Bader Fam. Found. v. EEOC, No. 23-976, 2025 WL 915563 (D.D.C. Mar. 26, 2025) (Cobb, J.)

Bader Fam. Found. v. EEOC, No. 23-976, 2025 WL 915563 (D.D.C. Mar. 26, 2025) (Cobb, J.)

Re:  Request for eight categories of records concerning discrimination

Disposition:  Denying defendant’s motion for summary judgment

• Procedural Requirements, Proper FOIA Requests & Searching for Responsive Records:  The court relates that “[s]ome FOIA requests are clearly ‘reasonably described’:  they detail the names of specific people, dates, or statements sought and leave little room for guesswork.”  However, FOIA does not require every request to be so precisely described.”  “After all, ‘FOIA requesters are frequently in no position to know how an agency classifies its documents or what terminology the agency might have used – that is often why they are making a request in the first place.’”  “The D.C. Circuit has identified three ways in which a FOIA request can fail the ‘reasonably describes’ requirement.”  “The first is if the request contains vague words and descriptions such that the agency is unable ‘to determine precisely which records are being requested.’” “The second is if the request seeks difficult to locate records that would entail an ‘unreasonably burdensome search.’”  “That question turns on whether agency employees can locate the responsive records ‘with a reasonable amount of effort.’”  “And third, a request is not ‘reasonably described’ if it requires overly burdensome post-search efforts.”  “The EEOC contends that Items 4, 5, and 8 fail all three prongs of the ‘reasonably describes’ test.”  “Because Items 4 and 5 raise similar issues, the Court will address them together before turning to Item 8.”  “For the reasons discussed below, the Court will deny the motion for partial summary judgment as to all three Items.”

  The court relates that “Items 4 and 5 request the following records:  ‘Item 4: All internal and external communications alleging that (or containing allegations that) the EEOC has discriminated against, or is discriminating against, a white employee or white employees based on their race, that are sent or received by any EEOC Commissioner or any employee in the General Counsel’s office (including, e.g., any general counsel, deputy general counsel, or assistant general counsel);’ ‘Item 5: All internal and external communications alleging that (or containing allegations that) the EEOC has discriminated against, or is discriminating against, a male employee or male employees based on their sex, that are sent or received by any EEOC Commissioner or by any employee in the General Counsel’s office (including, e.g., any general counsel, deputy general counsel, or assistant general counsel).”  “On the record currently before the Court, Items 4 and 5 are ‘reasonably described.’”  “As to Prong 1, these Items are not vague and have only one reasonable interpretation.”  The court explains that “[t]he EEOC contends that these requests . . . fail Prong 1 because [plaintiff] did not supply information about who the alleged discriminator or alleged complainant would be and when, where, or how the alleged discrimination took place.”  “But FOIA does not require [plaintiff] to identify ex ante the alleged discriminator and complainant, or the time, place, and details of the discrimination.”  “In truth, those are likely the details that [plaintiff] is hoping to procure with its request.”  “Despite the EEOC’s suggestions to the contrary, there is only one reasonable interpretation of these Items:  [plaintiff] seeks any allegations that the EEOC discriminated against a white employee on the basis of race or a male employee on the basis of sex, whether that alleged discrimination occurred during an EEOC investigation, during an EEOC adjudication, or was perpetrated by an EEOC employee.”

