Case Detail

FOIA Project Annotation: Judge Tanya Chutkan has ruled that the National Institute for Standards and Technology properly withheld data modeling analyses of the collapse of WTC 7 in the aftermath of the terrorist attacks on 9/11 under Exemption 3 (other statutes) in response to a request from David Cole. Cole submitted a FOIA request for "the input data and the original analyses for the seated connection at column 79." The search was performed by the Deputy Director of the Building and Fire Research Laboratory and overseen by Catherine Fletcher, NIST's FOIA/Privacy Act Officer. The agency located 35,394 pages of responsive records but withheld them entirely under 15 U.S.C. § 7306(d) of the National Construction Safety Team Act. The agency also told Cole that there were no segregable records. Cole filed an administrative appeal, which was denied. Cole then filed suit, arguing that the agency had interpreted his request too narrowly. Cole contended that NIST should have read "input data" to mean "information that existed independent of the computer and the modeling and was data taken from paper or other electronic records containing it prior to the modelling being conducted." By contrast, NIST interpreted the request to refer to "the data that was input into the computer models" to drive the models' analysis. Chutkan sided with the agency, noting that "Cole's attempts to reframe his request and appeal at this stage are unavailing, and the court finds that NIST's interpretation of the scope of Cole's FOIA request was reasonable. If Cole seeks information other than the data that was fed directly into NIST's models, he may submit a new FOIA request identifying those records with requisite particularity." Turning to the Exemption 3 claim, Chutkan pointed out that "Fletcher explained that the specific detailed models of WTC 7 are beyond the current state of public knowledge and therefore 'if the files were disclosed, it would publicly disseminate tools that could be used to predict the collapse of a building which would provide technical instruction on how to more effectively devise schemes to destroy large buildings.'" Cole argued that the agency could have provided a screenshot of the data that would not disclose any protected information. Chutkan rejected that claim, noting instead that "the computer modelling data used in NIST's investigation of the WTC 7 collapse was exempt under the NCSTA Section (d) and FOIA exemption 3; despite Cole's argument to the contrary, the agency was under no obligation to create entirely new records in order to remove some data from this exemption."
Issues: Exemption 3 - Statutory prohibition of disclosure, Request - Specificity

Date Filed	Doc #	Docket Text
2019-04-24	1	COMPLAINT for Injunctive Relief against WALTER G. COPAN Director, National Institute of Technology ( Filing fee $ 400 receipt number 0090-6078146) filed by DAVID COLE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for service on US Attorney, # 3 Summons for service on Attorney General, # 4 Summons for service on NIST Director Copan)(Clifford, John) (Attachment 1 replaced on 4/24/2019) (zef, ). (Entered: 04/24/2019)
2019-04-24		Case Assigned to Judge Tanya S. Chutkan. (zef, ) (Entered: 04/24/2019)
2019-04-24	2	ENTERED IN ERROR.....SUMMONS (3) Issued Electronically as to WALTER G. COPAN, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and Consent)(zef, ) Modified on 4/26/2019 (zef, ). (Entered: 04/24/2019)
2019-04-26		NOTICE OF CORRECTED DOCKET ENTRY: re 2 Summons Issued Electronically as to AUSA was entered in error and counsel was instructed to refile with summons for FOIA complaints. (zef, ) (Entered: 04/26/2019)
2019-04-26		SUMMONS Not Issued as to WALTER G. COPAN, NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY (znmw) (Entered: 05/07/2019)
2019-05-08	3	REQUEST FOR SUMMONS TO ISSUE filed by DAVID COLE. (Attachments: # 1 Summons, # 2 Summons)(Clifford, John) (Entered: 05/08/2019)
2019-05-09	4	SUMMONS (3) Issued Electronically as to WALTER G. COPAN, U.S. Attorney and U.S. Attorney General (ztd) (Entered: 05/09/2019)
2019-07-18	5	NOTICE of Appearance by Paul Cirino on behalf of All Defendants (Cirino, Paul) (Entered: 07/18/2019)
2019-08-05	6	Consent MOTION for Extension of Time to File Answer re 1 Complaint, by WALTER G. COPAN, NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY (Attachments: # 1 Text of Proposed Order)(Cirino, Paul) . (Entered: 08/05/2019)
2019-08-06		MINUTE ORDER: Defendants' Consent Motion to Extend Time to Answer Complaint 6 is GRANTED. Defendants shall answer or otherwise respond to the Complaint on or before September 13, 2019. Signed by Judge Tanya S. Chutkan on 8/6/2019. (lctsc3) (Entered: 08/06/2019)
2019-08-06		Set/Reset Deadlines: Defendants' Answer or Responsive Pleading due by 9/13/2019. (zjd) (Entered: 08/06/2019)
2019-09-13	7	ANSWER to Complaint by WALTER G. COPAN, NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY.(Cirino, Paul) (Entered: 09/13/2019)
2019-09-22		MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. The requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil procedure appear to be inapplicable. IT IS HEREBY ORDERED that the parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule shall address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when either party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a joint status report that addresses these issues no later than 10/31/19. The joint status report shall be accompanied by a proposed order. Signed by Judge Tanya S. Chutkan on 9/22/19. (DJS) (Entered: 09/22/2019)
