Stevens v. Broad. Board of Governors, No. 18-5391, 2023 WL 2428839 (N.D. Ill. Mar. 9, 2023) (Rowland, J.)

Stevens v. Broad. Board of Governors, No. 18-5391, 2023 WL 2428839 (N.D. Ill. Mar. 9, 2023) (Rowland, J.)

Re:  Requests for records concerning plaintiff’s FOIA requests

Disposition:  Granting defendants’ renewed motion for summary judgment

• Litigation Considerations, Adequacy of Search:  Regarding U.S. Agency for Global Media (“USAGM”), the court relates that “[i]n [its] first summary judgment order, it found that the scope of USAGM’s search was adequate, but that USAGM failed to adequately describe its search process, including providing its search terms.”  The court finds that “USAGM has remedied this problem.”  “[Defendant’s] declaration satisfies [the] Court’s initial concerns regarding the adequacy of USAGM’s search, as it is ‘reasonably detailed, set[s] forth the search terms used in electronic searches and the kind of search performed by the agency, and aver[s] that all files likely to contain responsive documents were searched.’”  The court relates that “Plaintiff additionally criticizes [defendant] for conducting an additional email search in 2021 using expanded search terms, which yielded a few dozen additional responsive pages.”  “Plaintiff suggests that this Court should be suspicious that this additional search yielded new documents that had not previously been captured by other searches, . . . but this Court has the opposite impression.”  “After all, the agency undertook this search as a show of good faith to ensure that all responsive documents have been identified.”  “An agency’s good faith ‘can be reinforced by evidence of the agency’s attempts to satisfy the [FOIA] request.’”  “Moreover, the fact that the first searches did not yield these new documents does not necessarily mean that they were not reasonably adequate.”
  
  Regarding HHS’s search, “[the] Court finds that HHS has rectified the errors this Court identified in its first summary judgment order.”  The court relates more detailed descriptions of custodians and locations searched and then finds that “[these] detailed description[s] satisfy the Court that HHS conducted a thorough search [for] responsive records.”  The court also finds that “HHS additionally cures its past deficiencies by explaining the search terms it used” because it explains that the search “would have located any emails that contained a combination of the [search terms used].”  “[The] Court finds these terms reasonable.”
  
  Regarding USCIS, the court relates that “USCIS argues that it has now cured the search term issue this Court previously identified because its Verification Division – which this Court previously approved as the office reasonably likely to maintain responsive records – queried its computerized databases . . . and found no additional responsive records using the additional search terms.”  “Plaintiff contends that ‘there is no way’ for this Court to determine whether, in fact, these four databases were reasonably likely to contain responsive records.”  “But [defendant] avers that the Verification staff determined that those computerized databases were the ones ‘reasonably likely to contain responsive records,’ and that USCIS has no reason to believe additional records exist within its custody and control.”  “This satisfies the Court that USCIS has searched the correct databases for responsive documents.”
  
  Regarding USAID, the court relates that “[i]n considering USAID’s efforts on Defendants’ first summary judgment motion, [the] Court identified only one issue with USAID’s searches:  like USCIS, USAID searched their files using only [one] search term . . . and not other common terms [for that search term].”  “USAID now renews its motion for summary judgment, arguing that it rectified the omission where it could and explained why it was not able to do so where it could not.”  The court finds that “[most] places have now indisputably conducted reasonably adequate searches.”  “As to other locations, USAID was less successful in executing searches.”  “USAID’s Mission in West Bank and Gaza asked its IT specialist to search local drives and shared drives using [additional] terms . . . .”  “The specialist declined to conduct the additional searches, representing that it believed the Mission’s system would be at an elevated risk of crashing and having an elongated recovery period, if recovery could even be accomplished.”  “And USAID also faced issues when performing a more global search for the terms . . . on its cloud drive, which houses all agency email and shared information.”  “As USAID’s declarant . . . explains, those searches hit on millions of items, and to even sample items from each search would present an ‘incredibly burdensome task.’”  “[Defendant] estimates that even sampling 96 items from each dataset would entail 7 to 42 days of work, and that conducting that sampling might be rendered even more impracticable by security concerns rendering exported files searchable for only 11 working days.”  “Further, [defendant] explains that based on other searches conducted by USAID, he believes that there would be a high yield of false positives – that is, the terms . . . are likely to turn up items having nothing to do with [the requested information].”  “[The] Court finds that USAID has offered a sufficiently detailed explanation regarding the burden of conducting additional searches . . . in the cloud drive and in the Mission in West Bank and Gaza.”  “Based on the technological challenges, the overwhelming number of documents, and impracticability of reviewing such a vast quantity of material, [the] Court concludes that FOIA does not require USAID to:  (1) run the additional searches for the Mission in West Bank and Gaza; or (2) extract and review samples of documents hitting on [the additional search terms] from its cloud drive.”  “USAID is excused from running those searches and has now conducted a reasonably adequate[] search for responsive documents.”
   
