Motion For Summary Judgment by DoJ in CEI Vs NASA (2010)

Case 1:10-cv-00883-RWR Document 16-1 Filed 09/20/10 Page 1 of 37
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
____________________________________
)
COMPETITIVE ENTERPRISE )
INSTITUTE, )
)
Plaintiff, )
) Civil Action
v. ) No. 10-0883 (RWR)
)
NATIONAL AERONAUTICS )
AND SPACE ADMINISTRATION, )
)
Defendant. )
____________________________________)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
PRELIMINARY STATEMENT
This is an action filed under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
by the Competitive Enterprise Institute (“CEI” or “Plaintiff”) against the National Aeronautics
and Space Administration (“NASA”). See Compl. In 2007, Plaintiff made two FOIA requests to
NASA seeking records pertaining to global temperature data, specifically, records of the Goddard
Institute of Space Studies (“GISS” or “the Agency”), a laboratory of the Earth Sciences Division
of NASA’s Goddard Space Flight Center (“GSFC”), relating to GISS’s revision, on or around
August 2007, of NASA’s global temperature data sets. See Exs. A-B to Compl. In 2008,
Plaintiff made a third FOIA request to NASA seeking records of correspondence sent or received
by GISS employee Dr. Gavin A. Schmidt pertaining to the weblog or “blog”
http://www.realclimate.org. See Ex. D to Compl.
NASA moves the Court to enter summary judgment in its favor pursuant to Rule 56(b) of
the Federal Rules of Civil Procedure. As outlined in this memorandum and in the attached
Declaration of Larry D. Travis, unlike most cases brought under the FOIA, and despite Plaintiff’s
attempt in the Complaint to paint a complicated factual picture about the Agency’s processing of
CEI’s three requests, this case does not present the Court with the usual legal questions regarding
the adequacy of the Agency’s search or the propriety of the Agency’s application of the FOIA
exemptions to withhold information from release. Rather, this case poses one question: what
constitutes an “agency record” under the law?
Of the three requests, two – Request Nos. 07-172 and 07-175, see Exs. A and B to
Compl. – were substantially overlapping in the subject matter they sought, and thus the Agency
searched for, processed, and released records responsive to those requests together. On January
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29, 2010, Plaintiff administratively appealed in part the Agency’s partial release, accompanied by
the Initial Determination on Partial Responses, dated December 29, 2009, see Ex. C to Compl.,
but this appeal was mooted on February 23, 2010, when the Agency released to Plaintiff records
completing its response, accompanied by the Initial Determination for Final Response, see Ex. 4
to Declaration of Larry D. Travis. As Plaintiff did not administratively appeal the Agency’s final
response to Request Nos. 07-172 and 07-175, no claims with respect to the Agency’s response to
those requests under the FOIA are properly before the Court, and summary judgment should be
entered for NASA on all claims arising out of these requests.
With respect to the third request – Request No. 08-040, which seeks email
correspondence of Dr. Gavin Schmidt, an Agency employee – the question for the Court is
whether there exist any“agency records” subject to the FOIA for which the Agency is obligated
to search, and which the Agency has an obligation to release to the requester. Under the law of
this Circuit, it is clear that, within the universe of Dr. Schmidt’s email correspondence, there do
not exist any “agency records.” As such, the Agency had no obligation under the FOIA to search
Dr. Schmidt’s email correspondence, nor to release to Plaintiff any of Dr. Schmidt’s emails.
Even so, on December 29, 2009 and July 9, 2010, the Agency, in its discretion, did release to
Plaintiff copies of those emails of Dr. Schmidt’s that pertain to the subject matter sought by
Plaintiff’s request. Accordingly, the Court should grant summary judgment in favor of NASA on
all claims arising out of this request, too.
BACKGROUND
I. Goddard Institute of Space Studies of the Goddard Space Flight Center, NASA
In 1958, President Eisenhower signed into law the National Aeronautics and Space Act,
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Public Law No. 85-568, codified at 42 U.S.C. § 2451 et seq., establishing the National
Aeronautics and Space Administration (“NASA”) to provide for and coordinate the nation’s
aeronautical and space activities, including activities to be conducted “to contribute materially to
. . . [t]he expansion of human knowledge of the Earth and of phenomena in the atmosphere and
space.” 42 U.S.C. § 2451. A component of NASA is the Goddard Space Flight Center
(“GSFC”), located in Greenbelt, Maryland, which is home to the nation’s largest organization of
combined scientists, engineers and technologists who build spacecraft, instruments and new
technology to study the Earth, the sun, the solar system, and the universe. Within GSFC is the
Sciences and Exploration Directorate (“SED”), the world’s largest Earth and space science
research center. See http://science.gsfc.nasa.gov/sed/index.cfm?fuseAction=-home.main&&nav-
OrgCode=600/ (last accessed September 16, 2010). A subcomponent of the SED is the Earth
Sciences Division (“ESD”), which plans, organizes, evaluates, and implements a broad program
of research on the planet’s natural systems and processes, focusing on areas such as climate
change, severe weather, the atmosphere, the oceans, sea ice and glaciers, and the land surface.
See http://science.gsfc.nasa.gov/sed/index.cfm?fuseAction=home.main&&navOrgCode=610
(last accessed September 16, 2010).
The Goddard Institute for Space Studies (“GISS”), is a component laboratory of ESD. At
the time of the creation of GISS in 1961 by Dr. Robert Jastrow, NASA was seeking to facilitate
collaboration between NASA and non-federal scientists to enable the federal government’s
aeronautics and space program to take advantage of research resources in the non-federal sector.
See Travis Decl. ¶ 5d; http://www.giss.nasa.gov/about/ (last accessed September 16, 2010).
GISS was established in New York City to facilitate an informal affiliation between NASA and
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Columbia University (“Columbia”) to enable the federal government and Columbia to undertake
collaborative research on space science. Id. Originally established to conduct basic research in
space sciences, GISS has an early focus on study of planetary atmospheres, using data collected
by telescopes and space probes, but has evolved over time to become a leading center for the
study of atmospheric modeling and of climate change. Id.
To facilitate its collaborative relationship with Columbia University, GISS is located near
Columbia in a Columbia-owned building, a portion of which the United States General Services
Administration (“GSA”) leases from Columbia for GISS, and for which NASA pays rent to
GSA. Id. at ¶¶ 6, 10. GSA’s lease from Columbia is at market rates, involving no special
arrangement or consideration by Columbia to the federal government. Id. at ¶ 10b. Additionally,
no formal memorandum of understanding governs the relationship between Columbia and GSFC
or NASA. Id. at ¶ 10a. Rather, four general cooperative agreements between GSFC and NASA
provide for Columbia personnel to perform work at GISS. Id. These cooperative agreements,
each of which generally covers a three-year period, result from unsolicited proposals, submitted
by Columbia to GSFC, for anticipated research by Columbia personnel at GISS. Id. The four
cooperative agreements currently governing Columbia research at GISS are “follow-ons” to
predecessor agreements dating back 15 years or more. Id.
Due to the collaborative nature of the research conducted at GISS, the personnel working
in the physical facility at GISS carry a variety of professional affiliations. Id. at ¶ 6. Currently,
GISS houses 27 NASA employees, including 25 GISS employees and 2 employees of GSFC that
are not affiliated with GISS but are colocated at the GISS site. Id. GISS also houses about 25
work-year-equivalent support services contract employees of Sigma Space Partners, the
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contractor that provides information technology (“IT”) support for GISS. Id. Additionally, GISS
houses two employees from the Massachusetts Institute of Technology, who also collaborate on
research with NASA and Columbia scientists. Id. Finally, GISS houses approximately 55 full-
time and between 20 and 30 part-time Columbia personnel, including members of four Columbia
academic departments,1 consisting of faculty, graduate students, and student research aides
pursuing casual employment. Id. Approximately 6 of the NASA employees housed at GISS also
hold unpaid adjunct appointments at Columbia. Id. at page 4, n.1.
In connection with the varied employment affiliations of the approximately 100 personnel
with work stations at the GISS site, personnel at GISS hold email accounts on a diverse
combination of email domains. Each individual who is employed or otherwise conducts research
at the GISS building has an email account on the @giss.nasa.gov domain, as well as the
@nasa.gov domain, which is actually just an alias to the email address on the @giss.nasa.gov
domain. Id. at ¶ 12. Each individual housed at GISS who is affiliated with Columbia, as a
current student, a full-time faculty member, or through an adjunct appointment, or who once did,
but no longer does carry one of these affiliations with Columbia, also has an email account on the
@Columbia.edu domain. Id. Individuals housed at GISS may have additional email accounts on
other domains as well. Id.
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The four Columbia departments whose affiliates collaborate with GISS, and which, together
with GISS, comprise Columbia’s Interdepartmental Committee on Atmospheric and Planetary
Science are: the Department of Applied Physics and Applied Mathematics, the Department of
Astronomy, the Department of Earth and Environmental Science, and the Department of Physics.
Id. at ¶ 7.
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II. Statutory Background of the FOIA
The Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, generally mandates
disclosure, upon request, of government records held by an agency of the federal government
except to the extent such records are protected from disclosure by one of nine exemptions, id. §
552(b). The “fundamental principle” that animates FOIA is “public access to Government
documents.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989). In a case brought
under the FOIA, a federal district court’s jurisdiction is limited to “enjoin[ing] the agency from
withholding agency records” and “order[ing] the production of any agency records improperly
withheld.” 5 U.S.C. § 552(a)(4)(B) (emphasis added). Thus, “federal jurisdiction is dependent