2019-09-23		Set/Reset Deadlines: Joint Status Report due by 10/31/2019. (tb) (Entered: 09/23/2019)
2019-10-31	8	Joint STATUS REPORT by WALTER G. COPAN, NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY. (Attachments: # 1 Text of Proposed Order)(Cirino, Paul) (Entered: 10/31/2019)
2019-11-01		MINUTE ORDER: Having considered the parties' joint status report 8 , it is hereby ordered that Defendants' Motion for Summary Judgment shall be filed on or before December 21, 2019, and shall include a Vaughn Index. Plaintiff's combined Cross-Motion/Opposition shall be filed on or before February 4, 2020. Defendants' combined Opposition/Reply shall be filed on or before March 4, 2020. Plaintiff's Reply shall be filed on or before March 18, 2020. Signed by Judge Tanya S. Chutkan on 11/1/19. (DJS) (Entered: 11/01/2019)
2019-11-01		Set/Reset Deadlines: Cross Motion due by 2/4/2020. Response to Cross Motion due by 3/4/2020. Reply to Cross Motion due by 3/18/2020. Summary Judgment motion due by 12/21/2019. Response to Motion for Summary Judgment due by 2/4/2020. Reply to Motion for Summary Judgment due by 3/4/2020. (tb) (Entered: 11/01/2019)
2019-11-07	9	ERRATA by WALTER G. COPAN, NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY. (Cirino, Paul) (Entered: 11/07/2019)
2019-12-20	10	MOTION for Summary Judgment by WALTER G. COPAN, NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration of Catherine S. Fletcher (with exhibits), # 4 Text of Proposed Order)(Cirino, Paul) (Entered: 12/20/2019)
2020-02-04	11	ENTERED IN ERROR.....REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by DAVID COLE. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6)(Clifford, John) Modified on 2/5/2020 (eg). (Entered: 02/04/2020)
2020-02-04	12	MOTION for Summary Judgment by DAVID COLE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6)(Clifford, John) (Entered: 02/04/2020)
2020-02-04	13	MOTION for Discovery by DAVID COLE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4)(Clifford, John) (Entered: 02/04/2020)
2020-02-04	14	RESPONSE re 10 MOTION for Summary Judgment filed by DAVID COLE. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6)(Clifford, John) (Entered: 02/04/2020)
2020-02-05		NOTICE OF CORRECTED DOCKET ENTRY: re 11 Reply to opposition to Motion, was entered in error at the request of counsel. (See Docket Entry 14 to view document). (eg) (Entered: 02/05/2020)
2020-03-03	15	ENTERED IN ERROR. . . . .MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Mick G. Harrison, Filing fee $ 100, receipt number ADCDC-6884720. Fee Status: Fee Paid. by DAVID COLE (Attachments: # 1 Declaration of Counsel Mick Harrison)(Harrison, Mick) Modified on 3/4/2020 (ztd). (Entered: 03/03/2020)
2020-03-04		NOTICE OF ERROR re 15 Motion for Leave to Appear Pro Hac Vice; emailed to mickharrisonesq@gmail.com, cc'd 5 associated attorneys -- The PDF file you docketed contained errors: 1. Please refile document, 2. The sponsoring attorney must electronically file this document. (ztd, ) (Entered: 03/04/2020)
2020-03-04	16	Memorandum in opposition to re 13 MOTION for Discovery , 12 MOTION for Summary Judgment filed by WALTER G. COPAN, NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY. (Attachments: # 1 2nd Declaration of Catherine S. Fletcher, # 2 Statement of Facts, # 3 Text of Proposed Order)(Cirino, Paul) (Entered: 03/04/2020)
2020-03-04	17	REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by WALTER G. COPAN, NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY. (Attachments: # 1 2nd Declaration of Catherine S. Fletcher, # 2 Statement of Facts, # 3 Text of Proposed Order)(Cirino, Paul) (Entered: 03/04/2020)
2020-03-12	18	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Mick G. Harrison, Filing fee $ 100, receipt number ADCDC-6914811. Fee Status: Fee Paid. by DAVID COLE (Attachments: # 1 Declaration of Counsel Mick Harrison)(Clifford, John) (Entered: 03/12/2020)
2020-03-18	19	REPLY to opposition to motion re , 12 MOTION for Summary Judgment filed by DAVID COLE. (Harrison, Mick) Modified linkage on 3/19/2020 (ztd). (Entered: 03/18/2020)
2020-10-23		MINUTE ORDER: Granting 47 Motion for Leave to Appear Pro Hac Vice. DAVID COLE 18 is hereby admitted pro hac vice to appear in this matter on behalf of Plaintiff. Pro hac applicants who seek admission more than twice within two years are highly encouraged to become members of the Bar for this court. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for inst ructions . Signed by Judge Tanya S. Chutkan on 10/23/2020. (DJS) (Entered: 10/23/2020)
2020-11-30	20	MEMORANDUM AND OPINION re: Defendants Motion for Summary Judgment 10 ; Plaintiffs Motion for Summary Judgment and Motion for Discovery 12 . Signed by Judge Tanya S. Chutkan on 11/30/2020. (lcac) (Entered: 11/30/2020)
2020-11-30	21	ORDER granting 10 Defendants' Motion for Summary Judgment; denying 12 Plaintiff's Motion for Summary Judgment; denying 13 Plaintiff's Motion for Discovery. This is a final appealable order. Signed by Judge Tanya S. Chutkan on 11/30/2020. (lcac) (Entered: 11/30/2020)
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