Am. Ctr. for L. & Just. v. DHS, No. 21-01364, 2021 WL 5231939 (D.D.C. Nov. 10, 2021) (McFadden, J.)

Am. Ctr. for L. & Just. v. DHS, No. 21-01364, 2021 WL 5231939 (D.D.C. Nov. 10, 2021) (McFadden, J.)

Re:  Request for "'any and all records'" about eight subjects regarding migrants

Disposition:  Granting defendants' motion to dismiss

• Procedural Requirements, Searching for Responsive Records:  The court holds that "[plaintiff] has not 'reasonably described' the requested records."  The court explains that "[t]o be sure, nonprofits have plenty of reason to file FOIA requests and to pursue those requests through litigation."  "But FOIA itself offers nonprofits additional inducements to sue."  "First, the Act limits what an agency can charge noncommercial requesters to cover the costs of any search and response."  "Because nonprofit organizations by definition have no commercial interests, they will usually qualify for a fee waiver, lowering the barrier to filing a FOIA request in the first place."  "Second, FOIA requesters may receive attorney's fees if they 'substantially prevail[ ]' in the ensuing litigation."  "As the D.C. Circuit has observed, that provision by design encourages requesters to seek judicial review of an agency's response."  "Thanks to these two provisions, nonprofit requesters have little to lose when they file a FOIA lawsuit."  "And much to gain."  "Both provisions also encourage broadly worded requests."  "With no fees forcing a nonprofit to internalize the cost of its request, it would have little reason not to request a broader universe of documents."  "And the odds of an insufficient agency response – and by extension the odds of prevailing in later litigation – increase as the request expands in scope and the agency risks overlooking responsive documents."  "The mismatched incentives are clear."  "Nonprofit litigants like [plaintiff] have everything to gain and little to lose from posing broad, complicated FOIA requests."  "Agencies, deprived of fees for their FOIA services, have little reason to prioritize FOIA requests over their other statutory duties."  "Combine that with the recent explosion of nonprofit FOIA requests, and the agency will fall further and further behind in processing requests."  "And when the nonprofit requester sues for an overdue response, the parties can endure years of litigation, with the agency ultimately footing the bill."  "This is the system Congress hath wrought."  "And which [the] Court must dutifully implement." 
  
  "But even in the above-described environment, this case is an outlier."  "[Plaintiff] requested 'any and all records, communications, or briefings' on eight subjects."  "The phrase 'any and all' is capacious, involving a huge number of potentially responsive documents."  "But requests for all documents are neither inherently unreasonable nor uncommon."  "[Plaintiff] seizes on this point and touts it to suggest the narrowness of its request."  "But the request includes other language, all of which broadens it beyond the bounds of reasonableness."  "[Plaintiff] sought documents 'referencing or regarding in any way' eight topics."  "A request for documents that merely 'reference' certain topics might not be unreasonable."  "In that scenario, responsive documents could probably be found with a simple keyword search across agency databases."  "But [plaintiff's] request goes further."  "It also seeks documents that 'regard[ ] in any way' the eight specified topics."  "That is a much broader request."  "Such expansive phrasing would sweep in any communication 'even remotely related' to the eight categories being requested."  "Those broad descriptions do not allow the agency 'to determine precisely what records are being requested.'"  "Indeed, they leave the unfortunate FOIA processor assigned to such a case in a hopeless muddle without clear guidance about what documents are being sought."  "The scope of [plaintiff's] request also would require more than a 'reasonable amount of effort' to find responsive documents."  "[Plaintiff] requested records that were 'sent from, prepared by, sent to, received by, reviewed by, or in any way communicated to or by' the DHS Secretary and his 'aides, staff, representative or agents, or acting predecessor, or any other CBP, ICE, or USCIS official.'"  "The population of the Secretary's 'representative or agents' encompasses each of the Department's 240,000 employees."  "They all carry out policy directives as pronounced by him."  "Finally, [plaintiff's] request is not at all limited to certain records."  "To be sure, [plaintiff] limited its request in one regard."  "It sought records from only November 4, 2020 to May 18, 2021."  "Although that temporal limitation is important, it does not change [plaintiff's] use of broad language to identify the records sought nor the applicability of that language to all DHS employees."  "The Court thus agrees with the Government that any search responsive to the plain language of [plaintiff's] request would require, at a minimum, a review of communications by 'any and all employees' at three agencies (ICE, CBP, and USCIS) that might be 'remotely related' to [plaintiff's] eight categories, 'without any limitation on the method or form of communication.'"  "And recall that all DHS employees would likely need to be included."  "That type of search would be 'unduly burdensome,' . . . and would be a 'massive undertaking,' . . . ."  "The agency need not respond to such a request."
  
  The court also notes that "FOIA provides an important check against the abuses of government."  "Nonprofits have wielded FOIA in that laudable spirit, often to positive effect for all concerned about how government operates."  "But FOIA also encourages the same nonprofits requesters to push further."  "And many have, some persistently."  "Those incentives breed requests like this one – imposing crushing burdens on limited agency resources with no clear scope or result."  "FOIA envisions that applicants will reasonably describe the records they seek, and agencies are entitled to demand it."