Last night, the Competitive Enterprise Institute – through its outside counsel Gibson Dunn – filed its brief arguing against NASA’s rather scattershot and contradictory effort to dismiss our lawsuit requesting certain documents under the Freedom of Information Act (FOIA). You can view a PDF of the brief here.
Our suit, CEI vs. NASA (U.S. District Court for the District of Columbia), followed on the heels of Climategate, and a December 2009 Notice of Intent to Sue if NASA did not turn over certain records withheld since CEI sought them in August 2007 and January 2008 requests. That Notice was eleven months ago and, despite NASA offering some documents and admitting — temporarily — that certain others relating to the advocacy site used by NASA scientists, RealClimate.org were “agency records,” NASA then ceased its brief steps to comply with the transparency statute FOIA.
Specifically, CEI’s FOIA suit seeks documents and e-mails relating to NASA’s temperature record, which NASA was forced to correct in response to criticism from a leading climate watchdog, Steve McIntyre. Those corrections rendered untenable NASA’s stance that U.S. temperatures have been steadily rising in recent years, and returned 1934, not 1998, to the top spot as the warmest year on record. NASA refuses to give CEI the computer file they used to make these changes, whose title includes “Steve” and “alternate cleaning.”
CEI also seeks e-mails from NASA scientists using RealClimate.org on official time using official resources, often to advance what NASA’s Goddard Institute for Space Studies (its climate-activist office) has decided is appropriate public advocacy.
* After CEI filed the FOIA seeking RealClimate e-mails, administrators at RealClimate deleted all timestamps on all of their postings, making it impossible to show they were made during work hours. But we kept color copies of the original posts.
* NASA admits that it discovered 3,500 e-mails on Dr. Schmidt’s NASA computer related to his work on RealClimate but won’t produce them.
* NASA did not ask Dr. Schmidt to look for responsive records until 22 months after we sent them the FOIA and threatened to sue. It is highly likely relevant e-mails were destroyed during this period.
NASA’s delay in responding to CEI’s FOIA requests was extraordinary, far outside its normal or even most egregious examples of delay or non-compliance. For instance:
* NASA took more than 900 days to produce documents pursuant to CEI’s two 2007 requests. The agency took more than 700 days to produce records in response to CEI’s 2008 request. NASA does not explain these delays. FOIA requires that an agency produce responsive records within 20 days. Although agencies rarely meet that deadline, even for “complex” FOIA requests, NASA’s average processing time is under 100 days. In 2008, NASA processed complex requests in 82 days, on average. In 2009, it processed such requests in 89 days, on average.
* Prompted by congressional inquiries, the NASA Inspector General investigated the delay associated with these FOIA Requests. The Inspector General determined that the delays were caused by “inadequate direction” as to what documents were requested; “inadequate communication” between NASA personnel; and “inadequate staffing” at the Goddard FOIA office. In reality, one of the primary reasons for the delay was that NASA did not inform GISS officials about one of the requests and inexplicably held documents for years instead of producing them on a rolling basis, as requested.
We should argue this within the month. CEI requests the court allow it to proceed to the discovery stage next, examining records and deposing relevant witnesses.