National Day Laborer Organizing Network et al v. United States Immigration and Customs Enforcement Agency et al

Filing 197

OPINION AND ORDER. This litigation, filed more than two years ago, has already engendered four judicial opinions- now five. I once again urge the Government to heed the now famous words of Justice Louis Brandeis with which I began this opinion. For t he reasons stated above, the motions of OLC and EOIR are granted. The motions of ICE, the FBI, DHS, and plaintiffs are granted in part and denied in part. The Clerk of the Court is directed to close these motions [Docket Nos. 177 and 186]. The partie s are instructed to meet and confer and then to submit letters to the Court proposing a time line for the effectuation of this decision. If the parties prefer, they may call Chambers to schedule a conference. (Signed by Judge Shira A. Scheindlin on 7/13/2012) (rjm)

USDCSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------){
NATIONAL DAY LABORER
ORGANIZING NETWORK, CENTER FOR
CONSTITUTIONAL RIGHTS, and
IMMIGRATION JUSTICE CLINIC OF
THE BENJAMIN N. CARDOZO SCHOOL
OF LAW,
Plaintiffs,

DOCUMEN1'

. ELECrRO~lCAll.YFJLBD
DOC It: _ _....,..,..-~_
DATEFILBD: 3.. 1 f~~
~

OPINION AND ORDER

- against-

10 Civ. 3488 (SAS)

UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT AGENCY,
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, E){ECUTIVE
OFFICE FOR IMMIGRATION REVIEW,
FEDERAL BUREAU OF
INVESTIGATION, and OFFICE OF
LEGAL COUNSEL,
Defendants.

-------------------------------------------------------){
SHIRA A. SCHEINDLIN, U.S.D.J.:
"Sunlight is said to be the best ofdisinfectants; electric light the most
efficient policeman. HI

I.

INTRODUCTION
The parties in this litigation have starkly different viewpoints about

Buckley v. Valeo, 424 U.S. 1,67 (1976) (quoting Louis Brandeis,
Other People's Money and How the Bankers Use It 62 (1933».
1

the wisdom and legitimacy of Secure Communities, which, as an aspect of national
immigration policy, is a particularly sensitive and important topic. The three
plaintiffs – the National Day Laborer Organizing Network, the Center for
Constitutional Rights, and the Immigration Justice Clinic of the Benjamin N.
Cardozo School of Law – did not file this lawsuit seeking information about the
program solely out of curiosity or a commitment to government transparency.
They did it as part of a major campaign calling to “End Secure Communities.
Don’t Mend It. Pledge to Break ICE’s Hold on Your Community.”2 Nonetheless,
under the Freedom of Information Act (“FOIA”), plaintiffs are entitled to the
disclosure of as much information as the law permits.
The Act is intended to facilitate transparency about the government’s
policies even – or perhaps especially – when members of the public are disturbed
by those policies and are fighting to end them. The Act calls on government
employees to diligently and honestly respond to requests even from people with
whom they disagree. And it calls upon the federal courts and the attorneys who are
officers of those courts to cooperate so that the public will have access to
information in an efficient, effective, and timely manner. Defendants note that

2

See www.ndlon.org/en/secure-communities. The documents
produced in response to this FOIA request have been compiled at a website entitled
Uncover the Truth: ICE and Police Collaborations. See http://uncoverthetruth.org.
2

they have spent thousands of hours and hundreds of thousands of dollars
responding to plaintiffs’ request.3 Transparency is indeed expensive, but it pales in
comparison to the cost to a democracy of operating behind a veil of secrecy. This
litigation has influenced much of the public debate over Secure Communities. The
Act has therefore served its purpose of engendering a more informed public and a
more accountable government.
Plaintiffs bring this action for the purpose of obtaining records,
pursuant to FOIA,4 from the United States Immigration and Customs Enforcement
Agency (“ICE”), United States Department of Homeland Security (“DHS”), the
Executive Office for Immigration Review (“EOIR”), the Federal Bureau of
Investigation (“FBI”), and the Office of Legal Counsel (“OLC”). Specifically,
plaintiffs have sought information regarding Secure Communities, a federal
immigration enforcement program launched in 2008. It has long been the practice
for local law enforcement agencies to send the fingerprints of individuals arrested
and booked into custody to the FBI to be checked against the national criminal
history database.5 Under the Secure Communities program, those fingerprints are

3

See Def. Mem. at 10.

4

5 U.S.C. § 552 et seq.

5

See Secure Communities, ICE,
http://www.ice.gov/secure_communities/.
3

also now sent to DHS to be checked against immigration records.6 A portion of the
requested records related to the issue of whether and how state and local law
enforcement agencies may “opt-out” of participation in Secure Communities.
Plaintiffs’ FOIA request was twenty-one pages long. The parties
eventually negotiated a Rapid Production List (“RPL”) – a limited list of key
categories that would be produced by defendants on an expedited basis. In
December, 2010, after defendants failed to comply with their obligations under the
agreement, I entered an order directing them to produce records relating to the optout question by January 17, 2011 and the remainder of RPL documents by
February 25, 2011.7 The defendants’ searches involved hundreds of employees
and thousands of hours and resulted in the production of tens of thousands of
responsive records.8 The parties now cross-move for summary judgment on the
adequacy of those searches – the defendants arguing that the searches satisfied
their obligations under FOIA and the plaintiffs arguing that the searches were

6

See id.

7

The cut-off date for the search of opt-out records was October 15,
2010. That is to say, records created after that date did not need to be produced as
part of the January 17, 2011 production and are therefore not the subject of this
motion.
8

Memorandum of Law in Support of Defendants’ Renewed Motion for
Partial Summary Judgment on Adequacy of Search for Opt-Out and Rapid
Production List Records (“Def. Mem.”) at 1.
4

legally inadequate.
In support of their motions, each of the five defendant agencies has
submitted a declaration (or, in the case of the FBI and ICE, two declarations each)
written by one of its FOIA officers.9 The declarations range from six to thirty-four
pages. They describe which offices (and sometimes which custodians) conducted
searches for records. And, in different levels of detail, they describe how
custodians searched for records.
Plaintiffs make two broad critiques of the agencies’ searches.10 First,
they argue that the agencies failed to conduct any searches of the files of certain
custodians who were likely to possess responsive records. Second, plaintiffs argue
that defendants have not established that the searches that they did conduct were
9

See Declaration of Ryan Law (“Law Decl.”) and Supplemental
Declaration of Ryan Law (“Supp. Law Decl.”) (ICE); Seventh Declaration of
David Hardy (“Hardy Decl.”) and Declaration of Dennis Argall (“Argall Decl.”)
(FBI); Declaration of David Palmer (“Palmer Decl.”) (DHS); Declaration of
Crystal Rene Souza (“Souza Decl.”) (EOIR); and Declaration of Paul Colborn
(“Colborn Decl.”) (OLC).
10

See Memorandum of Law in Opposition to Defendants’ Motion for
Partial Summary Judgment and in Support of Plaintiffs’ Cross-Motion for Partial
Summary Judgment (“Pl. Mem.”) and Memorandum of Law in Further Support of
Plaintiffs’ Cross-Motion for Partial Summary Judgment on Adequacy of
Defendants’ Search for Opt-Out and Rapid Production List Records (“Pl. Rep.
Mem.”). To support their arguments, plaintiffs have submitted seventy-seven
documents that were produced by defendants during this litigation. They are
indexed and attached to the Declaration of Sunita Patel (“Patel Decl.”) and are
referred to here as Patel Doc. x.
5

adequate. This argument itself has two parts: First, that the agencies’ affidavits are
insufficiently detailed and therefore do not permit a finding of adequacy; and,
second, that even those searches that were described more fully were inadequate.11
I assess each of these arguments below.
The inquiry is intensely fact-specific, particularly because it involves
such a massive search. Generalizations about the quality of defendants’ searches
are difficult because some of the searches appear to have been extremely rigorous,
some woefully inadequate, and many simply documented with detail insufficient to
permit proper evaluation. For the reasons stated below, the motions of OLC and
EOIR are granted12 and the motions of ICE, the FBI, DHS, and plaintiffs are
granted in part and denied in part.
II.

