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Inter-Cooperative Exch. v. U.S. Dep't of Com., No. 20-35171, 2022 WL 2036299 (9th Cir. June 7, 2022) (Bumatay, J.)


Inter-Cooperative Exch. v. U.S. Dep't of Com., No. 20-35171, 2022 WL 2036299 (9th Cir. June 7, 2022) (Bumatay, J.)

Re:  Request for crab arbitration system standards and the Alaska state minimum wage increase

Disposition:  Reversing and remanding lower court's grant of summary judgment

  • Litigation Considerations, Adequacy of Search:  In this case, "[the requester] contends that [the government's] choice of search terms was unduly narrow and not reasonably calculated to uncover all documents relevant to its FOIA request."  "[The requester] [s]ought records related to two subjects:  (a) '[crab] arbitration system standards' and/or (b) 'the Alaska state minimum wage increase.'"  "In response, [the government] selected three search terms: 'binding arbitration,' 'arbitration,' and 'crab.'"  "[C]ommon sense tells us that the [government] only really selected two search terms since 'binding arbitration' is subsumed by 'arbitration.'"  "We agree that [the government's] choice of search terms was overly narrow."

    "First, the [government's search] terms completely disregarded half of [the requester's] FOIA request."  "[The requester] sought records not just on '[crab] arbitration system standards,' but also for records related to the 'Alaska state minimum wage increase'—either conjunctively or disjunctively with records about the arbitration system."  "Yet, it's clear that the [government's] two keywords—'crab' and 'arbitration'—were not designed to generate records related to the minimum wage."  "[The government's] declaration confirms that."  "[The government's declaration] states that the keywords were developed in response to [the requester's] request for crab-arbitration records."  "[The government's declaration] never mentioned devising search terms to cover the request for minimum-wage records."

    "Second, [the government] failed to justify its contention that the two selected keywords were logical choices to target records related to the 'interpretation and application of the arbitration system standards,' as [the requester] requested."  "[The government's declarations] do not explain why the two search terms would adequately cover the seemingly broad subject of crab arbitration standards."  "As we've said, an agency's affidavit purporting to show the adequacy of a search must be 'reasonably detailed' and 'nonconclusory.'"  "[The government's] declarations fall short of this standard."

    "Third, we agree with [the requester] that [the government] should have considered common variants of its chosen keywords."  "[The government] used the keyword 'arbitration,' but its search didn't encompass closely related variants, such as 'arbitrator' or 'arbitrating.'"  "[The government's] duty to consider variants was particularly important here since [the requester] asked for and [the government] agreed to a search of . . . text messages and social media."  "Such communications often use 'informal [language] and contain typographical errors, shorthand, symbols, and abbreviations.'"  "In sum, we hold that the search terms selected here were too narrow."

    "[The requester also] argues that it was unreasonable to allow Merrill to personally search his cellphone by looking for or listening for keywords."  "[However,] [a]side from the use of overly narrow search terms as discussed above, we agree with the district court that [the government] conducted a reasonably adequate search of Merrill's text, social media, and voicemail messages."  "While it is true that [the government's] initial search log did not mention a search of Merrill's cellphone, the declaration of his supervisor . . . explained that the omission was 'an inadvertent error.'"  "Merrill confirmed that he searched his personal cellphone for responsive records."  "In his declaration, Merrill stated that, to his recollection, he did not use his personal cellphone for government business; but he searched his text messages and his Facebook accounts for responsive records using the keywords and found no records."  "He submitted that he had no other social media accounts except for WhatsApp, which he rarely used and didn't contain any responsive records."  "He also stated that he listened to voicemails on his phone for the search terms and did not identify any responsive recordings."  "Aside from the overly restricted search terms, we conclude that [the government's] method of searching Merrill's cellphone was 'reasonably calculated to uncover all relevant documents.'"

    "[The government] fell short of its FOIA obligation to craft search terms reasonably calculated to uncover all records relevant to [the requester's] request."  "The grant of summary judgment in the [government's] favor was thus improper."  "We reverse and remand for further proceedings consistent with this opinion."
Court Decision Topic(s)
Court of Appeals opinions
Litigation Considerations, Adequacy of Search
Updated June 30, 2022