National Aeronautics and Space Administration


Washington, DC 20546-0001


August 5, 2009

Reply to the Attn of:
Office of the General Counsel

Mr. Jed Margolin
1981 Empire Road
Reno, NV 89521-7430


Re: Appeal of FOIA 08-270


Dear Mr. Margolin:


This is a response to your letter dated June 10, 2009, appealing an initial determination under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq., issued on May 14. 2009, by Ms. Kellie N. Robinson, FOIA Public Liaison Officer, NASA Headquarters. Your original FOIA request of June 30, 2008, sought to obtain "all documents related to the Administrative Claim of Jed Margolin for Infringement of U.S. Patent Nos. 5,566,073 and 5,904,724; NASA Case No. 1-222."


In the initial determination Ms. Robinson informed you that NASA Headquarters Office of General Counsel conducted a search and from that search certain enclosed documents were provided that were responsive to your request. In addition Ms. Robinson informed you that certain other documents found responsive to your request contain information that is exempt from disclosure under the deliberative process privilege of Exemption 5, 5 U.S.C. §552(b)(5).


In your appeal letter dated June 10, 2009, you assert that NASA did not give an estimate of the volume of the documents being withheld in violation of 5 U.S.C 552(a)(6)(F), which states that:


In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made.

In addition to the alleged failure to provide this information your appeal letter requests documentation including:


1)     Letter dated March 19, 2009, written by Mr. Gary G. Borda and addressed to Optima Technology Group (OTG);

2)    Evidence (patent report) that Mr. Borda refers to in his letter and how such materials and/or documents are directed to the '724 claims; and

3)     Records between NASA and Rapid Imaging Software (Mike Abernathy), which provided the synthetic vision system for the X-38 project which was referred to in the Borda letter.


Your appeal has been reviewed and processed pursuant to applicable statutes and regulations, specifically 14 CFR Part 1206. This process involved an examination of your original request, FOIA case law, the initial determination, the assertions made in your appeal, and related documentation.


First, in response to your assertion that you were not provided an estimate of the volume of documents withheld under Exemption 5, we now inform you that the withheld documents constitute approximately one hundred (100) pages in total volume.


Second, the document requested under item 1) above is already in your possession. You quoted the document verbatim in your appeal letter to NASA and included an exact copy in your materials (Appendix NA) that you returned to NASA accompanying your letter of appeal.


Third, I have determined that the documents you request under item 2) above are exempt from release under FOIA Exemption 5. The documents concerning the patent reports were prepared by attorneys in anticipation of litigation under NASA Case No. 1-222. The preparation of the patent report was done in close collaboration between agency attorneys and agency personnel. Exemption 5 excludes from disclosure any documents that are "inter­agency or intra agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. 552 (b)(5). This exemption protects from disclosure those documents and other memoranda prepared by an attorney in contemplation of litigation. See Hickman v. Taylor, 329 U.S. 495, 509-10 (1947); Fed. R. Civ. P. 26(b)(3). The exemption is not limited to civil proceedings, but extends to administrative proceedings. See Environmental Protection Services v. EPA, 364 F. Supp. 2d 575, 586 (N.D. W.Va. 2005). In addition the exemption protects "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice." See Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977); Electronic Privacy Information Center v. Dep't  of Homeland Security, 384 F. Supp. 2d 100, (D.D.C. 2005). Your request that NASA show how such materials and/or documents are directed to the '724 claims is also protected by the attorney client privilege.


Finally, with regard to the documents you request under item 3), these documents exceed the scope of the original FOIA request you submitted on June 30, 2008. Your original request identified documents related to the Administrative Claim of Jed Margolin for Infringement of U.S. Patent Nos. 5,566,073 and 5,904,724; NASA Case No. I-222. That request was forwarded to the Office of General Counsel, NASA HQ, which maintains the administrative claim file that includes all the documents the Agency holds in connection with the patent infringement claim. However, your request did not identify documents relating to an independent program conducted through a contractual arrangement made over a decade ago at other NASA Centers. See Chester Kowalczyk v. Dep't of Justice, 73 F.3d 386 (D.C. Cir. 1996). You will need to make a separate request for these additional documents and provide more specificity as to the nature of the documents you are requesting.


In response to your appeal, I will affirm the initial determination.


This is a final determination and is subject to judicial review under the provisions of 5 U.S.C. § 552 (a)(4), a copy of which is enclosed.




Thomas S. Luedtke

Associate Administrator
    for Institutions and Management





HQ/Mr. Hargrove