Natural Resources Defense Council, Inc. v. Wright-Patterson Air Force Base et al
Filing
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OPINION & ORDER: Because the Court finds that the Air Force conducted an adequate search for records responsive to the NRDC's FOIA request, defendants' motion for summary judgment is granted and plaintiffs motion for limited discovery is denied. (Signed by Judge Sidney H. Stein on 8/3/11) (laq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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NATURAL RESOURCES DEFENSE COUNCIL, :
INC.,
:
Plaintiff,
:
:
-against:
:
WRIGHT-PATTERSON AIR FORCE BASE,
:
a component of the UNITED STATES
:
DEPARTMENT OF THE AIR FORCE, and the
:
UNITED STATES DEPARTMENT OF THE AIR :
FORCE,
:
Defendants.
:
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10 Civ. 3400 (SHS)
OPINION & ORDER
SIDNEY H. STEIN, U.S. District Judge.
Plaintiff Natural Resources Defense Council, Inc. (“NRDC”) brings this action alleging
that defendants Wright-Patterson Air Force Base and the United States Department of the Air
Force (collectively, the “Air Force”) failed to conduct an adequate search for records responsive
to a Freedom of Information Act (“FOIA”) request made pursuant to 5 U.S.C. § 552.
Defendants move pursuant to Federal Rule of Civil Procedure 56 for summary judgment in their
favor on the ground that they have conducted an adequate search. Plaintiff opposes this motion
and cross-moves for limited discovery. Because this Court finds that defendants have conducted
an adequate search, their motion for summary judgment is granted.
I.
BACKGROUND
The following facts are undisputed unless otherwise noted.
A. The FOIA Request
On October 2, 2009, the NRDC submitted to the Wright-Patterson Air Force Base a
FOIA request concerning a $6 billion “coal-to-liquid facility” (the “Facility”) for Wellsville,
Ohio proposed by Baard Energy. (See Letter from NRDC to Wright-Patterson (Oct. 2, 2009),
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Ex. 1 to Declaration of Darrin L. Booher dated Oct. 28, 2010 (“Booher Decl.”); Compl. ¶2.)
According to the Complaint, the Facility would employ technologies “never before used in the
United States to convert coal into diesel fuel, naphtha . . . and electricity.” (Compl. ¶ 2.) In
doing so, the Facility would allegedly emit annually more than 26 million tons of carbon dioxide,
thereby “contribut[ing] to global warming” and “endanger[ing] human health and the
environment.” (Id. ¶ 3.) Specifically, the NRDC requested from Wright-Patterson all records
regarding:
(1) Any proposal by Baard Energy to enter into a contract for the purchase of fuel that
would be generated by the Facility; (2) Any evaluation of the Facility as a possible source
of fuel for the United States government or any of its components; (3) Any
communications between Baard Energy and [Wright-Patterson] or any other [Department
of Defense (“DOD”)] components regarding the Baard Energy [] Facility; and (4) Any
communications between the Ohio Department of Development, the Ohio Air Quality
Development Authority, or the Columbiana County Port Authority and [WrightPatterson] or other DOD components regarding the Baard Energy [] Facility.
(Letter from NRDC to Wright-Patterson (Oct. 2, 2009) at 1-2.)
B. The Air Force’s Initial Search and Response that “No Records” Exist
Upon receiving the NRDC’s FOIA request, the Air Force assigned it a case number and
an action officer. (Booher Decl. ¶ 4.) The Air Force also confirmed with an NRDC attorney that
the records search should be limited to Wright-Patterson and not referred to other Department of
Defense (“DOD”) organizations even though the FOIA request referenced DOD organizations
apart from Wright-Patterson. (Id. ¶¶ 6-7.) Initially, the Air Force forwarded the FOIA request to
the Civil Engineering Branch of the 88th Air Base Wing, which advised that it was not
responsible for the subject matter addressed in the NRDC’s FOIA request. (Id. ¶ 8.)
