Jed Margolin 1981 Empire Rd.
Phone: 775-847-7845 Email: jm@jmargolin.com June 29, 2010
Secretary
of the Air Force
Thru:
HAF/IMIO (FOIA)
1000
Air Force Pentagon
Appeal under the
Freedom of Information Act to USAF Response dated June 10, 2010.
Jed Margolin
FOIA Case Numbers:
Case Number: 2010-04184-F
Case Number: 2010-04185-F
Case Number: 2010-04186-F
Case Number: 2010-04187-F
Case Number: 2010-04188-F
Case Number: 2010-04189-F
Case Number: 2010-04190-F
Case Number: 2010-04191-F
Case Number: 2010-04192-F
Case Number: 2010-04193-F
Case Number: 2010-04194-F
All Filed: April 26, 2010
Sir:
This is an Appeal under the Freedom
of Information Act (5 U.S.C. § 552 et seq.)
to the USAF Response dated June 10, 2010 (Appendix at
AFA3) in the above listed FOIA Requests filed April 26, 2010 (Appendix at AFA4)
by Jed Margolin (“Margolin”).
Because USAF’s response was sent on June
10, 2010 this appeal is timely.
Summary
There was a fair amount of
press coverage about the X-37B launched on April 24, 2010. It was even
mentioned on various network radio newscasts.
Margolin knew the X-36 and
X-38 both used synthetic vision so he wondered if the X-37B also used it.
He filed a Freedom of
Information Act (FOIA) request with USAF on April 26, 2010 to find out.
USAF has created a
cumbersome method of implementing its duties under the Freedom of Information
Act (5 U.S.C. § 552 et seq.) by
requiring a request be made separately to each location. Then it complains when
identical requests are made to a number of locations. Then it plays the Shell
Game so it can say it does not have responsive documents.
Details
1. There was a fair amount of press coverage
about the X-37B launched on April 24, 2010. It was even mentioned on various
network radio newscasts.
The X-37 was a NASA project
that was started in 1998 and canceled in 2003. Only it wasn’t canceled. It was
taken Black by transferring it, first to DARPA, and then to the United States
Air Force.
It was a big secret until shortly
before the launch.
2. Margolin knew the X-36 and X-38 both used
synthetic vision so he wondered if the X-37B also used it.
3. He filed a Freedom of Information Act (FOIA)
request with the United States Air Force (USAF) in late April 2010 to find out.
4. USAF has a web site for making FOIA requests.
They don’t make it easy.
The main FOIA Web site is http://www.foia.af.mil/
Although it is not apparent
at this point, you have to use Microsoft Internet Explorer. You also have to
disable all Pop-Up Blockers. Firefox totally doesn’t work. If you use Firefox
it lets you go through the entire process and then says Internal Error Occured, Close the browser
and open new browser.
The FOIA Request page is https://www.efoia.af.mil/palMain.aspx
When Margolin goes there he
gets the ominous warning (but proceeds, nonetheless):
It turns out that you have to
register.
Margolin
registered.
Now
when he goes there he can sign-in.
See the warning: Please Note: The preferred browser is Internet Explorer and
all popup blockers should be disabled.
That appears to be new.
Margolin does not remember it being there when he first went to the web page.
After
signing in, Margolin receives the following screen.
Here is the first problem
when filing a FOIA request with USAF.
You have to specify which of
27 Service Centers to submit your FOIA request to.
And all they give you are the
acronyms.
So, Margolin had to look them
up. All 27.
Now, the next part.
When you get to actually
making the request, the forms are wonky and difficult to edit. It’s difficult
to even do a cut-and-paste from a MS Word document. As a result Margolin
composed everything in a document, converted it to PDF, and attached the PDF
documents.
For Margolin’s FOIA Request
see Appendix at AFA4. Margolin’s request for a fee waiver was included in his
FOIA Request and was also separately filed as an attachment under Fee Waiver
requested.
Margolin thought he was almost
done filing his FOIA request.
He wasn’t. He wasn’t even
close.
Do you see the *Location to be searched: ?
Guess how many there are.
The following is just the
beginning of the list:
There are 232 locations, of
which 102 are Air National Guard units.
