1 kevin v. ryan (csbn 118321)cyberlaw.stanford.edu/attachments/epicnasamotionsj.pdf · information...

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KEVIN V. RYAN (CSBN 118321)United States AttorneyJOANN M. SWANSON (CSBN 88143)Chief, Civil DivisionCLAIRE T. CORMIER (CSBN 154364)Assistant United States Attorney

ELIZABETH J. SHAPIRO (DC Bar No. 418925)Assistant DirectorRENÉE S. ORLEANS (MD bar)Trial AttorneyU.S. Department of Justice, Civil Division Federal Programs Branch

Post Office Box 883Washington, D.C. 20044Tel: (202) 514-4504Fax: (202) [email protected]

Attorneys for Defendant National Aeronautics and Space Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

)ELECTRONIC PRIVACY )INFORMATION CENTER, )

) Case No. C 04-00296 (RMW/PVT)Plaintiff, )

) DEFENDANT'S NOTICE OF ) MOTION AND MOTION

v. ) FOR SUMMARY JUDGMENT)) Hon. Ronald M. Whyte

NATIONAL AERONAUTICS )AND SPACE ADMINISTRATION, ) Date: June 4, 2004

) Time: 9:00 a.m.Defendant. )

)

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TABLE OF CONTENTS

PAGE

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . 1

MEMORANDUM OF SUPPORTING POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. NASA's Aviation Security Research Effort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. EPIC's October 3, 2003 FOIA Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. NASA PROPERLY WITHHELD CONFIDENTIAL INFORMATION OBTAINED FROM IBM UNDER 5 U.S.C. § 552(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 9

II. NASA PROPERLY WITHHELD INFORMATION PROTECTED BY THE DELIBERATIVE PROCESS PRIVILEGE UNDER 5 U.S.C. § 552(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III. NASA PROPERLY WITHHELD PERSONAL INFORMATION FROM RESPONSIVE DOCUMENTS UNDER 5 U.S.C. 552(b)(6) . . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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TABLE OF AUTHORITIES

CASES PAGE(S)

Assembly of the State of California v. United States Department of Commerce, 968 F.2d 916 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C. 1966), aff'd, 384 F.2d 979 (D.C. Cir.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CIA v. Sims, 471 U.S. 159, 105 S. Ct. 1881 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10,11

Department of the Air Force v. Rose, 425 U.S. 352, 96 S. Ct. 1592 (1976) . . . . . . . . 7, 20

Dept. of the Interior v. Klamath Water Users Protective Assoc., 532 U.S. 1, 21 S. Ct. 1060 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 15, 16

Dow Jones & Co. v. Dep't of Justice, 917 F.2d 571 (D.C. Cir. 1990) . . . . . . . . . . . . 15, 16

FBI v. Abramson, 456 U.S. 615, 102 S. Ct. 2054 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . .8

Frazee v. U.S. Forest Service, 97 F.3d 367 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . ..11

GC Micro Corp. v. Defense Logistics Agency, 33 F.3d 1109 (9th Cir. 1994) . . . . . . 9, 10

Hale v. U.S. Department of Justice, 973 F.2d 894 (10th Cir. 1992), vacated on other grounds, 509 U.S. 918, 113 S. Ct. 3029 (1993) . . . . . . . . . . . . . . . . .7

Hunt v. CIA, 981 F.2d 1116 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Hunt v. Federal Bureau of Investigation, 972 F.2d 286 (9th Cir. 1992) . . . . . . . . . . . . . .17

John Doe Agency v. John Doe Corp., 493 U.S. 146, 110 S. Ct. 471 (1989) . . . . . . . . . 7, 8

Lion Raisins, Inc. v. U.S. Department of Agriculture, 354 F.3d 1072 . . . . . . . . . . . . . . .9(9th Cir. 2004)

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Maricopa Audubon Society v. United States Forest Service, 108 F.3d 1089 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Minier v. Central Intelligence Agency, 88 F.3d 796 (9th Cir. 1996) . . . . . . . . . . . . . . . 7-8

National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 95 S. Ct. 1504 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 15

National Parks and Conservation Assoc. v. Morton, 498 F.2d 765 (D.C. Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11

Painting Industry of Hawaii v. Department of the Air Force, 26 F.3d 1479 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Renegotiation Board v. Grumman Aircraft, 421 U.S. 168, 95 S.Ct. 1491 (1975) . . . . . .13

Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . . ..15

Soucie v. David, 448 F.2d 1067 (D.C. Cir.1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Spurlock v. Federal Bureau of Investigation, 69 F.3d 1010 (9th Cir. 1995) . . . . . . . . . . . .8

