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Sabra v. CBP, No. 20-681, 2022 WL 768485 (D.D.C. Mar. 14, 2022) (Kollar-Kotelly, J.)

Date

Sabra v. CBP, No. 20-681, 2022 WL 768485 (D.D.C. Mar. 14, 2022) (Kollar-Kotelly, J.)

Re:  Request for records concerning plaintiff

Disposition:  Denying defendant's motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  "Although [CBP's] declarations indicate that particular offices within CBP were selected because they were 'likely' to have responsive records . . . they do not contain any averment that all locations 'likely to contain responsive materials' were searched."  "[CBP's] Supplemental Declaration indicates only that certain offices within CBP would 'likely' have responsive records . . . but neither declaration indicates that CBP searched 'all files likely to contain responsive materials.'"  "This deficiency precludes the Court from granting summary judgment in CBP's favor as to the adequacy of its search for records responsive to Plaintiff's FOIA request."

    "In addition, Plaintiff contends in her Opposition that CBP failed to consider 'obvious leads' for additional email custodians."  "Plaintiff observes [that] the 'to' and 'from' fields in this email chain appear to contain far more than five addresses.'"  "Plaintiff suggests that any additional recipients were 'obvious leads' as potential custodians for responsive records, which CBP 'ignore[d]' by not conducting searches of those employees' emails."  "CBP is correct that FOIA does not obligate it to 'search every single individual who may be on an electronic mail message.'"  "However, in light of its failure to aver that it searched all locations likely to have responsive records, the Court cannot determine whether its decision not to consider these potential email custodians was reasonable."  "The Court reaches no conclusion as to whether CBP's decision not to search the emails of those recipients was reasonable or not; it merely concludes that CBP has offered insufficient information to sustain its burden."
     
  • Litigation Considerations, Summary Judgment:  "A 'FOIA declarant may satisfy that rule's personal-knowledge requirement if in his declaration, [he] attest[s] to his personal knowledge of the procedures used in handling [a FOIA] request and his familiarity with the documents in question.'"  "In Wisdom, for example, the court concluded that the agency's affiant satisfied Rule 56’s personal knowledge requirement by attesting that he is 'responsible for agency compliance with FOIA,' has 'direct involvement in the processing of responses and requests for access to [the agency's] records and information,' and that his statements are 'based upon my personal knowledge, [and] upon information provided to me in my official capacity.'"  "[CBP's] declaration contains substantially similar representations.'"  "[CBP's] declaration satisfies Rule 56’s personal knowledge requirement, as applied to the FOIA context."
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Adequacy of Search
Litigation Considerations, Summary Judgment
Updated April 7, 2022