Quick v. United States Department of Commerce, National Institute of Standards and Technology ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL QUICK,
Plaintiff,
v.
Civil Action No. 09-02064 (CKK)
UNITED STATES DEPARTMENT OF
COMMERCE, NATIONAL INSTITUTE OF
STANDARDS AND TECHNOLOGY,
Defendant.
MEMORANDUM OPINION
(April 7, 2011)
Plaintiff Michael Quick (“Quick”) commenced this action against the National Institute of
Standards and Technology (“NIST”), an agency of the United States Department of Commerce,
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking the disclosure of the
raw data that NIST used in its architectural and engineering modeling of the collapse of the
World Trade Center 7 (“WTC 7”) building on September 11, 2001. Presently before the Court
are NIST’s [10] Motion for Summary Judgment and Quick’s [13] Cross-Motion for Summary
Judgment. Based upon the parties’ submissions, the relevant authorities, and the record as a
whole, the Court shall grant NIST’s Motion for Summary Judgment, deny Quick’s Cross-Motion
for Summary Judgment, and dismiss this action in its entirety.1
1
While the Court renders its decision today on the record as a whole, its consideration
has focused on the following documents, listed in chronological order of their filing: Def.’s
Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. (“Def.’s [10] Mem.”), Docket No. [10];
Decl. of Catherine S. Fletcher (“Fletcher Decl.”), Docket No. [10-1]; Def.’s Stmt. of Undisputed
Material Facts (“Def.’s Stmt.”), Docket No. [10-2]; Pl.’s Mem. of P. & A. in Supp. of Pl.’s Mot.
for Summ. J., and in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s [13] Mem.”), Docket No. [13];
Pl.’s Stmt. of Undisputed Material Facts (“Pl.’s Stmt.”), Docket No. [13-1]; Decl. of Michael
I. PRELIMINARY MATTERS
Preliminarily, the Court pauses to make an overarching observation about the nature of
Quick’s opposition to NIST’s Motion for Summary Judgment. The United States District Court
for the District of Columbia has supplemented Rule 56 of the Federal Rules of Civil Procedure
with Local Civil Rule 7(h)(1), which requires that each party submitting a motion for summary
judgment attach a statement of material facts for which that party contends there is no genuine
dispute. The party opposing the motion must, in turn, submit a responsive statement
enumerating all material facts which the party contends are genuinely disputed. See LCvR
7(h)(1). Both the moving party’s initial statement and the opposing party’s responsive statement
must be based on “references to the parts of the record relied on to support the statement.”2 Id.This well-reasoned rule “places the burden on the parties and their counsel, who are most
familiar with the litigation and the record, to crystallize for the district court the material facts
and relevant portions of the record.” Jackson v. Finnegan, Henderson, Farabow, Garrett &
Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996). This Court strictly adheres to the dictates of Local
Civil Rule 7(h)(1) when resolving motions for summary judgment.
Quick, Docket No. [13-2]; Def.’s Consolidated Reply in Further Supp. of its Mot. for Summ. J.
and Opp’n to Pl.’s Cross-Mot. for Summ. J. (“Def.’s [16] Mem.”), Docket No. [16]; Suppl. Decl.
of Catherine S. Fletcher (“2d Fletcher Decl.”), Docket No. [16-1]; Def.’s Resp. to Pl.’s Stmt. of
Undisputed Material Facts (“Def.’s Resp.”), Docket No. [16-2]; Pl.’s Reply Mem. in Supp. of
Pl.’s Mot. for Summ. J. (“Pl.’s [20] Mem.”), Docket No. [20]; Suppl. Decl. of Michael Quick,
Docket No. [20-1]; Def.’s Surreply in Further Opp’n to Pl.’s Cross-Mot. for Summ. J. (“Def.’s
[22] Mem.”), Docket No. [22].
2
In this way, Local Civil Rule 7(h)(1) aligns with the recent amendments to Rule 56 of
the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 56(c)(1) & (3) (requiring parties to
“cit[e] to particular parts of materials in the record” and providing that “[t]he court need consider
only the cited materials.”).
2
In the instant case, while Quick has submitted a statement of material facts in support of
his own Cross-Motion for Summary Judgment, he has failed to file a response to the statement
filed by NIST in support of its independent Motion for Summary Judgment. While there may be
some factual overlap between the matters discussed in NIST’s statement and the matters
discussed in Quick’s statement, that does not relieve Quick of his burden to come forward with a
statement specifically responding to each of NIST’s factual allegations in order to best crystallize
the disputed issues for the Court. To the extent the Court is unable to discern the extent of
Quick’s agreement or disagreement with NIST’s proffered facts from the contents of his
statement, the Court shall, in an exercise of its discretion, assume the uncontroverted facts
identified by NIST to be admitted for purposes of resolving the pending motions. However,
given that there appears to be surprisingly little disagreement between the parties about the
underlying facts, the impact of this conclusion is likely de minimis.
