National Aeronautics and Space Administration
Washington, DC 20546-0001
April 13, 2010
Reply to Attn of: Office of the General Counsel
Mr. Jed Margolin
1981 Empire Road
Reno, NV 89521-7430
Dear Mr. Margolin:
By letter dated March 9, 2010, you appealed an initial determination
under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq.,
issued February 11, 2010, by Ms. Denise Young, NASA Headquarters,
Freedom of Information Act Office. Your request sought the following:
1. How many claims for
patent infringement have been filed with NASA since January 1, 1999?
This includes requests which NASA chose to handle as claims even if the
person who submitted it had not intended it to be an official claim.
2. How many of the claims for patent infringement in paragraph 1 were
affirmed by NASA?
3. How many of the claims for patent infringement in paragraph I were
made by what NASA considers Independent Inventors?
4. What does NASA consider an Independent Inventor?
5. How many of the claims for patent infringement that NASA affirmed in
paragraph 2 were filed by Independent Inventors?
6. How many of the claims for patent infringement in paragraph 1 were
denied by NASA?
7. How many of the claims for patent infringement that were denied by
NASA in paragraph 6 resulted in a Court action against NASA?
8. How many of the claims for patent infringement that were denied by
NASA that resulted in a Court action against NASA in paragraph 7 were
filed by Independent Inventors?
9. Please send me document(s) referred to by GAO as "NASA's procedures
for administratively reviewing a claim of patent infringement..."
10. What is the name of
the Director of the Infringement Division?
11. Please send me documents relating to a standard of ethics or
conduct for NASA contractors.
Although items numbered 1 through 8 were phrased as questions, and not
as requests for records as required under the FOIA, NASA conducted a
search to determine whether it had responsive records which contained
the information requested in the questions. As a result, the initial
determination provided a copy of the log of claims for patent
infringement against the Agency maintained by the NASA Headquarters
Office of General Counsel in response to item number 1. No records were
found in response to item number 9, but you were referred to the GAO
since you indicated that the record you sought was referenced in a GAO
report. Finally, you were provided a link to NASA Procurement
Information Circular 08-12 which implements the applicable standards of
ethics for Federal contractors in response to item 11. You were advised
that a search of NASA Headquarters records conducted pursuant to your
request had located no records responsive to items 2 through 8 or item
You have appealed the February 11, 2010 initial determination. In your
appeal letter, you state your belief that the "no records" response you
received to items 2 through 8 and item 10 "lacks credibility." In
addition, you assert your belief that NASA has records responsive to
items 3-5 referencing the category of "Independent Inventor" based on a
telephone conversation you conducted with a NASA employee in June,
2003. Finally, in response to the "no records" response asking for the
identity of NASA's Director of the Infringement Division, you ask NASA
to provide you with the name of the person who currently performs that
function if that position no longer exists.
With regard to item 9, you state that NASA's response to your request
is "uninformed and insulting" by referring you to the U.S. Government
Accountability Office (GAO) for a document cited in a 2000 GAO report.
With regard to item 11, you state your belief that "it is not credible
that NASA has no standard of ethical conduct for its Contractors."
Although you do not specifically state a basis for appeal of the
initial determination on item 1, we note that you conclude with the
statement that NASA's response to your request for items 1 through 11
is "wholly inadequate," so we will consider the Agency's response to
all 11 items in this decision on appeal.
Your appeal has been reviewed and processed consistent with NASA FOIA
regulations. This process has involved a review of your original
December 14, 2009 request, the assertions in your appeal letter, the
February 11, 2010 initial determination, and the controlling FOIA case
law. Based on this review, and for the reasons below, I have decided to
affirm the initial determination.
Federal agencies are not required to create records in order to respond
to a FOIA request, see
Relations Board v. Sears, Roebuck & Co., 421 U.S.
132, 143 n.10 (1975), nor are they required to answer questions posed
as FOIA requests, see
Zemansky v. EPA,
767 F.2d 569, 574 (9th Cir. 1985). Agencies have an obligation to
search for records which may be responsive to requests under the FOIA
that are "inartfully posed in the form of questions." Ferri v. Bell,
645 F.2d 1213, 1220 (3d Cir. 1981). However, the request, however
inartful, must reasonably describe the records sought as required by
the FOIA. 5 U.S.C. 552(a)(3)(A). That is, agency staff must be able
to reasonably ascertain exactly which records are being requested and
to locate them. Marks
v. DOJ, 578 F.2d 261, 263 (9th Cir. 1978).
Item 1 requested the number of claims for patent infringement NASA has
received since January 1, 1999. NASA responded to item 1 by providing
you with a copy of the log of administrative claims for patent
infringement maintained by the NASA Headquarters Office of General
Counsel. This record is responsive to your request as it allows you to
discern the number of claims for patent infringement the Agency has
received in the relevant time period.
Items 2 and 6 request the number of patent claims affirmed and denied
by NASA respectively during the relevant period. As you note in your
appeal, the log provided as item 1 is incomplete as to the disposition
of the claims identified therein. The log was provided as it is
maintained by the Agency. Because the Agency is not required to create
new records in response a FOIA request, there are no Agency records
which enumerate the information requested in items 2 and 6.
There are no responsive records to items 3, 4, 5 and 8 because the
search revealed no Agency records which refer to Agency use of the
category "Independent Inventors."
There are no responsive records to item 7 because the search revealed
no records which enumerate Court actions resulting from claims for
patent infringement denied by NASA.
