Sufficiency of an Agency's Search

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Introduction

Agencies have a duty to conduct a reasonable search for records responsive to a FOIA request. The Freedom of Information Act does not require agencies to locate each and every record that might be responsive to a request, but courts have held that agencies cannot ignore clear indications of responsive records.

Defining the reasonableness standard of duty to search

Generally

Agencies have a duty to liberally construe FOIA requests to ensure responsive records are found.[1] To fulfill its search obligations, an agency must “demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.”[2] Under this standard, the question is not

"whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case. In demonstrating the adequacy of the search, the agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith."[3]

Nonetheless, an agency “cannot limit its search to only one or more places if there are additional sources that are likely to turn up the information requested.”[4]

When moving for summary judgment on the basis of affidavits, the moving agency must provide detail as to how it conducted the search, and why that search was reasonable. [5] For example, in 2017 the D.C. Circuit rejected DEA's motion for summary judgment, observing that its affidavits were not sufficiently detailed because 1) they did not describe how the agency searched within files, and 2) they did not explain why the chosen search locations were reasonable. [6] In Reporters Comm. for Freedom of Press v. Fed. Bureau of Investigation, the court used a similar rationale to reverse the District Court's grant of summary judgment for the FBI. [7] The court noted that the government's declarations were "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." [8] The court rejected the FBI's reliance on Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) (per curiam), stating that the FBI had misinterpreted its rule. [9]

In challenging the adequacy of an agency search, it is not enough for a requester to bring “purely speculative claims about the existence and discoverability of other documents”[10] For example, in a FOIA lawsuit where a requester sought images related to the May 2011 raid on Osama bin Laden’s Abottabad, Pakistan, compound, the requester argued that the Secretary of Defense was likely to possess responsive images in his office — and his office should therefore have been searched — because he had advised President Obama about whether to release the photographs.[11] The court rejected this argument as “bald conjecture[],” as it did “not necessarily follow” from the mere fact that he advised the President about the photos that he ever saw, possessed, and/or retained them in his office.[12] Therefore, rather than raise unsupported allegations, you should point to specific evidence to show that the agency’s search was inadequate.

The adequacy of an agency’s search can be called into question if it did not search offices likely to possess the requested documents.[13] For example, in a case involving a FOIA request seeking documents related to the ethical behavior of high level officials in the U.S. Department of the Interior, the department failed to search files within the department’s Office of the Inspector General.[14] The court found the search inadequate because it found it “strain[ed] credulity” that the department did not know the OIG was likely to have responsive documents, when a widely publicized investigation of the officials was ongoing, and the OIG was known to be the office that conducted investigations.[15]

Courts have shown some deference to an agency's choice of search terms. In Muckrock, LLC v. Cent. Intelligence Agency, the court rejected plaintiff's "bald contention" that the chosen search terms were unlikely to produce relevant documents. [16] The court observed that "it is not within the reviewing court's province to nitpick the agency's selection of search terms." [17] However, an agency may not only search the exact terms provided by the requester. [18] As the D.C. Circuit noted, "FOIA requests do not operate like a game of Battleship." [19]

It is important to note that a requester “need not utilize the precise jargon employed by agency officials” in a request.[20] For example, in a case where the requester sought records “relating to appeals . . . regarding” employment terminations, and the agency failed to turn over records of “reconsiderations” on that subject, a court ordered the agency to disclose the documents.[21] The agency argued that it was not obligated to provide the records because reconsiderations were not “related to” employment termination because they preceded termination.[22] The court held that, on the contrary, because it found the plaintiff’s requests to “plainly indicate that she sought information about appeals lodged at any point [during the termination process]” the agency could not avoid disclosing the documents.[23] In fact, an opinion from the D.C. Circuit in Institute for Justice v. Internal Revenue Service, 941 F.3d 567 (D.C. Cir. 2019) perfectly underscores the responsibility of agencies to liberally construe FOIA requests seeking electronic records by saying that “[w]e do not require technical precision in FOIA requests, and a request certainly should not fail where the agency knew or should have known what the requester was seeking all along.” Id. at 572.

On the other hand, where a requester has not specified some details in the request, an agency may unilaterally narrow the scope of its search so long as it acts in good faith. For instance, in one case, a requester sought records maintained under his name with the FBI, but he did not specify which office to search.[24] The FBI, acting in good faith, “searched its ‘Central Records System’, its ‘Electronic Surveillance (ELSUR) Indices’ and its San Francisco field records, and indicated its willingness to search the records of other specific field offices upon further request.”[25] On that basis, the U.S. Court of Appeals for the Ninth Circuit rejected that the man’s request could be construed to require the FBI to search all of its field offices.[26] The court found that requiring such a broad construction would have been “an unreasonable interpretation of the FOIA.”[27]

