Case Detail

FOIA Project Annotation: Judge Barbara Rothstein has ruled that NASA must provide access to records related to temperature data correction and emails received by Dr. Gavin Schmidt to the Competitive Enterprise Institute. CEI made three FOIA requests concerning the temperature data correction made by the Goddard Institute of Space Studies in response to the discovery by statistician Stephen McIntyre that NASA had been overstating temperatures in the United States since 2000, another concerning the processing of that request, and the third for correspondence sent or received by Schmidt, a professor at Columbia University currently working as a physical scientist at GISS, concerning contributions made by Schmidt to the blog RealClimate.org. When NASA failed to respond to the requests after two years, NASA's Inspector General investigated the delay prompted by a letter from two Senators. The IG found the delay was caused by "insufficient staffing in the Goddard FOIA office, inadequate oversight of Goddard's FOIA procedures, and lack of management attention to issues identified by the FOIA office." In December, 2009, the agency responded to the requests with an "Initial Determination on Partial Response." CEI appealed the partial response in January 2010 and NASA issued a final determination in March 2010 on all three requests. The agency disclosed about 2400 pages altogether. NASA claimed CEI had failed to exhaust its administrative remedies because it did not appeal the agency's final determination. But Rothstein found that CEI's appeal of the partial determination satisfied the exhaustion requirement because "NASA had the 'opportunity to consider the very issue' that CEI raises in this action; namely, the adequacy of the search and the adequacy of the production. Therefore, the agency had the opportunity to apply its expertise to the matter and to develop a factual record." She added that "if the agency wanted an opportunity to review its response further, it should have declined to accept and process CEI's appeal." CEI challenged the adequacy of the search, contending the agency should have disclosed what was referred to as the "Steve" directory. NASA claimed the "primary" files in the "Steve" directory "are only intelligible if read by a computer program or a commercial visualization tool" and that the CEI request had not asked for computer programs and data files. However, Rothstein noted that "because CEI's requests broadly seek 'records' and 'other relevant covered material' related to changes made to the temperature data, the requests are 'reasonably susceptible to the broader reading' that the requested records include computer programs and data files related to the temperature revisions." She indicated that "the FOIA's definition of 'record' includes information maintained in electronic format. Additionally, the fact that the directory is only intelligible to a computer does not remove the directory from the category of 'agency records.'" She observed that "although CEI had access to visual representations of this data through the charts and graphs posted on public websites, these representations are not the same as the data used to create them." Rothstein then found that emails sent to Schmidt at his Columbia University email account were not subject to disclosure because they did not qualify as agency records since the agency did not control their use or retention. She indicated that "emails located only in Dr. Schmidt's @columbia.edu email account are personal materials that the agency was not required to search." But she added that "of course, not all of Dr. Schmidt's emails from or to his @columbia.edu email address are personal materials exempt from being searched. But the @columbia.edu emails that were agency records (those emails that were exchanged between Dr. Schmidt's @columbia.edu account and a NASA email account) were captured by the agency's search of employee email accounts. . . Accordingly, NASA's search was reasonable even though it did not search Dr. Schmidt's @columbia.edu email domain, because emails located only on that domain are personal materials." NASA contended that none of Schmidt's emails that mentioned RealClimate were agency records. Rothstein disagreed. She noted that "any email that was sent to or from a NASA email account is within the agency's control" and added that "the record contains concrete evidence that the agency used such emails to conduct agency business. This makes them agency records."
