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Research Air, Inc. v. Kempthorne

December 11, 2008


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


This matter comes before the Court on cross-motions for summary judgment under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974 ("Privacy Act"), 5 U.S.C. § 552a. Plaintiffs Research Air, Inc. and its president and sole owner, Charles R. Arment, seek expungement of agency records relating to a flight incident in which it was determined that Plaintiffs broke the low-flying rules of the Department of the Interior. Defendants, the United States Department of the Interior ("DOI"), its Secretary and its relevant agencies and employees, assert that DOI properly denied Plaintiffs' requests because Plaintiffs failed to follow appropriate procedures under the FOIA and the Privacy Act when seeking the applicable records. The Court agrees. It will grant Defendants' Motion for Summary Judgment [Dkt. # 61] and deny Plaintiffs' Cross-Motion for Summary Judgment [Dkt. # 67].


A. Background

Charles R. Arment is the president and sole owner of Research Air, Inc. ("Research Air"), a specialized commercial entity and government contractor that tracks and surveys fish, waterfowl, and wildlife for tribal, state, and federal government agencies. Compl. ¶¶ 9-10. The National Business Center/Aviation Management Directorate ("AMD") (formerly the Office of Aircraft Services ("OAS")) is an agency of DOI which manages aircraft aviation matters for DOI. Id. ¶ 12. It enforces compliance with DOI's reporting requirements and conducts investigations of commercial aircraft operations. Id. ¶ 21. During the period at issue, OAS was the agency charged with regulating and reporting flight activities of commercial aircraft. Id. To perform its functions, OAS maintained a database of approved pilots and aircraft and an Aviation Safety Communique ("SAFECOM") database, both of which were accessible to the public on the Internet during the period in question. Id.*fn1 SAFECOM is an internet reporting system which allows anyone to report an incident via the Internet. Id. ¶ 33. The report is instantly maintained on SAFECOM as an agency record and is made publicly accessible and searchable by an individual's name. Id.

The OAS issued Mr. Arment a DOI pilot interagency qualification card and an aircraft data approval card in 1982. Id. ¶ 21. DOI uses the pilot qualification and airplane approval cards as permits for low-level contract commercial aircraft operations and to regulate civil commercial aviation flight operations. Id.

In or about 2001, DOI hired Research Air and Mr. Arment to track Colorado pikeminnow, an endangered species, in the Green River in Colorado and Utah during winter weather for the DOI Fish and Wildlife Service's ("FWS") Colorado River Fishery Project. Id. ¶ 3. In December 2001, Mr. Arment conducted low-level flight tracking missions using radio frequencies that detected signals from transmitters embedded in the fish in the ice-covered river. Id. ¶ 47.

In March 2002, OAS imposed an indefinite suspension upon Mr. Arment's pilot card for an "incident" that occurred on December 13, 2001 near Vernal, Utah while Mr. Arment was flying the low-level tracking missions for the Colorado River Fishery Project. Id. ¶¶ 47, 50. On that date, Mr. Arment flew as low as 50 feet above ground level to locate the Colorado pikeminnow for FWS and maneuvered his plane under a set of powerlines that were approximately 60 to 165 feet above the ground. Id. ¶¶ 47, 52 (citing Compl., Ex. 6 (May 6, 2003 Letter from OAS West Area Office Director Steven R. Smith to Charles M. Arment ("May 6, 2003 Suspension Letter") at 1.*fn2 Mr. Arment did not report the incident to OAS. See id., Ex. 5 (Feb. 24, 2003 Letter from OAS West Area Office Director Steven R. Smith to Charles M. Arment).

