Mann v. The United States of America

Filing 36

OPINION AND ORDER: Defendant's motion for summary judgment 21 is GRANTED. This case is DISMISSED. See formal OPINION AND ORDER. Signed on 10/14/2015 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MARK A. MANN,

Case No. 6:14-cv-01774-AA
OPINION AND ORDER

Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

AIKEN, Chief Judge:
Defendant United States of America,
of

Transportation

plaintiff

pursuant

(DOT),
to

moves

Federal

for
Rule

through the Department

summary

judgment

of

P.

Civ.

56.

against
For

the

reasons set forth below, DOT's motion is granted.
Background

Plaintiff

is

a

1 - OPINION AND ORDER

sole

proprietor

who

provides

project

engineering

services

to

general

contractors

completing highway

and airport projects. According to plaintiff, he prepares design
files

to

facilitate

construction

surveying

earthwork quanti ties for contract payments.
The

services

regarding

plaintiff

the

provides

quantities

of

require

materials

and

analysis

Mann Decl.
detailed

used

to

of

at 1-2.

information
complete

a

project.
Relevant to this

case,

plaintiff sought information about

the

Tiller Trail Highway Project

(the

the

Freedom

(FOIA)

of

Information

Act

approximately mile-long project
Oregon

that

involved

improvements,
sought:
format;

1)

and
the

grading,

asphalt

GEOPAK

CAD

2) a LandXML ("XML")

alignments;

3)

Project)
1

The

from

Project

between Canyonville
slope

paving. 2
design

DOT under

Specifically,
in

an

and Trail,

stabilization,

file

was

drainage
plaintiff

MicroStation

DGN

file of the horizontal and vertical

an XML file of the original ground surface;

and

4) an XML file of the final design surface.
On May 1,

2014,

DOT provided plaintiff twenty-one files in

the format in which DOT maintained them; DOT did not provide the
The Western Federal Lands Highway Division, a part of th~ DOT,
administered the Project in this case, and is the agency
identified as "DOT." Aguirre Decl. at 2.
1

2

According to DOT, construction work on the Project was
completed on October 27, 2014.
2 - OPINION AND ORDER

information in the XML format requested by plaintiff due to the
burden

of

converting

the

underlying

data

to

XML

format.

Plaintiff subsequently filed another FOIA request seeking:
GEOPAK XS-List Report
original

original
and

4)

surface;

ground

alignments

for

the

ground
the

(cross-section files in XSR format)

final

road

design

three-dimensional

final

horizontal

the

2)

in

surface

XML
data

design three-dimensional

and

1)

a

of the

vertical

format;

3)

in

format;

XML

surface data

the

in XML

format. This request was also denied.
On November 7, 2014, plaintiff filed a complaint under FOIA
seeking production of the requested information in XML and XSR
formats.

On

May

4,

2015,

DOT

moved

for

summary

judgment

on

plaintiff's claims.
Standard

Summary
issue

of

judgment

material

is

fact

appropriate
and

the

if

moving

there
party

is
is

no

genuine

entitled

to

judgment as a matter of law. Fed. R. Civ. P. 56(a). "An issue is
genuine if a reasonable trier of fact could find in favor of the
non-moving

party."

1142,

1146

Inc.,

477 U.S.

Rivera

(9th Cir.
242,

v.

2005)

248

Phillip

(citing Anderson v.

inferences

3 - OPINION AND ORDER

Inc.,

395

F.3d

Liberty Lobby,

(1986)). A fact is material if it could

affect the outcome of the case.
and draws

Morris,

in the

Id.

The court reviews evidence

light most

favorable

to

the

non-

moving party. Miller v. Glenn Miller Prods., Inc.,
988

(9th Cir.

(1999)).
moving
that

2006)

When

the

(citing Hunt v.
moving

party

come

forward

party . "must

there

Indus.

Co.

is
v.

a

genuine

issue

Comartie,

has

met

with
for

Zenith Radio Corp.,

454 F.3d 975,

526 U.S.

its

burden,

'specific

trial.'"

475 U.S.

541,
the

facts

non-

showing

Matsushita

574,

552

586-87

Elec.
(1986)

(quoting former Fed. R. Civ. P. 56(e)).
Discussion

DOT argues that files in XML or XSR format are not
reproducible"
that,

within

the

meaning

of

FOIA.

DOT

also

~readily

contends

because the DOT has taken reasonable efforts to maintain

its records in a format that is readily reproducible,
obligation

to _produce

the

data

sought

by

it has no

plaintiff

in

the

requested XML and/or XSR formats.
The FOIA requires agencies to provide information "in any
form or format requested ... if the record is readily reproducible
by the agency in that form or format." 5 U.S.C.
Further,

"[e]ach

agency

shall

make

552(a)(3)(B).

