Inter-Cooperative Exchange v. Usdoc, 36 F.4th 905

Inter-Cooperative Exchange (ICE), a cooperative of Alaska crab harvesters, FOIA-requested NOAA records about Glenn (Glen) Merrill concerning the crab price arbitration system and the 2014 Alaska minimum wage increase.
NOAA produced 146 records and, per its search log, searched Merrill’s email, network, and desktop using three search terms: "binding arbitration," "arbitration," and "crab." The log did not list a cellphone search.
The government later submitted declarations saying Merrill (who used a personal cellphone) had personally searched his phone, texts, social media, and voicemails with those terms and found nothing responsive; the district court credited the government and granted summary judgment.
ICE appealed, arguing the search terms were not reasonably calculated to find all responsive records (especially on the minimum-wage topic) and that the cellphone search was inadequate.
The Ninth Circuit majority held the chosen search terms were too narrow (failing to address the minimum-wage subrequest and common variants/shorthand) and reversed; it concluded, however, that the method used to search Merrill’s cellphone was reasonable.
Case remanded for further proceedings consistent with the Ninth Circuit opinion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Adequacy of search terms to satisfy FOIA (covering arbitration and minimum-wage records)	ICE: "crab" and "arbitration" (and "binding arbitration") were too narrow; failed to target minimum-wage materials or common variants (e.g., "arbitrator," "arb," "cost").	NOAA: chosen terms reflect reasonable agency judgment and overlap between arbitration and minimum-wage subjects made additional terms unnecessary.	Majority: search terms were not reasonably calculated to uncover all responsive records; inadequate — reversed and remanded.
Adequacy of Merrill’s personal cellphone search method	ICE: allowing Merrill to search his own phone by using keywords was insufficient and susceptible to omission.	NOAA: Merrill personally searched texts, social media, and voicemails in good faith and found no responsive records; the method was reasonable.	Court: cellphone search method was reasonably calculated and adequate; that portion upheld.

Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759 (9th Cir. 2015) (FOIA search must be reasonably calculated to uncover responsive records; government bears burden to show adequacy)
Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016) (standard of review for FOIA summary judgment)
Citizens Comm’n on Human Rts. v. Food & Drug Admin., 45 F.3d 1325 (9th Cir. 1995) (measure adequacy by reasonableness, construing facts favorably to requester)
DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) (search adequate where agency used a variety of relevant keywords and common misspellings)
Rein v. U.S. Patent & Trademark Off., 553 F.3d 353 (4th Cir. 2009) (comprehensive keyword lists and agency guidance to employees support finding of adequate search)
Valencia‑Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (agency may identify employees with a close nexus to requested records)
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990) (no requirement to search every record system; only systems likely to contain responsive records need be searched)
Founding Church of Scientology of Wash., D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824 (D.C. Cir. 1979) (competence of a records search depends on case circumstances)
Hunton & Williams LLP v. U.S. Envtl. Prot. Agency, 248 F. Supp. 3d 220 (D.D.C. 2017) (no FOIA entitlement to search employees’ texts absent evidence texts were used for agency business)