IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MARK A. MANN, 

Plaintiffs, 

v. 

UNITED STATES OF AMERICA, 

Defendant. 

AIKEN, Chief Judge: 

Case No. 6:14-cv-01774-AA 

OPINION AND ORDER 

Defendant United States of America, through the Department 

of Transportation (DOT), moves for summary judgment against 

plaintiff pursuant to Federal Rule of Civ. P. 56. For the 

reasons set forth below, DOT's motion is granted. 

Background 

Plaintiff is a sole proprietor who provides project 

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Case 6:14-cv-01774-AA Document 36 Filed 10/14/15 Page 1 of 11
engineering services to general contractors completing highway 

and airport projects. According to plaintiff, he prepares design 

files to facilitate construction surveying and analysis of 

earthwork quanti ties for contract payments. Mann Decl. at 1-2. 

The services plaintiff provides require detailed information 

regarding the quantities of materials used to complete a 

project. 

Relevant to this case, plaintiff sought information about 

the Tiller Trail Highway Project (the Project) from DOT under 

the Freedom of Information Act (FOIA) 1 The Project was an 

approximately mile-long project between Canyonville and Trail, 

Oregon that involved grading, slope stabilization, drainage 

improvements, and asphalt paving. 2 Specifically, plaintiff 

sought: 1) the GEOPAK CAD design file in MicroStation DGN 

format; 2) a LandXML ("XML") file of the horizontal and vertical 

alignments; 3) an XML file of the original ground surface; and 

4) an XML file of the final design surface. 

On May 1, 2014, DOT provided plaintiff twenty-one files in 

the format in which DOT maintained them; DOT did not provide the 

1 The Western Federal Lands Highway Division, a part of th~ DOT, 

administered the Project in this case, and is the agency 

identified as "DOT." Aguirre Decl. at 2. 

2 According to DOT, construction work on the Project was 

completed on October 27, 2014. 

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Case 6:14-cv-01774-AA Document 36 Filed 10/14/15 Page 2 of 11
information in the XML format requested by plaintiff due to the 

burden of converting the underlying data to XML format. 

Plaintiff subsequently filed another FOIA request seeking: 1) a 

GEOPAK XS-List Report (cross-section files in XSR format) of the 

original ground surface; 2) the horizontal and vertical 

alignments for the final road design in XML format; 3) the 

original ground three-dimensional surface data in XML format; 

and 4) the final design three-dimensional surface data in XML 

format. This request was also denied. 

On November 7, 2014, plaintiff filed a complaint under FOIA 

seeking production of the requested information in XML and XSR 

formats. On May 4, 2015, DOT moved for summary judgment on 

plaintiff's claims. 

Standard 

Summary judgment is appropriate if there is no genuine 

issue of material fact and the moving party is entitled to 

judgment as a matter of law. Fed. R. Civ. P. 56(a). "An issue is 

genuine if a reasonable trier of fact could find in favor of the 

non-moving party." Rivera v. Phillip Morris, Inc., 395 F.3d 

1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986)). A fact is material if it could 

affect the outcome of the case. Id. The court reviews evidence 

and draws inferences in the light most favorable to the non3 - OPINION AND ORDER 

Case 6:14-cv-01774-AA Document 36 Filed 10/14/15 Page 3 of 11
moving party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 

988 (9th Cir. 2006) (citing Hunt v. Comartie, 526 U.S. 541, 552 

(1999)). When the moving party has met its burden, the nonmoving party . "must come forward with 'specific facts showing 

that there is a genuine issue for trial.'" Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) 

(quoting former Fed. R. Civ. P. 56(e)). 

Discussion 

DOT argues that files in XML or XSR format are not ~readily 

reproducible" within the meaning of FOIA. DOT also contends 

that, because the DOT has taken reasonable efforts to maintain 

its records in a format that is readily reproducible, it has no 

obligation to _produce the data sought by plaintiff in the 

requested XML and/or XSR formats. 

The FOIA requires agencies to provide information "in any 

form or format requested ... if the record is readily reproducible 

by the agency in that form or format." 5 U.S.C. § 552(a)(3)(B). 

Further, "[e]ach agency shall make reasonable efforts to 

maintain its records in forms or formats that are reproducible 

for purposes of this section." Id. DOT regulations likewise 

provide that information will be produced in any readily 

reproducible format. See 49 C.F.R. § 7.26(c) ("DOT provides 

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Case 6:14-cv-01774-AA Document 36 Filed 10/14/15 Page 4 of 11
records in the form or format sought by the requester, if the 

records are readily reproducible in that form or format."). 

