ATI v. NASA: Settled?

Filings in the ATI lawsuit against NASA appear to indicate that the substantive issues have been settled:

ATI NASA Notice

NASA has apparently turned over 227 partially redacted pages of information in response to the original FOIA request. This likely provides the source for an article by Chris Horner in Pajamas Media, repeating many of the same misleading contentions as highlighted in the lawsuit. Curiously, nether Horner nor ATI have provided access to the actual released documents (as of today at least), it is therefore unclear how many of Horner's allegations are valid, or like his claim that Hansen was never 'muzzled' (original story NYT, confirmation by the NASA OIG) , made up of the whole cloth.

A sign that the allegations are unlikely to be sustained is that Horner assumes that all of Hansen's travel for any outside activity must have been paid for by someone else but wasn't reported. The idea that Hansen may have traveled somewhere on his own dime is not considered. A fair assessment of these documents will require a somewhat more independent investigator.

ATI NASA lawsuit

On the heels of it's failed appeal to NASA on the issue of James Hansen's 'Permission to engage in outside activity' forms, ATI's Christopher Horner has filed suit against NASA in DC District Court:

ATI NASA Hansen FOIA lawsuit

This lawsuit is notable for a number of misleading claims and for the argument that Horner is pursuing which is in complete opposition to the argument Horner pursued (wearing his CEI hat) in his other NASA FOIA lawsuit.

The technical issue at stake in the original ATI FOIA request is whether forms filled out by NASA employees to request permission to undertake outside activity fall under the FOIA exemption for personnel matters. Since it is clear that the requests are for non-official activity (by definition), and that federal employees have an expectation of privacy for non-official activities, the terms for the privacy exemption would clearly seem to be met.

This can be overridden with a strong enough 'public interest' which can be weighed against the privacy rights of the individual. However, in order to demonstrate a 'public interest' (note this is not the same as whether a member of the public is interested), Horner has brought up a number of tangential, irrelevant and just plain false accusations against Hansen, both in the lawsuit and in the commentary he has published online. Without a clear argument that there is a real issue with respect to NASA compliance with ethics rules, the public interest test is unlikely to be met.

A few examples: Horner accuses Hansen of receiving $1.2 million in outside income for work done as a federal employee. He does not note in the commentary (though it is stated in the lawsuit), that most of these monies were for international prize awards which, like a Nobel Prize, can be accepted by federal employees and do not count as 'outside activity' for which permission must be sought^{*(see update)}. The relevent federal ethics guidelines are quite explicit (see part d.1, and example 1). The four prizes in question (the Blue Planet Prize $550,000, the Heinz award $250,000, the Dan David award ($333,000?) and the Sophie Prize, $100,000) are all examples of an

... award .. made as part of an established program of recognition:

(i) Under which awards have been made on a regular basis or which is funded, wholly or in part, to ensure its continuation on a regular basis; and

(ii) Under which selection of award recipients is made pursuant to written standards.

for which no prior permission is required.

Thus the insinuation that Hansen might not have complied with ethics guidelines by not filing 'Outside activity' forms for these prizes (which are not required) is clearly misleading (forms would have been required for speaking engagements and the like which apparently total to only $48,000 over 4 years).

Similarly, the claim in the lawsuit that Hansen received $720,000 from George Soros is simply fictitious.

Even more curious is the use by Horner of documents produced by NASA in the CEI case (for which Horner is the lead attorney). These consist of some "Outside activity" forms from Gavin Schmidt, specifically one related to his activity on the RealClimate blog (see the filings in this case for more details). These forms were released in court filings, not through a FOIA request, and so do not have any relevance for determining whether there is a statutory right to see these forms via FOIA.

The issue in question in the CEI vs NASA case is whether blogging was part of Schmidt's official duties (NASA says it was not, while CEI is arguing the opposite). However in this case, Horner is arguing that for the period prior to the filing of Schmidt's "Outside activity" form, Schmidt (and GISS) were out of compliance with ethics rules (which GISS and Schmidt have denied). For this to be the case though, one must at minimum accept that the RealClimate blogging was indeed not part of Schmidt's official duties (if it was part of his official duties, then obviously he could not be out of compliance with ethics guidelines related to 'outside activities'!). Thus, should this example be taken as evidence of NASA failing to uphold ethics rules, it would immediately undermine the argument put forward by Horner in the CEI case (that the RealClimate blogging was an official duty).

