United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
Freedom of Information Act case is reminiscent of the classic
board game Battleship, where players array a fleet of plastic
warships on a secret grid and alternate directing
“shots” at the opponent's vessels by calling
out precise coordinates. A shot hits its mark only if an
enemy vessel is situated on a specified target.
Government Accountability Project (“GAP”) asked
for any records in the Department of Homeland Security's
(“DHS”) possession that related to
“ideological tests” and “searches of
cellphones” at the U.S. border. The agency obliged in a
manner consistent with the rules of Battleship. It canvassed
its electronic records for direct hits, looking only for
records that contained the verbatim language GAP used in its
request. For the first search, it used the terms
“ideological tests” and “border”; for
the second, it used the keywords “search” and
“cellphone.” After the searches yielded zero
responsive documents, GAP complained that DHS unreasonably
omitted additional search terms that quite likely would have
generated a more robust return. Because FOIA requests do not
operate like a game of Battleship-and for other more
technical reasons that follow-the Court agrees and will order
the agency to conduct its search anew.
April 4, 2017, GAP, a non-profit advocacy organization,
submitted a FOIA request to DHS. Complaint ¶ 6. GAP
requested three species of documents. It sought (1)
“correspondence between White House staff and the DHS
concerning ideological tests at the U.S. Border”; (2)
“correspondence concerning searches of cellphones, the
protocols, information about who was searched . . ., search
rates, protocols if a search is refused, etc., for citizens
and non-citizens, at the U.S. border”; and (3)
“any records generated in connection with topics listed
above that raised or were responding to compliance of 5
U.S.C. § 2303(b)(8), ” a federal
whistleblower-protection statute. Id.
five months passed with no response from DHS, so GAP filed
suit in November 2017 to force the agency's hand.
Id. ¶ 8. Ten days later, on December 1, the
agency informed GAP that its search had located no responsive
records. Def's MSJ, Ex. 2, Declaration of James V.M.L.
Holzer (“Holzer Decl.”) ¶ 11. But
“[o]ut of an abundance of caution, ” the agency
“conducted an additional broader search, ” this
time soliciting the assistance of DHS's Office of the
Chief Information Officer (“OCIO”). Id.
¶ 12. It sent “two search taskers” to OCIO.
The first asked OCIO to search for “any and all
emails” between DHS.GOV and EOP.GOV email addresses
that used the words “ideological test” and
“border.” Id. ¶ 13. The second
requested “any and all emails” between the same
email addresses using the words “search” and
“cellphone.” Id. ¶ 14.
completed its search in January 2018. It informed DHS that
the “first tasker yielded zero records” and the
“second tasker returned 965 megabytes of records,
” which amounted to 807 documents. Id. ¶
16. DHS then “conducted a document-by-document key word
search of all 807 documents” and determined that none
of them were responsive to GAP's FOIA request.
Id. ¶ 17.
contends the agency's searches for communications
regarding ideological tests and cellphone searches were
inadequate, that a third search needed to be done for the
part of its request seeking whistleblower records, and that
at the very least, the Court should conduct its own review of
some portion of the 807 documents to test the agency's
claim that the documents the search did turn up were
ultimately non-responsive. The parties have briefed these
issues on summary judgment, and the matter is now ripe for
the Court's resolution.
cases are typically resolved on summary judgment. See
Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527
(D.C. Cir. 2011). Summary judgment is appropriately granted
if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a).
the adequacy of an agency's search is questioned, the
agency must show “beyond material doubt that its search
was reasonably calculated to uncover all relevant
documents.” Ancient Coin Collectors Guild v. U.S.
Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011)
(quoting Valencia-Lucena v. U.S. Coast Guard, 180
F.3d 321, 325 (D.C. Cir. 1999)) (internal quotation omitted).
The key question is whether the search itself was reasonable,
regardless of the results. See Cunningham v. U.S.
Dep't of Justice, 40 F.Supp.3d 71, 83-84 (D.D.C.
2014). “Therefore, the adequacy of a FOIA search is
generally determined not by the fruits of the search, but by
the appropriateness of the methods used to carry out the
search.” Francis v. U.S. Dep't of Justice,
267 F.Supp.3d 9, 12 (D.D.C. 2017) (alteration and quotation
omitted). “Although a requester must reasonably
describe the records sought, an agency also has a duty to
construe a FOIA request liberally.” Nation
Magazine, Washington Bureau v. U.S. Customs Serv., 71
F.3d 885, 890 (D.C. Cir. 1995) (alteration, citation, and
quotation omitted). In the end, while agencies need not
“scour every database, ” Francis, 267
F.Supp.3d at 12, or “turn over every stone, ”
they “must conduct a ‘good faith, reasonable
search of those systems of records likely to possess
requested records, '” Freedom Watch, Inc. v.
Nat'l Sec. Agency, 220 F.Supp.3d 40, 44 (D.D.C.
2016) (quoting Cunningham, 40 F.Supp.3d at 83).
agency may prove the reasonableness of its search through a
declaration by a responsible agency official[.]”
Id. “Agency declarations, especially from
individuals coordinating the search, are afforded ‘a
presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.'” Freedom Watch, 220
F.Supp.3d at 44 (quoting Safe Card Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). Indeed,
courts can award summary judgment solely based on agency
affidavits and declarations that are “relatively
detailed and non-conclusory.” Id.
initially identified three bases why it is entitled to
summary judgment, but in response to subsequent search
efforts by DHS, now emphasizes just one. It maintains that
the agency's search pursuant to GAP's first two
requests-for information on ideological tests and cellphone
searches at the border-was inadequate. GAP contends that the
search was lacking in three respects: (1) it relied on too
few keywords and excluded obvious synonyms; (2) it failed to
consult experts to identify search terms likely to produce
responsive records; and (3) it canvassed only official
government email accounts rather than other forms of
electronic communications. Pl's Mot. for Summ. J.
(“Pl's MSJ”) at 2-4. ...