National Aeronautics and
Space Administration
Headquarters
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:
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
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.
Sincerely,
Thomas S. Luedtke
Associate Administrator
for Institutions and Management
Enclosure
cc:
HQ/Mr. Hargrove