The Air Force next forwarded the request to the Propulsion Directorate at the Air Force
Research Laboratory (“AFRL”) located at Wright-Patterson. (Id.) Specifically, the request went
to Detachment 1, AFRL Directorate of Contracting—the AFRL branch primarily responsible for
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contracts having to do with fuel-related issues. (Id. ¶¶ 9-10.) This branch searched relevant
AFRL offices and records both manually and electronically, using the search terms “BAARD
Energy,” “Wellsville, Ohio” and “coal-to-liquid facility.” It reported that no responsive records
were located. (Id. ¶ 10.) As this search was being completed, an Air Force FOIA analyst sent
the NRDC an email stating that the Air Force would likely issue a “No Records” response;
however, the analyst did include two links in her email: one link to an article about the AFRL’s
alternative fuels program at Wright-Patterson and another to a document entitled “The Dayton
Region’s Wright-Patterson Air Force Base Strategic Vision,” which listed “BAARD Energy” as
a “key linkage” for supporting alternative fuels research. (See Ex. 6 to Decl. of Joshua A.
Berman dated Nov. 29, 2010 (“Berman Decl.”).) On November 17, 2009, the Air Force
officially sent the NRDC a “No Records” response to the FOIA request stating that “[a] thorough
search by Air Force Research Laboratory (AFRL/PK) has not produced any responsive records.”
(Ex. 5 to Booher Decl.)
C. The NRDC’s Administrative Appeal
The following month, the NRDC filed an administrative appeal of the Air Force’s “No
Records” response. (Ex. 6 to Booher Decl.) The NRDC attached to its appeal both the
“Strategic Vision” document referring to Baard and a February 2009 email exchange that it had
obtained through a separate public records requests to Ohio state agencies. (Booher Decl. ¶ 12;
Attach. H to Berman Decl.) This email exchange between William Harrison—a Technical
Advisor at the Fuels and Energy, Propulsion Directorate of the AFRL located at WrightPatterson—and Stephan Dopuch—Vice President of Business Development at Baard Energy—
concerned the Air Force’s policy on alternative fuels. (Id.)
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The Air Force forwarded the NRDC’s administrative appeal to Detachment 1 of the
AFRL Directorate of Contracting, which confirmed that it had no responsive records and, in turn,
forwarded the appeal directly to Harrison. (Booher Decl. ¶¶ 13-14.) According to a declaration
by Darrin Booher, the Air Force action officer assigned to this FOIA request, Harrison
subsequently “searched his paper and electronic records and located no records that were
responsive to the FOIA request.” (Id. ¶ 15.) Harrison also allegedly asked other staff members
involved with synthetic fuels to search their files for responsive records, but none were located.
(Id.)
In March 2010, the NRDC supplemented its administrative appeal with copies of two
additional email exchanges from February and March 2007, respectively, which the NRDC had
obtained from the state of Ohio and believed were relevant to the FOIA request. (Ex. 10 to id.)
The first email exchange from February 2007—between Harrison and Dopuch from Baard
Energy—referenced briefings that Harrison attended, a Baard project, and setting up a meeting.
(Attach. I to Ex. 10 to id.) The March 2007 email exchange between Paul Bollinger—Special
Assistant to the Assistant Secretary of the Air Force, Installations, Environment & Logistics—
and John Baardson—a Baard executive—concerned Baardson’s invitation to join high-ranking
officials at an Air Force forum on energy. (Attach. J to Ex. 10 to id.) Booher stated that he
specifically spoke to Harrison about the emails supplied by the NRDC and that Harrison said he
did not have copies of these emails because he had deleted them pursuant to the Air Force’s
Records Disposition Schedule. (Id. ¶ 20.)
In July 2010, the Air Force expanded its search to additional Wright-Patterson offices.
(Id. ¶ 21.) The expanded search covered offices dealing with contracting and environmental
matters at its Headquarters Air Force Material Command and at its Aeronautical Systems Center,
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as well as its public affairs offices. (Id.) None of these offices located responsive records. (Id.
¶¶ 22-25.) On August 30, 2010, the Air Force affirmed its original “No Records” response and
dismissed the NRDC’s administrative appeal. (Ex. 12 to id.)
