Case Detail

FOIA Project Annotation: A federal court in New York has ruled that Wright-Patterson Air Force Base conducted an adequate search for any contacts with Baard Energy, a local Ohio company that was proposing a coal-to-liquid facility to be built in Wellsville, Ohio. In response to a request from the NRDC asking about possible contract proposals, Wright-Patterson searched the contracting office for the Air Force Research Laboratory, which was responsible for fuel-related contracts, and found no records. In its administrative appeal, the NRDC attached an email exchange between William Harrison, a technical advisor at the AFRL, and Stephan Dopuch, a vice-president of Baard, it had received through an Ohio public records request, which suggested that there had been some contact with Baard. Although the NRDC further supplemented its administrative appeal with more email exchanges involving Harrison and Baard, Wright-Patterson concluded that there were no responsive records. However, after the NRDC filed suit, John Pellett, a Wright-Patterson attorney who reviewed the Air Force base's administrative appeal, admitted that there had been a miscommunication and that Harrison had found more responsive records, which were subsequently sent to the NRDC. Reviewing the agency's search, the court found that the agency's affidavits were sufficiently detailed to explain the adequacy of its search. The NRDC argued that the fact the agency's search had failed to turn up various documents, coupled with its admission that it had inadvertently failed to release documents during the administrative appeal, showed that the search was inadequate. But the court noted that "nonetheless, the mere existence of these records does not establish that the Air Force possesses additional records. Although plaintiff contends that the Air Force has failed to demonstrate that any purported deletion or records complied with the Air Force's Records Disposition Schedule, the issue of whether the Air Force complied with its own document retention policy is immaterial to the issue of whether the Air Force met its burden under FOIA." The court added that "that the Air Force confessed to a mistake in its initial declaration and then corrected that mistake does not render the search inadequate. An agency should be encouraged, rather than discouraged, to 'reappraise its position, and when appropriate, release documents previously withheld.'"
Issues: Adequacy - Search

Date Filed	Doc #	Docket Text
2010-04-23	1	COMPLAINT against Wright-Patterson Air Force Base, United States Department of The Air Force. (Filing Fee $ 350.00, Receipt Number 901539)Document filed by Natural Resources Defense Council, Inc..(mbe) (Entered: 04/27/2010)
2010-04-23		SUMMONS ISSUED as to Wright-Patterson Air Force Base, United States Department of The Air Force, U.S. Attorney and U.S. Attorney General. (mbe) (Entered: 04/27/2010)
2010-04-23		Magistrate Judge Kevin N. Fox is so designated. (mbe) (Entered: 04/27/2010)
2010-04-23		Case Designated ECF. (mbe) (Entered: 04/27/2010)
2010-04-23	2	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Natural Resources Defense Council, Inc.(mbe) (ama). (Entered: 04/27/2010)
2010-05-04	3	ORDER FOR INITIAL PRETRIAL CONFERENCE: Initial Conference set for 6/30/2010 at 11:30 AM in Courtroom 23A, 500 Pearl Street, New York, NY 10007 before Judge Sidney H. Stein. (Signed by Judge Sidney H. Stein on 5/4/2010) (jpo) (Entered: 05/04/2010)
2010-05-27	4	ANSWER to Complaint. Document filed by United States Department of The Air Force.(Pantoja, Joseph) (Entered: 05/27/2010)
2010-05-27	5	CERTIFICATE OF SERVICE on 05/27/10. Service was made by MAIL. Document filed by United States Department of The Air Force. (Pantoja, Joseph) (Entered: 05/27/2010)
2010-06-02	6	MOTION for Joshua Berman to Appear Pro Hac Vice. Document filed by Natural Resources Defense Council, Inc.(mro) (Entered: 06/03/2010)
2010-06-07	7	ORDER FOR ADMISSION PRO HAC VICE: granting 6 Motion for Joshua Berman to Appear Pro Hac Vice. (Signed by Judge Sidney H. Stein on 6/7/2010) (tve) (Entered: 06/07/2010)
2010-06-10		CASHIERS OFFICE REMARK on 6 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 06/02/2010, Receipt Number 905305. (jd) (Entered: 06/10/2010)
2010-07-01	8	ORDER: It is hereby ordered that: 1. The parties shall make their initial disclosures on or before July 9, 2010. 2. There will be a pretrial conference on September 17, 2010, at 10:00 a.m.; and 3. The last day for completion of discovery is December 2, 2010. So Ordered. (Signed by Judge Sidney H. Stein on 6/30/2010) (js) (Entered: 07/01/2010)
