National Aeronautics and Space Administration
August 5, 2009
Reply to the Attn of:
Office of the General Counsel
Mr. Jed Margolin
1981 Empire Road
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:
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
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
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
for Institutions and Management