  “Under Prong 2, the EEOC has not put forward a sufficiently detailed declaration explaining why these records are difficult to locate.”  The court explains that “EEOC argues that it ‘would have great difficulty’ locating [plaintiff’s] requested records.”  “[Defendant’s] Declaration explains that the EEOC crafted two searches it ‘reasonably believed would identify potential responsive documents,’ using search terms like ‘discrimination’ and ‘white’; ‘discrimination’ and ‘Caucasian’; ‘discrimination’ and ‘male’; and ‘discrimination’ and ‘man.’”  “[Defendant’s] Declaration does not say how many results these searches returned, but states generally that the agency ‘has identified 12,939 records that are potentially responsive to . . . Items 4, 5, and 8.’”  “[Defendant’s] Declaration does not say anything further about whether and why the EEOC would ‘have great difficulty’ locating the records requested in Items 4 and 5.”  “In its motion, the EEOC explains that Items 4 and 5 could be difficult to fulfill because people do not always use the word ‘discrimination’ to allege that they have been discriminated against.”  “While the Court understands the EEOC’s concern, FOIA ‘does not require perfection.’” “The agency is not required to design a search that will unearth every conceivable responsive record.”  “It need only ‘ma[k]e a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’”  “Finally, the Items survive Prong 3 because the agency’s declarations do not sufficiently explain how the post-search efforts resulting from this request would be overly burdensome.”  “[Defendant’s] Declaration states that the EEOC has so far identified 12,939 records that are potentially responsive to Items 4, 5, and 8.”  “The agency estimates that each record is about three pages, for a total of 38,817 pages.”  “[Defendant] states that it could take a FOIA attorney ‘years’ to review that many documents but does not explain how he arrived at that conclusion.” “These figures do not account for the yet-undetermined number of text messages and Microsoft Teams messages that could be responsive to those Items.”  “The quantity of documents here – roughly 13,000 records (or approximately 40,000 pages) – even if that estimate is incomplete, is still far smaller than the volume of records at issue in those FOIA cases where requests were deemed ‘overly burdensome.’”  “Nor is it apparent that the agency’s post-search efforts would be unnecessary to the requester’s purpose.”  “Because [defendant’s] Declaration does not provide the reasonably specific detail necessary to support the EEOC’s contention that post-search efforts would be overly burdensome, . . . Items 4 and 5 survive Prong 3 at this juncture.”

  “Item 8 requests the following records:  ‘All internal and external communications (e-mail, text, instant messaging, calendar items, etc.), between any EEOC Commissioner and any of the following groups (including any officer or staff attorney of the following groups): the NAACP Legal Defense and Education Fund, the National Association for the Advancement of Colored People, Legal Momentum, the National Women’s Law Center, the Leadership Conference on Civil and Human Rights, the Southern Poverty Law Center, or Human Rights Campaign.’”  “On the record currently before the Court, Item 8 is ‘reasonably described.’”  “On Prong 1, the EEOC can reasonably construe Item 8 without defining the term ‘officer.’”  “As to Prong 2, the Court cannot definitively say at this stage that searching for the requested text messages would be unreasonably burdensome.”  “Finally, on Prong 3, the EEOC has not provided sufficient evidence to persuade the Court that Item 8 would require overly burdensome post-search efforts.”  “If Item 8 sought all communications between an EEOC Commissioner and officers of the named organizations, EEOC’s argument would be compelling.”  “But instead, Item 8 requests communications ‘between any EEOC Commissioner and any of’ the named organizations.”  “The subsequent parenthetical phrase, ‘(including any officer or staff attorney of the following groups),’ so far as the Court can tell, neither limits nor expands that search.”  “The EEOC takes issue with Item 8’s request for text messages.”  “As [defendant’s] Declaration explains, because [plaintiff] did not provide specific phone numbers relevant to Item 8, ‘the EEOC does not know if a particular text message involves a member of one of the organizations without reading the entire message itself, and even then the EEOC likely would not know if a particular individual is employed by one of the requested organizations in [I]tem 8 of [plaintiff’s] request.’” “However, where a requester ‘seek[s] records related to a particular topic, exchange, or piece of official business, it would be reasonable to expect Department employees to locate any agency records in their personal accounts pertaining to that topic, exchange, or piece of business and forward them to the FOIA coordinator.’” “Presumably, the agency could ask EEOC Commissioners whether they communicate via text with individuals from the named organizations and, if so, to provide those individuals’ names and phone numbers.”  “The agency has not explained why such an approach would be unworkable here.” Finally, the court notes that “[t]he agency has not made any argument (or, any argument distinct from those the Court has already addressed above) that once responsive text messages are located, processing them would be overly burdensome.”