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Government Accountability Project v. United States Department of Homeland Security

United States District Court, District of Columbia

October 12, 2018




         This 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.

         Plaintiff 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.

         I. Background

         On 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.

         Some 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[1] 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.

         OCIO 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.

         GAP now 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.

         II. Legal Standard

         FOIA 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).

         When 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).

         “An 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.

         III. Analysis

         GAP initially identified three bases why it is entitled to summary judgment, but in response to subsequent search efforts by DHS, now emphasizes just one.[2] 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. ...

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