Elkins v. FAA, No. 14-476, 2015 WL 1743744 (D.D.C. Apr. 16, 2015) (Boasberg, J.)

Elkins v. FAA, No. 14-476, 2015 WL 1743744 (D.D.C. Apr. 16, 2015) (Boasberg, J.)

Re: Request for records concerning alleged surveillance aircraft

Disposition: Granting in part and denying in part defendant's motion to dismiss

• Litigation Considerations, Adequacy of Search:  "The Court  . . . den[ies] summary judgment on the search issue."  The court finds that, "[w]hile [defendant's] declaration is commendable in its attention to each category of requested records, it proves wanting, as Plaintiff points out, as to three of them."  "As to [one] category of his request, [defendant] states summarily that were no responsive records."  "[It] does not, however, describe the place such a record would be stored if it did exist, what [it] did to search that location, or any detail regarding how [it] came to conclude that no responsive records exist."  "Similarly, as to [another category of records], [defendant] does note where they would be found . . . but not what search [it] conducted there."  Concerning the final category of records at issue, "[defendant] again does not describe any action [it] took as to this category, relating only that it is not the FAA's policy to create such documents."  "If responsive records can exist, however, then presumably there is a place [defendant] could search to find them—a search [it] must describe."  However, in response to plaintiff's argument that defendant did not determine the "N number" of the aircraft at issue, the court finds that "[e]ven if the FAA did have the resources to determine the plane's N number, 'FOIA imposes no duty on the agency to create records.'"  "And since the agency's search did not uncover records related to the N number, its obligation ended there."
   
• Exemption 7(E):  "The Court concludes . . . that as to the voice recordings and the flight-tracking information, the FAA has not met its burden of establishing that these records were compiled for law-enforcement purposes."  "It has, however, properly justified its withholding of the FAA Order identifying the agency that had tactical control over the plane."  Regarding the voice recordings and the flight-tracking information, the court finds that "the agency does not clearly single out the voice recordings in discussing its purposes for creating the disputed records."  "It provides no information as to what law-enforcement purpose the voice recordings were created for, which is the key question in the first requirement of Exemption 7."  "The voice communications, moreover, are apparently broadcast on open airwaves by all airplane operators."  "The fact that this craft happened to be controlled by a law-enforcement agency does not somehow transform the FAA's purpose in recording its voice transmissions."  "What remains then is the FAA Order for Law Enforcement Operations, which, the agency notes, contains 'the identity' of the law-enforcement agency that operated the craft."  The court finds that "[t]he FAA . . . supplemented its briefing with sealed declarations that—although the Court cannot discuss the details of the justifications they contain—reassure it that the Order does, in fact, satisfy the requirements of 7(E)."