MI CHAEL QUI CK, Plaintif f , v. UNI TED STATES DEPARTMENT OF COMMERCE, NATI ONAL I NSTI TUTE OF STANDARDS AND TECHN OL OGY, Defendant
. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 09-02064 ( CKK)

MEMORAN DUM OP INION (April 7, 2011) Plaintiff Michael Quic k (“Q uick”) commence d this action ag ainst the National Institut e of Standards and T echnology (“N I ST”), an a g ency

of the United States De partment of Commerc e, under the Fr eedom of

Information Ac t (“F OIA”) , 5 U.S.C. § 552, seekingthe disclosure of the
raw data that NI ST used in its architectur al and e ng ineer ing mode ling of the collapse of the World Trade Cente r 7 (“ WTC 7”) building on September 11, 2001. Presently

befor e the Court
are NI ST’s [10] Motion for Summary J udg ment and Quick’ s [13] Cross-Motion for Summary J udg ment. Ba sed upon the pa rties’ submissions, the releva nt authorities, and the r ecor d as a whole, the Court shall g rant NI ST’s Motion for Summary J udg ment, deny

Quick’s Cross-Motion for Summary

J udg ment, and dismiss thi s action in its entirety
. 1

Whil e the Court re nders its dec ision today on the re cord a s a whole, its consider ation 1 has foc used on the followingdocuments, listed in chronolog ical orde r of their filing: De f.’s Mem. of P. & A . in Supp. of Def.’ s Mot. for Summ. J . (“D ef.’ s [10] Mem.”), D ocket No. [10]; Dec l. of Catherine S. Fletche r (“ Fletc her D ecl.” ), Doc ket No. [10-1]; Def .’s Stmt. of Undisputed Materia l Fac ts (“De f.’s Stmt.”), Docke t No. [10-2] ; Pl.’s Mem. of P. & A. in Supp. of Pl.’s Mot. for Summ. J ., and in Opp’n to De f.’s Mot. for Summ. J . (“Pl.’s [13] Mem.”), D ocket No. [13]; Pl.’s St mt. of Undisputed Materia l Fac ts (“Pl.’s Stmt .”), D ocket No. [13-1]; Decl. of Micha elI. P RELIMINARY M ATTERS

Preliminarily , the Court pauses to make an over arc hing obse rvation about the nature of Quick’s opposition to NI ST’s Motion for Summary J udg ment. The United States District Court for the D istrict of Columbia has supplemented Rule 56 of the F eder al Rules of Civil P roce dure with L ocal Civil Rule 7(h)(1), which re quires that ea ch par ty submitt ing a

motion for summary judgme nt attach a

statement of mate rial fa cts for which that par ty contends ther e is no g enuine dispute. The par

ty opposing the motion mus t, in turn, submit a re sponsive statement
enumer atingall materia l fac ts which the par ty contends a

re g enuinely

disputed. SeeL CvR 7(h)( 1). B oth the moving pa rty ’s initial statement and the opposingparty ’s re sponsive statement must be based on “ ref

ere nces to the pa

rts of the re cord r elied on to support the stateme nt.” Id. 2 This well-re asoned r

ule “plac es the burde n on the par ties and their c ounsel, who ar e most familiar with the litigation and the re cord, to c ry stalliz e for the district court the material fa cts and re levant portions of the r ecor d.” Jack son v. Finnegan, He nderson, Farabow, Garrett & Dunner , 101 F.3d 145, 151 ( D.C. Cir. 1996). This Court strictly adher es to the dictate s of L ocal Civil Rule 7(h)(1) when r esolving motions for summary judgme nt.
Quick, Doc ket No. [13-2]; Def .’s Consolidated Reply

in Furthe r Supp. of its Mot. for Summ. J
. and Opp’ n to Pl.’s C ross-Mot. for Summ. J . (“D ef.’ s [16] Mem.”), D ocket No. [16]; S uppl. Decl. of Cather ine S. Fletche r (“ 2d Fletc her D ecl.” ), Doc ket No. [16-1]; Def .’s Resp. to Pl.’s St mt. of Undisputed Mater ial Fa cts (“D ef.’ s Resp.”), Doc ket No. [16-2]; Pl.’s Reply Mem. in Supp. of Pl.’s Mot. for Summ . J . (“Pl.’s [20] Mem.”), D ocket No. [20]; S uppl. Decl. of Michae l Quick, Docke t No. [20-1] ; Def.’ s Surreply in Furthe r Opp’n to Pl.’s Cross-Mot. for Summ. J . (“D ef.’ s [22] Mem.”), D ocket No. [22]. In this way , L ocal Civil Rule 7(h)(1) a ligns with the re cent a mendments to Rule 56 of 2 the Fe dera l Rules of Civil Procedur e. SeeFe d. R. Civ. P . 56(c) (1) & (3) ( requiringparties to “cit[e] to particular par

ts of materia ls in the recor d” and pr oviding that “ [t ]he court nee d consider only the cited mate rials.”)
. 2In the instant case , while Quick ha s submitt ed a sta tement of mate rial fa cts in support of his own Cross-Motion for Summary J udg ment, he has f

ailed to file a

response to the statement filed by NI ST in support of its i ndepende nt Motion for Summ ary J udg ment. Whil e ther e may be some fac tual overla

p betwee n the matters discusse d in NI ST’s statement and the ma tters discussed in Quick’s state ment, that does not relieve Quick of his burde n to come for war d with a statement spec ifically

responding

to eac h of NI ST’s fac tual alleg ations in order to be st cry stalliz e the disputed issues for the Court. To the extent the Court is unable to disce rn the e x tent of Quick’s a g ree ment or disag ree ment with NI ST’s proffe red f acts fr om the contents of his statement, the Court shall, in an exerc ise of its discretion, assume the uncontrove rted fa cts identified by