U.S. Dep't of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 114 S. Ct. 1006 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 102 S. Ct. 1957 (1982) . . . . 17

U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19

United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090 (1974) . . . . . . . . . . . . . . . . . . . .. . 13

STATUTES

5 U.S.C. § 552, et al . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim

RULES AND REGULATIONS

14 C.F.R. § 1206.610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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FEDERAL RULES OF CIVIL PROCEDURE

Fed. R. Civ. P. 56(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 1, 2, 19

LEGISLATIVE MATERIALS

H.R. Rep. No. 1497, 89th Cong., 2d Sess. 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

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Defendant's Motion for Summary Judgment

Case No. C 04-00296 (RMW/PVT)

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

PLEASE TAKE NOTICE that, on June 4, 2004, at 9:00 a.m., before the Honorable

Ronald M. Whyte, defendant National Aeronautics and Space Administration ("NASA" or

"defendant") will move, pursuant to Rule 56(b) of the Federal Rules of Civil Procedure

("Fed.R.Civ.P."), for an order granting summary judgment for defendant in this action. The

grounds in support of this motion are set out in the defendant's memorandum, supporting

declaration, and document index, below.

MEMORANDUM OF SUPPORTING POINTS AND AUTHORITIES

INTRODUCTION

Plaintiff Electronic Privacy Information Center ("EPIC" or "plaintiff") brings this suit

against NASA, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et al., seeking

documents maintained by NASA's Ames Research Center ("ARC") that relate to passenger data

that Northwest Airlines ("NWA") provided to ARC. See Complaint for Injunctive Relief

("Complaint"), ¶ 6. Specifically, EPIC seeks:

Any correspondence between representatives of Northwest Airlines and NASAofficials or employees regarding the disclosure of Northwest passenger data toNASA;

Any documents detailing, describing or concerning disclosure of Northwestpassenger data to NASA; and

Any materials related to negotiations or communications between NASA andother commercial airlines for passenger data.

Complaint for Injunctive Relief, ¶ 6.

NASA has released all responsive, non-exempt documents to EPIC. The documents that

have been withheld from EPIC either in full or in part are properly exempt from disclosure under

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1 ARC, located in Moffett Field, California, is one of NASA's ten field centers. ARCsupports NASA's Aerospace Technology Enterprise, which is NASA's advanced technologydeveloper and provider for long-term aerospace, including engineering tools and processes andsystem concepts. See Pesonen Declar. ¶ 9. ARC was founded on December 20, 1939, as anaircraft research laboratory by the National Advisory Committee for Aeronautics; it became partof NASA in 1958. Id.


Case No. C 04-00296 (RMW/PVT) 2

the FOIA, pursuant to 5 U.S.C. § 552(b)(4), (5), and (6). In particular, under exemption (b)(4),

NASA withheld information that constitutes "commercial or financial information obtained from

a person" that is "privileged or confidential." NASA also withheld pre-decisional documents or

information under the deliberative process privilege prong of exemption (b)(5). Finally, NASA

properly redacted personal information about individuals in certain documents under exemption

(b)(6). Because NASA appropriately invoked these exemptions to protect certain documents and

information, NASA is entitled to summary judgment in this matter pursuant to Fed. R. Civ. P.

56(b).

BACKGROUND

I. NASA's Aviation Security Research Effort

After the events of September 11, 2001, ARC1 undertook exploratory studies to

determine how the agency could contribute to enhancing aviation security. See Declaration of

Lorie M. Pesonen ("Pesonen Declar."), ¶ 7, attached herein as Defendant's Exhibit 1. ARC

management subsequently requested ideas from ARC researchers for aviation security-related

research. Id. ARC researchers had previously provided critical research and testing on numerous

aspects of air travel, and the airline industry has had a historic relationship with ARC. Id. ¶ 9.

Initially, ARC's aviation security effort was coordinated with the Federal Aviation

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2 As described in the Ms. Pesonen's declaration:

Passenger threat assessment includes the use of data analysis algorithms, acomputational procedure with a finite number of steps, to determine the degree towhich a passenger poses a threat to an aircraft. Data mining is one type of dataanalysis. Data mining is an information extraction activity; the goal is to discoverhidden facts contained in databases. NASA uses data mining and other dataanalysis techniques to detect anomalies in large volumes of scientific andengineering data.

Pesonen Declar. ¶ 10.