on a showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’” U.S.
Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting Kissinger v. Reporters
Committee for Freedom of Press, 445 U.S. 136, 150 (1980)). All three criteria must be met to
confer on a district court jurisdiction to compel agency action. Id.
Regarding the third criterion above, documents constitute “agency records” subject to
FOIA if they (1) are created or obtained by an agency, and (2) are in the agency’s control. See
U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144-46 (1989). In regard to the second
prong of this analysis, the D.C. Circuit has identified four factors relevant to the determination of
whether an agency exercises control over a record to render it an “agency record” under FOIA:
[1] the intent of the document’s creator to retain or relinquish control over the
records; [2] the ability of the agency to use and dispose of the record as it sees fit;
[3] the extent to which agency personnel have read or relied upon the document;
and [4] the degree to which the document was integrated into the agency’s record
system or files.
Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988) (quoting Lindsey v.
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U.S. Bureau of Prisons, 736 F.2d 1462, 1465 (11th Cir. 1984), vacated, 469 U.S. 1082 (1984)),
aff’d on other grounds, 492 U.S. 136 (1989). The question of whether “agency records”
responsive to a FOIA request exist is judged from the time of the request. See Tax Analysts, 492
U.S. at 145-46.
If documents are determined to be agency records subject to the FOIA, they may still be
withheld in whole or in part pursuant to FOIA’s exemptions. See 5 U.S.C. § 552(b). While
“[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to hold the governors accountable to
the governed,” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978), at the same time,
Congress recognized “that legitimate governmental and private interests could be harmed by
release of certain types of information and provided nine specific exemptions under which
disclosure could be refused.” FBI v. Abramson, 456 U.S. 615, 621 (1982); see also 5 U.S.C. §
552(b). While these exemptions are to be “narrowly construed,” Abramson, 456 U.S. at 630,
courts must not fail to give the exemptions “meaningful reach and application.” John Doe
Agency, 493 U.S. at 152. The FOIA thus “represents a balance struck by Congress between the
public’s right to know and the government’s legitimate interest in keeping certain information
confidential.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir.
2003).
III. CEI’s FOIA Requests at Issue in this Litigation
A. Requests 07-172 and 07-175
By letter dated August 24, 2007, CEI sought “copies of all records, documents, internal
communications and other relevant covered material created by, provided to and/or sent by
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[GISS], citing, referencing, discussing or otherwise related to the August 2007 correction by
[GISS] of online temperature data for over 1200 US HCN stations and for their U.S. temperature
history.” See Ex. A to Compl. In its request, CEI limited the relevant time period for records
“covered by this Request,” stating that it only sought those records that “will have been received
or produced by your office(s) and/or otherwise dated between 1st August 2007 and the date of
your initial (electronic) receipt of this letter.” See id. at unnumbered page 3 (emphasis in
original). This letter was received, via electronic mail, on August 24, 2007, by the FOIA office
at NASA Headquarters (“HQ FOIA”). Travis Decl. at ¶ 24. On September 20, 2007, HQ FOIA
assigned CEI’s request FOIA request number 07-175, and transferred the request to the FOIA
office at GSFC (“GSFC FOIA”). Id.
By letter dated August 27, 2007, CEI sought “copies of all records, documents, internal
communications and other relevant covered material created by, provided to and/or sent by
[GISS], citing, referencing, discussing or otherwise relating to the email(s) sent to James
Hansen and/or Reto A. Ruedy from a Stephen (Steve) McIntyre – possibly but not
necessarily using the address stephen.mcintyre@utoronto.ca – beginning on or about
August 3, 2007 specifically mail calling their attention to an error(s) in [GISS] online
temperature data.” See Ex. B to Compl. (emphasis in original). Again, in its request, CEI
limited the relevant time period for records “covered by this Request,” stating that it only sought
those records that “will have been received or produced by your office(s) and/or otherwise dated
between 3rd August 2007 and the date of your receipt of this letter.” See id. at unnumbered
page 2 (emphasis in original). This letter was received, via electronic mail on August 27, 2007,
by HQ FOIA. Travis Decl. at ¶ 25. On September 12, 2007, HQ FOIA assigned CEI’s request
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FOIA request number 07-172, and transferred the request to GSFC FOIA. Id.
On December 31, 2009, in a partial release to CEI, the Agency released 205 pages of
emails responsive to Request Nos. 07-172 and 07-175, along with a letter, “Initial Determination
on Partial Responses.” See Ex. C to Compl. On February 23, 2010, the Agency released to CEI
approximately 1500 additional pages of emails responsive to Request Nos. 07-172 and 07-175,
along with a letter, “Initial Determination for Final Response,” which stated that the documents
released to CEI on that date “complete[] the NASA Goddard Space Flight Center’s response” to
Request Nos. 07-172 and 07-175. See Ex. 4 to Travis Decl.
B. Request 08-040
By letter dated January 28, 20082, CEI sought “copies of all records, documents, internal
communications and other relevant covered material created by, provided to and/or sent by an
official at [GISS] that cites, references, discusses or otherwise relates to the content, importance
or propriety of posts or entries by [GISS employee Gavin A. Schmidt] on the weblog or ‘blog’
http://www.realclimate.org/, alternatively styled in this correspondence as ‘RealClimate’, ‘Real
Climate’, ‘RC’, or ‘the blog’.” See Ex. C to Compl. This letter was received, via electronic
mail, on January 28, 2008, by the FOIA office at NASA Headquarters (“HQ FOIA”).
On December 31, 2009, the Agency released 184 emails in response to Request
No. 08-040, along with a letter, “Notice of Initial Determination and Response.” See Ex. E to
Compl. On July 9, 2010, the Agency released to CEI approximately 190 additional pages of
emails. See Ex. 5 to Travis Decl.
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The letter carries the date “January 28, 2007,” but was sent by mail and electronic mail on
January 28, 2008, so will be considered to have been dated January 28, 2008.
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C. CEI’s Appeal Following Agency’s December 31, 2009 Initial Determinations
By letter dated January 29, 2010, CEI, through Mr. Horner, filed an Appeal under the
FOIA to “appeal in part the National Aeronautics and Space Administration’s (‘NASA’) Initial
Determination regarding my Freedom of Information Act (‘FOIA’) [Request Nos. 07-172, 07-
175, and 08-040].” See Ex. F to Compl., at 1. Mr. Horner made three requests to the Agency:
(1) that the Agency “reverse[]” its “Initial Determination not to release RealClimate related e-
mails from Dr. Schmidt to outside parties,” id. at 8; (2) that the Agency “initiate a comprehensive
de novo search” in response to FOIA Request No. 08-040, id. at 23; and (3) that the Agency
complete its response to FOIA Request Nos. 07-172 and 07-175, which the Agency’s December
31, 2009 letter “Initial Determination on Partial Responses” described as “a partial response” and
explained that the Agency was “continuing to obtain and review additional information that
appears to be responsive” to these requests, id. at 24-25. In its appeal, CEI did not appeal the
Agency’s withholding of information from the released documents pursuant to the FOIA
exemptions, nor did it appeal the adequacy of the search the Agency conducted in response to
Request Nos. 07-172 and 07-175. See id. at 24-26.
On February 23, 2010, the Agency released records concluding its response to FOIA
Request Nos. 07-172 and 07-175, thereby rendering moot CEI’s third request in its January 29,
2010 appeal (requesting that the Agency complete its response to FOIA Request Nos. 07-172 and
07-175). See Letter from Mark S. Hess, Chief, Office of Public Affairs, NASA, to Christopher
C. Horner, Senior Fellow, CEI (Feb. 23, 2010) (Ex. 4 to Travis Decl.).
STANDARD OF REVIEW
Summary judgment is the procedure by which courts resolve nearly all FOIA actions. “In
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order to obtain summary judgment the agency must show 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 the Army, 920 F.2d 57, 68 (D.C.
Cir. 1990). “There is no requirement that an agency search every record system.” Id. “[T]he
issue to be resolved is not whether there might exist any other documents possibly responsive to
the request, but rather whether the search for those documents was adequate.” Weisberg v. U.S.
Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984); see also Meeropol v. Meese, 790 F.2d
942, 952–53 (D.C. Cir. 1986) (“A search is not unreasonable simply because it fails to produce
all relevant material.”); Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982).
In evaluating the adequacy of a search, courts accord agency affidavits “a presumption of
good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991); see also Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). The
statute does not require “meticulous documentation [of] the details of an epic search.” Perry,
684 F.2d at 127. “[A]ffidavits that explain in reasonable detail the scope and method of the
search conducted by the agency will suffice to demonstrate compliance with the obligations
imposed by the FOIA.” Id.
To sustain its burden of justifying nondisclosure of information, see 5 U.S.C.
§552(a)(4)(B), the agency must provide declarations that identify the information at issue and the
bases for the exemptions claimed. See Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C.
Cir. 1998). Courts review de novo the agency’s use of a FOIA exemption to withhold documents.
Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). “[S]ummary judgment is warranted on the
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basis of agency affidavits when the affidavits describe the justifications for nondisclosure with
reasonably specific detail . . . and are not controverted by either contrary evidence in the record
nor by evidence of agency bad faith.” Id. at 374 (internal quotation marks omitted) (omission in
original). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it
appears ‘logical’ or ‘plausible.’” Id. at 374–75.
ARGUMENT
I. The Agency’s Search For Records Responsive to Requests 07-172 and 07-175 Was
Adequate.