Here, the parties disagree as to whether XML and/ or XSR 

files of the data requested by plaintiff are "readily 

reproducible" or whether their creation places an undue burden 

on the DOT. Federal agencies must "provide recbrds in the format 

requested by 

reproducible, 

the requester if 

absent compelling 

the records are readily 

evidence of significant 

interference or burden." Public.Resource.org v. U.S. Internal 

Rev. Serv., 78 F. Supp. 3d 1262, 1263 (N.D. Cal. 2015); see also 

TPS, Inc. v. U.S. Dep't. of Def., 330 F.3d 1191, 1195 (9th Cir. 

2003) (FOIA "requires that the agency satisfy a FOIA request 

when it has the capability to readily reproduce documents in the 

requested format.") . In other words, "'readily reproducible' is 

not... synonymous with 'technical [ly] feasible.' The Court may 

consider the burden on the defendant in determining whether the 

documents at issue are 'readily reproducible' in the format the 

plaintiff requests." Scudder v. Cent. Intelligence Agency, 25 F. 

Supp. 3d 19, 38 (D.D.C. 2014); see also 5 U.S.C. § 552(a) (3) (B) 

(agencies shall make "reasonable efforts" to maintain records in 

readily reproducible formats). 

When assessing the reasonableness of the agency's efforts, 

the court must "accord substantial weight to an affidavit of an 

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Case 6:14-cv-01774-AA Document 36 Filed 10/14/15 Page 5 of 11
agency concerning the agency's determination as to technical 

feasibility ... and reproducibility." 5 U.S.C. § 552(a) (4) (B); 

Sample v. Bureau of Prisons, 466 F.3d 1086, 1088 (D.C. Cir. 

2006) (an agency's "determination as to reproducibility, 

moreover, must be accorded 'substantial weight' by the reviewing 

court") . However, "such deference does not amount to a blanket 

exemption from judicial review of the agency's justification for 

declining to comply with a specific format request or failing to 

maintain records in readily reproducible formats." Scudder, 25 

F. Supp. 3d at 39. 

In this case, I find that the information sought by 

plaintiff in XML and/or XSR formats is not readily reproducible 

and would be burdensome for DOT to reproduce. 

It is undisputed that DOT does not possess or maintain any 

XML or XSR files for the Tiller Trail Highway Project. Thompson 

Decl. at 4; Aguirre Decl. at 8-9. In fact, DO~ designers do not 

create XML or XSR files with horizontal alignment, vertical 

alignment, final design surface, and existing ground surface; 

XML and SXR are not standard files created by DOT designers and 

are not normally used at any stage of the design process. 

Aguirre Decl. at 3, 7. Further, DOT does not provide data in XML 

and XSR files to contractors that are constructing highway 

projects. Id. 

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Plaintiff does not dispute the fact that DOT does not 

maintain information in XML or XSR formats. In fact, when 

plaintiff requested that DOT provide the data in XML format, he 

conceded that XML files are not a ~typical GEOPAK format." 

Thompson Decl. Ex. 1 at 1. Plaintiff also concedes that DOT must 

export the underlying data from its files in order to create 

files in XML or XSR format. See id. Ex. 7 at 2. Thus, contrary 

to plaintiff's argument, compliance with his request would 

require DOT to create new records in XML or XSR formats. See 

Aguirre Decl. at 3-4; LaRoche v. U.S. Sec. & Exchange Comm' n, 

289 Fed. Appx. 231 (2008) ([A]n agency is not required to create 

new documents in order to satisfy a FOIA request.") ; Yagman v. 

Brennan, 2015 WL 1285359 (C.D. Cal. 2015) (accord). 