Administration ("FAA"), which included the exchange of information and participation in

workshops. Id. ¶ 8.

From the suggested submissions from ARC researchers, ARC management selected

passenger threat assessment for further study.2 Id. ¶ 10. In order to test the hypothesis that

NASA's data analysis algorithms could assist with passenger threat assessment, ARC researchers

informed ARC management that a sufficiently large amount of actual passenger data would be

needed to test the ability of the algorithms to scale up to the large volumes of data used by the

airlines. Id. ¶ 11. Thus, in December 2001, NASA requested three (3) months worth of

passenger data from NWA. Id. ¶ 12. In December 2001, NWA provided NASA with one day's

worth of data, and, in March 2002, voluntarily provided NASA with the 3 months worth of data.

Id. The NWA data was one of several databases used to support the data analysis research; the

other databases were commercially available. Id. ¶ 13. ARC researchers used a small portion of

the NWA data, which they stripped of personal identifying information prior to running some

initial analysis. Id.

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In furtherance of this project, ARC researchers, in March and September 2002,

exchanged electronic mail messages ("e-mails") with researchers at IBM. Id. ¶ 14. The ARC

researchers sought advice as to what type of IBM products could assist with certain NASA

requirements in this research. Id. IBM provided this information voluntarily; these discussions,

though, did not go beyond the exploratory stage. Id.

In October 2002, ARC management began to refocus the aviation security-related

research, and, in February 2003, decided to terminate the funding for the data mining research

using the NWA data. Id. ¶ 15. ARC terminated this research before the researchers developed

the capacity to run analysis on the entire 3 months worth of NWA data. Id. Thus, because ARC

management decided to terminate the research prior to its completion, no final report was issued.

Id. ARC returned the NWA data to NWA in September 2003. Id. ¶ 16.

II. EPIC's October 3, 2003 FOIA Request

By letter dated October 3, 2003, EPIC submitted a request for documents under the FOIA

to Terence Pagaduan, the FOIA Officer with ARC, NASA. Pesonen Declar.,

¶ 17. In the request, EPIC sought the following documents:

Any correspondence between representatives of Northwest Airlines and NASAofficials or employees regarding the disclosure of Northwest passenger data toNASA;

Any documents detailing, describing or concerning disclosure of Northwestpassenger data to NASA; and

Any materials related to negotiations or communications between NASA andother commercial airlines for passenger data.

Id. ¶ 18. On October 9, 2003, Mr. Pagaduan acknowledged receipt of EPIC's FOIA request. Id. ¶

19.

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By e-mail dated October 20, 2003, EPIC clarified the scope of its initial request to include

the following records:

Records of negotiations, discussions, or other communications regardingdisclosure of passenger data from Northwest or other airlines to NASA;

Any documents related to how NASA has used passenger data received byNorthwest or any other airline;

Any documents indicating the scope of such disclosure.

Id. ¶ 20. EPIC noted that it was not interested in obtaining the actual passenger data that an

airline may have disclosed to NASA. Id.

By letter dated December 16, 2003, ARC provided the initial determination to EPIC's

amended FOIA request. Id. ¶ 21. Of the records identified as responsive to EPIC's amended

FOIA request, ARC released seven (7) documents in their entirety (36 pages), and withheld the

remaining responsive documents in their entirety under applicable exemptions under the FOIA.

Id. ¶ 22. Specifically, ARC denied the release of the remaining responsive documents under 5

U.S.C. § 552(b)(5) as "inter-agency or intra-agency memoranda or letters which would not be

available by law to a party other than an agency in litigation with any agency." Pesonen Declar. ¶

23. ARC explained that the documents withheld under exemption (b)(5) included drafts and

other documents that were preliminary and pre-decisional in nature. Id. ARC also withheld

records in full or in part under 5 U.S.C. § 552(b)(4) as "trade secrets and commercial or financial

information obtained from a person and privileged or confidential." Pesonen Declar. ¶ 24.

By letter dated December 17, 2003, EPIC appealed the ARC's initial determination to the

"FOIA Appeal Administrator" at NASA headquarters. Id. ¶ 26. EPIC appealed ARC's initial

determination of the grounds that 1) ARC applied the exemptions too broadly; 2) ARC failed to

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3 The Pesonen Declaration incorrectly notes this number as 121 documents. PesonenDeclaration, ¶ 36.



segregate exempted material from non-exempted material; and 3) ARC did not conduct an

adequate search for responsive material. Id. ¶ 27.

ARC transferred the responsive records to NASA Headquarters for the appeal to proceed.

