Case Detail

FOIA Project Annotation: Judge Trevor McFadden has ruled that the National Science Foundation properly responded to a request from Ali Amiri, a researcher who requested records about why an NSF-funded research project he was working on as a graduate student was cancelled. The NSF search initially yielded ten grant award numbers containing at least one of Amiri's search terms. However, after reviewing the records the FOIA staff concluded that only one of the grant numbers was connected to Amiri's project. The NSF's FOIA processing was delayed during the pandemic, but the agency ultimately disclosed 549 pages. Amiri challenged the adequacy of the agency's search. Amiri complained that the agency should have disclosed more emails. But McFadden pointed out that "NSF's email policy mandates that deletion of 'transitory email' after 180 days, and email from 'non-supervisory personnel, which includes Program Officers,' after three years. Thus, only a limited number of emails exists on eJacket. The agency fully searched that database and, despite agency policy, directed two Program Officers to manually search their individual email accounts for responsive records." Amiri also argued that he should have received records from the NSF Office of Inspector General. McFadden rejected the claim, noting that "OIG operates independently from NSF and 'handles its own records and FOIA requests.' NSF's FOIA Office and staff have no access to OIG records. More, Amiri never directed his FOIA Request to OIG. The agency need not expand it search beyond 'the four corners' of Amiri's request. Amiri appears to acknowledge this point, as he eventually filed a separate FOIA request with OIG." NSF withheld ten pages with redactions under Exemption 5 (privileges), citing the deliberative process privilege, containing written summaries of a scientific review panel's analysis and funding recommendations about a group of proposals. Amiri argued that comments by graduate students should not be privileged because they represented the personal opinions of the individual. However, McFadden noted that "the privilege particularly applies to recommendations from subordinates, regardless of their rank or academic degree." He also agreed that the agency's privilege claims met the foreseeable harm standard. He pointed out that "disclosure of just the recommendations would confuse the public and cast doubt on the public basis for NSF grant decisions." NSF withheld 25 pages in full and 62 pages in part under Exemption 6 (invasion of privacy). Amiri argued that the agency had waived its privacy claims when it inadvertently allowed FedEx access to the records while copying them for disclosure and mailing. McFadden attributed a more innocent cast to the mistake. He pointed out that "more plausibly, a remote FOIA staff member mistakenly assembled unredacted pages. That error was inattentive, but it suggests no wrongdoing or intentionality, particularly given the circumstances and logistical challenges of the FOIA staff's telework." NSF also asked McFadden to order Amiri to return to the agency a document containing personally identifying information that had been disclosed inadvertently. McFadden agreed with the agency. He observed that "many individuals have a strong privacy interest in the unredacted PII and Amiri has not shown that the public should see that information."
Issues: Adequacy - Search, Exemption 5 - Privileges, Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2020-07-21		Initiating Pleading & IFP Application Received on 07/21/2020. A copy of the docket sheet has been mailed to the address of record for the pro se party. (zmc) (Entered: 07/24/2020)
2020-07-21	1	COMPLAINT against NATIONAL SCIENCE FOUNDATION filed by ALI AMIRI. (Attachment: # 1 Exhibit)(zmc) (Entered: 07/24/2020)
2020-07-21	2	MOTION for Leave to Proceed in forma pauperis by ALI AMIRI (zmc) (Entered: 07/24/2020)