• Exemption 4:  The court holds that “USAGM properly invoked Exemption 4.”  “The Vaughn Index describes the withheld surveys as proprietary and redacted emails as containing proprietary or confidential pricing information . . . and [declarant] further explains in his declaration that if the information ‘were published to the general public, there would be no benefit to the United States public,’ and that instead, ‘the survey information could be misused by foreign governments to thwart agency objectives . . . .”  “These assertions that the withheld information was both proprietary and undisclosed to the general public suffice to meet USAGM’s burden of showing that Exemption 4 applies.”
  
  Regarding USCIS, the court relates that “Plaintiff argues that USCIS’ Vaughn index is ‘formulaic’ and ‘ambiguous.’”  “This Court overrules Plaintiff’s challenge.”  “USCIS’ detailed Vaughn index, which this Court has reviewed, explains USCIS’ basis for redacting under Exemption 4.”  “For instance, many of the redactions concern ‘price quotes’ that USCIS’ contractor . . . provides to USCIS.”  “As USCIS explains, it redacted actual dollar figures provided by [the contractor] because this information ‘is customarily and actually treated as private confidential, since disclosure would threaten the company’s competitive position within the business arena by providing competitors an unfair advantage if competitors knew the exact dollar amount the contractor was proposing to charge the government.’”  The court finds that “[c]ontractors’ pricing information falls squarely within Exemption 4’s ambit.”
   
• Exemption 6:  The court relates that “HHS explained, through [its] declaration, that it redacted employees’ titles in addition to their names to protect the employees’ identities.”  “According to [defendant], HHS ran Google searches of titles at specific HHS shelter facilities, and those searches yielded names of individuals who currently or formerly held those titles.”  “Thus, [defendant] concluded that redacting titles would be appropriate because employees can sometimes be identified by their titles.”  “Plaintiff’s sole argument posits that public employees’ names and titles are considered public information by regulation.”  “Plaintiff cites 5 C.F.R. § 293.311, which states that a federal employee’s name and position, among other things, is ‘information’ that is generally ‘available to the public.’”  “But that regulation also states that the ‘agency will generally not disclose information where the data sought is a list of names’ or ‘present or past position titles’ ‘of Federal employees which . . . [w]ould otherwise be protected from mandatory disclosure under an exemption of the FOIA.’”  “This ‘regulation accordingly, by its own terms, does not disarm an otherwise available FOIA exemption.’”  “Plaintiff does not otherwise argue that HHS employees do not have a privacy interest in keeping their titles private.”  “Thus, this Court grants summary judgment to HHS.”
   
• Exemption 5, Deliberative Process Privilege; Exemption 5, Attorney Work-Product Privilege; Exemption 5, Attorney-Client Privilege:  The court relates that “ICE provided a Vaughn index describing eighty-one entries of documents it withheld or redacted under Exemption 5, pursuant to the deliberative-process privilege, the attorney-client privilege, the attorney work product privilege, or a combination of those privileges.”  “This Court has reviewed the Vaughn index and finds the entries very detailed as to the bases under which ICE has withheld certain documents.”  “Although Plaintiff contests ICE’s withholdings, she lodges no specific objection to any entry on the Vaughn index, instead arguing generally that ICE does not show that its communications warrant protection.”  “Absent any specific objection, however, [the] Court will not further question ICE’s withholdings, particularly in light of its independent review of the adequacy of ICE’s Vaughn index and the fact that ICE has produced already 8,000 pages of material.”