Knight First Amend. Inst. at Columbia Univ. v. CDC, No. 20-2761, 2022 WL 4124857 (S.D.N.Y. Sept. 9, 2022) (Torres, J.)

Knight First Amend. Inst. at Columbia Univ. v. CDC, No. 20-2761, 2022 WL 4124857 (S.D.N.Y. Sept. 9, 2022) (Torres, J.)

Re:  Request for certain records concerning coronavirus or Coronavirus Task Force, as well as records concerning communication with news media and public policies

Disposition:  Rejecting parties’ proposals regarding search terms, initial custodians for search, and reasonable timeline for production

• Procedural Requirements, Searching for Responsive Records:  “The Court agrees with Plaintiff that the CDC’s search proposal is inadequate.”  The court finds that “[i]n its new proposal, the CDC again fails to sufficiently justify why it declines to use certain variants for ‘communication’ and ‘COVID,’ including ‘COVID-19,’ arguing only, in general terms, that unspecified variants ‘pull in an excessive number of records that are not related to the subject of Plaintiff’s FOIA request.’”  “As stated in the September 17 Order, the fact that a search would result in the capture of a larger number of documents does not necessarily make it unduly burdensome.”  “Additionally, the CDC fails to sufficiently justify its decision to use a search method that looks for only specific full names or phrases, as opposed to a search that uses Boolean connectors or other similar search strategies, which the Court specifically directed the CDC to consider.”  “Furthermore, with respect to the custodians, the CDC has not explained how it will attempt to address concerns raised by its failure to retain emails by certain former employees it identified as having been ‘involved with the draft media strategy.’”  “The CDC is ‘obliged to pursue any clear and certain lead it cannot in good faith ignore,’ and must, therefore, consider alternative ways of accessing these communications.”  “Additionally, the CDC does not explain why it decided not to use the additional custodians identified by Plaintiff.”  “As the Court previously stated, ‘[a] failure to use certain search terms, including those emphasized by Plaintiff, is not automatically unreasonable, “so long as the agency provide[s] an explanation as to why the search term was not used.”’”  “Thus, the CDC is under no obligation to adopt Plaintiff’s proposal, but it must provide a reasonably specific explanation for why it has decided not to use the search terms and strategies proposed by Plaintiff.”  “As discussed above, the CDC’s explanation, which fails to discuss the additional custodians Plaintiff proposes or address the components of the search strings Plaintiff suggests, is insufficient.”  “In general, a FOIA plaintiff “cannot dictate the search terms for [its] FOIA request,” and “federal agenc[ies have] discretion in crafting a list of search terms that they believe to be reasonably tailored to uncover documents responsive to the FOIA request.”  “Thus, the Court shall not adopt Plaintiff’s proposal; rather, it shall give the CDC an opportunity to revise its proposal to remedy the deficiencies identified by the Court, and either incorporate elements of Plaintiff’s proposal or provide specific justification for why it cannot utilize the proposed terms or search strategies beyond general assertions of overbreadth.”