Informed Consent Action Network v. National Aeronautics & Space AdministrationInformed Consent Action Network v. National Aeronautics & Space Administration
- Reporters:
- Before:
- Loren L. Alikhan
Plаintiff Informed Consent Action Network (“ICAN“) brings this action against the National Aeronautics and Space Administration (“NASA“), alleging violations of the Freedom of Information Act (“FOIA“),
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
ICAN is a nonprofit news media organization with a mission of “put[ting] health information in the hands of the public to enable informed consent concerning medical decisions.” ECF No. 12, at 1-2; see ECF No. 15-1 ¶ 33. NASA is a federal agency that “conduct[s] cutting-edge research to advance technology and aeronautics.” Nat‘l Aeronautics & Space
In October 2023, ICAN submitted a FOIA request to NASA, seeking:
All communications sent or received by Riley Duren and Erik Conway from January 1, 2018 through the date of the search that contain the term(s) “geoengineer*,” “climate intervention,” “solar radiation management,” “SRM,” “stratospheric aerosol injeсtion,” “SAI,” “SABRE,” and/or “SCOPEX.”
* = Boolean search
ECF No. 15-1 ¶ 10; see ECF No. 1-1, at 1-2. The next month, NASA sent ICAN a letter acknowledging the request, ECF No. 15-1 ¶ 11, and stating that its “Prime Contractor, California Institute of Technology (Caltech), need[ed] additional time to process [ICAN‘s] request,” ECF No. 1-2, at 1.4 In February 2024, NASA updated ICAN on the status of the search, explaining that
[T]here are no responsive government records. There are contractor records that do not include NASA in the distribution of those contractor records, but these were not provided pursuant to H-16 (b)(1)(i) of NASA Prime Contract 80NMO0018D0004. Our search process included searching the official office of record using all of the request‘s specified search terms and full time period.
ECF No. 1-3, at 2; see ECF No. 15-1 ¶¶ 17, 45. NASA‘s letter further clarified that “[n]ot all data at the Jet Propulsion Laboratory are government records“; that “[c]ontractor records are not subject to the FOIA in that they are not Government records, not in our control, and beyond the reach of a NASA FOIA request“; and that the “personnel named in [ICAN‘s] request are not NASA Government employees.” ECF No. 1-3, at 2-3.
In May 2024, ICAN timely appealed, ECF No. 1-4, and the next month, NASA confirmed receipt of the appeal request, ECF No. 1-5; see ECF No. 15-1 ¶¶ 18, 47. ICAN filed this action in October 2024, ECF No. 1, without having received a final determination as to its appeal, see ECF No. 15-1 ¶¶ 18, 48-49. In December 2024, the pаrties met and conferred, and ICAN clarified that: (1) it sought only emails and chats responsive to its request; and (2) it was not requesting a search of the systems of NASA employees for responsive emails or chats with the named Caltech employees. ECF No. 15-1 ¶¶ 19-22. In 2025, the parties filed cross-motions for summary judgment, ECF Nos. 10, 13, which have been fully briefed, ECF Nos. 10, 12, 13, 15 to 17.
II. LEGAL STANDARDS
The purpose of FOIA is “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Am. C.L. Union v. U.S. Dep‘t of Just., 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Dep‘t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). FOIA “vests
“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment may be awarded to the agency if it can demonstrate that no material facts are in dispute, that it conducted an adequate search for responsive records, and that each record has eithеr been produced or is exempt from disclosure. Jud. Watch, Inc. v. U.S. Dep‘t of Homeland Sec., 59 F. Supp. 3d 184, 189 (D.D.C. 2014); see
In considering a motion for summary judgment, the court may rely on declarations, affidavits, and other documents that “describe the justifications for nondisclosure with reasonably specific detail . . . and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep‘t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). This evidence is “accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.‘” SafeCard Servs. v. Sec. & Exch. Comm‘n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intel. Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).
The parties dispute whether the requested records—communications sent and received by two JPL employees—are agency records within the meaning of FOIA. The Supreme Court has set forth “[t]wo requirements . . ., eaсh of which must be satisfied for requested materials to qualify as ‘agency records.‘” Tax Analysts, 492 U.S. at 144. First, an agency must have either “create[d] or obtain[ed]” the materials in question. Id. (quoting Forsham v. Harris, 445 U.S. 169, 182 (1980)). Second, the agency must have “control[led] the requested materials at the time the FOIA request [was] made.” Id. at 145. The court first considers whether NASA created or obtained the communications at issue before determining whether NASA controlled them.