2010-09-23	9	ORDER, that any summary judgment motion is due October 29, 2010; opposition to such motion is due November 29, 2010; and any reply is due December 10, 2010. (Signed by Judge Sidney H. Stein on 9/17/10) (pl) (Entered: 09/23/2010)
2010-09-23		***DELETED DOCUMENT. Deleted document number 10 ORDER. The document was incorrectly filed in this case. (djc) (Entered: 09/27/2010)
2010-10-29	10	NOTICE of Motion. Document filed by United States Department of The Air Force, Wright-Patterson Air Force Base. (Pantoja, Joseph) (Entered: 10/29/2010)
2010-10-29	11	MEMORANDUM OF LAW in Support re: 6 MOTION for Joshua Berman to Appear Pro Hac Vice.. Document filed by United States Department of The Air Force, Wright-Patterson Air Force Base. (Pantoja, Joseph) (Entered: 10/29/2010)
2010-10-29	12	DECLARATION of DARRIN L. BOOHER in Support re: 6 MOTION for Joshua Berman to Appear Pro Hac Vice.. Document filed by United States Department of The Air Force, Wright-Patterson Air Force Base. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Pantoja, Joseph) (Entered: 10/29/2010)
2010-10-29	13	CERTIFICATE OF SERVICE of Notice of Motion, Memo of Law in Support of Governments Motion for Summary Judgment, Declaration of Darrin L. Booher served on Thomas Cmar, Esq on 10-29-2010. Service was made by Mail. Document filed by United States Department of The Air Force, Wright-Patterson Air Force Base. (Pantoja, Joseph) (Entered: 10/29/2010)
2010-11-29	14	NOTICE of Motion for Discovery. Document filed by Natural Resources Defense Council, Inc.. (Cmar, Thomas) (Entered: 11/29/2010)
2010-11-29	15	MOTION for Discovery. Document filed by Natural Resources Defense Council, Inc..(Cmar, Thomas) (Entered: 11/29/2010)
2010-11-29	16	MEMORANDUM OF LAW in Support re: 15 MOTION for Discovery. and in Opposition to the Government's Motion for Summary Judgment . Document filed by Natural Resources Defense Council, Inc.. (Cmar, Thomas) (Entered: 11/29/2010)
2010-11-29	17	DECLARATION of Joshua A. Berman in Support re: 15 MOTION for Discovery.. Document filed by Natural Resources Defense Council, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Cmar, Thomas) (Entered: 11/29/2010)
2010-11-29	18	CERTIFICATE of Counsel by Thomas Joseph Cmar on behalf of Natural Resources Defense Council, Inc.. Re: 17 Declaration in Support of Motion, 16 Memorandum of Law in Support of Motion, 14 Notice (Other), 15 MOTION for Discovery.. of Service of Documents (Cmar, Thomas) (Entered: 11/29/2010)
2010-12-13	19	ORDER: Defendants Wright-Patterson Air Force Base and United States Air Force's reply in support of their motion for summary judgment and opposition to NRDC's motion for discovery are due on December 24, 2010 and will be filed as a single brief not to exceed fifteen pages. Plaintiff NRDC's reply in support of its motion for discovery is due on January 12, 2011 and shall not exceed fifteen pages. Set Deadlines as to 15 MOTION for Discovery: (Responses due by 12/24/2010. Replies due by 1/12/2011.) (Signed by Judge Sidney H. Stein on 12/13/10) (db) (Entered: 12/14/2010)
2010-12-23	20	MEMORANDUM OF LAW in Opposition re: 15 MOTION for Discovery.. Document filed by United States Department of The Air Force, Wright-Patterson Air Force Base. (Pantoja, Joseph) (Entered: 12/23/2010)
2010-12-23	21	DECLARATION of Joseph A. Pantoja in Opposition re: 15 MOTION for Discovery.. Document filed by United States Department of The Air Force, Wright-Patterson Air Force Base. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Pantoja, Joseph) (Entered: 12/23/2010)
2010-12-23	22	DECLARATION of John M. Pellett in Opposition re: 15 MOTION for Discovery.. Document filed by United States Department of The Air Force, Wright-Patterson Air Force Base. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Pantoja, Joseph) (Entered: 12/23/2010)
2010-12-23	23	CERTIFICATE OF SERVICE of REPLY PAPERS in further support of Government's motion for summary judgment and in opposition to plaintiff's motion for discovery served on PLAINTIFF. Document filed by United States Department of The Air Force, Wright-Patterson Air Force Base. (Pantoja, Joseph) (Entered: 12/23/2010)
2011-01-12	24	REPLY MEMORANDUM OF LAW in Support re: 15 MOTION for Discovery.. Document filed by Natural Resources Defense Council, Inc.. (Cmar, Thomas) (Entered: 01/12/2011)