Even though the adequacy of the Agency’s search for records responsive to Request Nos.
07-172 and 07-175 is not properly before the Court, because Plaintiff has never administratively
appealed that issue, see e.g., Citizens for Responsibility and Ethics in Washington v. Department
of the Interior, 503 F. Supp. 2d 88, 99-100 (D.D.C. 2007), the Agency complied with its
obligations under the FOIA to search for records responsive to Request Nos. 07-172 and 07-175
because the Agency’s search for such records was reasonably calculated to uncover all
documents responsive to those requests. To demonstrate the adequacy of a search for the
purposes of summary judgment in a FOIA action, an agency must show 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.” Nation Magazine v. U.S. Customs Serv., 71
F.3d 885, 890 (D.C. Cir. 1995) (internal citation and quotations omitted).
It is well-settled that under the FOIA, an agency’s search for responsive records “need not
be perfect, [but] only adequate, and adequacy is measured by the reasonableness of the effort in
light of the specific request.” Meeropol, 790 F.2d at 956. Nor does an agency’s failure to locate
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any particular document undermine an otherwise adequate search. Iturralde v. Comptroller of
the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). “[I]t is long settled that the failure of an
agency to turn up one specific document in its search does not alone render a search inadequate
. . . . After all, . . . a reasonable search may have missed” particular documents.” Id. Similarly,
the D.C. Circuit has rejected the claim that a search is inadequate because it did not uncover
“documents that [plaintiff] claims must exist.” Oglesby, 920 F.2d at 67, n.13.
Here, as set out in detail in the Travis Declaration, the Agency’s search for records
responsive to Request Nos. 07-172 and 07-175 was more than adequate. Meeropol, 790 F.2d at
956; see also Perry, 684 F.2d at 127 (declaration need not “set forth with meticulous
documentation the details of an epic search for the requested records” but need only “explain in
reasonable detail the scope and method of the search conducted by the agency”). The search for
and processing of records responsive to Requests 07-172 and 07-175 were handled in two phases.
See Travis Decl. at ¶ 26. Following receipt of the requests from HQ FOIA on January 30, 2008,
GISS collected approximately 205 emails that were potentially responsive to the requests. Id.
On or about March 17, 2008, GISS sent these emails to the GSFC legal office for responsiveness
review. Id. On December 31, 2009, these emails were issued as a partial release to the requester,
and were accompanied by a letter, “Initial Determination on Partial Responses.” See Ex. C to
Compl.
Between March 17, 2008 and November 24, 2009, GSFC’s legal office sought
confirmation from GISS that the emails provided by GISS to GSFC’s legal office on March 17,
2008 represented a complete set of potentially responsive records. See Travis Decl. at ¶ 27. HQ
FOIA directed GISS to search again for responsive documents with a heightened level of
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direction and guidance from management and the legal office. Id. During this second search,
GISS employees known to have communicated and worked on matters relating to Steve
McIntyre’s August 3, 2007 email and the resulting correction of the GISS on-line surface air
temperature data searched their email accounts believed to contain responsive documents. Id. at
¶ 27a. All communications and work activity related to these requests was done by a limited
number of personnel and all written communication was conducted solely by email. Id. As such,
the Agency’s decision to search the email accounts of these employees was adequate as it was
reasonably calculated to locate any responsive records. See Greenberg v. U.S. Dep’t of Treasury,
10 F. Supp. 2d 3, 30 n.38 (D.D.C. 1998) (finding agency demonstrated adequacy of search when
agency affidavit explained that agency “searched those files which officials expected would
contain the information requested by plaintiff[]”).
The searches performed by GISS personnel involved examination of all individual emails
from the specified time periods for relevance as well as searches based upon search terms
including “temperature,” “gistemp,” “HCN,” “McIntyre,” “Steve,” and “Light Upstairs.” See
Travis Decl. at ¶ 27b. GISS personnel employed different subsets of these search terms
depending on their role in communications about the subject matter of the requests. Id.
Although the requests indicated that they sought documents through the date of their receipt by
NASA, or August 27, 2007 for 07-172 and August 24, 2007 for 07-175, see Exs. A and B to
Compl., GISS was instructed to use a search window that ended no earlier than the date the
requests were received by GSFC’s FOIA office, rather than the dates the NASA Headquarters
FOIA Office received them, see Travis Decl. at ¶ 27c. These dates were September 12, 2007 and
September 20, 2007 for FOIA request 07-172 and 07-175, respectively. Id. As Mr. McIntyre’s
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email communication to NASA that was the subject of the requests was dated August 3, 2007,
for each request, the communications sought and searched covered a time period of less than two
months. Compare Exs. A and B to Compl. with Travis Decl. at ¶ 27c.
The volume of the material initially compiled was greater than what the GISS personnel
involved in the activity expected to locate because one of the search terms used, “temperature,”
resulted in some overly broad hits. Id. at ¶ 27b. These overly broad, nonresponsive emails were
not generally culled out of the material that was collected. Id. The approximately 1500 pages of
emails that were captured during the second search in late 2009 were transferred electronically to
the legal office, which reviewed them for determinations regarding exemptions. Id. at ¶ 27d. On
February 23, 2010, the emails located from this search were released in full, with the exception
of limited redactions pursuant to FOIA Exemptions 2 and 6, to complete the Agency’s response
to Request Nos. 07-172 and 07-175. See id.; Letter from Mark S. Hess, Chief, Office of Public
Affairs, NASA, to Christopher C. Horner, Senior Fellow, CEI (Feb. 23, 2010) (Ex. 4 to Travis
Decl.). CEI did not appeal any aspect of that Initial Determination or release.
Even after it had completed its search, upon receiving Plaintiff’s complaint, the Agency,
in its discretion, conducted additional searches to confirm that it had not missed any responsive
records. Cf. W. Ctr. for Journalism v. Internal Revenue Serv., 116 F. Supp. 2d 1, 10 (D.D.C.
2000) (concluding agency conducted reasonable search and acted in good faith when, after initial
search, agency initiated additional search to confirm responsive records were not missed in
original search). GSFC’s legal office conferred with GISS IT systems personnel concerning
Plaintiff’s allegation that responsive material resides in a directory labeled
“/clima1/Steve/alternate_cleaning/” (the “Steve” directory). See Compl. at ¶ 94. GSFC’s legal
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office sought to confirm that there were no responsive records residing in the “Steve” directory
that had not been released to Plaintiff. See Travis Decl. at ¶ 28. GISS IT systems personnel
confirmed that the “Steve” directory contains the data files and parameter lists that were used to
create the graphs and charts that were posted on the GISS website on August 7, 2007 to correct
temperature data that Steve McIntyre pointed out was erroneous on August 3, 2007. Id. at ¶ 28a.
The primary files in the “Steve” directory are only intelligible if read by a computer program or a
commercial visualization tool that converts such files into charts and graphs. Id. The remaining
files in the directory are auxiliary files that determine non-substantive aspects of the charts and
graphs, such as size and color. Id. Plaintiff’s FOIA requests did not seek computer programs
and data files; they sought only files of the following types: “records, documents, [and] internal
communications.” See Ex. B to Compl. Moreover, as the GISS website on which the graphs and
charts created by the data files and parameter lists contained in the “Steve” directory” were
publicly posted was specifically referred to in both requests, it was apparent that Mr. Horner
already had access to the charts and graphs that were created from those files. See Exs. A and B
to Compl. Thus, the substance of the “Steve” directory, that is, the charts and graphs themselves,
was already in the public domain, and therefore, in the possession of Mr. Horner, at the time the
FOIA requests were received by NASA. See Travis Decl. at ¶¶ 28a, 28b.
Additionally, the subdirectory “alternate cleaning” on the “Steve” directory does not
contain information relevant to GISS’s modification of its analysis following McIntyre’s email.
McIntyre’s email pertained to selected stations within the contiguous United States, namely, the
stations that are part of the United States Historical Climatology Network (USHCN) collection.
Id. at ¶ 28c. In contrast, the information in the “alternate cleaning” subdirectory pertains to the
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modification of data collected by two NASA data collection stations outside the contiguous
United States (St. Helena and Lihue, Hawaii), as well as information concerning the removal of
some outlier data, also not the subject of McIntyre’s email. Id. Therefore, because the requests
sought records “citing, referencing, discussing or otherwise related to the August 2007 correction
by [GISS] of online temperature data for over 1200 US HCN stations and for their U.S.
temperature history,” see Ex. A to Compl, and records “citing, referencing, discussing or
otherwise relating to the email(s) sent to James Hansen and/or Reto A. Ruedy from a Stephen
(Steve) McIntyre – possibly but not necessarily using the address stephen.mcintyre@utoronto.ca
– beginning on or about August 3, 2007 specifically mail calling their attention to an error(s) in
[GISS] online temperature data,” see Ex. B to Compl., the “alternate cleaning” subdirectory was
determined not to contain information responsive to Plaintiff’s requests. Id. Accordingly, the
Agency has demonstrated not only that its search for responsive records was adequate under the
FOIA, but that, in its discretion, the Agency went above and beyond what the FOIA legally
requires to ensure that its search did not inadvertently exclude or otherwise miss records
responsive to Request Nos. 07-172 and 07-175. As such, summary judgment should be entered
for NASA on all claims related to these requests.
II. The Agency Met Its Obligations Under the FOIA in Responding to Request 08-040.
Request 08-040, dated January 28, 2008, sought
records, documents, internal communications and other relevant covered