Since Margolin did not think
the X-37B was developed by the Air National Guard, that still left 130 possible
locations for him to send his FOIA request to.
USAF does not allow
Requestors to make their request and click which locations they want it sent
to. You can send it to only one location at a time. Then you start over and
send it to another location.
Some USAF organizations do not
have a listed location. One is AFOTEC. Another is AFRL.
5. Margolin filed his FOIA requests on Monday
morning, April 26, 2010.
He sent them to the following
centers and locations, and case numbers were assigned:
|
Case Number: 2010-04184-F Center: HAF: Headquarters Air Force Location: HAF AF Office of Scientific Research |
|
Case Number: 2010-04185-F Center: AFMC: Bases: Arnold, TN, Brooks City-Base, TX, Edwards,
CA, Eglin, FL, Gunter, AL, Hanscom, MA, Hill, UT, Kirtland, NM, Robins, GA,
Tinker, OK, Wright-Patterson, OH Location: AFRC - WPAFB OH 445 AW |
|
Case Number: 2010-04186-F Center: HAF: Headquarters Air Force Location: HAF AF Headquarters DC |
|
Case Number: 2010-04187-F Center: HAF: Headquarters Air Force Location: AF Program Office Executive Office, DC |
|
Case Number: 2010-04188-F Center: HAF: Headquarters Air Force Location: AF Program Office Executive Office, DC |
|
Case Number: 2010-04189-F Center: HAF: Headquarters Air Force Location: HAF - AF Review
Boards Agency, Andrews |
|
Case Number: 2010-04190-F Center: HAF: Headquarters Air Force Location: AFMC - |
|
Case Number: 2010-04191-F Center: AFSPC: Bases: HQ AFSPC, CO, Los Angeles, CA, Patrick, FL,
Peterson, CO, Location: AFSPC - AFSPC HQ |
|
Case Number: 2010-04192-F Center: AFSPC: Bases: HQ AFSPC, CO, Los Angeles, CA, Patrick, FL,
Peterson, CO, Location: AFSPC - Vandenberg AFB |
|
Case Number: 2010-04193-F Center: AFSPC Bases: HQ AFSPC, CO, Los Angeles, CA, Patrick, FL,
Peterson, CO, Location: AFSPC Patrick AFB |
|
Case Number: 2010-04194-F Center: HAF: Headquarters Air Force Location: DRU AF Operational Test & Eval
Center |
Note that in Case 2010-04185-F it was
supposed to go to AFMC (Air Force Materiel Command):
Center: AFMC: Bases: Arnold, TN, Brooks City-Base, TX, Edwards,
CA, Eglin, FL, Gunter, AL,Hanscom, MA, Hill, UT, Kirtland, NM, Robins, GA,
Tinker, OK, Wright-Patterson, OH
Instead, it was handled by
AFRC:
Location: AFRC - WPAFB OH 445 AW
AFRC is the Air Force Reserve
Command.
See Appendix at AFA6 - AFA38
for the status reports for the FOIA Requests listing the Case Number, Center,
and Location for each one.
6. The
organization most likely to be involved in the X-37B project is the Air Force
Research Laboratory (AFRL). http://www.af.mil/information/factsheets/factsheet.asp?id=148
This is what they say about
their Air Vehicles Directorate.
Air Vehicles Directorate -- With headquarters at
Wright-Patterson AFB,
Unfortunately, AFRL is not on the Locations list so
you cannot make a request to AFRL.
This is what we have learned
so far. If you are a Federal Agency (such as USAF) and you are subject to the
Freedom of Information Act, and you want to keep some of your activities out of
the reach of the Freedom of Information Act you:
1. Set up a system that requires Requestors send
a separate request to each location.
2. Leave the department to be protected off the
list.
That is what USAF has done with
AFRL.
7. Later
that day on Monday (April 26) Margolin received a phone call from someone who
identified himself as Technical Sergeant Kennerly.
He said he had noticed that
Margolin had filed several FOIA requests that appeared to be identical, and
were they in fact identical?
Margolin said, “yes”, because
the USAF FOIA Web site requires that a separate request be made to each
location.
Then Margolin explained to
him the basics of Synthetic Vision, and then Technical Sergeant Kennerly said he
had some other things he had to do.
