Harold Rutila, IV v. TRAN

Case: 22-10848 Document: 00516815456 Page: 1 Date Filed: 07/10/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
July 10, 2023
No. 22-10848
Lyle W. Cayce
____________
Clerk
Harold Edward Rutila, IV,
Plaintiff—Appellant,
versus
United States Department of Transportation; Federal
Aviation Administration,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC Nos. 3:16-CV-2911, 3:16-CV-3433
______________________________
Before King, Smith, and Elrod, Circuit Judges.
Per Curiam:
This action arises from several unsuccessful requests by Harold
Edward Rutila, IV to the Federal Aviation Administration for records under
the Freedom of Information Act, 5 U.S.C. § 522. The district court granted
summary judgment for the Department of Transportation and the Federal
Aviation Administration. Upon review, we AFFIRM.
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I.
In 2016, Harold Edward Rutila, IV attended a Federal Aviation
Administration (“FAA”) air traffic controller training program at the FAA
Academy. Because he failed the final performance assessment, Rutila was not
retained as a permanent air traffic controller.
Several months later, Rutila submitted ten requests under the
Freedom of Information Act (“FOIA”) to the FAA seeking various
categories of records. Dissatisfied with the FAA’s responses to his requests,
Rutila brought two suits against the FAA and its parent agency, the
Department of Transportation (“DOT”; collectively with the FAA,
“Appellees”), seeking, inter alia, injunctive relief compelling the release and
disclosure of the requested agency records. The district court later
consolidated the two lawsuits.
Appellees moved to dismiss most of Rutila’s claims, and the district
court dismissed seven of Rutila’s requests in May 2019 for lack of subject
matter jurisdiction. Appellees then moved for summary judgment on the
three remaining requests, which the district court granted in May 2020.
Rutila appealed and argued that the district court erred in concluding that it
did not have subject matter jurisdiction with respect to five of his requests.
We agreed and reversed, holding that Rutila alleged facts sufficient to invoke
the court’s subject matter jurisdiction, and remanded the case back to the
district court. Rutila v. U.S. Dep’t of Transp., 12 F.4th 509, 511 (5th Cir.
2021). On remand, Appellees moved for summary judgment a second time
on the five revived requests, which the district court granted in June 2022.
Rutila now appeals the district court’s judgment with respect to three
of his requests: (1) FOIA Request 2016-009149 (“FOIA 9149”), which seeks
FAA Academy Standard Operating Procedures (“SOPs”) and related
emails; and (2) FOIA Request 2017-000862 (“FOIA 862”) and (3) FOIA
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Request 2017-001174 (“FOIA 1174”), which respectively seek copies of
specific individuals’ application software profiles and Windows Explorer
directories and folder structures.
II.
FOIA “requires federal agencies to make Government records
available to the public,” Milner v. Dep’t of the Navy, 562 U.S. 562, 564 (2011),
and “empowers federal courts to order an ‘agency’ to produce ‘agency
records improperly withheld’ from an individual requesting access,”
Forsham v. Harris, 445 U.S. 169, 171 (1980) (quoting 5 U.S.C.
§ 552(a)(4)(B)). Most FOIA cases are resolved at summary judgment.
Flightsafety Servs. Corp. v. Dep’t of Labor, 326 F.3d 607, 610 (5th Cir. 2003).
We review de novo the district court’s grant of summary judgment
under FOIA, using the standards used by the district court in reviewing the
agency’s decisions to deny access to or otherwise not produce the requested
documents. Id. Summary judgment is proper “if the movant shows 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).
III.
A.
Rutila first challenges the district court’s conclusion that the FAA
issued a timely demand for fees for the services required to retrieve the
records sought by FOIA 9149. On September 7, 2016, Rutila submitted a
request to the FAA seeking “FAA Academy Quality Assurance (AMA–
505b) SOPs concerning evaluation procedures/methods/guidance/etc.,
including emails concerning said guidance or modifications and
interpretations to or regarding the guidance.” Four days later, on September
11, Edward Drake, a FOIA Program Coordinator, responded to Rutila’s
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request “needing clarification on the time frame [Rutila was] seeking
regarding the requested SOP’s, i.e., what month(s) and year(s)?” He
indicated that “[t]his request will not be processed until clarification is
confirmed.” That same day, Rutila responded that, “[i]n terms of SOPs
concerning evaluation procedures/methods/guidance/etc.,” he was
“seeking a copy of the most current version(s) plus relevant notices and
supplements, if any exist, as well as the version(s) used prior to the current
one, plus its notices and supplements” and specified that, “[i]n terms of the
time frame for emails requested, a period of 12 months beginning on
September 7th, 2015 is acceptable.” The FAA then acknowledged receipt of
FOIA 9149 on September 14.