Electronic Searches

An agency’s duty to search may also require it to conduct specialized electronic searches where appropriate. For example, one court held that the Department of Justice was required to use the electronic legal database PACER, a widely used database that provides access to federal court records, to search for responsive records of files within its own possession.[28]

In another case, the FBI sought to withhold a tape recording of two individuals under Exemption 7(C), and, because the privacy interest under that exemption is diminished for deceased individuals, claimed that it had attempted to determine whether they were alive, but had not been successful.[29] However, the court held that the FBI's search was not reasonable, as it had only used search methods “plainly fated to reach a dead end” and failed to pursue “reasonable alternatives.”[30] The court noted that the agency did not search its institutional databases for the individuals' social security numbers, which could then be searched in the Social Security Death Index.[31] Instead, the agency only looked to whether the requested record itself — the tape recording — contained their social security numbers.[32] Also, the agency consulted a set of books discussing a limited number of "noteworthy" deceased people titled Who Was Who, rather than searching within sources more likely to contain relevant information, such as a Google search for the individuals’ obituaries.[33]

However, in a different case, a requester sought e-mails known to have already been deleted.[34] A court held that because there was insufficient evidence to support the plaintiff’s arguments about the recoverability of electronic files, and because the agency claimed the files had been found in paper format, the FDA’s search was not unreasonable merely because it had failed to hire a specialist to recover the deleted files, or to search for back-up e-mails on a different computer.[35]

Unduly burdensome or voluminous

See also Making a FOIA Request

Even if a requester has “identified…with great specificity” the documents they seek, an agency may deny the request if searching for the documents would be unduly burdensome.[36] If a requester seeks a very large number of documents, the court will examine the “reasonableness” of the search based on the volume of documents that must be searched to identify responsive records.[37]

Examples of unduly burdensome searches include: “a page-by-page search through the 84,000 cubic feet of documents in the [CIA] records center,”[38] a “search through every file in [the IRS’] possession to see if a reference to Scientology appeared,”[39] and a search of “3,500,000 files of patents,” as well as “well over a million of abandoned patent applications.”[40]

However, even where a great number of files must be searched, a request is less likely to be considered unduly burdensome if a search would be “likely to reveal the information requested.”[41] For example, a request for a 1981 memo that required a search through 23 years of files kept by the United States Customs Service was not considered unreasonable where the files were indexed chronologically.[42]

Intelligence Agency Operational Files

Federal laws provide that many intelligence record files lie outside the FOIA’s search and review requirements. As a result, the files are not even required to be searched in response to a FOIA request. As explained in the legislative history of the CIA Information Act of 1984, the first law to grant such an exemption was designed to relieve what the CIA argued was the “unproductive process of searching and reviewing CIA operational records systems which contain little, if any, information releasable under FOIA [and] absorbs a substantial amount of the time of experienced CIA operational personnel and scarce tax dollars.”[43]

An agency citing an operational file exemption to the FOIA will simply respond with a statement that such records would be contained in operational files for which it has no obligation to search.

Among the agencies that have been granted such exemptions include the CIA,[44] the National Security Agency,[45] the National Geospatial-Intelligence Agency[46] (along with its predecessor agency, the National Photographic Interpretation Center),[47] the National Reconnaissance Office,[48] the Office of the Director of National Intelligence,[49] and the Office of the National Counterintelligence Executive.[50]

The CIA Information Act of 1984 authorizes the Director of the CIA to exempt most agency operational files from the search and review requirements of the FOIA.[51]

The Act defines operational files to mean the following:

  • National Clandestine Service files that “document the conduct of foreign intelligence or counterintelligence operations or intelligence or security liaison arrangements or information exchanges with foreign governments or their intelligence or security services”;
  • Directorate for Science and Technology files that “document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems”; and
  • Office of Personnel Security files that “document investigations conducted to determine the suitability of potential foreign intelligence or counterintelligence sources.” [52]

However, “operational files” do not include those that “are the sole repository of disseminated intelligence.”[53] The legislative history of the Act explains that this exception was designed to address those “very rare cases” in which the CIA Directorate of Operations disseminates “intelligence product of extremely sensitive sources” to “selected senior officials” — “in a manner which does not allow storage of the product outside the Directorate of Operations” — and the product is then “returned to the Directorate of Operations for safekeeping.”[54]

Since this dissemination differs from “the normal CIA practice in which intelligence is disseminated to, and maintained in the files of, the analytical components of the CIA, all of the files of which remain subject to search and review,” the exception is designed to ensure “that files which are the [sole] repository of these extremely sensitive intelligence disseminations are not operational files and, therefore, remain subject to FOIA search and review requirements.”[55]

Relying on this legislative history, a U.S. District Court for the District of Columbia has interpreted the exception to mean that operational files fall within it where “they contain disseminated intelligence not found anywhere other than within one or more operational files of the relevant agency.”[56]

