877 F. Supp. 2d 87
S.D.N.Y.2012Background
- Plaintiffs sue ICE, DHS, EOIR, FBI, and OLC under FOIA seeking records about Secure Communities, including opt-out discussions and related processing.
- The FOIA requests were broad; agencies produced a Rapid Production List and conducted extensive searches across multiple offices and custodians.
- The court granted the motions of OLC and EOIR, and granted in part and denied in part the motions of ICE, the FBI, and DHS, as well as plaintiffs.
- The court applied the legal standard requiring a search reasonably calculated to uncover all responsive records, with declarations detailing search scope and custodians, and presumption of good faith.
- The opinion found certain custodians and offices were inadequately searched or not sufficiently described, and ordered targeted, new searches with documented terms and methodologies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the FOIA search adequate overall? | Plaintiffs argue searches were incomplete and inadequately described. | Defendants contend searches were adequate and suitably detailed. | OLC and EOIR granted; others partially granted/denied. |
| Did agencies search all custodians reasonably likely to possess responsive records? | Several custodians were excluded or insufficiently searched. | Custodians identified as unlikely to have responsive records were not searched. | Court found multiple omissions; ordered new targeted searches for named custodians. |
| Are the search terms and methods adequately described and appropriate for electronic searching? | Search terms were insufficiently detailed and inadequately tested. | Declarations show some use of terms; detailed testing not always required. | Court held many searches inadequately described; mandated new, fully documented searches with agreed terms and possible testing or predictive coding. |
Key Cases Cited
- Morley v. Central Intelligence Agency, 508 F.3d 1108 (D.C. Cir. 2007) (agency burden to show adequate search; presumption of good faith)
- Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003) (adequacy of FOIA search; scope and method considerations)
- Families for Freedom v. United States Customs and Border Protection, 837 F. Supp. 2d 331 (S.D.N.Y. 2011) (FOIA search adequacy and related principles)