LEGAL STANDARD
In order to win summary judgment under FOIA, an agency must

“show beyond material doubt that it has conducted a search reasonably calculated

11

Defendants initially filed this motion, with supporting declarations, on
January 12, 2012. See Docket No. 167. Plaintiffs objected to the declarations,
arguing that they contained an insufficient level of detail and that the parties’
briefing would therefore focus on the description of the searches rather than the
adequacy of the searches. I instructed defendants to re-file their brief, along with
more detailed declarations, which they did on March 2, 2012.
12

The EOIR’s motion for partial summary judgment was unopposed by

plaintiffs.
6

to uncover all relevant documents.”13 “An agency is not expected to take
extraordinary measures to find the requested records, but only to conduct a search
reasonably designed to identify and locate responsive documents.”14
FOIA cases are generally resolved on motions for summary
judgment,15 which, as in any other context, requires that the moving party “show
that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”16 “An issue of fact is genuine if ‘the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’ A fact is material if it ‘might affect the outcome of the suit under the
governing law.’”17 “In ruling on a motion for summary judgment, a court must
resolve all ambiguities and draw all factual inferences in favor of the nonmoving
party.”18

13

Morley v. Central Intel. Agency, 508 F.3d 1108, 1114 (D.C. Cir.

2007).
14

Id. (quotation and citation omitted).

15

See Bloomberg L.P. v. Board of Governors of the Fed. Reserve Sys.,
649 F. Supp. 2d 262, 271 (S.D.N.Y. 2009).
16

Fed. R. Civ. P. 56(c).

17

Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
18

McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006).
7

As the Second Circuit has explained,
[i]n order to prevail on a motion for summary judgment in a FOIA
case, the defending agency has the burden of showing that its
search was adequate . . . . Affidavits or declarations supplying
facts indicating that the agency has conducted a thorough search
. . . are sufficient to sustain the agency’s burden. . . [and] are
accorded a presumption of good faith.19
Summary judgment is inappropriate “where the agency’s response
raises serious doubts as to the completeness of the agency’s search, where the
agency’s response is patently incomplete, or where the agency’s response is for
some other reason unsatisfactory.”20 In addition, plaintiffs may defeat summary
judgment if they can show “some tangible evidence” that defendants have not
satisfied their burden.21 Where “an agency has not satisfied its burden, a showing
of bad faith is not necessary” in order to defeat a motion for summary judgment.22
In their affidavits, agencies must “‘identify the searched files and
describe at least generally the structure of the agency’s file system’ which renders

19

Carney v. United States Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.
1994) (quotations and citations omitted).
20

Exxon Corp. v. Federal Trade Comm’n, 466 F. Supp. 1088, 1094
(D.D.C. 1978).
21

Carney, 19 F.3d at 812.

22

Families for Freedom v. Customs and Border Protection, 837 F.
Supp. 2d 331, 336 (S.D.N.Y. 2011).
8

any further search unlikely to disclose additional relevant information.”23 They
must establish that they searched all custodians who were reasonably likely to
possess responsive documents.24 And they must “set[] forth the search terms and
the type of search performed.”25
“The adequacy of a FOIA search is generally determined not by the
fruits of the search, but by the appropriateness of the methods used to carry out the
search.”26 However, “[e]vidence that relevant records have not been released may
shed light on whether the agency’s search was indeed inadequate.”27
III.

DISCUSSION
A.

The Agencies’ Selection of Custodians to Search
I begin by assessing the agencies’ choices to exclude certain

custodians from their searches.

23

Katzman v. Central Intel. Agency, 903 F. Supp. 434, 438 (E.D.N.Y.
1995) (quoting Church of Scientology v. Internal Revenue Serv., 792 F.2d 146, 151
(D.C. Cir. 1986)).
24

See Banks v. United States Dep’t of Justice, 700 F. Supp. 2d 9, 15
(D.D.C. 2010).
25

Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C. Cir.

2003).
26

Id. at 315.

27

Weisberg v. United States Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.

Cir. 1983).
9

1.

ICE

Deputy Director – ICE had not conducted a search of the Deputy
Director’s records as of the date that it filed this motion. After plaintiffs
highlighted this failure, ICE conducted what appears to have been a rigorous
search – using search terms recommended by plaintiffs – and produced fifty-six
responsive records on May 11, 2012. Although the failure to search the Deputy
Director’s records for a year and a half was unreasonable and therefore inadequate
as a matter of law, defendants appear to have finally conducted an adequate search
of his records.28
Homeland Security Investigations (HSI): With one exception not at
issue here, this office did not search for records.29 Other than the records of
individual aliens and two sample worksheets that were produced, HSI “determined

28

See Law Supp. Decl. This declaration was submitted after the close of
briefing. In their 4/30/12 Letter to the Court (which was submitted before the
declaration but after the parties had communicated about the supplemental search),
plaintiffs’ criticism centered on the failure to search records beyond email, the
failure to use the search term “interoperability,” and the failure to more fully
describe the Deputy Director’s file storage system. The first of these concerns was
addressed by Law’s declaration, which states that the agency searched for
“additional electronic or hard-copy files,” id. ¶ 19, and the second two concerns
are, given the totality of the agency’s search, relatively minor.
29

See Law Decl. ¶ 24 n. 3. The parties agreed to a special process for
addressing records in the possession of HSI’s Law Enforcement Service Center
that relate to individual aliens.
10

the office would not be likely to have any other responsive records.”30 However,
according to documents produced by other ICE offices, at least one HSI employee
was involved in opt-out discussions in September, 2010.31 HSI played a role in
enforcing Memoranda of Understanding between local law enforcement agencies
and ICE32 and, in 2011, was tasked, along with other ICE programs, with
“provid[ing] an update on Secure Communities and its continued expansion.”33
ICE has not suggested that HSI became involved in Secure Communities only after
the opt-out deadline or explained the existence of these documents (including the
2010 emails) in light of HSI’s denial that it had any responsive records.34 It has
therefore failed to carry its burden of establishing that it was reasonable not to
search HSI for records.
Contractors: As plaintiffs point out, multiple private contractors
“played a direct role in Secure Communities [and in] discussions and decision30

Id.

31

9/10/10 Email, Patel Doc. 24.

32

See Undated Memorandum of Understanding Between DHS, ICE, and
the Colorado Department of Public Safety, Patel Doc. 38, at 7.
33

5/3/11 Email, Patel Doc. 60, at 1.

34

See Memorandum of Law in Opposition to Plaintiffs’ Cross-Motion
for Partial Summary Judgment and in Further Support of Defendants’ Motion for
Partial Summary Judgment on Adequacy of Search for Opt-Out and Rapid
Production List Records (“Def. Rep. Mem.”) at 8.
11

making on the opt out issue.”35 The ICE declaration does not make clear the extent
to which the records of outside contractors were searched and ICE attorneys argue
that “plaintiffs incorrectly assume that discussions of staff [described in ICE’s Law
Declaration] included only agency-employed staff and not outside contractors.”36
According to a letter from one contractor who was publicly involved in the opt-out
controversy to the ICE assistant director, the FOIA office did instruct him to search
his records and he did provide a “comprehensive response.”37 The extent to which
outside contractors were included in ICE’s search is unclear from the Law
Declaration, which makes it impossible for me to determine whether an adequate
search of those contractors’ records was conducted. ICE must therefore inform
plaintiffs about the extent to which contractors were included in the searches, and,
if plaintiffs are dissatisfied, submit to the Court a supplemental declaration.
Office of State, Local, and Tribal Coordination (OSLTC):

35

Pl. Mem. at 22. See 4/15/11 Email, Patel Doc. 8, at 3 (conveying
ICE’s comment to the New York Times that “ICE retained a contractor to assist in
the implementation of Secure Communities”) and 4/12/11 Letter from Dan
Cadman, ICE contractor, to Marc Rapp, Acting Assistant Director for Secure
Communities (“Cadman Letter”), available at
http://big.assets.huffingtonpost.com/LofgrenFollowUp.pdf (describing author’s
role in developing and implementing opt-out policy).
36

Def. Rep. Mem. at 8.

