Roman v. Department of the Air Force , 952 F. Supp. 2d 166 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
GILBERT ROMAN, )
)
Plaintiff, )
)
v. ) Civil No. 12-1381 (EGS)
)
DEPARTMENT OF THE AIR FORCE, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Pro se plaintiff, Gilbert Roman, filed a complaint on
August 20, 2012, seeking a court order requiring defendant, the
Department of the Air Force, to properly respond to his requests
for information, pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552 (2012).1 Compl. at 1, Docket No. 1.
Pending before the Court are: (1) Defendant’s Motion to
Dismiss, or, in the Alternative, for Summary Judgment (Docket
No. 7), Plaintiff’s Opposition thereto (Docket No. 12), and
Defendant’s Reply (Docket No. 17); (2) Plaintiff’s Motion to
Release Paperwork and Enter New Evidence (Docket No. 10), and
Defendant’s Response (Docket No. 11); and (3) Plaintiff’s
1
Plaintiff filed another case, Roman v. National Reconnaissance
Office, Case No. 12-1370, also resolved by the Court this same
day. The two cases involve different FOIA requests to different
agencies.
Motions to Enter New Evidence (Docket Nos. 6, 13-16, 21), and
Defendant’s Oppositions thereto (Docket Nos. 17-20).
As a preliminary matter, Plaintiff’s motions to enter new
evidence into the record are GRANTED. Upon consideration of
Defendant’s motion, the opposition and reply thereto, the entire
record in this case, the applicable law, and for reasons set
forth below, the Court concludes that Plaintiff failed to
exhaust his administrative remedies regarding one of the two
FOIA requests at issue. Accordingly, his complaint is DISMISSED
as to that FOIA request. The Court further concludes that the
government is entitled to summary judgment with respect to the
remaining FOIA request because its search was reasonable and
adequate. Accordingly, Defendant’s motion for summary judgment
is GRANTED. In light of the foregoing, Plaintiff’s pending
Motion to Release Paperwork is DENIED as moot.
I. BACKGROUND
A. August 14, 2011 FOIA Request
On August 14, 2011, Plaintiff requested information
concerning the Air Force’s High-Frequency Active Auroral
Research Program (“HAARP”). Compl., Ex. A. HAARP is a program
that studies the “upper atmospheric and solar-terrestrial
physics and Radio Science.” Compl., Ex. B. Specifically,
Plaintiff requested: “1. All locations of HAARP research
facilities. All locations of active HAARP devices; either on
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land, sea, space or air. 2. All dates and times that a HAARP
device has and been tested or used.” Compl., Ex. A.
On September 2, 2011, Defendant confirmed receipt of
Plaintiff’s August 14, 2011 request and forwarded the request to
the Communications Division of the Kirtland Air Force Base in
New Mexico (“Kirtland AFB”) for response. Compl., Ex. C5;
Declaration of Elizabeth A. Toth (“Toth Decl.”) ¶¶ 1, 4, Ex. 2.
Plaintiff’s FOIA request was assigned case number 2011-06493-F.
Compl., Ex. C5; Toth Decl. ¶ 4, Ex. 2.
On September 7, 2011, the Kirtland AFB acknowledged receipt
of Plaintiff’s August 14, 2011 request. Toth Decl. ¶ 4, Ex. 3.
On September 22, 2011, the Alternate FOIA Manager at Kirtland
AFB, Elizabeth Toth, responded by email to Plaintiff’s August
14, 2011 request advising Plaintiff that the requested
information was “fully releasable” and attached responsive
documents. Toth Decl. ¶ 5, Ex. 4. Ms. Toth sent Plaintiff
information about the HAARP facility in Gakona, Alaska, with a
“HAARP fact sheet” created by Dr. Craig Selcher, the HAARP
Program Manager, addressing Plaintiff’s request. Id. On
September 26, 2011, Ms. Toth resent its original response to
Plaintiff by email in a different format, per Plaintiff’s
request. Id.Plaintiff appealed the decision on September 28, 2011
claiming: “I have seen budget reports that show over 23 HAARP
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research facilities and/or devices around the US and beyond. So
[s]omeone has not searched the proper files.” Toth Decl. ¶ 6,
Ex. 5. On October 28, 2011, Defendant acknowledged receipt of
Plaintiff’s appeal and assigned it case number 2012-00009-A.
