Opinion
NO. 2:04-cv-2054-MCE-GGH.
December 21, 2006
MEMORANDUM AND ORDER
In the present action, Plaintiff George Marlin Knight ("Plaintiff") sues the National Aeronautics and Space Administration ("NASA") for NASA's alleged noncompliance with Plaintiff's requests for information pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). NASA now moves for summary judgment in its favor, and alternatively requests that the Court dismiss Plaintiff's lawsuit for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and 12(h)(3), because of mootness, on grounds that NASA has fully satisfied Plaintiff's informational demands.
As set forth below, because the Court grants summary judgment for NASA it need not address NASA's alternative request for dismissal.
Because oral argument would not be of material assistance, the Court ordered this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
The Mars Exploration Program is a series of space-flight projects administered for NASA by the Jet Propulsion Laboratory ("JPL") near Pasadena, California. One of the Program's projects is the so-called Mars Exploration Rovers Project ("MER Project"), which since 2000 has engaged in gathering scientific data through the use of "rovers", or instrumented robotic grounds vehicles, on Mars. "Spirit" is the name of one of the rovers used to explore the Martian surface.Rovers are designed to gather scientific data, but must also be able to locomote, avoid hazards, deal with emergencies, keep their batteries charged, recover from failures and otherwise survive to carry out their scientific data-gathering mission. Rovers include various scientific and engineering devices designed to accomplish these objectives. The Spirit Rover has exactly seven scientific devices, including two panoramic cameras, as well as seven engineering cameras.
Information collected by the Spirit Rover is transmitted on radio signals (known as "telemetry") directed to antenna complexes in Barstow, California, Canberra, Australia, and Madrid, Spain. Collectively the three complexes constitute the so-called Deep Space Network ("DSN"). Following receipt by the DSN, the telemetry data is forwarded via ground communication data lines to JPL, where it is stored in packet format as a datafile or "spooler". The packets are then processed into "data products" housed on Operations and Science Storage Servers ("OSSs"), where they are initially aggregated into Experiment Data Records ("EDRs"). Payload Downlink Leads ("PDLs") monitor the flow of data organized in this matter by producing a PDL Report or downlink report. Those reports cover the information generated by Rover instruments and devices for each Martian day. Ultimately, further processing results in a second order digital product known as Reduced Data Records ("RDRs").
On or about June 10, 2004, Plaintiff made a request to NASA, under the FOIA, for data obtained by the Spirit Rover from Mars. That request, which sought receipt logging procedures for the information being received from Mars, read in pertinent part as follows:
I am requesting copies of the procedures followed to log the receipt of data and images from the instruments of the Spirit Rover including:
1. Miniature Thermal Emission Spectrometer (Mini-TES)
2. Mossbauer (sic) Spectrometer (MB)
3. Apha (sic) Particle X-Ray Spectrometer (APXS)
4. Panaramic Camera
5. Navigation Cameras
6. Hazcams
7. Microscopic Imager
I am not requesting the actual data or images. I am requesting the procedure manuals or instructions which specify what the employees and contractors do to record the log data and images received from the Spirit Rover.
In addition, Plaintiff submitted a second request to NASA, also on or about June 10, 2004, for logs recording the receipt of data, from the aforementioned Spirit Rover instruments, for a time period encompassing the first thirty-three Martian days following the Spirit Rover's touchdown on Mars.
According to Plaintiff, an attorney representing himself in pro se, he intends to use the Spirit Rover data to publish articles about Mars and NASA's handling of data from Mars (Pl.'s Amended Opp. 7:6-8). Plaintiff's motivation in seeking the information centers around the contention that "many knowledgeable people . . . think that NASA is simply not telling the truth about Mars", and that there is in fact "abundant evidence of life, including past intelligent life, on Mars". (See November 8, 2004 email from Plaintiff to NASA's counsel in this action, Exhibit 2 to Defendant's Notice of Motion filed herein).
No records were initially produced in response to Plaintiff's FOIA requests because the two requests were interpreted as being identical, and because JPL determined that there were no responsive receipt logging procedure records. Ultimately, however, JPL's FOIA Officer realized that receipt logs were also sought in addition to records pertaining to receipt logging procedures.
