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Cooper v. U.S. Dep't of the Navy

March 30, 2007


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


Plaintiff Iver P. Cooper brought this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking release of PowerPoint slides that were presented at the Coolfont IV Conference in November 2000. In response to Cooper's original request, the United States Department of the Navy ("Navy") released four out of thirty slides but withheld the other twenty-six pursuant to FOIA Exemptions 3 and 4.

Pending before the Court are the parties' cross motions for summary judgment. Upon consideration of the motions, the responses and replies thereto, in camera submissions by the Navy, applicable law, and the entire record, the Court determines that the Navy's withholding under Exemption 4 is justified. Therefore, the Court grants the Navy's motion for summary judgment and denies Cooper's motion for summary judgment.


David R. Liu is a Professor of Chemistry at Harvard University and scientific founder of Ensemble Discovery Corporation ("Ensemble"). Professor Liu is also the recipient of a research grant from the Office of Naval Research ("ONR"). Oct. 20, 2004 Liu Aff. ¶ 2.

In November 2000, ONR Program Manager Harold J. Bright organized a by-invitation-only program review ("Coolfont IV Conference" or "Conference") on molecular biometrics at a small conference facility in Coolfont, West Virginia. Bright Decl. ¶ 6. There were about 50 conference attendees, including Professor Liu, other ONR grant recipients, a few assistants of the grant recipients, Navy program managers, and a Navy scientist. Id. Mr. Bright invited Professor Liu to give a presentation at the Coolfont IV Conference on the research Professor Liu had completed to date under his grant. Id. ¶ 8.

On November 11, 2000, Professor Liu presented a thirty-slide PowerPoint presentation to Coolfont IV Conference attendees entitled "Unnatural Molecular Evolution." Oct. 20, 2004 Liu Aff. ¶ 7. The presentation slides describe: (i) the concept of nucleic acid mediated organic syntheses together with its advantages over traditional organic syntheses; (ii) suitable chemical reagents; (iii) reaction schemes and reaction conditions for performing nucleic acid mediated organic syntheses; (iv) results from certain experiments performed in Professor Liu's laboratory; and (v) certain dates, including the date of the Coolfont IV Conference. Professor Liu and the Navy claim that Professor Liu voluntarily gave this presentation and it was not a requirement of his grant agreement. Bright Decl. ¶ 9; Oct. 20, 2004 Liu Aff. ¶ 9. Professor Liu also voluntarily submitted copies of his slides to the Navy after his presentation. Bright Decl. ¶ 12.

Following the Coolfont IV Conference, Harvard University filed a number of patent applications relating to Professor Liu's research. Some of the work presented at the Coolfont IV Conference was included in these patent applications.

On May 25, 2004, Cooper submitted a FOIA request to the Navy for the thirty PowerPoint slides presented by Professor Liu at the Coolfont IV Conference. In addition, Cooper requested a list of Conference participants, a copy of the notice for the Conference, and an application form signed by all Conference participants. In response, on February 1, 2005, ONR provided Cooper with a copy of slide 1 and a list of participants.*fn1 The Navy denied Cooper's request for the remaining slides, claiming the slides were exempt under FOIA Exemption 4.

On April 1, 2005, Cooper filed an administrative appeal with the General Counsel of the Navy. The Navy then issued a final administrative adjudication denying Cooper's request for slides 4-29 under FOIA Exemptions 3 and 4. However, the Navy released slides 2, 3, and 30.

Cooper filed the instant suit on November 18, 2005. The Navy then moved for summary judgment on May 15, 2006, claiming that its withholding of slides 4-29 was proper under Exemption 4. Additionally, the Navy claimed that Exemption 3 covered slides 21 and 26. The same day, Cooper filed a cross-motion for summary judgment, arguing that the Navy could not meet its burden of demonstrating that the presentation is covered by Exemptions 3 and 4.


A. Standard of Review

Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by ...

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