Compl., Ex. C7. After receipt of the appeal, Dr. Selcher, the
HAARP Program Manager, conducted an additional search through
the paper records to determine if more than one HAARP facility
existed and concluded that none did. Toth Decl. ¶ 7. As such,
Defendant denied the appeal on July 23, 2012, advising Plaintiff
that there is only one HAARP facility, and of his right to a
judicial review of its determination. Compl., Ex. C1; Toth
Decl. ¶ 8, Ex. 6.
Another division of the Department of the Air Force, the
Air Force Historical Research Agency (“AFHRA”), also responded
to Plaintiff’s August 14, 2011 FOIA request. Compl., Ex. C6;
Def.’s Mot. at 8 n.2; Declaration of Kevin I. Burge (“Burge
Decl.”) ¶ 7, Ex. 4. The AFHRA assigned Plaintiff’s FOIA request
case number 2011-6483-F. Compl., Ex. C6; Burge Decl. ¶ 7, Ex.
4.
Kevin Burge, an archivist at the AFHRA, processed
Plaintiff’s request. Burge Decl. ¶¶ 1, 7. He searched AFHRA’s
collections using an electronic indexing system known as IRIS
for any references to HAARP. Burge Decl. ¶¶ 4, 7. On September
7, 2011, the AFHRA advised Plaintiff that it did not have any
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responsive records but enclosed the abstract of seven documents
that mentioned HAARP. Compl., Ex. C6; Burge Decl. ¶ 7, Ex. 4.
The AFHRA advised Plaintiff that he had 60 days to appeal the
decision. Compl., Ex. C6; Burge Decl. ¶ 7, Ex. 4. Plaintiff
did not appeal this decision. Burge Decl. ¶ 7.
B. Correspondence Relating to Other FOIA Requests
Plaintiff’s Complaint is explicitly limited to one FOIA
request – the August 14, 2011 request referred to as “my
request,” and attached to the Complaint as Exhibit A. Compl. at
1, Ex. A. The Complaint also contains other attachments, most
of which are correspondence from the Air Force regarding various
FOIA requests. Some of the correspondence, described above,
clearly relates to the August 14, 2011 request identified in the
Complaint. Compl., Exs. C1, C5-7. Other correspondence appears
to relate to separate FOIA requests. Compl., Exs. C, C2-4
(various letters from the Air Force to Plaintiff between 2010
and 2012 with FOIA request numbers separate from those assigned
to the August 14, 2011 request).
At no point during this litigation has Plaintiff provided
the Court with any FOIA request other than the August 14, 2011
request; no other requests are attached to the Complaint, nor
does he identify or reference any other requests in his
Opposition, his Motion to Release Paperwork, or his Motions to
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Enter New Evidence.2 Likewise, Plaintiff does not discuss or
explain any of the correspondence which appears to relate to
other requests. In light of the foregoing, the Court concludes
that Plaintiff has not placed any requests but the August 14,
2011 request before the Court.
For the reasons explained above, and pursuant to the record
before this Court, at issue are Defendant’s two responses to
Plaintiff’s August 14, 2011 request: (1) the Kirtland AFB
response (assigned FOIA case number 2011-6493-F and appeal
number 2012-00009-A) and (2) the AFHRA response (assigned FOIA
case number 2011-6483-F).
II. PROCEDURAL HISTORY
On August 20, 2012, Plaintiff filed his Complaint against
Defendant. In response, Defendant filed a Motion to Dismiss,
or, in the alternative, for Summary Judgment on November 21,
2012. Plaintiff filed his opposition to Defendant’s motion on
December 6, 2012, and Defendant filed its reply on December 18,
2012.
Plaintiff has also filed several motions, including a
motion to release paper work, which appears to be a motion for
the Air Force to provide discovery, as well as a number of
2
In its Motion to Dismiss, Defendant references a November 2010
FOIA request from Plaintiff, but notes that “this case does not
encompass [that] request.” Def.’s Mot. at 2 n.1. The Court
agrees.
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requests that this Court enter evidence into the record. See,
e.g., Plaintiff’s Motion to Release Paper Work and to Enter New
Evidence (Docket No. 10); Plaintiff’s motions to enter new
evidence into the record (Docket Nos. 6, 13-16, 21). The
motions are ripe for resolution by the Court.
III. STANDARD OF REVIEW
A. Motion to Dismiss for Lack of Subject Matter
Jurisdiction
Federal courts have jurisdiction over FOIA cases “to enjoin
the agency from withholding agency records and to order the
production of any agency records improperly withheld from the
complainant.” 5 U.S.C. § 552(a)(4)(B). The court’s authority
to provide a remedy and enjoin an agency is only invoked if the
agency has violated all three elements: (1) improperly, (2)
withheld, (3) records. Kissinger v. Reporter Comm. for Freedom
of the Press, 445 U.S. 136, 150 (1980).
