NBC 7 San Diego v. DHS, No. 19-1146, 2022 WL 17820557 (D.D.C. Dec. 20, 2022) (Walton, J.)
NBC 7 San Diego v. DHS, No. 19-1146, 2022 WL 17820557 (D.D.C. Dec. 20, 2022) (Walton, J.)
Re: Requests for records concerning “‘a “secret database of activists, journalists, and social media influencers” related to a migrant caravan [allegedly] approaching the United States’ border with Mexico’”
Disposition: Granting in part and denying in part defendants’ motion for summary judgment; granting in part and denying in part plaintiffs’ motion for summary judgment
- Litigation Considerations, Adequacy of Search: “[T]he Court concludes that the defendants are not entitled to summary judgment regarding the searches at issue.” “The issue for the Court to resolve is narrow, namely: whether the defendants have complied with their obligations under the FOIA when they determined that records located by electronic keyword-based searches using ‘various search terms’ were not responsive to the plaintiffs’ requests.” First, regarding CBP’s search, the court relates that “defendants argue that the records processed in response to [one plaintiff’s] request were properly deemed non-responsive because the records ‘do not contain all the search terms identified in [I]tem 9 of [the] . . . [request] (“ILU-OASISS-OMEGA” and “media” or “reporter” or “journalist’)[.]’” The court finds that “this misconstrues the [plaintiff’s] request.” “[R]egarding Item 9, responsive records (1) are emails, (2) dated ‘from January 1, 2017[,] to present[,]’ (3) that contain both the word ‘ILU-OASISS-OMEGA’ and one of the following three words: ‘media[,]’ ‘reporter[,]’ or ‘journalist[,]’ . . . .” “However, the CBP determined that certain records were non-responsive because ‘they d[id] not contain all the search terms identified’ by the [plaintiff].” “This statement is ambiguous.” “On the one hand, the phrase ‘all the search terms[,]’ . . . could be referring to the combination of search terms sought by the [plaintiff] . . . .” “On the other hand, ‘all the search terms’ could just as well be referring to the entire list of terms.” Regarding another similar request from a different plaintiff the court finds that “the pertinent paragraph of [defendant’s] Declaration does not specifically mention [this second plaintiff’s] request, . . . and, furthermore, implies that all of the records that did not ‘contain[ ] all of the terms identified in [the first plaintiff’s request]’ were deemed per se non-responsive [to this second plaintiff’s request], despite the fact that Items 3 and 4 of [this second plaintiff’s] request were not limited to references to the terms in [the first plaintiff’s] request.” The court holds that “[t]he CBP may not again seek summary judgment regarding this issue unless it (1) properly construes the plaintiffs’ requests in accordance with the Court’s rulings; (2) reviews the records located by its search for their responsiveness to the plaintiffs’ requests; and (3) is able to provide the Court with non-conclusory explanations for its reasons for deeming any located records non-responsive.”
Second, regarding USCIS’s search, the court relates that “[s]imilar to [the requests involved in the CBP’s search], [the request at issue here] seeks a certain subset of emails – i.e., emails ‘to, from, copying, or blind copying any email address ending in “.eop.gov[,]”[ ] from January 1, 2017[,] to present’ – that ‘contain’ at least one word from each of two categories, i.e., either ‘media[,]’ ‘reporter[,]’ or ‘journalist’ and either ‘caravan[,]’ ‘migrant caravan[,]’ ‘southern border[,]’ ‘Mexican border[,]’ ‘migrants[,]’ or ‘refugees[.]’” “Consequently, records are responsive if they (1) are ‘to, from, copying, or blind copying any email address ending in “.eop.gov[;]”’ (2) are ‘from January 1, 2017[,] to present[;]’ and (3) have at least one word from each of the two categories.” “The USCIS used the precise terms listed . . . to conduct an electronic keyword search.” “Accordingly, if the USCIS’s search retrieved records containing the terms for which it searched, those records would only be non-responsive to the extent that they did not meet all three of the criteria listed above.” “However, [defendant’s] Declaration does not provide an explanation of the USCIS’s determination that certain records were non-responsive sufficient to support such a conclusion.” “Instead, the only explanation provided by the USCIS is that its ‘processor . . . determined that the [records] did not reference the substance of the . . . request and overall inquiry regarding a Media Monitoring Services Database.’” “[T]his type of conclusory statement does not comply with an agency’s obligation to provide the Court with a ‘relatively detailed and non-conclusory’ affidavit.”
Third, regarding DHS’s search, the court finds that “consistent with the Court’s conclusions regarding the CBP’s and the USCIS’s [searches] . . . , the Court concludes that the DHS has failed to demonstrate that the records retrieved by its search did not meet the criteria [specified in the request at issue].” The court finds that “[defendant’s] Declaration states that the DHS determined that ‘none of the documents . . . were responsive’ after a ‘FOIA analyst reviewed each document to identify the context in which the search terms appeared, and the nature and content of each document[.]’” “To justify its determination regarding non-responsiveness, the DHS explains that its ‘searches return a hit on a document whenever any of the search terms are present, without regard to the context in which they appear or their proximity to one another.’” “However, the ‘context in which the search terms appeared[,]’ . . . is irrelevant to the above requests, which merely seek records in which certain combinations of words or terms appear . . . .” Separately, the court finds that “[u]nlike [the items of the request described above], [another portion of the request at issue] provides room for interpretation by the agency, as it seeks emails ‘that mention or refer to the application(s)/database(s) described in the NBC 7 article and accompanying screenshots/documents[,]’ . . . rather than identifying specific terms or phrases.” “However, although [this item] does not seek records in which certain phrases appear, . . . the DHS provides only a cursory statement that ‘none of the documents [that] the FOIA analyst reviewed were responsive to [the] requests[,]’ . . . with no further explanation as to why the documents were not responsive . . . .” “Absent a ‘non-conclusory justification for each ultimate classification as non-responsive[,]’ . . . the Court cannot grant summary judgment to the DHS as to the adequacy of its search for records responsive to [this portion of the] request.”
Regarding defendant’s general arguments, the court finds that “although the defendants are correct that ‘there is no bright-line rule requiring agencies to use the search terms proposed in a FOIA request[,]’ . . . the defendants’ use of search terms is not at issue in the parties’ motions currently before the Court . . . .” “Rather, the pertinent question, as phrased by the defendants themselves, is whether the defendants complied with their obligations under the FOIA when they ‘determin[ed] that records identified as potentially responsive to various items in the [plaintiffs’] FOIA requests after hitting on various search terms were not, in fact, responsive to the requests[,]’ . . . i.e., whether the defendants’ responsiveness review following their use of the search terms was compliant with the FOIA.” Additionally, the court finds that “defendants are also correct that ‘determining responsiveness is part of the “search” under [the] FOIA[.]’” “However, again, the plaintiffs do not challenge the agency’s general ability to determine that records located during a search are responsive before processing them.” “Rather, the plaintiffs challenge the defendants’ particular determinations as to the responsiveness of records located in this case given the nature of their requests . . . .” “Throughout its briefing, the defendants repeatedly mischaracterize the issue before the Court, claiming that a ruling for the plaintiffs would ‘requir[e] FOIA respondents to release all records hitting on terms defined by requesters without granting those respondents the discretion to review the hits for substantive responsiveness[.]’” “However, as discussed above, . . . the Court concludes that the defendants have (1) inappropriately deemed records non-responsive based on unreasonable interpretations of the specific requests in this case, and (2) failed to provide ‘relatively detailed and non-conclusory’ declarations ‘[i]n order to establish the adequacy of [their] search[es.]’”