material . . . that cites, references, discusses or otherwise relates to the
content, importance or propriety of posts or entries by [Gavin A. Schmidt]
on the weblog or ‘blog’ http://www.realclimate.org/, alternately styled in
correspondence as ‘RealClimate’, ‘Real Climate’, ‘RC’, or ‘the blog.’
Responsive documents . . . are limited to electronic email or other
17
correspondence sent or received by GISS/NASA employee Gavin A.

Schmidt.
See Ex. D to Compl., at 1. Plaintiff makes two claims with respect to the Agency’s response to
this Request: (1) that in order for its search to be reasonable, the Agency must search email
accounts on non-NASA domains that are used by Dr. Gavin A. Schmidt; and (2) that the Agency
has improperly withheld agency records responsive to the request. However, the Agency
conducted an adequate search to identify agency records responsive to CEI’s request, and has not
withheld any agency records responsive to that request. Indeed, the Agency searched for and
released emails sent or received by Dr. Schmidt that are not agency records subject to the FOIA
but which addressed the subject of CEI’s request. Therefore, both of Plaintiff’s claims must be
rejected and summary judgment should be entered for NASA.
A. The Agency’s Search for Records Responsive to Request 08-040 Was

Reasonable.
GISS’s search for agency records responsive to Request 08-040 was reasonably
calculated to uncover all agency records responsive to CEI’s request. At the outset, the Agency’s
determination that its search be limited to email accounts maintained by Dr. Schmidt was
reasonable because CEI, in its request, specifically “limited” the universe of records sought to
“electronic email or other correspondence sent or received by GISS/NASA employee Gavin A.
Schmidt.” Compare Ex. D to Compl., at 1 with Greenberg, 10 F. Supp. 2d at 30 n.38 (finding
agency demonstrated adequacy of search when agency affidavit explained that agency “searched
those files which officials expected would contain the information requested by plaintiff[]”).
As explained in the Travis Declaration, the Agency conducted its search in two phases.
See Travis Decl. ¶¶ 29, 32-36. The initial phase occurred in December 2009, after the Agency
18
informed Dr. Schmidt of CEI’s Request No. 08-040. Id. at ¶ 29. The Agency, taking into
consideration Dr. Schmidt’s official agency duties and Dr. Schmidt’s private activities relating to
the RealClimate blog, advised Dr. Schmidt as to the definition of “agency records” to establish
the parameters of his search for records responsive to CEI’s request. Id. Before Dr. Schmidt
commenced his search, the Agency ascertained that “two general categories of emails [were] at
issue” in CEI’s request: (1) email correspondence concerning the subject of CEI’s request that
were sent between Dr. Schmidt and other NASA officials; and (2) email correspondence
concerning the subject of CEI’s request that were sent between Dr. Schmidt and non-NASA
individuals or entities. See id.; Ex. E to Compl., at 2. At that time, the Agency determined, and
so advised Dr. Schmidt, that the only records “cit[ing], referenc[ing], discuss[ing] or otherwise
relat[ing] to the content, importance or propriety of posts or entries by [Dr. Schmidt] on the
weblog or ‘blog’ http://www.realclimate.org/” that could possibly be encompassed by the legal
definition of “agency records” were those emails sent between Dr. Schmidt and other NASA
officials. See Ex. E to Compl., at 2. Dr. Schmidt thus searched those emails he sent or received
on his account on the @giss.nasa.gov domain for correspondence between himself and federal
personnel, containing one or more of the four search terms identified in CEI’s request.3 Those
184 emails, a total of 545 pages, were released to CEI with limited redactions pursuant to FOIA
exemption 6, on December 31, 2009. See Travis Decl. ¶ 29.
On January 29, 2010, CEI timely appealed this release “in part.” See Ex. F to Compl., at
3
As explained in the Travis Declaration at ¶ 12, the @nasa.gov email address is just an alias to
the @giss.nasa.gov email address, and emails sent to Dr. Schmidt’s @nasa.gov email address
simply are redirected to Dr. Schmidt’s @giss.nasa.gov email address.
19
unnumbered page 1.4 In its appeal, CEI challenged the Agency’s initial determination that email
correspondence concerning the subject of CEI’s request that were sent between Dr. Schmidt and
non-NASA individuals or entities should not be released.
Upon review of the appeal, the NASA’s Assistant Administrator for Internal Controls and
Management Systems at NASA HQ, in light of CEI’s appeal, directed GSFC to conduct a new
search “encompass[ing] all servers, databases, computers, etc., wherever located, which may
reasonably be expected to contain electronic records Dr. Schmidt either created or received in the
conduct of activities within the scope of his employment at NASA.” See Ex. G to Compl., at 4.
The new search was to “include all email accounts Dr. Schmidt uses to conduct [activities within
the scope of his employment at NASA], including but not limited to those maintained in the
following domains: @nasa.gov; @giss.nasa.gov; @columbia.edu; and @realclimate.org.” Id.5
As CEI sought in Request No. 08-040, GSFC was to search for “all electronic mail or other
correspondence sent or received by Dr. Gavin Schmidt at GISS/GSFC relating to the content,
importance or propriety of posts or entries on the weblog http://www.realclimate.org/.” Id.
B. No Agency Records Responsive to Request 08-040 Exist For Which The Agency
Had an Obligation to Search Following Remand.
The direction from the Assistant Administrator for Internal Controls and Management
Systems at NASA HQ contained in the March 11, 2010 decision on appeal thus guided the
second phase of the Agency’s search for records responsive to Request 08-040 between March
4
CEI did not appeal any of the redactions applied to the documents released on December 31,
2009. See Ex. F to Compl.
5
Notably, in FOIA Request No. 08-040, CEI did not direct the Agency to search these – or any –
email domains; rather, it merely sought “electronic mail or other correspondence sent or received
by GISS/NASA employee Gavin A. Schmidt.” See Ex. D to Compl.
20
and July 2010. In accordance with the direction from NASA HQ, the Agency “conducted a
comprehensive search for all RealClimate emails created or received by Dr. Schmidt in the
performance of his official duties and which exist under the control of the Agency.” See Letter
from Mark S. Hess, Freedom of Information Officer, GSFC, NASA to Christopher C. Horner,
Senior Fellow, CEI (July 9, 2010) (Ex. 5 to Travis Decl.), at 1. The two criteria used by the
Agency to determine the scope of the search – that is, emails (1) “created or received by Dr.
Schmidt in the performance of his official duties” and (2) which exist under the control of the
Agency” – were reasonable in light of the obligations imposed upon the Agency by the FOIA,
which requires an agency to release only “agency records.” 5 U.S.C. § 552(a)(4)(B).
As the Supreme Court held in Department of Justice v. Tax Analysts, documents are only
“agency records” subject to FOIA if they (1) are created or obtained by an agency, and (2) in the
agency’s control. See Tax Analysts, 492 U.S. at 144-46. Moreover, the Court further explained,
the requisite “control” exists when the records “have come into the agency’s possession in the
legitimate conduct of its official duties.” Id. at 145. Therefore, both of the Agency’s criteria –
that the emails have been “created or received by Dr. Schmidt in the performance of his official
duties” and that they “exist under the control of the Agency” – are not simply reasonable, but
coextensive with the FOIA’s legal requirement as interpreted by the Supreme Court.
1. None of Dr. Schmidt’s Emails Are Agency Records Because They Were
Not Created and Are Not Maintained by the Agency.
Emails sent or received by Dr. Schmidt concerning his work on the RealClimate blog are
sent or received by him in his personal capacity, rather than in his capacity as an Agency
employee. Travis Decl. ¶¶ 19-22. Personal records created or maintained by a federal agency
21
employee are not considered to meet the first prong of the Tax Analysts test, that “an agency must
either create or obtain” the records, and the records must be subject to the agency’s control. 492
U.S. at 144 (emphasis added) (citation and quotations omitted). See, e.g., AFGE v. Dep’t of
Commerce, 632 F. Supp. 1272, 1277 (D.D.C. 1986) (finding that employee records created
voluntarily are not agency records even though they contained substantive information). This is
true even when private records are created or stored on agency premises. Id.6
Dr. Schmidt’s work on the RealClimate blog is done in his personal, rather than his
official Agency, capacity. Travis Decl. ¶¶ 19-22. The RealClimate blog is a non-governmental,
web-based forum created and administered on a voluntary basis by a group of twelve climate
scientists, including Dr. Schmidt. Travis Decl. ¶ 13. Of these twelve creators and administrators
of the blog, only Dr. Schmidt works for NASA, or any federal agency, for that matter. Travis
Decl. ¶ 13. The RealClimate blog server is maintained by an external entity that has no
relationship with NASA. Travis Decl. ¶ 15. Additionally, Dr. Schmidt sought and received
formal approval, from NASA officials, for his work on RealClimate as an outside activity that is
done in his personal capacity. Travis Decl. at ¶ 19.7
6
Federal employees are, as a matter of routine, allowed to create and store personal records
within their offices and other spaces that are used as workplaces.
7
While there arguably might be some substantive overlap between Dr. Schmidt’s work on the
RealClimate blog and his official agency duties, in that both concern the general topic of global
climate, compare Travis Decl. ¶ 13 with id. at ¶ 17; see also id. at 21a, this does not convert his
work on the RealClimate blog into “official duties” for the Agency. See AFGE v. Dep’t of
Commerce, 632 F. Supp. 1272, 1277 (D.D.C. 1986) (finding that employee records created
voluntarily are not agency records even though they contained substantive information).