B. Motion for Summary Judgment
The Court may grant a motion for summary judgment if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits or declarations,
show that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). In a FOIA case, the burden of proof is
always on the agency to demonstrate that it has fully discharged
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its obligations under the FOIA. See Dep’t of Justice v. Tax
Analysts, 492 U.S. 136, 142 n.3 (1989).
In response to a challenge to the adequacy of its search
for requested records, “the agency may meet its burden by
providing ‘a reasonably detailed affidavit, setting forth the
search terms and the type of search performed, and averring that
all files likely to contain responsive materials . . . were
searched.’” Iturralde v. Comptroller of the Currency, 315 F.3d
311, 313-14 (D.C. Cir. 2003) (quoting Valencia-Lucena v. United
States Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)). In
addition, “[a]ny factual assertions contained in affidavits and
other attachments in support of motions for summary judgment are
accepted as true unless the nonmoving party submits affidavits
or other documentary evidence contradicting those assertions.”
Wilson v. Dep’t of Transp., 730 F. Supp. 2d 140, 148 (D.D.C.
2010) (citing Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir.
1992)).
C. Pro Se Parties
A pro se plaintiff's complaint will be “held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Partus, 551 U.S. 89, 94 (2007). However, “while . .
. some procedural rules must give way because of the unique
circumstance of incarceration,” there is no requirement “that
procedural rules in ordinary civil litigation should be
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interpreted so as to excuse mistakes by those who proceed
without counsel.” McNeil v. United States, 508 U.S. 106, 113
(1993) (internal citations omitted).
IV. ANALYSIS
A. Plaintiff’s Motions to Enter New Evidence
Plaintiff has filed several requests to enter documents
into the record. Specifically, he has provided the court with
(1) documents regarding weather modification; (2) additional
copies of documents attached to his Complaint and his Opposition
to Defendant’s Motion to Dismiss or for Summary Judgment; (3)
“The Military’s Pandora’s Box” by Dr. Nick Begich and Jeanne
Manning; (4) documents he identifies as “DARPA budget
justification reports;” and (5) a document titled “Russian
parliament concerned about US plans to develop new Weapon.” See
Docket No. 6, Exs. D-D11; Docket No. 10; Docket No. 13, Exs. L-
L2; Docket No. 15, Exs. L-L2; Docket No. 14, Exs. D1-D4; Docket
No. 16, Exs. D1-D4; Docket No. 21. The Court GRANTS Plaintiff’s
motions to enter new evidence, which was considered by the Court
when evaluating Defendant’s motion for summary judgment.
B. Defendant’s Motion to Dismiss, or, in the Alternative,
for Summary Judgment
Defendant moves to dismiss Plaintiff’s Complaint for lack
of subject matter jurisdiction or, in the alternative, moves for
summary judgment. The Court will consider them in turn.
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1. Subject Matter Jurisdiction
Federal courts have jurisdiction over FOIA cases when an
agency improperly withholds records. Kissinger, 445 U.S. at
150. Defendant argues this Court does not have jurisdiction
over this case because Plaintiff did not request records.
Def.’s Mot. at 8. Consequently, Defendant argues, it did not
improperly withhold records. Id. Instead, Defendant alleges
that Plaintiff asked questions regarding HAARP locations and the
frequency of its testing. Id. Defendant claims that
Plaintiff’s request was improper because it is not required
under the FOIA to answer questions. Id.; Zemansky v. E.P.A.,
767 F.2d 569, 574 (9th Cir. 1985). Therefore, Defendant argues
that even though it responded to Plaintiff’s improper request,
the sufficiency of its response is not subject to judicial
review because it did not have an obligation to answer
Plaintiff’s questions. Def.’s Mot. at 8.
However, Defendant’s response to Plaintiff’s request and
its denial of Plaintiff’s subsequent appeal confers jurisdiction
to the Court. Adams v. F.B.I., 572 F. Supp. 2d 65, 67 (D.D.C.