D. This Action and the Air Force’s Belated Production of Responsive Records
Plaintiff commenced this action in April 2010, challenging the adequacy of the Air
Force’s search. In October 2010, two months after dismissal of the NRDC’s administrative
appeal, the Air Force moved for summary judgment on the ground that it had conducted an
adequate search for responsive records. In support of this motion, the Air Force submitted a
declaration from Booher, the officer assigned to the NRDC’s FOIA request. Plaintiff opposed
defendants’ motion for summary judgment and has cross-moved for limited discovery related to
the adequacy of the Air Force’s searches, Harrison’s purported destruction of responsive records,
application of Air Force policy to those records, and whether any responsive records are
otherwise retrievable through alternative search methods.
In the course of briefing these motions, the Air Force produced additional records
responsive to the NRDC’s FOIA request. A declaration by John Pellett—the Air Force counsel
responsible for reviewing the NRDC’s administrative appeal—acknowledges an earlier
“miscommunication” between Harrison and Booher regarding the existence of responsive
documents. (See Decl. of John M. Pellett dated Dec. 23, 2010 ¶ 5 (“Pellett Decl.”).) Pellett
states that in December 2010 he met with Harrison to clarify Harrison’s response to the FOIA
request and that, contrary to statements in Booher’s declaration, the Air Force did in fact obtain
responsive records from Harrison during the NRDC’s administrative appeal. (Id.)
On the same day Pellett executed his declaration, the Air Force sent the NRDC’s counsel
five of those responsive documents—four filings before the Ohio Environmental Review
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Appeals Commission about the Facility and a January 2007 email from Dopuch of Baard Energy
referencing a telephone discussion with a Wright-Patterson employee and an upcoming DOD
briefing at which the Wright-Patterson employee might use information provided by Baard. (Id.
¶ 9; see Exs. 1, 2 to id.) The sixth document—a follow-up email from Dopuch dated February 1,
2007 with slides about the carbon output of what appears to be the Facility—was sent
subsequently to the NRDC, but with redactions. (See Attach. to Letter from Joshua Berman
(March 16, 2011).) The NRDC does not challenge any of the redactions. (Id.)
II.
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the evidence shows that there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining
whether a genuine dispute as to a material fact exists, the Court “is to resolve all ambiguities and
draw all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). Nonetheless, the party
opposing summary judgment “may not rely on mere conclusory allegations nor speculation, but
instead must offer some hard evidence” in support of its factual assertions. D’Amico v. City of
New York, 132 F.3d 145, 149 (2d Cir. 1998).
The statutory and case law governing the adequacy of a FOIA search for records is rather
straightforward. “In order to prevail on a motion for summary judgment in a FOIA case, the
defending agency has the burden of showing that its search was adequate and that any withheld
documents fall within an exemption to the FOIA.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807,
812 (2d Cir. 1994) (citing 5 U.S.C. § 552(a)(4)(B)). An agency may rely on “affidavits or
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declarations supplying facts indicating that the agency has conducted a thorough search and
giving reasonably detailed explanations why any withheld documents fall within an exemption.”
Id. Such agency affidavit or declarations are “accorded a presumption of good faith.” Id.
(internal citation omitted). “In order to justify discovery once the agency has satisfied its burden,
the plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the
agency’s affidavits or declarations, or provide some tangible evidence that an exemption claimed
by the agency should not apply or summary judgment is otherwise inappropriate.” Id. (internal
citations omitted).
B. Adequacy of the Air Force’s Search
The issue for resolution on these motions is whether the Air Force conducted an adequate
search for records responsive to the NRDC’s FOIA request. The NRDC contends that the Air
Force has not met its burden because (1) the Air Force’s declarations are inadmissible; (2) the
Air Force’s declarations are insufficiently detailed; and (3) there is tangible evidence of
overlooked materials.
1. The Air Force’s Declarations are Admissible
Plaintiff challenges the admissibility of the Air Force’s two declarations on the grounds
that they are not based on personal knowledge and therefore are inadmissible hearsay. This
argument is meritless. “An affidavit from an agency employee responsible for supervising a
FOIA search is all that is needed to satisfy Rule 56(e)1; there is no need for the agency to supply
affidavits from each individual who participated in the actual search.” Carney, 19 F.3d at 814;
see Adamowicz v. I.R.S., 672 F. Supp. 2d 454, 463 (S.D.N.Y. 2009) (finding officer assigned to
process FOIA request competent to testify about government’s search). Here, Booher declares
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The December 1, 2010 amendments to Federal Rule of Civil Procedure 56 moved the relevant Rule 56(e) provision
to Rule 56(c)(4). See Fed. R. Civ. P. 56(c)(4), amendment notes to Subdivision (c)(4).
