Associated Retired Aviation Professionals

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: 
 © 2001& 2002  Robert E. Donaldson.  All rights reserved