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CAUS Responds to Latest Department of Defense Affidavits
Peter A. Gersten, Esq.
UNITED STATES DISTRICT COURT
CITIZENS AGAINST UFO SECRECY, INC., Plaintiff,
DEPARTMENT OF DEFENSE, Defendant.
PLAINTIFF'S RESPONSE TO DEFENDANT'S SUPPLEMENTAL DECLARATIONS
1. Plaintiff, by the undersigned counsel, hereby responds to the Defendant's supplemental declarations submitted March 17, 2000.
2. On February 16, 2000, the Court directed the Defendant to provide Plaintiff with supplemental affidavits, "detailing the search terms used in both the electronic mail message and the computerized index search" because "due to the absence of these search terms the Court cannot determine the reasonableness of Defendant's search."
3. Plaintiff contends, for the following reasons, that Defendant's Supplemental Declarations still do not provide the Court with sufficient information to determine the reasonableness of Defendant's search. Plaintiff further contends that Defendant's Supplemental Declarations further obscure the specifics of its search, rather than evidencing its adequacy and thereby its reasonableness.
JOINT CHIEFS OF STAFF (JCS)
4. According to the initial affidavit of Edmund F. McBride attached to the Defendant's Motion for Summary Judgment, access to records of the Joint Staff is by a computerized document index and retrieved by "unique identifiers and keywords related to the subject area." (emphasis added) (McBride Declaration 3.)
5. Since these "unique identifiers and keywords" were not included in the McBride affidavit, the Court directed that they be provided to assist the Court in determining the reasonableness of Defendant's search.
6. In the supplemental declaration of Edmund F. McBride, what had originally been referred to as "unique identifiers and keywords" is now referred to as "keywords and terms." (McBride Supplemental Declaration 3.) Further, and more significantly, several of the keywords provided are not "related to the subject area" while others were used in direct contravention of Plaintiff's instructions.
Keywords and Terms
7. Though keywords "v-shaped", "delta", "boomerang", "triangular", and "triangle" are relevant to Plaintiff's request, there is nothing "unique" about them.
8. The inclusion of keywords "UFO" and "unidentified flying object" when Plaintiff specifically stated in its administrative request and appeal that it was not interested in these general categories. (Complaint 7.)
9. Most revealing is the gratuitous inclusion of three keywords that could have no purpose other than to thwart and ridicule Plaintiff's request. The terms "spacecraft" and "alien craft" are misleading and wrongly assumes the objects are not ours, while keyword "flying saucer" is the antithesis of Plaintiff's request, since all of Plaintiff's descriptions, sketches and the one photo were of a triangular, not saucer-shaped, object. Agencies are required to make a "good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Also the adequacy of the search depends on the facts and circumstances of each case. Maynard v. CIA, 986 F. 2d 547, 559 (1st Cir. 1993); Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990). Plaintiff contends that the inclusion of these three keywords are not "methods which can be reasonably expected to produce the information requested" but rather demonstrates the lack of good faith by Defendant and the unreasonableness of its search.
10. Further, it is important to know whether the keywords were used in an "and" or in an "or" context. Since the Court has not been provided with either the parameters, methods or results of the computerized search, it would appear difficult, if not impossible, to decide the effect of generalized, ("large", "red", "football field", "house", etc.) misleading ("alien craft", "spacecraft") and incorrect ("flying saucer") keywords on the Defendant's ability to access responsive records.
DEFENSE ADVANCED RESEARCH PROJECTS AGENCY (DARPA)
11. According to the affidavit of Richard L. Dunn attached to the Defendant's Motion for Summary Judgment, each of the 200 employees of DARPA was sent an electronic mail message. (Dunn Declaration 1;3.)
12. Since the electronic mail message was not included in the Dunn affidavit, the Court directed that it be provided to assist the Court in determining the reasonableness of Defendant's search.
Electronic Mail Message
13. In the supplemental declaration of Thomas M. Hillin, the content of the electronic message is provided. Though Plaintiff's general description of the object is included in the e-mail, what is not included is more relevant on the issue of reasonableness: 1) two of the three eyewitness accounts provided by Plaintiff were not included; 2) the dates and the places when and where the object was most readily seen were not included; and 3) the eyewitness sketches and one photo were not included. The only reference to the latter was: "we have a Xerox copy of the photos and sketches of the craft if you need to see them." (emphasis added) (Hillin Declaration 3.) Plaintiff contends that the omission of the two eyewitness descriptions, the dates, the places, the photo and the sketches from the electronic mail message is further evidence of the lack of good faith and inadequacy of the Defendant's search.
14. Though Plaintiff had requested: "any and all documents as well as all other forms of written, audio, computerized, photographic, videographic or satellite recorded reports." (Plaintiff's Complaint 5.) the DARPA electronic mail message limited its employees' search to only any past or present DARPA program, which fits the description of the object in Plaintiff's request. (Rohrkemper Declaration.) Thus, by limiting its search parameters to only past and present DARPA programs rather than to any information about this object, as Plaintiff requested, Defendant has not performed a search that could reasonably be expected to produce results. It is reasonable to believe, based upon the affidavits included with Plaintiff's Response to Defendant's Motion for Summary Judgment, that this triangular object, though not a past or present program of DARPA, would draw the attention of certain DARPA employees and private contractors because of its advanced performance characteristics and thus generate files independent of any past or present program.
Plaintiff contends there exists a triable issue of material fact, to wit: the reasonableness of Defendant's search. Thus, based upon 1) Defendant's unjustified initial refusal to conduct a search (in response to Plaintiff's FOIA request) and 2) Defendant's Supplemental Declarations which confirm that this initial reluctance and general attitude pervaded its subsequent search (in response to Plaintiff's FOIA appeal) to the degree of including misleading and incorrect keywords in a computerized search of the JCS while withholding essential descriptive information from an electronic mail message to DARPA employees, Plaintiff respectfully requests that this Court deny defendant's Motion for Summary Judgment and issue an Order setting a new Preliminary Pretrial Conference schedule pursuant to Rule 16 of he Federal Rules of Civil Procedure.
RESPECTFULLY SUBMITTED this 23rd day of March, 2000
Peter A. Gersten
COPY of the foregoing
Richard G. Patrick
The PAG Network
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