Rubman v. USCIS, 800 F.3d 381 (7th Cir. Aug. 31, 2015) (Sykes, J.)

Rubman v. USCIS, 800 F.3d 381 (7th Cir. Aug. 31, 2015) (Sykes, J.)

Re: Request for statistics concerning visas which allow U.S. companies to hire noncitizen workers with specialized skills

Disposition: Reversing and remanding district court's grant of defendant's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The Court of Appeals for the Seventh Circuit "hold[s] that CIS failed to conduct an adequate search in response to [plaintiff's] FOIA request."  The court finds that "CIS has never performed a responsive search (i.e., one of preexisting internal documents related to CIS's calculation of the H–1B visa cap from fiscal years 2009 to 2012), [and] it must now do so."  The Seventh Circuit explains that "[plaintiff's] initial request was properly understood to have been for preexisting internal documents."  Plaintiff "wanted a search of CIS's preexisting 'documents reflecting statistics,' while CIS interpreted his request as one for newly generated summary statistics."  Moreover, "when [plaintiff] asked for 'all documents reflecting statistics' and then objected to CIS's decision to respond with a newly generated summary table, the agency was required to search for records in the form specified in the initial request."  The Seventh Circuit also notes that "CIS's Director of FOIA Operations, responded that the disclosure of e-mails (she didn't address his request for reports) 'would not provide [plaintiff] with an accurate calculation,' 'would not alter the outcome of the results that were provided to [plaintiff],' and 'rather [would] only create additional confusion.'"  The court finds that "[a]lthough agencies are not required to provide 'explanatory material' along with the records they disclose, . . . the risk of confusion is not a legitimate basis for refusing to perform a FOIA search."

Relatedly, the Seventh Circuit notes that "CIS argues that [plaintiff] waived his objection to the data table when he failed to demand preexisting internal documents in his [follow-up] letter; instead he asked CIS to provide a 'corrected response.'"  The court finds that "[plaintiff's] willingness to entertain the possibility that an (accurate) data table could meet his needs did not mean that he intentionally relinquished his right to have his original request answered, particularly given that he never expressly disclaimed his desire for documents."