Id. ¶ 31. While NASA began processing the appeal, EPIC filed the instant suit on January 22,

2004. See Complaint for Injunctive Relief. In its Complaint for Injunctive Relief, EPIC stated

that it sought the documents set forth in its October 3, 2003 FOIA request to the agency. See id.

¶ 6. EPIC claimed that defendant "wrongfully withheld responsive agency records from

Plaintiff," and requested "injunctive relief with respect to the release and disclosure of the

requested documents at issue in this matter." See id. ¶¶ 17, 19.

Because the documents relating to EPIC's administrative appeal were now the subject of

the instant litigation, NASA ultimately decided to close the administrative process; EPIC was

notified of this decision by letter dated April 2, 2004. Pesonen Decl. ¶ 34.

On April 27, 2004, NASA released additional documents either in full or in part to EPIC.

Id. ¶ 35. Of the documents forwarded by ARC, NASA determined that a total of 1223 were

responsive to EPIC's FOIA request. Id. ¶ 36. Of the 122 responsive documents, thirty-six (36)

documents (63 pages) were released to EPIC in full; twenty-five (25) documents (58 pages) were

released in part; and, sixty-one (61) documents (525 pages) were withheld in full under

applicable FOIA exemptions. Id. ¶ 36.

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ARGUMENT

The Freedom of Information Act was enacted to "'pierce the veil of administrative secrecy

and to open agency action to the light of public scrutiny.'" Department of the Air Force v. Rose,

425 U.S. 352, 361, 96 S.Ct. 1592, 1599 (1976) (quoting Rose, 495 F.2d 261, 263 (2d Cir. 1974)).

However, the public's interest in government information under FOIA is not absolute – "[i]t

extends only to information that sheds light upon the government's performance of its duties."

Hale v. U.S. Department of Justice, 973 F.2d 894, 898 (10th Cir. 1992), vacated on other

grounds, 509 U.S. 918, 113 S.Ct. 3029 (1993). "Congress recognized . . . that public disclosure

is not always in the public interest." CIA v. Sims, 471 U.S. 159, 166-167, 105 S.Ct. 1881,1886

(1985).

Thus, the FOIA's "basic purpose" reflects a "general philosophy of full agency disclosure

unless information is exempted under clearly delineated statutory language." John Doe Agency

v. John Doe Corp., 493 U.S. 146, 149, 110 S.Ct. 471, 475 (1989) (quoting Rose, 425 U.S. at

360-361, 96 S.Ct. 1592, 1599 (1976)) (other citation omitted). The FOIA is designed to achieve

a "workable balance between the right of the public to know and the need of the Government to

keep information in confidence to the extent necessary without permitting indiscriminate

secrecy." John Doe, 493 U.S. at 152, 110 S.Ct. at 475 (quoting H.R. Rep. No. 1497, 89th Cong.,

2d Sess. 6 (1966), reprinted in, 1966 U.S.C.C.A.N. 2418, 2423).

Toward that end, the FOIA incorporates "nine exemptions which a government agency

may invoke to protect certain documents from public disclosure." Minier v. Central Intelligence

Agency, 88 F.3d 796, 800 (9th Cir. 1996). Despite the "liberal congressional purpose" of the

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4 For all documents, all reasonable information has been redacted wherever possibleunless such information is inextricably intertwined with information properly withheld under theasserted exemptions. Personen Declar. ¶ 56.



FOIA, the Supreme Court has recognized that the statutory exemptions are intended to have

"meaningful reach and application." John Doe, 493 U.S. at 152, 110 S.Ct. at 475.

"A district court only has jurisdiction to compel an agency to disclose improperly

withheld agency records," i.e., records that do "not fall within an exemption." Minier, 88 F.3d at

803 (emphasis in original). "Congress 'did not invite a judicial weighing of the benefits and evils

of disclosure on a case-by-case basis.'" Id. (quoting FBI v. Abramson, 456 U.S. 615, 631, 102

S.Ct. 2054, 2064 (1982)). Thus, "[r]equiring an agency to disclose exempt information is not

authorized by FOIA." Id. (quoting Spurlock v. Federal Bureau of Investigation, 69 F.3d 1010,

1016 (9th Cir. 1995)).

"The agency resisting disclosure of the requested information has the burden of proving

the applicability of an exemption." Id. at 800. "The agency may meet its burden by submitting a

detailed affidavit showing that the information 'logically falls within the claimed exemptions.'"

Id. (quoting in part Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992)).

