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Natural Resources Defense Council, Inc v. Wright-Patterson Air Force Base

August 3, 2011

NATURAL RESOURCES DEFENSE COUNCIL, INC., PLAINTIFF,
v.
WRIGHT-PATTERSON AIR FORCE BASE, A COMPONENT OF THE
UNITED STATES DEPARTMENT OF THE AIR FORCE, AND THE
UNITED STATES DEPARTMENT OF THE AIR FORCE, DEFENDANTS.



The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.

OPINION & ORDER

Plaintiff Natural Resources Defense Council, Inc. ("NRDC") brings this action alleging that defendants Wright-Patterson Air Force Base and the United States Department of the Air Force (collectively, the "Air Force") failed to conduct an adequate search for records responsive to a Freedom of Information Act ("FOIA") request made pursuant to 5 U.S.C. § 552. Defendants move pursuant to Federal Rule of Civil Procedure 56 for summary judgment in their favor on the ground that they have conducted an adequate search. Plaintiff opposes this motion and cross-moves for limited discovery. Because this Court finds that defendants have conducted an adequate search, their motion for summary judgment is granted.

I. BACKGROUND

The following facts are undisputed unless otherwise noted.

A. The FOIA Request

On October 2, 2009, the NRDC submitted to the Wright-Patterson Air Force Base a FOIA request concerning a $6 billion "coal-to-liquid facility" (the "Facility") for Wellsville, Ohio proposed by Baard Energy. (See Letter from NRDC to Wright-Patterson (Oct. 2, 2009), Ex. 1 to Declaration of Darrin L. Booher dated Oct. 28, 2010 ("Booher Decl."); Compl. ¶2.) According to the Complaint, the Facility would employ technologies "never before used in the United States to convert coal into diesel fuel, naphtha . . . and electricity." (Compl. ¶ 2.) In doing so, the Facility would allegedly emit annually more than 26 million tons of carbon dioxide, thereby "contribut[ing] to global warming" and "endanger[ing] human health and the environment." (Id. ¶ 3.) Specifically, the NRDC requested from Wright-Patterson all records regarding:

(1) Any proposal by Baard Energy to enter into a contract for the purchase of fuel that would be generated by the Facility; (2) Any evaluation of the Facility as a possible source of fuel for the United States government or any of its components; (3) Any communications between Baard Energy and [Wright-Patterson] or any other [Department of Defense ("DOD")] components regarding the Baard Energy [] Facility; and (4) Any communications between the Ohio Department of Development, the Ohio Air Quality Development Authority, or the Columbiana County Port Authority and [Wright-Patterson] or other DOD components regarding the Baard Energy [] Facility. (Letter from NRDC to Wright-Patterson (Oct. 2, 2009) at 1-2.)

B. The Air Force's Initial Search and Response that "No Records" Exist

Upon receiving the NRDC's FOIA request, the Air Force assigned it a case number and an action officer. (Booher Decl. ¶ 4.) The Air Force also confirmed with an NRDC attorney that the records search should be limited to Wright-Patterson and not referred to other Department of Defense ("DOD") organizations even though the FOIA request referenced DOD organizations apart from Wright-Patterson. (Id. ¶¶ 6-7.) Initially, the Air Force forwarded the FOIA request to the Civil Engineering Branch of the 88th Air Base Wing, which advised that it was not responsible for the subject matter addressed in the NRDC's FOIA request. (Id. ¶ 8.)

The Air Force next forwarded the request to the Propulsion Directorate at the Air Force Research Laboratory ("AFRL") located at Wright-Patterson. (Id.) Specifically, the request went to Detachment 1, AFRL Directorate of Contracting-the AFRL branch primarily responsible for contracts having to do with fuel-related issues. (Id. ¶¶ 9-10.) This branch searched relevant AFRL offices and records both manually and electronically, using the search terms "BAARD Energy," "Wellsville, Ohio" and "coal-to-liquid facility." It reported that no responsive records were located. (Id. ¶ 10.) As this search was being completed, an Air Force FOIA analyst sent the NRDC an email stating that the Air Force would likely issue a "No Records" response; however, the analyst did include two links in her email: one link to an article about the AFRL's alternative fuels program at Wright-Patterson and another to a document entitled "The Dayton Region's Wright-Patterson Air Force Base Strategic Vision," which listed "BAARD Energy" as a "key linkage" for supporting alternative fuels research. (See Ex. 6 to Decl. of Joshua A. Berman dated Nov. 29, 2010 ("Berman Decl.").) On November 17, 2009, the Air Force officially sent the NRDC a "No Records" response to the FOIA request stating that "[a] thorough search by Air Force Research Laboratory (AFRL/PK) has not produced any responsive records." (Ex. 5 to Booher Decl.)

C. The NRDC's Administrative Appeal

The following month, the NRDC filed an administrative appeal of the Air Force's "No Records" response. (Ex. 6 to Booher Decl.) The NRDC attached to its appeal both the "Strategic Vision" document referring to Baard and a February 2009 email exchange that it had obtained through a separate public records requests to Ohio state agencies. (Booher Decl. ¶ 12; Attach. H to Berman Decl.) This email exchange between William Harrison-a Technical Advisor at the Fuels and Energy, Propulsion Directorate of the AFRL located at WrightPatterson-and Stephan Dopuch-Vice President of Business Development at Baard Energy- concerned the Air Force's policy on alternative fuels. (Id.)

The Air Force forwarded the NRDC's administrative appeal to Detachment 1 of the AFRL Directorate of Contracting, which confirmed that it had no responsive records and, in turn, forwarded the appeal directly to Harrison. (Booher Decl. ¶¶ 13-14.) According to a declaration by Darrin Booher, the Air Force action officer assigned to this FOIA request, Harrison subsequently "searched his paper and electronic records and located no records that were responsive to the FOIA request." (Id. ¶ 15.) Harrison also allegedly asked other staff members involved with synthetic fuels to search their files for responsive records, but none were located. (Id.)

In March 2010, the NRDC supplemented its administrative appeal with copies of two additional email exchanges from February and March 2007, respectively, which the NRDC had obtained from the state of Ohio and believed were relevant to the FOIA request. (Ex. 10 to id.) The first email exchange from February 2007-between Harrison and Dopuch from Baard Energy-referenced briefings that Harrison attended, a Baard project, and setting up a meeting. (Attach. I to Ex. 10 to id.) The March 2007 email exchange between Paul Bollinger-Special Assistant to the Assistant Secretary of the Air Force, Installations, Environment & Logistics- and John Baardson-a Baard executive-concerned Baardson's invitation to join high-ranking officials at an Air Force forum on energy. (Attach. J to Ex. 10 to id.) Booher stated that he specifically spoke to ...


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