II. BACKGROUND
The National Construction Safety Team Act (the “NCSTA”), 15 U.S.C. § 7301 et seq.,
authorizes NIST to establish national construction safety teams to investigate “the failure of a
building or buildings that has resulted in substantial loss of life or that posed significant potential
for substantial loss of life.” 15 U.S.C. § 7301(a). Exercising this authority, NIST conducted an
investigation into the collapse of the WTC 7 building, a forty-seven-story office building located
immediately to the north of the World Trade Center complex, caused by approximately seven
hours of fires ignited by debris from the collapse of the North Tower on September 11, 2001.
On November 13, 2008, Quick requested that NIST disclose “a complete ‘[c]ertified’
legitimate copy of the [c]omputer [m]odels [u]sed by NIST to come to the conclusions’ [sic] it
3
reached in the [i]nvestigation of the event of September 11, 2001.” Def.’s Stmt. ¶ 1; Pl.’s Stmt. ¶
1. Over the ensuing days, Quick and NIST corresponded in a successful effort to clarify the
scope of the request. Def.’s Stmt. ¶ 2; Pl.’s Stmt. ¶ 2. In its final form, Quick’s request sought
“the ‘raw data’ of the models regarding the collapse of World Trade Center (WTC) Building 7”
found on NIST’s public website. Def.’s Stmt. ¶ 2; Pl.’s Stmt. ¶ 2. NIST provided Quick a fee
assessment and, on or about February 23, 2009, Quick sent a check to NIST in the amount of
$824.98 for search and duplication fees. Pl.’s Stmt. ¶ 6; Def.’s Resp. ¶ 6.
On July 9, 2009, the Director of NIST issued a formal finding pursuant to the NCSTA
providing that the public disclosure of certain information gathered by NIST in connection with
its investigation into the collapse of the WTC 7 building “might jeopardize public safety.” Def.’s
Stmt. ¶¶ 7-9. Thereafter, individuals with the requisite technical expertise and familiarity with
the raw data responsive to Quick’s request carefully reviewed each data file to segregate those
covered by the Director’s finding from those that were not covered. Id. ¶ 10. The task involved
sorting through a massive amount of complex data used to simulate the actual physical response
of the WTC 7 building on the day in question. Fletcher Decl. ¶ 12.
On November 4, 2009, while NIST’s review of the responsive records was ongoing,
Quick commenced the instant action. Pl.’s Stmt. ¶ 9; Def.’s Resp. ¶ 9. On or about January 6,
2010, NIST provided its initial response to Quick’s request, releasing approximately 19,116
responsive data files. Def.’s Stmt. ¶ 3; Pl.’s Stmt. ¶ 11. On or about April 2, 2010, after
discovering a technical error affecting its prior production, NIST supplemented its response to
disclose additional responsive data files. Def.’s Stmt. ¶ 4; Pl.’s Stmt. ¶ 13. Overall, NIST
produced a total of 25,644 data files responsive to Quick’s request and withheld a total of 68,500
4
data files. Def.’s Stmt. ¶ 5; Pl.’s Stmt. ¶ 13. NIST invoked FOIA Exemption 3 as the basis for
the non-disclosure of all 68,500 data files withheld. Def.’s Stmt. ¶ 6; Pl.’s Stmt. ¶ 11.
III. LEGAL STANDARD
Congress enacted FOIA to introduce transparency into government activities. Stern v.
Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive,
however, to the need to achieve balance between this objective and the vulnerability of
“legitimate governmental and private interests [that] could be harmed by release of certain types
of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871,
872 (D.C. Cir. 1992), cert. denied, 507 U.S. 984 (1993). In reviewing motions for summary
judgment in this context, the district court must conduct a de novo review of the record, 5 U.S.C.
§ 552(a)(4)(B), which “requires the court to ascertain whether the agency has sustained its burden
of demonstrating that the documents requested . . . are exempt from disclosure,” Assassination
Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003)
(internal quotation marks omitted). “Consistent with the purpose of the Act, the burden is on the
agency to justify withholding requested documents,” Beck v. Dep’t of Justice, 997 F.2d 1489,
1491 (D.C. Cir. 1993), and only after an agency has proven that it has fully discharged its
obligations is summary judgment appropriate, Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C.
1996) (citing Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). In
ascertaining whether the agency has met its burden, the district court may rely upon agency
affidavits or declarations provided they describe “the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
5
evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981). Summary judgment is proper when the pleadings, the discovery materials on file, and any
affidavits or declarations “show[] that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). With these principles
in mind, the Court turns to the merits of the parties’ cross-motions for summary judgment.