NI ST to be admitted for purpose s of re solving the pe nding motions. Howe ver, g iven that there appea

rs to be surpr isingly

littl e disag ree ment betwee n the par ties about the underlying f

acts, the impac t of this conclusion is likely de minimis. II. BACKG ROUND The National Construction S afe ty Tea m Act (the “NCSTA”), 15 U.S.C. § 7301 et seq. , authorizes NI ST to establish national construction safe ty teams to investiga

te “the f ailure of a building or building s that has re sulted in substantial loss of life or that posed sig nificant potential for substantial loss of life.” 15 U.S.C. § 7301(a). Exercisingthis authority , NI ST conducted a n investigation into t he collapse of the WTC 7 buildi ng , a for ty -seve n-story

office building loca

ted immediately

to the north of the World Tra de Center complex, caused by

approximately

seven hours of fir es ig nited by

debris fr om the collapse of the North Towe r on September 11, 2001. On Novembe r 13, 2008, Quick r equeste d that NI ST disclose “a c omplete ‘[c]ertified’ leg itimate copy

of the [c]omput er [m] odels [u] sed by NI ST to come to the conc lusions’ [ sic] it
3rea ched in the [i]nvesti g ation of the e vent of Septembe r 11, 2001.” D ef.’ s Stm t. ¶ 1; Pl.’s S tmt. ¶

1. Over the ensuingday s, Quick and N I ST corre sponded in a succ essful ef fort to clar ify

the scope of the re quest. Def

.’s Stmt. ¶ 2; P l.’s Stmt . ¶ 2. In its final form, Quick’ s reque st sought “the ‘ rawdata’ of the models re g ardingthe collapse of World Trade Center ( WTC) Building 7” found on NI ST’s public website. De f.’s Stmt. ¶ 2; Pl .’s Stmt. ¶ 2. NI ST provided Quick a fee assessment and, on or

about Fe bruar

y 23, 2009, Quick sent a

chec k to NI ST in the amount of $824.98 for se arc h and duplication fe es. Pl.’s Stm t. ¶ 6; Def.’ s Resp. ¶ 6. On J uly 9, 2009, the Dire ctor of N I ST issued a forma l finding pur suant to the NCSTA providing that the public disclosure of cer tain information g ather ed by NI ST in connection with its investigation into the collapse of the WTC 7 buil ding “ might jeopa rdize public safe ty .” De f.’s Stmt . ¶¶ 7- 9. There afte r, individuals with the requisite technic al expertise and f amiliarity with the ra w data r esponsive to Quick’ s reque st care fully revie wed e ach data file to segreg ate those
cover ed by

the Dire ctor’s f

inding f rom those that wer e not cove red. Id. ¶ 10. The ta sk involved sorting thr oug h a massive amount of complex data used to simulate the ac tual phy sical re sponse of the WTC 7 buildi ngon the day in question. Fletche r De cl. ¶ 12. On Novembe r 4, 2009, while NI ST’s review of the re sponsive rec ords was ong oing, Quick commenc ed the instant ac tion. Pl .’s Stmt. ¶ 9; Def.’s Resp. ¶ 9. O n or about January 6, 2010, NI ST provided its init ial response to Quick’s re quest, rele asingapproximately 19,116 responsive data files. De f.’s Stmt. ¶ 3; Pl .’s Stmt. ¶ 11. On or about April 2, 2010, af ter discoveringa tec hnical er ror a ffe ctingits prior production, NI ST supplemented its response to disclose additional re sponsive data f iles. Def.’ s Stm t. ¶ 4; Pl.’s S tmt. ¶ 13. Overa ll, NI ST produce d a total of 25,644 data files re sponsive to Quick’s re quest and withheld a total of 68,500
4data f

iles. Def.’ s Stm t. ¶ 5; Pl.’s S tmt. ¶ 13. NI ST invoked FOIA Exempti on 3 as the ba sis for the non-disclosure of all 68,500 data files withheld. Def

.’s Stmt. ¶ 6; P l.’s Stmt . ¶ 11. III. LE GA L ST ANDAR D Congr ess ena cted F OIA to introduce tra nspare ncy

into gove rnment ac tiviti es. Stern v. Fed. Bure au of Inve

stigati on , 737 F.2d 84, 88 ( D.C. Cir. 1984). Congr ess re mained sensitive, howeve r, to the nee d to achieve balanc e betwe en this objective a nd the vulnera

bility of “leg itimate gove rnmental a nd private inter ests [t hat] could be harme d by rele ase of

cer tain ty pes of information.” Criti cal Mass Energy Project v. Nuc lear Regulatory Comm’n , 975 F.2d 871, 872 (D.C. Cir. 1992), cert. de nied, 507 U.S. 984 (1993). In revie wingmotions for summary judgme nt in this context, the dist rict cour t must conduct a de novo revie w of the r ecor d, 5 U.S.C. § 552(a) (4)( B) , which “r equire s the court to asc erta in whether the ag ency

has sustained its burden of demonstrating that the doc uments reque sted . . . are exempt from disclosure,” Assassinati on Archive s &Researc h Ctr. v. Cent. Intelligence A gency , 334 F.3d 55, 57 ( D.C. Cir. 2003) (interna l quotation marks omitted). “Consistent with the purpose of the A ct, the burde n is on the ag ency to justi fy withholding re quested doc uments,” Bec k v. D ep’t of Justice , 997 F.2d 1489, 1491 (D.C. Cir. 1993), and only afte r an a g ency

has prove n that it has fully discharg ed its obligations is s ummary

judgme nt appropriate, Moore v . Aspin , 916 F. Supp. 32, 35 (D.D .C. 1996) (c iting W

eisberg v. U

.S. Dep’ t of Justice , 705 F.2d 1344, 1350 ( D.C. Cir. 1983)). I n
asce rtainingwhether

the ag ency

has met its burden, the district c ourt may rely upon ag ency aff idavits or decla

rations provided the y

descr ibe “the justifications for nondisclosure with
rea sonably

specific detail, demonstrate that the information withheld log ically falls within the claimed e x emption, and ar e not controve rted by either c ontrary