On September 16, Drake sought clarification from Rutila regarding the
maximum amount he was willing to pay because the search “may be
somewhat extensive.” Rutila responded that day indicating he would be
willing to pay $25 but “may amend this maximum dollar amount” once he
received a fee estimate. On October 7, Drake provided Rutila a fee estimate
letter, which estimated the charges for the requested records to be $2,570. At
that point, Rutila stated his belief that “the FAA is unable to assess fees for
this request, as it is already overdue” and requested that it “be processed
with a waiver of fees.” Rutila never paid the fees, and the FAA did not
produce records responsive to his request.
Generally, upon any FOIA request, an agency must “determine
within 20 days (excepting Saturdays, Sundays, and legal public holidays)
after the receipt of any such request whether to comply with such request.”
5 U.S.C. § 552(a)(6)(A)(i); see also 49 C.F.R. § 7.31(a) (requiring DOT to
abide by the twenty-day deadline). When DOT fails to comply with this time
limit, it generally does not assess search fees. 49 C.F.R. § 7.43(f). The parties
disagree as to whether the FAA’s October 7 fee assessment was made within
twenty business days of receiving Rutila’s FOIA request, which requires us
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to determine at what time Rutila’s request qualified as a received FOIA
request.
DOT regulations provide that “[a] request is not considered to be a
FOIA request if the record or records sought are insufficiently described such
that DOT is unable to respond as required by FOIA.” 49 C.F.R. § 7.24(d).
In such a case, the twenty-day clock “will not start to run until the request is
determined by DOT to be sufficiently understood to enable DOT to respond
as contemplated under FOIA (or would have been so determined with the
exercise of due diligence by an employee of DOT) and is considered
received.” Id. A “request is considered received when it is first received by
the FOIA office to which it should have been originally sent . . . but in any
event not later than ten Federal working days after it is first received by any
DOT FOIA Requester Service Center.” Id. § 7.24(e). Furthermore,
“DOT’s time limit for responding to a FOIA request . . . may be tolled one
time to seek additional information needed to clarify the request and as often
as necessary to clarify fee issues with the requester.” Id. § 7.24(f); see also id.
§ 7.35.
If Rutila’s request constituted a received FOIA request on September
7, when he first submitted his request, then the deadline for assessing fees
had passed; if it was not a received FOIA request until September 9 or later,
then the FAA met the deadline and the fee assessment was appropriate.
Rutila addresses a different question in his briefing: whether DOT tolled the
twenty-day working period “for the purpose of seeking additional
information needed to clarify the request.” Id. § 7.35(a). He argues that the
additional information requested on September 11 was not needed to clarify
the request because Drake requested a timeframe for one category of
records—the requested SOPs—and Rutila declined to provide any time
limits for that portion of the request. Rutila concedes that, in his September
11 reply, he limited the scope of the email portion of the request but contends
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that this was not requested by Drake and thus not necessary to clarify the
request. Because the FAA accepted Rutila’s request and generated a fee
estimate despite his failure to provide a timeframe for the requested SOPs,
he argues that this information cannot be considered necessary for
clarification.
But Rutila fails to address whether his initial September 7 request was
sufficiently described such that it would be considered a FOIA request. Id.
§ 7.24(d). A request under FOIA must “[d]escribe the record or records
sought to the fullest extent possible,” id. § 7.24(a)(5), and a request is
sufficiently described for the purposes of FOIA if “the agency is able to
determine precisely what records are being requested,” Kowalczyk v. Dep’t of
Just., 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. DEA, 678 F.2d
315, 326 (D.C. Cir. 1982)). Rutila’s September 7 request did not meet this
standard. In his request, Rutila stated that he sought “SOPs concerning
evaluation procedures/methods/guidance/etc.”—he did not say whether he
requested all such SOPs in the FAA’s possession, the current SOPs, or the
SOPs that were in effect during a certain period. As Drake’s declaration
explained, Drake “determined that the request as written was not a perfected
request” because “the request as written appeared to seek many iterations of
various Academy SOPs and related records and did not define a timeframe.”