Thereafter, Jim Erickson, the MER Project Manager for JPL, along with the MER Project Data Operations Team, and Software Engineer Kyran Owen-Mankovich, determined that certain telemetry information received by the DSN was responsive to the receipt logs request. JPL personnel concluded that the DSN was the only likely source of this information, which was extracted from instrumentation data packets. NASA subsequently produced information for the first thirty-four Martian days from all Spirit Rover scientific instruments, plus all engineering cameras. NASA further released the Application Process Identifier ("APID") numbers which identified the devices/instruments responsible for generating particular subsets of information.
In addition to the telemetry receipt log information, the MER Project Principal Investigator, Steve Squyres, Ph.D, and the Project's Deputy Principal Investigator, Ray Arvidsen, Ph.D., who are professors at Cornell University and Washington University in St. Louis, respectively, both determined that the Spirit Rover PDL reports were also potentially responsive to Plaintiff's FOIA receipt logs request in that they record the process of monitoring and collecting "raw" data products, even if they do not record the initial receipt of the data itself from Mars.
Although other MER Project staff disagreed on various grounds, NASA ultimately decided to give Plaintiff the benefit of the doubt by releasing the PDL reports and manuals, with redactions as detailed in a Vaughn Index spreadsheet. Certain filepaths and other information was withheld for security reasons, in that dissemination could potentially aid unauthorized use of the JPL computer systems. Names, initials, email addresses and telephone numbers were also deleted due to privacy concerns.
A so-called "Vaughn Index" must identify each document withheld pursuant to a FOIA request, state the statutory exemption claimed, and explain how disclosure would damage interests protected by the claimed index. See Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1326 n. 1 (9th Cir. 1994) ("CCHR"), citing Bowen v. FDA, 925 F.2d 1225, 1227 (9th Cir. 1991
With respect to the receipt logging procedure records, once NASA determined that PDL materials should be provided to Plaintiff it also decided that MER PDL procedures documents should also be released. The Declaration of David Lavery establishes that after consultation with other MER Project officials about the MER Project data flow, he determined that no other categories of agency records should be responsive to the receipt logging procedures request. Lavery Decl., ¶ 49, 50, 59, 62. Eight documents were ultimately identified as responsive and were produced after redaction for security and privacy concerns.
Following production of the aforementioned materials, Plaintiff remained dissatisfied with NASA's response to his FOIA requests and instituted the present lawsuit.
STANDARD
Most cases brought pursuant to the FOIA are resolved through summary judgment. Cooper Cameron Corp. v. U.S. Dep't of Labor, 280 F.3d 539, 543 (5th Cir. 2002). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).The agency responding to a FOIA request has the burden of sustaining the adequacy of its response by demonstrating that it did not improperly withhold records subject to disclosure under FOIA. 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n. 3 (1989). The agency must "demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents." CCHR, 45 F.3d at 1328, quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985). The "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." CCHR, 45 F.3d at 1328 (emphasis in original).
An agency may demonstrate the adequacy of its search with "reasonably detailed, nonconclusory affidavits submitted in good faith." Zemansky, 767 F.2d at 571.
For purposes of summary judgment, affidavits describing the agency's search procedures are sufficient "if they are reasonably detailed in their description of the files searched and the search procedure, and if they are nonconclusory and not impugned by evidence of bad faith. Id. at 573. Once an agency meets its initial burden in this regard, its position can be rebutted "only by showing that the agency's search was not made in good faith."Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993), citing Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985). Because agency affidavits are accorded a presumption of good faith, they cannot be rebutted by "purely speculative claims about the existence and discoverability of other documents."Maynard, 986 F.2d at 560, quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
ANALYSIS
Plaintiff takes issue with the adequacy of NASA's responses to his FOIA requests. First, he contends that NASA's efforts to locate responsive information was not sufficiently comprehensive. Next, he identifies certain categories of documents which he claims should have been released but were not. Finally, Plaintiff takes issue with the propriety of certain redactions NASA made to the documents that were provided to him. Each of those contentions will be addressed in turn.
