Cole v. Copan, No. 19-1182, 2020 WL 7042814 (D.D.C. Nov. 30, 2020) (Chutkan, J.)

Cole v. Copan, No. 19-1182, 2020 WL 7042814 (D.D.C. Nov. 30, 2020) (Chutkan, J.)

Re:  Request for input data and original analyses conducted by National Institute of Standards and Technology ("NIST") regarding role played by seated connection at Column 79 of 7 World Trade Center ("WTC 7") in the collapse of WTC 7 on September 11, 2001

Disposition:  Granting defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  First, the court relates that "[plaintiff's] amended FOIA request sought 'the input data and the original analyses for the seated connection at column 79.'"  "[Plaintiff] sought this information in the context of two statements made in the errata sheet to the NCSTAR report, each of which provided corrections to typographical errors in Chapter 11 of that report."  "Chapter 11, in turn, specifically discussed the computer simulations NIST conducted as part of its investigation into the collapse of WTC 7."  "[Plaintiff] argues that NIST should have read 'input data' to mean 'information that existed independent of the computer and the modelling and was data taken from paper or other electronic records containing it prior to the modelling being conducted.'"  "NIST, on the other hand, understood 'input data' to refer to 'the data that was input into the computer models' to drive the models' analysis."  The court finds that "[plaintiff] failed to frame his FOIA request with 'sufficient particularity' to reasonably suggest that he wanted something other than the data that was input into the computer models."  Additionally, the court finds that "even if [plaintiff's] administrative appeal put the government on notice that [plaintiff] sought [data] derived from [the original data], it did not indicate that he also sought the [original data]."  "[Plaintiff'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 [plaintiff's] FOIA request was reasonable."  "If [plaintiff] 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 the requisite particularity."
  
  Second, "[t]he court finds that NIST's search was reasonable and in accordance with its obligations under FOIA."  The court in particular relates that "[defendant] . . . knew that 'locating responsive documents required significant technical expertise by someone knowledgeable both in computer modelling and NIST's technical investigation' and that, due to the large number of files involved in the modelling process, 'determining precisely which files were responsive to Plaintiff's request required a subject matter expert.'"  "Accordingly, [defendant] designated then-Deputy Director of NIST's Building Fire and Research Laboratory . . . to search the Engineering Laboratory's computers and computer disks."  The court finds that, "[b]ased on [its] declaration, NIST has demonstrated that it made 'a good faith effort to conduct a search for the requested records,' and that its methods were 'reasonably calculated' to discover records containing the input data and analyses [plaintiff] requested."  The court also finds that "[plaintiff's] unsupported assertion that NIST should have interpreted his request for 'input data' more broadly does not meet [plaintiff's burden "to provide countervailing evidence . . . sufficient to raise substantial doubt concerning the adequacy of the agency's search'"]."
   
• Exemption 3:  The court holds that "all the requested records are thus appropriately protected from disclosure by Exemption 3 and [the National Construction Safety Team Act ("NCSTA")] Section 7(d)."  The court relates that "NCSTA Section 7(d) prohibits NIST from disclosing 'any information it receives in the course of an investigation under this chapter if the [NIST] Director finds that the disclosure of that information might jeopardize public safety.'"  The court notes that "[p]rior to [plaintiff's] FOIA request, [the] then-Director of NIST . . . determined that the disclosure of information 'received by the National Institute of Standards and Technology [ ], in connection with its investigation of the technical causes of the collapse of the World Trade Center Towers and World Trade Center Building 7 on September 11, 2001, might jeopardize public safety."  "The Director extended his finding to include '[a]ll input and result files' of each computer model used by NIST to study the structural response and collapse propagation phase of WTC 7, as well as 'all Excel spreadsheets and other supporting calculations used to develop floor connection failure modes and capacities.'"  The court finds that "[i]n [its] declaration, [defendant] explains that because of the highly technical nature of the documents in question, [an expert] decided whether the Director's finding applied to the responsive records."  "He ultimately determined that all the files were covered and that disclosing them could jeopardize public safety."  "[Defendant] 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 most effectively devise schemes to destroy large buildings.'"  The court finds that "NIST's declarations describe 'the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'"
   
• Litigation Considerations, Vaughn Index/Declaration:  Responding to plaintiff's objection, "the court finds that [defendant's] declarations properly supported NIST's motion for summary judgment."  "Fletcher did not offer an expert opinion, as Cole alleges, but rather attested 'to [her] personal knowledge of the procedures used in handling' the request, . . . and any second-hand statements included in her declarations were based on information 'obtained in the course of [her] official duties.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court relates that "[plaintiff] contends that 'any specific portion of the computer code files containing input data that can be [ ] viewed can also be produced via a "screen shot" . . . without releasing any truly exempt computer modelling code.'"  "The court finds the government's argument persuasive."  "'For the government to produce the requested screenshots, it would have to open the software and create a screenshot, which would not otherwise exist . . . .'"  "'FOIA neither requires agencies to create new records nor to disclose records for which they do not "retain possession or control."'"  "As elaborated above, 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 [plaintiff'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."
   
• Litigation Considerations, Discovery:  The court relates that "[plaintiff's] bad faith argument [advanced in support of his request for discovery] is, as NIST notes, entirely contingent on the court finding that NIST's interpretation of [plaintiff's] request – and the scope of the ensuing search – was not reasonable."  "But [the court finds], as explained above, NIST's interpretation of 'input data' was reasonable and its search was reasonably calculated to uncover responsive materials."  "[Plaintiff] has not raised a 'sufficient question as to the agency's good faith in searching for or processing documents.'"  "Instead, he has proffered 'mere assertions' that responsive documents may exist in document formats NIST did not review."  "[Plaintiff's] Motion for Discovery will therefore be denied."