§

reasonable

efforts

to

maintain its records in forms or formats that are reproducible
for

purposes

provide

that

reproducible

of

this

section."

information
format.

4 - OPINION AND ORDER

See

will
49

Id.
be

C.F.R.

DOT

regulations

produced
§

7.26(c)

in

any

("DOT

likewise
readily
provides

records in the form or format

sought by the

requester,

if the

records are readily reproducible in that form or format.").
Here,
files

the

parties

disagree

of

the

data

as

requested

to

by

whether

XML

plaintiff

and/ or

XSR

"readily

are

reproducible" or whether their creation places an undue burden
on the DOT.
requested

Federal agencies must "provide recbrds in the format
by

the

reproducible,
interference

absent
or

Rev.

Serv.,

TPS,

Inc. v. U.S.

2003)

(FOIA

requester

the

if

compelling

burden."

records

evidence

Public.Resource.org

are

significant

of
v.

readily

U.S.

Internal

78 F. Supp. 3d 1262, 1263 (N.D. Cal. 2015); see also
Dep't. of Def.,

"requires

that

the

330 F.3d 1191, 1195
agency

satisfy

a

(9th Cir.

FOIA

request

when it has the capability to readily reproduce documents in the
requested format.") .
not...

synonymous

In other words,

with

'technical [ly]

"'readily reproducible'
feasible.'

The

Court

is
may

consider the burden on the defendant in determining whether the
documents at issue are

'readily reproducible'

in the format the

plaintiff requests." Scudder v.

Cent.

Supp.

see also 5 U.S.C.

3d 19,

38

(D.D.C.

2014);

Intelligence Agency,
§

25 F.

552(a) (3) (B)

(agencies shall make "reasonable efforts" to maintain records in
readily reproducible formats).
When assessing the reasonableness of the agency's efforts,
the court must "accord substantial weight to an affidavit of an
5 - OPINION AND ORDER

agency

concerning

feasibility ...
Sample

v.

2006)

the

and

(an

agency's

determination

reproducibility."

Bureau

of

Prisons,

agency's

466

5

U.S.C.

F.3d

"determination

1086,

as

to

as
§

to

technical

552(a) (4) (B);

1088

(D.C.

Cir.

reproducibility,

moreover, must be accorded 'substantial weight' by the reviewing
court") .

However,

"such deference does not amount to a blanket

exemption from judicial review of the agency's justification for
declining to comply with a specific format request or failing to
maintain records

in

readily reproducible

formats."

Scudder,

25

sought

by

F. Supp. 3d at 39.
In

this

case,

I

find

that

the

information

plaintiff in XML and/or XSR formats is not readily reproducible
and would be burdensome for DOT to reproduce.
It is undisputed that DOT does not possess or maintain any
XML or XSR files for the Tiller Trail Highway Project.
Decl.

at 4; Aguirre Decl. at 8-9.

create

XML

alignment,

or

XSR

final

files

design

with
surface,

In fact,

horizontal
and

DO~

designers do not

alignment,

existing

Thompson

ground

vertical
surface;

XML and SXR are not standard files created by DOT designers and
are

not

normally

used

at

any

stage

of

the

design

process.

Aguirre Decl. at 3, 7. Further, DOT does not provide data in XML
and

XSR

files

to

contractors

projects. Id.
6 - OPINION AND ORDER

that

are

constructing

highway

Plaintiff
maintain

does

not

information

dispute

fact

XML

in

the
XSR

formats.

or

that

DOT
In

does

fact,

not
when

plaintiff requested that DOT provide the data in XML format,
conceded

that

XML

files

are

not

a

GEOPAK

~typical

he

format."

Thompson Decl. Ex. 1 at 1. Plaintiff also concedes that DOT must
export

the

underlying data

files in XML or XSR format.
to

plaintiff's

require

DOT to

Aguirre Decl.

argument,

from

its

See id.

289 Fed. Appx. 231

LaRoche v.

(2008)

Ex.

compliance

create new records
at 3-4;

files

in order to

7 at 2.

with

Thus,

his

create

contrary

request

would

in XML or XSR formats.
U.S.

Sec.