Further, under three exceptions in the Act, an agency must follow the FOIA’s search and review requirements for information concerning:

  • requests by citizens or permanent residents for information on themselves;
  • “any special activity the existence of which is not exempt under the [FOIA]”; or
  • “the specific subject matter of an investigation” by certain federal committees or officials for impropriety or violations of law, Executive orders, or Presidential directives in conducting intelligence activities.[57]You should note that to successfully invoke this exception, “the information requested must concern the specific subject matter of the official investigation.”[58]

Where possible, you should argue that one or more of these exceptions apply and, consequently, the files must be searched and reviewed under the FOIA. For example, a court held that the CIA’s operational files would still be subject to the FOIA where they were related to the Office of Inspector General’s investigation of alleged CIA improprieties in Iraq, and there was sufficient “overlap between the specific subject matter of the . . . investigation and plaintiffs’ FOIA requests.”[59]

Additionally, agencies must search and review non-exempt operational files that “contain information derived or disseminated from exempted operational files,”[60] as well as “[r]ecords from exempted operational files which have been disseminated to and referenced in files that that are not exempted . . . and which have been returned to the exempted operational files for sole retention.”[61]

However, you should keep in mind that even a successful operational files exemption appeal does not mean that you will receive the records; it only means that the agency will search for and review the records to determine if disclosure is required. You will then likely have to contest FOIA exemptions raised by the agency to withhold some or all of the records.

Strategies for challenging the sufficiency of an agency's search

To substantiate a claim that a record exists and to aid the agency in finding the record, a requester can take a number of steps:

  • locate and provide news reports referencing certain policies, initiatives, reports, people, etc. that would help establish that a document must exist;
  • conduct and provide Internet research on the topic that otherwise tends to establish a record exists;
  • talk with agency personnel or others who may have relevant information about the documents being sought, who may have access to them and where they may now be located;
  • provide copies of other government documents, testimony or official statements referencing or alluding to the records being sought;
  • provide documents already in the requester's possession that should have been produced within the set of documents assembled had a proper search been conducted.

In a “no records” response situation it also is extremely helpful to know if particular kinds of documents are referred to by a specific class, name or form number and how agencies index and store their files. Being familiar with internal agency records nomenclature, management and archiving is always a plus. You can determine what records systems an agency maintains by finding its page in the FOIA Wiki, either by the search bar or the Agencies Landing Page. A requester can also attempt to speak with FOIA personnel or others at the agency familiar with the records you are seeking to get a better understanding of how records are created and maintained. This can help you provide specific direction to an agency on where or how to go about additional searches in an appeal letter. Finally, if you know of a specific database or class of records you think will have responsive documents you should specifically request that the agency search such sources.

You should also attempt to find out the specifics of the search conducted. This includes when the search was conducted, what offices/files were searched, and who conducted the search and by what means. Note that agencies are required under FOIA to “prepare and make publicly available upon request, reference material or a guide for requesting records or information from the agency” — subject to exemptions to FOIA — that include “an index of all major information systems of the agency” and “a description of major information and record locator systems maintained by the agency.”[62] This knowledge may help you better identify potential flaws in the search that can be highlighted in an appeal.

In Shapiro v. United States Department of Justice, 944 F.3d 940, 943 (D.C. Cir. 2019), the judge reaffirmed that conclusory explanations explaining non-responsiveness determinations will not support summary judgment for the agency. Specifically, the FBI’s holding in this case appears to pave the way for the argument that an agency must offer a non-conclusory explanation for situations in which there is a “hit” for a search term (e.g., a discrete keyword search) and the documents are later deemed to be non-responsive. See id. If an agency's explanation (either in the administrative or litigation phase) is conclusory (e.g., merely recites rote statutory standards), there is a long line of cases, including this one, that you can cite to challenge the agency's position.

Recent district court cases on sufficiency of an agency's search

Recent district court cases regarding this topic from TRAC's FOIA Project. Visit their issue search page for more options.