evidenc e in the re cord nor by
5evidenc e of a g ency bad fa ith.” Military Audit Project v. Casey , 656 F.2d 724, 738 ( D.C. Cir. 1981). Summary

judgme nt is proper whe n the pleading s, the discover y materia ls on file, and any aff idavits or decla

rations “show[] t hat there is no ge nuine dispute as to any materia l fac t and the movant is entitled to judgment as a matter of la

w.” F ed. R. Civ. P. 56(a). With t hese principles in mind, the Court turns to t he mer its of the parties’ cross-motions for summar y judgme nt. IV. DISCUSSIO N Two motions are pr esently befor e the Court: NI ST’s [10] Motion for Summary J udg ment and Quick’ s [13] Cross-Motion for Summary J udg ment. Surprisingly , the two motions share littl e in common. Acc ording ly , the Court shall beg in by explaining why

it shall gra

nt NI ST’s motion, and then turn to expl ainingwhy it shall deny

Quick’s c ross-motion. There afte r, the Court shall address Quic k’s contention that he is e ntitled to dis cover y . A. NIST’s Motion For Su m m ary Judgm ent NI ST contends that it is entitl ed to summary judgme nt in this action bec ause it conduc ted
a re asonable sear ch for

rec ords re sponsive to Quick’s re quest; produce d all disclosable re cords responsive to that re quest, includingall rea sonably seg reg able por

tions thereof; a

nd proper ly withheld the re maining r ecor ds pursuant to FO I A Exempti on 3. SeeDef .’s [10] Mem. at 10-15. Although styled as such, Q uick’s “opposition” memora ndum contests none of this, but is instead confine d to Quick’s indepe ndent contention that he should be desig nated a s the preva iling par ty in this action beca

use he se cure d the produc tion of rec ords re sponsive to his request. See generally Pl.’s [ 13] Mem. I ndeed, Q uick expressly and re peate dly

argues that “the filing of

his civil action ca

used the a g ency

to provide [him] with responsive re cords” and that he ha s now
rec eived “ all non-exempt responsive re cords.” Pl.’s [ 20] Mem. at 1-2. He ne ver sug g ests—let
6alone e stablishes throug h leg al ar g ument and ade quate r ecor d support—that NI ST’s sear ch,

production, or withholdingdecisions wer e in any way defe ctive or othe rwise f

ell short of the applicable leg al standar ds. See ge nerallyPl.’s [ 13] Mem. I n this Ci rcuit, “it is well under stood . . . that when a

plaintiff files an opposition to a dispositive moti on and addr esses only cer tain arguments raised by

the def endant, a court may

treat those arguments that the plaintiff fa iled to addre ss as conc eded.” Hopkins v. W omen’ s Div., Ge n. Bd. of Global Ministri es , 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d , 98 F. App’ x 8 (D.C. Cir. 2004); accord Lewis v. District of Columbia , 2011 WL321711, at *1 (D.C. Cir. Fe b. 2, 2011). B eca use Quick ha s completely failed to c ontest NI ST’s arguments that it conducted a rea sonable sea

rch f or re cords, pr oduced a ll disclosable re cords, a

nd proper ly

withheld responsive r ecor ds, the Court shall treat those arguments as conc eded. Re g ardle ss, as described below, the r ecor d supports NI ST’s position. First, NI ST has submitt ed a de tailed dec lara tion describingthe contours of its searc h for the ra w data use d to prepa

re the arc hitectura l and eng ineer ing mode ls simul atingthe collapse of the WTC 7 buil ding. SeeFletc her D ecl. ¶ ¶ 7-88. That searc h included consultingwith experts in NI ST’s Buildingand F ire Rese arc h L aboratory (the “ BF RL ”)—the ag ency component responsible for

perf orming the modelingin question and the ar ea most likely to maintain rec ords responsive to Quic k’s re quest—and, a s a re sult of its efforts, NI ST ulti mately located the exact data f iles it set out to l ocate
. Id. ¶¶ 7- 14, 28-30. Unde r these c ircumstance s, NI ST has shown that it made “a

g ood faith ef

fort to conduc t a sea

rch f or the re quested re cords, usingmethods which ca n be re asonably

expected to produc e the infor mation reque sted.” Oglesby v . U.S. Dep’ t of Army , 920 F.2d 57, 68 ( D.C. Cir. 1990). Second, NI ST has provided ample support for its contention that its decision to withhold
768,500 data f iles involved a straig htforwa rd application of FOIA Exempti on 3, which per mits an ag ency to withhold information “specific ally exempted from disclosure by statute . . . if that statute . . . ref

ers to par ticular ty pes of matter s to be withheld.” 5 U.S.C. § 552(b)( 3)(A) (ii). Of particula r re levanc e her e, the NCSTA expressly prec ludes NI ST from “publicly rele as[ing] any information it rec eives in the c ourse of an investig ation . . . if the Dire ctor finds that the disclosure of that information might jeopa rdize public safe ty .” 15 U.S.C. § 7306(d). In confor mity with this provisi on, the Dire ctor of N I ST made an e x press finding that the public disclosure of c erta in ty

pes of infor

mation pertainingto the arc hitectura l and eng ineer ing modeling of

the collapse of the WTC 7 buildi ngmight jeopa rdize public safe ty

—g ener ally speaking , detailed c onnection models, conne ction materia l properties, a nd brea k element strips that had bee n validated a g ainst actua l events. F letcher Dec l. ¶¶ 17-18, 22 & Ex . 4. Reduce d to lay man’s ter ms, the differ ence betwee n the information that wa s relea sed and the information that was withheld is that the re lease d data f iles contain structura l models based on information g ener ally available to building desig ners a nd eng ineer s, where as the withheld data files conta in information that could be use d to predict the c ollapse of a building and, if

made available to a person with the a

ppropriate level of e x pertise, would pr ovide instruction to individuals wanting to learn howto simul ate buildingcollapses a nd how to most effe ctively destroy larg e buildings. Id. ¶ 22. As conte mplated by the statutory

scheme cre ated by

Congr ess, the Dire ctor of N I ST broug ht his ex pertise to bea r on the subjec t and deter mined that the public disclosure of such information “mig ht jeopardize public saf ety ,” 15 U.S.C. § 7306(d), a nd should be withheld. This explanation for non-disclosure is sufficiently “log ical” or

