335 F. Supp. 3d 7
D.C. Cir.2018Background
- GAP filed FOIA requests seeking (1) correspondence about "ideological tests at the border," (2) correspondence concerning "searches of cellphones," and (3) whistleblower records; it moved for summary judgment alleging DHS's searches were inadequate.
- DHS conducted searches but used only the exact words from GAP's requests (e.g., searched for the phrase "ideological tests" and the single word "cellphone").
- GAP argued the searches omitted obvious synonyms, variant spellings, expert input, and non-official communication channels (e.g., non-government accounts/other electronic formats).
- The Court focused on the adequacy of the search terms used for the first two requests and found DHS’s approach insufficient as a matter of law.
- The Court ordered the parties to meet-and-confer to agree on a reasonably limited set of expanded search terms; if they cannot agree, they must submit competing term lists to the Court.
- The Court deferred resolution of GAP’s claim that DHS limited searches to official email accounts until the parties’ discussions about search parameters (including whistleblower records).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search for "ideological tests" correspondence | DHS used too-narrow exact-phrase search; omitted synonyms/proxies (e.g., "politics," "values," "evaluation," "vetting") and separated-word variants | DHS relied on the FOIA request language and argued Summers does not require expanding terms beyond the request's phrasing | Court held DHS search unreasonable; must include logical variations and not limit to exact phrase |
| Adequacy of search for "cellphone" correspondence | Searching only for "cellphone" omitted common variants ("cell phone","phone") and thus likely missed responsive records | DHS warned common-word variants would return overwhelming results and defended its search scope | Court held single-term search inadequate; ordered inclusion of common variants and use of refined search techniques (Boolean/filters) to manage volume |
| Use of experts and search methodologies (e.g., synonyms, Boolean) | Agency should consult subject-matter experts and use broader, more sophisticated search methods to capture likely terminology | DHS suggested burden/volume concerns justify narrower searches | Court emphasized agency must conduct a "good faith, reasonable" search and may use advanced search methods to limit over-inclusiveness but cannot forego reasonable term expansion |
| Scope of custodial sources (official email vs. other communications) | DHS unreasonably limited searches to official government email accounts, potentially missing responsive records | DHS cited manageability and scope concerns for excluding non-official channels | Court deferred decision on this point pending meet-and-confer about new search parameters; issue remains for later resolution |
Key Cases Cited
- Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504 (D.C. Cir. 2011) (agency must show search was reasonably calculated to uncover relevant documents)
- Summers v. Department of Justice, 934 F. Supp. 458 (D.D.C. 1996) (agency must use obvious alternative search terms, not just verbatim request language)
- Bagwell v. Department of Justice, 311 F. Supp. 3d 223 (D.D.C. 2018) (search must include common name variants likely used in correspondence)
- Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995) (FOIA requests should be construed liberally)
- SafeCard Servs., Inc. v. Securities & Exchange Comm'n, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits receive presumption of good faith but must be non-conclusory)
- Francis v. U.S. Dep't of Justice, 267 F. Supp. 3d 9 (D.D.C. 2017) (adequacy of search judged by methods used, not results)