Judicial Watch, Inc. v. U.S. Air Force

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
Civil Action No. 11-cv-0932 (BJR)
v.
ORDER FOR SUPPLEMENTAL
BRIEFING
UNITED STATES AIR FORCE,
Defendant.
This case concerns a request made under the Freedom of Information Act, 5 U.S.C § 552
(“FOIA”) by plaintiff, Judicial Watch, Inc. (hereinafter “Judicial Watch”), to defendant, the
United States Air Force (hereinafter “USAF” or “the USAF”). Before the court at this time are
Judicial Watch’s Motion for Partial Summary Judgment [dkt. #9] (hereinafter “Pltf.’s Mot.”) and
USAF’s Cross-Motion for Summary Judgment [dkt. #12] (hereinafter “Def.’s Mot.”). In light of
the current briefing, the court will defer ruling on Judicial Watch’s motion, deny in part and
defer ruling in part on USAF’s motion, and seek supplemental briefing from the parties as
outlined below.
I. RELEVANT FACTS
The following facts are undisputed and relevant to the issue at hand:
On April 14, 2011, Judicial Watch submitted a FOIA request to the USAF seeking the
following:
a) Any and all records concerning or relating to the Air
Force’s processing of Judicial Watch, Inc.’s November 9,
2010 FOIA request, No. 2011-01181-F;
b) Any and all metadata for the Air Force’s letter, purportedly
dated January 11, 2011, responding to Judicial Watch’s
November 9, 2010 FOIA request, No. 2011-01181-F.
Complaint [dkt. #1] ¶ 5; Defendant’s Statement of Material Facts [dkt. #12-2] (hereinafter
“Def.’s SOF”) ¶ 1.
The January 11, 2011 letter responding to Judicial Watch’s November 9, 2010 FOIA
request was initiated using a Microsoft Word template and finalized using Adobe Acrobat
software. Def.’s SOF ¶ 6; Plaintiff’s Statement of Material Facts [dkt. #14] (hereinafter “Pltf.’s
SOF”) ¶ 6. On February 15, 2011, USAF FOIA Disclosure Officer Theodore Martin e-mailed a
copy of the January 11, 2011 letter to Judicial Watch at info@judicialwatch.org. An employee
of Judicial Watch received the e-mail and opened the attached PDF file. Def.’s SOF ¶ 7; Pltf.’s
SOF ¶ 7.
II. DISCUSSION
A. Judicial Watch’s Request Seeking the Metadata for the November 9, 2010
Letter is Not Moot
In its Cross-Motion for Summary Judgment, USAF argues primarily that Judicial
Watch’s request for metadata in this case is moot, due to the inadvertent production of that letter
to Judicial Watch as an Adobe PDF file attached to an e-mail.
Under FOIA, a suit is authorized against federal agencies only to remedy an agency's
improper withholding of information. Kissinger v. Reporters Comm. for Freedom of the Press,
445 U.S. 136, 150 (1980); see also 5 U.S.C. § 552(a)(4)(B) & (f)(1). Once the requested records
have been produced, there is no longer a case or controversy, and the FOIA action becomes
moot. West v. Spellings, 539 F. Supp. 2d 55, 61 (D.D.C. 2008).
The parties agree that metadata has been “defined as ‘information describing the history,
tracking or management of an electronic document.” Pltf.’s Mot. at 1; Def.’s Mot. at 6 (quoting
Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 171 (D. Del. 2006) (quoting Williams v.
Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005))). The parties also agree that
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metadata is “automatically created by a computer when a document is created or altered,” and
that it includes such information as “time, date or author.” Pltf.’s Mot. at 1; Def.’s Mot. at 6.
USAF argues that the PDF was the letter’s “native” format, and, therefore, any metadata
associated with the letter was already produced to Judicial Watch. Thus, the controversy is
moot. Def.’s Mot. at 6. USAF explains that metadata inherent to a file “is embedded in the file it
describes and moves with the file when it is moved or copied,” and that the metadata is
transmitted “with a copy of the record in its native format.” Id. (quoting Lake v. City of Phoenix,
218 P.3d 1004, 1007-08 (Ariz. 2009)). USAF defines “native” format as meaning “that a file is
in the format of the software application that was used by the author who created the file.”
Declaration of Kerry Sisler [dkt. #12-4] ¶ 11.
Judicial Watch argues that the earlier version of the letter that was composed in Microsoft
Word constituted a separate document possessing its own unique metadata prior to being
converted to a PDF and e-mailed to Judicial Watch, and claims that it is entitled to the metadata
associated with that Microsoft Word document. Plaintiff’s Opposition to Defendant’s Cross-
Motion for Summary Judgment [dkt. #14] at 5. USAF agrees that the Microsoft Word document
is a separate document, but claims that it is, in fact, an entirely different document, and would
have to be subject to an additional FOIA request, because only the Adobe PDF bearing Martin’s
electronic signature constitutes the “particular document” at issue. Reply in Support of
Defendant’s Cross-Motion for Summary Judgment [dkt. #16] (hereinafter “Def.’s Reply”) at 5.
Turning to the language of the original FOIA request, this court construes “[a]ny and all
metadata for the Air Force’s letter” to encompass both the metadata embedded in the Adobe PDF
file and that embedded in the Microsoft Word document file. The addition of Martin’s digital
signature did not alter the nature of the letter. Rather, it made the file version in which the letter
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was written and the file version in which it was signed separate documents for the purpose of a
FOIA request for “any and all metadata” for that letter. The Microsoft Word document would
carry its own unique metadata, and, if Judicial Watch is entitled to the metadata at all (an issue
yet to be decided), that metadata would be encompassed by the original request. The production
of the Adobe PDF file does not moot the request.
B. The Parties Must Submit Supplemental Briefing
While USAF focuses its briefing on the mootness argument, it also makes clear that it
takes the position that metadata is not an “agency record” under FOIA, and argues that such an
interpretation is “overbroad,” and “cannot be reconciled with either the Act’s legislative history
or the D.C. Circuit’s test for determining agency records.” Def.’s Mot. at 2. In its Reply, USAF
requests the opportunity to brief this position more fully should the court decide to reach the
issue. Def.’s Reply at1 n.1. In light of the court’s determination that the metadata request was
not rendered moot by the production of the Adobe PDF file of the January 11, 2011 letter, the
court grants this opportunity.
Therefore, it is, hereby,
ORDERED that USAF’s Cross-Motion for Summary Judgment is DENIED IN PART,
to the extent that it claims the action is moot by virtue of Theodore Martin’s e-mailing the PDF
file of the January 11, 2011 letter to Judicial Watch. It is further, hereby,
ORDERED that USAF has fourteen (14) days from the issuance of this Order to
supplement its briefing on whether metadata constitutes an “agency record” under FOIA. It is
further, hereby,
ORDERED that Judicial Watch shall have fourteen (14) days from USAF’s filing its
supplemental briefing to file a response to that briefing. Finally, it is, hereby,
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ORDERED that USAF shall have seven (7) days from Judicial Watch’s filing its
response to file a reply.
SO ORDERED.
April 10, 2012
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
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