“plausible” to satisfy

NI ST’s burden of justify ing its withholdings, Larson v. Dep’t of State , 565 F.3d 857, 862 ( D.C. Cir. 2009), and
8NI ST has, moreove r, explained in a “r elatively detailed” manner

why the exemption is rele vant in this contex t and has a

ppropriate ly

corr elated the exemption wit h the per tinent rec ords, Judicial W atch, Inc . v. Food &Drug Admin. , 449 F.3d 141, 145 ( D.C. Cir. 2006). In short, NI ST has provided a

n adequate explanation of, and justification for , its withhol ding de cisions. Third, and f

inally , NI ST’s sworn dec larations describe how , afte r conduc ting a n extensive interrog ation of the data files re sponsive to Quick’s re quest, it has car efully revie wed a

nd rele ased a ll reasona

bly seg reg able infor

mation. Ultimately , NI ST relea sed a total of 25,644 data files and withheld a

nother 68,500. F letcher

Dec l. ¶ 26. NI ST has produce d a Vaughn index 3 dividing the data files into their org anizational and func tional case folders a nd setting f

orth the following information for e ach r esponsive ca se folder : a desc ription of the ana ly sis to which the data f iles in the case folder r elate; the por tions of the investigation reports to which the data files in the case folder r elate; a description of eac h cate g ory of withheld data

files in the ca se folder ; the pre cise number

of data files for e ach c ateg ory

of withheld files; and a

segreg ability

analy sis for e ach c ase f

older. Id. ¶¶ 28- 88. As the United States Court of Appe als for the District of Columbi a Circuit has obser ved, the que stion of seg reg ability is by nece ssity subjective a

nd context-specific, turningupon the nature of the re cords in question and the information containe d there in. Mead D ata Cent., Inc. v. U .S. Dep’ t of Air Force , 566 F.2d 242, 261 ( D.C. Cir. 1977). In this case, pa

rticularly when takinginto account the she er sc ope of the data c apture d by Quick’s reque st, NI ST’s submissi ons are a per fec t illus tration of how a bstraction and c ateg orica l

In Vaughn v. Rose n , 484 F.2d 820 ( D.C. Cir. 1973), cert. de nied , 415 U.S. 977 (1974), 3 the United States Court of Appe als for the District of Columbia Circuit provided that ag encie s should ge nera lly

prepa re a n itemiz ed index corre lating e ach w ithheld document, or portion there of, with a spec ific exemption and the ag ency ’s justification for non- disclosure. 9treatment, used proper ly , may assist the district court in evalua ting a n ag ency ’s withholding decisions. Judicial W

atch , 449 F.3d at 147; see also Budik v . Dep’ t of Army , 742 F. Supp. 2d 20, 37 (D.D.C. 2010) (“[A]n ag ency is not precluded f

rom g roupingcate g ories of doc uments that merit similar treatment.” ). In this case, NI ST has provided a rea sonably

detailed e x planation to support its claim that all non-exempt, responsive information has be en produc ed. In the final a

naly sis, NI ST conducted a rea sonable sea

rch f or re cords r esponsive to Quick’s r equest; produc ed all disclosable r ecor ds responsive to that re quest, including all
rea sonably

seg reg able por

tions thereof; a

nd proper ly

withheld the re maining r ecor ds pursuant to FOIA Exempti on 3. There fore , and bec ause Q uick has c oncede d the merits of NI ST’s arguments in this reg ard, the Court shall gr ant NI ST’s [10] Motion for Summary J udg ment in its entirety
. B. Quick’s Cross-Motion For Su m m ary Judgm ent The ba sis for Quick’ s Cross-Motion for Summary J udg ment is not easy

to define; he has repe atedly

shifted his position and redef ined his arguments with eac h succe ssive filing, eff ectively prese nting both this Court and NI ST with a moving tar g et. Indeed, the contours of Quick’s a rguments are not fully

reve aled until his reply . The va riable na ture of Q uick’s position appea rs to be the r esult of his eff orts to adapt and c orre ct his arguments—which ar e pre mised on an incor rec t understandingof both the re levant fa cts and the a pplicable leg al standar d—once one
avenue for r elief ha s been a ll but foreclose d by NI ST’s responsive br iefing
. 1. Quick’s Argum ent That He Has “Su bstantiall y P revailed” In Thi s Act ion B y Securing Th e P roduction Of Rec ords Is Withou t Me rit In his opening memorandum, Quic k tender ed a sing le ar g ument in support of his CrossMotion for Summary

J udg ment—namely , that he should be de emed to have “substantially preva iled” in this action bec ause N I ST produced r ecor ds responsive to his reque st after the 10commence ment of the instant ac tion. Pl .’s [13] Mem. at 9-10. In support of that position, Quick

cited two author ities. The first wa s the provision from F OIA addr essingwhen a district court may “asse ss ag ainst the United States re asonable attorney fee s and other litig ation costs incurre d in any case . . . in which the complaina nt has substantially

preva iled.” 5 U.S.C. § 552(a) (4)( E)(i). The sec ond was a

n opinion from the United States Court of Appe als for the Ninth Circuit addre ssing that same provision. See Oregon Natural Desert Ass’n v . Locke , 572 F.3d 610, 614- 15 (9 Cir. 2009). Quite re asonably , NI ST construed Quic k’s openingmemorandum a s t h tantamount to a pre mature pe tition for attorney s’ fe es, and ta ilored its arguments acc ording ly
. SeeDef .’s [16] Mem. Pivoti ng , Quick re sponded that NI ST “clea rly misconstrued [his] reque st for de clar atory

relief in this action,” conc eded that he “f ully concur s . . . that it is entirely premature for

the par ties to address a

ny attorney fee rec overy

issues at this tim e,” a

nd then proce eded to se t forth an e ntirely new a rgument that NI ST has eng ag ed in an unlaw ful “pa ttern or prac tice” of

