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Judicial Watch, Inc v. United States Air Force

April 10, 2012

JUDICIAL WATCH, INC., PLAINTIFF,
v.
UNITED STATES AIR FORCE, DEFENDANT.



The opinion of the court was delivered by: Barbara J. Rothstein United States District Judge

ORDER FOR SUPPLEMENTAL BRIEFING

This case concerns a request made under the Freedom of Information Act, 5 U.S.C § 552 ("FOIA") by plaintiff, Judicial Watch, Inc. (hereinafter "Judicial Watch"), to defendant, the United States Air Force (hereinafter "USAF" or "the USAF"). Before the court at this time are Judicial Watch's Motion for Partial Summary Judgment [dkt. #9] (hereinafter "Pltf.'s Mot.") and USAF's Cross-Motion for Summary Judgment [dkt. #12] (hereinafter "Def.'s Mot."). In light of the current briefing, the court will defer ruling on Judicial Watch's motion, deny in part and defer ruling in part on USAF's motion, and seek supplemental briefing from the parties as outlined below.

I. RELEVANT FACTS

The following facts are undisputed and relevant to the issue at hand:

On April 14, 2011, Judicial Watch submitted a FOIA request to the USAF seeking the following:

a) Any and all records concerning or relating to the Air Force's processing of Judicial Watch, Inc.'s November 9, 2010 FOIA request, No. 2011-01181-F;

b) Any and all metadata for the Air Force's letter, purportedly dated January 11, 2011, responding to Judicial Watch's November 9, 2010 FOIA request, No. 2011-01181-F.

Complaint [dkt. #1] ¶ 5; Defendant's Statement of Material Facts [dkt. #12-2] (hereinafter "Def.'s SOF") ¶ 1.

The January 11, 2011 letter responding to Judicial Watch's November 9, 2010 FOIA request was initiated using a Microsoft Word template and finalized using Adobe Acrobat software. Def.'s SOF ¶ 6; Plaintiff's Statement of Material Facts [dkt. #14] (hereinafter "Pltf.'s SOF") ¶ 6. On February 15, 2011, USAF FOIA Disclosure Officer Theodore Martin e-mailed a copy of the January 11, 2011 letter to Judicial Watch at info@judicialwatch.org. An employee of Judicial Watch received the e-mail and opened the attached PDF file. Def.'s SOF ¶ 7; Pltf.'s SOF ¶ 7.

II. DISCUSSION

A. Judicial Watch's Request Seeking the Metadata for the November 9, 2010 Letter is Not Moot

In its Cross-Motion for Summary Judgment, USAF argues primarily that Judicial Watch's request for metadata in this case is moot, due to the inadvertent production of that letter to Judicial Watch as an Adobe PDF file attached to an e-mail.

Under FOIA, a suit is authorized against federal agencies only to remedy an agency's improper withholding of information. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980); see also 5 U.S.C. § 552(a)(4)(B) & (f)(1). Once the requested records have been produced, there is no longer a case or controversy, and the FOIA action becomes moot. West v. Spellings, 539 F. Supp. 2d 55, 61 (D.D.C. 2008).

The parties agree that metadata has been "defined as 'information describing the history, tracking or management of an electronic document." Pltf.'s Mot. at 1; Def.'s Mot. at 6 (quoting Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 171 (D. Del. 2006) (quoting Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005))). The parties also agree that metadata is "automatically created by a computer when a document is created or ...


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