IV. DISCUSSION
Two motions are presently before the Court: NIST’s [10] Motion for Summary Judgment
and Quick’s [13] Cross-Motion for Summary Judgment. Surprisingly, the two motions share
little in common. Accordingly, the Court shall begin by explaining why it shall grant NIST’s
motion, and then turn to explaining why it shall deny Quick’s cross-motion. Thereafter, the
Court shall address Quick’s contention that he is entitled to discovery.
A. NIST’s Motion For Summary Judgment
NIST contends that it is entitled to summary judgment in this action because it conducted
a reasonable search for records responsive to Quick’s request; produced all disclosable records
responsive to that request, including all reasonably segregable portions thereof; and properly
withheld the remaining records pursuant to FOIA Exemption 3. See Def.’s [10] Mem. at 10-15.
Although styled as such, Quick’s “opposition” memorandum contests none of this, but is instead
confined to Quick’s independent contention that he should be designated as the prevailing party
in this action because he secured the production of records responsive to his request. See
generally Pl.’s [13] Mem. Indeed, Quick expressly and repeatedly argues that “the filing of his
civil action caused the agency to provide [him] with responsive records” and that he has now
received “all non-exempt responsive records.” Pl.’s [20] Mem. at 1-2. He never suggests—let
6
alone establishes through legal argument and adequate record support—that NIST’s search,
production, or withholding decisions were in any way defective or otherwise fell short of the
applicable legal standards. See generally Pl.’s [13] Mem. In this Circuit, “it is well understood .
. . that when a plaintiff files an opposition to a dispositive motion and addresses only certain
arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded.” Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d
15, 25 (D.D.C. 2003), aff’d, 98 F. App’x 8 (D.C. Cir. 2004); accord Lewis v. District of
Columbia, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2, 2011). Because Quick has completely
failed to contest NIST’s arguments that it conducted a reasonable search for records, produced all
disclosable records, and properly withheld responsive records, the Court shall treat those
arguments as conceded. Regardless, as described below, the record supports NIST’s position.
First, NIST has submitted a detailed declaration describing the contours of its search for
the raw data used to prepare the architectural and engineering models simulating the collapse of
the WTC 7 building. See Fletcher Decl. ¶¶ 7-88. That search included consulting with experts in
NIST’s Building and Fire Research Laboratory (the “BFRL”)—the agency component
responsible for performing the modeling in question and the area most likely to maintain records
responsive to Quick’s request—and, as a result of its efforts, NIST ultimately located the exact
data files it set out to locate. Id. ¶¶ 7-14, 28-30. Under these circumstances, NIST has shown
that it made “a good faith effort to conduct a search for the requested records, using methods
which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t
of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
Second, NIST has provided ample support for its contention that its decision to withhold
7
68,500 data files involved a straightforward application of FOIA Exemption 3, which permits an
agency to withhold information “specifically exempted from disclosure by statute . . . if that
statute . . . refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A)(ii). Of
particular relevance here, the NCSTA expressly precludes NIST from “publicly releas[ing] any
information it receives in the course of an investigation . . . if the Director finds that the
disclosure of that information might jeopardize public safety.” 15 U.S.C. § 7306(d). In
conformity with this provision, the Director of NIST made an express finding that the public
disclosure of certain types of information pertaining to the architectural and engineering
modeling of the collapse of the WTC 7 building might jeopardize public safety—generally
speaking, detailed connection models, connection material properties, and break element strips
that had been validated against actual events. Fletcher Decl. ¶¶ 17-18, 22 & Ex. 4. Reduced to
layman’s terms, the difference between the information that was released and the information
that was withheld is that the released data files contain structural models based on information
generally available to building designers and engineers, whereas the withheld data files contain
information that could be used to predict the collapse of a building and, if made available to a
person with the appropriate level of expertise, would provide instruction to individuals wanting
to learn how to simulate building collapses and how to most effectively destroy large buildings.
Id. ¶ 22. As contemplated by the statutory scheme created by Congress, the Director of NIST
brought his expertise to bear on the subject and determined that the public disclosure of such
information “might jeopardize public safety,” 15 U.S.C. § 7306(d), and should be withheld. This
explanation for non-disclosure is sufficiently “logical” or “plausible” to satisfy NIST’s burden of
justifying its withholdings, Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009), and
8
NIST has, moreover, explained in a “relatively detailed” manner why the exemption is relevant
in this context and has appropriately correlated the exemption with the pertinent records, Judicial
Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006). In short, NIST has
provided an adequate explanation of, and justification for, its withholding decisions.
