| December 6, 2002 VIA FEDERAL EXPRESS Theodore F. Fredman, Esq. Office of the General Counsel Department of the Navy 720 Kennon Street SE, Room 214 Washington Navy Yard Washington, DC 20374 Re: FOIA Appeal Dear Mr. Fredman: I represesnt WNEP-TV, a New York Times Company television station. I write to appeal the partial denial of a July 31, 2002 request for documents (the "Request") by WNEP-TV reporter Bob Reynolds under the Freedom of Information Act ("FOIA"). A copy of the October 10, 2002 letter from John McCollum (the "Response") denying the Request is enclosed, as is the Request. At issue on this appeal is the request by Mr. Reynolds for a document titled "Analysis of TWA Flight 800 for Missile Impacts" (the "Report"). In his letter, without any further explanation, Mr. McCollum simply declares that the Report is exempt from disclosure under the Arms Export Control Act and the Export Administrative Act of 1979 ? which I assume is an attempt to invoke 10 U.S.C. § 130 ? and cites FOIA exemptions (b)(1) and (b)(3). While invoking the exemption applicable when an Executive Order is involved ((b)(1)), the Response fails to even specify what order is being relied upon, let alone what provisions of the order are applicable. Such a response is clearly inadequate under FOIA. First, such a vague invocation of the exemptions effectively prevents the requester from making a substantive appeal addressing the legal and factual rationale for the denial. That is unacceptable. We trust the Office of General Counsel will not deal with this appeal in a similarly conclusory fashion should it decide to deny access to the Report. Second, the Response fails to meets the standards set forth by the courts for invoking an exemption based on security concerns. Recognizing that FOIA requesters are at a substantial disadvantage because they lack access to the facts behind a denial, the courts have required a "particularized explanation of how disclosure of the particular document would damage the interest protected by the claimed exemption." Weiner v. F.B.I., 943 F.2d 972, 977-78 (9th Cir. 1991); Bay Area Lawyers Alliance for Nuclear Arms Control v. Dep't of State, 818 F. Supp. 1291, 1295 (N.D. Cal. 1992). More specifically in national security matters, the courts have required the agency to "describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption." American Friends Service Committee v. Dep't of Defense, 831 F.2d 441, 444 (D.C. Cir. 1987) (internal citations and quotations omitted). The agency cannot resort to "conclusory and generalized allegations of exemptions." Halpern v. F.B.I., 181 F.3d 279, 290 (2d Cir. 1999) (internal citations and quotations omitted). Here, the Department has not even begun to provide the requisite specificity for the denial. Nor is the Department's reasoning self-obvious. To the contrary, it is hard to image how statutes regulating arms exports have any bearing on a forensic analysis of the crash of a domestic airliner. At the very least, the Department had an obligation to set forth the "logical connection" between the statutes and the denial of access to the Report. Third, it is well established that an agency must disclose those portions of a document that can be segregated from the classified parts. American Friends, 831 F.2d at 445. Here, where logic suggests that much of the report deals with forensic evidence and not with particular arms systems, it is inconceivable that the entire report must be kept secret. The Response fails to indicate why the Department rejected redaction as a way to meet its legal obligations under FOIA ? or even whether redaction was considered. In light of the wholly inadequate handling of the Request and our intention to pursue this document through litigation if necessary, we would ask that you expedite consideration of this appeal rather than taking the full twenty business days allowed by law. Thank you for your consideration. Sincerely, David E. McCraw enclosures cc: Mr. Bob Reynolds Home - Last Updated:
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