Rutila’s September 11 response provided additional information,
which enabled the FAA to determine what records were being requested.
Specifically, he explained that he was seeking “a copy of the most current
version(s) plus relevant notices and supplements, if any exist, as well as the
version(s) used prior to the current one, plus its notices and supplements.”
Rutila had not indicated which versions of SOPs he was seeking in his initial
request, and for this reason his contention that he did not provide additional
information on September 11 relating to his request for SOPs is without
merit. We hold that Rutila’s request was not a FOIA request until at least
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September 11, when he described which SOPs he was requesting.1 Therefore,
the FAA’s fee assessment on October 7 was timely, and the FAA was not
obligated to waive fees for FOIA 9149.
B.
Rutila also challenges the determination by the FAA and district court
that FOIA 862 and FOIA 1174 were not proper FOIA requests because they
required the FAA to create a record. As relevant to this appeal, FOIA 862
sought copies of “the Active Directory Account profile (all tabs) for
Madeline Bostic” and “the NEXTGEN Toolbox profile for Madeline
Bostic,” and FOIA 1174 sought “[a] copy of the directory or folder structure
of Windows Explorer for all of Rick Mitchell’s network drives and ‘My
Documents’ folders.”
Dedra Goodman, the Manager of the FAA’s FOIA Program,
explained in a declaration that, due to the nature of the systems and
structures identified by Rutila’s requests, “the only way to provide the
information” sought by FOIA 862 and FOIA 1174 “would be to take a
screenshot of the requested data displayed on a screen.” The Active
Directory system is “the FAA’s main directory service,” which “allows
users to manually input their profile information, but also pulls data from
various other sources . . . and organizes and displays that data in real time.”
It is not a database and “not configured to enable administrative users to
_____________________
1
Appellees argue that Rutila’s request did not constitute a FOIA request until
September 16, when Rutila further specified that he was seeking “any document containing
methods, guidance, or procedures for employees or contractors of AMA–505b related to
conducting and/or grading evaluations” and confirmed that the maximum dollar amount he
was willing to pay was $25 (though he also stated that he might amend this amount
depending on the fee estimate). However, we need not decide the precise moment Rutila’s
request qualified as a FOIA request because the FAA’s October 7 fee assessment satisfied
the twenty-day deadline so long as Rutila’s request was not perfected before September 9.
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export data in a usable format.” The NextGen Toolbox system “was used to
manage mailing lists and for email password resets prior to 2014,”
and,“[l]ike Active Directory, this system displayed data to users but was not
set up in a way that allowed data to be exported.” The FAA does not maintain
a record of Active Directory or NextGen Toolbox profiles, so the only way to
produce such a record of Ms. Bostic’s profiles would have been to take a
screenshot of the data displayed in the system. Similarly, “the FAA does not
maintain documents that reflect an employee’s network drives, network
directory, My Documents folder, or Windows Explorer folder structure,” so
“the only way to capture this data would have been to take a screenshot of
Mr. Mitchell’s folder structures.”
Rutila acknowledges that “FOIA imposes no duty on [an] agency to
create records,” Forsham v. Harris, 445 U.S. 169, 186 (1980); rather, “it only
obligates [an agency] to provide access to those which it in fact has created
and retained,” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S.
136, 152 (1980). He contends, however, that searching an electronic system
and printing and releasing the records of said search does not involve the
creation of a record.
It is undisputed that the FAA does not maintain screenshots of
individuals’ Active Directory Account profiles, NextGen Toolbox profiles,
or Windows Explorer directories and folder structures.2 Therefore, for the
_____________________
2
Rutila accuses the district court of failing to examine “whether screenshots were
the only way to extract or export this information.” However, Goodman submitted that the
only way to produce the information Rutila requested is via screenshot, and her declaration
is entitled to a “‘presumption of legitimacy’ unless there is evidence of bad faith in
handling the FOIA request.” Batton v. Evers, 598 F.3d 169, 176 (5th Cir. 2010) (quoting
U.S. Dep’t of State v. Ray, 502 U.S. 164, 179 (1991)). Rutila provides no such evidence;
therefore, we presume that screenshots are the only available method for producing the
requested information.
