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Elkins v. Federal Aviation Administration

United States District Court, D. Columbia.

April 16, 2015

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

Page 91

DAVID J. ELKINS, Plaintiff, Pro se, St. Petersburg, FL.

For FEDERAL AVIATION ADMINISTRATION, Defendant: Alexander Daniel Shoaibi, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Page 92

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

On July 19, 2013, pro se Plaintiff David Elkins spotted an aircraft overhead that appeared to circle his residence near St. Petersburg, Florida, and then follow him for some time thereafter. Concerned that he was the subject of government surveillance, he submitted a Freedom of Information Act request to the Federal Aviation Administration seeking records relating to the suspicious aircraft. The FAA, in response, conducted a search and released to him voice transmissions that it had partially redacted under FOIA Exemption 7(E). After Elkins challenged such response by filing this suit, the Court denied the FAA's summary-judgment motion, concluding that the agency had neither adequately justified its search nor sufficiently defended its withholdings. The FAA has since supplemented its search, released one more record to Elkins, and identified several others, which it has withheld in full. Having done so, it now renews its Motion for Summary Judgment. Because Defendant has not yet fully explained pieces of its search, and because it has justified its withholdings as to only one record, the Court will grant the Motion in part and deny it in part.

I. Background

As the Court noted in its previous Opinion, Elkins has some history with the FAA.

Page 93

See Elkins v. Fed. Aviation Admin. (Elkins I), No. 14-476, 65 F.Supp.3d 194, 2014 WL 4243152, at *1 (D.D.C. Aug. 28, 2014). Since 2005, he has submitted several requests to the agency seeking records pertaining to aircraft he has observed flying overhead. See Compl. at 2-6. His stated purpose in seeking these records is to expose and document unlawful government surveillance, id. at 3, and his FOIA requests have met with varying levels of success. See Elkins I, 2014 WL 4243152, at *1 (collecting cases).

Elkins originally submitted the FOIA request in contention here on July 19, 2013. See Mot., Exh. A. His request was prompted by his observation of an aircraft that circled over his house near St. Petersburg and then proceeded to follow him as he traveled away from home. See Compl. at 5. He asked the FAA to provide the following records:

The N number [the number by which aircraft are registered with the FAA], [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 [Department of Justice] 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.

July 19, 2013, Request. Elkins amended this request a couple days later to add:

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" [Passur is a private flight-monitoring company] and the FAA to allow interruption of live feeds (end taps) to their public web site if any.
4. All records if any, presented to the FAA by this entity showing that they have cause of action (warrant) to pursue this surveillance
5. All records how long actually the plane was in flight
6. All records from w[h]ere it departed, and w[h]ere it landed . . .
7. ALL RECORDS OF WHAT ENTITY HAD TACTICAL CONTROL OVER THIS AIRCRAFT.

Mot., Exh. B (July 23, 2013, Request).

In response, the FAA notified Plaintiff that it had searched for records " at Tampa Airport Traffic Control Tower," and that it was releasing to him a " compact disc containing voice []recordings pertaining to [his] request," from which the " Aircraft Registration Number" had been redacted. See Compl., Exh. 1 (November 5, 2013, Response). Dissatisfied with this response, Elkins filed suit in this Court. Defendant then filed a Motion for Summary Judgment, claiming that it had (1) conducted an adequate search and (2) ...


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