IMAX Space Act Agreements (NASA)

Jonathan Rudenberg filed this request with the National Aeronautics and Space Administration of the United States of America.
Status
Rejected

Communications

From: Jonathan Rudenberg

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

The two Space Act Agreements listed below:

SAAM ID: 16418
Partner: IMAX SPACEWORKS LTD.
Title: FLIGHT CERTIFICATION OF IMAX HARDWARE
Execution Date: 3/3/2014
Expiration Date: 3/3/2019
Center: HQ

SAAM ID: 19963
Partner: IMAX SPACEWORKS LTD.
Title: THE FILMING OF “A Perfect Planet” (working title)
Execution Date: 3/3/2014
Expiration Date: 3/3/2019
Center: HQ

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Jonathan Rudenberg

From: SIBLEY, JOSEPHINE. (HQ-NN000)

  • 16-HQ-F-00844 MR. JONATHAN RUDENBERG FOIA CLARIFICATION LETTER

From: Jonathan Rudenberg

My mailing address is:

503 Paisley Place
Newark, DE 19711

From: SIBLEY, JOSEPHINE. (HQ-NN000)

Hello Mr. Rudenberg,

Thank you.

Josephine Sibley
Headquarters, FOIA Office

From: SIBLEY, JOSEPHINE. (HQ-NN000)

Hi

  • 16-HQ-F-00844 MR. JONATHAN RUDENBERG FOIA TRANSFER LETTER

From: Sibley, Josephine. (HQ-NN000)

  • 16-HQ-F-00844 MR. JONATHAN RUDENBERG FOIA 10-DAY EXTENSION LETTER 1

From: Sibley, Josephine. (HQ-NN000)

Sibley, Josephine. (HQ-NN000) would like to recall the message, "16-HQ-F-00844 MR. JONATHAN RUDENBERG FOIA 10-DAY EXTENSION LETTER 1.pdf".

From: Sibley, Josephine. (HQ-NN000)

  • 16-HQ-F-00844 MR. JONATHAN RUDENBERG FOIA 10-DAY EXTENSION LETTER 1

From: Sibley, Josephine. (HQ-NN000)

  • 16-HQ-F-00844 MR. JONATHAN RUDENBERG FOIA 10-DAY EXTENSION LETTER AMEN

From: Sibley, Josephine. (HQ-NN000)

  • 16-HQ-F-00844 MR. JONATHAN RUDENBERG FOIA RESPONSE LETTER B4

From: Jonathan Rudenberg

To Whom It May Concern:

This is an appeal under the Freedom of Information Act about the partial denial of my request 16-HQ-F-00844 processed by the NASA Headquarters FOIA Office.

On August 5, 2016, I submitted a FOIA request to NASA seeking copies of two contracts with IMAX Spaceworks Ltd. On September 16, 2016, NASA responded that it had located 49 pages of records and released the records with redactions. NASA asserts in the September 16 letter that the information withheld is protected from disclosure by Exemption 4 of the FOIA, which protects from disclosure "trade secrets and commercial or financial information obtained from a person that is privileged or confidential." 5 U.S.C. § 552(b)(4).

For the reasons discussed below, NASA has failed to sustain its burden of demonstrating that the information redacted from the 49 pages produced on September 16, 2016 is exempt from disclosure pursuant to Exemption 4.

The documents released by NASA are copies of two Space Act Agreements with IMAX Spaceworks that cover the production of a feature documentary film to be released commercially by IMAX containing footage produced aboard the International Space Station by NASA using hardware equipment provided by IMAX. NASA provided no details about the redacted information, but based on context, the redactions appear to withhold information in at least four categories:

1) the names and descriptions of the camera systems and other equipment that is being provided to NASA by IMAX to produce the film;
2) technical specifications of the deliverables that NASA will provide to IMAX after production;
3) contact information for IMAX employees;
4) US dollar amounts that IMAX will reimburse NASA for flight certification of the equipment.

Because the information is redacted, it is not possible to be certain that the listed categories cover all of the information that is redacted. The only basis asserted for withholding this information is Exemption 4.

Exemption 4 of the FOIA permits an agency to withhold "trade secrets and commercial or financial information obtained from a person privileged or confidential" where disclosure of the information is likely to cause substantial competitive harm to the person or entity that submitted the information. 5 U.S.C. § 552(b)(4). In order to properly invoke Exemption 4, an agency must "show exactly who will be injured by the release of [the] information and explain the concrete injury." Delta Ltd. v. U.S. Customs & Border Prot. Bureau, 393 F. Supp. 2d 15, 19 (D.D.C. 2005). "Conclusory and generalized allegations of substantial competitive harm ... cannot support an agency's decisions to withhold the requested documents." Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1291 (D.C. Cir. 1983); see also Bloomberg L.P. v. Bd. of Governors of the Fed. Reserve Sys., 649 F. Supp. 2d 262, 279 (S.D.N.Y. 2009) ("An agency must point to specific evidence substantiating an assertion that release of a record would cause substantial competitive harm to the person from whom the information was obtained. ... The agency must provide evidence that if the requested information is disclosed, competitive harm would be 'imminent.'") (internal citation omitted), aff'd, Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143 (2d Cir. 2010), cert. denied, No. 10-543 (U.S. Mar. 21, 2011).

NASA has failed to demonstrate that the information redacted from the contracts is exempt from disclosure under Exemption 4. See 5 U.S.C. § 552(a)(4)(B) ("the burden is on the agency to sustain its action"); see also In Def. of Animals v. USDA, 656 F. Supp. 2d 68, 79 (D.D.C. 2009) (ordering the Department of Agriculture to produce 1,017 pages withheld from disclosure pursuant to Exemption 4 where the Department failed to sustain its burden of demonstrating that the entity investigated would "suffer substantial competitive injury if the information withheld [was] released"). The response letter does not provide any explanation of how the information redacted from the contracts would cause competitive harm to IMAX Spaceworks. See Bloomberg L.P. 649 F. Supp. 2d at 279 (the agency "must show that the competitive harm will result from the affirmative use of the information by competitors of the person from whom the information was obtained, not merely injuries to that person's competitive position in the marketplace or 'embarrassing publicity attendant upon public relations.'") (citing Pub. Citizen Health Research Group, 704 F.2d at 1291 n. 30).

It is difficult to see how the release of each of the withheld categories of information could cause substantial competitive harm:

As to category 1, the camera systems provided by IMAX, there are photos of the equipment on NASA's website (https://www.nasa.gov/mission_pages/station/research/experiments/1872.html), the cameras are the Canon EOS C100 and Canon EOS-1D C with standard Canon zoom and prime lenses.

As to category 2, the technical specifications of the deliverables, since the camera systems in use are apparently already public knowledge it is clear that the specifications of the output of these publicly available cameras is also not confidential or sensitive in any way.

As to category 3, contact information for IMAX employees, the release of this information would in no way cause substantial competitive harm.

As to category 4, amounts that IMAX will reimburse NASA for flight certification of hardware, it is hard to see how the release of these dollar amounts would cause any harm. Indeed, NASA is contractually obligated to charge the exact amount required to actually fulfill the contract and return any unspent funds, so this could not harm any future contract negotiations.

In conclusion, NASA has also failed to demonstrate that the withheld information is exempt from disclosure under Exemption 4, and the categories of information that have been withheld and are obvious based on the available context do not qualify for Exemption 4.

I respectfully request that NASA respond to this appeal within 20 days. See 5 U.S.C § 552(a)(6)(A)(ii).

Sincerely,

Jonathan Rudenberg

From: NASA

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