Huntington v. Dep't of Commerce, No. 15-2249, 2017 WL 211301 (D.D.C. Jan. 18, 2017) (Boasberg, J.)

Huntington v. Dep't of Commerce, No. 15-2249, 2017 WL 211301 (D.D.C. Jan. 18, 2017) (Boasberg, J.)

Re: Request for records concerning recently scrapped confidential USPTO program to flag certain patent applications as involving particularly sensitive subject matter

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

• Litigation Considerations, Adequacy of Search: "In the absence of an affidavit containing the specific assertion that the USPTO searched all locations likely to contain responsive documents, the Court must conclude that a genuine issue of material fact remains as to whether the agency’s efforts were sufficient." The court finds that "[d]efendant has failed to invoke 'the "magic words" concerning the adequacy of the search – namely, the assertion that [the Department] searched all locations likely to contain responsive documents.'" "It has stated only that it 'identified offices reasonably likely to have responsive information and those offices conducted a reasonable search for responsive records.'" The court finds that "[s]uch attestations may come close, but they ultimately do not pass muster." Additionally, the court finds that "although the majority of [plaintiff's] specific objections to the agency's claim to have conducted an adequate search fall flat, the Court agrees that in some respects Defendant failed to proffer a reasonably detailed description of the search." "Although the Court is denying summary judgment on the ground just explained, it believes that a discussion of these objections may provide guidance to the parties for their next round." The court states that "the '"presumption of good faith"' accorded to an agency's affidavits and declarations describing its search 'cannot be rebutted by "purely speculative claims about the existence and discoverability of other documents."'" The court also rejects plaintiff's argument that defendant must provide "the identities or backgrounds of the personnel executing the search." Additionally, "[t]he Court agrees [with plaintiff] that [defendant's] account does not constitute '[a] reasonably detailed' description of 'the type of search performed.'" Finally, responding to another of plaintiff's arguments, the court finds that "[t]he '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.'" "Nor is the government required to examine every document that is merely cross-referenced by the records that have been reviewed."
   
• Exemption 5, Deliberative Process Privilege: The court holds that defendant correctly used Exemption 5 to withhold certain records. Responding to plaintiff's "argument . . . that a decision to flag an application for the [Sensitive Application Warning System] program and an application's status as flagged or unflagged are not predecisional or deliberative because whether an application is flagged does not itself determine whether the patent will be allowed," the court finds that "[t]hat view of the privilege is too narrow." "The challenged documents precede the final patentability decision and are part of the process by which that decision is made; they therefore are predecisional and deliberative." The court also finds that "the agency's desire to avoid generating public bias toward patents that had been selected for the SAWS program is directly in line with one of the purposes of the deliberative-process privilege."