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Michael Quick v. United States Department of Commerce

April 7, 2011


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff Michael Quick ("Quick") commenced this action against the National Institute of Standards and Technology ("NIST"), an agency of the United States Department of Commerce, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking the disclosure of the raw data that NIST used in its architectural and engineering modeling of the collapse of the World Trade Center 7 ("WTC 7") building on September 11, 2001. Presently before the Court are NIST's [10] Motion for Summary Judgment and Quick's [13] Cross-Motion for Summary Judgment. Based upon the parties' submissions, the relevant authorities, and the record as a whole, the Court shall grant NIST's Motion for Summary Judgment, deny Quick's Cross-Motion for Summary Judgment, and dismiss this action in its entirety.*fn1


Preliminarily, the Court pauses to make an overarching observation about the nature of Quick's opposition to NIST's Motion for Summary Judgment. The United States District Court for the District of Columbia has supplemented Rule 56 of the Federal Rules of Civil Procedure with Local Civil Rule 7(h)(1), which requires that each party submitting a motion for summary judgment attach a statement of material facts for which that party contends there is no genuine dispute. The party opposing the motion must, in turn, submit a responsive statement enumerating all material facts which the party contends are genuinely disputed. See LCvR 7(h)(1). Both the moving party's initial statement and the opposing party's responsive statement must be based on "references to the parts of the record relied on to support the statement."*fn2 Id. This well-reasoned rule "places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996). This Court strictly adheres to the dictates of Local Civil Rule 7(h)(1) when resolving motions for summary judgment.

Quick, Docket No. [13-2]; Def.'s Consolidated Reply in Further Supp. of its Mot. for Summ. J. and Opp'n to Pl.'s Cross-Mot. for Summ. J. ("Def.'s [16] Mem."), Docket No. [16]; Suppl. Decl. of Catherine S. Fletcher ("2d Fletcher Decl."), Docket No. [16-1]; Def.'s Resp. to Pl.'s Stmt. of Undisputed Material Facts ("Def.'s Resp."), Docket No. [16-2]; Pl.'s Reply Mem. in Supp. of Pl.'s Mot. for Summ. J. ("Pl.'s [20] Mem."), Docket No. [20]; Suppl. Decl. of Michael Quick, Docket No. [20-1]; Def.'s Surreply in Further Opp'n to Pl.'s Cross-Mot. for Summ. J. ("Def.'s In the instant case, while Quick has submitted a statement of material facts in support of his own Cross-Motion for Summary Judgment, he has failed to file a response to the statement filed by NIST in support of its independent Motion for Summary Judgment. While there may be some factual overlap between the matters discussed in NIST's statement and the matters discussed in Quick's statement, that does not relieve Quick of his burden to come forward with a statement specifically responding to each of NIST's factual allegations in order to best crystallize the disputed issues for the Court. To the extent the Court is unable to discern the extent of Quick's agreement or disagreement with NIST's proffered facts from the contents of his statement, the Court shall, in an exercise of its discretion, assume the uncontroverted facts identified by NIST to be admitted for purposes of resolving the pending motions. However, given that there appears to be surprisingly little disagreement between the parties about the underlying facts, the impact of this conclusion is likely de minimis.


The National Construction Safety Team Act (the "NCSTA"), 15 U.S.C. § 7301 et seq., authorizes NIST to establish national construction safety teams to investigate "the failure of a building or buildings that has resulted in substantial loss of life or that posed significant potential for substantial loss of life." 15 U.S.C. § 7301(a). Exercising this authority, NIST conducted an investigation into the collapse of the WTC 7 building, a forty-seven-story office building located immediately to the north of the World Trade Center complex, caused by approximately seven hours of fires ignited by debris from the collapse of the North Tower on September 11, 2001.

On November 13, 2008, Quick requested that NIST disclose "a complete '[c]ertified' legitimate copy of the [c]omputer [m]odels [u]sed by NIST to come to the conclusions' [sic] it reached in the [i]nvestigation of the event of September 11, 2001." Def.'s Stmt. ¶ 1; Pl.'s Stmt. ¶ 1. Over the ensuing days, Quick and NIST corresponded in a successful effort to clarify the scope of the request. Def.'s Stmt. ¶ 2; Pl.'s Stmt. ¶ 2. In its final form, Quick's request sought "the 'raw data' of the models regarding the collapse of World Trade Center (WTC) Building 7" found on NIST's public website. Def.'s Stmt. ¶ 2; Pl.'s Stmt. ¶ 2. NIST provided Quick a fee assessment and, on or about February 23, 2009, Quick sent a check to NIST in the amount of $824.98 for search and duplication fees. Pl.'s Stmt. ¶ 6; Def.'s Resp. ¶ 6.

On July 9, 2009, the Director of NIST issued a formal finding pursuant to the NCSTA providing that the public disclosure of certain information gathered by NIST in connection with its investigation into the collapse of the WTC 7 building "might jeopardize public safety." Def.'s Stmt. ¶¶ 7-9. Thereafter, individuals with the requisite technical expertise and familiarity with the raw data responsive to Quick's request carefully reviewed each data file to segregate those covered by the Director's finding from those that were not covered. Id. ¶ 10. The task involved sorting through a massive amount of complex data used to simulate the actual physical response of the WTC 7 building on the day in question. Fletcher Decl.¶ 12.

On November 4, 2009, while NIST's review of the responsive records was ongoing, Quick commenced the instant action. Pl.'s Stmt. ¶ 9; Def.'s Resp. ¶ 9. On or about January 6, 2010, NIST provided its initial response to Quick's request, releasing approximately 19,116 responsive data files. Def.'s Stmt. ¶ 3; Pl.'s Stmt. ¶ 11. On or about April 2, 2010, after discovering a technical error affecting its prior production, NIST supplemented its response to disclose additional responsive data files. Def.'s Stmt. ¶ 4; Pl.'s Stmt. ¶ 13. Overall, NIST produced a total of 25,644 data files responsive to Quick's request and withheld a total of 68,500 data files. Def.'s Stmt. ¶ 5; Pl.'s Stmt. ¶ 13. NIST invoked FOIA Exemption 3 as the basis for the non-disclosure of all 68,500 data files withheld. Def.'s Stmt. ¶ 6; Pl.'s Stmt. ¶ 11.


Congress enacted FOIA to introduce transparency into government activities. Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive, however, to the need to achieve balance between this objective and the vulnerability of "legitimate governmental and private interests [that] could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992), cert. denied, 507 U.S. 984 (1993). In reviewing motions for summary judgment in this context, the district court must conduct a de novo review of the record, 5 U.S.C. § 552(a)(4)(B), which "requires the court to ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure," Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (internal quotation marks omitted). "Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents," Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993), and only after an agency has proven that it has fully discharged its obligations is summary judgment appropriate, Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). In ascertaining whether the agency has met its burden, the district court may rely upon agency affidavits or declarations provided they describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). With these principles in mind, the Court turns to the merits of the parties' cross-motions for summary judgment.


Two motions are presently before the Court: NIST's [10] Motion for Summary Judgment and Quick's [13] Cross-Motion for Summary Judgment. Surprisingly, the two motions share little in common. Accordingly, the Court shall begin by explaining why it shall grant NIST's motion, and then turn to explaining why it shall deny Quick's cross-motion. ...

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