Having the same lawyer use two contradictory arguments in separate lawsuits against the same agency might be a sight to behold. One wonders if the judges will be impressed.

^* Update: As noted in a comment, while prizes do not require the filing of an outside activity form, they do require a determination that they satisfy ethics rules before they can be accepted.

Issues: privacy exemptions

ATI appeal to NASA

The response to the appeal made by ATI concerning personal information related to Jim Hansen's requests for permission related to outside activity has now been filed.

ATI.appeal.decision

Unsurprisingly, NASA has reaffirmed that information related to personnel matters is exempt from FOIA disclosure and that absent any prior evidence of misconduct, there is no compelling public interest that would trump the concerns of privacy protection.

On the second issue related to a potential misreading of one of ATI's requests, the issue has been remanded to NASA GSFC for a de novo search for relevant documents.


Issues: personal information exemptions, existence of records

CEI and NASA: Lawsuit (ongoing)

After an appeal is denied, or a requester is still not satisfied with the response, a lawsuit for judicial review can be filed.


NASA Complaint

This is ongoing litigation in DC District Court.

The DoJ (acting for NASA) submitted a motion for summary judgement:

Motion for Summary Judgment by DoJ in CEI vs NASA (2010)

which CEI responded to:

CEI response to DoJ motion for summary judgment in CEI vs NASA (2010)

and DOJ replied to:

DoJ reply to CEI in support of motion for summary judgement in CEI vs NASA (2010)

Motions are currently under consideration.

CEI and NASA: Appeal

All US agencies have an internal appeals procedure if requesters are unsatisfied with the initial response. CEI was unsatisified with responses to their first three FOIA requests.


Horner Appeal


The appeal was rejected for two of the three requests, and for the third, it was remanded to GSFC for a 'do-over'.

GISS FOI Response to Appeal

Follow-on: Lawsuit (ongoing)

Issues: FOIA Appeals, definition of agency records

Rep. John Linder and NASA

Congress can of course request any information from any agency without going through the FOIA process. This is one example from Rep. John Linder who did use FOIA from Dec 2009:

Linder to NASA


Issues: Information in the public domain, broadness of request

Judicial Watch and NASA: Part II

Judicial Watch (Sourcewatch) submitted the following Dec 9 2009 request to NASA:

Judicial Watch FOIA Request #2

This request was made in the wake of the CRU email leak and was a attempt to find links between IPCC, CRU, GISS and the White House.

Follow-on: Not known

Issues: Prior existence of records, predecisional privilege

Judicial Watch and NASA: Part I

Judicial Watch (Sourcewatch) submitted the following Dec 4 2009 request to NASA:


Judicial Watch FOIA Request #1

Note the similarity to this earlier CEI request. The response to both was posted in the GSFC Electronic Reading Room in Dec 2009 and with a further update in April 2010.


Use of information: JW blog posts: Jan 2010, Apr 2010; NASAWatch; Rabett Run

CEI and NASA: Part III

In January 2010, CEI filed another request to NASA GISS.

This was notable for the breadth of the request (which would lead the Dept. of Justice to throw it out as being impossible to serve), but also for the widening of the lists of scientists targeted. Of the 17 scientists named, one 'Ron Milley' does not exist, and 3 do not work for 'NASSA' [sic] at all.

Commentary at Dot Earth.

CEI and NASA: Part II

In January 2008, CEI made a FOI request for all communications by a specific scientist, Gavin Schmidt, related to the blog Realclimate.

FOIA Request #08-040


The issue originally in play here is to what extent correspondence that deals with non-official activities is an 'agency record'.


Issues: Definition of agency records

Follow-on: Response, Appeal (upheld), Second Response, Lawsuit (ongoing)

CEI and NASA: Part I

The Competitive Enterprise Institute (CEI) (Sourcewatch) is in the vanguard of submitting FOI requests for climate scientist communications. Their principle targets have been the NASA Goddard Institute for Space Studies in New York, NCAR in Colorado, the U. of Virginia, and the EPA among others. Their requests to NASA started in August 2007 and first concerned the minor correction of the GISTEMP dataset:


FOIA 07-175


FOIA 07-172


The responses were the posted online in the GSFC Electronic Reading Room.

Follow-up: Appeal (denied), Lawsuit (ongoing).