delay in respondingto FOI

A re quests conce rningits investigation into the events that transpire d at the World Trade Center on Septembe r 11, 2001. Pl.’s [20] Mem. at 1-2, 9. Quick’s sug g estion that NI ST simpl y misunderstood his “pattern or prac tice” a

rgument is entirely disinge nuous; the Court agree s that the only rea sonable re adingof Quick’ s opening memorandum is as a

premature pe tition for attorney s’ fe es or a n attempt to set the stag e for such a petition. Whil e Quick ma y have a lleg ed that NI ST failed to “wa ke up” a nd proce ss his request until after he commence d the instant action, complete ly absent fr om Quick’s opening memorandum is any

sug g estion—let alone fa ctual and le g al support—for his ne wly tender ed argument that NI ST has eng ag ed in a br oader “patter n or pra ctice” of dela

y in respondingto reque sts ge nera lly
. SeePl.’s [ 13] Mem. I ndeed, the premises of the two arguments are , if not
11fundame ntally irrec oncilable, in conside rable tension. On the one ha nd, Quick ar g ued in his openingmemorandum that he had succ essfully secur ed “a

voluntary

or unilatera l chang e in [NI ST’s] pos ition,” id. at 10—in other wor ds, he ar g ued that he ha d alre ady obtained the de sired outcome. On the othe r hand, in support of his “ pattern or prac tice” a

rgument, Quick ar g ues in his reply memorandum that NI ST is enga g ing in a n ong oing pr actice of fa iling to “pr ovide a f inal response or re sponsive rec ords to a F OIA re quester a bsent the filingof a f

eder al cour

t FOIA action,” a nd that he re quires a de clar ation and injunction to preve nt NI ST from eng ag ing in the alleg ed pra ctice “ in the future.” Pl.’s [ 20] Mem. at 7. The Court shall not belabor the point: it i s clea

r fr om Quick’s openingmemorandum that the sole basis for

his Cross-Motion for Summ ary J udg ment is that he should be dee med to have “substantially

preva iled” in this action bec ause N I ST produced r ecor ds responsive to his reque st afte r the c ommenceme nt of the instant action. Pl.’s [13] Mem. at 9-10. B eca use this is a question that g oes to his entitlement to attorney s’ fe es, and be cause Quick has since conce ded that it is premature f

or the pa rties to addre ss the rec overy of attorne y s’ fe es at this time, the Court shall deny

Quick’s [13] C ross-Motion for Summary J udg ment on this basis alone. 2. Quick’s Untime ly Argum ent That NIST H as Engaged I n A “P atte rn Or P ract ice” Of Delay Is Without Merit Even if the Court we re to c onsider Quick’ s belatedly tender ed arg ument, offe red f or the first time in his reply

paper s, that he is entitled to summary judgme nt beca

use NI ST has “an unlawful patten [si c] and prac tice” of producingrec ords only

afte r a r equeste r take s the step of commencinga lawsuit, Pl.’s [20] Mem. at 2-3, the sa me re sult would obtain. For at lea st two
rea sons, the argument is without m erit.

12i. No “patter n or practic e” claim appears in Q uick’s Com plain t in thi s action. First, the a

rgument fails at the outset for the simple rea son that nothing e ven re motely
rese mbling a “ pattern or

prac tice” c laim appea

rs within the four c orner s of Quick’ s Complaint. The Complaint includes a sing le ca use of a ction—namely , that NI ST “fail[ed] to provide [ Quick] with all responsive non-e x empt rec ords . . . re quested by [hi m] in his FOIA re quest of Nove mber 13, 2008.” Compl., Docket No. [1], ¶ 19. I n connec tion with that cause of a ction, Quick soug ht a dec idedly

narr ow dec laration that NI ST “violated F OIA by failingto provide all non-e x empt
rec ords re sponsive to [ his] November 13, 2008 FOIA re quest” a nd a cor responding ly

narr ow order direc ting NI ST to “immediately provide [him] with all non-exempt recor ds responsive to [hi s] November 13, 2008 re quest.” Compl. at 7. Even view ing his Complaint in a g ener ous light, ther e simply

is no indication—none—that Quick’s na rrow c laim ext ended be y ond the discrete confine s of his specific reque st for re cords to enc ompass a broa der “ pattern or prac tice” challeng e. Meanwhile, in the near ly

seven months that have passed since NI ST first argued that Quick’s Cross-Motion for Summary J udg ment cannot r est on a “ pattern or prac tice” c laim beca use no such c laim appea

rs in the Complaint, seeDef .’s [22] Mem. at 3, Quick ha s never soug ht leave to a

mend his Complaint t o add such a claim. To the e x tent Quick conside rs his belated a rgument proff

ere d in his reply

memorandum suff

icient, he is mistaken; it is ax iomatic that a par ty cannot a mend its complaint merely by injectingnew c laims in the course of briefinga dispositi ve motion. Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv. , 297 F. Supp. 2d 165, 170 (D.D.C. 2003). In short, Quick’s a lleg ations conce rningan alleg ed “pattern or pr actice ” in the wa y NI ST 13handles F OIA re quests are not material to any claim bef

ore the Court. Ba sed on Quick’ s expl icit
conce ssion that he has re ceive d “all non-e x empt responsive r ecor ds” per taining to his re quest, Pl.’s [ 20] Mem. at 1-2, his only claim in this action is now moot and the associate d relief unavailable
. See Perry v . Block, 684 F.2d 121, 125 ( D.C. Cir. 1982) (“[H]owever f itful or delayed the r elea se of infor mation under the F OIA may be, once all reque sted rec ords ar e
surre ndere d, fede ral c ourts have no f urther statutory

function to perf

orm.”); accord Tunchez v. U.S. Dep’ t of Justice , 2011 WL1113423, at *1 (D.C. Cir. Mar. 14, 2011) (per curia m). There fore , the Court shall deny Quick’s [13] C ross-Motion for Summary J udg ment on this separ ate, indepe ndent basis.