&

See

Exchange Comm' n,

([A]n agency is not required to create

new documents in order to satisfy a FOIA request.") ; Yagman v.
Brennan, 2015 WL 1285359 (C.D. Cal. 2015)
Moreover,
multi-step

according to the DOT, producing an XML file is a

process

survey data
physical

(accord).

that

typically

compiles

points

into

a

surface

original

or

ground

completed

surface.

three
file

dimensional,

representing

Specifically,

process entails the following steps:
After survey information is collected and design data
is produced, the first step is producing a data (DAT)
file from the cross sections using the GEOPAK reports
tool. The second step is to convert the data file to a
TIN file using other GEOPAK terrain tools. Once the
TIN
file
is
created it
can be
visualized
and
corrective steps applied for accuracy. The third step
is to convert the TIN file to a XML file using
software tools ... Using a separate software tool and to
7 - OPINION AND ORDER

a

the

verify accuracy, the fourth step requires the XML file
to be reimported back into a TIN file. Using another
software tool, a fifth step [requires] a separate
software tool to compare the initially produced TIN
and the TIN produced from the created XML file. This
tool compares the separate TIN files so that any
errors can be corrected.
Aguirre Decl. at 6. DOT contends that converting the data to XML
format

would take

from at

order

to

that

ensure

Aguirre Suppl.

least twenty-four to

the

data

was

at 6. 3 As it must,

Decl.

forty hours

reformatted

in

accurately.

the court affords great

deference to the declarations of Mr. Aguirre.
Plaintiff does not dispute DOT's assertion that converting
the data requested into XML format

is a multi-step process or

that the conversion process would require twenty-f6ur to fortyeight

hours

accurately.
have

to

insure

Rather,

that

the

information

plaintiff contends

completed the first

two steps

that

was

reformatted

DOT already should

(creating a

that DOT previously has waived accuracy checks.

TIN file),

and

See Mann Decl.

at 5, 8.
However,
assertion.

plaintiff

misapprehends

the

nature

of

DOT's

DOT does not contend that it must employ a lengthy,

3

This estimate is based on conversion of the data into an XML
file. Mr. Aguirre estimates that the conversion process would
take forty to forty-eight hours if plaintiff's request includes
the XSR design file. Aguirre Suppl. Decl. at 6-7; Aguirre Decl.
at 8 ..
8 - OPINION AND ORDER

multi-step

process

to

confirm

the

accuracy

of

the

underlying

data plaintiff seeks to have converted into XML format.

Rather,

DOT asserts that it must employ such a process to verify that
the

underlying

data

exported

accurately into an XML file,
plaintiff

i.e.,

represents

the

the

from

DOT

files

is

converted

so that the information provided to

newly-created

XML

accurately

file

underlying data maintained by

the

DOT.

Aguirre

Suppl. Decl. at 7. I find this distinction important. Certainly,
it is reasonable for DOT to confirm that information it produces
pursuant to a

FOIA request actually represents

possessed and maintained by the agency.

the information

Given the time,

effort,

and resources required to convert the data plaintiff seeks into
several XML and/or XSR files,

I find that XML and XSR files are

not readily reproducible and that their creation would place an
undue burden on DOT. See generally Aguirre Suppl. Decl.
Plaintiff also argues that on two prior occasions the DOT
complied with his requests for original ground surface files in
XML format.

See Mann Decl.

and

However,

2009).

twice

in

the

past

the
seven

at 3

fact

(information requested in 2008

that

years

does

DOT
not

accommodated
constitute

plaintiff
a

waiver,

admission or a business-as-usual practice such that DOT should
be required to convert data into XML format
instances. TPS, 330 F.3d at 1195.
9 - OPINION AND ORDER

in this or future

Finally, DOT represents that it provided plaintiff with the
underlying

data

plaintiff

DOT

does

not

would

use

dispute

to

that

create
he

the

could

XML

file,

convert

and

the

data

provided by DOT into XML and/or XSR formats. Aguirre Decl. at 78;

Pl.'s

DOT's

Resp.

duty

at

to

2.

Under

shoulder

the

the

circumstances,

burden

of

it

is

converting

not

data

the
into

specific file formats to further plaintiff's business interests,
particularly

at

the

unnecessary

expense

of

governmental

resources.
DOT also represents that it could produce the

information

sought by plaintiff in a CVS file format, which is the format in
which DOT provides final design surfaces to its contractors. See
Aguirre
read,

Decl.

used,

segregate

its

5-6.

According

and/or
Id.

duties

parse
at 6.

the
I

so,

DOT,

the

CSV

file

can be

DOT

to maintain

shall

requested in CVS format.

Ill
Ill
Ill
10 - OPINION AND ORDER

data

for

import

into

other

therefore find that DOT has complied

readily reproducible format.
done

to

and manipulated by any person and allows others to

applications.
with

at

information

in

an

accessible

and

Accordingly, if it has not already

provide

the

information

by

plaintiff

Conclusion

For

the

reasons

set

summary judgment (doc. 21)

forth

above,

defendant's

is GRANTED. This case is DISMISSED.

IT IS SO ORDERED.
Dated this

~

day of October, 2015.

Ann Aiken
United States District Judge

.11- OPINION AND ORDER

motion

for