After the December 13, 2001 low-flying incident was reported to OAS by a third-party, then-OAS Aviation Safety Manager Robert Galloway sent a letter to Mr. Arment requesting that he return his pilot card to OAS and cooperate with OAS in the investigation of the December 13, 2001 event. See id., Ex. 3 (Mar. 27, 2002 Letter from OAS Aviation Safety Manager Robert Galloway to Charles M. Arment). During the investigation, Steven R. Smith, the then-Director of West Area OAS, sent a series of letters to Mr. Arment seeking an explanation for the incident and failure to report. Id. ¶¶ 49-53. In his final letter to Mr. Arment, Mr. Smith notified Mr. Arment that he had completed his evaluation of the event and determined that Mr. Arment's "actions, as they relate to this incident with potential, demonstrate poor judgment and possible disregard for the philosophy and guidance provided by the Aircraft Rental Agreement (ARA) designed to promote safety and enhance accident prevention." May 6, 2003 Suspension Letter at 1. Mr. Smith further explained that "[p]rior to consideration of any reapplication to fly for the Department of the Interior, you will be required to provide this office with written verification showing successful completion of formal structure courses" for which Mr. Arment would be responsible to pay. Id. at 3-4. The suspension effectively prevented Mr. Arment and Research Air from obtaining further governmental and private sector low-level commercial aviation flight contracting because the suspension was published on the Internet through the SAFECOM Internet database and the list of OAS-approved pilots. Id. ¶¶ 4, 6. For his part, Mr. Arment argues that he and Research Air committed no violations; that he did not consider the event on December 13, 2001 to be an "incident" that he was required to report; that he acted in full compliance with applicable regulations and instructions of DOI; and that the Defendants collected and maintained inaccurate, irrelevant, outdated, incomplete, and false information about Plaintiffs.

B. FOIA Request and Appeal

On May 29, 2003, Plaintiffs' former counsel, Michael H. Ditton*fn3 , sent to Mr. Smith a letter entitled "Freedom of Information Act/Privacy Act Requests" asking for:

any and all agency records related to [Mr. Arment, as known by various similar names, and Research Air], specifically including the administrative record in 2N002 including any investigative report, and any other record within the Department of Interior's possession, custody or control relating to the aforementioned persons or entities. I represent Mr. Arment and Research Air, Inc. and make these requests on their behalf.

I request waiver of fees pursuant to the cited statutes and implementing regulations. The information requested is not for a commercial purpose. The best interests of the Government and the public interest mandate release of this information.

Def.'s Mot. for Summ. J., Ex. 1 (Freedom of Information Act/Privacy Act Requests Letter ("FOIA Letter")).*fn4 On June 9, 2003, Ms. Leslie Laraway, OAS's FOIA Officer, confirmed by e-mail the conversation she had with Mr. Ditton on June 5, 2003, about his May 29, 2003 request. Def.'s Mot. for Summ. J., Ex. 2 (June 9, 2003 E-mail from Leslie Laraway to Michael H. Ditton ("June 9, 2003 E-mail")). In the e-mail Ms. Laraway stated that the "approximate" cost of producing the requested records would be $810.25 and suggested that Mr. Arment might "modfiy or narrow the scope of his request to reduce associated costs." Id. She further advised that: in order to grant a fee waiver request, OAS must be able to determine that disclosure of the requested information will contribute significantly to public understanding. The Department of the Interior's FOIA regulations state that we can waive fees if "disclosure of all or part of the information is in the public interest because its release-(1) Is likely to contribute significantly to public understanding of the operations and activities of the government; and (2) Is not primarily in the commercial interest of the requester." 43 C.F.R. § 2.19(b). Based on that criteria, I must deny your request. Department regulations state that it will not begin to process a FOIA until fee issues are resolved. See 43 C.F.R. §§ 2.8(b), 2.12(b), and 2.18(d). The twenty day time period for response only begins once the request is "perfected," i.e., all issues defining the FOIA request are resolved. Furthermore, because you have not been granted a fee waiver at this time, OAS cannot begin processing your request until it has received written assurance of your willingness to pay the fees associated with your request. See 43 C.F.R. § 2.18(a).

Defs.' Mot. for Summ. J., Ex. 2.