Issues: Agency Record

Date Filed	Doc #	Docket Text
2010-05-27	1	COMPLAINT against NATIONAL AERONAUTICS AND SPACE ADMINISTRATION ( Filing fee $ 350, receipt number 4616030005) filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit 1 to Exh F, # 8 Exhibit 2 to Exh F, # 9 Exhibit 3 to Exh F, # 10 Exhibit 4 to Exh F, # 11 Exhibit 5 to Exh F, # 12 Exhibit 6 to Exh F, # 13 Exhibit 7 to Exh F, # 14 Exhibit 8 to Exh F, # 15 Exhibit 9 to Exh F, # 16 Exhibit 10 to Exh F, # 17 Exhibit 11 to Exh F, # 18 Exhibit 12 to Exh F, # 19 Exhibit 13 to Exh F, # 20 Exhibit 14 to Exh F, # 21 Exhibit 15 to Exh F, # 22 Exhibit 16 to Exh F, # 23 Exhibit 17 to Exh F, # 24 Exhibit 18 to Exh F, # 25 Exhibit 19 to Exh F, # 26 Exhibit 20 to Exh F, # 27 Exhibit 21 to Exh F, # 28 Exhibit 22 to Exh F, # 29 Exhibit 23 to Exh F, # 30 Exhibit 24 to Exh F, # 31 Exhibit 25 to Exh F, # 32 Exhibit 26 to Exh F, # 33 Exhibit 27 to Exh F, # 34 Exhibit 28 to Exh F, # 35 Exhibit 29 to Exh F, # 36 Exhibit 30 to Exh F, # 37 Exhibit 31 to Exh F, # 38 Exhibit 32 to Exh F, # 39 Exhibit 33 to Exh F, # 40 Exhibit 34 to Exh F, # 41 Exhibit 35 to Exh F, # 42 Exhibit 36 to Exh F, # 43 Exhibit 37 to Exh F, # 44 Exhibit 38 to Exh F, # 45 Exhibit 39 to Exh F, # 46 Exhibit 40 to Exh F, # 47 Exhibit 41 to Exh F, # 48 Exhibit 42 to Exh F, # 49 Exhibit 43 to Exh F, # 50 Exhibit 44 to Exh F, # 51 Exhibit 45 to Exh F, # 52 Exhibit 46 to Exh F, # 53 Exhibit 47 to Exh F, # 54 Exhibit 48 to Exh F, # 55 Exhibit 49 to Exh F, # 56 Exhibit 50 to Exh F, # 57 Exhibit 51 to Exh F, # 58 Exhibit 52 to Exh F, # 59 Exhibit 53 to Exh F, # 60 Exhibit 54 to Exh F, # 61 Exhibit 55 to Exh F, # 62 Exhibit 56 to Exh F, # 63 Exhibit 57 to Exh F, # 64 Exhibit 58 to Exh F, # 65 Exhibit 59 to Exh F, # 66 Exhibit 60 to Exh F, # 67 Exhibit 61 to Exh F, # 68 Exhibit 62 to Exh F, # 69 Exhibit 63 to Exh F, # 70 Exhibit 64 to Exh F, # 71 Exhibit 65 to Exh F, # 72 Exhibit 66 to Exh F, # 73 Exhibit G, # 74 Exhibit H, # 75 Exhibit I, # 76 Civil Cover Sheet)(zjf, ) (Entered: 05/27/2010)
2010-05-27		SUMMONS (3) Issued as to NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, U.S. Attorney and U.S. Attorney General. (jf, ) (Entered: 05/27/2010)
2010-05-27	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by COMPETITIVE ENTERPRISE INSTITUTE (jf, ) (Entered: 05/27/2010)
2010-06-04	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 05/27/2010. (Tulumello, Andrew) (Entered: 06/04/2010)
2010-06-04	4	SUMMONS Returned Executed by COMPETITIVE ENTERPRISE INSTITUTE. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION served on 5/27/2010, answer due 6/28/2010. (Tulumello, Andrew) (Entered: 06/04/2010)
2010-06-25	5	NOTICE of Appearance by Robin Michelle Meriweather on behalf of NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (Meriweather, Robin) (Entered: 06/25/2010)
2010-06-25	6	MOTION for Extension of Time to File Answer re 1 Complaint,,,,,,,, by NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (Meriweather, Robin) (Entered: 06/25/2010)
2010-06-28	7	ANSWER to 1 Complaint,,,,,,,, by NATIONAL AERONAUTICS AND SPACE ADMINISTRATION.(Straus, Julie) (Entered: 06/28/2010)
