Crow v. IRS, No. 20-00518, 2022 WL 1605265 (D. Idaho May 20, 2022) (Nye, C.J.) Re: Request for IRS Case Activity Record concerning plaintiff Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgmen

Khullar v. Rosario, No. 21-62007, 2022 WL 1605340 (S.D. Fla. May 20, 2022) (Singhal, J.)

Re:  Request for certain disciplinary files maintained by the U.S. Patent and Trademark Office ("USPTO")

Disposition:  Granting defendant's motion for summary judgment

• Litigation Considerations, Discovery:  "Plaintiff contends that an agency's declaration in support of its summary judgment motion in a FOIA action cannot contain hearsay."  "Yet Plaintiff cites no authority for this contention."  "'Generally, declarations accounting for searches of documents that contain hearsay are acceptable.'"  "Plaintiff next argues that he should be 'afforded his procedural due process rights to conduct discovery to overcome the presumption' of good faith."  "'As a general rule, courts have disallowed discovery in FOIA actions or have permitted discovery, when deemed necessary, only on a limited basis.'"  "'Discovery is usually not allowed at all if the Court is satisfied that the affidavits/declarations submitted by the agency are sufficiently detailed, non-conclusory, and submitted in good faith.'"  "The Court finds that the Declaration of [the] USPTO FOIA Officer . . . sufficiently describes in detail how the USPTO searched for records responsive to Plaintiff's FOIA request and why its search was reasonably calculated to locate said records."  "Plaintiff has cited no evidence of bad faith that would warrant discovery."  "Plaintiff believes he is entitled to discovery to rebut the presumption of good faith."  "Yet Plaintiff cites no authority for this proposition and the Court is aware of none."  "Accordingly, the Court finds Plaintiff is not entitled to discovery." 
   
• Litigation Considerations, Adequacy of Search:  "Plaintiff attacks the reasonableness of USPTO's search for records by referencing USPTO's response to [plaintiff's] earlier FOIA request[.]"  "This earlier request was much broader and not limited to records concerning [plaintiff]."  "Plaintiff contends that USPTO's response to his prior request advising him of an estimated search fee . . . and an email stating that all information not in his personal file is chargeable, raise questions whether USPTO maintains additional documents relevant to his current FOIA request."  "The fact that both personal and non-personal files could contain records responsive to [plaintiff's earlier] FOIA request has no bearing on whether USPTO's search . . . was reasonable."  "Plaintiff adds that the use of 'in any file' in his FOIA request required USPTO to look beyond the locations where the agency determined responsive documents would likely be found."  "Plaintiff cites no authority for this contention and the Court is aware of none that would support it."  "'[An] agency need not show that its search was exhaustive.'"  "'Rather, the agency must show beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents.'"  "Accordingly, the Court finds the USPTO prevails on this issue."
  
  "Finally, Plaintiff contends the USPTO's failure to locate three specific documents, which the agency separately produced to him in the course of his disciplinary proceeding, demonstrates the agency's search was inadequate."  "The [first] document is not responsive for several reasons."  "It relates broadly to USPTO regulation of attorneys, not to particular disciplinary files specified in Plaintiff's request."  "Moreover, this document would not have been 'received or maintained' by USPTO as of the cutoff date in the request (July 23, 2019)."  "The remaining documents include a 39-page spreadsheet, completely redacted except for one line containing Plaintiff's name and birthdate."  "The Court does not see how this is relevant to the two disciplinary files cited in Plaintiff's request."  "The next document is a printout of the docket of Plaintiff's disciplinary proceeding before the Oregon State Bar."  "The Court does not see how this is relevant to the two disciplinary files cited in Plaintiff's request."  "Even if each of the foregoing documents were responsive, an agency's search is not presumed unreasonable if it fails to produce all responsive documents because an agency is not required to prove that every single responsive document in existence has been produced."  "[T]he Court finds the USPTO's failure to produce the three referenced documents does not demonstrate the agency's search was inadequate."