37

Cadman Letter at 2 n.2.
12

According to ICE, only two members of its OSLTC searched their records for
responsive documents.38 Plaintiffs argue that other senior OSLTC officials “were
directly involved in discussions and outreach with state and local officials relating
to Secure Communities and the opt-out issue.”39 For example, on January 21, 2011
(which was, admittedly, after the opt-out cut-off), the OSLTC Chief of Staff
circulated to other ICE officials a summary of OSLTC’s outreach efforts;
according to the document, the OSLTC met the next week to discuss how it would
“leverage support for Secure Communities at the state government level.”40 Yet
the Chief of Staff did not conduct a search for responsive records. ICE argues that
plaintiffs “fail to explain why [the] two custodians [who did search their records]
would not have been the most likely OSLTC custodians to have responsive records

38

See Law Decl. ¶ 49 (stating that only the Deputy Assistant Director
and a Senior Public Engagement Officer conducted searches).
39

Pl. Mem. at 22. See 9/27/10 Email from Richard Rocha, Patel Doc.
50 (proposing a conversation to discuss how “OSLTC can help make [ICE’s]
position on participation [in Secure Communities] clear”); 9/9/10
Recommendations for Outreach on Required Activation of Secure Communities,
Patel Doc. 53 (including OSLTC in the list of offices responsible for clarifying
opt-out questions); 1/26/11 Email Chain, Ex. B to Declaration of Sunita Patel in
support of Pl. Rep. Mem (“Patel Rep. Decl.”) (discussing a meeting in Boston
regarding opt-out set up by OSLTC).
40

1/21/11 Email, Ex. A to Patel Rep. Decl. In addition, Patel Doc. 37
contains the September 21, 2010 correspondence of OSLTC’s Chief Public
Engagement Officer regarding opt-out. According to ICE’s declaration, this
officer did not search her/his records.
13

in light of Law’s description.”41 But the government is not required to search only
the files of the two custodians who are “most likely” to have responsive records; it
must also search other locations that are reasonably likely to contain records.42
Because the OSLTC Chief of Staff was circulating memoranda regarding the
office’s outreach efforts relating to opt-out, his or her files likely contain
responsive records and should have been searched.43
Privacy Office: The ICE Privacy Office informed the ICE FOIA
office that it “would not likely have any [responsive] records” and it therefore did
not conduct a search.44 Plaintiffs argue that because the office’s Privacy Officer
attended at least one high level Secure Communities meeting, she/he should have
conducted a search for records.45 The officer’s presence at one meeting, however,
is not sufficiently probative of the existence of records in the office’s control so as
41

Def. Reply Mem. at 8-9.

42

See Oglesby v. United States Dep’t of Army, 920 F.2d 57, 68 (D.C.
Cir. 1990) (although one location may be the “most likely” to turn up records, “the
agency cannot limit its search to only one record system if there are others that are
likely to turn up the information requested”).
43

Plaintiffs have not presented evidence showing that the Assistant
Director for OSLTC was involved in discussions related to opt-out. (The meetings
including the Assistant Director that were cited in the 1/21/11 Email did not relate
to opt-out).
44

Law Decl. ¶ 55.

45

Pl. Mem. at 23.
14

to render unreasonable the government’s determination that the Privacy Office was
not likely to have responsive records.
2.

FBI

The Director’s Office: The government’s decision to make the FBI’s
fingerprint database (called “IAFIS”) compatible with DHS’s immigration
database (called “IDENT”) is a central feature of Secure Communities.46 Plaintiffs
have produced ample documentary evidence showing that the FBI Director Robert
Mueller was personally involved in the decision to make IAFIS and IDENT
“interoperable” and in the rollout of Secure Communities and that he was familiar
with the opt-out question. Plaintiffs’ evidence includes the following: Director
Mueller provided testimony to the Senate in late 2006 regarding interoperability
and the first pilot projects with local law enforcement agencies;47 a March, 2010
correspondence between DHS and the FBI notes that Mueller would have to

46

Under Secure Communities, fingerprints sent by state and local law
enforcement to the FBI’s IAFIS database are automatically forwarded to DHS’s
IDENT database for an immigration check. The central questions regarding “optout” was whether state and local law enforcement would be permitted to use the
FBI database without having the information that they input forwarded to DHS
and, if the answer to that question was no, whether the local agencies could chose
not to receive the resulting immigration information back from DHS.
47

12/6/06 Testimony to the Senate Judiciary Committee, Patel Doc. 64.
In 2008, FBI Deputy Director John Pistole described the Bureau’s involvement in
Secure Communities as an example of federal-local collaboration that helps ICE
achieve its goals. See 3/28/08 ICE News Release, Patel Doc. 62.
15

personally approve changes to Washington, D.C.’s participation in Secure
Communities;48 on July 21, 2010, Mueller met with DHS Secretary Napolitano “to
discuss information sharing”;49 in late July, 2010, high ranking officials in the
Director’s office received correspondence regarding congressional inquiries into
the opt-out question and in September they received copies of Secretary
Napolitano’s response to the congressional inquiry;50 and at an August 30, 2010
FBI meeting that focused on interoperability and the opt-out question, an official
stated that “the Director is aware of Secure Communities questions and is prepared
to answer them.”51
However, the FBI did not search the Director’s files for Opt-Out or
RPL documents from the pre-October 15, 2010 period.52 Defendants justify this
48

3/26/10 Email from Secure Communities Branch Chief for
Deployment to Redacted Recipients, Patel Doc. 27.
49

7/8/10 DHS Weekly Report, Patel Doc. 39, at 1528. The document
said that Napolitano and Mueller were scheduled to meet on July 21. Defendants
do not suggest the meeting never occurred. See Def. Rep. Mem. at 13.
50

See 7/30/10 Email Chain, Patel Doc. 28 (congressional inquiry
circulated by the Director’s Office to the FBI Chief of Staff, Deputy Director,
Associate Deputy Director, and Office of General Counsel); 9/16/10 Email Chain,
Patel Doc. 29 (Secretary Napolitano’s response to congressional inquiry).
51

Secure Communities Internal Meeting Minutes, Patel Doc. 5 at 1893.

52

Within the Director’s Office, only the Office of Public Affairs and the
Office of Congressional Affairs conducted Opt-Out and RPL searches. See Hardy
Decl. ¶¶ 16, 17, 26.
16

decision on the basis that “the FBI had no reason to believe that anyone in the
Director’s office – including the Director, any Deputy Director, Associate Deputy
Director, Chief of Staff or Senior Counsel – contained [sic] responsive RPL or
Opt-Out records.”53 Defendants argue that “[i]t was only later, when the opt-out
issue became more prominent, that the Director’s Office became involved in that
issue” and that the FBI therefore produced records from the Director’s Office
relating to opt-out from after the October 15, 2010 deadline for the opt-out and
RPL production.54
Defendants do not and cannot dispute that by November 18, 2010, the
Director’s Office was involved in the opt-out issue.55 But they do not say when the
Director’s Office became involved in the issue or provide any justification for the
fact that the earliest irrefutable evidence of the Office’s involvement corresponds
closely to the Court’s arbitrary cut-off date for the search of opt-out records.56 The
FBI searched for records from the Director’s Office from after October 15, 2010

53

Argall Decl. ¶ 6.