Therefore, it is reasonable to consider Dr. Schmidt’s work on the RealClimate blog to be
personal rather than part of his “official [agency] duties” even if the work on the RealClimate
blog is somewhat substantively related to his agency work. See id.
22
The fact that Dr. Schmidt, on occasion, conducts limited amounts of work on the
RealClimate blog at his NASA Goddard duty station during official duty hours, see id. at ¶¶ 21b,
21c, does not convert his work on the RealClimate blog into “official duties” for the Agency.
The Agency has a policy permitting “limited personal use of Government office equipment,
including information technology.” See NASA Policy Directive 2540.1G, Subject: Personal Use
of Government Office Equipment Including Information Technology (June 8, 2010) (Ex. 2 to
Travis Decl.). Dr. Schmidt’s use of Agency resources for his work on the RealClimate blog
complies with NASA Policy Directive 2540.1G. See NASA Policy Directive 2540.1G.
Therefore, emails sent to or received by Dr. Schmidt concerning his work on the RealClimate
blog are not “created or obtained by the agency” in that they are not created or received in the
conduct of the activities within the scope of his employment at NASA, and thus, under the first
prong of the Tax Analysts test, they do not constitute “agency records” subject to FOIA. 492
U.S. at 144.
The Agency, in conducting its new search, interpreted NASA Headquarters’ instructions
to mean that the Agency need only search for email or other correspondence that was “created or
received in the conduct of activities within the scope of [Dr. Schmidt’s] employment at NASA.”
See id. The Agency determined that, to the extent any emails can be considered Dr. Schmidt’s
“personal records,” those emails are not “agency records,” and, therefore, were not covered by
the FOIA. See 5 U.S.C. § 552(a)(4)(B); see also 14 C.F.R. 1206.101(a) (defining “agency
records” to include “materials made or received by NASA in pursuance of Federal law or in
connection with the transaction of public business and preserved by NASA as evidence of the
organization, functions, policies, decisions, procedures, operations, or other activities or because
23
of the informational value of data contained therein”). The Agency’s determination comports
with the Supreme Court’s finding in Tax Analysts that records are not in an agency’s “control”
unless they “have come into the agency’s possession in the legitimate conduct of its official
duties.” 492 U.S. at 145. Lower courts have found records not to be “agency records” even
when records are created on agency time (Gallant v. NLRB, 26 F.3d 168, 171-72 (D.C. Cir.
1994)), using agency resources (id.), or stored on agency servers (Bloomberg, L.P. v. SEC, 357 F.
Supp. 2d 156, 163-67 (D.D.C. 2004), so long as the records were created for the creator’s
personal use (Consumer Fed’n of Am. v. USDA, 455 F.3d 283, 288-93 (D.C. Cir. 2006)), were
not integrated into agency files (Fortson v. Harvey, 407 F. Supp. 2d 13, 16 (D.D.C. 2005)), and
were not within the agency’s control (Bloomberg, 357 F. Supp. 2d at 163-67).
2. None of Dr. Schmidt’s Emails Are Agency Records Because They Are Not
Within the Agency’s Control.
In addition to the fact that emails sent or received by Dr. Schmidt pertaining to his work
on the RealClimate blog do not satisfy the first prong of the Tax Analysts test in that they are not
“create[d] or obtain[ed]” by the Agency, they also fail the second prong of that test, as they are
not within the Agency’s control. See Tax Analysts, 492 U.S. at 144-46. The D.C. Circuit’s four-
factor test, announced in its decision in Tax Analysts, 845 F.2d at 1069, aff’d on other grounds,
492 U.S. 136 (1989), analyzes whether material constitutes agency records based on the
following factors: (1) the intention of the document’s creator to retain or relinquish control over
the records; (2) the agency’s ability to use and dispose of the records; (3) the extent of agency
personnel’s use or reliance upon the records; and (4) the integration of the record into the
agency’s system of records or files. Id. Applying these four factors to the facts in this case
24
shows that the Agency did not have control over the records here at the time of FOIA request 08-
040. See Tax Analysts, 492 U.S. at 145-46.
Before analyzing the four factors, it is important to understand the four email domains –
the @giss.nasa.gov, @nasa.gov @columbia.edu, and @realclimate.org – identified by NASA
HQ in its March 11, 2010 decision following Plaintiff’s January 29, 2010 appeal. Dr. Schmidt’s
official duty station is in a building owned by Columbia University from which the General
Services Administration (“GSA”) leases space, and NASA pays rent to GSA to occupy a portion
of the space there. See Travis Decl. ¶ 10b. In that space, Dr. Schmidt has two computers: (1) a
laptop provided by NASA, which is not configured to receive email; and (2) a desktop that Dr.
Schmidt purchased in December 2003 with National Science Foundation grant money that Dr.
Schmidt received while employed by Columbia University (and prior to the start of his
employment with NASA in August 2004), which Dr. Schmidt uses to send and receive all of his
email from the @giss.nasa.gov, @nasa.gov, @columbia.edu, and @realclimate.org domains. See
Travis Decl. ¶ 18. Dr. Schmidt has never given administrative information technology (“IT”)
privileges for either computer to the IT support services contractor that serves Agency personnel.
See id. Thus, the email sought here is relayed to and resides on a computer that the Agency does
not own, to which the Agency has no right of access, and for which no Agency official or
contractor has administrative privileges. Moreover, there is no central mechanism by which
GISS IT personnel can obtain access remotely to email sent to or received by a GISS email user;
instead, the only way to reach such email would be via directly accessing the hard drive of the
computer on which the user accessed his or her GISS email. See id. at ¶ 12b.
Analyzing the emails sent or received by Dr. Schmidt pertaining to his work on the
25
RealClimate blog, via his email accounts of each of the relevant domains -- @giss.nasa.gov,
@nasa.gov, @Columbia.edu, and @realclimate.org – reveals that none of the four factors in the
D.C. Circuit test are satisfied, and, as such, the Agency thus lacks “sufficient control” over these
emails necessary for them to be considered “agency records” subject to FOIA. See Tax Analysts,
492 U.S. at 144-46.
a. Dr. Schmidt’s Intention Was Not to Relinquish the Emails.
Pursuant to the first factor in the D.C. Circuit test, whether it was the intention of a
document’s creator to retain or relinquish control over the document, the creator of the
documents here, Dr. Schmidt, has made quite clear that it is not his intention to relinquish control
over the emails. See Travis Decl. ¶¶ 32, 34, 35. When asked by Agency counsel, Dr. Schmidt
permitted Agency counsel to review his emails on the @giss.nasa.gov domain, but only by
voluntarily allowing Agency counsel to sit with him in his office and observe Dr. Schmidt
running a search through his email for the four search terms identified by CEI in Request No. 08-
040. Id. at ¶ 32. Dr. Schmidt permitted Agency counsel to review the emails that his own search
located, rather than permit Agency counsel, or any other Agency official, to conduct an
independent search of Dr. Schmidt’s emails on the @giss.nasa.gov domain. Id.
With respect to emails on the @columbia.edu domain, Dr. Schmidt himself searched
these emails for any responsive records sent to or received from Agency or other federal
personnel. Id. at ¶ 34. He did not permit Agency counsel or another Agency official to review or
observe this search. Id. Dr. Schmidt, at his discretion, voluntarily provided Agency counsel with
all of the responsive records he identified in this search. Id. With respect to emails on the
@realclimate.org domain, Dr. Schmidt has not stated that he has searched his emails on that
26
domain, nor has he provided Agency counsel with any emails from that domain. Id. at ¶ 36. He
has also declined to permit Agency counsel or another Agency official to access or search his
emails on the @realclimate.org domain. Id. Therefore, the facts show that with respect to the
first factor in the D.C. Circuit’s analysis – whether Dr. Schmidt intended to relinquish the emails
– the Agency does not have control over the emails.
b. The Agency Lacks the Ability to Use and Dispose of the Records
as it Sees Fit.
The same facts that support the conclusion that Dr. Schmidt did not intend to relinquish
the emails to the Agency also support a finding that the Agency does not possess the ability to
use and dispose of the emails as it sees fit. See Tax Analysts, 845 F.2d at 1069. The cooperative
agreements between the Agency and Columbia University, which govern the relationship
between the Agency and non-Agency entity, do not give the Agency any right of access to
electronic records maintained on the Columbia University server. See Travis Decl. ¶ 10a; see
also Ex. 1 to Travis Decl. Moreover, neither the agreements nor Agency regulations provide for
Agency access to property that is owned by the non-Agency entity, or otherwise was not
purchased using federal funds. See Travis Decl. ¶ 10a; see also Ex. 1 to Travis Decl. As both
the emails on the @giss.nasa.gov and @nasa.gov domains, and those on the @columbia.edu and
@realclimate.org domains are relayed to and reside on the non-NASA computer, see Travis
Decl. ¶¶ 12b, 18, and can only be accessed by actual search of the non-NASA computer, id., the
Agency does not have the ability to use and dispose of the emails as it sees fit. Finally, “[t]o
date, GISS management has never sought access to a GISS employee’s Columbia email from
Columbia University management officials.” Id. at ¶ 12c. Thus, the facts show that with respect
27
to the second factor in the D.C. Circuit’s analysis – whether the Agency has the ability to use and
dispose of the emails as it sees fit – the Agency does not have control over the emails.
c. Agency Personnel Do Not Read or Rely Upon the Records for

