UNITED STATES DISTRICT COURT
THE DISTRICT OF ARIZONA
CITIZENS AGAINST UFO SECRECY, INC.
DEPARTMENT OF DEFENSE
PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF ITS RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff seeks the release of certain government documents under the Freedom of Information Act ("FOIA"). These documents are specified in a letter to defendant dated July 23, 1998.
Plaintiff's request is based upon thousands of eyewitness reports including, but not limited to, the thirty-three eyewitness affidavits, describing an unusual triangular-shaped aerial object that has been seen in the United States over the past forty years. (Exhibit B.)
Defendant filed a Motion for Summary Judgment in which it states that a reasonable search of federal agency records revealed no documents responsive to plaintiff's FOIA request. Defendant submitted declarations signed by various agency personnel in support of its Motion.
Plaintiff contends that defendant's search was not reasonable under the circumstances of this case for the reasons set forth below.
The question presented in this Response is whether defendant's search meets the criteria set forth in the FOIA for a search of requested government records and whether defendant's Motion for Summary Judgment should be granted at this time. Plaintiff maintains that defendant's Motion should be denied pending a Court hearing and/or further discovery in this matter.
A. DEFENDANT'S SEARCH WAS NOT "REASONABLE."
Defendant initially treated plaintiff's request incorrectly as a request for Unidentified Flying Object (UFO) related documents, and determined no search was required since "no office within OSD/OJCS…maintains documents on UFOs." (McIntyre Declaration 4; 5.)
Since plaintiff had requested information about a specifically described aerial object by including eyewitness reports, sketches and a photo, rather than a general request for UFO documents, it is obvious that defendant's initial treatment of plaintiff's request was unreasonable. It was only after plaintiff's administrative appeal that defendant initiated a de novo search of the two most likely departments (DARPA and OJCS) to have relevant documents. (McIntyre Declaration 6.)
(1) Defense Advanced Research Projects Agency (DARPA)
On September 21, 1998, Ms. Patricia A. Rohrkemper (the DARPA FOIA Officer) sent an electronic mail message marked "importance High" to DARPA's two hundred employees as well as all contract support personnel with access to DARPA's internal computer network. (Dunn Declaration s 1;3.)
The electronic message was sent "registered" and all receipts were recorded in an electronic "folder." No positive responses were received (Dunn Declaration 4.)
Though it can be assumed that said responses were also recorded in the electronic "folder," neither the original electronic messages nor their responses are included in defendant's Motion. Plaintiff contends that, based upon defendant's initial treatment of plaintiff's request as requiring no search based upon a predisposition that no such records exist, any subsequent request must be carefully scrutinized to determine whether such predisposition also existed within DARPA.
Thus it is necessary to determine the content of the original electronic message to each of the DARPA employees as well as each response. Plaintiff contends that any "general request" to DARPA employees for UFO related documents would be insufficient and any subsequent search, unreasonable. Though plaintiff did not identify any "project" name nor the exact location of the documents, it did, in its initial request and appeal, include eyewitness descriptions, sketches and one photo to assist the defendant in its search. It is plaintiff's contention, that unless the electronic messages to DARPA personnel included the above information, any search would be unreasonable. 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).
Thus, plaintiff is requesting that it be provided with the electronic messages and responses so as to further argue intelligently as to the reasonableness of defendant's search regarding DARPA.
(2) Office of the Joint Chiefs of Staff (OJCS)
Access to the records of the Joint Staff (which includes records of the Chairman of the Joint Chiefs of Staff and Joint Chief of Staff) is by a computerized document index and retrieved by "unique identifiers and keywords related to the subject area." (McBride Declaration 3.)
OJCS was queried by Information Management personnel for records concerning "the object or craft described" by plaintiff in its request, and no responsive records were located. (McBride Declaration 3.)