8. On
Tuesday Morning, April 27, 2010 Margolin received an email from Darrin Booher
(“Booher”), a FOIA Analyst at Wright-Patterson. In it he denied Margolin’s
request for a fee waiver because:
"There
is no contribution to an understanding of the subject by the general public,
but rather a small segment of interested persons. Requestor doesn't appear to
have the capability to, or intention to, disseminate this information to the
general public. Furthermore, there is no significant contribution to the public
if it were widely released. Therefore, the request for a waiver of fees is
denied."
Booher gave Margolin until
April 30 to indicate how much money he was willing to pay.
See Appendix at AFA52.
Booher’s statements are
insulting and arrogant, especially where he says,
Requestor
doesn't appear to have the capability to, or intention to, disseminate this
information to the general public.
The Secretary of the Air
Force is invited to read Margolin’s article/blog How the United States Air Force Plays the Shell Game with the Freedom
of Information Act and How They Treat Independent Inventors at Margolin’s
Web site http://www.jmargolin.com/usaf/usaf_web.htm
.
The most current version is
reproduced in Appendix at AFA39.
As FOIA Analyst at
Wright-Patterson, Booher represents USAF so Margolin must assume Booher’s
statements represent USAF’s official position.
9. Margolin called Technical Sergeant Kennerly
and told him of the Booher email.
Technical Sergeant Kennerly
said to ignore it, that Margolin’s FOIA request was going to be handled by the
Pentagon. He also asked him to forward him a copy of the Booher email, which he
did. See Appendix at AFA54.
Nonetheless, Margolin
responded to Booher. See Appendix at AFA57.
Booher responded by closing Margolin’s
FOIA request without responding to his email. See Appendix at AFA62.
As the time Margolin did not
think it was a big deal, just the actions of a nasty civilian government
bureaucrat. After all, Technical Sergeant Kennerly had told Margolin that his
FOIA request was going to be handled by the Pentagon.
In the Air Force, the rank of
Technical Sergeant is a big deal.
From Wikipedia (http://en.wikipedia.org/wiki/Technical_Sergeant)
Technical
Sergeant, or Tech Sergeant, is the sixth enlisted rank (E-6) in the U.S. Air
Force, just above Staff Sergeant and below Master Sergeant. A technical
sergeant is a non-commissioned officer and abbreviated as TSgt. Official terms
of address are "Technical Sergeant" or "Sergeant", although
many use "Tech Sergeant".
Within
the enlisted Air Force, promotion to TSgt has historically been the second most
difficult rank to achieve (only the rank of Senior Master Sergeant, capped by
Federal law, has lower promotion rates) and is the most difficult promotion
most career Air Force members achieve. To be considered for a promotion to
Technical Sergeant, a Staff Sergeant must have 6 years' time in service and 24
months time in grade, however, 10–12 years time in service is normally when
this grade is reached. Technical Sergeants provide technical mentorship to
junior enlisted members in preparation for entry into the senior noncommissioned
tier and promotion to the rank of Master Sergeant.
With Technical Sergeant
Kennerly handling the matter, what could possibly go wrong?
Margolin had correspondence
from FOIA officers in other locations.
10. There was Sherrie Crochunis from Peterson
AFB:
Mr.
Margolin,
I
received three identical FOIA requests for Patrick AFB and I just want to
confirm that there should only be one request. I will forward one request
(2010-04191-F) onto Patrick AFB for processing and assume the other two (2010-04192-F &
2010-04193-F) are duplicates and close them out on 28 April, if I don't hear
otherwise from you.
Thank
you,
Sherrie
Crochunis
AFSPC FOIA & Privacy Act Manager
See Appendix at AFA63.
11. Margolin received an email from Shelly
Valliere, Wing FOIA/PA Manager at Patrick.
She did not have a problem granting Margolin a fee waiver. Then she kicked it upstairs.
The
SAF FOIA office at the Pentagon will respond to your FOIA request (reference:
Case No. 2010-04186-F). Therefore, we have closed Case No. 2010-04191-F here at
Patrick AFB. All future inquiries/correspondence concerning Case No.
2010-04186-F should come from that office.
