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Competitive Enterprise Institute v. National Aeronautics and Space Administration

United States District Court, District Circuit

October 30, 2013




Competitive Enterprise Institute ("CEI" or "Plaintiff") filed this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel production of records from the National Aeronautics and Space Administration ("NASA" or the "agency") related to its revision of certain global temperature data sets, as well as correspondence of a NASA employee, Gavin A. Schmidt, related to a blog called "RealClimate." Before the court is NASA's motion for summary judgment.


Plaintiff CEI is a think tank based in Washington, D.C. that has been "extensively involved in the national debate over climate policy." See Complaint ("Compl.") (Dkt. No. 1) ¶ 2. The Goddard Institute of Space Studies ("GISS" or "the agency") is a component of NASA which has become a leading center for the study of atmospheric modeling and climate change. See Declaration of Larry D. Travis ("Travis Decl.") (Dkt. No. 15-3) ¶ 5d. GISS is located in New York City and was established to "facilitate an informal affiliation between NASA and Columbia University... to enable the federal government and Columbia to undertake collaborative research on space science." Id. Dr. Gavin Schmidt is a physical scientist working at GISS. Id. ¶ 16. Dr. Schmidt contributes to the content of a blog called ("RealClimate") which discusses topics related to climate science. Id. ¶ 13; Compl. ¶ 27.

In August 2007, a statistician named Stephen McIntyre discovered an error in NASA's temperature data sets, which he alleged caused an overstatement of temperatures in the United States from the year 2000 onward. See Compl. ¶ 8. He posted his findings on his website,, and also emailed them to NASA climate scientists. Id. In response, on August 7, 2007, GISS revised values in its temperature data set. See Compl. ¶ 11. GISS did not issue a press release announcing or explaining the corrections. Id.

CEI filed three FOIA requests with NASA: one on August 24, 2007 ("Request 07-175"), seeking information about the temperature data set corrections; a second on August 27, 2007 ("Request 07-172"), seeking in part documents generated in response to CEI's first FOIA request; and a third on January 28, 2008 ("Request 08-040"), seeking emails or other correspondence sent or received by Dr. Schmidt related to RealClimate. See Compl., Exs. A, B, D. Approximately two years later, NASA still had not responded to these requests. The delay prompted a letter, dated December 3, 2009, from two U.S. Senators to NASA's Inspector General requesting that he investigate the reasons for the agency's delay in responding. See Compl., Ex. H. The Inspector General determined that the delay was caused by "insufficient staffing in the Goddard FOIA office, inadequate oversight of Goddard's FOIA procedures, and lack of management attention to issues identified by the FOIA office." Compl., Ex. I.

On December 31, 2009, NASA issued an "Initial Determination on Partial Responses" with respect to Requests 07-172 and 07-175 and released 205 pages of responsive emails to Plaintiff. See Defendant's Statement of Material Facts as to Which There is no Genuine Issue ("Def.'s St.") (Dkt. No. 15-1) ¶ 4; see also Compl., Ex. C. NASA also released to Plaintiff approximately 545 pages in response to Request 08-040 as well as a letter, "Notice of Initial Determination and Response." Def.'s St. ¶ 6; see also Compl., Ex. E.

On January 29, 2010, Plaintiff appealed the agency's responses to all three of its FOIA requests. See Compl., Ex. F. On February 23, 2010, while that appeal was pending, NASA released approximately 1500 additional pages in response to Requests 07-172 and 07-175. Def.'s St. ¶ 5; see also Compl. ¶ 26. The letter accompanying these documents indicated that the documents "complete[d]" NASA's response to these two requests. See Travis Decl. Ex. 4; Def.'s St. ¶ 5.

On March 11, 2010, NASA issued its Final Determination on the appeal of all three FOIA requests. See Compl., Ex. G. The Final Determination affirmed in part and reversed in part the Initial Determinations. See id. at 4. It reversed the conclusion in the Initial Determination regarding Request 08-040 that "R[eal] C[limate] email correspondence between Dr. Schmidt and non-NASA external or private individuals or entities are not agency documents" and directed the agency to conduct a new search, including all of Dr. Schmidt's email addresses. Id. It affirmed the Initial Determination with respect to Requests 07-172 and 07-175. Id.

On July 9, 2010, NASA released an additional 190 pages of documents to Plaintiff in response to Request 08-040. Def.'s St. ¶ 8; see also Travis Decl. Ex. 5. The agency has submitted a Vaughn index explaining the documents the agency withheld in part from its July 9, 2010 response. Def.'s St. ¶ 9. CEI's complaint does not challenge any of the exemptions invoked by NASA.

In support of its motion for summary judgment, the agency has submitted two declarations by Larry D. Travis, the Associate Chief of GISS.


The Freedom of Information Act provides "a statutory right of public access to documents and records held by agencies of the federal government." Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982); see also 5 U.S.C. § 552. The statute provides for disclosure of agency records, upon a proper request, unless the information sought falls within any of nine exemptions. See 5 U.S.C. §§ 552(a)(3), (b). The "dominant objective of the Act" is "disclosure, not secrecy." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976).

Most FOIA cases can be resolved on summary judgment. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is granted when 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In reviewing the motion for summary judgment, the court reviews the matter de novo. See 5 U.S.C. § 552(a)(4)(B); see also Willis v. U.S. Dep't of Justice, 581 F.Supp.2d 57, 65 (D.D.C. 2008).