54

Def. Rep. Mem. at 12. These records, like many others, were
produced on a less rapid basis during 2011 and 2012.
55

See 11/18/10 Email Chain, Patel Doc. 17 (FBI staffers circulating
drafts of a memo to the Director on opt-out). See also Patel Docs 19, 30, 32
(documents showing involvement by Director in opt-out after October 15, 2010).
56

See Def. Opp. Mem. at 13-14; Pl. Rep. Mem. at 6-7.
17

and it found them; it now tries to justify not searching for pre-October 15 records
based on the argument that the Office was not involved in the issue at that time.
The FBI’s argument – unsupported by any evidence except the word of a FOIA
officer from outside the Director’s Office and refuted by the documentary evidence
marshaled by plaintiffs – is insufficient to carry its burden of showing that it
conducted a search reasonably calculated to uncover all relevant records.
Office of General Counsel: The FBI FOIA office sent its search
memorandum to the National Security Law Branch in the Office of General
Counsel (OGC). It did not receive confirmation from OGC that a search had been
conducted but nevertheless “viewed a non-response as a ‘no records’ response.”57
This assumption was plainly improper. Agencies can satisfy their FOIA obligation
by submitting “[a]ffidavits or declarations supplying facts indicating that the
agency has conducted a thorough search.”58 It is absurd to suggest that they may
satisfy their obligation by submitting a sworn declaration from a FOIA officer
asserting that he has requested that an office perform a search, has received no
response from the office, and therefore assumes that a proper search was

57

Hardy Decl. ¶ 17.

58

Carney, 19 F.3d at 812.
18

performed and no documents were found.59
The parties disagree over the scope of the search that OGC should
have conducted.60 Defendants argue that, as with the Director’s Office, “the FBI
had no reasonable basis to believe that custodians within the Office of General
Counsel . . . would have had responsive records during the time period relevant to
the opt-out and RPL searches.”61 However, plaintiffs point out that as early as
2009, the Privacy and Civil Liberties Unit in the OGC was involved in assessing
the privacy implications of interoperability (which is responsive to RPL Item VII)62
and that, after October 15, 2010 and in part because of this lawsuit, it was involved
in the opt-out question.63
Because the National Security Law Branch of OGC never responded
to the initial instructions from the FOIA office to conduct a search and because

59

In a previous declaration, Hardy swore that OGC “reported having no
documents responsive to plaintiffs’ request.” 11/12/10 Declaration of David M.
Hardy in Support of Defendants’ Opposition to Plaintiffs’ Motion for Preliminary
Injunction [Docket No. 15 Ex. B1]. The truth, according to Hardy’s most recent
declaration, is that OGC never reported back at all.
60

Following the parties’ lead, I exclude from this discussion the OGC
representative from the Access Integrity Unit, who did conduct a search.
61

Def. Rep. Mem. at 13.

62

See Policy Initiation and Coordination Memo, Patel Doc. 10.

63

See, e.g., 12/1/10 Email, Patel Doc. 18.
19

OGC was involved in the opt-out question after October 15 (and at least discussed
the privacy concerns regarding interoperability before October 15), the FBI has not
met its burden of showing that it conducted a reasonable search. However,
plaintiffs have not yet convinced the Court that OGC should have conducted an
opt-out search: it is plausible that, as defendants argue, OGC only became involved
in the opt-out question after plaintiffs sought a preliminary injunction in this
lawsuit. Therefore, OGC has the option of either conducting and fully
documenting a new search or submitting a declaration from a supervising attorney
stating that, based on her personal knowledge, it is not reasonable to believe that
the office has documents responsive to the Opt-Out requests and that no search is
therefore required under FOIA. The Privacy and Civil Liberties Unit is required,
however, to conduct a search for documents responsive to RPL VII.
Science and Technology Branch and Office of Law Enforcement
Coordination: Plaintiffs argue that the FBI should have searched the records of
the Office of Law Enforcement Coordination (“OLEC”) and of the Executive
Assistant Director (EAD) for the Science and Technology Branch (“STB”).64
Given the work of these two offices (and particularly given the EAD’s statement in
May, 2011 that he had been tracking the issue of opt-out “for a while”) plaintiffs

64

See Pl. Mem. at 14-15 and Pl. Rep. Mem. at 7.
20

reasonably assume that the two offices possessed responsive documents.65
However, there is no documentary evidence – other than a mass email regarding a
congressional inquiry into the opt-out question that OLEC and the EAD received
(along with numerous other offices) on July 30, 2010 – that either office was
involved in these discussions prior to October 15, 2010. Because the agencies are
more familiar with their work than the plaintiffs or the Court, they are entitled to
some degree of deference regarding their determination of search locations.66 In
this case, because the personnel who report to the EAD searched their files and did
not have responsive records, defendants are correct that “it was reasonable to
conclude that the EAD would not have had any [responsive] records.”67 Plaintiffs
offer no evidence to refute the FBI’s presumably reasonable decision not to search
OLEC’s records.
Interoperability Initiatives Unit (“IIU”): “The vast majority of the
potentially responsive records” collected by the FBI’s FOIA office came from the

65

See Patel Docs. 63, 65 (describing the mission of the OLEC) and Patel
Doc. 20 (5/11/11 email from Executive Assistant Director saying that he has “a
pretty good feel for [the opt-out issue] and ha[s] been tracking it for a while”).
66

See Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 776
(D.C. Cir. 2002) (noting that compliance with FOIA requires “both systemic and
case-specific exercises of discretion and administrative judgment and expertise”).
67

Argall Decl. ¶ 7.
21

IIU – a sub-component of the Criminal Justice Information Services Division
(“CJIS”) – which is responsible for the FBI’s collaboration with DHS regarding
Secure Communities.68 Although IIU employees conducted a manual review of the
unit’s shared drives for responsive documents and each conducted a search of their
emails, no search was done of the files of seven former IIU employees who had
worked on Secure Communities.69 Defendants argue that “given the unit’s
practice of saving records on the IIU shared drives, the manual search of shared
drives would have likely retrieved most of the former IIU employee’s records.”70
FOIA, however, requires that agencies conduct a search “reasonably calculated to
uncover all relevant documents,” not “most” relevant documents.71 Furthermore,
although such a search of the shared drive might have recovered most of the former
employees’ word processing documents, it would not have recovered their emails
and the FBI did not search for those emails. Given that the IIU only asked twentytwo active employees to search their files, the failure to search the files of seven
former employees was not de minimis and made the unit’s search inadequate.

68

Hardy Decl. ¶¶ 17-18.

69

Id. ¶ 20.

70

Id.

71

Morley, 508 F.3d at 1114.
22

3.

DHS

Secretary Napolitano: According to the declaration of its FOIA
officer, DHS searched “any documents sent to or from the Secretary.”72 Secretary
Napolitano does not have an email account, but all documents sent to and from her
office, including to and from the Secretary herself, are maintained “in electronic
and paper format.”73 Plaintiffs argue that this search was insufficient, because
“‘documents sent to or from the Secretary’ are likely not to encompass all the
documents the Secretary possessed or created.”74 Plaintiffs are apparently
speculating that perhaps the Secretary has herself created responsive documents
that she has not shared with anybody else. Given her role as the head of an agency
with a quarter million employees, I find such a prospect extremely unlikely. The
search of all documents sent to or from the Secretary examined a universe of
documents reasonably calculated to uncover all responsive documents.
Office of General Counsel: DHS did not conduct a search of the
files or communications of the General Counsel (GC), Principal Deputy GC, or of

72

Palmer Decl. ¶ 30.

73

Id.