Unlike the declaration of Richard L. Dunn on behalf of DARPA, there is no indication in Edmund F. McBride's declaration (or anywhere else in defendant's Motion) of the nature of the "query." Though Mr. McBride does state the "query" involved "records concerning the object or craft", he does not state what that included. Plaintiff contends that unless the "query" included all the materials plaintiff included with its request (eyewitness description, sketches and photo) any subsequent search would be inadequate and thus unreasonable. Olgesby , 920 F.2d at 68; Maynard, 986 F.2d 2 at 559.
Plaintiff further contends that it is entitled to any "unique identifiers and keywords" used in the failed attempt to access the information, in order to argue the reasonableness of their use. It seems apparent to plaintiff, that any search, to be reasonable, would have to involve the dissemination of the materials provided by plaintiff in its request, to appropriate agency personnel. Plaintiff's FOIA request is more amenable to physically perusing the eyewitness reports, sketches and photo, than it is to a computerized "fishing expedition" type search.
(3) Request Information Sheet (SD Form 472)
Most significantly are the two SD 472 forms included with the declarations of Dunn and McBride. Whereas the form signed by Richard L. Dunn, clearly indicates that no records were found, a similar form signed by Edmund F. McBride, indicates an "x" in the "Records Found" box in #4 "Component Search Results" and subsequently crossed out. (Exhibit F of McBride Declaration.)
"In order to justify discovery once the agency has satisfied its burden, the plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the agency's affidavits or declarations or provide some tangible evidence…summary judgment is otherwise inappropriate." Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2nd Cir. 1994).
Plaintiff contends it is entitled to further discovery on this contradiction and raises the inference of bad faith.
(4) Defense and Space Operation Division, Operations Directorate (J-3)
All action and officer and functional files were searched with similar results. No responsive records were located. (McBride Declaration 4.)
No detail about the nature and extent of this search is provided. Plaintiff repeats and reiterates with the same force and effect, its arguments in relation to the searches conducted by DARPA and OCJS.
(5) Eyewitness Affidavits Create a Triable Issue as to the Reasonableness of the Search
Plaintiff has included, with its Response, thirty-three affidavits as a sample of the overwhelming number of eyewitnesses over a twenty-three year period (1953 sighting not considered for argument purposes) in which this triangular aerial object(s) has been observed in various parts of the United States. (Exhibits B.)
Plaintiff contends that the eyewitness affidavits establish the existence of a triangular aerial object(s) with certain specific performance characteristics, in our skies for at least the last twenty years. Once established, an inference can be drawn that no matter what the object(s) origin or identity, the OJCS, because of its "intelligence and security" responsibility (McBride Declaration 2.) must have information about it. Not only must the defendant have information about the object(s), but also due to its unusual appearance and highly sophisticated performance characteristics, the information should be easily retrievable. The fact that the defendant maintains there is no information about an object that is so apparently within the defendant's jurisdiction, is evidence of the unreasonableness of its search, notwithstanding the "good faith" accorded the affidavits included with its Motion.
Defendant maintains that plaintiff has failed to connect the "aerial craft described in its request with the defendant." Based on the reported performance characteristics included in the affidavits, (see Exhibit A for "Summary") it is inconceivable that the defendant, particularly the OCJS, which has responsibility for "intelligence and security" would not have information about such a "craft." It must be assumed, in deciding defendant's motion, that "intelligence and security" would involve knowing about an extremely large triangular object in our skies and over our homes "floating" at tree-top level for the past twenty years…especially if they are not ours as the defendant impliedly contends. It is the defendant's responsibility to provide "security" against both known an unknown "invaders." Inherent in this responsibility is the necessity to collect "intelligence" about the objects.
It is apparent that all the defendant conducted was a perfunctory search…not a reasonable search. A reasonable search would have found documents responsive to plaintiff's request.
For the reasons set forth in detail above, the plaintiff respectfully requests that this Court deny defendant's Motion for Summary Judgment and schedule a hearing on this matter or, in the alternative, issue an Order permitting plaintiff to conduct limited discovery while directing that defendant provide plaintiff with the additional information requested in this Response.
RESPECTFULLY SUBMITTED this 14th day of September, 1999.
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