A. NASA Did Not Create or Obtain the Requested Records
NASA argues that it did not create or obtain the records ICAN seeks becаuse the JPL employees who sent the communications in question are employed by Caltech, not NASA, and there is no evidence that NASA “controlled the[ir] day-to-day activities . . . such that they could be considered agents of NASA under FOIA.” ECF No. 10, at 5. As support, NASA provides the declaration of Stephanie Fox, Deputy Agency FOIA Officer and FOIA Public Liaison at NASA, who avers that the documents requested by ICAN “have not been provided to NASA” and that “NASA has not and would not in its normal course of operations ordinarily obtain from Caltech the records Plaintiff seeks.” ECF No. 10-2, at 4 ¶¶ 12, 15. NASA also points to its contract with Caltech that governs the operation of the JPL, arguing that it “indicates, quite strongly, that Caltech is independent of NASA.” ECF No. 10, at 6.
In response, ICAN relies heavily on several provisions of the same contract to support its assertion that NASA created and obtained the records sought. ICAN first cites a provision that states:
The Contractor‘s primary mission is to support NASA in carrying out its mission. In doing so, the Contractor shall, in conjunction with the NASA Management Office and the appropriate NASA HQ sponsor, develop task plans to undertake science, research and technology, as well as end-to-end mission development . . . .
ECF No. 10-3, at 22; see ECF No. 12, at 5; ECF No. 17, at 4-5. ICAN contends that this language—coupled with NASA‘s ownership of the JPL and the longstanding nature of the relationship between NASA and the JPL—confirms that NASA is involved in the laboratory‘s day-to-day operations suсh that any records in Caltech‘s possession ought to be deemed NASA records. ECF No. 12, at 5; ECF No. 17, at 4-5. NASA counters that it and Caltech are two distinct entities and that the “longevity of their relationship . . . just reflects . . . a desire to continue performing their separate and distinct responsibilities under a contract.” ECF No. 15, at 2. In further support of its position, NASA points to another provision of the contract, which explicitly states that “the California Institute of Technology is acting as a contractor and not as an agent of the Government.” ECF No. 10-3, at 6; see ECF No. 15, at 4.
The Supreme Court has made clear that “[g]rants of federal funds generally do not create a partnership or joint venture with the recipient, nor do they serve to convert the acts of the recipient from private acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision.” Forsham, 445 U.S. at 180; see Buholtz v. U.S. Marshals Serv., 233 F. Supp. 3d 113, 116 (D.D.C. 2017) (finding that an agency did not create the records of its “contract fаcility” where the agency did not supervise or control the facility‘s day-to-day operations). However, where an agency exercises “extensive supervision and control” over the collection and analysis of data that was “created” by an outside contractor, the D.C. Circuit has determined that such data is nonetheless subject to FOIA. Burka v. U.S. Dep‘t of Health & Hum. Servs., 87 F.3d 508, 515 (D.C. Cir. 1996).