2020-07-21	3	PRISONER TRUST FUND ACCOUNT STATEMENT for period of six months by ALI AMIRI (zmc) (Entered: 07/24/2020)
2020-07-30	4	VACATED pursuant to 9 ORDER.....ORDER directing an initial partial filing fee in the amount of $44.37 from Prison Account of ALI AMIRI and granting MOTION for Leave to Proceed In Forma Pauperis (see order for full details). Pro Se party has been notified by first class mail. Signed by Judge James E. Boasberg on 7/30/2020. (adh, ) Modified on 10/6/2020 (hmc). (Entered: 07/31/2020)
2020-07-30		Case Assigned to Judge Trevor N. McFadden. (adh, ) (Entered: 07/31/2020)
2020-07-31	5	STANDING ORDER Establishing Procedures for Cases Before Judge Trevor N. McFadden. The parties are hereby ORDERED to read and comply with the directives in the attached standing order. Signed by Judge Trevor N. McFadden on 7/31/2020. (lctnm2) (Entered: 07/31/2020)
2020-09-15		MINUTE ORDER. The Clerk of Court is hereby directed to issue summonses and cause service to be effected on the National Science Foundation, the United States Attorney General, and the United States Attorney for the District of Columbia. SO ORDERED. Signed by Judge Trevor N. McFadden on 9/15/2020. (lctnm2) (Entered: 09/15/2020)
2020-09-23	6	ENTERED IN ERROR.....SUMMONS (3) Issued as to NATIONAL SCIENCE FOUNDATION, U.S. Attorney and U.S. Attorney General. (zmd) Modified on 9/29/2020 (zmd). (Entered: 09/23/2020)
2020-09-25	7	MOTION to Amend/Correct by ALI AMIRI (ztd); ("Leave to file GRANTED" signed by Judge Trevor N. McFadden on 9/25/2020) (Entered: 09/30/2020)
2020-09-29		NOTICE OF CORRECTED DOCKET ENTRY: re 6 Summons Issued as to AUSA was entered in error and the Deputy Intake Clerk will reissue the three summons. (zmd) (Entered: 09/29/2020)
2020-09-29		SUMMONS (3) REISSUED as to NATIONAL SCIENCE FOUNDATION, and non-parties U.S. Attorney and U.S. Attorney General. (zmd) (Entered: 09/30/2020)
2020-10-05	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/02/2020., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 10/2/2020. (Entered: 10/05/2020)
2020-10-06	9	ORDER granting in part and denying in part 7 Motion to Explain or Amend Applicable Laws and Procedures. See Order for details. Signed by Judge Trevor N. McFadden on 10/6/2020. (hmc) (Entered: 10/06/2020)
2020-11-02	10	ANSWER to 1 Complaint by NATIONAL SCIENCE FOUNDATION.(Brudy-Everett, Kristin) (Entered: 11/02/2020)
2020-11-03		MINUTE ORDER. Before the Court are a complaint and an answer in this FOIA case. It is hereby ORDERED that the parties shall meet and confer and file a Joint Status Report proposing a schedule for proceeding in this matter. The schedule should address, among other things, 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, and a briefing schedule for dispositive motions, if required. The parties shall file the schedule on or before 12/3/2020. Signed by Judge Trevor N. McFadden on 11/3/2020. (lctnm2) (Entered: 11/03/2020)
2020-11-04		Set/Reset Deadlines: Defendant's Status Report due by 12/3/2020. (hmc) Modified on 11/5/2020 (hmc). (Entered: 11/04/2020)
2020-11-04		AMENDED MINUTE ORDER, amending the Minute Order entered on November 3, 2020. Defendant has filed an Answer to Plaintiff's Complaint brought under the Freedom of Information Act (FOIA). FOIA actions are exempt from the requirements of Federal Rule of Civil Procedure 26(f) and Local Civil Rule 16.3. The Defendant shall, on or before 12/3/2020, submit a Report on the status of Plaintiff's request and propose a briefing schedule. SO ORDERED. Signed by Judge Trevor N. McFadden on 11/4/2020. (lctnm2) (Entered: 11/04/2020)
2020-11-05	11	NOTICE of Change of Address by ALI AMIRI (eg) (Entered: 11/06/2020)
2020-12-03	12	Joint STATUS REPORT by NATIONAL SCIENCE FOUNDATION. (Attachments: # 1 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 12/03/2020)