Third, and finally, NIST’s sworn declarations describe how, after conducting an extensive
interrogation of the data files responsive to Quick’s request, it has carefully reviewed and
released all reasonably segregable information. Ultimately, NIST released a total of 25,644 data
files and withheld another 68,500. Fletcher Decl. ¶ 26. NIST has produced a Vaughn index3
dividing the data files into their organizational and functional case folders and setting forth the
following information for each responsive case folder: a description of the analysis to which the
data files in the case folder relate; the portions of the investigation reports to which the data files
in the case folder relate; a description of each category of withheld data files in the case folder;
the precise number of data files for each category of withheld files; and a segregability analysis
for each case folder. Id. ¶¶ 28-88. As the United States Court of Appeals for the District of
Columbia Circuit has observed, the question of segregability is by necessity subjective and
context-specific, turning upon the nature of the records in question and the information contained
therein. Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).
In this case, particularly when taking into account the sheer scope of the data captured by Quick’s
request, NIST’s submissions are a perfect illustration of how abstraction and categorical
3
In Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974),
the United States Court of Appeals for the District of Columbia Circuit provided that agencies
should generally prepare an itemized index correlating each withheld document, or portion
thereof, with a specific exemption and the agency’s justification for non-disclosure.
9
treatment, used properly, may assist the district court in evaluating an agency’s withholding
decisions. Judicial Watch, 449 F.3d at 147; see also Budik v. Dep’t of Army, 742 F. Supp. 2d 20,
37 (D.D.C. 2010) (“[A]n agency is not precluded from grouping categories of documents that
merit similar treatment.”). In this case, NIST has provided a reasonably detailed explanation to
support its claim that all non-exempt, responsive information has been produced.
In the final analysis, NIST conducted a reasonable search for records responsive to
Quick’s request; produced all disclosable records responsive to that request, including all
reasonably segregable portions thereof; and properly withheld the remaining records pursuant to
FOIA Exemption 3. Therefore, and because Quick has conceded the merits of NIST’s arguments
in this regard, the Court shall grant NIST’s [10] Motion for Summary Judgment in its entirety.
B. Quick’s Cross-Motion For Summary Judgment
The basis for Quick’s Cross-Motion for Summary Judgment is not easy to define; he has
repeatedly shifted his position and redefined his arguments with each successive filing,
effectively presenting both this Court and NIST with a moving target. Indeed, the contours of
Quick’s arguments are not fully revealed until his reply. The variable nature of Quick’s position
appears to be the result of his efforts to adapt and correct his arguments—which are premised on
an incorrect understanding of both the relevant facts and the applicable legal standard—once one
avenue for relief has been all but foreclosed by NIST’s responsive briefing.
1. Quick’s Argument That He Has “Substantially Prevailed” In This
Action By Securing The Production Of Records Is Without Merit
In his opening memorandum, Quick tendered a single argument in support of his Cross-
Motion for Summary Judgment—namely, that he should be deemed to have “substantially
prevailed” in this action because NIST produced records responsive to his request after the
10
commencement of the instant action. Pl.’s [13] Mem. at 9-10. In support of that position, Quick
cited two authorities. The first was the provision from FOIA addressing when a district court
may “assess against the United States reasonable attorney fees and other litigation costs incurred
in any case . . . in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i).
The second was an opinion from the United States Court of Appeals for the Ninth Circuit
addressing that same provision. See Oregon Natural Desert Ass’n v. Locke, 572 F.3d 610, 614-
15 (9th Cir. 2009). Quite reasonably, NIST construed Quick’s opening memorandum as
tantamount to a premature petition for attorneys’ fees, and tailored its arguments accordingly.
See Def.’s [16] Mem. Pivoting, Quick responded that NIST “clearly misconstrued [his] request
for declaratory relief in this action,” conceded that he “fully concurs . . . that it is entirely
premature for the parties to address any attorney fee recovery issues at this time,” and then
proceeded to set forth an entirely new argument that NIST has engaged in an unlawful “pattern or
practice” of delay in responding to FOIA requests concerning its investigation into the events that
transpired at the World Trade Center on September 11, 2001. Pl.’s [20] Mem. at 1-2, 9.