74

Pl. Rep. Mem. at 8.
23

some of the Deputy GCs.75 Emails show, however, that Principal Deputy GC
David Martin was involved in the opt-out deliberations no later than September,
2010 and was circulating legal analyses of the question within DHS.76 As I have
previously recounted at length, Martin reviewed and endorsed ICE’s (and
subsequently DHS’s) analysis of the opt-out question.77 The failure to search his
records was improper. In his September 3 email (which he apparently sent “To”
one person and cc’d numerous others), Martin summarized his opinion on the basic
opt-out issue and said that “you (or maybe [redacted]) are probably the logical
person to attend [a high-level meeting regarding opt-out] with me, but let me know
your advice on that. Also, to anyone else copied on this email, please let me know
if there are others within hq OGC with relevant expertise.”78 Martin believed that
the email’s recipient and the person whose name was redacted were familiar with
the opt-out issue; at the very least, DHS had the responsibility to follow up on that
obvious lead and search the records of those two individuals. And depending on

75

See Palmer Decl. ¶ 24.

76

See 9/6/10 Email Thread, Patel Doc. 23.

77

See National Day Laborer Org. Network v. United States Immigration
and Customs Enforcement Agency (“NDLON”), 827 F. Supp. 2d 242, 258-59
(S.D.N.Y. 2011).
78

9/6/10 Email Thread, Patel Doc. 23.
24

what correspondence or other records DHS found during the searches of Martin
and those two, it may also have had the duty to search the records of other people
who were cc’d on Martin’s email.79
It is unclear to the Court whether General Counsel Ivan Fong was
involved in any discussions related to opt-out or the RPL prior to the cut-off date,
or whether he only became involved in the discussions later.80 DHS should ask
him. If he says that he was involved or if the records from Martin, Anderson, and
the two employees whose names were redacted reveal that Fong was involved, then
DHS’s failure to search his records was unreasonable and it must conduct such a
search.
Homeland Security Advisory Council (HSAC): No search was

79

Agencies have an obligation to “follow through on obvious leads to
discover requested documents” Valencia-Lucena v. United States Coast Guard,
180 F.3d 321, 325 (D.C. Cir. 1999) and “the court evaluates the reasonableness of
an agency’s search based on what the agency knew at its conclusion rather than
what the agency speculated at its inception” Campbell v. United States Dep’t of
Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). According to emails on 4/27/11, the
Office of General Counsel had submitted comments regarding the October 2
Memorandum in October, 2010. See Patel Doc. 45. Because of redactions, it is
unclear to the Court whether the files of the woman referenced in the first
paragraph of the 4:26 p.m. email were searched, but they should have been. It also
appears likely that Deputy GC Audrey Anderson was involved in discussions about
the October 2 Memorandum prior to the October 15, 2010 cut-off date. Thus, a
reasonable search would also have examined her records.
80

See Patel Docs. 45-46.
25

conducted of HSAC, which provides advice and recommendations to the Secretary.
DHS has not explained why no search was conducted; it has not even declared that
it made a determination that HSAC was unlikely to possess responsive records.81
Defendants have the burden of establishing that they conducted a reasonable
search. In the absence of any sworn submission from defendants regarding
whether or not HSAC maintained responsive records, and given that HSAC did
discuss Secure Communities as early as 2009 82 and its mission to advise the
Secretary, defendants have not met their burden.
U.S. Visitor and Immigrant Status Indicator Technology (VISIT):
US-VISIT searched the files of six of its employees for responsive records.
Plaintiffs argue that US-VISIT should have searched the files of its Chief
Information Officer (CIO) and its Deputy Director as well. Defendants say that the
CIO “focuses on macro-level program issues, such as the overall architectures of
the IDENT and ADIS databases, and not project-level matters or smaller efforts,
such as Secure Communities.”83 Plaintiffs argue that “[t]his is precisely the type of

81

See Palmer Decl. ¶¶ 6, 17 (listing the offices that DHS determined
were likely to maintain responsive records but not asserting that the list was
exhaustive and not asserting that DHS made any determination regarding HSAC).
82

See 9/30/09 HSAC Meeting Minutes, Patel Doc. 69.

83

Palmer Decl. ¶ 23.
26

information that should have been located, i.e. records related to the technical
capacity of DHS (i.e. the architecture of its databases) to limit information sharing
with the FBI.”84 However, plaintiffs defined their request for opt-out records as
those “relating to the ability of states or localities to decline or limit participation in
Secure Communities, including . . . [those] referencing the technological capacity
of ICE and the FBI to honor requests to opt-out, opt-in or limit participation in
Secure Communities.”85 This was a limited request made in order to expedite the
documents most important to plaintiffs. It was crafted in narrow language seeking
documents related to opt-out and referencing the technological capacity to honor
opt-out requests. Not all documents relating to the departments’ technical
capacities in general were responsive to the request. Accordingly, DHS acted
reasonably in not searching records of the CIO, whom it determined would not
likely have responsive records. Plaintiffs similarly fail to point to any evidence
that the US-VISIT Deputy Director had responsive records prior to 2011.
4.

Office of Legal Counsel (OLC)86

OLC, which assists the Attorney General in his role as legal advisor to

84

Pl. Mem. at 18.

85

Id. at 1.

86

Because OLC is so much smaller than ICE, the FBI, and DHS, I
address both its choice of custodians and its method of search here.
27

the President, is a small office that employs “approximately twenty attorneys at
any one time.”87 In response to plaintiffs’ request, OLC (1) searched the office’s
shared drive, which contains all final OLC advice; (2) ran searches of the email
files of attorneys who had departed the office; (3) asked two long-time career
attorneys familiar with the office’s work whether anybody had worked on Secure
Communities and; (4) sent an email to all current attorneys asking if they had
worked on Secure Communities or on law enforcement information sharing. The
queries revealed (1) two declarations from ICE officials that were prepared as part
of the litigation over Arizona’s S.B. 1070 and that mention Secure Communities in
passing; (2) no final OLC advice; (3) no responsive emails from departed
attorneys; and (4) no recollection of ever having worked on Secure Communities.
Plaintiffs argue that this search was inadequate. Although the ideal
search might have been conducted slightly differently, the OLC’s search was
reasonably designed to uncover all responsive documents and was thus adequate.
First, the seventeen search terms used to search the shared drive – which included
“ICE” and “secure communities” – were reasonable. While terms such as “SC” or
“interoperability” were not used, it is extremely unlikely that any responsive final

87

Colborn Decl. ¶ 3.
28

opinions would not have used either the term “ICE” or “secure communities.”88
Second, the discussions with long-time supervising attorneys wisely helped guide
the office’s search. Plaintiffs’ argument that these attorneys’ memories were faulty
is unsupported; the fact that two other attorneys worked on the Arizona litigation
and possessed two minimally responsive documents does not mean that the
supervising attorneys were wrong. Finally, the query of every attorney in the
office was comprehensive. Plaintiffs are correct that the FOIA officer should have
followed up with the attorneys who did not respond to the email query. However,
in light of the totality of steps that it took to search for responsive documents (and
the fact that none of them revealed that its attorneys had worked on Secure
Communities), the OLC’s search was adequate.
B.

The Search for Records By Custodians
Plaintiffs argue that, in addition to improperly excluding from their

searches certain custodians, (1) the agencies provided custodians with vague search
instructions and (2) the custodians used inadequate search terms or did not specify

88

OLC’s search of departed attorneys’ emails – which included only the
terms “secure communities” and “interoperability” – should have used additional
terms (such as, e.g., opt-out, opt out, ICE, IDENT, and IAFIS). If the entirety of
OLC’s search had consisted of searches using only those two terms, it would have
been inadequate. However, in combination with the additional steps that the office
took, its limited search of departed attorneys’ emails does not render the entire
search inadequate.
29

the search terms that they used.89 As a result, plaintiffs argue, the searches were
not reasonably designed to uncover all responsive records. Defendants disagree.
1.