Through the attached declaration and document index, NASA fully explains the basis for

withholding the documents either in full or in part under FOIA exemptions 5 U.S.C. § 552 (b)(4),

(5), and (6). The discussion below, the declaration, and document index demonstrate that NASA

has provided EPIC with all documents responsive to its request, except for those documents or

portions of documents that are protected from disclosure by the FOIA.4

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I. NASA PROPERLY WITHHELD CONFIDENTIAL INFORMATION OBTAINED FROM IBM UNDER 5 U.S.C. § 552(b)(4)

FOIA exemption 4 protects records from disclosure that contain “commercial or financial

information obtained from a person” that is “privileged or confidential.” 5 U.S.C. § 552(b)(4).

Exemption 4 protects the government’s interest in the continued availability and reliability of

information from third parties, as well as the submitter’s interests in the confidentiality of

commercial or financial information. Critical Mass Energy Project v. Nuclear Regulatory

Comm'n, 975 F.2d 871, 877-79 (D.C. Cir. 1992).

The Ninth Circuit in GC Micro Corp. v. Defense Logistics Agency, 33 F.3d 1109, 1112

(9th Cir. 1994), adopted the two-part test for determining whether information qualifies as

"confidential" that was first set forth by the District of Columbia ("D.C.") Circuit in National

Parks and Conservation Assoc. v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). That two-part

test considers information "confidential" if disclosure would either 1) "impair the Government's

ability to obtain necessary information in the future," or 2) "cause substantial harm to the

competitive position of the person from whom the information was obtained." GC Micro Corp.,

33 F.3d at 1112; National Parks and Conservation Assoc., 498 F.2d at 770. The government

does not need to show that release of the documents would cause "actual competitive harm";

rather, there only needs to be a showing of "1) actual competition in the relevant market, and 2) a

likelihood of substantial competitive injury if the information were released." Lion Raisins, Inc.

v. U.S. Department of Agriculture, 354 F.3d 1072, 1079 (9th Cir. 2004).

Here, pursuant to a request from ARC for certain information, NWA and IBM voluntarily

provided ARC with the requested information. See Pesonen Declar., ¶ 39. In response to EPIC's

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FOIA request and consistent with NASA's FOIA regulations 14 C.F.R. § 1206.610, NASA

contacted these companies to ascertain whether either objected to the release of the responsive

records. Id. ¶ 40. NWA did not object to the release of certain records under exemption 4, but

IBM did object to release of certain information that it provided to ARC in e-mail messages

between NASA employees and employees of IBM. Id. ¶ 40 (Document Nos. 70, 85).

Specifically, IBM informed NASA that it objected to the release of IBM employee names

and associated data contained in these records. Id. ¶ 41. IBM noted that it guards the identity of

its employee in order to prevent competitors from raiding them. Id. IBM further noted that the

records contained information regarding the application of specific IBM products to NASA's

specific requirements. Id. IBM objected to the release of this product information contained in

these records, noting that such release would undermine IBM's competitive advantage by

allowing competitors access to ideas and design details that they would not have had without

their own research. Id.

The information contained in these two records (Document Nos. 70, 85) clearly meets the

standard of confidential of commercial or financial information. As demonstrated, release of the

IBM employee names and other associated information in the records could "cause substantial

harm to the competitive position of the person from whom the information was obtained" as well

as "impair the Government's ability to obtain necessary information in the future" GC Micro

Corp., 33 F.3d at 1112; Pesonen Declar.

¶ 42.

In Critical Mass Energy Project, 975 F.2d at 877-79, the D.C. Circuit reexamined the

two-part test set forth in National Parks. The D.C. Circuit noted that the information at issue in

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National Parks was information that was required to be produced to the government. Critical

Mass Energy Project, 975 F.2d at 878. The court reaffirmed the two-part test set forth in

National Parks for information submitted under compulsion, but found a new, less stringent test

for "financial or commercial information provided to the Government on a voluntary basis."

Critical Mass Energy Project, 975 F.2d at 879. Such information is "confidential" for the purpose

of exemption 4 "if it is of a kind that would customarily not be released to the public by the

person from whom it was obtained." Id. Thus, under Critical Mass Energy Project, information

voluntarily submitted to the government is categorically protected, provided the information is

not "customarily" disclosed to the public by the submitter.