ii. Quick l acks standi ng to pu rsue a “patte rn or pract ice” c laim in this action. Second, eve n if Quick ha d hy pothetically

asser ted a plausible “ pattern or prac tice” c laim in his Com plaint, he would neve rtheless lac k standing to pursue such a claim in this action. Even assuming, arguendo , that individuals others than Quick may have be en subjec t to a “patter n or prac tice” of

delay in NI ST’s proce ssing of

reque sts, the rec ord is clea r that Quick w as not himself subject to such a pattern or pr actice
. 4 I t is undisput ed that upon re ceivingQuick’s initial corr espondenc e on Nove mber 13, 2008, NI ST promptly

rea ched out to Quick in a succe ssful eff

ort to clarif

y the scope of the reque st. Fletche r De cl. Exs. 1-2; 2d Fletcher Dec l. ¶¶ 6-7. Within a wee k, Quick and N I ST had eng ag ed in an e x tended dialogue conc erningthe scope of the re quest, personne l within NI ST’s

In light of this conc lusion, the Court need not consider whether there is any

merit to 4 Quick’s c ontention that a “pattern or pr actice ” of de lay on NI ST’s part may

be evide nced by “thre e entire ly

independe nt circumstanc es” of delay . Pl.’s [ 20] Mem. at 6-7. 14FOIA offic e had c onfer red w ith personnel within the B FRL to asce rtain whe ther Quic k’s re quest was suff iciently tailored to allow for

further proce ssing, NI ST had informed Q uick of the prac tical problems flowingfrom the unique f ormatting of the data files re quested, a nd NI ST sent Quick an a cknowledgment letter de lineatingthe scope of his final re quest. Fle tcher Dec l. Ex . 2; 2d Fletc her D ecl. ¶

¶ 7-11. Within two weeks, per sonnel within NI ST’s FOIA offic e had identified additional tec hnical issues ar ising fr om the scope of Quick’s r equest, obtaine d technica l clarific ations from Quick c oncer ning those issues, and discussed the phy sical for mat of any potential rele ase. F letcher Dec l. Ex . 2.H; 2d Fletc her D ecl. ¶ ¶ 14, 16. B y

Dec ember

18, 2008, NI ST provided Quick with an update as to the log istics involved in processingand revie winghis requests, includingits concer n that the size of data, then e stimated to ex cee d two tera by tes, would span hundre ds of compac t discs and would likely require any

phy sical production to take the form of a hard dr ive. 2d Fle tcher

Dec l. ¶ 17. Quick wa s informed that NI ST would prepar e a f

ee a ssessment estimate, and N I ST beg an proc essingthe estimate internally that same da

y . Id. On J anuar

y 9, 2009, following a ser ies of interna l discussions and approva ls, NI ST sent Quick a f inal fee assessment estimate, a dvising Quic k that he had thirty day s to remit pay

ment. Fletc her D ecl. Ex. 2.J ; 2d Fletche r De cl. ¶¶ 18- 22. Rather than immediate ly remitting pa

y ment to expedite the proce ssing of his request, Quic k elec ted, as wa s his right, to wa it until the wee k prior to the expiration of the thirty -day period to re quest a thirty -day extension of tim e. F letcher Dec l. Ex . 2.K; 2d Fletc her D ecl. ¶ 23. Quick’s r equest wa s g rante d, and Quick ultimately submitt ed pay

ment in the amount of $824.98 on or a bout Febr uary 23, 2009, approximately

a month-and-a -half a fter he was fir st issued the fee assessment. F letcher Dec l. Ex . 2.K; 2d
15Fletc her D ecl. ¶ ¶ 23-24; Pl.’s Stmt . ¶ 6; Def .’s Resp. ¶ 6. Sig nificantly , the re g ulations g overningNI ST’s proce ssing of FOIA re quests expressly provide that “ [i ]f the component has notified a re quester that the actua l or estimated fe e is more than $20.00, the component shall not consider the reque st rece ived for pur poses of c alculatingthe time limit . . . to respond to a reque st, or proce ss it further, until the reque ster agree s to pay the anticipate d total fee .” 15 C.F.R. § 4.11(e) . As a re sult, the clock did not even be g in to run in this case until on or about Fe bruar y 23, 2009, when Quic k sent in pay ment for the r equisite proce ssing f ee. The ve ry

next 5 day , the B FRL

was instructe d to beg in its processingeff orts in ear nest. 2d Fle tcher

Dec l. ¶ 28. In this case, the ta sk of locating , revie wing , and produc ing r ecor ds responsive to Quick’ s reque st was not an ea sy

one: it beg an with an e x haustive sea rch f or re sponsive files; proce eded to the org anization and interrog ation of the 94,144 potentially responsive data files loca ted; and involved a dee p, two-tier r eview of eac h individual data file to asc erta in its contents and its role within the complex and specialized arc hitectura l and eng ineer ing mode ls developed by NI ST. 2d Fletc her D ecl. ¶

¶ 29-32. B y

J uly 2009, approximately

four months befor e Quick c ommenced the instant action, NI ST had alre ady provisionally

seg reg ated r esponsive fr om non-responsive data files and ha d develope d a g ener al under standing of the c ontents and roles of individual data files within the larg er mode ls. Id. ¶ 33.
The Court obser

ves that the re cord in this case includes an e -mail from Quic k to NI ST, 5 dated F ebrua

ry 13, 2009, ten day s befor e Quick a ctually paid the anticipated fe e, whe rein Quic k writes that “[t]he Ci tiz ens of the United States of Amer ica have ac complished the g oal of $825.00 $US [ sic] with a healthy surplus, which will be dec ided on at a later date” a nd “re quest[s] the funds g o to the fireme n and police vic tims fund for 911.” F letcher Dec l. Ex . 2.M. Even a ssuming that Quick’ s e-mail would satisfy the re quirement that the r equeste r “a g ree [] to pay the anticipate d total fee ” in a “ memorialized [] writing ,” 15 C.F.R. § 4.11(e ), the diff ere nce betwee n the date of

the e- mail and the date Quick ac tually paid the re quisite processingfee would not alter the Court’s c onclusion. 16Concurre ntly with its responsiveness re view, a se parate proc ess was unde rwa y to deter mine, as re quired by

the terms of the NCSTA, whether the public disclosure of

any of the information cove red by

Quick’s r equest mig ht pose a risk to public saf ety . 2d Fletc her D ecl. ¶ 34. On J uly