Agency Activities.
Given that the Agency had never accessed the emails pertaining to Dr. Schmidt’s work on
the RealClimate blog prior to FOIA request 08-040 (and in fact, has only ever accessed the
emails from the @giss.nasa.gov and @nasa.gov domains when Dr. Schmidt voluntarily provided
them to Agency counsel in response to FOIA request 08-040, and has never accessed the emails
from the @columbia.edu and @realclimate.org domains), it is clear that Agency personnel do not
read or rely upon the records. Moreover, as Dr. Travis stated, GISS management has never
assigned, overseen, or evaluated any of Dr. Schmidt’s work on the RealClimate blog, nor
overseen, vetted, or approved any post on the blog. Travis Decl. at ¶ 20. It is therefore clear that
with respect to the third factor in the D.C. Circuit’s analysis – whether Agency personnel read or
rely upon the emails – the Agency does not have control over the emails.
d. The Records Have Not Been Integrated into the Agency’s Record
System or Files.
None of the emails, from any of the four domains, has ever been integrated into the
Agency’s record system or files. The emails from the @columbia.edu and @realclimate.org
domains could not possibly have been integrated into an Agency record system or file because
the Agency has never accessed those emails. Travis Decl. at ¶¶ 34-36. Moreover, as Dr. Travis
explains, even with respect to the emails from the @giss.nasa.gov and @nasa.gov domains have
not been integrated into an Agency record system or file. “Once a[n Agency] employee accesses
his or her [Agency] email via his or her personal computer, those emails are no longer located on
28
any server at [the Agency]; in other words, the act of accessing a specific email deletes that email
from the ‘spool’ on the server. [The Agency] does not currently have (nor has it had in the past)
a centralized backup of [Agency] email traffic.” Id. at ¶ 12b. Moreover, even if the Agency did
have a centralized backup of emails from the @giss.nasa.gov or @nasa.gov domains, emails sent
or received by Dr. Schmidt pertaining to his work on the RealClimate blog would not be
integrated into an Agency records system or file, as Agency policy on records retention considers
material consisting of an employee’s communications concerning his personal business to be
“nonrecord[s]” for the purposes of the records retention schedules. See NASA Procedural
Requirements 1441.1D (February 24, 2003) (Ex. 3 to Travis Decl.). Therefore, the facts
demonstrate that with respect to the D.C. Circuit’s fourth factor – whether the records have been
integrated into the Agency’s record system or files – the Agency does not have control over the
emails. Accordingly, as none of Dr. Schmidt’s emails can be considered agency records, the
FOIA imposed on the Agency no obligation to search for or release any such emails.
C. In Any Event, The Agency, In Its Discretion, Has Already Released All Emails
Addressing the Subject Matter of Request No. 08-040, and Properly Invoked the
FOIA Exemptions to Withhold Certain Information From Release.
Even though the above analysis of the emails pertaining to Dr. Schmidt’s work on the
RealClimate blog clearly demonstrates that the emails does not constitute “agency records” under
this Circuit’s well-established test, the Agency nonetheless already has, in its discretion, released
all of those emails from the @giss.nasa.gov, @nasa.gov, and @Columbia.edu domains that
address the subject matter of Request No. 08-040, and even refer to NASA or Agency business.
Such emails include those Dr. Schmidt sent to or from another Agency employee, that contain
one of the four search terms in the request, and that pertain in any way to a matter of Agency
29
business. See Travis Decl. at ¶ 32a, 34; see also Ex. 5 to Travis Decl. Therefore, should the
Court conclude that such emails do constitute “agency records” covered by the FOIA, the Court
should also conclude that NASA is entitled to summary judgment because, as a result of the
Agency’s discretionary release, Plaintiff has not been injured by any improper withholding. See
Tax Analysts, 492 U.S. at 142 (1989) (quoting Kissinger, 445 U.S. at 150) (Under the FOIA,
“federal jurisdiction is dependent on a showing that an agency has (1) ‘improperly’ (2) ‘withheld’
(3) ‘agency records.’”).
Furthermore, should the Court determine that Dr. Schmidt’s emails constitute “agency
records” subject to the FOIA, the Court should also find that NASA processed the emails in
accordance with the FOIA and withheld certain, limited information pursuant to FOIA
exemptions 5 and 6, as explained in detail below and in the attached Travis Declaration at
¶¶ 37-44. Because the Agency properly invoked these exemptions, and processed and released
all reasonably segregable information from the responsive records, NASA is entitled to summary
judgment.
1. The Agency Properly Withheld Information Pursuant to Exemption 5.
On four pages of the released emails, the Agency redacted material containing
confidential scientific peer-review discussion pursuant to FOIA Exemption 5. See 5 U.S.C. §
552(b)(5). Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). The exemption ensures that members of the public cannot obtain through FOIA
what they could not ordinarily obtain through discovery in a lawsuit against the agency. National
Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). It therefore covers
30
“the attorney-client privilege, the attorney work-product privilege, or the executive deliberative
process privilege.” Rockwell International Corp. v. U.S. Dep’t of Justice, 235 F.3d 598, 601
(D.C. Cir. 2001). Only the deliberative process privilege is at issue here, and it has been properly
utilized by the Agency to withhold information contained in communications between Agency
employees and peer reviewers during the Agency employee’s submission of a paper for potential
publication in a scientific journal. See Travis Decl. at ¶¶ 38-40.
The deliberative process privilege applies to “documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which government decisions
and policies are formulated.” Sears, Roebuck & Co., 421 U.S. at 150 (cited in U.S. Dep’t of the
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)). This privilege rests on
the “obvious realization that officials will not communicate candidly among themselves if each
remark is a potential item of discovery and front page news, and its object is to enhance ‘the
quality of agency decisions.’” Klamath, 532 U.S. at 8-9 (quoting Sears, Roebuck & Co., 421
U.S. at 151). While the text of Exemption 5 suggests its application must be limited to federal
employees, the Supreme Court has recognized that, in some circumstances, a document or
information prepared by a consultant outside the government can nevertheless qualify as intra-
agency for the purposes of the Exemption. See Klamath, 532 U.S. at 9-10. Communications
between outside consultants and agency officials can be covered by the Exemption when the
“outside consultants played essentially the same part in an agency’s process of deliberation as . . .
agency personnel might have done.” Id. at 10. Exemption 5 can only properly be applied to
communications between outside consultants and agency officials when “the consultant does not
represent an interest of its own, or the interest of any other client, when it advises the agency . . . .
31
Its only obligations are to truth and its sense of what good judgment calls for.” Id. at 10-11.
The D.C. Circuit has specifically held that comments provided by peer reviewers during
the process of review and publication of scientific articles in scientific journals are covered by
Exemption 5 because they are both “pre-decisional because it preceded the agency’s decision
whether and in what form to publish” the paper and part of the agency’s deliberative process
