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This memorandum opinion by U.S. District Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia, dated March 27, 2007, rules in Leslie Kean's FOIA suit against NASA over records about the object said to have crashed in Kecksburg, Pennsylvania on December 9, 1965. The court found NASA had not shown its searches were adequate and noted likely overlooked Cosmos 96 records. It upheld NASA's withholding of two emails under Exemption 5 and ordered the parties to propose new search procedures.
16 able to meet its burden. Given that most of the submissions are so vague, however, defendant cannot meet its burden under FOIA of showing “beyond material doubt” that its search was reasonably sufficient. See Valencia-Lucena, 180 F.3d at 325. In addition, plaintiff argues that there is evidence of specific overlooked documents not found by NASA’s search, which supports her argument that the search was inadequate. “[P]ositive indications of overlooked materials” do cast doubt on the adequacy of a FOIA search. See Valencia-Lucena, 180 F.3d at 326. On the other hand, “mere speculation that as yet uncovered documents may exist does not undermine” the sufficiency of an agency’s search. Safecard Sears v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). Defendant argues that some of plaintiff’s “missing documents” have in fact now been disclosed or conclusively do not exist. Plaintiff points to historical documents that her own independent research discovered, but defendant responds that the prior existence of such documents does not prove that NASA still retains such documents. See Maynard v. CIA, 986 F.2d 547, 559 (1st Cir. 1993) (“the fact that a document once existed does not mean that it now exists . . . [nor] that the agency has retained it”). Plaintiff does, however, present two strong arguments about missing documents. First, she points to several NASA documents that refer to the “Cosmos 96" satellite, one of which has been Case 1:03-cv-02509-EGS Document 45 Filed 03/27/07 Page 16 of 21
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