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under penalty of perjury that he was the “action officer” responsible for processing the NRDC’s
FOIA request and that his declaration “is based on personal knowledge.” (See Booher Decl. ¶¶
1-4.) Similarly, Pellett states that he is the agency counsel assigned to this litigation and was
responsible for reviewing the NRDC’s administrative appeal, that he spoke with Booher and
Harrison in order to resolve any discrepancies, and that his declaration is based on “personal
knowledge.” (See Pellett Decl. ¶¶ 1-5.) Accordingly, Booher and Pellett are competent to testify
about the Air Force’s search, and their declarations will be considered for the purpose of
determining the adequacy of that search.
2. The Air Force’s Declarations are Sufficiently Detailed
The NRDC contends that even if the Air Force’s declarations are admissible, they lack
sufficient detail. The Second Circuit requires that agency declarations in support of summary
judgment in FOIA cases be “relatively detailed and nonconclusory.” Grand Cent. P’ship, Inc. v.
Cuomo, 166 F.3d 473, 488-89 (2d Cir. 1999); see also Maynard v. C.I.A., 986 F.2d 547, 559 (1st
Cir. 1993) (“A satisfactory agency affidavit should, at a minimum, describe in reasonable detail
the scope and method by which the search was conducted.”); Tarullo v. U.S. Dep’t of Defense,
170 F. Supp. 2d 271, 275 (D. Conn. 2001) (finding declaration that does not describe “the scope
and nature of the search conducted” to lack the required specificity).
Here, the Air Force’s declarations are “relatively detailed and nonconclusory.” Grand
Cent. P’ship, Inc., 166 F.3d at 488-89. The Booher declaration specifies that the Air Force first
searched the Civil Engineering Branch of the 88th Air Base Wing and the branch of the AFRL
Directorate of Contracting that has primary responsibility for fuels-related issues at WrightPatterson. This declaration identifies the particular search terms used by the AFRL Directorate
of Contracting. (Booher Decl. ¶¶ 8-10.) Moreover, Booher states that following plaintiff’s
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administrative appeal, the Air Force re-contacted the abovementioned branches and expanded its
search to a host of additional offices dealing with contracting, environmental, and public affairs
matters. (Id. ¶¶ 13, 17-25.) According to his declaration, Booher also spoke with Harrison about
Harrison’s paper and electronic search for records, Harrison’s communications with other staff
members regarding the FOIA request, and the fact that the Air Force had not actually evaluated
the Facility proposed by Baard Energy. (Id. ¶¶ 15-16.) Likewise, the Pellett declaration details a
subsequent conversation that Pellett had with Harrison in order to clear up earlier confusion
about Harrison’s search for responsive records. Because the Air Force’s declarations describe
the scope and nature of a thorough search, they contain sufficient specificity.
3. Plaintiff’s Tangible Evidence Does Not Create a Genuine Dispute of Material
Fact as to the Adequacy of the Air Force’s Search
Plaintiff argues that responsive documents it uncovered on its own and a contradiction in
the Air Force’s declarations demonstrate that the Air Force’s search was inadequate. A court
should not grant summary judgment where there is “tangible evidence” that creates a genuine
dispute as to the adequacy of the agency’s search. Carney, 19 F.3d at 812; see Valencia-Lucena
v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (summary judgment inappropriate “if a
review of the record raises substantial doubt, particularly in view of . . . ‘positive indications of
overlooked materials’” (internal citation omitted)); see also Fed. R. Evid. 56(c)(4).
Here, plaintiff points to three sets of email exchanges suggesting the existence of
additional responsive documents in the Air Force’s possession and thus the inadequacy of the Air
Force’s search: (1) the 2009 emails between Harrison and Dopuch from Baard Energy regarding
the Air Force’s policy on alternative fuels; (2) the 2009 emails between Bollinger from DOD and
Baardson from Baard Energy regarding Baardson’s attendance at an Air Force energy forum;
and (3) the 2007 emails—only recently turned over by the Air Force—between Dopuch and a
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Wright-Patterson employee regarding the carbon output of a Baard plant in Wellsville, Ohio and
a DOD briefing on green energy. Indeed, these responsive records show that someone at
Wright-Patterson—perhaps Harrison—was communicating with Baard Energy executives as
early as 2007 about the proposed Facility.