Although in item 9 you failed to identify a particular GAO report, NASA
Headquarters Office of General Counsel identified GAO Administrative
Review B-285211, NASA's Administrative Review of a Patent Infringement
Claim, dated August 8, 2000, which states that the GAO reviewed NASA's
procedures for administratively reviewing a claim of patent
infringement as attached to a September 29, 1987 letter. As confirmed
by the document quoted at page 13 of your appeal, the NASA Headquarters
Office of General Counsel did not have a copy of the attachment as of
January, 2009. The search revealed that no copy of the attachment has
been located since that time.
There are no responsive records to item 10. In your appeal, you make a
new request and state that if no one has the title of Director of the
Infringement Division, you request the identity of the person who
performs that function. The current functional structure of the
Commercial and Intellectual Property Law Practice Group in the NASA
Headquarters Office of General Counsel is available at
In response to item 11, you were provided a reference to the Agency's
implementation of the Federal Acquisition Regulations (FAR)
implementing rules applicable to contractor ethics. NASA follows the
Federal Government standards for contractor ethics as set out in the
FAR and therefore, there are no additional records responsive to your
Therefore, for the reasons set forth above, the initial determination
is affirmed. This is a final determination and is subject to judicial
review under the provisions of the FOIA, 5 U.S.C. § 552(a)(4), a copy
of which is enclosed.
Thomas S. Luedtke
Assistant Administrator for Agency Operations
of Information Act, Section 552(a)(4), as amended
(4)(A)(i) In order to carry out the provisions of this section, each
agency shall promulgate regulations, pursuant to notice and receipt of
public comment, specifying the schedule of fees applicable to the
processing of requests under this section and establishing procedures
and guidelines for determining when such fees should be waived or
reduced. Such schedule shall conform to the guidelines which shall be
promulgated, pursuant to notice and receipt of public comment, by the
Director of the Office of Management and Budget and which shall provide
for a uniform schedule of fees for all agencies.
(ii) Such agency
regulations shall provide that -
(I) fees shall be limited to reasonable standard charges for document
search, duplication, and review, when records are requested for
(II) fees shall be limited to reasonable standard charges for document
duplication when records are not sought for commercial use and the
request is made by an educational or noncommercial scientific
institution, whose purpose is scholarly or scientific research-, or a
representative of the news media; and
(III) for any request not described in (I) or (II), fees shall be
limited to reasonable standard charges for document search and
In this clause, the term 'a representative of the news media' means any
person or entity that gathers information of potential interest to a
segment of the public, uses its editorial skills to turn the raw
materials into a distinct work, and distributes that work to an
audience. In this clause, the term 'news' means information that is
about current events or that would be of current interest to the
public. Examples of news-media entities are television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only if such entities qualify as disseminators of
'news') who make their products available for purchase by or
subscription by or free distribution to the general public. These
examples are not all-inclusive. Moreover, as methods of news delivery
evolve (for example, the adoption of the electronic dissemination of
newspapers through telecommunications services), such alternative media
shall be considered to be news-media entities. A freelance journalist
shall be regarded as working for a news-media entity if the journalist
can demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by the
entity. A publication contract would present a solid basis for such an
expectation; the Government may also consider the past publication
record of the requester in making such a determination.
(iii) Documents shall be
furnished without any charge or at a charge reduced below the fees
established under clause (ii) if disclosure of the information is in
the public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the direct
costs of search, duplication, or review. Review costs shall include
only the direct costs incurred during the initial examination of a
document for the purposes of determining whether the documents must be
disclosed under this section and for the purposes of withholding any
portions exempt from disclosure under this section. Review costs may
not include any costs incurred in resolving issues of law or policy
that may be raised in the course of processing a request under this
section. No fee may be charged by any agency under this section -
(I) if the costs of
routine collection and processing of the fee are likely to equal or
exceed the amount of the fee; or
(II) for any request described in clause (ii)(II) or (III) of this
subparagraph for the first two hours of search time or for the first
one hundred pages of duplication.
(v) No agency may require
advance payment of any fee unless the requester has previously failed
to pay fees in a timely fashion, or the agency has determined that the
fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede fees chargeable under
a statute specifically providing for setting the level of fees for
particular types of records.
(vii) In any action by a requester regarding the waiver of fees under
this section, the court shall determine the matter de novo: Provided,
That the court's review of the matter shall be limited to the record
before the agency.
(viii) An agency shall not assess search fees (or in the case of a
requester described under clause (ii)(II), duplication fees) under this
subparagraph if the agency fails to comply with any time limit under
paragraph (6), if no unusual or exceptional circumstances (as those
terms are defined for purposes of paragraphs (6)(B) and (C),
respectively) apply to the processing of the request. [Effective one
year from date of enactment of Public Law 110-175]
(B) On complaint, the district court of the United States in the
district in which the complainant resides, or has his principal place
of business, or in which the agency records are situated, or in the
District of Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency
records improperly withheld from the complainant. In such a case the
court shall determine the matter de novo, and may examine the contents
of such agency records in camera to determine whether such records or
any part thereof shall be withheld under any of the exemptions set
forth in subsection (b) of this section, and the burden is on the
agency to sustain its action. In addition to any other matters to which
a court accords substantial weight, a court shall accord substantial
weight to an affidavit of an agency concerning the agency's
determination as to technical feasibility under paragraph (2)(C) and
subsection (b) and reproducibility under paragraph (3)(B).
(C) Notwithstanding any other provision of law, the defendant shall
serve an answer or otherwise plead to any complaint made under this
subsection within thirty days after service upon the