Summary of Agencies’ Search Terms and Instructions

The ICE FOIA office initially did not provide suggested search terms
to the program offices tasked with conducting searches because the plaintiffs’
request “was so broad and covered such a wide swath of documents.”90 However,
once the parties agreed to prioritize opt-out and RPL records, the FOIA office
compiled search instructions that listed eight suggested search terms and “specified
that the searches were to include the full text of documents . . . [but] did not
address the issue of combining any of the search terms or using any connectives
[such as and, or, w/10].”91
ICE describes its searches with different levels of detail, depending on

89

Plaintiffs also argue that the agencies did not sufficiently describe the
geography of their file storage systems. This may be true. In general, however,
the important shortcomings in defendants’ declarations involve their inadequate
description of searches. A fuller description of searches would make less
consequential any gaps in defendants’ description of their file storage systems.
90

Law Decl. ¶ 20.

91

Id. ¶ 36. See How- To- Search for Opt-Out Records, Ex. B to Law
Decl. The recommended search terms were: “opt-out,” “voluntary,” “opting-out,”
“mandate,” “mandatory,” “participation,” “choosing,” and “opt out.” The
instructions said, in bold letters, “however, please do not be limited by the
suggested terms if you believe that you may have responsive documents that can
be located with other search terms.” Id.
30

the office. For example, Law says that a number of components in ICE’s Office of
Principal Legal Advisor (OPLA) conducted searches using the eight recommended
search terms and the term “Secure Communities” and says that other offices used
fewer search terms.92 However, Law does not describe the search terms used by
the more than one hundred employees in the Office of Enforcement and Removal
Operations – which is responsible for implementing Secure Communities – who
searched their records.93 Instead, he says only that they were provided with the
recommended search terms. The same is true of one other office in ICE.94
The majority of the FBI’s search was conducted via a “manual”
review of the records in the IIU.95 The FBI FOIA office, like the ICE FOIA office,

92

See Law Decl. ¶¶ 44-47 (describing the searches of three components
within the OPLA and noting that a fourth component (Homeland Security
Investigations) conducted a search using only the terms “opt-out” and “opt out”
because “other terms were likely to produce large numbers of unresponsive
documents unrelated to Secure Communities”); ¶ 49 (two staff members in the
OSLTC conducted searches using the terms “opt-out,” “voluntary,” and
“mandatory”); ¶ 51 (Office of Public Affairs searched using the eight
recommended terms plus “Secure Communities”); ¶ 52 (Office of the Director
used the eight recommended terms).
93

See id. ¶¶ 37-43.

94

See id. ¶ 50 (no indication of which search terms were used by the
Office of Congressional Relations).
95

The FBI’s FOIA officer explains that although his office “did not
provide specific instruction as to how the individual searches [of paper files, email, and personal drives] were to be performed, each employee conducted a
31

issued an internal search memorandum for circulation to custodians tasked with
conducting searches.96 In contrast to ICE, however, the FBI did not submit its
memorandum as part of the summary judgment briefing and there is no indication
that the memorandum contained recommended or mandatory search terms. The
FBI did not instruct custodians to search archived records and it is unclear if it
gave any guidance about how the search should be conducted.97
DHS, like ICE, recommended eight search terms but did not require

manual review of his or her records to locate potentially responsive records.”
Hardy Decl. ¶ 19. Although Hardy does not define his use of the phrase “manual
review,” defense counsel construe Hardy’s statement to mean “a search involving
review of every individual document for potential responsiveness.” Def. Mem. at
16. “The FBI largely did not rely on search terms, but instead relied on the
knowledge of its custodians” who “sift[ed] through and review[ed] tens of
thousands of pages of records.” Def. Rep. Mem. at 15. If in fact the IIU
employees who conducted this search looked through every one of their email
messages and other files, then they will have conducted an adequate search.
Hardy, however, does not say that; rather, that is defense counsels’ construction of
the phrase “manual review.” It seems likely that some IIU custodians only
reviewed certain categories of documents (i.e., emails from certain people or
documents in certain folders) or narrowed the number of emails that they examined
by first using search terms. In any event, the FBI’s declarant should have provided
some specificity about what this manual search entailed. Such a description need
not “set forth with meticulous documentation the details of an epic search,”Perry v.
Block, 684 F.2d 121, 127 (D.C. Cir. 1982), but it does need to contain “reasonable
specificity of detail rather than merely conclusory statements,” Grand Cent. P’ship
v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999).
96

See Hardy Decl. ¶ 16.

97

See id.
32

that they be used; supervisors “did not monitor the use of search terms, but rather
relied upon the custodians to conduct appropriate searches given the requests.”98
OLC, in contrast, provided the precise terms that its employees used to search
individual and shared sources.99 Finally, the EOIR, whose search plaintiffs do not
challenge, provided specific mandatory search terms to custodians and confirmed
to the Court that the custodians used those terms.100
2.

Analysis of Defendants’ Searches
It is impossible to evaluate the adequacy of an electronic search for

records without knowing what search terms have been used. In earlier times,
custodians and searchers were responsible for familiarizing themselves with the
scope of a request and then examining documents individually in order to
determine if they were responsive. Things have changed. Now custodians can
search their entire email archives, which likely constitute the vast majority of their
written communications, with a few key strokes. The computer does the searching.

98

Palmer Decl. ¶ 20. Compare id. ¶ 25 (“exact manner in which
searches were conducted was left to the discretion of the individual custodians” in
US-VISIT office and their search terms were not reported to the Court (or,
presumably, the FOIA office)) with id. ¶ 32 (custodians in the Office of the
Secretary used the eight recommended terms).
99

See Colborn Decl. ¶¶ 6, 8 and Ex. A (listing search terms).

100

See Souza Decl. ¶ 14.
33

But as a result, the precise instructions that custodians give their computers are
crucial.
At the most elementary level are simple mistakes: a search for “secure
commmunities” (with three “m”s) may yield no results despite the presence of
thousands of documents containing the phrase “secure communities.” Seemingly
minor decisions – whether intentional or not – will have major consequences.
Choosing “subject field” rather than “subject field and message body” during a
search using the Microsoft Outlook email client will dramatically change its scope
and results. Boolean operators are also consequential: a search for “secure
communities opt-out” may yield no results while a search for “‘secure
communities’ and ‘opt-out’” yields one hundred results and a search for “‘secure
communities’ or ‘opt-out’” yields ten thousand. As I have previously explained,
“search results will change dramatically depending on which logical connectives
— such as ‘and,’ ‘or,’ ‘w/ 10,’ — are used.”101 Thus, “[i]n order to determine
adequacy, it is not enough to know the search terms. The method in which they are
combined and deployed is central to the inquiry.”102
Describing searches with this level of detail was not necessary in the

101

Families for Freedom v. United States Customs and Border
Protection, 837 F. Supp. 2d 331, 225 (S.D.N.Y. 2011).
102

Id.
34

era when most searches took place “by hand.” Then, as now, a court largely relied
on the discretion of the searching parties to determine whether a document was
responsive; but at least in that era, courts knew that the searching parties were
actually looking at the documents with their eyes. With most electronic searches,
custodians never actually look at the universe of documents they are searching.
Instead, they rely on their search terms and the computer to produce a subset of
potentially responsive records that they then examine for responsiveness.
Yet the FBI, to take one example, has given the Court no specific
information about the search that it conducted beyond explaining that much (but
not all) of it was “manual.”103 For the portions that were not manual, I do not know
what search terms were used, let alone how they were combined. I do not even
know if any search terms were recommended.104 Similar problems permeate many

103

Given the tedious nature of the assignment of examining every single
document and the difficult and subjective nature of deciding what is and is not
responsive, it would have been wise of the FBI to run a few verification tests using
sophisticated search techniques to ensure that the manual review was actually
capturing the universe of responsive documents. Such tests would have given the
Court significantly more confidence regarding the adequacy of these manual
reviews. See Maura R. Grossman & Gordon V. Cormack, Technology-Assisted
Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive
Manual Review, XVII Rich. J.L. & Tech. 11 (2011). See generally the Text
Retrieval Conference (TREC) Legal Track at http://trec-legal.umiacs.umd.edu/.
104

