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Elkins v. Federal Aviation Administration

United States District Court, D. Columbia.

August 28, 2014

DAVID J. ELKINS, Plaintiff,
v.
FEDERAL AVIATION ADMINISTRATION, Defendant

Page 195

[Copyrighted Material Omitted]

Page 196

David J. Elkins, Plaintiff, Pro se, St. Petersburg, FL USA.

For Federal Aviation Administration, Defendant: Alexander Daniel Shoaibi, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC USA.

Page 197

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

Motivated by his belief that the government is investigating him through unlawful aircraft surveillance, Plaintiff David Elkins has repeatedly submitted Freedom of Information Act requests to the Federal Aviation Administration asking for records of specific airplane flights. Although at first glance this might appear to be tinfoil-hat material, the history of the case reveals some basis for Elkins's theory. In the FOIA request at issue here, Plaintiff sought records pertaining to a flight he observed near St. Petersburg, Florida, in July 2013. In response to this request, the FAA conducted a search and released some responsive voice transmissions that were partially redacted under FOIA Exemption 7(E). Dissatisfied with the FAA's response, Plaintiff brought this suit. The agency has now filed a Motion for Summary Judgment. Because Defendant has neither established that it conducted an adequate search for the requested records nor clearly explained its withholdings, the Court will deny the Motion.

I. Background

Since 2005, Plaintiff has filed numerous FOIA requests with the FAA, seeking to obtain records of certain aircraft he has observed flying overhead. See Compl. at 2-6. Plaintiff's stated purpose in seeking those records is to expose and document unlawful government surveillance. Id. at 3. His FOIA requests have met with varying levels of success, and this suit marks the third occasion that Elkins has turned to the courts in order to obtain release of withheld records. See Elkins v. Faa, No. 12-2009 (M.D. Fl. filed Sept. 5, 2012); Elkins v. Faa., No. 08-1073, 2010 WL 23319 (D. Or. Jan. 4, 2010).

Plaintiff submitted the particular FOIA request in contention here on July 19, 2013. See Opp., Exh. B. He alleges that on that same day at 7:40 a.m., he observed an aircraft circling over his private residence

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in St. Petersburg/Lealman, Florida, which then followed him for some time. Compl. at 5. Plaintiff's original request asked the FAA to provide the following information:

The N number, [t]he law enforcement agency op[]erating the aircraft, the inflight radio communications between Tampa ATC or Saint Petersburg/Clearwater and this aircraft, pre filed flight plan allowing it to fly in this area, all records of court authority (warrant) showing cause to FAA to conduct surv[e]illance, all records of Department of Justice or Pinallas County sheriff participation, all records of who has tactical of this aircraft. All records of DOJ agreement with FAA to withhold a determination of release of these requested records, all records of non-privile[]ge[d] communications between DOJ and FAA Tracon Tampa, College Park FAA.

Opp., Exh. B. On July 23, 2013, Plaintiff amended his initial request to include:

1. All records of agreement between the entity operating this aircraft and the FAA allowing [it] to either not turn on it[]s transponder or the FAA agreeing not to track the plane.
2. All records of radio contact between the commercial jet and Tampa ATC warning the jet of aircraft in the vicinity (in-flight radio communications)
3. All records of agreement between " passurslive" and the FAA to allow interruption of live feeds (end taps) to their ...

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