2020-12-04		MINUTE ORDER. Upon consideration of the 12 Joint Status Report, it is hereby ORDERED that the parties' proposed briefing schedule is adopted as follows: the Defendant shall file a motion for summary judgment on or before January 15, 2021; the Plaintiff shall file a combined cross-motion for summary judgment and opposition to the Defendant's motion for summary judgment on or before February 26, 2021; the Defendant shall file a combined opposition to the Plaintiff's cross-motion for summary judgment and a reply in support of their motion for summary judgment on or before March 12, 2021; and the Plaintiff shall file a reply in support of their cross-motion for summary judgment on or before April 9, 2021. SO ORDERED. Signed by Judge Trevor N. McFadden on 12/4/2020. (lctnm2) (Entered: 12/04/2020)
2020-12-04		Set/Reset Deadlines: Defendant's motion for summary judgment due by 1/15/2021. Plaintiff's combined cross-motion for summary judgment and opposition to Defendant's motion for summary judgment due by 2/26/2021. Defendant's combined opposition to Plaintiff's cross-motion for summary judgment and reply in support of their motion for summary judgment due by 3/12/2021. Plaintiff's reply in support of their cross-motion for summary judgment due by 4/9/2021. (hmc) (Entered: 12/04/2020)
2020-12-15		MINUTE ORDER: At the telephone request of Plaintiff, a copy of the 12 Joint Status Report and 7 Motion to Amend/Correct have been sent to his address of record by the Clerk of Court. Plaintiff indicates that he has not, to date, received copies of Defendant's recent filings in this matter. The Court reminds Defendant of its obligations to serve Plaintiff with copies pursuant to Fed. R. Civ. P. 5(a) and (d), particularly because Plaintiff is incarcerated and proceeding pro se without ECF access. The Court notes that there is no indication nor any certificate of service included with Defendant's Answer, ECF No. 10, to show that Plaintiff was served with a copy of that pleading. The Joint Status Report, ECF No. 12, contains a certification that a copy was mailed to Plaintiff at his correct and current address of record, however, the Court advises Defendant to include Plaintiff's inmate identification number, A3201142617, as part of the mailing address and in serving him with copies going forward. SO ORDERED. Signed by Judge Trevor N. McFadden on 12/15/2020. (lctnm2) (Entered: 12/15/2020)
2020-12-29	13	Mail Returned as Undeliverable; Sent to Ali Amiri; Type of Document Returned: 11/3/2020 and 11/4/2020 Minute Orders; Minute Orders have already been resent to Plaintiff's new address: ALLEN PARISH JAIL, P.O. Box 278, 7340 Hwy 26 West, Oberlin, LA 70655. (hmc) (Entered: 12/29/2020)
2021-01-15	14	MOTION for Summary Judgment and Statement of Facts by NATIONAL SCIENCE FOUNDATION (Attachments: # 1 Declaration of Justin Guz, # 2 Exhibit 1 - Defendant's Vaughn Index, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 01/15/2021)
2021-01-19	15	ORDER advising Plaintiff to respond or the Court may deem Defendant's 14 Motion for Summary Judgment conceded. Plaintiff's response is due by February 26, 2021. Signed by Judge Trevor N. McFadden on 1/19/2021. (lctnm2) (Entered: 01/19/2021)
2021-01-21		Set/Reset Deadlines: Plaintiff's response due by 2/26/2021. (hmc) (Entered: 01/21/2021)
2021-01-28		MINUTE ORDER. Plaintiff has left a voicemail with the Court indicating that he has not yet been served with a copy of Defendant's 14 Motion For Summary Judgment. The Court notes that Defendant properly certified that it mailed a copy to Plaintiff at his correct address of record, which also included his inmate identification number. See ECF No. 14 at 34. The Court further notes that it is highly plausible that this mailing is still in transit. Notwithstanding, and in an abundance of caution, the Court hereby ORDERS Defendant to mail an additional courtesy copy of the 14 Motion for Summary Judgment to Plaintiff. Additionally, the Court will MODIFY the existing briefing schedule as follows: Plaintiff's Combined Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment is due on or before 