Moreover, according to the DOT, producing an XML file is a 

multi-step process that typically compiles three dimensional, 

survey data points into a ground surface file representing a 

physical original or completed surface. Specifically, 

process entails the following steps: 

After survey information is collected and design data 

is produced, the first step is producing a data (DAT) 

file from the cross sections using the GEOPAK reports 

tool. The second step is to convert the data file to a 

TIN file using other GEOPAK terrain tools. Once the 

TIN file is created it can be visualized and 

corrective steps applied for accuracy. The third step 

is to convert the TIN file to a XML file using 

software tools ... Using a separate software tool and to 

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the 

Case 6:14-cv-01774-AA Document 36 Filed 10/14/15 Page 7 of 11
verify accuracy, the fourth step requires the XML file 

to be reimported back into a TIN file. Using another 

software tool, a fifth step [requires] a separate 

software tool to compare the initially produced TIN 

and the TIN produced from the created XML file. This 

tool compares the separate TIN files so that any 

errors can be corrected. 

Aguirre Decl. at 6. DOT contends that converting the data to XML 

format would take from at least twenty-four to forty hours in 

order to ensure that the data was reformatted accurately. 

Aguirre Suppl. Decl. at 6. 3 As it must, the court affords great 

deference to the declarations of Mr. Aguirre. 

Plaintiff does not dispute DOT's assertion that converting 

the data requested into XML format is a multi-step process or 

that the conversion process would require twenty-f6ur to fortyeight hours to insure that the information was reformatted 

accurately. Rather, plaintiff contends that DOT already should 

have completed the first two steps (creating a TIN file), and 

that DOT previously has waived accuracy checks. See Mann Decl. 

at 5, 8. 

However, plaintiff misapprehends the nature of DOT's 

assertion. DOT does not contend that it must employ a lengthy, 

3 This estimate is based on conversion of the data into an XML 

file. Mr. Aguirre estimates that the conversion process would 

take forty to forty-eight hours if plaintiff's request includes 

the XSR design file. Aguirre Suppl. Decl. at 6-7; Aguirre Decl. 

at 8 .. 

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Case 6:14-cv-01774-AA Document 36 Filed 10/14/15 Page 8 of 11
multi-step process to confirm the accuracy of the underlying 

data plaintiff seeks to have converted into XML format. Rather, 

DOT asserts that it must employ such a process to verify that 

the underlying data exported from DOT files is converted 

accurately into an XML file, so that the information provided to 

plaintiff i.e., the newly-created XML file accurately 

represents the underlying data maintained by the DOT. Aguirre 

Suppl. Decl. at 7. I find this distinction important. Certainly, 

it is reasonable for DOT to confirm that information it produces 

pursuant to a FOIA request actually represents the information 

possessed and maintained by the agency. Given the time, effort, 

and resources required to convert the data plaintiff seeks into 

several XML and/or XSR files, I find that XML and XSR files are 

not readily reproducible and that their creation would place an 

undue burden on DOT. See generally Aguirre Suppl. Decl. 

Plaintiff also argues that on two prior occasions the DOT 

complied with his requests for original ground surface files in 

XML format. See Mann Decl. at 3 (information requested in 2008 

and 2009). However, the fact that DOT accommodated plaintiff 

twice in the past seven years does not constitute a waiver, 

admission or a business-as-usual practice such that DOT should 

be required to convert data into XML format in this or future 

instances. TPS, 330 F.3d at 1195. 

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Finally, DOT represents that it provided plaintiff with the 

underlying data DOT would use to create the XML file, and 

plaintiff does not dispute that he could convert the data 

provided by DOT into XML and/or XSR formats. Aguirre Decl. at 7-

8; Pl.'s Resp. at 2. Under the circumstances, it is not the 

DOT's duty to shoulder the burden of converting data into 

specific file formats to further plaintiff's business interests, 

particularly at the unnecessary expense of governmental 

resources. 

DOT also represents that it could produce the information 

sought by plaintiff in a CVS file format, which is the format in 

which DOT provides final design surfaces to its contractors. See 

Aguirre Decl. at 5-6. According to DOT, the CSV file can be 

read, used, and manipulated by any person and allows others to 

segregate and/or parse the data for import into other 

applications. Id. at 6. I therefore find that DOT has complied 

with its duties to maintain information in an accessible and 

readily reproducible format. Accordingly, if it has not already 

done so, DOT shall provide the information by plaintiff 

requested in CVS format. 

Ill 

Ill 

Ill 

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Case 6:14-cv-01774-AA Document 36 Filed 10/14/15 Page 10 of 11
Conclusion 

For the reasons set forth above, defendant's motion for 

summary judgment (doc. 21) is GRANTED. This case is DISMISSED. 

IT IS SO ORDERED. 

Dated this ~ day of October, 2015. 

Ann Aiken 

United States District Judge 

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