The FBI ran a search for “secure communities” in one of its central
databases, which did not return any responsive records. See Hardy Decl. ¶ 14. The
FBI has not submitted information about the search terms used in the many other
35

of the searches of DHS and ICE files, although not of OLC or EOIR files.
Defendants argue that I should grant the agencies’ motion on the
adequacy of the search even though I do not know what search terms – let alone
what Boolean operators, search fields, and time frames – were used by a very large
portion of the custodians. As a general matter, they point out that “declarations
need not ‘set forth with meticulous documentation the details of an epic search’ in
order to entitle agencies to summary judgment.”105 And they argue that “[i]t is also
unclear why custodians could not be trusted to run effective searches of their own
files, a skill that most office workers employ on a daily basis.”106
There are two answers to defendants’ question. First, custodians
cannot “be trusted to run effective searches,” without providing a detailed
description of those searches, because FOIA places a burden on defendants to
establish that they have conducted adequate searches; FOIA permits agencies to do
so by submitting affidavits that “contain reasonable specificity of detail rather than

searches that employees conducted of their individual and shared records. After I
ordered defendants to produce opt-out and RPL documents on an expedited basis,
the FBI searched for the terms “opt-out” and “opt out” in the documents that it had
already collected in response to plaintiffs’ complete FOIA request. See id. ¶ 25.
But I do not know what search terms it used to compile those documents in the first
place.
105

Def. Rep. Mem. at 4 (citing Perry, 684 F.2d at 127).

106

Id. at 10.
36

merely conclusory statements.”107 Defendants’ counsel recognize that, for over
twenty years, courts have required that these affidavits “set[] forth the search terms
and the type of search performed.”108 But, somehow, DHS, ICE, and the FBI have
not gotten the message. So it bears repetition: the government will not be able to
establish the adequacy of its FOIA searches if it does not record and report the
search terms that it used, how it combined them, and whether it searched the full
text of documents.
The second answer to defendants’ question has emerged from
scholarship and caselaw only in recent years: most custodians cannot be “trusted”
to run effective searches because designing legally sufficient electronic searches in
the discovery or FOIA contexts is not part of their daily responsibilities.109
Searching for an answer on Google (or Westlaw or Lexis) is very different from

107

Grand Cent. P’ship, 166 F.3d at 478.

108

Iturralde, 315 F.3d at 313 (quoting Oglesby, 920 F.2d at 68). See also
Def. Rep. Mem. at 4 (reiterating this requirement).
109

See Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of
Am. Sec., LLC, 685 F. Supp. 2d 456, 473 (S.D.N.Y. 2010) (“I note that not every
employee will require hands-on supervision from an attorney. However, attorney
oversight of the process, including the ability to review, sample, or spot-check the
collection efforts is important. The adequacy of each search must be evaluated on a
case by case basis.”).
37

searching for all responsive documents in the FOIA or e-discovery context.110
Simple keyword searching is often not enough: “Even in the simplest case
requiring a search of on-line e-mail, there is no guarantee that using keywords will
always prove sufficient.”111 There is increasingly strong evidence that “[k]eyword
search[ing] is not nearly as effective at identifying relevant information as many

110

Defense counsel in this litigation have noted, correctly, that search
obligations under FOIA are not identical to those under the Federal Rules of Civil
Procedure. But under FOIA, to prevail on an adequacy of the search motion, a
defendant “must show beyond material doubt that it has conducted a search
reasonably calculated to uncover all relevant documents.” Morley, 508 F.3d at
1114. Defendants are of course correct to note that “‘the adequacy of a FOIA
search is generally determined not by the fruits of the search, but by the
appropriateness of the methods used to carry out the search’ because ‘particular
documents may have been accidentally lost or destroyed, or a reasonable and
thorough search may have missed them.’” Def. Rep. Mem. at 3 (quoting Iturralde,
315 F.3d at 315). The failure to actually uncover all documents is not fatal to the
adequacy of the government’s search; but the failure to design a search that is
reasonably calculated to uncover all documents is fatal. Therefore, much of the
logic behind the increasingly well-developed caselaw on e-discovery searches is
instructive in the FOIA search context because it educates litigants and courts
about the types of searches that are or are not likely to uncover all responsive
documents.
111

Shira A. Scheindlin, Daniel J. Capra, & The Sedona Conference,
Electronic Discovery and Digital Evidence: Cases and Materials at 327 (2d ed.
2012). Accord Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 257 (D.
Md. 2008) (“there is a growing body of literature that highlights the risks
associated with conducting an unreliable or inadequate keyword search or relying
exclusively on such searches”).
38

lawyers would like to believe.”112 As Judge Andrew Peck – one of this Court’s
experts in e-discovery – recently put it: “In too many cases, however, the way
lawyers choose keywords is the equivalent of the child’s game of ‘Go Fish’ . . .
keyword searches usually are not very effective.”113
There are emerging best practices for dealing with these shortcomings
and they are explained in detail elsewhere.114 There is a “need for careful thought,
quality control, testing, and cooperation with opposing counsel in designing search
terms or ‘keywords’ to be used to produce emails or other electronically stored

112

Maura R. Grossman & Terry Sweeney, What Lawyers Need to Know
About Search Tools: The Alternatives to Keyword Searching Include Linguistic
and Mathematical Models for Concept Searching, Nat. L. J. (Aug. 23, 2010)
(“What Lawyers Need to Know”) (citing three studies showing that Boolean
keyword search identifies between twenty and twenty-five percent of relevant
documents).
113

Moore v. Publicis Group & MSL Group, No. 11 Civ. 1279, 2012 WL
607412, at *10 (S.D.N.Y. Feb. 24, 2012) (quoting Ralph C. Losey, Child’s Game
of ‘Go Fish’ is a Poor Model for e-Discovery Search, in Adventures in Electronic
Discovery 209–10 (2011) and citing the following cases criticizing keyword
search: United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008); Equity
Analytics, LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008); Victor Stanley, Inc.,
250 F.R.D. at 262; William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut.
Ins. Co., 256 F.R.D. 134, 134, 136 (S.D.N.Y. 2009)).
114

Prominent among these are the publications of the Sedona
Conference. See, e.g., Sedona’s Commentary on Achieving Quality in the
E-Discovery Process (2009) and Commentary on Search & Retrieval Methods
(2007), available at www.thesedonaconference.org/publications.
39

information.”115 And beyond the use of keyword search, parties can (and
frequently should) rely on latent semantic indexing, statistical probability models,
and machine learning tools to find responsive documents.116 Through iterative
learning, these methods (known as “computer-assisted” or “predictive” coding)
allow humans to teach computers what documents are and are not responsive to a
particular FOIA or discovery request and they can significantly increase the
effectiveness and efficiency of searches. In short, a review of the literature makes
it abundantly clear that a court cannot simply trust the defendant agencies’
unsupported assertions that their lay custodians have designed and conducted a
reasonable search.
The more complicated question is this: when custodians do keep track
of and report the search terms that they have used, how should a court evaluate

115

William A. Gross, 256 F.R.D. at 136. See Victor Stanley, Inc., 250
F.R.D. at 262 (“Selection of the appropriate search and information retrieval
technique requires careful advance planning by persons qualified to design
effective search methodology. The implementation of the methodology selected
should be tested for quality assurance; and the party selecting the methodology
must be prepared to explain the rationale for the method chosen to the court,
demonstrate that it is appropriate for the task, and show that it was properly
implemented. In this regard, compliance with the Sedona Conference Best
Practices for use of search and information retrieval will go a long way towards
convincing the court that the method chosen was reasonable and reliable.”).
116

See What Lawyers Need to Know (excerpted in Electronic Discovery
and Digital Evidence at 328-29).
40

their adequacy? As the cases cited by the parties show, the evaluation of search
terms is highly context-specific: the failure to use certain search terms will
sometimes be fatal,117 sometimes unproblematic,118 and sometimes improper but
harmless or at least mitigated.119 Furthermore, even courts that have carefully
considered defendants’ search terms have generally not grappled with the research
showing that, in many contexts, the use of keywords without testing and
refinement (or more sophisticated techniques) will in fact not be reasonably