3/26/2021; Defendant's Combined Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in Support of its Motion for Summary Judgment is due on or before 4/30/2021; and Plaintiff's Reply in Support of his Cross-Motion for Summary Judgment is due on or before 5/28/2021. The Court also advises Plaintiff to submit these types of requests by formally submitting a written filing, rather than through attempted ex parte communication with the Court. The Clerk of Court shall mail a copy of this Minute Order to Plaintiff at his address of record. SO ORDERED. Signed by Judge Trevor N. McFadden on 1/28/2021. (lctnm2) (Entered: 01/28/2021)
2021-01-29		Set/Reset Deadlines: Plaintiff's Combined Cross-Motion and Opposition due by 3/26/2021. Defendant's Combined Opposition and Reply due by 4/30/2021. Plaintiff's Reply due by 5/28/2021. (hmc) (Entered: 01/29/2021)
2021-02-25	16	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. NATIONAL SCIENCE FOUNDATION served on 2/24/2021 (eg) (Entered: 03/01/2021)
2021-03-30	17	MOTION to Redact by ALI AMIRI. (eg) (Entered: 04/05/2021)
2021-04-01		MINUTE ORDER. The Court has placed the Defendant's 14 Motion for Summary Judgment under seal because the Defendant informed the Court that an attachment contains private personal information. The Defendant shall file a redacted or sealed version of its motion on or before April 8, 2021. SO ORDERED. Signed by Judge Trevor N. McFadden on 4/1/2021. (lctnm2) (Entered: 04/01/2021)
2021-04-06	18	MOTION for Summary Judgment and Statement of Facts by NATIONAL SCIENCE FOUNDATION. (Attachments: # 1 Declaration of Justin Guz, # 2 Exhibit 1 - Defendant's Vaughn Index, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 04/06/2021)
2021-04-06		MINUTE ORDER denying as moot the Plaintiff's 17 Motion to Redact. The Court has already placed the filing containing the Plaintiff's personal information under seal and ordered the Defendant to file a redacted or sealed version by April 8, 2021. See 4/1/2021 Min. Order. SO ORDERED. Signed by Judge Trevor N. McFadden on 4/6/2021. (lctnm2) (Entered: 04/06/2021)
2021-04-09	19	Cross MOTION for Summary Judgment by ALI AMIRI. (Attachment: # 1 Exhibit)(eg) (Entered: 04/14/2021)
2021-04-09	20	Memorandum in opposition to re 18 MOTION for Summary Judgment and Statement of Facts filed by ALI AMIRI. (See Docket Entry 19 to view document). (eg) (Entered: 04/14/2021)
2021-04-16		MINUTE ORDER. Plaintiff's 19 Combined Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment was due on or before 3/26/2021, but was received by the Court on 4/9/2021 and docketed on 4/14/2021. Given Plaintiff's incarceration, and because his certificate of service attests that he mailed these papers on 3/25/2021, see ECF No. 19 at 26, the Court will accept and consider this filing. The Court will, however, modify the remainder of the existing briefing schedule as follows: Defendant's Combined Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in Support of its Motion for Summary Judgment shall be due on or before 5/14/2021; and Plaintiff's Reply in Support of his Cross-Motion for Summary Judgment shall be due on or before 6/14/2021. The Clerk of Court shall mail a copy of this Minute Order to Plaintiff at his address of record. SO ORDERED. Signed by Judge Trevor N. McFadden on 4/16/2021. (lctnm2) (Entered: 04/16/2021)
2021-04-21	21	NOTICE of Change of Address by ALI AMIRI (eg) (Entered: 04/23/2021)
2021-04-23		MINUTE ORDER. The Plaintiff has filed a 21 Notice of Change of Address, in which he asks the Court to add his email address "to the PACER/ECF filing system" so that he can receive electronic service. The Court directs Plaintiff to Local Rule 5.4(b), which requires a pro se party to file a "Motion for CM/ECF User Name and Password" containing certain information. If the Plaintiff would like to obtain access to the CM/ECF system, he must do so in accordance with the Local Rules. SO ORDERED. Signed by Judge Trevor N. McFadden on 4/23/2021. (lctnm2) (Entered: 04/23/2021)
