Huntington v. Dep't of Commerce, No. 15-2249, 2017 WL 3129739 (D.D.C. July 21, 2017) (Boasberg, J.)

Huntington v. Dep't of Commerce, No. 15-2249, 2017 WL 3129739 (D.D.C. July 21, 2017) (Boasberg, J.)

Re:  Request for records concerning defunct confidential program of U.S. Patent and Trademark Office

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:  The court holds that "Defendant has sufficiently addressed the deficiencies in its original description of its searches."  The court first notes that, "in response to the Court's Order, Defendant asserts that it 'has searched all locations likely to contain responsive documents,' . . . thus invoking 'the "magic words" concerning the adequacy of the search.'"  "The pothole is now patched."  Also "[i]n response to the Court's Order, Defendant provided an additional declaration . . . describing the searches in further detail and specifically addressing which 'work laptops and emails' were searched, 'reasons for [certain search] locations and not others, and how the [USPTO] determined that no paper files had responsive records.'"  Responding to plaintiff's argument, the court also finds that "[t]he '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."'"
  
  However, "[t]he Court agrees with [plaintiff's] interpretation [of the court's previous order] and acknowledges that it should have been more explicit in its prior Opinion with regard to Defendant's obligations."  "Moving forward, Defendant may either submit an additional declaration describing in detail the search made by certain [administrative patent judges] and a sufficient explanation of why more [administrative patent judges] did not search, or the USPTO must search all [administrative patent judge's] . . . records and provide a description thereof."
   
• Exemption 5, Deliberative Process Privilege:  The court finds that "Defendant provided a detailed justification of withholding the information Plaintiff seeks, and the Court will not alter its decision as to this document."  The court relates that "Plaintiff asks the Court to reconsider its decision."  The court also rejects plaintiff's request "asking Defendant to create two separate documents" and finds that "FOIA 'does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.'"