Quick’s suggestion that NIST simply misunderstood his “pattern or practice” argument is
entirely disingenuous; the Court agrees that the only reasonable reading of Quick’s opening
memorandum is as a premature petition for attorneys’ fees or an attempt to set the stage for such
a petition. While Quick may have alleged that NIST failed to “wake up” and process his request
until after he commenced the instant action, completely absent from Quick’s opening
memorandum is any suggestion—let alone factual and legal support—for his newly tendered
argument that NIST has engaged in a broader “pattern or practice” of delay in responding to
requests generally. See Pl.’s [13] Mem. Indeed, the premises of the two arguments are, if not
11
fundamentally irreconcilable, in considerable tension. On the one hand, Quick argued in his
opening memorandum that he had successfully secured “a voluntary or unilateral change in
[NIST’s] position,” id. at 10—in other words, he argued that he had already obtained the desired
outcome. On the other hand, in support of his “pattern or practice” argument, Quick argues in
his reply memorandum that NIST is engaging in an ongoing practice of failing to “provide a final
response or responsive records to a FOIA requester absent the filing of a federal court FOIA
action,” and that he requires a declaration and injunction to prevent NIST from engaging in the
alleged practice “in the future.” Pl.’s [20] Mem. at 7.
The Court shall not belabor the point: it is clear from Quick’s opening memorandum that
the sole basis for his Cross-Motion for Summary Judgment is that he should be deemed to have
“substantially prevailed” in this action because NIST produced records responsive to his request
after the commencement of the instant action. Pl.’s [13] Mem. at 9-10. Because this is a
question that goes to his entitlement to attorneys’ fees, and because Quick has since conceded
that it is premature for the parties to address the recovery of attorneys’ fees at this time, the Court
shall deny Quick’s [13] Cross-Motion for Summary Judgment on this basis alone.
2. Quick’s Untimely Argument That NIST Has Engaged In A “Pattern
Or Practice” Of Delay Is Without Merit
Even if the Court were to consider Quick’s belatedly tendered argument, offered for the
first time in his reply papers, that he is entitled to summary judgment because NIST has “an
unlawful patten [sic] and practice” of producing records only after a requester takes the step of
commencing a lawsuit, Pl.’s [20] Mem. at 2-3, the same result would obtain. For at least two
reasons, the argument is without merit.
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i. No “pattern or practice” claim appears in Quick’s Complaint
in this action.
First, the argument fails at the outset for the simple reason that nothing even remotely
resembling a “pattern or practice” claim appears within the four corners of Quick’s Complaint.
The Complaint includes a single cause of action—namely, that NIST “fail[ed] to provide [Quick]
with all responsive non-exempt records . . . requested by [him] in his FOIA request of November
13, 2008.” Compl., Docket No. [1], ¶ 19. In connection with that cause of action, Quick sought
a decidedly narrow declaration that NIST “violated FOIA by failing to provide all non-exempt
records responsive to [his] November 13, 2008 FOIA request” and a correspondingly narrow
order directing NIST to “immediately provide [him] with all non-exempt records responsive to
[his] November 13, 2008 request.” Compl. at 7. Even viewing his Complaint in a generous
light, there simply is no indication—none—that Quick’s narrow claim extended beyond the
discrete confines of his specific request for records to encompass a broader “pattern or practice”
challenge.
Meanwhile, in the nearly seven months that have passed since NIST first argued that
Quick’s Cross-Motion for Summary Judgment cannot rest on a “pattern or practice” claim
because no such claim appears in the Complaint, see Def.’s [22] Mem. at 3, Quick has never
sought leave to amend his Complaint to add such a claim. To the extent Quick considers his
belated argument proffered in his reply memorandum sufficient, he is mistaken; it is axiomatic
that a party cannot amend its complaint merely by injecting new claims in the course of briefing a
dispositive motion. Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d
165, 170 (D.D.C. 2003).
In short, Quick’s allegations concerning an alleged “pattern or practice” in the way NIST
13
handles FOIA requests are not material to any claim before the Court. Based on Quick’s explicit
concession that he has received “all non-exempt responsive records” pertaining to his request,
Pl.’s [20] Mem. at 1-2, his only claim in this action is now moot and the associated relief
unavailable. See Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) (“[H]owever fitful or
delayed the release of information under the FOIA may be, once all requested records are
surrendered, federal courts have no further statutory function to perform.”); accord Tunchez v.
U.S. Dep’t of Justice, 2011 WL 1113423, at *1 (D.C. Cir. Mar. 14, 2011) (per curiam).
Therefore, the Court shall deny Quick’s [13] Cross-Motion for Summary Judgment on this
separate, independent basis.
ii. Quick lacks standing to pursue a “pattern or practice” claim in
this action.
Second, even if Quick had hypothetically asserted a plausible “pattern or practice” claim
in his Complaint, he would nevertheless lack standing to pursue such a claim in this action. Even
assuming, arguendo, that individuals others than Quick may have been subject to a “pattern or
practice” of delay in NIST’s processing of requests, the record is clear that Quick was not himself
subject to such a pattern or practice.4
It is undisputed that upon receiving Quick’s initial correspondence on November 13,
2008, NIST promptly reached out to Quick in a successful effort to clarify the scope of the
request. Fletcher Decl. Exs. 1-2; 2d Fletcher Decl. ¶¶ 6-7. Within a week, Quick and NIST had
engaged in an extended dialogue concerning the scope of the request, personnel within NIST’s
4
In light of this conclusion, the Court need not consider whether there is any merit to
Quick’s contention that a “pattern or practice” of delay on NIST’s part may be evidenced by
“three entirely independent circumstances” of delay. Pl.’s [20] Mem. at 6-7.