See also

External links

References

  1. ↑ See Nation Magazine v. United States Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995).
  2. ↑ Valencia-Lucena v. United States Coast Guard, FOIA/PA Records Mgmt., 180 F.3d 321, 325 (D.C. Cir. 1999) (citations omitted). See also Ancient Coin Collectors Guild v. United States Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (“An agency is required to perform more than a perfunctory search in response to a FOIA request.”).
  3. ↑ Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (citing Weisberg v. Dep't. of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984))
  4. ↑ Valencia-Lucenam 180 F.3d at 326 (citing Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)) (internal quotations omitted).
  5. ↑ Aguiar v. Drug Enf't Admin., 865 F.3d 730, 738 (D.C. Cir. 2017).
  6. ↑ Id. at 738-39.
  7. ↑ Reporters Comm. for Freedom of Press v. Fed. Bureau of Investigation, 877 F.3d 399 (D.C. Cir. 2017).
  8. ↑ Id. at 404.
  9. ↑ Id.
  10. ↑ SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
  11. ↑ Judicial Watch, Inc. v. U.S. Dep’t of Def., No. 11-890(JEB), 2012 WL 1438688 at *6 (D.D.C. Apr. 26, 2012).
  12. ↑ Id.
  13. ↑ Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F.Supp.2d 1, 13-14 (D.D.C. 2004);Nat’l Res. Def. Council v. U.S. Dep’t of Def., 388 F. Supp. 2d. 1086, 1100-1101 (C.D. Cal. 2005).
  14. ↑ Defenders of Wildlife, 314 F.Supp.2d at 13-14.
  15. ↑ Id. at 13.
  16. ↑ Muckrock, LLC v. Cent. Intelligence Agency, 300 F. Supp. 3d 108, 125-26 (D.D.C. 2018) (citing Agility Pub. Warehousing Co. K.S.C. v. Nat'l Sec. Agency, 113 F.Supp.3d 313, 339 (D.D.C. July 10, 2015).
  17. ↑ Id. at 125.
  18. ↑ Gov't Accountability Project v. U.S. Dep't of Homeland Sec., No. 1:17-CV-2518 (CRC), 2018 WL 4954149, at *1 (D.D.C. Oct. 12, 2018).
  19. ↑ Id.
  20. ↑ Nicholls v. U.S. Office of Personnel Mgmt., No. 11-1654 (JEB), 2012 WL 1921396 at *5 (D.D.C. May 29, 2012).
  21. ↑ Id.
  22. ↑ Id.
  23. ↑ Id.
  24. ↑ Marks v. U.S. Dep’t of Justice, 578 F.2d 261, 262-63 (9th Cir. 1978).
  25. ↑ Id. at 263.
  26. ↑ Id.
  27. ↑ Id.
  28. ↑ People for the Am. Way Found. v. Dep’t of Justice, 451 F. Supp. 2d 6, 15 (D.D.C. 2006).
  29. ↑ Davis v. Dep’t of Justice, 460 F.3d 92, 97-98 (D.C. Cir. 2006).
  30. ↑ Id. at 103.
  31. ↑ Id. at 101.
  32. ↑ Id. at 100-01.
  33. ↑ Id. at 102-03.
  34. ↑ CareToLive v. FDA, 631 F.3d 336, 342 (6th Cir. 2011).
  35. ↑ Id. at 343-44.
  36. ↑ Ruotolo v. Dep’t of Justice, 53 F.3d 4, 9-11 (2d Cir. 1995).
  37. ↑ People for the Am. Way Found. v. U.S. Dep’t of Justice, 451 F. Supp. 2d. 6, 12 (D.D.C. 2006).
  38. ↑ Goland v. C.I.A., 607 F.2d 339, 353 (D.C. Cir. 1978).
  39. ↑ Church of Scientology v. IRS, 792 F.2d 146, 151 (D.C. Cir. 1986).
  40. ↑ Schuyler, 465 F.2d at 611.
  41. ↑ Pub. Citizen, Inc. v. Dep’t of Educ., 292 F. Supp. 2d. 1, 8 (D.D.C. 2003).
  42. ↑ Nation Magazine v. U.S. Customs Serv., 71 F. 3d 885, 892 (D.C. Cir. 1995).
  43. ↑ H.R. REP. NO. 98-716 (1984), reprinted in 1984 U.S.C.C.A.N. 3741, at 3740.
  44. ↑ 50 U.S.C. § 431.
  45. ↑ Id. at § 432b.
  46. ↑ Id. at § 432.
  47. ↑ 10 U.S.C. § 457.
  48. ↑ 50 U.S.C. §432a.
  49. ↑ Id. at § 432d.
  50. ↑ Id. at § 402c(g).
  51. ↑ Id. at § 431.
  52. ↑ Id. at § 431(b).
  53. ↑ Id.
  54. ↑ H.R. REP. NO. 98-716 (1984), reprinted in 1984 U.S.C.C.A.N. 3741, at 3760.
  55. ↑ Id. at 3760-61.
  56. ↑ Aftergood v. Nat’l Reconnaissance Office, 441 F.Supp.2d 37, 46 n.12 (D.D.C. 2006).
  57. ↑ 50 U.S.C. § 431(c).
  58. ↑ Am. Civil Liberties Union v. Dep’t of Def., 351 F.Supp.2d 265, 277 (S.D.N.Y. 2005) (quoting Sullivan v. CIA, 992 F.2d 1249, 1255 (1st Cir. 1993)) (internal quotation marks omitted).
  59. ↑ Id. at 278.
  60. ↑ 50 U.S.C. § 431(d)(1).
  61. ↑ Id. at § 431(d)(3).
  62. ↑ 5 U.S.C. § 552(g).
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