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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.
18 must be narrowly construed in favor of disclosure. U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). The government bears the burden of justifying the withholding of any requested documents through agency affidavits, an index of withheld documents, or both. U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 861 (D.C. Cir. 1980). Plaintiff challenges defendant’s withholding of two emails pursuant to FOIA Exemption 5. Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). This language has been construed to exempt those documents that would not be routinely available to an agency’s opponent in a civil discovery context and to incorporate all evidentiary privileges that would be available in that context. See Rockwell Int’l Corp. v. DOJ, 235 F.3d 598, 601 (D.C. Cir. 2001). In its Vaughn index, defendant describes the emails as, “[t]wo emails between the NASA FOIA Officer and a Senior Attorney W. Bierbower seeking legal advice; these emails were dated [November] 4 and 5, 2003, pertaining to the request to be interviewed [sic] by SciFi.” 1st McConnell Decl., Vaughn Index #101. Defendant asserts that these emails are protected under both the deliberative process privilege and attorney-client privilege. Case 1:03-cv-02509-EGS Document 45 Filed 03/27/07 Page 18 of 21
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