1. Adequacy of Search
Plaintiff describes NASA's method in locating responsive documents as "hit or miss", and asserts that NASA unreasonably relied on "informal" oral inquiries directed to key MER Project members for purposes of locating documents likely to fall within the purview of Plaintiff's informational requests. The Court is unpersuaded by those arguments.
NASA's Freedom of Information Act Officer at its Pasadena Management Office, Dennis B. Mahon, forwarded the two requests at issue in this litigation to JPL's Contract Manager, Jody Brown, upon their receipt. Ms. Brown, in turn, queried responsible employees associated with the MER Project regarding their knowledge of the existence or location of responsive documents. Not surprisingly, Ms. Brown determined through that consultation that only MER Project members would likely know about procedures for logging the receipt of data and images from the Rover. Brown Decl., ¶ 5. Although Mahon was initially told that no procedural manuals or instructions had been prepared for purposes of logging the data received from the Rover on Mars, once Mahon realized that logs themselves were also requested, she instituted another search. That search resulted in a conclusion that the DSN Network, which received the telemetry signals from the Rover, was the only likely source for responsive information as to the logs themselves. Brown Decl., ¶¶ 10-12.
According to Software Engineer Kyran Owen-Mankovich, the telemetry information is stored on a DSN server which records and associates the data, and he concluded following consultation with the MER Project Manager that Plaintiff's request could be interpreted to refer to that logging information. Owen-Mankovich Decl., ¶¶ 5-6. Mr. Owen-Mankovich subsequently assembled this information into text-file format for the Martian days requested, and further generated a list of the APID codes which explained the data's source. Id. at ¶¶ 6-13. As indicated above, information from all seven scientific instruments on the Rover, as well as its seven engineering cameras, was analyzed.
One of the engineering cameras, however, the Descent Imager, was inoperable during the time period encompassed by Plaintiff's FOIA request.
In addition to this information, as indicated above MER Project officials Steve Squyres, Ray Arvidsen, and David Lavery further regarded the Spirit's PDL Reports as being potentially responsive to Plaintiff's request for "logs recording the receipt of data." Lavery Decl., ¶ 50. While that conclusion was disputed by others on the MER Project staff, in the interests of as comprehensive a disclosure as possible NASA ultimately decided to release the PDL Reports. Once that conclusion was reached, the subject of logging procedures was further analyzed, and after consulting with others it was determined that the MER Project Documentation Library was the only place likely to contain downlink procedure documents, which were in turn found to consist only of certain PDL procedures. Lavery Decl., ¶ 49, 50, 59, 62.
The Library's Document Index was searched and, as indicated above, eight documents were ultimately determined to be responsive and produced following redaction.
The search for responsive documents, then, was done in consultation with the MER Project's top experts, who identified and participated in searching for documents likely to be responsive. While Plaintiff contends that NASA was obligated to do a complete computer search in addition to drawing upon the knowledge and guidance of these experts, there is no requirement that an agency search all possible sources in response to a FOIA request when it believes all responsive documents are likely to be located in one place. Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990, citing Marks v. U.S. Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978). An agency may properly explain by declaration or affidavit that records are not apt to be found at other locations. Id. While Plaintiff takes issue with the conclusions reached by top MER Project officials, it is reasonable that those experts would have a solid grasp on the receipt and processing of data transmitted from the Spirit Rover. The Court agrees with NASA that its search in this case were conducted by skilled persons working within well-defined sets of data. NASA was not required to search further in order to satisfy its obligations under FOIA in this matter.
2. Documents Alleged to Have Been Improperly Withheld
In addition to challenging the adequacy of NASA's search itself, Plaintiff further identifies specific categories of documents he believes exist but were not provided. He believes that some substantive information was deleted for an "unidentified set of instruments." Opp'n, 21:12-14. He further believes that Operations and Science Storage ("OSS") serves contain rover data and logs that has not been produced. Additionally, Plaintiff claims that a log book exists for one of the items on the Rover, the Moessbauer Spectrometer. Because Plaintiff asserts that a log book indeed exists for the Spectrometer, he speculates that it is "reasonable to believe that similar log books exist for other instruments on the Rover." Opp'n, 25:26-28. Finally, Plaintiff points to several other logs that he believes are mentioned in NASA documents but have not been produced. Specifically, he cites the SDC and EVR logs as examples in that regard, and further argues that there are EDR "lists" of data and images received from Mars that should in fact have been disclosed as responsive logs.
