Smith v. USMS, No. 19-3572, 2021 WL 1177692 (S.D.N.Y. Mar. 29, 2021) (Swain, J.)

Smith v. USMS, No. 19-3572, 2021 WL 1177692 (S.D.N.Y. Mar. 29, 2021) (Swain, J.)

Re:  Requests for records concerning plaintiff's transfers between state and federal custody, as well as his detention

Disposition:  Granting in part and denying in part defendants' motion for summary judgment

• Litigation Considerations, Adequacy of Search:  First, the court finds that "[USMS's] Declaration adequately details the type of search performed (of the USMS's electronic database containing data pertaining to 'USMS prisoners who are in USMS custody or have a federal arrest warrant issued, or are scheduled for a move between detention facilities,' including 'all data on USMS prisoners provided by federal, state, and local criminal justice agencies, courts, medical care professionals, public and private organizations, witnesses, informants, and other persons interviewed during fugitive investigations'), and the search terms used during that search ('Plaintiff's name, USMS number, [fugitive identification number (FID)], and date of birth').  "Plaintiff's showing of alleged bad faith on the part of the USMS does not meet his burden of identifying evidence sufficient to impugn the agency's affidavits or otherwise warrant denial of summary judgment in favor of the USMS."  "[W]ithout more, an agency's delay does not render that agency's response one that should be treated as made in bad faith or impugn the credibility of the agency's affiants, at least where the agency ultimately performs an adequate and reasonable search for records."
  
  "The Court concludes, however, that the EOUSA has not carried its burden of showing that it has performed an adequate search in response to Plaintiff's FOIA requests, principally because the EOUSA has failed to explain its inconsistent use of search terms across its various searches and, in particular, its use of somewhat narrow search terms in certain of its electronic searches."  "While there may be a proper explanation for the EOUSA's use of inconsistent search terms across its several electronic searches, the agency has not provided one to the Court."  However, "the Court concludes that Plaintiff has not shown that the EOUSA responded to Plaintiff's FOIA requests in bad faith."  The court explains that "[none of the discrepancies concerning forwarding plaintiff's request to USMS without performing a search] support an inference that the EOUSA acted in bad faith."