NAACP Legal Def. & Educ. Fund v. DOJ, No. 18-9363, 2020 WL 2793015 (S.D.N.Y. May 29, 2020) (Nathan, J.)

NAACP Legal Def. & Educ. Fund v. DOJ, No. 18-9363, 2020 WL 2793015 (S.D.N.Y. May 29, 2020) (Nathan, J.)

Re:  Request for records concerning proposed inclusion of a citizenship status question on the 2020 decennial census

Disposition:  Denying defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "DOJ's declarations, taken together, are sufficiently specific to allow the Court to judge the reasonableness of the underlying searches."  "Indeed, they are 'nonconclusory,' . . . and describe 'in reasonable detail the scope and method by which the search[es were] conducted' . . . ."
   
• Litigation Considerations, Adequacy of Search:  "[T]he Court concludes that the electronic search of the census collection database was inadequate with respect to subpart (2) of [plaintiff's] request because the search terms used 'were too restrictive to be reasonably calculated to uncover all responsive records.'"  "In response to this subpart of [plaintiff's] request, which requests documents relating to DOJ's request for a citizenship status question on the 2020 decennial census as necessary to enforce Section 2 of the Voting Rights Act, the Civil Rights Division first searched the census collection database using only the search term 'census.'"  "While DOJ has discretion to develop search terms reasonably tailored to subpart (2) of [plaintiff's] request, . . . its explanation for why it used only this search term to search for records responsive to this subpart is illogical and thus insufficient, . . . ."  "It alleges only that it used the term 'census' 'to compile the largest possible data collection to locate all documents responsive to [subpart (2) of plaintiff's]] request.'"  "But it does not further explain why or how use of only this term would succeed in compiling the 'largest possible data collection' of documents potentially responsive to subpart (2) of [plaintiff's] request."  "Nor does it account for the fact that a search for the term 'census' leaves out all of the documents responsive to this subpart of [plaintiff's] request that discuss the citizenship status question as necessary to enforce Section 2 of the Voting Rights Act but do not explicitly mention the word 'census.'"  "Furthermore, [the court holds that] the fact that DOJ subsequently conducted a second search of the census collection database using the search term 'citizenship question' does not render its inadequate search adequate."  "Indeed, even the combination of searches for these two search terms is 'too restrictive to be reasonably calculated to uncover' records responsive to subpart (2) of [plaintiffs'] request, because even that combination remains 'unreasonably narrow' given the breadth of the request."
  
  "With respect to its first counterargument, [the court holds that] DOJ fails to bear its burden to 'provide [a] sufficient explanation as to why a search [in response to subpart (2) of [plaintiff's] FOIA request] would be unreasonably burdensome.'"  "It argues only that because the database contains documents unrelated to subpart (2) of [plaintiff's] request, searching it using 'broader terms' such as 'citizenship' or 'Section 2' would be 'extremely likely to capture a large number of records relating to voting issues but not responsive for records relating to Plaintiff’s request.'"  The court holds that "[s]uch a speculative and cursory explanation is insufficient on its face to satisfy DOJ's burden because it fails to 'describe with reasonable specificity the actual burden imposed' by the request."  "Moreover, DOJ's burden argument is belied by the nature of the database, which the Court also considers in determining the reasonableness of a search."  "Electronic databases may be searched using a few keystrokes, and searches can be refined by combining search terms using Boolean operators."  'DOJ is undoubtedly capable of creating and executing such targeted searches because it used Boolean operators in collecting documents to populate the census collection database."  "DOJ also misconstrues [plaintiff's] motion as a backhanded attempt to dictate the search terms of its own FOIA request."  "However, [plaintiff's] motion makes clear that the search terms it references, which are drawn from the language of the FOIA request itself, are suggestions as to how DOJ might craft a search that is 'reasonably tailored to uncover documents responsive to [its] FOIA request.'"  "It is not improper of [plaintiff] to suggest search terms it believes may assist DOJ in crafting an adequate search of the census collection database."
  
  Additionally, "[b]ecause the Court finds that DOJ failed to search all locations likely to contain responsive records, it concludes that the searches it conducted to locate records responsive to subparts (1), (3), (4), and (5) of [plaintiff's] FOIA request were inadequate."  The court relates that "DOJ had ample reason to believe that the census collection database was also likely to contain records responsive to subparts (1), (3), (4), and (5) of [plaintiff's] request."  'This database is populated by documents related to the addition of the citizenship status question to the 2020 decennial census."  "Because the database was likely to contain records responsive to the other subparts of [plaintiff's] request, DOJ was obligated under FOIA to search it."  In response to defendant's argument "that its searches were not inadequate because FOIA does not create any requirement that agencies conduct electronic searches," the court finds that "[o]n this point, DOJ is correct."  "However, it is not the failure to conduct electronic searches in and of itself that renders these searches inadequate; rather, as discussed above, it is the failure to search all locations – including the census collection database – 'likely to contain responsive records.'"