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Roman v. Department of the Air Force

United States District Court, District of Columbia

July 9, 2013

GILBERT ROMAN, Plaintiff,
v.
DEPARTMENT OF THE AIR FORCE, Defendant

Page 167

GILBERT ROMAN, Plaintiff, Pro se, Ridgefield Park, NJ.

For DEPARTMENT OF THE AIR FORCE, Defendant: Peter C. Pfaffenroth, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

OPINION

Page 168

Emmet G. Sullivan, United States District Judge.

MEMORANDUM OPINION

Pro se plaintiff, Gilbert Roman, filed a complaint on August 20, 2012, seeking a court order requiring defendant, the Department of the Air Force, to properly respond to his requests for information, pursuant to the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 (2012). [1] Compl. at 1, Docket No. 1.

Pending before the Court are: (1) Defendant's Motion to Dismiss, or, in the Alternative, for Summary Judgment (Docket No. 7), Plaintiff's Opposition thereto (Docket No. 12), and Defendant's Reply (Docket No. 17); (2) Plaintiff's Motion to Release Paperwork and Enter New Evidence (Docket No. 10), and Defendant's Response (Docket No. 11); and (3) Plaintiff's Motions to Enter New Evidence (Docket Nos. 6, 13-16, 21), and Defendant's Oppositions thereto (Docket Nos. 17-20).

As a preliminary matter, Plaintiff's motions to enter new evidence into the record are GRANTED. Upon consideration of Defendant's motion, the opposition and reply thereto, the entire record in this case, the applicable law, and for reasons set forth below, the Court concludes that Plaintiff failed to exhaust his administrative remedies regarding one of the two FOIA requests at issue. Accordingly, his complaint is DISMISSED as to that FOIA request. The Court further concludes that the government is entitled to summary judgment with respect to the remaining FOIA request because its search was reasonable and adequate. Accordingly, Defendant's motion for summary judgment is GRANTED. In light of the foregoing, Plaintiff's pending Motion to Release Paperwork is DENIED as moot.

I. BACKGROUND

A. August 14, 2011 FOIA Request

On August 14, 2011, Plaintiff requested information concerning the Air Force's

Page 169

High-Frequency Active Auroral Research Program (" HAARP" ). Compl., Ex. A. HAARP is a program that studies the " upper atmospheric and solar-terrestrial physics and Radio Science." Compl., Ex. B. Specifically, Plaintiff requested: " 1. All locations of HAARP research facilities. All locations of active HAARP devices; either on land, sea, space or air. 2. All dates and times that a HAARP device has and been tested or used." Compl., Ex. A.

On September 2, 2011, Defendant confirmed receipt of Plaintiff's August 14, 2011 request and forwarded the request to the Communications Division of the Kirtland Air Force Base in New Mexico (" Kirtland AFB" ) for response. Compl., Ex. C5; Declaration of Elizabeth A. Toth (" Toth Decl." ) ¶ ¶ 1, 4, Ex. 2. Plaintiff's FOIA request was assigned case number 2011-06493-F. Compl., Ex. C5; Toth Decl. ¶ 4, Ex. 2.

On September 7, 2011, the Kirtland AFB acknowledged receipt of Plaintiff's August 14, 2011 request. Toth Decl. ¶ 4, Ex. 3. On September 22, 2011, the Alternate FOIA Manager at Kirtland AFB, Elizabeth Toth, responded by email to Plaintiff's August 14, 2011 request advising Plaintiff that the requested information was " fully releasable" and attached responsive documents. Toth Decl. ¶ 5, Ex. 4. Ms. Toth sent Plaintiff information about the HAARP facility in Gakona, Alaska, with a " HAARP fact sheet" created by Dr. Craig Selcher, the HAARP Program Manager, addressing Plaintiff's request. Id. On September 26, 2011, Ms. Toth resent its original response to Plaintiff by email in a different format, per Plaintiff's request. Id.

Plaintiff appealed the decision on September 28, 2011 claiming: " I have seen budget reports that show over 23 HAARP research facilities and/or devices around the U.S. and beyond. So [s]omeone has not searched the proper files." Toth Decl. ¶ 6, Ex. 5. On October 28, 2011, Defendant acknowledged receipt of Plaintiff's appeal and assigned it case number 2012-00009-A. Compl., Ex. C7. After receipt of the appeal, Dr. Selcher, the HAARP Program Manager, conducted an additional search through the paper records to determine if more than one HAARP facility existed and concluded that none did. Toth Decl. ¶ 7. As such, Defendant denied the appeal on July 23, 2012, advising Plaintiff that there is only one HAARP facility, and of his right to a judicial review of its determination. Compl., Ex. C1; Toth Decl. ¶ 8, Ex. 6.

Another division of the Department of the Air Force, the Air Force Historical Research Agency (" AFHRA" ), also responded to Plaintiff's August 14, 2011 FOIA request. Compl., Ex. C6; Def.'s Mot. at 8 n.2; Declaration of Kevin I. Burge (" Burge Decl." ) ¶ 7, Ex. 4. The AFHRA assigned Plaintiff's FOIA request case number 2011-6483-F. Compl., Ex. C6; Burge Decl. ¶ 7, Ex. 4.

Kevin Burge, an archivist at the AFHRA, processed Plaintiff's request. Burge Decl. ¶ ¶ 1, 7. He searched AFHRA's collections using an electronic indexing system known as IRIS for any references to HAARP. Burge Decl. ¶ ¶ 4, 7. On September 7, 2011, the AFHRA advised Plaintiff that it did not have any responsive records but enclosed the abstract of seven documents that mentioned HAARP. Compl., Ex. C6; Burge Decl. ¶ 7, Ex. 4. The AFHRA advised Plaintiff that he had 60 days to appeal the decision. Compl., Ex. C6; Burge Decl. ¶ 7, Ex. 4. Plaintiff did not appeal this decision. Burge Decl. ¶ 7.

B. Correspondence Relating to Other FOIA Requests

Plaintiff's Complaint is explicitly limited to one FOIA request - the August 14, 2011

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request referred to as " my request," and attached to the Complaint as Exhibit A. Compl. at 1, Ex. A. The Complaint also contains other attachments, most of which are correspondence from the Air Force regarding various FOIA requests. Some of the correspondence, described above, clearly relates to the August 14, 2011 request identified in the Complaint. Compl., Exs. C1, C5-7. Other correspondence appears to relate to separate FOIA requests. Compl., Exs. C, C2-4 (various letters from the Air Force to Plaintiff between 2010 and 2012 with FOIA request numbers separate from those assigned to the August 14, 2011 request).

At no point during this litigation has Plaintiff provided the Court with any FOIA request other than the August 14, 2011 request; no other requests are attached to the Complaint, nor does he identify or reference any other requests in his Opposition, his Motion to Release Paperwork, or his Motions to Enter New Evidence. [2] Likewise, Plaintiff does not discuss or explain any of the correspondence which appears to relate to other requests. In light of the ...


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