La Union Del Pueblo Entero v. FEMA, No. 21-71, 2023 WL 4906607 (S.D. Tex. Aug. 1, 2023) (Marmolejo, J.)

La Union Del Pueblo Entero v. FEMA, No. 21-71, 2023 WL 4906607 (S.D. Tex. Aug. 1, 2023) (Marmolejo, J.)

Re:  Request for records concerning Individuals and Households Program (“IHP”)

Disposition:  Adopting magistrate judge’s report and recommendation in part; granting in part and denying in part defendant’s motion for summary judgment; denying plaintiff’s motion for discovery

• Litigation Considerations, Adequacy of Search:  The court holds that “there is a genuine dispute of material fact over the adequacy of FEMA’s search.”  “[Defendant’s] declaration names the specific databases explored.”  “However, more is needed.”  “FEMA’s [declaration] does not explain why these databases would likely contain responsive documents.”  “FEMA’s declaration is also wanting for another reason:  Its explanation of the search terms used is too cursory.”  “Here, simply naming two search terms – ‘inspections’ and ‘guidelines’ – with a general statement that FEMA used terms ‘derived from [plaintiff’s] request’ does not show the search was reasonably calculated to produce responsive records.”  “The Court also notes that FEMA’s underlying logic is far too rigid.”  “If the Court accepts FEMA’s proposition that ‘The statements in [a] prior case [before the court where the court found the search to be adequate] sufficed, then supplying some more detail in this case necessitates the same outcome,’ it would undermine the reasonableness standard required by the Fifth Circuit.”  “[C]onsistent with most, if not all, areas of the law, what will be ‘reasonable’ will necessarily turn on the specific facts and circumstances of a case.”

• Litigation Considerations, Preliminary Injunctions:  The court relates that “[plaintiff] seeks a prospective injunction requiring FEMA ‘to make all of [its] substantive and procedural IHP eligibility standards used at any time after January 1, 2019 – including all future standards – publicly available in an electronic reading room, and to do so without further request.’”  “The Court agrees that FOIA authorizes prospective injunctive relief as a remedy.”  However, as to the issue of “whether a prospective injunction can enforce the electronic reading room requirement[,] the Court will defer ruling on this question . . . .”  The court explains that “assuming FOIA authorizes a court to issue such injunctions, it is unclear whether granting this relief would be appropriate.”  “If the Court ultimately reaches this question, it will receive evidence and convene an evidentiary hearing on the matter.”

• Litigation Considerations, Discovery:  The court holds that “[i]t would be premature to order discovery in the form of an amended answer and initial disclosures before FEMA satisfies its obligation to conduct an adequate search.”