NASA has adequately addressed each of these concerns. First, the logs of OSS activity do not record JPL's receipt of data from Mars, but instead record the process of subsequent data product generation. See Supp. Lavery Decl., ¶ 9. Consequently the OSS materials go beyond the scope of Plaintiff's FOIA request, which can only reasonably be read as encompassing logs recording receipt of data directly from the Spirit Rover to Earth.
Similarly, NASA has explained that both the EVR and SDC logs do not record any activity responsive to Plaintiff's request for logs recording the receipt of actual data from Mars. NASA further explains that what Plaintiff refers to as missing data for temperature and voltage sensors associated with the PANCAM Camera are indeed included within the log records pertaining to the PANCAM. NASA also explains that the so-called Moessbauer log book in fact merely states the settings of the Moessbauer Spectrometer, is neither a log or a book, and consequently is non-responsive as well. See Supp. Lavery Decl., ¶ 5, 7, 9. Finally, with respect to the alleged EDR lists, they contain no facts concerning the process of taking the data received from the Spirit Rover into possession. Any reasonable reading of Plaintiff's FOIA requests leads to the conclusion that they hinge on that process.
3. Propriety of Redaction Procedures
FOIA allows certain documents to be exempt from FOIA disclosure. Items "related solely to the internal personnel rules and practices of an agency", for example, are exempted under 5 U.S.C. § 552(b)(2). Subdivision (b)(2) covers not only internal and generally trivial matters of no real interest to the public (the so-called "low 2" exemption), but also items in the "high 2" category posing a potential risk to agency security should they be disclosed. This latter category would include, for example, information facilitating a computer hacker's access to vulnerable agency databases, like file pathnames, keystroke instructions, directory address and other internal information. To that end, NASA redacted data from the information provided to Plaintiff that showed filepaths revealing the directory structure of the OSS, because such information could make it easier for an intruder to gain access to the OSS and destroy or falsify particular data. See Decl. of Stephen L. McConnell, NASA's Chief FOIA Public Liaison Officer, ¶ 14.
The other FOIA authorized exemption stems from 5 U.S.C. § 552(b)(6), which allows the government to withhold all information about individuals in "personnel and medical files and similar files" if the disclosure of the information "would constitute a clearly unwarranted invasion of personal privacy." Mr. McConnell explains in his declaration that NASA redacted certain names, initials, email addresses and telephone numbers that could give members of the public identity or contact information for certain non-federal employees. McConnell Decl., ¶¶ 20-21. McConnell states that he balanced the privacy interest of the individuals about whom information was redacted with the public interest in disclosure of the information before determining that the privacy interests predominated. Id. at ¶ 23. These redactions, along with the "high 2" redactions enumerated above, were detailed in a Vaughn Index spreadsheet prepared by McConnell showing the page number, an entry number within the page, the FOIA exemption number or numbers, and a description of the redacted material. Lavery Decl., ¶ 66; McConnell Decl, ¶ 12 and Exh. 4.
NASA has explained how the redactions in question contain private information about the authors of the PDL Reports, their replacements on the next shift, and third parties involved in the payload downlink process, information that could be abused in various ways through unwanted solicitation and the like. Information need not be intimate or embarrassing to qualify for exemption under subdivision (b)(6). U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 600 (1982). The fact that Plaintiff would not abuse private information obtained about the concerned individuals is irrelevant since information released under FOIA is in effect released to the world. See Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1082, 1088-89 (9th Cir. 1997).
The Court believes that NASA has adequately supported, through release of a Vaughn Index, the propriety of redactions to the information provided to Plaintiff under his FOIA request.
CONCLUSION
For all the foregoing reasons, the Court concludes that NASA properly complied with the two FOIA requests that are the subject of this lawsuit. As such, NASA is entitled to summary judgment in its favor. The Clerk of the Court is hereby directed to close this file.IT IS SO ORDERED.