On June 9, Mr. Ditton wrote to Mr. Smith, advising him that Ms. Laraway's e-mail was "an unacceptable response to [his] request for the administrative record" and renewed "[his] request on behalf of Mr. Arment for a copy of the administrative record." Id., Ex. 3 (June 9, 2003 Letter from Michael H. Ditton to Steven R. Smith). On June 16, 2003, Ms. Laraway responded to Mr. Ditton's June 9 letter to Mr. Smith, and reiterated that the fee issues had to be addressed before she could begin processing his request. See id., Ex. 4 (June 16, 2003 Letter from Leslie A. Laraway to Michael H. Ditton). She also advised Mr. Ditton that he "may appeal this response" by writing to the Department of the Interior Freedom of Information Act Appeals Officer. Id.

By letter dated June 28, 2003, Mr. Ditton appealed OAS's decision that Plaintiffs were not entitled to a fee waiver. Id., Ex. 5 (June 28, 2003 Freedom of Information Act/Privacy Act Requests Appeal Letter).*fn5 He demanded, inter alia, that OAS "furnish [him] with the authority that justifies OAS demanding prepayment and refusing waiver of fees for release of documents under the Privacy Act to Mr. Arment." Id. On July 1, 2003, Ms. Laraway wrote to Mr. Ditton again, referencing his letters to Mr. Smith on June 24 and June 28, 2003, in which Mr. Ditton characterized OAS as having demanded prepayment before processing the FOIA request. Id., Ex. 6 (July 1, 2003 Letter from Leslie A. Laraway to Michael H. Ditton). In the July 1 letter, Ms. Laraway called Mr. Ditton's attention to her June 9 email in which she wrote that "'OAS cannot begin processing your request until it has received written assurance of your willingness to pay the fees with your request.'"

Id. (quoting June 9, 2003 E-mail). She then emphasized that "[a]t no time did OAS demand prepayment as you claim." Id. She also advised that she had forwarded Mr. Ditton's June 28 appeal letter to the DOI FOIA Appeals Officer and that OAS no longer had jurisdiction over the matter. Id. On July 30, 2003, the FOIA Appeals Officer acknowledged receipt of the FOIA appeal and advised Plaintiffs that the DOI had a large backlog of appeals and would be delayed in its response. Id., Ex. 7 (July 30, 2003 Office of the Secretary Letter from William W. Wolf to Michael H. Ditton). The FOIA Appeals Officer further advised that this delay could be regarded as an appealable final denial, but expressed his hope that Mr. Ditton would await a substantive decision. Id. No such decision was issued prior to the filing of the instant action.

C. Privacy Act Request, Appeal and Decision

On January 31, 2005, Mr. Ditton sent a letter on behalf of Mr. Arment to the OAS office in Boise, Idaho, including Mr. Smith and Mr. Galloway, seeking, pursuant to the Privacy Act, "amendment and correction of agency records and an accounting of all disclosures." See id., Ex. 8 (Jan. 31, 2005 Privacy Act Amend., Correction, Accounting Requests/Pet. ("Privacy Act Pet.")) at 1. He listed a series of "agency records of which Requesters/Petitioners are aware are not accurate, relevant, timely or complete," and demanded "expungement of all of these records and records based upon these records." Id. at 2.

In a letter dated February 11, 2005, OAS's then-Acting Associate Director, Robert Lewis denied Mr. Ditton's request on the basis that, under the Privacy Act, "only the individual who is the subject of the records may request access, amendment, and accounting of disclosures." Id., Ex. 9 (Feb. 11, 2005 Letter from Robert H. Lewis to Michael H. Ditton) (citing 5 U.S.C. § 552a(d)). He explained that

[a]lthough you assert that you represent Mr. Arment and Research Air, you have provided no written documentation from Mr. Arment indicating this relationship and his consent for you to gain access to or seek amendment of Privacy Act records pertaining to him. Therefore, you are not entitled ...

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