9, 2009, following a ser ies of interna l discussions, the Director of NI ST completed his review a

nd issued his formal findingidentifying c ateg ories of infor mation exempted from disclosure, whic h then allowed pe rsonnel within the B FRL to conduct a de ep dive into the data files to seg reg ate the da

ta files that we re e x empt from re lease from those that we re not e x empt from re lease . Def

.’s Stmt. ¶¶ 7-9; 2d Fletc her D ecl. ¶ 39. Significa

ntly , g iven the scope and complexit y

of the data involved, par

ticularly the complex relationships betwee n data, individuals with the requisite tec hnical expertise and f amiliarity with the raw

data we re r equire d to individually

revie w the 91,114 potentially responsive data files, shar ply curta iling the number

of competent staf

f ava ilable to participate. Def .’s Stmt. ¶ 10; Fletcher

Dec l. ¶ 15; 2d Fletc her D ecl. ¶ 40. The scope of the data involved, meanwhile, was e x tensive. Simply by way of example, one of the models develope d by NI ST in the course of

its investigation, desig ned to ca pture the response of the e ntire WTC 7 buil ding to the initial fa ilure eve nt, consisted of 3,045,925 distinct elements with 3,593,049 nodes. F letcher Dec l. ¶ 14. A sec ond model, ref err ed to colloquially

as the “sixt een- story

model,” wa s desig ned to simulate the structura l response to e levated temperatures of the lower sixteen stories of the building , wher e the f ires g rewand spre ad, causinga series of loca l structural fa ilures in the building’ s floor sy stems. Id. ¶ 13. The mode l contained 101,357 distinct ele ments with 93,413 nodes, with eac h element a ssociated with a signific ant amount of data, id. , perta ining to such f actor s as nonlinear

g eometric eff

ects, g ravity
17load, temper ature -time histories, thermal e x pansion, materia l stress-strain be havior, bolt failure ,

etc., seeFe d. Bldg . & F ire Safe ty Investig ation of the World Trade Ctr. Disaster: Structura l Resp. & Proba ble Collapse Sequenc e of World Tra de Ctr. B ldg. 7, N I ST NCSTAR 1-9, at 458-89. NI ST completed its first-round re view proc ess on September 5, 2009, almost a month befor e Quick c ommenced the instant action, at which point the files w ere forwa rded to the BF RL ’s Deputy

Direc tor for a

second le vel of re view desig ned to ensure that information that might pose a

risk to public safety

if made publicly

available would not be disclosed in violation of Cong ress’ c ommand in the NCSTA. 2d Fletche r De cl. ¶¶ 41- 44. The individual cha rg ed with the task, who ha d the institut ional competenc e and te chnica l expertise to conduct the re view, wa s persona lly

involved in proce ssing a

pproxi mately

fifty other indepe ndent FO I A re quests at the time. Id. ¶ 43. On Nove mber 4, 2009, while N I ST’s second- round re view wa s ong oing, Q uick
commence d the pre sent ac tion. Pl .’s Stmt. ¶ 9; Def.’s Resp. ¶ 9. N I ST completed its review shortly there afte r, on Nove mber 9, 2009, a nd rele ased r esponsive re cords to Quick on January 6, 2010 and Apr il 2, 2010. Def.’s Stmt. ¶¶ 3-4; Pl.’s Stmt . ¶¶ 11, 13; 2d F letcher Dec l. ¶ 46. Over all, NI ST produced a total of 25,644 data f

iles responsive to Quick’ s reque st and withheld a total of 68,500 data f

iles. Def.’ s Stm t. ¶ 5; Pl.’s S tmt. ¶ 13. True, N I ST did not i ssue a f inal response to Quick’s re quest within the twenty -working

day defa ult period desig nated by

FOIA, see5 U.S.C. § 552(c)(6) (A)( i), an unre marka ble
occur renc e g iven the natur e of Q uick’s re quest. The stag g eringscope a nd complexit y

of the data captur ed within the ambit of Quick’ s reque st, and the spec ialized ex pertise r equire d to proce ss and produc e that data , almost certa inly prese nted the sort of “ exceptional circ umstances” that would war

rant a depar ture fr om the twenty -day

defa ult, and it is clear f

rom the re cord that NI ST
18continued to “e x erc is[ e] due dilige nce in r espondingto the reque st” from the time it was de emed

rec eived to the time it completed its production. Id. § 552(c) (6)( C)(i). The Court, however , need not rea ch that pre cise que stion. The fac tual underpinningof Quick’ s “patter n or pra ctice” claim is that there is “no e vidence ” that NI ST acted dilig ently in proce ssing his re quest until he filed the instant action, on Nove mber 3, 2009. Pl.’s [20] Mem. at 3. Quite the c ontrary , ever y thing in the re cord e vidence s that NI ST promptly responde d to Quick upon initial rece ipt of his request, almost imm ediately

beg an the inter

nal proc ess to evalua

te its ability

to respond to the re quest, eng ag ed in an e x tended dialogue with Quick in orde r to define the pre cise c ontours of his reque st, and made c onsistent and diligent e ffor ts to locate, re view, and pr oduce the massive amount of complex data re sponsive to Quick’s re quest while bala ncingits statutory

obliga tion to withhold information that might pose a risk to public safety

if disclosed. Indeed, Q uick
conce des, as he must, that the sworn dec larations submi tted by NI ST “sug g est[] . . . that the ag ency was a lleg edly

takingvarious ac tion[ s] t o proce ss” his reque st. Pl .’s [20] Mem. at 4. Whil e Quick ma