2010-06-28	8	NOTICE OF SUBSTITUTION OF COUNSEL by Julie Straus on behalf of NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Substituting for attorney Robin Michelle Meriweather (Straus, Julie) (Entered: 06/28/2010)
2010-06-30	9	ORDER setting the initial scheduling conference for July 21, 2010 at 10:15 a.m. See Order for additional information. Signed by Judge Richard W. Roberts on 06/30/2010. (DCL) (Entered: 06/30/2010)
2010-06-30		MINUTE ORDER: It is hereby ORDERED that, in light of the defendant's answer 7 , the defendant's motion 6 for an extension of time to file an answer be, and hereby is, DENIED as moot. Issued by Judge Richard W. Roberts on 06/30/2010. (DCL) (Entered: 06/30/2010)
2010-06-30		Set/Reset Hearings: Initial Scheduling Conference set for 7/21/2010 at 10:15 AM in Courtroom 9 before Judge Richard W. Roberts. (hs) (Entered: 06/30/2010)
2010-07-13	10	Consent MOTION for Order to Reschedule Initial Scheduling Conference by COMPETITIVE ENTERPRISE INSTITUTE (Attachments: # 1 Text of Proposed Order)(Tulumello, Andrew) (Entered: 07/13/2010)
2010-07-13		MINUTE ORDER: It is hereby ORDERED that the plaintiff's consent motion 10 for a continuance of the initial scheduling conference be, and hereby is, GRANTED. The initial scheduling conference is RESCHEDULED to occur at 4:15 p.m. on July 29, 2010. Issued by Judge Richard W. Roberts on 07/13/2010. (DCL) (Entered: 07/13/2010)
2010-07-14		Set/Reset Hearings: Initial Scheduling Conference set for 7/29/2010 at 04:15 PM in Courtroom 9 before Judge Richard W. Roberts. (hs) (Entered: 07/14/2010)
2010-07-20	11	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Samuel Everett Dewey, :Firm- Gibson, Dunn & Crutcher LLP, :Address- 1050 Connecticut Ave., N.W. Washington, D.C. 20036. Phone No. - (202) 887-3628. Fax No. - (202) 530-9653 by COMPETITIVE ENTERPRISE INSTITUTE (Attachments: # 1 Declaration of Samuel Everett Dewey, # 2 Text of Proposed Order)(Tulumello, Andrew) (Entered: 07/20/2010)
2010-07-22	12	MEET AND CONFER STATEMENT. (Tulumello, Andrew) (Entered: 07/22/2010)
2010-07-29		NOTICE: Initial Scheduling Hearing currently set for today at 4:15pm is hereby cancelled. Scheduling Order to issue via chambers. (hs) (Entered: 07/29/2010)
2010-08-02	13	SCHEDULING ORDER: Defendant's dispositive motion due September 20, 2010; plaintiff's opposition due October 20, 2010; defendant's reply due November 4, 2010. See Order for additional information. Signed by Judge Richard W. Roberts on 07/30/2010. (DCL) (Entered: 08/02/2010)
2010-08-02		Set Deadlines: Defendant's Dispositive Motions due by 9/20/2010, Response to Dispositive Motions due by 10/20/2010, Defendant's Reply to Dispositive Motions due by 11/4/2010. (hs) (Entered: 08/02/2010)
2010-08-03	14	ERRATA by COMPETITIVE ENTERPRISE INSTITUTE 11 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Samuel Everett Dewey, :Firm- Gibson, Dunn & Crutcher LLP, :Address- 1050 Connecticut Ave., N.W. Washington, D.C. 20036. Phone No. - (202) 887-3628. Fax No. - (202) 530-9653 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Samuel Everett Dewey, :Firm- Gibson, Dunn & Crutcher LLP, :Address- 1050 Connecticut Ave., N.W. Washington, D.C. 20036. Phone No. - (202) 887-3628. Fax No. - (202) 530-9653 filed by COMPETITIVE ENTERPRISE INSTITUTE. (Tulumello, Andrew) (Entered: 08/03/2010)