The Ninth Circuit has not yet adopted this less stringent test for such voluntarily

submitted information. See e.g., Frazee v. U.S. Forest Service, 97 F.3d 367, 372 (9th Cir. 1996)

(noting that the circuit had not yet addressed the Critical Mass distinction between voluntary and

mandatory information; further noting that the distinction becomes relevant when information is

submitted to the government voluntarily, which was not the case in Frazee). It is worth noting,

though, that the information provided to NASA by IBM was done so voluntarily, i.e., IBM was

not required to submit the information to NASA. See Pesonen Declar. ¶ 39. As demonstrated,

this information is clearly "of a kind that would customarily not be released to the public by the

person from whom it was obtained."

Thus, under either standard, NASA properly withheld these two documents under

exemption (b)(4).

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II. NASA PROPERLY WITHHELD INFORMATION PROTECTED BY THEDELIBERATIVE PROCESS PRIVILEGE UNDER 5 U.S.C. § 552(b)(5)

FOIA exemption 5 exempts from mandatory 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). Exemption 5 incorporates the privileges available to an agency

in civil litigation, including the deliberative process privilege. See National Labor Relations

Board v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 1516 (1975); Maricopa

Audubon Society v. United States Forest Service, 108 F.3d 1089, 1092 (9th Cir. 1997).

The deliberative process privilege is intended "'to prevent injury to the quality of agency

decisions' by ensuring that the 'frank discussion of legal or policy matters' in writing within the

agency, is not inhibited by public disclosure." Maricopa Audubon Society, 108 F.3d at 1092

(quoting NLRB, 421 U.S. at 150-51, 95 S.Ct. at 1515) (internal citations omitted); see also

Assembly of the State of California v. United States Department of Commerce, 968 F.2d 916,

920 (9th Cir. 1992) (purpose of deliberative process privilege "is to allow agencies freely to

explore possibilities, engage in internal debates, or play devil's advocate without fear of public

scrutiny."). As the Supreme Court has stated:

The deliberative process privilege rests on the obvious realization that officialswill not communicate candidly among themselves if each remark is a potentialitem of discovery and front page news, and its object is to enhance the quality ofagency decisions by protecting open and frank discussion among those who makethem within the Government.

Dept. of the Interior v. Klamath Water Users Protective Assoc., 532 U.S. 1, 8-9, 21 S.Ct. 1060,

1066 (2001) (internal quotations and citation omitted); NLRB, 421 U.S. at 150-51, 95 S.Ct. at

1516 ("[h]uman experience teaches that those who expect public dissemination of their remarks

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may well temper candor with a concern for appearances . . . to the detriment of the

decisionmaking process.") (quoting United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090,

3106 (1974) (emphasis in original). The privilege generally protects "advisory opinions,

recommendations and deliberations comprising part of a process by which governmental

decisions and policies are formulated." NLRB, 421 U.S. at 150, 95 S.Ct. at 1516 (quoting Carl

Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966), aff'd, 384 F.2d 979

(D.C. Cir.)).

To come within the scope of the deliberative process privilege, "a document must be both

"'predecisional' and 'deliberative.'" Assembly of the State of California, 968 F.2d at 920. A

document is "predecisional if it was 'prepared in order to assist an agency decisionmaker in

arriving at his decision.'" Id. (quoting Renegotiation Board v. Grumman Aircraft, 421 U.S. 168,

184, 95 S.Ct. 1491, 1500 (1975)). Information withheld by an agency is "deliberative" if

"disclosure of materials would expose an agency's decision-making process in such a way as to

discourage candid discussion within the agency and thereby undermine the agency's ability to

perform its functions." Id. at 921.

The documents and information withheld under exemption 5 fall squarely within the

deliberative process privilege. This withheld material is plainly pre-decisional, for the material

relates to the course of the aviation security research and possible collaborations regarding this

research, which ARC management decided to terminate before its completion. None of this pre-

decisional material resulted in a final product that was ultimately adopted by ARC management.

See Pesonen Declar. ¶ 15.

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5 Other documents which advice, opinions, and recommendations regarding how torespond to press inquires regarding the NWA data. See Pesonen Declar. ¶ 49 (Document Nos.73-77, 79, 82, 83). The records represent the deliberative process ARC used to developresponses to media inquiries about the NWA data; the exchange of information ensured that theARC spokesman answered media questions accurately and thoroughly. Id. Thus, this withheldmaterial is protected under exemption 5 as well.