y persona lly

“dispute[] those asser

tions,” id. , it is well-established that “[a]ge ncy aff idavits are a ccor ded a pr esumption of g ood faith” in this context and cannot be r ebutted by speculation of the sort proff ere d by Quick in this case. SafeCard Servs., Inc . v. Sec s. &Exc h. Comm’n , 926 F.2d 1197, 1200 ( D.C. Cir. 1991). Ba sed on this rec ord, eve n if the Court wer e to consider Quick’s be latedly

tender ed argument that NI ST has “an unla wful patten [sic] and prac tice” of producing

rec ords only

afte r a reque ster take s the step of c ommencinga lawsuit, Pl.’s [20] Mem. at 2-3, ther e ca n be no g enuine dispute that NI ST beg an proc essingQuick’s r equest longbefor e the c ommenceme nt of the instant action and c onsistently and dilige ntly

worke d towards c ompleting that r equest in the
19absenc e of litig ation. There fore , even a ssuming that individuals other than Quic k may have be en subject to the alleg ed “pa ttern or pr actice ,” the r ecor d is clear that Quick wa s not. That beingthe
case , Quick lac ks standing to pur sue such a claim in this action. Cf. Giacobbi v. Biermann , 780 F. Supp. 33, 40-41 (D .D.C. 1992) (plaintiff la cked sta nding to a ssert that ag ency eng ag ed in a “patter n and pra ctice of

failingto meet its statutory obligation to investi g ate a nd act on complaints in a prompt manner ” whe re pla intiff’s ca se wa s investiga ted; plaintiff was “ not an appropr iate par

ty to raise a pattern of

failure to investigate, eve n if such a pattern we re to e x ist.”), aff’d , 1992 WL309042 (D.C. Cir. Oct. 16, 1992) ( per c uriam); see also Sierra Club v. U.S. Dep’ t of Interior , 384 F. Supp. 2d 1, 30-31 (D .D.C. 2004) (plaintiffs’ “policy or pra ctice” claim re lating to late FO I A re sponses was untena ble wher e plaintiffs’ r equests we re e x tremely broad a nd
onerous a nd plaintiffs offe red no r ebuttal to the ag ency ’s explanation for the de lay ). Mea nwhile, to the extent Quick seeks to establish his standing to pur sue his “patter n or pra ctice” claim by

his passingalleg ation that he “pla ns to file additional FOIA re quests to the NI ST in the future,” the Supreme Court has f

orec losed that route: “[s]uch ‘some day ’ intentions—without any descr iption of conc rete plans, or indee d even a ny specific ation of when the some day will be—do not support a findingof the [requisite] ‘actual or imminent’ injury .” Lujan v. Defende rs of W ildlif e , 504 U.S. 555, 564 (1992) ( emphasis in orig inal); see also W orth v. Jac kson , 451 F.3d 854, 858 ( D.C. Cir. 2006). Ther efor e, the Court shall deny Quick’s [13] C ross-Motion for Summary J udg ment on this separate, independe nt basis. C. Quick Is Not En titled To Discovery In Thi s Action On August 5, 2010, this C ourt denied w ithout prejudice Quic k’s re quest that a brie fing schedule be ente red to a ddress the que stion of whether Quick wa s entitled to discovery ,
20concludingthat Quick’s “ reque sts for discover y wer e made only

afte r the pa

rties’ c ross-motions for summary

judgme nt had bee n filed” a nd “[n] o formal r equest for discovery

pursuant to Fe dera l Rule of Civil Procedur e 56(f ) ha[d] been ma de.” Min. Or der ( Aug . 5, 2010). Quick [6 ] sug g ests that the Court should “rec onsider” its prior or der, c ontendingthat he should be a llowed to conduct “limited discover y ” as to whe ther NI ST was ac tually takingaction in proc essinghis reque st prior to the filing of this action. Pl.’s [ 20] Mem. at 4-5. For a t least two rea sons, Quick is not entitl ed to such discove ry . First, Quick still has not made a formal showing , by

aff idavit or dec laration, that he “ca nnot present f

acts e ssential to justi fy

[hi s] oppos ition.” Fed. R. Civ. P. 56(d). For one thing , Quick neve r identifies pre cisely what informa

tion he would seek or

what evide nce he hopes to discover; his g ener alized, speculative r equest “ falls short of what the rule re quires.” Estate of Parsons v. Palestinian Auth. , 715 F. Supp. 2d 27, 35 (D.D .C. 2010). For another , the rule require s the party

to establish that the evidenc e sought is essential to his opposi tion, and g iven the alter native base s for the Court’s de cision, Quick fa ils to articulate how his spec ulative discovery reque sts “would alter the [C ]ourt’s determination.” Cheye nne Arapaho Tribes of Oklahoma v . United States , 558 F.3d 592, 596 ( D.C. Cir. 2009). Second, whe re, a s here , the ag ency ’s dec larations are suff iciently detailed a

nd the district court is satisfied that no fa ctual dispute re mains, discovery should be denied. W

olf v. Cent. IntelligenceAgenc

y , 569 F .Supp. 2d 1, 9-10 (D .D.C. 2008). B eca use Quick ha s failed to ra ise substantial or eve n colora ble doubt conce rningthe ade quacy or g ood faith of NI ST’s response to

Wit h the re cent a

mendments to the Fe dera l Rules of Civil Procedur e, the pr ovision now 6 appea rs in substantially

the same f

orm as F ed. R. Civ. P. 56(d).

21his request, he has fa iled to establish his entitl ement to discover y . Iturralde v. Comptroller of Currency , 315 F.3d 311, 314 ( D.C. Cir. 2003). V. CONCLUSION For the re asons set for

th above, the Court sha ll gr ant NI ST’s [10] Motion for Summary J udg ment, deny

Quick’s [13] C ross-Motion for Summary J udg ment, and dismiss thi s action in its entirety . An appr opriate O rder acc ompanies this Memorandum Opinion.

Date: April 7, 2011 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

22