14
FOIA office had conferred with personnel within the BFRL to ascertain whether Quick’s request
was sufficiently tailored to allow for further processing, NIST had informed Quick of the
practical problems flowing from the unique formatting of the data files requested, and NIST sent
Quick an acknowledgment letter delineating the scope of his final request. Fletcher Decl. Ex. 2;
2d Fletcher Decl. ¶¶ 7-11. Within two weeks, personnel within NIST’s FOIA office had
identified additional technical issues arising from the scope of Quick’s request, obtained
technical clarifications from Quick concerning those issues, and discussed the physical format of
any potential release. Fletcher Decl. Ex. 2.H; 2d Fletcher Decl. ¶¶ 14, 16. By December 18,
2008, NIST provided Quick with an update as to the logistics involved in processing and
reviewing his requests, including its concern that the size of data, then estimated to exceed two
terabytes, would span hundreds of compact discs and would likely require any physical
production to take the form of a hard drive. 2d Fletcher Decl. ¶ 17. Quick was informed that
NIST would prepare a fee assessment estimate, and NIST began processing the estimate
internally that same day. Id.On January 9, 2009, following a series of internal discussions and approvals, NIST sent
Quick a final fee assessment estimate, advising Quick that he had thirty days to remit payment.
Fletcher Decl. Ex. 2.J; 2d Fletcher Decl. ¶¶ 18-22. Rather than immediately remitting payment
to expedite the processing of his request, Quick elected, as was his right, to wait until the week
prior to the expiration of the thirty-day period to request a thirty-day extension of time. Fletcher
Decl. Ex. 2.K; 2d Fletcher Decl. ¶ 23. Quick’s request was granted, and Quick ultimately
submitted payment in the amount of $824.98 on or about February 23, 2009, approximately a
month-and-a-half after he was first issued the fee assessment. Fletcher Decl. Ex. 2.K; 2d
15
Fletcher Decl. ¶¶ 23-24; Pl.’s Stmt. ¶ 6; Def.’s Resp. ¶ 6. Significantly, the regulations
governing NIST’s processing of FOIA requests expressly provide that “[i]f the component has
notified a requester that the actual or estimated fee is more than $20.00, the component shall not
consider the request received for purposes of calculating the time limit . . . to respond to a
request, or process it further, until the requester agrees to pay the anticipated total fee.” 15
C.F.R. § 4.11(e). As a result, the clock did not even begin to run in this case until on or about
February 23, 2009, when Quick sent in payment for the requisite processing fee.5 The very next
day, the BFRL was instructed to begin its processing efforts in earnest. 2d Fletcher Decl. ¶ 28.
In this case, the task of locating, reviewing, and producing records responsive to Quick’s
request was not an easy one: it began with an exhaustive search for responsive files; proceeded to
the organization and interrogation of the 94,144 potentially responsive data files located; and
involved a deep, two-tier review of each individual data file to ascertain its contents and its role
within the complex and specialized architectural and engineering models developed by NIST. 2d
Fletcher Decl. ¶¶ 29-32. By July 2009, approximately four months before Quick commenced the
instant action, NIST had already provisionally segregated responsive from non-responsive data
files and had developed a general understanding of the contents and roles of individual data files
within the larger models. Id. ¶ 33.
5
The Court observes that the record in this case includes an e-mail from Quick to NIST,
dated February 13, 2009, ten days before Quick actually paid the anticipated fee, wherein Quick
writes that “[t]he Citizens of the United States of America have accomplished the goal of
$825.00 $US [sic] with a healthy surplus, which will be decided on at a later date” and
“request[s] the funds go to the firemen and police victims fund for 911.” Fletcher Decl. Ex. 2.M.
Even assuming that Quick’s e-mail would satisfy the requirement that the requester “agree[] to
pay the anticipated total fee” in a “memorialized [] writing,” 15 C.F.R. § 4.11(e), the difference
between the date of the e-mail and the date Quick actually paid the requisite processing fee
would not alter the Court’s conclusion.