In the FOIA context, the facts are viewed in the light most favorable to the requester and the agency has the burden of showing that there is no genuine dispute as to any material fact. Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). "What the agency must show beyond material doubt is that it has conducted a search reasonably calculated to uncover all relevant documents." Id. To meet this burden, the agency may submit affidavits or declarations that are "relatively detailed and nonconclusory and... submitted in good faith." Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)) (internal quotation marks omitted). Such agency affidavits "are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted). "If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990).


CEI submitted two FOIA requests to NASA in August 2007 (the "2007 requests"). CEI's first request, Request 07-175, sought: "copies of all records, documents, internal communications and other relevant covered material created by, provided to and/or sent by NASA/Goddard Institute for Space Studies (GISS), citing, referencing, discussing or otherwise related to the August 2007 correction by NASA/GISS of online temperature data for over 1200 U.S. HCN stations and for their U.S. temperature history[.]" See Compl., Ex. A. The second request, Request 07-172, sought: "copies of all records, documents, internal communications and other relevant covered material created by, provided to and/or sent by NASA/Goddard Institute for Space Studies (GISS), citing, referencing, discussing or otherwise relating to the email(s) sent to James Hansen and/or Reto A. Ruedy from a Stephen (Steve) Mcintyre - possibly but not necessarily using the address - beginning on or about August 3, 2007 specifically mail calling their attention to an error(s) in NASA/GISS online temperature data." See Compl., Ex. B (emphasis in original).

A. CEI Exhausted its Administrative Remedies

NASA argues that Plaintiff failed to exhaust available administrative remedies with respect to the 2007 requests. Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Def.'s Mtn.") (Dkt. No. 16) at 2. The agency's reasoning goes as follows: CEI administratively appealed only the agency's "partial response" of December 31, 2009. While this appeal was pending, the agency released more documents and completed its response to the 2007 requests. NASA posits that because Plaintiff did not administratively appeal the agency's completed response, no claims regarding the agency's response to the 2007 requests are properly before the court.

In general, a FOIA requester must exhaust administrative appeal remedies before suing in federal district court. See Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 182 (D.C. Cir. 2013); see also Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). FOIA's exhaustion requirement is not jurisdictional, but rather a "jurisprudential doctrine." Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). In that respect, courts have held that a "failure to exhaust is by no means an automatic bar to judicial review; courts usually look at the purposes of exhaustion and the particular administrative scheme in deciding whether they will hear a case or return it to the agency for further processing." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 61 (D.C. Cir. 1990); see also Hidalgo, 344 F.3d at 1258-59. The purposes of exhaustion in FOIA cases are to give "the agency [] an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Oglesby, 920 F.2d at 61.

In FOIA cases, this court considers whether the requirement of exhaustion of administrative remedies has been met under the standard of Federal Rule of Civil Procedure 12(b)(6). See Hidalgo, 344 F.3d at 1260 (remanding to the district court with instructions to dismiss the complaint under Rule 12(b)(6) for failure to exhaust administrative remedies); see also Acosta v. FBI, No. 12-1578 (JEB), ___ F.Supp.2d ___, 2013 WL 1633068, at *1 (D.D.C. Apr. 17, 2013) ("[T]he D.C. Circuit has directed that the Court address [] exhaustion arguments under Federal Rule of Civil Procedure 12(b)(6)."). "To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Here, the purposes of the exhaustion requirement have been met. In the administrative appeal, NASA had the "opportunity to consider the very issues" that CEI raises in this action; namely, the adequacy of the search and the adequacy of the production.[1] See Hidalgo, 344 F.3d at 1259 (holding that the requester had not met the exhaustion requirement because his appeal did not place the substance of the agency's response before the agency for review). Therefore, the agency had the opportunity to apply its expertise to the matter and to develop a factual record. NASA issued an initial determination, accepted CEI's appeal of that determination, reviewed the appeal, and issued a final decision subject to judicial review. Although the agency's Final Determination noted that CEI's "assertions seem premature" because "the initial determination is styled as a partial response, '" the agency did not decline to make a final decision as to its response to the 2007 requests. See Compl., Ex. G at 4. If the agency wanted an opportunity to review its response further, it should have declined to accept and process CEI's appeal. Accordingly, this court finds that CEI exhausted its administrative remedies.

B. The Adequacy of NASA's Search

CEI challenges the adequacy of NASA's search for responsive records on numerous grounds. The declaration by the Associate Chief of GISS, Larry D. Travis (the "Travis Declaration") and his supplemental declaration explain the search. In short, GISS searched employee email accounts for relevant emails from a specified time period and also conducted a keyword search of those email accounts. Travis Decl. ¶¶ 26-27. Moreover, "[i]t was known by GISS officials that all communications and work activity related to the requests were done by a limited number of personnel and all non-verbal communications were conducted solely by email." Id. ¶ 27a.

CEI makes the following arguments as to why the agency is not entitled to summary judgment on the adequacy of its search for records responsive to the 2007 requests:

1. NASA is improperly withholding two electronic directories referred to as the "Steve" directory and the "alternate_cleaning" directory;
2. NASA did not search Dr. Schmidt's account;
3. NASA failed to search records other than email records;
4. NASA did not produce records relating to media inquiries about the data corrections;
5. NASA produced no internal deliberations about CEI's first request, Request 07-175;
6. The declaration does not identify all the search terms used;
7. The declaration also fails to describe which GISS personnel performed the search;
8. NASA acted in bad faith because all three FOIA requests were subjected to inexcusably long delays that are ...

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