Rutila v. U.S. Dep’t of Transp., No. 22-10848, 2023 WL 4419364 (5th Cir. July 10, 2023) (per curiam)

Rutila v. U.S. Dep’t of Transp., No. 22-10848, 2023 WL 4419364 (5th Cir. July 10, 2023) (per curiam)

Re:  Five requests for records concerning requester’s attempt to pass air traffic controller training

Disposition:  Affirming district court’s grant of government’s motion for summary judgment

• Procedural Requirements, Time Limits & Proper FOIA Requests; Fees and Fee Waivers, Fee Restrictions:  The Court of Appeals for the Fifth Circuit relates that “[t]he parties disagree as to whether the FAA’s October 7 fee assessment was made within twenty business days of receiving [the requester’s] FOIA request, which requires us to determine at what time [the requester’s] request qualified as a received FOIA request.”  “DOT regulations provide that ‘[a] request is not considered to be a FOIA request if the record or records sought are insufficiently described such that DOT is unable to respond as required by FOIA.’”  “In such a case, the twenty-day clock ‘will not start to run until the request is determined by DOT to be sufficiently understood to enable DOT to respond as contemplated under FOIA (or would have been so determined with the exercise of due diligence by an employee of DOT) and is considered received.’”  “A ‘request is considered received when it is first received by the FOIA office to which it should have been originally sent . . . but in any event not later than ten Federal working days after it is first received by any DOT FOIA Requester Service Center.’”  “Furthermore, ‘DOT’s time limit for responding to a FOIA request . . . may be tolled one time to seek additional information needed to clarify the request and as often as necessary to clarify fee issues with the requester.’”  The court finds that “[the requester] fails to address whether his initial September 7 request was sufficiently described such that it would be considered a FOIA request.”  “[The requester’s] September 7 request did not meet this standard.”  “In his request, [the requester] stated that he sought ‘SOPs concerning evaluation procedures/methods/guidance/etc.’ – he did not say whether he requested all such SOPs in the FAA’s possession, the current SOPs, or the SOPs that were in effect during a certain period.”  “As [the government’s] declaration explained, [the government] ‘determined that the request as written was not a perfected request’ because ‘the request as written appeared to seek many iterations of various Academy SOPs and related records and did not define a timeframe.’”  “[The requester’s] September 11 response provided additional information, which enabled the FAA to determine what records were being requested.”  “Specifically, he explained that he was seeking ‘a copy of the most current version(s) plus relevant notices and supplements, if any exist, as well as the version(s) used prior to the current one, plus its notices and supplements.’”  “[The requester] had not indicated which versions of SOPs he was seeking in his initial request, and for this reason his contention that he did not provide additional information on September 11 relating to his request for SOPs is without merit.”  “[The court] hold[s] that [the requester’s] request was not a FOIA request until at least September 11, when he described which SOPs he was requesting.”  “Therefore, the FAA’s fee assessment on October 7 was timely, and the FAA was not obligated to waive fees for [the request].”

• Procedural Requirements, Proper FOIA Requests:  The Court of Appeals for the Fifth Circuit relates that “[the requester] also challenges the determination by the FAA and district court that [two requests] were not proper FOIA requests because they required the FAA to create a record.”  “As relevant to this appeal, [one request] sought copies of ‘the Active Directory Account profile (all tabs) for [a third party]’ and ‘the NEXTGEN Toolbox profile for [the third party],’ and [another request] sought ‘[a] copy of the directory or folder structure of Windows Explorer for all of [another third party’s] network drives and “My Documents” folders.’”  “[T]he Manager of the FAA’s FOIA Program, explained in a declaration that, due to the nature of the systems and structures identified by [the requester’s] requests, ‘the only way to provide the information’ sought by [the two requests] ‘would be to take a screenshot of the requested data displayed on a screen.’”  “The Active Directory system is ‘the FAA’s main directory service,’ which ‘allows users to manually input their profile information, but also pulls data from various other sources . . . and organizes and displays that data in real time.’”  “It is not a database and ‘not configured to enable administrative users to export data in a usable format.”  “The NextGen Toolbox system ‘was used to manage mailing lists and for email password resets prior to 2014,’ and, ‘[l]ike Active Directory, this system displayed data to users but was not set up in a way that allowed data to be exported.’”  “The FAA does not maintain a record of Active Directory or NextGen Toolbox profiles, so the only way to produce such a record of [the third party] profiles would have been to take a screenshot of the data displayed in the system.”  The court finds that “[i]t is undisputed that the FAA does not maintain screenshots of individuals' Active Directory Account profiles, NextGen Toolbox profiles, or Windows Explorer directories and folder structures.”  “Therefore, for the FAA to produce the requested records, it would have to open the relevant software, display the requested data, and take a screenshot of the displayed information.”  “[T]he information [the requester] seeks is not maintained by the FAA in a database or otherwise.”  “Producing this information would require more than an ‘electronic search of computer databases’ for pre-existing records followed by ‘extract[ion] and compil[ation],’ . . . it would require the FAA ‘to open the software and create a screenshot, which would not otherwise exist from the last time the agency opened the software to the search screen’ . . . .”  The court finds that “[the requester] seeks information that [the government] do[es] not actively maintain in any format.”