Elkins v. FAA, No. 14-1791, 2015 WL 2207076 (D.D.C. May 12, 2015) (Boasberg, J.)

Elkins v. FAA, No. 14-1791, 2015 WL 2207076 (D.D.C. May 12, 2015) (Boasberg, J.)

Re: Request for records concerning airplane allegedly circling plaintiff's house

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that plaintiff failed to exhaust his administrative remedies with respect to one request at issue.  The court explains that "[plaintiff] maintains that he never received the FAA's [response] letter . . . and that the first communication he received from the agency was . . . after he had filed suit and after the statutory time period would have otherwise expired."  The court finds that "[w]hile Plaintiff may not have received the letter, the FAA has provided a declaration attesting that it was indeed mailed" and "'Government records and official conduct [are generally accorded] a presumption of legitimacy.'"
   
• Litigation Considerations, Adequacy of Search:  "[T]he Court concludes that summary judgment on the search is not warranted."  The court finds that "[t]he FAA has described in reasonable detail the files and offices it searched, the reasons those locations were chosen, and how the search was carried out."  "The agency has, however, failed to aver that it has searched all the locations likely to contain relevant documents."  The court explains that "[a]lthough this might seem to be a technical requirement, this Court must follow the dictates of FOIA."  "The FAA, therefore, must provide a clearer explanation as to why there are no other locations where responsive files could be found."
   
• Procedural Requirements, Searching for Responsive Records:  The court holds that "'FOIA imposes no duty on the agency to create records.'"  The court relates that "[p]laintiff appears to request that the agency use a confidential algorithm in its computer system in order to translate whatever identifying information it has about the aircraft into the 'N Number.'"  The court finds that "[s]ince the agency's search did not uncover records related to the 'N number' or 'Mode S' code, its obligation ended there."
   
• Exemption 7(E):  The court first notes a similar case in which "FAA had not 'met its burden of establishing that [[a] radar plot was] compiled for law-enforcement purposes'" and holds that "[a]s the FAA has provided no additional information to show why the result here should be any different, the radar plot must be turned over to [plaintiff]."  However, the court also holds that "'an FAA Order containing beacon codes and call signs of various types of aircraft'" "'was indisputably created for law-enforcement purposes; its production would disclose techniques and procedures for law-enforcement activities; and disclosure would risk circumvention of the law.'"
   
• Litigation Considerations, Discovery:  The court denies plaintiff's request for discovery and holds that "[d]iscovery . . . is generally inappropriate in a FOIA case" and "[plaintiff] has offered no compelling reason to depart from this general rule."