2010-09-07		MINUTE ORDER: It is hereby ORDERED that the plaintiff's motion 11 be, and hereby is, GRANTED, and Samuel Everett Dewey is admitted to appear pro hac vice. Issued by Judge Richard W. Roberts on 09/07/2010. (DCL) (Entered: 09/07/2010)
2010-09-20	15	MOTION for Summary Judgment by NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (Attachments: # 1 Statement of Facts Statement of Material Facts as to Which There is no Genuine Issue, # 2 Memorandum in Support Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment, # 3 Declaration Declaration of Larry D. Travis, # 4 Text of Proposed Order Proposed Order)(Straus, Julie) (Entered: 09/20/2010)
2010-09-20	16	ERRATA by NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 15 MOTION for Summary Judgment filed by NATIONAL AERONAUTICS AND SPACE ADMINISTRATION. (Attachments: # 1 Memorandum in Support Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment)(Straus, Julie) (Entered: 09/20/2010)
2010-10-19	17	NOTICE of Consent to Alter Deadlines for Dispositive Motions by COMPETITIVE ENTERPRISE INSTITUTE (Tulumello, Andrew) (Entered: 10/19/2010)
2010-10-27	18	NOTICE of Consent to Alter Deadlines for Dispositive Motions by COMPETITIVE ENTERPRISE INSTITUTE (Tulumello, Andrew) (Entered: 10/27/2010)
2010-11-03	19	(ENTERED IN ERROR.....DOCUMENT REFILED AS DOCKET ENTRY NO. 20 ). . . . .Memorandum in opposition to re 15 MOTION for Summary Judgment filed by COMPETITIVE ENTERPRISE INSTITUTE. (Tulumello, Andrew) Modified on 11/4/2010 (td, ). (Entered: 11/03/2010)
2010-11-03	20	Memorandum in opposition to re 15 MOTION for Summary Judgment filed by COMPETITIVE ENTERPRISE INSTITUTE. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order, # 3 Declaration of Samuel Dewey, # 4 Exhibit A to Dewey Declaration, # 5 Exhibit B to Dewey Declaration, # 6 Exhibit C to Dewey Declaration, # 7 Exhibit D to Dewey Declaration, # 8 Exhibit E to Dewey Declaration, # 9 Exhibit F to Dewey Declaration Part 1, # 10 Exhibit F to Dewey Declaration Part 2, # 11 Exhibit F to Dewey Declaration Part 3, # 12 Exhibit F to Dewey Declaration Part 4, # 13 Exhibit G to Dewey Declaration, # 14 Exhibit H to Dewey Declaration, # 15 Exhibit I to Dewey Declaration, # 16 Exhibit J to Dewey Declaration, # 17 Exhibit K to Dewey Declaration, # 18 Exhibit L to Dewey Declaration, # 19 Exhibit M to Dewey Declaration, # 20 Exhibit N to Dewey Declaration, # 21 Exhibit O to Dewey Declaration, # 22 Exhibit P to Dewey Declaration, # 23 Exhibit Q to Dewey Declaration, # 24 Exhibit R to Dewey Declaration, # 25 Exhibit S to Dewey Declaration, # 26 Exhibit T to Dewey Declaration, # 27 Exhibit U to Dewey Declaration, # 28 Exhibit V to Dewey Declaration, # 29 Exhibit W to Dewey Declaration, # 30 Exhibit X to Dewey Declaration, # 31 Exhibit Y to Dewey Declaration, # 32 Exhibit Z to Dewey Declaration, # 33 Exhibit AA to Dewey Declaration, # 34 Exhibit BB to Dewey Declaration, # 35 Exhibit CC to Dewey Declaration, # 36 Exhibit DD to Dewey Declaration, # 37 Exhibit EE to Dewey Declaration)(Tulumello, Andrew) (Entered: 11/03/2010)
2010-11-15	21	NOTICE Consent Notice Modifying Scheduling Order by NATIONAL AERONAUTICS AND SPACE ADMINISTRATION re 13 Scheduling Order, 17 Notice (Other), 18 Notice (Other) (Straus, Julie) (Entered: 11/15/2010)