ICAN next cites a provision that states that all records “acquired, generated or maintained by the Contractor in its performance of this Contract shall be the property of the Government and shall be delivered to the Government.” ECF No. 10, at 9 (quoting ECF No. 10-3, at 86-87); see ECF No. 12, at 6; ECF No. 17, at 2-7. It argues that this clause covers the requested communications because they “were created by Mr. Riley Duren and Mr. Erik Conway during the time of their employment at the NASA JPL, a facility owned by NASA, for the furtherance of
The court agrees with NASA. Supreme Court precedent clearly provides that “FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained.” Forsham, 445 U.S. at 186. “[D]ocuments an agency ha[s] the right to acquire [do] not become agency records subject to FOIA ‘unless and until the right is exercised.‘” Jud. Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924, 928 (D.C. Cir. 2011) (quoting Forsham, 445 U.S. at 181). In other words, ownership rights alone—even if provided for in a contract—are not enough tо convert records into agency records under FOIA if those rights have never been exercised. In her declaration, Ms. Fox explains that NASA “has not created or obtained the requested records,” ECF No. 10-2, at 4 ¶ 19, and “has not and would not in its normal course of
B. NASA Did Not Control the Requested Records
Even assuming, arguendo, that NASA did create or obtain the requested records, ICAN has failed to demonstrate that NASA controls the records such that they are subject to FOIA. See Tax Analysts, 492 U.S. at 145. Courts generally consider four factors in determining whether an agency controls particular records: “(1) the intent of the document‘s creator to retain or relinquish contrоl over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency‘s record system or files.” Burka, 87 F.3d at 515 (quoting Tax Analysts v. U.S. Dep‘t of Just., 845 F.2d 1060, 1069 (D.C. Cir. 1988), aff‘d on other grounds, 492 U.S. 136 (1989)).5 Because a major purpose of FOIA is to reveal information
1. Intent to retain or relinquish control
With regard to the first factor, ICAN argues that the “location of the records on a .gov domain owned by NASA” suffices to demonstrate NASA‘s intention to retain control of the records. ECF No. 12, at 7. In support of its argument, ICAN cites the
While “it seems implausible” to ICAN “that Caltech can maintain this email system independent of NASA‘s control,” ECF No. 12, at 8, “an agency‘s declarations are entitled to a presumption of good faith,” Am. First Legal Found. v. U.S. Dep‘t of Homeland Sec., 759 F. Supp. 3d 49, 67 (D.D.C. 2024), and the court must credit Ms. Fox‘s sworn statement that NASA does
2. Ability to use and dispose of the records
Turning to the second factor, ICAN first recycles its previous argument, positing that the communications’ presence on a .gov domain proves NASA‘s “ability to use and dispose of the records as it sees fit.” ECF No. 12, at 9; ECF No. 17, at 9-10. As before, the court is unpersuaded that an email domain alone indicates any such thing. See supra Section III.B.1. This is especially so given Ms. Fox‘s declaration, which affirms that “NASA is unable to independently sеarch the jpl.nasa.gov email [domain] and is unable to review the records located through the search coordinated by the JPL FOIA Liaison,” and that “NASA has not and would not in its normal course of operations ordinarily obtain from Caltech the records Plaintiff seeks which are controlled by Caltech on the jpl.nasa.gov email [domain].” ECF No. 10-2, at 4 ¶¶ 14-15; see id. ¶ 17 (“NASA personnel do not have the ability to use and dispose of the requested records as they see fit.“).
The court agrees with NASA.
3. Extent to which agency personnel read or relied on the records
Regarding the third factor, ICAN argues that “the likelihood NASA personnel relied upon [the requested communications] is high” because “NASA JPL employees work in conjunction with
4. Degree of integration into the agency‘s record system or files
Finally, ICAN asserts that the requested communications are integrated into NASA‘s record system such that NASA controls them. ECF No. 12, at 11-13; ECF No. 17, at 8-10. ICAN first argues that the FOIA process—which suggests a relationship between the JPL and NASA—as well as the existence of the NASA Office of JPL Management and Oversight at Caltech, together
ICAN makes a second argument, contending that the “individuals in the request represented themselves as being employed at NASA JPL, thereby subjecting their emails to NASA‘s control.” ECF No. 12, at 12; see id. (explaining that Mr. Duren and Mr. Conway represent on their LinkedIn profiles that they work at the NASA JPL and that Mr. Duren has his jpl.nasa.gov email address on his website). The court fails to see the connection between the JPL employees’ representations about their employment and NASA‘s control of the records in question. Whether Mr. Duren and Mr. Conway represent that they were “NASA JPL” employees on their LinkedIn accounts or websites has absolutely no bearing on whether the requested JPL files are integrated into NASA‘s system. See id. The only relevant evidence before the court is Ms. Fox‘s declaration, and it establishes that “Caltech has sole control of the email system at JPL,” ECF No. 10-2, at 4 ¶ 13, and that “there is no indication that the requested records . . . have been integrated into NASA‘s record systems,” id. ¶ 18. Accordingly, the court сoncludes that the requested records have not been integrated into NASA‘s record system.
* * *
Because ICAN has failed to raise a genuine dispute of material fact about whether NASA created or obtained the records it seeks—and because, even if it had, it could not show that NASA controlled the records—the court determines that the requested communications are not “agency
IV. CONCLUSION
For the foregoing reasons, the court will grant NASA‘s motion for summary judgment, ECF No. 10, and deny ICAN‘s cross-motion for summary judgment, ECF No. 13. A contemporaneous order will issue.
LOREN L. ALIKHAN
United States District Judge
Date: September 29, 2025