Specifically, the documents or information withheld under exemption 5 consist of draft

versions of presentations, reports, or other documents, see Pesonen Declar., ¶ 44 (and documents

listed); pre-decisional advice, opinions, and recommendations regarding the course of the

aviation security research, id. ¶ 45 (and documents listed); and, internal NASA deliberations

among the ARC researchers as well as among the researchers and management or interagency

deliberations regarding the aviation security research and/or possible collaboration, id. ¶ 46 (and

documents listed).5

The withheld material is also "deliberative" because disclosure would expose the agency's

decision making process in a manner which would discourage candid discussion of the passenger

threat assessment research project. As NASA explains:

The documents or information withheld under Exemption 5 consist ofpreliminary, informal suggestions, ideas, and proposals at early stages of aresearch project and reflect the agency's decision making process. Thesesuggestions and ideas do not purport to represent NASA's policies and have notbeen refined in a form for public release. If such sketchy and preliminaryinformation were to be released and subjected to public scrutiny before they couldbe debated and refined, the employees involved would be reluctant to make suchproposals, or at least commit them to writing. The result would be to deprive thedecision maker of the collective wisdom of employees involved in the day-to-dayadministration of this research.

Id. ¶ 50.

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In addition, because the passenger threat assessment research was intended to identify

possible means to increase airport security, some of the preliminary discussions, documents, and

presentations identify the researchers' thoughts and analysis of the weaknesses that exist in

airport security. Id. ¶ 51. As such, NASA determined that release of this deliberative, pre-

decisional information would be harmful to the government because individuals wishing to

exploit airport weaknesses could potentially use the information in a manner detrimental to the

national security. Id.

Some of the information withheld under exemption 5 was received from NWA and IBM,

entities technically outside of the executive branch. But the deliberative process privilege applies

with equal force to information provided to the executive branch by outside experts and

consultants. See Dow Jones & Co. v. Dep’t of Justice, 917 F.2d 571, 575 (D.C. Cir. 1990)

(“Exemption 5 permits an agency to protect the confidentiality of communications from outside

the agency so long as those communications are part and parcel of the agency’s deliberative

process.”) (emphasis in original); Soucie v. David, 448 F.2d 1067, 1078 n. 44 (D.C. Cir.1971)

("The Government may have a special need for the opinions and recommendations of temporary

consultants, and those individuals should be able to give their judgments freely without fear of

publicity"); Ryan v. Department of Justice, 617 F.2d 781, 789 (D.C. Cir. 1980) ("In the course of

its day-to-day activities, an agency often needs to rely on the opinions and recommendations of

temporary consultants, as well as its own employees. Such consultations are an integral part of

its deliberative process; to conduct this process in public view would inhibit frank discussions of

policy matters and likely impair the quality of decisions.").

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The Supreme Court has recognized the many courts that have interpreted the "intra-

agency or intra-agency" requirement of exemption 5 to extend to communications between

government agencies and outside consultants hired by them. See Klamath Water Users

Protective Assoc., 532 U.S. at 10, 121 S.Ct. at 1066. In describing this line of cases, the Court

noted:

In such cases, the records submitted by outside consultants played essentially thesame part in an agency's process of deliberation as documents prepared by agencypersonnel might have done. To be sure, the consultants in these cases wereindependent contractors and were not assumed to be subject to the degree ofcontrol that agency employment could have entailed; nor do we read the cases asnecessarily assuming that an outside consultant must be devoid of a definite pointof view when the agency contracts for its services. But the fact about theconsultant does not represent an interest of its own, or the interest of any otherclient, when it advises the agency that hires it. Its only obligations are to truth anits sense of what good judgment calls for, and those respects the consultantfunctions just as an employee would be expected to do.

Klamath Water Users Protective Assoc., 532 U.S. at 10-11, 121 S.Ct. at 1066-67.

Here, as noted above, NASA consulted with IBM and NWA on some aspects of the

passenger assessment research project. In particular, NASA researchers sought advice and

recommendations from IBM researchers concerning the capabilities of IBM products to meet the

demands of ARC's research using the NWA data. See Pesonen Declar. ¶¶ 14, 47. Morever, in

addition to providing the passenger data, NWA also served as consultants to the ARC researchers

by providing expertise as to how to access and read the passenger data. Id. ¶ 48. The documents

at issue that reflect these consultations with IBM and NWA are all in the form of e-mail

messages between ARC researchers and the representatives of these companies. See id. ¶¶ 47-48

(Document Nos. (70, 85, 43, 44, 64, 65). Neither consultant was seeking a benefit from the

government, nor were they in any sense in an adversarial position to the government. To the

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contrary, NWA and IBM assisted the government in a purely consultative relationship. Id. Thus,

NASA withheld these deliberations between ARC researchers and representatives of NWA and

IBM as consultants under exemption 5. Id.

