Reclaim the Records v. U.S. Dep’t of State, No. 23-1650, 2024 WL 4123416 (S.D.N.Y. Sept. 9, 2024) (Cronan, J.)
Reclaim the Records v. U.S. Dep’t of State, No. 23-1650, 2024 WL 4123416 (S.D.N.Y. Sept. 9, 2024) (Cronan, J.)
Re: Request for records concerning deceased passport holders
Disposition: Granting defendant’s motion for summary judgment; denying plaintiffs’ motion for summary judgment
- Procedural Requirements, Searching for Responsive Records; Litigation Requirements, Evidentiary Showing, Adequacy of Search: The court holds that “[t]he Department of State . . . has met its burden of showing that it conducted an adequate search.” “[Defendant’s declarant] . . . confirmed that ‘the Department has never created and does not currently possess or maintain an extract of either its paper or electronic passport records with the parameters specified in the FOIA [R]equest.’” “‘Considering her significant personal knowledge and experience with State Department recordkeeping and retrieval practices, [defendant’s declarant’s] attestation’ that the Department has never possessed or maintained the record sought ‘is entitled to significant weight.’” “Moreover, the ‘passport data maintained by the Department does not contain information about whether an individual is deceased.’” “So to the extent that Plaintiffs seek ‘all information for deceased passport holders,’ . . . Defendants lack the capability to cull their records by that search parameter.” “Locating responsive records is not any more feasible with respect to Plaintiffs’ alternative request for ‘data for all people whose date of birth is on or before June 28, 1920.’” “As [defendant] also explained, ‘[the Passport Information Electronic Records System (“PIERS”)] does not permit a system user to extract passport data for persons born or deceased from a specific date to another specific date, and that functionality has never been available to the Department through PIERS.’” “In other words, Defendant could not extract all records with dates of birth from the earliest date recorded to a date 100 years in the past – it may only search for records that match a singular date.” “[Defendant’s declarant’s] description of the search conducted by the Department, along with her detailed description of PIERS’s technical limitations, sufficiently establishes the adequacy of Defendant’s search.”
“Plaintiffs’ objections to Defendant’s search all operate from the assumption that the State Department maintains a database of passport records that can be queried with relative ease.” “To support these arguments, . . . Plaintiffs have submitted the declaration of . . . a Managing Director at Berkeley Research Group who purportedly has expertise in computer databases . . . .” “Plaintiffs rely heavily on [this individual’s] declaration to support their otherwise bald assertion ‘that it would not be burdensome for the Government to retrieve the records as requested by the Plaintiff[s].’” “As an initial matter, the Court agrees with the Honorable Jesse M. Furman and the Honorable Valerie E. Caproni who – in recent decisions involving the same parties, the same purported expert, and nearly identical declarations – explained why [this expert’s] declaration has limited value to the Court.” “As Judge Furman explained, [this individual] does not work at the State Department; he does not claim to have ever worked there; his understanding of PIERS stems entirely from [defendant’s] declaration, the Privacy Impact Assessment, and the State Department’s Memorandum of Understanding with the Census Bureau; and [the individual’s] declaration makes broad assertions about ‘[a]ll modern databases’ and what he ‘would expect someone with direct database access’ to do when presented with a similar FOIA request.” “In short, it is ‘unlikely that [this individual’s] declaration “reflects a reliable application of the principle and methods to the facts of the case.”’” “Moreover, even if the Court were to consider [the individual’s] declaration in full, it fails to contradict the State Department’s declarations.” “[The individual] does not challenge the accuracy of [defendant’s] description of PIERS’s capabilities.” “Instead, he takes issue with the Department’s use of PIERS in the first place.” “[The individual’s] ‘“generalities about technical capabilities of generic systems”’ are ‘not enough to overcome an agency’s detailed declarations “as to the technical feasibility and reproducibility of a records request.”’”
“The State Department also argues that compiling an extract in response to the FOIA Request would require the agency to create a new record and that doing so would be unduly burdensome.” “Assuming arguendo that generating an extract with responsive data would not constitute the creation of a new record, the searches necessary to compile that extract would impose undue burdens on Defendant.” “Because of [certain] technical limitation[s], ‘the only way for the Department to compile and create an extract in PIERS, or to retrieve the data that would comprise an extract, would be for a Department employee to attempt to identify an accurate means of referencing and joining data stored across multiple repositories, which would require manual searches and also verification of the information in every record.’” “Even ignoring the amount of time required to verify each record, ‘this process would require at least a handful of technical subject matter experts and potentially hundreds of hours devoted to researching, reviewing, and validating the results retrieved.’”