2008). In Adams, the court rejected defendant’s claim that the
court lacked subject matter jurisdiction even though the
plaintiff did not submit a proper FOIA request. Id. The
plaintiff asked a question instead of requesting documents, the
agency construed the question as a request for documents and
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responded, and the plaintiff appealed its response. Id. The
agency denied the appeal and informed the plaintiff that he
could seek judicial review of the decision. Id. Upon filing
the lawsuit, the agency filed a motion to dismiss for lack of
subject matter jurisdiction. Id. The court held that the
agency’s “denial of the request confers jurisdiction upon this
Court to review the lawfulness of its actions, including its
characterization of the request as improper” and denied the
motion. Id.Similar to Adams, Plaintiff allegedly made an improper FOIA
request by posing questions. Def.’s Mot. at 6-7. Defendant
responded and provided documents to Plaintiff. Toth Decl. ¶ 5,
Ex. 4; see also Burge Decl. ¶ 7, Ex. 4. As such, Defendant’s
response to Plaintiff’s request, and Plaintiff’s claim that
Defendant is improperly withholding records due to their alleged
inadequate search, gives jurisdiction to the Court to rule on
the matter.
2. Failure to Exhaust
A FOIA requester must exhaust administrative remedies
before seeking judicial review under the statute. See Banks v.
Lappin, 539 F. Supp. 2d 228, 234-35 (D.D.C. 2008) (“If a
requester has not exhausted his administrative remedies prior to
the filing of a civil action, dismissal is appropriate under
Rule 12(b)(6) of the Federal Rules of Civil Procedure for
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failure to state a claim upon which relief can be granted.”);
see also Wilbur v. C.I.A., 355 F.3d 675, 676 (D.C. Cir. 2004)
(“‘[E]xhaustion of administrative remedies is a mandatory
prerequisite to a lawsuit under FOIA’. . . .” (citations
omitted)).
A plaintiff exhausts administrative remedies when he
appeals an agency’s response to his FOIA request, and the agency
fails to respond to the appeal within the appropriate time
limit, denies the appeal, or makes an adverse determination. 5
U.S.C. § 552(a)(6)(A)(i)-(ii); See Hidalgo v. F.B.I., 344 F.3d
1256, 1259 (D.C. Cir. 2003). The burden is on the plaintiff to
prove exhaustion of administrative remedies. Brown v. F.B.I.,
793 F. Supp. 2d 368, 380 (D.D.C. 2011). The Court may dismiss
challenges to unexhausted FOIA requests sua sponte. See, e.g.,
Nat’l Sec. Counselors v. C.I.A, No. 12-284, 2013 U.S. Dist.
LEXIS 38815, at *56-57 n.13 (D.D.C Mar. 20, 2013) (citations
omitted).
Here, Plaintiff did not meet his burden in proving that he
exhausted all administrative remedies as to Defendant’s AFHRA
response to his August 14, 2011 request. Plaintiff did not
exhaust all administrative remedies because he did not appeal
Defendant’s September 7, 2011 AFHRA response to his request.
Burge Decl. ¶ 7. Specifically, Defendant’s response states that
Plaintiff has 60 days to appeal the decision. Compl., Ex. C6;
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Burge Decl. ¶ 7, Ex. 4. As such, Plaintiff’s deadline was
November 6, 2011. Although Plaintiff did file an appeal within
that time, it did not encompass AFHRA’s response to his request.
Rather, the appeal letter refers only to case number 2011-06493-
F, the case number assigned by Kirkland AFB. Toth Decl. ¶ 5, Ex.
5. It contains no reference to case number 2011-06483-F, the
case number assigned by AFHRA.
Accordingly, Plaintiff’s FOIA claims regarding Defendant’s
September 7, 2011 AFHRA response must be DISMISSED.
3. Summary Judgment
Summary judgment is appropriate when an agency details the
scope and method of the search conducted, there is no evidence
to the contrary, and there is no apparent inconsistency of
proof. See Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).
Defendant’s affidavit shows that it conducted a reasonable
search for the requested information, and Plaintiff does not
provide convincing evidence to the contrary. Accordingly,
Defendant’s motion for summary judgment is granted as to
Defendant’s Kirtland AFB response to Plaintiff’s August 14, 2011
request because its search was adequate and reasonable.
i. Reasonableness of Defendant’s Search
An agency meets its burden of establishing that it
reasonably searched for requested records by submitting a
“reasonably detailed affidavit” describing the method of the
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search and declaring that the files searched were likely to
contain responsive documents. Budik v. Dep't of Army, 742 F.
Supp. 2d 20, 30 (D.D.C. 2010). A declaration that is detailed,
non-conclusory and in good faith can prove a defendant conducted
a reasonable search. Weisberg v. Dep’t of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984). At a minimum, a sufficient
affidavit describes “what records were searched, by whom, and
through what process.” Id. at 30-31 (quoting Steinberg, 23 F.3d
at 552). In addition, agency declarations are presumed to be
made in good faith. SafeCard Servs., Inc. v. S.E.C., 926 F.2d
1197, 1200 (D.C. Cir. 1991).
