Reporters Comm. for Freedom of the Press v. FBI, 877 F.3d 399 (D.C. Cir. 2017) (Tatel, J.)
Re: Request for undercover tactics involving impersonation of media and creation of fake news
Disposition: Reversing district court's grant of government's motion for summary judgment; remanding case
- Litigation Considerations, Adequacy of Search: "Finding that material factual questions remain as to the adequacy of the FBI's search, [the Court of Appeals for the District of Columbia Circuit] reverse[s] and remand[s] to the district court for further proceedings consistent with this opinion." The court first finds that "[the government's] declarations' principal flaw lies in their failure to 'set[ ] forth the search terms and the type of search performed' with the specificity our precedent requires." "[T]he . . . declarations are utterly silent as to which files or record systems were examined in connection with the targeted searches and how any such searches were conducted, including, where relevant, which search terms were used to hunt within electronically stored materials." Second, the court finds that, "given the FBI's determination that certain divisions were 'reasonably likely' to hold records relating to a specific instance where media impersonation was used to deliver malware, its failure to search these very same divisions for records relating to other such instances leaves [the court] unable to conclude, barring some explanation, that the FBI searched for the latter records in a manner 'reasonably expected to produce the information requested.'" Third, the court finds that "'it will be the rare case indeed in which an agency record contains a lead so apparent that the [agency] cannot in good faith fail to pursue it.'" "Nevertheless, [the court] find[s] this exacting standard satisfied here, where the record reveals an agency office [not searched] directly and conspicuously weighing in on a pointedly relevant, highly public controversy to which a FOIA request expressly refers." "Finally, [the court does find that] to the extent the [requester] argues that [an] OIG report calls the adequacy of the search into question because it refers to a handful of . . . documents that the search apparently failed to turn up, 'the adequacy of a search is "determined not by the fruits of the search, but by the appropriateness of [its] methods."'" "That a few responsive documents may have slipped through the cracks does not, without more, call into question the search's overall adequacy."