2021-05-04	22	Consent MOTION to Modify the Briefing Schedule by NATIONAL SCIENCE FOUNDATION. (Attachments: # 1 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 05/05/2021)
2021-05-05		MINUTE ORDER granting the Defendant's 22 Consent Motion to Modify the Briefing Schedule. The briefing schedule is modified as follows: Defendant's Combined Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in Support of its Motion for Summary Judgment shall be due on or before 5/21/2021; and Plaintiff's Reply in Support of his Cross-Motion for Summary Judgment shall be due on or before 6/21/2021. The Clerk of Court shall mail a copy of this Minute Order to Plaintiff at his address of record. SO ORDERED. Signed by Judge Trevor N. McFadden on 5/5/2021. (lctnm2) (Entered: 05/05/2021)
2021-05-10	23	MOTION for Order to Seal Exhibit A of Plaintiff's Opposition by NATIONAL SCIENCE FOUNDATION. (Attachments: # 1 Declaration of Sandra Evans, # 2 Exhibit 1)(Brudy-Everett, Kristin) (Entered: 05/10/2021)
2021-05-10		MINUTE ORDER. Upon consideration of the Government's 23 Motion for Order to Seal, the Court has placed the Plaintiff's [19-1] Exhibit under seal temporarily until the Plaintiff files a response and the Court adjudicates the motion. Plaintiff shall respond to the Government's 23 Motion on or before May 24, 2021. SO ORDERED. Signed by Judge Trevor N. McFadden on 5/10/2021. (lctnm2) (Entered: 05/10/2021)
2021-05-12		Set/Reset Deadlines: Plaintiff's response due by 5/24/2021. (hmc) (Entered: 05/12/2021)
2021-05-12	25	NEW Request For Pro Se Electronic Noticing by ALI AMIRI (zjf) (Entered: 05/14/2021)
2021-05-13	24	Mail Returned as Undeliverable. Sent to Ali Amiri; Type of Document Returned: 4/1/2021 and 4/6/2021 Minute Orders; Resent at New Address: 4501 McFarland Blvd. E. Tuscaloosa, AL 35405. (hmc) (Entered: 05/13/2021)
2021-05-18	26	Mail Returned as Undeliverable; Sent to Ali Amiri; Type of Document Returned: 4/16/2021 Minute Order; Resent at New Address: 4501 McFarland Blvd. E. Tuscaloosa, AL 35405. (hmc) (Entered: 05/18/2021)
2021-05-21	27	Memorandum in opposition to re 19 MOTION for Summary Judgment and in Further Support of Defendant's Motion for Summary Judgment filed by NATIONAL SCIENCE FOUNDATION. (Attachments: # 1 Statement of Facts, # 2 Declaration of Sandra Evans, # 3 Exhibit A, # 4 Exhibit B, # 5 Text of Proposed Order)(Brudy-Everett, Kristin) (Entered: 05/21/2021)
2021-05-21	28	REPLY re 20 Memorandum in Opposition and in Further Support of Defendant's Motion for Summary Judgment filed by NATIONAL SCIENCE FOUNDATION. (Brudy-Everett, Kristin) (Entered: 05/21/2021)
2021-05-24	29	Memorandum in opposition to re 23 MOTION for Order to Seal Exhibit A of Plaintiff's Opposition filed by ALI AMIRI. (eg) (Additional attachment(s) added on 6/7/2021: # 1 Exhibit) (zeg). (Entered: 05/26/2021)
2021-06-23	30	REPLY to opposition to motion re 19 MOTION for Summary Judgment filed by ALI AMIRI. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(eg) (Entered: 06/25/2021)
2021-07-05	31	NOTICE OF SUBSTITUTION OF COUNSEL by Sean Michael Tepe on behalf of NATIONAL SCIENCE FOUNDATION Substituting for attorney Kristin Brudy-Everett (Tepe, Sean) (Entered: 07/05/2021)
2021-09-28	32	MEMORANDUM OPINION re Defendant's 14 18 Motion for Summary Judgment, Plaintiff's 19 Cross-Motion for Summary Judgment, and Defendant's 23 Motion for Order to Seal. Signed by Judge Trevor N. McFadden on 9/28/2021. (lctnm2) (Entered: 09/28/2021)
2021-09-28	33	ORDER. For the reasons stated in the 32 Memorandum Opinion, Defendant's 14 , 18 Motion for Summary Judgment is GRANTED; Plaintiff's 19 Cross-Motion for Summary Judgment is DENIED; and Defendant's 23 Motion for Order to Seal is GRANTED. See attached for details. The Clerk of Court shall close this case. This is a final, appealable Order. Signed by Judge Trevor N. McFadden on 9/28/2021. (lctnm2) (Entered: 09/28/2021)
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