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Concurrently with its responsiveness review, a separate process was underway to
determine, as required by the terms of the NCSTA, whether the public disclosure of any of the
information covered by Quick’s request might pose a risk to public safety. 2d Fletcher Decl. ¶
34. On July 9, 2009, following a series of internal discussions, the Director of NIST completed
his review and issued his formal finding identifying categories of information exempted from
disclosure, which then allowed personnel within the BFRL to conduct a deep dive into the data
files to segregate the data files that were exempt from release from those that were not exempt
from release. Def.’s Stmt. ¶¶ 7-9; 2d Fletcher Decl. ¶ 39. Significantly, given the scope and
complexity of the data involved, particularly the complex relationships between data, individuals
with the requisite technical expertise and familiarity with the raw data were required to
individually review the 91,114 potentially responsive data files, sharply curtailing the number of
competent staff available to participate. Def.’s Stmt. ¶ 10; Fletcher Decl. ¶ 15; 2d Fletcher Decl.
¶ 40.
The scope of the data involved, meanwhile, was extensive. Simply by way of example,
one of the models developed by NIST in the course of its investigation, designed to capture the
response of the entire WTC 7 building to the initial failure event, consisted of 3,045,925 distinct
elements with 3,593,049 nodes. Fletcher Decl. ¶ 14. A second model, referred to colloquially as
the “sixteen-story model,” was designed to simulate the structural response to elevated
temperatures of the lower sixteen stories of the building, where the fires grew and spread,
causing a series of local structural failures in the building’s floor systems. Id. ¶ 13. The model
contained 101,357 distinct elements with 93,413 nodes, with each element associated with a
significant amount of data, id., pertaining to such factors as nonlinear geometric effects, gravity
17
load, temperature-time histories, thermal expansion, material stress-strain behavior, bolt failure,
etc., see Fed. Bldg. & Fire Safety Investigation of the World Trade Ctr. Disaster: Structural Resp.
& Probable Collapse Sequence of World Trade Ctr. Bldg. 7, NIST NCSTAR 1-9, at 458-89.
NIST completed its first-round review process on September 5, 2009, almost a month
before Quick commenced the instant action, at which point the files were forwarded to the
BFRL’s Deputy Director for a second level of review designed to ensure that information that
might pose a risk to public safety if made publicly available would not be disclosed in violation
of Congress’ command in the NCSTA. 2d Fletcher Decl. ¶¶ 41-44. The individual charged with
the task, who had the institutional competence and technical expertise to conduct the review, was
personally involved in processing approximately fifty other independent FOIA requests at the
time. Id. ¶ 43. On November 4, 2009, while NIST’s second-round review was ongoing, Quick
commenced the present action. Pl.’s Stmt. ¶ 9; Def.’s Resp. ¶ 9. NIST completed its review
shortly thereafter, on November 9, 2009, and released responsive records to Quick on January 6,
2010 and April 2, 2010. Def.’s Stmt. ¶¶ 3-4; Pl.’s Stmt. ¶¶ 11, 13; 2d Fletcher Decl. ¶ 46.
Overall, NIST produced a total of 25,644 data files responsive to Quick’s request and withheld a
total of 68,500 data files. Def.’s Stmt. ¶ 5; Pl.’s Stmt. ¶ 13.
True, NIST did not issue a final response to Quick’s request within the twenty-working-
day default period designated by FOIA, see 5 U.S.C. § 552(c)(6)(A)(i), an unremarkable
occurrence given the nature of Quick’s request. The staggering scope and complexity of the data
captured within the ambit of Quick’s request, and the specialized expertise required to process
and produce that data, almost certainly presented the sort of “exceptional circumstances” that
would warrant a departure from the twenty-day default, and it is clear from the record that NIST
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continued to “exercis[e] due diligence in responding to the request” from the time it was deemed
received to the time it completed its production. Id. § 552(c)(6)(C)(i). The Court, however, need
not reach that precise question. The factual underpinning of Quick’s “pattern or practice” claim
is that there is “no evidence” that NIST acted diligently in processing his request until he filed
the instant action, on November 3, 2009. Pl.’s [20] Mem. at 3. Quite the contrary, everything in
the record evidences that NIST promptly responded to Quick upon initial receipt of his request,
almost immediately began the internal process to evaluate its ability to respond to the request,
engaged in an extended dialogue with Quick in order to define the precise contours of his
request, and made consistent and diligent efforts to locate, review, and produce the massive
amount of complex data responsive to Quick’s request while balancing its statutory obligation to
withhold information that might pose a risk to public safety if disclosed. Indeed, Quick
concedes, as he must, that the sworn declarations submitted by NIST “suggest[] . . . that the
agency was allegedly taking various action[s] to process” his request. Pl.’s [20] Mem. at 4.
While Quick may personally “dispute[] those assertions,” id., it is well-established that “[a]gency
affidavits are accorded a presumption of good faith” in this context and cannot be rebutted by
speculation of the sort proffered by Quick in this case. SafeCard Servs., Inc. v. Secs. & Exch.
Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
Based on this record, even if the Court were to consider Quick’s belatedly tendered
argument that NIST has “an unlawful patten [sic] and practice” of producing records only after a
requester takes the step of commencing a lawsuit, Pl.’s [20] Mem. at 2-3, there can be no genuine
dispute that NIST began processing Quick’s request long before the commencement of the
instant action and consistently and diligently worked towards completing that request in the
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absence of litigation. Therefore, even assuming that individuals other than Quick may have been
subject to the alleged “pattern or practice,” the record is clear that Quick was not. That being the
case, Quick lacks standing to pursue such a claim in this action. Cf. Giacobbi v. Biermann, 780
F. Supp. 33, 40-41 (D.D.C. 1992) (plaintiff lacked standing to assert that agency engaged in a
“pattern and practice of failing to meet its statutory obligation to investigate and act on
complaints in a prompt manner” where plaintiff’s case was investigated; plaintiff was “not an
appropriate party to raise a pattern of failure to investigate, even if such a pattern were to exist.”),
aff’d, 1992 WL 309042 (D.C. Cir. Oct. 16, 1992) (per curiam); see also Sierra Club v. U.S. Dep’t
of Interior, 384 F. Supp. 2d 1, 30-31 (D.D.C. 2004) (plaintiffs’ “policy or practice” claim relating
to late FOIA responses was untenable where plaintiffs’ requests were extremely broad and
onerous and plaintiffs offered no rebuttal to the agency’s explanation for the delay). Meanwhile,
to the extent Quick seeks to establish his standing to pursue his “pattern or practice” claim by his
passing allegation that he “plans to file additional FOIA requests to the NIST in the future,” the
Supreme Court has foreclosed that route: “[s]uch ‘some day’ intentions—without any description
of concrete plans, or indeed even any specification of when the some day will be—do not support
a finding of the [requisite] ‘actual or imminent’ injury.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 564 (1992) (emphasis in original); see also Worth v. Jackson, 451 F.3d 854, 858 (D.C. Cir.
2006). Therefore, the Court shall deny Quick’s [13] Cross-Motion for Summary Judgment on
this separate, independent basis.
C. Quick Is Not Entitled To Discovery In This Action
On August 5, 2010, this Court denied without prejudice Quick’s request that a briefing
schedule be entered to address the question of whether Quick was entitled to discovery,
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concluding that Quick’s “requests for discovery were made only after the parties’ cross-motions
for summary judgment had been filed” and “[n]o formal request for discovery pursuant to
Federal Rule of Civil Procedure 56(f)[6] ha[d] been made.” Min. Order (Aug. 5, 2010). Quick
suggests that the Court should “reconsider” its prior order, contending that he should be allowed
to conduct “limited discovery” as to whether NIST was actually taking action in processing his
request prior to the filing of this action. Pl.’s [20] Mem. at 4-5. For at least two reasons, Quick
is not entitled to such discovery.
First, Quick still has not made a formal showing, by affidavit or declaration, that he
“cannot present facts essential to justify [his] opposition.” Fed. R. Civ. P. 56(d). For one thing,
Quick never identifies precisely what information he would seek or what evidence he hopes to
discover; his generalized, speculative request “falls short of what the rule requires.” Estate of
Parsons v. Palestinian Auth., 715 F. Supp. 2d 27, 35 (D.D.C. 2010). For another, the rule
requires the party to establish that the evidence sought is essential to his opposition, and given
the alternative bases for the Court’s decision, Quick fails to articulate how his speculative
discovery requests “would alter the [C]ourt’s determination.” Cheyenne Arapaho Tribes of
Oklahoma v. United States, 558 F.3d 592, 596 (D.C. Cir. 2009).
Second, where, as here, the agency’s declarations are sufficiently detailed and the district
court is satisfied that no factual dispute remains, discovery should be denied. Wolf v. Cent.
Intelligence Agency, 569 F .Supp. 2d 1, 9-10 (D.D.C. 2008). Because Quick has failed to raise
substantial or even colorable doubt concerning the adequacy or good faith of NIST’s response to
6
With the recent amendments to the Federal Rules of Civil Procedure, the provision now
appears in substantially the same form as Fed. R. Civ. P. 56(d).
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his request, he has failed to establish his entitlement to discovery. Iturralde v. Comptroller of
Currency, 315 F.3d 311, 314 (D.C. Cir. 2003).
V. CONCLUSION
For the reasons set forth above, the Court shall grant NIST’s [10] Motion for Summary
Judgment, deny Quick’s [13] Cross-Motion for Summary Judgment, and dismiss this action in its
entirety. An appropriate Order accompanies this Memorandum Opinion.
Date: April 7, 2011
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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