Here, Defendant appropriately relies on the declaration of
Elizabeth A. Toth as coordinator and processor of FOIA requests.
Id. at 1201. (finding that an affidavit provided by a person in
charge of coordinating a search is appropriate). Ms. Toth is an
Alternate FOIA Manager at Kirtland AFB, whose duties include
“supporting and assisting the Primary FOIA Manager for the
installation with processing and responding to FOIA requests. .
. .” Toth Decl. ¶ 1. Ms. Toth’s declaration states that
Defendant conducted a search at the Space Weather Center of
Excellence, Battle Space Environment, Space Vehicles
Directorate, Air Force Research Laboratory (“AFRL/RVBX”), the
organization which manages the HAARP. Toth Decl. ¶¶ 5, 7. The
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AFRL/RVBX is “the organization most likely to have records
responsive to the request.” Toth Decl. ¶ 5.
The records were searched by Dr. Craig Selcher, the HAARP
Program Manager who is “familiar with all aspects of the program
including the location of the [HAARP] facility . . . .” Toth
Decl. ¶ 7. Additionally, Defendant explains that Dr. Selcher
searched the AFRL/RVBX records concerning the goals and scope of
HAARP to determine if another HAARP facility was referenced.
Id. Those records are relevant in determining if more than one
HAARP facility exists because they “relate to the initial and
ongoing planning for the program, the environmental impact
studies conducted in connection with the program, and all
construction in connection with the program.” Id. Moreover,
the files are in paper form and were searched “on a file by file
basis.” Id.Based on the foregoing, the Court concludes that Defendant
has satisfactorily demonstrated the reasonableness and adequacy
of its search.
ii. Allegations of Bad Faith
Once a defendant demonstrates the adequacy of its search,
the burden is then on the plaintiff to provide sufficient
evidence causing “substantial doubt” regarding the adequacy of
that search. Budik, 742 F. Supp. 2d at 32 (citations omitted).
Although the courts recognize that it is difficult for a FOIA
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requester to show that a file exists when he or she has never
seen it, an agency’s search does not need to be perfect, just
adequate. See Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir.
1986). “[A]dequacy is measured by the reasonableness of the
effort in light of the specific request.” Id. Furthermore,
declarations “cannot be rebutted by ‘purely speculative claims
about the existence and discoverability of other documents.’”
SafeCard Servs., Inc., 926 F.2d at 1200 (quoting Ground Saucer
Watch, Inc. v. C.I.A., 692 F.2d 770, 771 (D.C. Cir. 1981)).
Plaintiff’s opposition raises many allegations as to
Defendant’s bad faith in its search, but Plaintiff’s allegations
have no merit. Many of the allegations and evidence provided by
Plaintiff do not speak to the issue before the Court, pursuant
to Plaintiff’s appeal: was Defendant’s search adequate and
reasonable under FOIA in determining if more than one HAARP
facility exists? Compl. at 1; Toth Decl., Ex. 5.
Specifically, in his opposition, Plaintiff requests that
the Court order Defendant to produce the processing forms for
his requests to see if Defendant noted the search times on the
forms. Pl.’s Opp’n at 1. He attaches processing forms from
other agencies which do not indicate search times as an example
of an agency’s non-compliance. Pl.’s Opp’n, Exs. H1-H4.
Processing forms from other agencies, however, do not speak to
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the inadequacy of Defendant’s search and therefore are
irrelevant.
Next, Plaintiff attaches a document entitled “National
Reconnaissance Office Review and Redaction Guide for Automatic
Declassification of 25-Year-Old Information.” Pl.’s Opp’n, Exs.
F-F3. Plaintiff claims that the documents show different names
assigned to files. Pl.’s Opp’n at 1. Although his opposition
is not clear on this point, the Court will assume that Plaintiff
claims Defendant did not search different names in various
documents as search terms when conducting its search. Again,
this document is a guide produced by the NRO and does not
describe Defendant’s naming procedures, and Plaintiff has not
provided evidence showing its relevance.
Furthermore, an adequate search is determined on a case by
case basis. Davis v. Dep’t of Justice, 460 F.3d 92, 103 (D.C.
Cir. 2006) (“[T]he adequacy of an agency's search is measured by
a standard of reasonableness, and is dependent upon the
circumstances of the case.” (internal quotation marks and
citation omitted)). In this case, after Plaintiff appealed,
Defendant performed a second search that involved paper records.