Accordingly, NASA properly withheld pre-decisional, deliberative documents and

information under exemption 5.

III. NASA PROPERLY WITHHELD PERSONAL INFORMATION FROMRESPONSIVE DOCUMENTS UNDER 5 U.S.C. 552(b)(6)

FOIA Exemption 6 encompasses "personnel and medical files and similar files the

disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5

U.S.C. § 552(b)(6). The Supreme Court has interpreted broadly FOIA exemption 6's reference to

"similar files," holding that it encompasses "information which applies to a particular

individual." U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957,

1961-62 (1982).

"Exemption 6 requires that courts balance the public interests in disclosure against the

privacy interests that would be harmed by disclosure." Painting Industry of Hawaii v.

Department of the Air Force, 26 F.3d 1479, 1482 (9th Cir. 1994). The court "must evaluate both

the public benefit and the potential invasion of privacy by looking at the nature of the

information requested and the uses to which it could be put if released to any member of the

public." Id. Government employees have a "legitimate interest in keeping private matters that

could conceivably subject them to annoyance or harassment." Hunt v. Federal Bureau of

Investigation, 972 F.2d 286, 288 (9th Cir. 1992).

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6 As discussed above, infra at 9-11, this information is also being withheld underexemption 4.



Here, NASA withheld the personal e-mail addresses of its employees, which were

occasionally provided over the course of the research to ensure ARC researchers could be

reached, if required. Pesonen Declar. ¶ 53 (Document Nos. 45, 47, 48, 55, 67). This information

was withheld under Exemption 6 of the FOIA on the ground that release of this information

"would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).

NASA determined that these ARC researchers have a privacy interest in their personal contact

information. Pesonen Declar. ¶ 53.

Pursuant to IBM's objections, NASA also withheld the names and associated personal

data of IBM employees, noting that release of this information would be an unwarranted invasion

of privacy.6 Id. 54 (Document Nos. 70, 85). Moreover, in accordance with NWA's objections,

NASA also withheld the personal information obtained from the NWA passenger data that is

duplicated within certain NASA documents. Id.¶ 55 (Document No. 21). NASA agreed with

NWA that release of this information would also constitute an unwarranted invasion of the

passengers' privacy. Id. Moreover, this information is non-responsive to EPIC's FOIA request

because EPIC specifically noted that it was not interested in obtaining any actual passenger data.

Id.

Against these significant privacy interests, NASA has weighed any public interest in the

information and has concluded that the balance overwhelmingly favors non-disclosure. See

Rose, 425 U.S. at 372, 96 S.Ct. at 1604; Pesonen Declar. ¶¶ 52-55. There is simply no public

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interest in the personal information redacted from these documents. The only relevant public

interest is "the extent to which disclosure would serve the core purpose of the FOIA, which is

contributing significantly to public understanding of the operations or activities of the

government." U.S. Dep't of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 495, 114

S.Ct. 1006, 1012 (1994) (internal quotations and citation omitted); U.S. Department of Justice v.

Reporters Committee for Freedom of the Press, 489 U.S. 749, 774, 109 S.Ct. 1468, 1482 (1989)

("FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eye

of public scrutiny, not that information about private citizens that happens to be in the warehouse

of the Government be so disclosed.") (emphasis in original). The Ninth Circuit has held that

"FOIA only recognizes the public's interest in knowing 'what the government is up to' and does

not create an avenue to acquire information about other private parties held in the government's

files." Painting Industry of Hawaii Market Recovery Fund, 26 F.3d at 1484 (quoting Reporters

Committee for Freedom of the Press, 489 U.S. at 772-73, 109 S.Ct. at 1481-82.)

Thus, the release of the personal information redacted under exemption 6 would

constitute a clearly unwarranted invasion of privacy and would shed no light on the agency's

operations. Therefore, the withholdings under exemption 6 are proper.

CONCLUSION

Accordingly, for the foregoing reasons, NASA respectfully requests that the Court grant

its motion for summary judgment pursuant to Fed.R.Civ.P. 56.

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Respectfully submitted,

KEVIN V. RYANUnited States Attorney

CLAIRE T. CORMIERAssistant United States Attorney

Dated: April 27, 2004 By: /s/ Renée S. Orleans ELIZABETH J. SHAPIROAssistant DirectorRENÉE S. ORLEANSTrial AttorneyU.S. Department of JusticeCivil DivisionFederal Programs BranchPost Office Box 883Washington, D.C. 20044Tel: (202) 514-4504Fax: (202) [email protected]

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