“because the agency secured review commentary in order to make that decision.” See
Formaldehyde Institute v. U.S. Dep’t of Health and Human Servs., 889 F.2d 1118, 1123-25 (D.C.
Cir. 1989)). In Formaldehyde Institute, the court was evaluating the invocation of Exemption 5
to withhold peer reviewers’ comments on a scientific article that an employee research scientist
with the Centers for Disease Control sought to publish in a scientific journal. Id. at 1120. The
court found that, in light of the agency’s mission, agency scientists “must regularly rely on the
comments of expert scientists to help them evaluate the readiness of agency work for publication
[and i]n that sense they must rely on the opinions and recommendations of temporary
consultants.” Id. At 1125. Further, the court found it “indisputable” that both “reviewers’
comments are expected to be confidential” and “disclosure of reviewers’ comments would
seriously harm the deliberative process.” 889 F.2d at 1124 (internal citations and quotations
omitted). See also People for the American Way Foundation v. U.S. Dep’t of Education, 516 F.
Supp. 2d 28, 37 n.1 (D.D.C. 2007).
In this case, as explained in the Travis Declaration and the Vaughn Index, the Agency
redacted information describing and discussing the comments of peer reviewers received by an
Agency employee during the employee’s submission of a paper for potential publication in a
scientific journal. See Travis Decl. at ¶¶ 39-40; Ex. 6 to Travis Decl. (identifying deliberative
32
process privileged information withheld in documents at Bates Nos. 55-57, 60). The information
withheld consists of the comments – advice, critiques, criticism, and recommendations for
revision – provided by peer reviewers to Agency employees, as well as Agency employee
reactions to such comments. Travis Decl. at ¶ 40. As such, this information is identical to that
considered in Formaldehyde Institute to fit squarely within Exemption 5. See 889 F.2d at
1123-25. Like the information at issue in Formaldehyde Institute, the information the Agency
has withheld here assists the Agency in making final decisions about how it can craft scientific
publications to advance best the Agency’s mission of enhancing and expanding scientific
knowledge. Compare id. with Travis Decl. at ¶ 40. The information withheld here is
information that indisputably is “expected to be confidential” and the disclosure of which would
“seriously harm the deliberative process.” Compare 889 F.2d at 1124 with Travis Decl. at
¶¶ 38-40. Accordingly, as the Agency properly withheld information describing and discussing
the comments of peer reviewers received by an Agency employee during the employee’s
submission of a paper for potential publication in a scientific journal pursuant to Exemption 5,
NASA is entitled to summary judgment with respect to any claims Plaintiff may have regarding
such withholdings.
2. The Agency Properly Withheld Information Pursuant to Exemption 6.
In limited instances, the Agency redacted from the released emails personal information
of private citizens pursuant to FOIA Exemption 6. See 5 U.S.C. § 552(b)(6). Exemption 6
permits the government to withhold all information about individuals in “personal and medical
files and similar files” when the disclosure of such information “would constitute a clearly
unwarranted invasion of personal privacy.” Id. All information that “applies to a particular
33
individual” meets the threshold requirement for Exemption 6 information. U.S. Dep’t of State v.
Washington Post Co., 456 U.S. 595, 602 (1982); Richardson v. U.S. Dep’t of Justice, Civ. No.
09-01916, 2010 WL 3191796, Slip op. at *10 (Aug. 13, 2010) (term “similar files” in Exemption
6 to be construed broadly to cover all information applying to particular individual, regardless of
type of file in which it is contained, to ensure FOIA’s protection of personal privacy is not
affected by “happenstance” of type of record in which personal information is stored) (citations
and internal quotations omitted).
After the agency has demonstrated that a personal privacy interest is threatened by a
requested disclosure, the burden shifts to the plaintiff to show there is a public interest in
disclosure of that particular information. Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 391
nn.8 & 13 (D.C. Cir. 1987); Prison Legal News v. Lappin, 436 F. Supp. 2d 17, 22 (D.D.C. 2006).
A court is to assess the weight of the public interest in disclosure by examining “‘the nature of
the requested document and its relationship to the basic purpose of [FOIA] to open agency action
to the light of public scrutiny,’” with the public interest weighing in favor of disclosure only with
respect to “‘information that sheds light on an agency’s performance of its statutory duties.’” See
Electronic Privacy Information Center v. Department of Homeland Security, 384 F. Supp. 2d
100, 115 (D.D.C. 2005) (quoting U.S. Dep’t of Justice v. Reporters Committee for Freedom of
the Press, 489 U.S. 749, 772 (1989)). The Supreme Court has further held that “the public
interest sought to be advanced” must be “a significant one.” Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 172 (2004). As a result, information that does not directly reveal the
operations or activities of the federal government “falls outside the ambit of the public interest
that the FOIA was enacted to serve.” Reporters Cmte., 489 U.S. at 775.
34
In this case, as explained in the Travis Declaration and the Vaughn Index, the Agency
redacted the personal contact information of private citizens. See Travis Decl. at ¶¶ 41-43; Ex. 6
to Travis Decl. (identifying personal information withheld in documents at Bates Nos. 31-34,
51-52, 55-57, 59, 89-90, 93, 138-39, 141-42, 147-48, 165-67, 189). The specific information
redacted consists of the personal email addresses of private citizens and, in one case, the home
phone number of a private citizen. Courts have repeatedly held that “release of [private citizens’
personal email] addresses would constitute a clearly unwarranted invasion of privacy” for the
purposes of Exemption 6, see Government Accountability Project v. U.S. Dep’t of State, 699 F.
Supp. 2d 97, 106 (D.D.C. 2009), because “private individuals have a clear privacy right in
avoiding the disclosure of their personal email addresses” and “releasing their email addresses
serves no public interest because these email addresses would not reveal ‘what the government is
up to,’” id. See also People for the American Way Foundation v. National Park Serv., 503 F.
Supp. 2d 284, 306-07 (D.D.C. 2007) (finding that while the names of private citizens who submit
comments to agency concerning official agency action may not be withheld under Exemption 6
because the information sheds light on the weight the agency gives to comments from different
members of the public, personal contact information of private citizen commenters is properly
withheld pursuant to Exemption 6); Nulankeyutmonen Nkihtaqmikon v. Bureau of Indian Affairs,
493 F. Supp. 2d 91, 108 (D. Me. 2007) (“Because disclosure of personal email addresses is a
‘clearly unwarranted invasion of personal privacy,’ the Court concludes that the [agency]
properly applied Exemption 6 to redact personal email addresses.”). Accordingly, as the Agency
properly withheld personal information from the released documents pursuant to Exemption 6,
NASA is entitled to summary judgment with respect to any claims Plaintiff may have regarding
35
such withholdings.
CONCLUSION
For the foregoing reasons, Defendant respectfully requests that the Court grant summary
judgment in favor of Defendant.
Dated: September 20, 2010 Respectfully submitted,
TONY WEST
Assistant Attorney General
JOHN R. TYLER
Assistant Branch Director
/s/ Julie Straus