2010-12-02	22	REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by NATIONAL AERONAUTICS AND SPACE ADMINISTRATION. (Attachments: # 1 Declaration Supplemental Declaration of Larry D. Travis)(Straus, Julie) (Entered: 12/02/2010)
2011-08-19	23	NOTICE OF SUBSTITUTION OF COUNSEL by Kristina Ann Wolfe on behalf of NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Substituting for attorney Julie Straus (Wolfe, Kristina) (Entered: 08/19/2011)
2013-04-15	24	Case reassigned by consent to Judge Barbara Jacobs Rothstein. Judge Richard W. Roberts no longer assigned to the case. (gt, ) (Entered: 04/15/2013)
2013-04-16	25	ENTERED IN ERROR.....NOTICE OF SUPPLEMENTAL AUTHORITY by COMPETITIVE ENTERPRISE INSTITUTE (Tulumello, Andrew) Modified on 4/17/2013 (znmw, ). (Entered: 04/16/2013)
2013-04-17		NOTICE OF ERROR re 25 NOTICE OF SUPPLEMENTAL AUTHORITY; emailed to atulumello@gibsondunn.com, cc'd 3 associated attorneys -- The PDF file you docketed contained errors: 1. Please refile document, 2. Entered in error; Incorrect format (Letter); Refile in accordance with Local Rules. (znmw, ) (Entered: 04/17/2013)
2013-04-17	26	NOTICE OF SUPPLEMENTAL AUTHORITY by COMPETITIVE ENTERPRISE INSTITUTE (Attachments: # 1 Appendix)(Tulumello, Andrew) (Entered: 04/17/2013)
2013-04-30	27	STANDING ORDER. Signed by Judge Barbara Jacobs Rothstein on 04/30/2013. (lcbjr4, ) (Entered: 04/30/2013)
2013-10-29	28	NOTICE OF SUPPLEMENTAL AUTHORITY by COMPETITIVE ENTERPRISE INSTITUTE (Attachments: # 1 Exhibit)(Tulumello, Andrew) (Entered: 10/29/2013)
2013-10-30	29	MEMORANDUM OPINION granting in part and denying in part 15 Motion for Summary Judgment. Signed by Judge Barbara Jacobs Rothstein on 10/30/13. (Reed, Heather) Modified event title on 10/31/2013 (znmw, ). (Entered: 10/30/2013)
2013-10-30	30	ORDER re 15 MOTION for Summary Judgment filed by NATIONAL AERONAUTICS AND SPACE ADMINISTRATION. Signed by Judge Barbara Jacobs Rothstein on 10/30/13. (Reed, Heather) (Entered: 10/30/2013)
2013-11-13	31	NOTICE of Proposed Schedule by NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (Wolfe, Kristina) (Entered: 11/13/2013)
2013-11-13		MINUTE ORDER: Per the parties' joint notice of proposed schedule [Dkt. No. 31], Defendant shall produce responsive documents located in the "Steve" directory, or alternatively file a Vaughn index asserting FOIA exemptions, on or before January 10, 2014. In addition, Defendant shall produce responsive @realclimate.org emails or file a Vaughn index on or before February 7, 2014. Signed by Judge Barbara Jacobs Rothstein on 11/13/13. (Reed, Heather) (Entered: 11/13/2013)
2015-01-07	32	ORDER to Show Cause Why Case Should Not Be Dismissed for Failure to Prosecute. Signed by Judge Barbara Jacobs Rothstein on 1/7/15. (Reed, Heather) (Entered: 01/07/2015)
2015-01-09		Set/Reset Deadlines: Plaintiff's Response to Show Cause Order due by 1/21/2015; Defendant's Response due by 1/28/2015; Plaintiff's Reply due by 2/2/2015; (tth) (Entered: 01/09/2015)
2015-01-21	33	NOTICE of Voluntary Dismissal by COMPETITIVE ENTERPRISE INSTITUTE (Tulumello, Andrew) (Entered: 01/21/2015)
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