Nonetheless, the mere existence of these records does not establish that the Air Force
possesses additional records. Although plaintiff contends that the Air Force has failed to
demonstrate that any purported deletion of records complied with the Air Force’s Records
Disposition Schedule, the issue of whether the Air Force complied with its own document
retention policy is immaterial to the issue of whether the Air Force met its burden under FOIA.
See Piper v. U.S. Dep’t of Justice, 294 F. Supp. 2d 16, 22 (D.D.C. 2003) (“Even if the arguments
concerning possible FBI violations of law regarding document destruction were taken as true,
‘they do not establish that the defendant actually has possession of the [documents], which is a
prerequisite for FOIA liability.’” (citing Folstad v. Bd. of Governors of the Fed. Reserve Sys.,
234 F.3d 1268 (Table), 2000 WL 1648057, at *2 (6th Cir. 2000))). Moreover, the Air Force is
under no obligation to locate every single record that could possibly exist. Grand Cent. P’ship,
Inc., 166 F.3d at 489 (“When a plaintiff questions the adequacy of the search an agency made in
order to satisfy its FOIA request, the factual question it raises is whether the search was
reasonably calculated to discover the requested documents, not whether it actually uncovered
every document extant.” (citing SafeCard Services, Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C.
Cir. 1991))).
Finally, the NRDC contends that the Air Force’s declarations themselves provide tangible
evidence that additional responsive records likely exist. Plaintiff is correct that the Air Force’s
declarations contain a contradiction. The Pellett declaration acknowledges an inaccuracy in the
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earlier Booher declaration. Although the Booher declaration stated that Harrison failed to
identify any responsive records during the processing of the NRDC’s administrative appeal,
Harrison did in fact identify such records. In other words, the Pellett declaration admits that the
Air Force made a mistake—the Air Force did not turn over responsive documents when it first
should have.
But the Air Force subsequently did turn over those documents. That the Air Force
confessed to a mistake in its initial declaration and then corrected that mistake does not render
the search inadequate. An agency should be encouraged, rather than discouraged, to “reappraise
its position, and when appropriate, release documents previously withheld.” Meeropol v. Meese,
790 F.2d 942, 953 (D.C. Cir. 1986). Indeed, the Court of Appeals for the District of Columbia
Circuit has suggested that an agency should be trusted more, not less, when it admits to a
mistake. Id. See also Lowy v. I.R.S., No. 10 Civ. 00767, 2011 WL 1211479, at *7 (N.D. Cal.
Mar. 30, 2011) (“[T]he fact that additional searches were conducted by the IRS and additional
responsive documents located after the inception of the litigation . . . does not entitle plaintiffs to
relief on their claim that the search was deficient.”); Richardson v. U.S. Dep’t of Justice, 730 F.
Supp. 2d 225, 231-22 (D.D.C. 2010) (rejecting argument that the agency’s release of documents
after the filing of a lawsuit is evidence of an inadequate search); cf. Meeropol, 790 F.2d at 952
(no bad faith based on the fact that after the FBI claimed to have completed its search, it
uncovered responsive files because evidence of their existence was supplied by plaintiffs ).
There is nothing in the record to impugn the Air Force’s latest declaration or to suggest
that the Air Force failed to contact a particular individual or search a particular location likely to
possess responsive records. Accordingly, based on the competent and sufficiently detailed
declarations from Booher and Pellett, the Court concludes that the Air Force’s search was
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adequate. Because summary judgment in favor of the Air Force is appropriate as a matter of
law, the NRDC is not entitled to the discovery it seeks. See Carney, 19 F.3d at 813 (no abuse of
discretion where district court denies plaintiff s request for discovery based on speculation that
other documents exist).
III.
CONCLUSION
Because the Court finds that the Air Force conducted an adequate search for records
responsive to the NRDC's FOIA request, defendants' motion for summary judgment is granted
and plaintiff s motion for limited discovery is denied.
Dated: New York, New York
August 3, 2011
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