DoD Contract with T3Media

Mr. Chris Meller
MuckRock News
DEPT MR 9681
PO Box 55819
Boston, MA 02205-5819

Sent via email to: requests@muckrock.com

Dear Mr. Meller:

This is in response to your Freedom of Information Act (FOIA) request for "all documents relating to the DoD's partnership with T3Media to digitize its media library." Your request was received in this office on December 23, 2013, and assigned FOIA case number 14-F-0279.

According to the FOIA's legislative history, a description would be sufficient if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort, and reasonably describes records if the agency is able to determine "precisely" what records are being requested.

Courts have identified at least three (3) ways in which a FOIA request can fail to reasonably describe the records sought:
1) the description may be too vague to allow the agency to determine precisely what records are being requested; an agency is not required to have clairvoyant capabilities to discover the requestor's need;
2) broad sweeping requests lacking specificity are insufficient; and,
3) even where a request sufficiently describes the records sought, an agency is not required to comply with a request so broad that it would impose an unreasonable burden upon the agency. An agency need not honor a request that requires an unreasonably burdensome search. The "reasonably describes" requirement exists because the FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters. As such, it is the requester's responsibility to frame requests with sufficient particularity to ensure the searches are not unreasonably burdensome, and to enable the searching agency to determine precisely what records are being requested.

In recent court action, James Madison Project (JMP) vs. CIA, the court referred to the request as "too broad because the term "pertaining to" is synonymous to the term "relating to," which generally indicates an overbroad request. A request for "all documents 'relating to' a subject is usually subject to criticism as overbroad since life, like law, is a 'seamless web,' and all documents 'relate' to others in some remote fashion." Massachusetts v. U.S. Dep't of Health & Human Servs., 727 F. Supp. 35, 36 n.2 (D. Mass. 1989). Such a request "unfairly places the onus of non-production on the recipient of the request and not where it belongs - upon the person who drafted such a sloppy request."

As it stands, your request is not reasonably described; does not state a timeframe; and, would impose an unreasonable burden upon the Defense Media Activity to search for and review each and every record within its files.

The action officer, Mr. Charles Marye, is copied on this request. Please direct your email to him with narrowed search, advising search terms and/or specific records that you seek, and a timeframe of reference for search by January 17, 2014. If he does not hear from you by that time, he will ask DMA to search for the first page of each contract, statement of work, request for proposal, licensing terms, legal opinions and decision-maker emails finalizing the agreement.

This Office processes requests on a first-in, first-out, basis. In that regard, if we have not heard from you by 17 Jan 14, we initiate a search for the type of records described above. This Office, however, is unable at this writing to make a release determination on your request within the twenty-day statutory time period, since there are unusual circumstances which impact our ability to quickly process your request. These unusual circumstances are: (a) the need to search for and collect records from a facility geographically separated from this Office; (b) the potential volume of records responsive to your request; and (c) the need for consultation with one or more other agencies or DoD components having a substantial interest in either the determination or the subject matter of the records. For these reasons, your request has been placed in our complex processing queue and will be worked in the order the request was received. As a matter of information, our current administrative workload is approximately 1,500 open requests. I apologize for the anticipated delay in responding to your request.

After carefully reviewing your request I am denying your fee waiver request because the information stated does not support how the documents will significantly contribute to the public's increased understanding of the operations and activities of government.

I have determined that you should be placed in the "other" category for fee purposes as you have indicated that you do not seek access to these records for commercial purposes.
The "other" fee category affords you two hours of search time free of charge. As you did not provide any willingness to pay, search will be halted after your two
free hours have been expended.

If you are not satisfied with this action, you may submit an administrative appeal to James Hogan, Defense Freedom of Information Policy Office, 1155 Defense Pentagon, Washington, DC 20301-1155. Your appeal should be postmarked within 60 calendar days of the date of this letter, should cite to case number 14-F-0279, and should be clearly marked "Freedom of Information Act Appeal."

Thank you,

Suzanne Council
Senior Advisor
Department of Defense
Information and Privacy
1155 Defense Pentagon
Washington, DC 20301-1155

Mr. Meller,

As of today, the search has not been completed but is nearing completion. I have not received a response from the agency conducting the search. It is our policy that each request receives prompt attention, and every effort is made to treat all requesters equally. As previously noted in our interim response, and unfortunately, our backlog of open requests at the time your request was received was over 1,500. Once I receive a response, all releasable records, if any, cannot be provided to you until all processing is completed. As soon as that occurs, I will send you a formal response letter to your request.
I appreciate your patience and understanding in this matter. Thank you.

Charles Marye
OSD FOIA OFFICE
(571) 372-0407

Mr. Meller,

Attached is the final response to your request.

Sincerely,

Charles Marye
OSD FOIA OFFICE
(571) 372-0407