See Appendix at AFA74.
(Margolin has been told that
“SAF” is “Secretary of the Air Force.”)
12. Margolin received an email from Pennie Carlo,
Pubs & Forms Manager, AFRL/RIOI. This appears to be the elusive AFRL but
how this relates to Mr. Booher, FOIA Analyst at Wright-Patterson is unknown.
See Appendix at AFA82 -
AFA111.
It looked like it was going
to be productive, but ends with Ms. Carlo kicking it upstairs to Headquarters.
(Appendix at AFA111)
Upon
transfer of your case #2010-04190-F, we were informed that this is a duplicate
of case #2010-04842-F which is already being handled by HAF/IMIO. For this
reason we will close case #2010-04190-F at the Rome FOIA office.
13. This is the response Margolin received from
the Pentagon on June 10, 2010 (Appendix at AFA3):
Dear Mr. Margolin
This is in response to your April 26, 2010,
Freedom of Information Act request for information relating to the use of
Synthetic Vision and various U.S. Patents.
The Office of The General Counsel,
Intellectual Property Office conducted a proper search for records relating to
Items 2 and 5 of your request; however, no information was found. Therefore, a
no records determination was made.
Should you decide that an appeal to this
decision is necessary, you must write to the Secretary of the Air Force, Thru:
HAF/IMIO (FOIA), 1000 Air Force Pentagon,
Additionally, we requested assistance from
the Air Force Historical Research Agency (AFHRA) and the Air Force Flight Test
Center for Item 1 with negative results. AFHRA suggest you try NASA, if you
have not done so already.
Please contact the undersigned at (703)
693-2736 should you have any questions and refer to case #2010-04186-F. There
are no fees associated with the processing of this request in this instance.
Sincerely
Signed by ESPINAL.JOHN.
M.1184810375
JOHN M. ESPINAL
FOIA Disclosure Officer
Note that this only
applies to Case 2010-04186-F
Case Number: 2010-04186-F
Center:
HAF: Headquarters Air Force
Location:
HAF AF Headquarters DC
It
does not apply to any of the other ones, so it does not address departments
such as AFRL which is the most likely suspect for having documents related to
the X-37B project.
The USAF blew Margolin off. Technical
Sergeant Kennerly’s role in this is not exactly known but is substantial.
14. This FOIA request
was only about the use of synthetic vision in the X-37B. Margolin did not ask about
the secret stuff, like what is the X-37B for? Is the cargo bay for bringing
stuff up? Is it for bringing stuff down? Is it for delivering weapons? All it
has to do is drop titanium rods with a tapered front and small controllable
vanes at the back for maneuvering. Maybe with an ablative coating. The kinetic
energy delivered from orbit would be devastating. Is it for anti-satellite
activities? Being about to pull up right next to LEO and MEO satellites makes
disabling a satellite easier and less detectable than firing something from the
ground. Perhaps USAF could put out the cover story that the purpose of the X-37B
is to investigate the feasibility of in-orbit refueling of satellites. They
could maneuver it wherever they wanted without being accused of having a
nefarious purpose. It wouldn’t violate any Space Treaties. It would be a benign
and peaceful use.
Margolin has not asked
about the use of Synthetic Vision in the F-22 and F-35, or the Common Ground
Stations for the Predator and Global Hawk UAVs.
Conclusion
USAF has created a
cumbersome method of implementing its duties under the Freedom of Information
Act by requiring a request be made separately to each location.
Then it complains
when identical requests are made to a number of locations.
Then it plays the
Shell Game so it can say it does not have responsive documents.
USAF’s
rights under 5 U.S.C. § 552(a)(1) do not relieve it of its duties
under 5 U.S.C. §
552(a)(2).
USAF has applied 5
U.S.C. §
552(a)(4)(A)(iii)
inconsistently and in an arbitrary, capricious, and insulting manner.
The
purpose of the Freedom of Information Act is to allow citizens to understand
how their government works.
By
gaming the Freedom of Information Act, USAF has shown how Government works, but
not in the way the Freedom of Information Act intends.
Respectfully,
Dated: June 29, 2010
/Jed Margolin/
Jed Margolin
1981 Empire Rd.
775-847-7845