Toth Decl. ¶ 7. In Defendant’s second search, Dr. Selcher, who
is “familiar with all aspects of the [HAARP] program including
the location of the facility,” Toth Decl. ¶ 7, searched the
records “for any reference to a [HAARP] facility other than the
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one at Gakona, Alaska.” Id. It was reasonable for Defendant to
take a general approach in its search to find a reference to any
possible HAARP facility since Plaintiff claimed in his appeal
that more than one facility exists, Compl. at 1; Toth Decl., Ex.
5, and his original request specifically asked for information
regarding HAARP. Compl., Ex. A; Toth Decl., Ex. 1.
Plaintiff also alleges that private contractors hold files
for Defendant and that it did not search the records of the
private contractors. Pl.’s Opp’n at 1. Plaintiff attaches a
document entitled “National Security Directive 42” to his
Opposition, which is a memorandum for “The Chief of Staff,
United States Air Force.” Pl.’s Opp’n, Exs. G1-G11. The
subject of the memorandum is “National Policy for the Security
of National Security Telecommunications and Information
Systems.” Id. Although this document does suggest that
government contractors exist, it does not show that Defendant
used private contractors in relation to the HAARP. Even if
Defendant did use private contractors, those records are not
necessarily “agency records” and may not be subject to the
requirements of the FOIA. See Tax Analysts, 492 U.S. at 144-45(defining "agency records" as (1) created or obtained by an
agency, and (2) under the agency’s control at the time of the
FOIA request).
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Plaintiff also attaches documents concerning weather
modification. Pl.’s Opp’n, Exs. D5-D11, I- I1, J-J2. Again,
these documents do not show that Defendant’s search was in bad
faith or that there is more than one HAARP facility. Likewise,
no other evidence in the record of this Court demonstrates the
inadequacy of Defendant’s search. See generally Docket Nos. 6,
13-16, 21.
Lastly, Plaintiff states in his opposition: “Whether you
call the technology HAARP or Ionosphere research; they use the
same technology. All locations of HAARP/Ionosphere facilities,
devices and test dates should be released.” Pl.’s Opp’n at 1.
It appears that Plaintiff argues that Defendant’s search for
records should include any ionosphere facility, not just the
HAARP facility. Defendant, on the other hand, argues that it
was reasonable to limit its search to HAARP facilities only,
because Plaintiff’s request was limited to HAARP and did not
suggest that he was searching for documents regarding ionosphere
research facilities in general. Def.’s Mot. at 11.
Defendant is correct in its assertion that it was only
obligated to conduct a search pursuant to Plaintiff’s original
request. Plaintiff was obligated to “reasonably describe” the
records he sought. 5 U.S.C. § 552(a)(3)(A)(i). A reasonable
description allows “the agency [ ] to determine precisely what
records are being requested.” Kowalczyk, 73 F.3d at 388
19
(quoting Yeager v. Drug Enforcement Admin., 678 F.2d 315, 326
(D.C. Cir. 1982)). Here, Plaintiff specifically asked for
information concerning HAARP in his original request. Compl.,
Ex. A. His request never mentioned any other ionosphere
research facility or documents generally regarding ionosphere
facilities. Compl., Ex. A. Moreover, in his appeal letter to
Defendant, Plaintiff disputed the existence of other HAARP
facilities, specifically. Toth Decl., Ex. 5. Therefore, it is
reasonable that Defendant limited its search to HAARP and did
not expand it to include any ionosphere facility.
For the foregoing reasons, Plaintiff did not provide
sufficient evidence to rebut Defendant’s declaration or show
that Defendant acted in bad faith. Accordingly, summary
judgment as to the adequacy of the Kirkland AFB’s search for
responsive records is GRANTED in the Defendant’s favor.
V. CONCLUSION
For the above reasons, the Court orders the following: (1)
Plaintiff’s motions to enter new evidence into the record are
GRANTED; (2) Defendant’s Motion to Dismiss for lack of subject
matter jurisdiction is DENIED; (3) Defendant’s Motion for
Summary Judgment is GRANTED with respect to Plaintiff’s August
14, 2011 request to Kirtland AFB, only; (4) Plaintiff’s
complaint with respect to his August 14, 2011 request to AFHRA
is DISMISSED for failure to exhaust administrative remedies; and
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(5) Plaintiff’s Motion to Release Paperwork is DENIED as moot.
An appropriate Order will accompany this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
July 9, 2013
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