2011-01-12	25	DECLARATION of Joshua A. Berman in Support re: 15 MOTION for Discovery.. Document filed by Natural Resources Defense Council, Inc.. (Attachments: # 1 Exhibit 1)(Cmar, Thomas) (Entered: 01/12/2011)
2011-01-12	26	CERTIFICATE OF SERVICE of Reply Filings. Document filed by Natural Resources Defense Council, Inc.. (Cmar, Thomas) (Entered: 01/12/2011)
2011-07-11	27	NOTICE OF CHANGE OF ADDRESS by Joshua Aries Berman on behalf of Natural Resources Defense Council, Inc.. New Address: Natural Resources Defense Council, 1152 15th St., NW, Suite 300, Washington, DC, USA 20005, 202-289-6868. (Berman, Joshua) (Entered: 07/11/2011)
2011-08-03	28	OPINION & ORDER: #100608 Because the Court finds that the Air Force conducted an adequate search for records responsive to the NRDC's FOIA request, defendants' motion for summary judgment is granted and plaintiffs motion for limited discovery is denied. (Signed by Judge Sidney H. Stein on 8/3/11) (laq) Modified on 8/4/2011 (ajc). (Entered: 08/03/2011)
2011-08-03		Transmission to Judgments and Orders Clerk. Transmitted re: 28 Memorandum & Opinion, to the Judgments and Orders Clerk. (tro) (Entered: 12/14/2012)
2011-09-26	29	NOTICE OF APPEAL from 28 Memorandum & Opinion. Document filed by Natural Resources Defense Council, Inc. Filing fee $ 455.00, receipt number 465401017412. (tp) (Entered: 09/28/2011)
2011-09-28		Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 29 Notice of Appeal. (tp) (Entered: 09/28/2011)
2011-09-28		Transmission of Notice of Appeal to the District Judge re: 29 Notice of Appeal. (tp) (Entered: 09/28/2011)
2011-09-28		Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 8 Order, Set Deadlines/Hearings,, 6 MOTION for Joshua Berman to Appear Pro Hac Vice. filed by Natural Resources Defense Council, Inc., 28 Memorandum & Opinion, 17 Declaration in Support of Motion, filed by Natural Resources Defense Council, Inc., 26 Certificate of Service Other filed by Natural Resources Defense Council, Inc., 13 Certificate of Service Other, filed by Wright-Patterson Air Force Base, United States Department of The Air Force, 25 Declaration in Support of Motion filed by Natural Resources Defense Council, Inc., 16 Memorandum of Law in Support of Motion filed by Natural Resources Defense Council, Inc., 10 Notice (Other) filed by Wright-Patterson Air Force Base, United States Department of The Air Force, 24 Reply Memorandum of Law in Support of Motion filed by Natural Resources Defense Council, Inc., 21 Declaration in Opposition to Motion filed by Wright-Patterson Air Force Base, United States Department of The Air Force, 9 Order, Set Scheduling Order Deadlines, 22 Declaration in Opposition to Motion filed by Wright-Patterson Air Force Base, United States Department of The Air Force, 3 Order for Initial Pretrial Conference, 11 Memorandum of Law in Support of Motion filed by Wright-Patterson Air Force Base, United States Department of The Air Force, 14 Notice (Other) filed by Natural Resources Defense Council, Inc., 7 Order on Motion to Appear Pro Hac Vice, 23 Certificate of Service Other, filed by Wright-Patterson Air Force Base, United States Department of The Air Force, 12 Declaration in Support of Motion, filed by Wright-Patterson Air Force Base, United States Department of The Air Force, 27 Notice of Change of Address filed by Natural Resources Defense Council, Inc., 5 Certificate of Service Other filed by United States Department of The Air Force, 15 MOTION for Discovery. filed by Natural Resources Defense Council, Inc., 20 Memorandum of Law in Opposition to Motion filed by Wright-Patterson Air Force Base, United States Department of The Air Force, 18 Certificate of Counsel, filed by Natural Resources Defense Council, Inc., 29 Notice of Appeal filed by Natural Resources Defense Council, Inc., 4 Answer to Complaint filed by United States Department of The Air Force, 2 Rule 7.1 Corporate Disclosure Statement filed by Natural Resources Defense Council, Inc., 19 Order, Set Motion and R&R Deadlines/Hearings, were transmitted to the U.S. Court of Appeals. (tp) (Entered: 09/28/2011)
2011-12-23	30	MANDATE of USCA (Certified Copy) as to 29 Notice of Appeal filed by Natural Resources Defense Council, Inc. USCA Case Number 11-4026....that the appeal is hereby WITHDRAWN pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 12/23/2011. (nd) (Entered: 12/23/2011)
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