Julie Straus
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
Mailing Address
P.O. Box 883
Washington, D.C., 20044
Delivery Address
20 Massachusetts Ave., NW., Room 6126
Washington, DC 20001
Telephone: (202) 514-7857
Fax: (202) 616-8460
Julie.Straus@usdoj.gov
COUNSEL FOR DEFENDANT
36

Motion For Summary Judgment by DoJ in CEI Vs NASA (2010)

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Motion For Summary Judgment by DoJ in CEI Vs NASA (2010)

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Case 1:10-cv-00883-RWR Document 16-1 Filed 09/20/10 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

by GISS employee Dr. Gavin A. Schmidt pertaining to the weblog or “blog”

http://www.realclimate.org. See Ex. D to Compl.

constitutes an “agency record” under the law?

entered for NASA on all claims arising out of these requests.

all claims arising out of this request, too.

research center. See http://science.gsfc.nasa.gov/sed/index.cfm?fuseAction=-home.main&&nav-

(last accessed September 16, 2010).

study of atmospheric modeling and of climate change. Id.

arrangement or consideration by Columbia to the federal government. Id. at ¶ 10b. Additionally,

cooperative agreements currently governing Columbia research at GISS are “follow-ons” to

predecessor agreements dating back 15 years or more. Id.

work-year-equivalent support services contract employees of Sigma Space Partners, the

hold unpaid adjunct appointments at Columbia. Id. at page 4, n.1.

other domains as well. Id.

II. Statutory Background of the FOIA

The Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, generally mandates

withheld.” 5 U.S.C. § 552(a)(4)(B) (emphasis added). Thus, “federal jurisdiction is dependent

confer on a district court jurisdiction to compel agency action. Id.

III. CEI’s FOIA Requests at Issue in this Litigation

A. Requests 07-172 and 07-175

office at GSFC (“GSFC FOIA”). Id.

necessarily using the address stephen.mcintyre@utoronto.ca – beginning on or about

Request Nos. 07-172 and 07-175. See Ex. 4 to Travis Decl.

http://www.realclimate.org/, alternatively styled in this correspondence as ‘RealClimate’, ‘Real

emails. See Ex. 5 to Travis Decl.

C. CEI’s Appeal Following Agency’s December 31, 2009 Initial Determinations

Request Nos. 07-172 and 07-175. See id. at 24-26.

In evaluating the adequacy of a search, courts accord agency affidavits “a presumption of

imposed by the FOIA.” Id.

To sustain its burden of justifying nondisclosure of information, see 5 U.S.C.

original). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it

appears ‘logical’ or ‘plausible.’” Id. at 374–75.

any particular document undermine an otherwise adequate search. Iturralde v. Comptroller of

contain the information requested by plaintiff[]”).

months. Compare Exs. A and B to Compl. with Travis Decl. at ¶ 27c.

Plaintiff’s allegation that responsive material resides in a directory labeled

“/clima1/Steve/alternate_cleaning/” (the “Steve” directory). See Compl. at ¶ 94. GSFC’s legal

for NASA on all claims related to these requests.

Request 08-040, dated January 28, 2008, sought

records, documents, internal communications and other relevant covered

correspondence sent or received by GISS/NASA employee Gavin A.

rejected and summary judgment should be entered for NASA.

A. The Agency’s Search for Records Responsive to Request 08-040 Was

“electronic email or other correspondence sent or received by GISS/NASA employee Gavin A.

Schmidt.” Compare Ex. D to Compl., at 1 with Greenberg, 10 F. Supp. 2d at 30 n.38 (finding

weblog or ‘blog’ http://www.realclimate.org/” that could possibly be encompassed by the legal

exemption 6, on December 31, 2009. See Travis Decl. ¶ 29.

non-NASA individuals or entities should not be released.

following domains: @nasa.gov; @giss.nasa.gov; @columbia.edu; and @realclimate.org.” Id.5

importance or propriety of posts or entries on the weblog http://www.realclimate.org/.” Id.

which requires an agency to release only “agency records.” 5 U.S.C. § 552(a)(4)(B).

done in his personal capacity. Travis Decl. at ¶ 19.7

of Government Office Equipment Including Information Technology (June 8, 2010) (Ex. 2 to

records” to include “materials made or received by NASA in pursuance of Federal law or in

organization, functions, policies, decisions, procedures, operations, or other activities or because

040. See Tax Analysts, 492 U.S. at 145-46.

the @giss.nasa.gov, @nasa.gov @columbia.edu, and @realclimate.org – identified by NASA

contractor has administrative privileges. Moreover, there is no central mechanism by which

492 U.S. at 144-46.