800 F.3d 381
7th Cir.2015Background
- Plaintiff David Rubman (retired immigration attorney) submitted a FOIA request to CIS seeking “copies of all documents reflecting statistics… about H-1B visa applications” for fiscal years 2009–2012, including internal statistical reports and emails.
- CIS replied with a single newly generated statistical data table (first produced Aug. 14, 2012), then a revised table after Rubman pointed out classification errors.
- Rubman objected that the tables were inaccurate and insisted on preexisting internal documents (weekly/monthly reports, emails) showing how CIS calculated cap counts. CIS refused to search for or produce preexisting internal records, saying such documents would only ‘‘create additional confusion.’’
- CIS denied administrative appeal (treating the request as ‘‘granted in full’’); Rubman sued, challenging the adequacy of CIS’s search under FOIA. The district court granted summary judgment for CIS.
- The appellate court reversed: it held CIS’s search was not adequate because CIS unilaterally narrowed Rubman’s request for preexisting ‘‘documents’’ to a newly generated summary table and failed to search for internal preexisting records after Rubman’s clarification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CIS’s search was adequate under FOIA | Rubman: requested “all documents” reflecting statistics (preexisting internal reports and emails); CIS should have searched for preexisting records | CIS: reasonably interpreted the request as seeking summary statistics and properly provided a generated data table; later clarification was a modification CIS need not honor | Court: Search was inadequate — CIS unreasonably limited the search to a created table instead of searching for preexisting internal documents |
| Whether CIS had to consult/clarify when the request was ambiguous | Rubman: CIS should have consulted because FOIA requires liberal construction and DHS regs require clarification if request doesn’t reasonably describe records | CIS: request was unambiguous (statistics) and producing a summary table was reasonable; no further consultation required | Court: CIS should have treated "documents" as presumptively preexisting records and, if it considered the request unclear, must consult under DHS rules; failing to do so rendered the search unreasonable |
| Whether Rubman’s October 22 clarification obligated CIS to perform a new search | Rubman: his Oct. 22 letter reaffirmed original request for preexisting documents and required CIS to search | CIS: the Oct. 22 letter modified the request (or was too late); agency need not perform repeated new searches based on clarifications | Court: Oct. 22 letter was not a new, out‑of‑scope request — it reiterated the original demand; CIS should have searched for internal records |
| Whether CIS’s production of a generated table satisfied FOIA/form-of-record obligations | Rubman: FOIA distinguishes records from information; requester sought documents, not a newly created statistic; agencies cannot substitute created summaries for existing records | CIS: providing the table reasonably addressed the request for statistics and was helpful and efficient | Court: FOIA requires disclosure of preexisting records in the form requested when readily reproducible; CIS improperly substituted a generated summary for preexisting internal documents |
Key Cases Cited
- NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (FOIA’s purpose favors disclosure)
- Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (agency must make good‑faith, reasonably designed search; affidavit requirement)
- Sears, Roebuck & Co. v. NLRB, 421 U.S. 132 (scope of agency records and when agency-created materials are distinct)
- DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (FOIA’s aim to show what government is up to)
- LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345 (requests phrased as “all documents” should be liberally construed)
- Patterson v. IRS, 56 F.3d 832 (standard for showing that documents would have turned up if agency had looked)