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FAA to produce the requested records, it would have to open the relevant
software, display the requested data, and take a screenshot of the displayed
information. A sister circuit has previously held that FOIA does not require
an agency to undertake that process because it requires creating a new record,
Brown v. Perez, 835 F.3d 1223, 1237 (10th Cir. 2016), and we agree. See also
Colgan v. Dep’t of Just., No. 14-cv-740, 2020 WL 2043828, at *10 (D.D.C.
Apr. 28, 2020) (“For the government to produce the requested screenshots,
it would have to open the software and create a screenshot . . . . FOIA
imposes no such duty on agencies, and the search screen is not simply
another ‘form or format’ of an already maintained record.”).
Relying on Schladetsch v. U.S. Department of Housing & Urban
Development, Rutila contends that, where an agency already retains all the
information being requested, producing a screenshot of that information does
not constitute creating a record. No. 99-0175, 2000 WL 33372125 (D.D.C.
Apr. 4, 2000). But that case is readily distinguishable. In Schladetsch, the
plaintiff requested that the Department of Housing and Urban Development
(“HUD”) compile certain historical records relating to listings of unpaid
refunds for loans, which HUD partially denied. Id. at *1. HUD conceded that
it retained all the information the plaintiff requested but argued that collating
it in the isolated compilation sought by the plaintiff would require HUD to
create a new record. Id. at *2. The district court disagreed and held that,
“[b]ecause HUD has conceded that it possesses in its databases the discrete
pieces of information which [the plaintiff] seeks, extracting and compiling
that data does not amount to the creation of a new record.” Id. at *3. Here,
by contrast, the information Rutila seeks is not maintained by the FAA in a
database or otherwise. Producing this information would require more than
an “electronic search of computer databases” for pre-existing records
followed by “extract[ion] and compil[ation],” id.; it would require the FAA
“to open the software and create a screenshot, which would not otherwise
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exist from the last time the agency opened the software to the search screen,”
Colgan, 2020 WL 2043828, at *10. FOIA does not obligate agencies to satisfy
such requests.
For similar reasons, Rutila’s reliance on ACLU Immigrants’ Rights
Project v. U.S. Immigration & Customs Enforcement is misplaced. 58 F.4th 643(2d Cir. 2023). There, the American Civil Liberties Union (“ACLU”)
requested that United States Immigration and Customs Enforcement
(“ICE”) produce agency records pertaining to five stages of the immigration
enforcement and deportation process, with anonymized unique identifiers
for each individual or case to allow the ACLU to track individual aliens across
the produced data.3 Id. at 646, 648. ICE produced most of the requested
information but did not comply with the ACLU’s request to provide
anonymized unique identifiers because it would require the creation of new
records. Id. at 649–50. ICE acknowledged that it had the “ability to track a
single individual across the various stages of immigration proceedings”—in
other words, “although ICE stores immigration data by event, it can, and on
an ad hoc basis does, access that information in a person-centric manner in
the regular course of agency business.” Id. at 655, 658. Accordingly, the
Second Circuit held that, in the ACLU’s urged substitution, wherein “ICE
would query databases for datapoints by reference to meaningless”
identifiers, “using a query to search for and extract a particular arrangement
or subset of data already maintained in an agency’s database does not amount
_____________________
3
Specifically, the ACLU requested that ICE replace Alien Identification Numbers,
or A-Numbers, with anonymous identifiers because A-Numbers are likely exempt from
disclosure under FOIA. See ACLU Immigrants’ Rts. Project, 58 F.4th at 648–49 & n.5.
There was no question that ICE maintained the information requested by the ACLU; the
only dispute was whether FOIA mandated that ICE produce the information in a manner
that provided the ACLU the same functionality, i.e., the ability to relate records using an
identifier linked to individual persons.
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to the creation of a new record.” Id. at 659 (emphasis added) (quoting Ctr.
for Investigative Reporting v. DOJ, 14 F.4th 916, 938 (9th Cir. 2021)). Rutila’s
request is markedly different because he seeks information that Appellees do
not actively maintain in any format. His inquiry would not merely require
Appellees to produce information they retain and use, albeit in a slightly
altered format; it would instead require Appellees to produce a new record—
a screenshot—of information it does not store. Again, FOIA imposes no such
obligations on agencies.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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