Bader Fam. Found. v. U.S. Dep’t of Educ., No. 21-1741, 2022 WL 4355259 (D.D.C. Sept. 20, 2022) (Friedrich, J.)

Bader Fam. Found. v. U.S. Dep’t of Educ., No. 21-1741, 2022 WL 4355259 (D.D.C. Sept. 20, 2022) (Friedrich, J.)

Re:  Request for records concerning school disciplinary policies

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court holds that “[t]he Department is ordered to conduct an additional search.”  The court relates that “[i]n this case, the Department used exactly two search terms – ‘school discipline’ and ‘school disciplinary policies’ – to search for records satisfying [plaintiff’s] request for ‘[e]mails about school discipline or school disciplinary policies.’”  The court finds that “[t]hat decision was unreasonable because searching ‘for [a] phrase verbatim [is] always doomed to return limited results.’”  “Most notably, the search excluded any emails that contained even the slightest modifications of those terms.”  “At the very least, the Department should have included ‘logical variations’ of the phrases and decoupled search terms, rather than ‘group[ing] the words together.’”  “For the same reason, the Department should have included ‘obvious substitutes’ for the words used in [plaintiff’s] FOIA request – ‘school,’ ‘discipline,’ and ‘policy.’”  The court explains that “the request sought all emails ‘about’ school discipline or disciplinary policy, not just ones using those exact phrases.”  Responding to plaintiff’s argument that handling the request in such a manner “would not render the request too vague,” the court finds that “[a] request for documents ‘about’ school discipline is hardly so shapeless and unwieldy that a professional employee familiar with the concept would be unable to locate responsive records.”  The court also notes that “there are ‘positive indications of overlooked materials’ that cast further doubt on the adequacy of the Department’s search.”  The court explains that “[plaintiff] has identified at least two emails that meet [the] exact parameters [of defendant’s search] – yet were not produced.”  “The Department concedes that its search should have captured them, but did not.”  “Their nonproduction is thus ‘countervailing evidence’ putting into genuine issue ‘the sufficiency of the agency’s identification or retrieval procedure.’”
  
  Separately, the court holds that “[plaintiff] has provided concrete evidence that agency records may be found on [a] Columbia Law School email account.”  “[Plaintiff] points to at least three emails on the school account that were addressed to [a government official] using her official title, and all three discussed school discipline policy.”  “The receipt of government-related emails has been relevant evidence to rebut the presumption in other cases.”  “Although the record is devoid of any instance where [that official] sent an official email from her school address, that absence of evidence alone does not prove that [the official] did not use her school account for government business.”  “Notably, the Department’s declaration does not address [the official’s] school email at all.”  “It does not state, for example, that [the official] did not use her school email account for official business, that a search of her school account ‘was [un]likely to produce responsive documents,’ . . . or even that the Department searched ‘all [places] likely to contain responsive materials’ . . . .”  “The Department’s ‘silence’ on this issue ‘speaks volumes.’”  “Given at least ‘one concrete example’ of Department-related communication on the school email, the Department’s ‘failure to deny the allegations that personal accounts were being used to conduct official business leaves open the possibility that they were.’”
   
• Exemption 6:  The court holds that “the Department’s motion for summary judgment as to the redactions will be granted, and [plaintiff’s] motion will be denied.”  The court relates that “[t]he Department’s Vaughn index shows that it primarily redacted personal contact information:  email addresses of various private individuals, [a political appointee in the Office for Civil Rights] cell phone number, and [the political appointee’s] non-government email address.”  “[Plaintiff] objects to the latter two, though it is unclear why given that it already knows both.”  “Regardless, the redactions of [the political appointee’s] cell phone number and [the political appointee’s] non-government email address were appropriate.”  “As a starting point, private individuals ‘have a clear privacy interest in avoiding the disclosure of their personal email addresses.’”  “Department officials do not lose that privacy interest in their personal contact information just by virtue of being public employees.”  Regarding potential public interest, the court finds that [the] FOIA public interest does not include “personal contact information that ‘reveals little or nothing about an agency’s own conduct’ . . . .”  “As a result, the balancing test allows the Department to redact employees’ personal contact information.”  “The same is true for [the political appointee’s] cell phone number.”  “[The political appointee] did not forfeit her general privacy interest in her cell phone number by including it in her email signature line in select communications.”  “As the Department explained, a cell phone ‘is carried on one’s person whether he or she is physically in office, at home, or on personal time.’”  “‘Many people simply do not want to be disturbed at home by work-related matters,’ and individuals have an interest ‘in preventing at least some unsolicited, unwanted [calls] from reaching them at their homes.’”  “[Plaintiff] does not even attempt to articulate a public interest served by disclosing [the political appointee’s] phone number.”  “And ‘something, even a modest privacy interest, outweighs nothing every time.’”  “Though the balancing is slightly different as to [the political appointee’s] personal email address, it too was appropriately redacted.”  “[The political appointee] still has a privacy interest in her contact information, but it is somewhat diminished because her school email address was posted publicly.”  “That posting ‘does not mean that [she] has no interest in limiting the disclosure or dissemination of that information.’”  “‘[W]hile public access may reduce the privacy interest, it does not eliminate it.’”  “[Plaintiff] articulates at least a plausible, if slight, public interest in knowing the extent to which employees are using personal email addresses for official business.”  “But here, that interest appears to be one belonging primarily to [plaintiff] – who wants to know for the sake of this FOIA request – . . . rather than to the public.”  “Because the value to the general public is quite minimal, even a ‘very slight privacy interest’ ‘suffice[s] to outweigh’ it.”  “Finally, the privacy interests of the private individual who was invited, but declined, to participate in a Department panel outweighs the public interest in disclosure.”  “That individual has at least a moderate privacy interest in disclosure of their name because he or she did not voluntarily engage with the government – and rather affirmatively chose not to do so.”  “On the other side of the scale, the public interest is also minor.”  “Knowing the name of an individual who did not participate in a Department event has at most an attenuated link to the public’s interest in ‘identifying the actors who are able to exert influence on’ agency policies . . . .”  “Balancing these two interests on the head of a pin, the privacy interest ekes out.”