical documents concerning an object that allegedly fell from the sky and crashed in Kecksburg, Pennsylvania in 1965. On January 31, 2003, plaintiff submitted a FOIA request to NASA seeking documents related or referring to Kecksburg, the December 9, 1965 incident, the "Fragology Files" for 1962 to 1967, Richard M. Schulherr, Project Moon Dust, and "Cosmos 96." NASA has conducted four searches pursuant to this FOIA request, which plaintiff argues have been insufficient.

A. First Search

NASA's first search was initiated by NASA FOIA specialist Kellie Robinson. Robinson conducted a "key word" search in the NASA database, reviewed several previous FOIA requests for similar information, considered that the documents requested were from the 1960s, and based on these factors concluded that the History Office should search for responsive documents. 1st Decl. of Kellie Robinson, Def.'s Mot. for Summ. J., Attach. 2, ¶ 3.

Jane Odom, a NASA archivist in the History Office, searched that office's database, locating only one item. Decl. of Jane Odom, Def.'s Mot. for Summ. J., Attach. 3. Odom reviewed the folder identified in the database, finding published accounts of Cosmos 96 but no internal NASA documents. According to Odom's declaration, she then consulted with another archivist in the office who suggested she search the UFO files. That search, too, produced no documents responsive to plaintiff's request. Thus, Odom sent a "no records" response to the FOIA Office, recommending that the request be sent to the Goddard Space Flight Center. However, for reasons that are not clear, the request was not sent to the Goddard Space Flight Center, and plaintiff was simply sent a "no records" response dated April 11, 2003.

B. Second Search

On May 9, 2003, plaintiff sent a letter appealing the "no records" response. Plaintiff's letter also requested, for the first time, documents in six new categories, including information pertaining to the processing of her initial FOIA request, other FOIA requests, and policies on retention of documents pursuant to FOIA requests. With her letter, plaintiff submitted three NASA documents relevant to her initial document request in order to facilitate document retrieval. In August 2003, plaintiff also sent NASA a specific list of accessions (record indexes) that referred to potentially relevant records at the National Archives.

Plaintiff's appeal was granted by letter dated June 18, 2003. In that letter, signed by Associate Deputy Administrator James Jennings, NASA informed plaintiff that it would conduct a new search that would include all the NASA Centers and that documents from earlier, similar FOIA requests had been located and would be released to her. Specifically, the letter stated that NASA would look for the missing fragology files that plaintiff had requested, that the new search would include the six additional categories from plaintiff's letter of appeal, and that all of this would be done on an expedited basis. 1st Decl. of Margaret Roberts, Def.'s Mot. for Summ. J., Attach. 5, at Ex. 2 ("Jennings letter").

NASA, however, initially failed to properly act on the Jennings letter. That failure appears to be a result of poor tracking and the relocation of NASA's FOIA Office in August 2003. Not having heard from NASA after she received the Jennings letter, plaintiff informed the agency by letter dated October 15, 2003, that she intended to sue.

NASA's new FOIA Officer, Stephen McConnell, received a copy of plaintiff's October letter and initiated what the parties refer to as the second search. After speaking with Robinson, McConnell noted that there were responsive documents that had not been released to plaintiff, and he sent those documents to plaintiff with a letter dated October 21, 2003. This response did not comply with the directives in the Jennings letter, however, as it failed to cover most, if not all, of the search categories listed in the letter.

C. Third Search

Because McConnell's letter stated that it was an "initial determination," plaintiff filed an appeal by letter dated November 14, 2003. Apparently, this second appeal came to the attention of Margaret Roberts, Senior Attorney in the General Counsel's office. On December 2, 2003, Roberts sent instructions to the FOIA Office to be forwarded to all the NASA Centers, directing them to perform a new, third search in compliance with the Jennings letter by January 5, 2004. 1st Roberts Decl. ΒΆ 9. In order to specify the parameters of this new search, Roberts did not articulate particular search ...


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