10-1016-cv
Kaminsky v. NASA
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DO CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATIO N
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 6 th day of December, two thousand ten.

PRESENT:           ROBERT D. SACK,
                   REENA RAGGI,
                   GERARD E. LYNCH,
                             Circuit Judges.

---------------------------------------------------------------------
BARRY KAMINSKY,
                                          Plaintiff-Appellant,

                   v.                                                   No. 10-1016-cv

NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION,
                                          Defendant-Appellee.
---------------------------------------------------------------------

FOR APPELLANT:                           Barry Kaminsky, pro se, Brooklyn, New York.

FOR APPELLEE:                            Loretta E. Lynch, United States Attorney for the Eastern
                                         District of New York (Varuni Nelson, David M. Eskew,
                                         Assistant United States Attorneys, on the brief),
                                         Brooklyn, New York.
       Appeal from the United States District Court for the Eastern District of New York

(Allyne R. Ross, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on January 19, 2010, is

AFFIRMED.

       Plaintiff Barry Kaminsky, pro se, appeals from an award of summary judgment in

favor of defendant the National Aeronautics and Space Administration on plaintiff’s claims

under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. We assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

       This Court reviews de novo the district court’s grant of summary judgment under

FOIA. National Council of La Raza v. Dep’t of Justice, 

, 355 (2d Cir. 2005).

“In order to prevail on a motion for summary judgment in a FOIA case, the defending agency

has the burden of showing that its search was adequate . . . .” Carney v. U.S. Dep’t of

Justice, 

, 812 (2d Cir. 1994). “Affidavits or declarations supplying facts

indicating that the agency has conducted a thorough search . . . are sufficient to sustain the

agency’s burden,” and we accord such affidavits a “presumption of good faith.” 

This presumption “cannot be rebutted by purely speculative claims about the

existence and discoverability of other documents.” Grand Cent. P’ship, Inc. v. Cuomo, 

, 489 (2d Cir. 1999) (internal quotation marks omitted).

                                               2
       Having conducted an independent and de novo review of the record in light of these

principles, we affirm the judgment below for substantially the reasons stated by the district

court in its thorough and well-reasoned decision.        We have considered Kaminsky’s

arguments on appeal and conclude that they are without merit. Accordingly, the January 19,

2010 judgment is AFFIRMED.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, Clerk of Court




                                             3