117

See, e.g., Fox News Network, LLC v. United States Dep’t of the
Treasury, 678 F. Supp. 2d 162, 166 (S.D.N.Y. 2009) (finding that failure to use an
obvious acronym made the search inadequate); Hasbrouck v. United States
Customs and Border Protection, No. 10 Civ. 3793, 2012 WL 177563 (N.D. Cal.
Jan 23, 2012) (finding failure to search spelling variants as requested was
inadequate); Habeas Corpus Resource Ctr. v. United States Dep’t of Justice, No.
08 Civ. 2649, 2008 WL 5111224 (N.D. Cal. Dec. 2, 2008) (finding declarations
that specified two or three search terms were insufficient to establish adequacy).
118

See Media Research Center v. United States Dep’t of Justice, No. 10
Civ. 2013, 2011 WL 4852224 (D.D.C. Oct. 13, 2011) (defendant was not required
to use certain search terms); Vest v. Department of Air Force, 793 F. Supp. 2d 103
(D.D.C. 2011) (search for spelling variants was not required); Anderson v. United
States Dep’t of State, 661 F. Supp. 2d 6 (D.D.C. 2009) (same).
119

See Amnesty Int’l v. Central Intelligence Agency, No. 07 Civ. 5435,
2008 WL 2519908, at *15 (S.D.N.Y. June 19, 2008) (“a search that is designed to
return documents containing the phrase ‘CIA detainees’ but not ‘CIA detainee’ or
‘detainee of the CIA’ is not reasonably calculated to uncover all relevant
documents . . . . Nevertheless, that failure does not render the Government’s
searches unreasonable in this case [because] the vast majority of [document
databases] were searched by hand . . . [and] such hand searches are not tainted by
any deficiencies in the Government’s computerized searches.”) (some quotations
omitted).
41

calculated to uncover all responsive material.
Plaintiffs have enlisted an e-discovery expert to analyze defendants’
searches. He argues that even where defendants have listed the search terms that
they used, “there is no indication that [the agencies] undertook any analysis to
determine whether there were other words that should have been included in their
search[es], including, for example, a review of a sample set of the documents that
did not contain the . . . search terms.”120 There is, he points out, an “absence of any
evidence of a thoughtful process in selecting and testing search terms.”121
I accept the conclusion of plaintiffs’ expert that many of these
searches were not perfect; the question, however, is whether the shortcomings on
the part of the agencies made their searches “inadequate” under FOIA. Surely, the
agencies have failed to establish the adequacy of the searches for which they have
specified no search terms. But for those searches for which terms were specified, a
determination is more difficult: on the one hand, the agencies did use search terms
– like “opt out” and “secure communities” – that reflect the core topics sought by
plaintiffs; on the other hand, there was no testing of the efficacy of those terms.

120

Declaration of Daniel L. Regard II in Support of Plaintiffs’ CrossMotion for Summary Judgment and in Opposition to Defendants’ Motion for
Summary Judgment on Adequacy of Search (“Regard Decl.”) ¶ 28.
121

Id. ¶ 42.
42

“Since they are word-based, [keyword and Boolean searches] often fail to identify
responsive documents because the author used different words to discuss the
subject.”122 In response to these challenges, one judge has said that “[g]iven this
complexity, for lawyers and judges to dare opine that a certain search term or terms
would be more likely to produce information than the terms that were used is truly
to go where angels fear to tread.”123
Aware of the limitations of keyword searching and in the absence of
evidence showing the efficacy of the terms used, it is impossible for me to assess
the adequacy of most of the keyword searches used by defendants.124 But it is also
unnecessary for me to do so. In this case, which concerns the largest FOIA search
in the history of ICE and an enormous search for DHS and the FBI as well,
repeating vast swaths of the search in order to ensure adequacy is a waste of

122

What Lawyers Need to Know (excerpted in Electronic Discovery and
Digital Evidence at 328). Plaintiffs have urged defendants to conduct searches
using multiple variants of the terms “opt out” and secure communities.” See Law
Supp. Dec. ¶ 9 (listing plaintiffs’ recommended terms as “opt-in,” “opt in,” “optout,” “opt out,” “opting out,” “opting in” and “secure communities,”
“secure_communities,” “scomm,” “s-comm,” “sc,” “circa,” and “scmpo”).
123

O’Keefe, 537 F. Supp. at 24.

124

This does not apply to OLC. Given the size of that office and the
various approaches that it took to searching for records, I am confident that the
broad search using the terms “ICE” and “Secure Communities” was reasonably
designed to uncover all responsive documents.
43

resources: given the level of duplication and the staleness of whatever new
documents are uncovered, the costs to all parties would surely outweigh the
benefits to plaintiffs, the public, and the rule of law. Nevertheless, FOIA requires
the government to respond adequately to requests from the public and defendants
must learn to use twenty-first century technologies to effectuate congressional
intent.
Rather than fully revisit old searches, the parties will need to work
cooperatively to design and execute a small number of new, targeted searches.
Custodians who should have searched their records but did not will need to
conduct complete searches; this order requires defendants to do no more than they
should have to comply with FOIA initially.
In addition, a sample of the custodians who conducted searches but
failed to provide the Court with any details about those searches will also need to
conduct new, fully-documented searches; so will a smaller sample of the
custodians who listed the search terms that they used but provided no evidence
about the efficacy of those terms. These repeat searches will permit the parties and
the Court to efficiently evaluate whether the initial searches were adequate.125
125

Defendants were given three opportunities on this motion to submit
detailed declarations (the initial January declarations that were insufficiently
detailed, the March moving declarations, and the reply declarations). With a few
exceptions noted below, defendants will now need to rectify their failure to
44

The parties will need to agree on search terms and protocols – and, if
necessary, testing to evaluate and refine those terms. If they wish to and are able
to, then they may agree on predictive coding techniques and other more innovative
ways to search. Plaintiffs will need to be reasonable in their demands – aware of
the real cost that their massive FOIA request has imposed on the agencies – and
will be restricted to seeking records from only the most important custodians on
only the most important issues. Defendant agencies, in turn, will need to cooperate
fully with plaintiffs. As in the past, the Court will supervise this process and
provide a variety of mechanisms for resolving any disputes. Disagreements will be
resolved early, before they lead to inadequate (or wasteful) searches.
Defendants shall conduct new searches of the following custodians
(including searches of archived records), using a list of search terms and
methodologies agreed to by the parties:
FBI:126

establish adequacy by conducting new searches rather than only by submitting new
declarations.
126

Plaintiffs ask the Court to order the FBI to explain “how searches of
electronic records were conducted by individual custodians and what search terms
were used.” Pl. Mem. at 28. I do not know if the FBI ever collected that
information, although it should have. Revisiting the past searches in that level of
detail is less efficient or important than conducting thorough and well-documented
searches of specific custodians going forward, and therefore it is not necessary.
45

1.
2.

3.

4.

1.
2.

FBI Director, Deputy Director, Associate Deputy
Director, Chief of Staff, Senior Counsel.
General Counsel and Deputy General Counsel (unless a
supervising attorney from OGC submits a declaration
based on personal knowledge stating that it is not
reasonable to believe that the office has documents
responsive to the Opt-Out or RPL requests).127
All former IIU employees whose individual records were
not searched and three of the twenty-two IIU employees,
selected by plaintiffs, who previously conducted
“manual” searches.128
Three custodians, chosen by plaintiffs, in the Advisory
Groups Management Unit (AGMU).129

DHS:
HSAC
Principal Deputy General Counsel David Martin, Deputy
General Counsel Audrey Anderson, and the two
custodians whose names are redacted in Martin’s
September 3 email. The records of other OGC
custodians may need to be searched depending on

127

In either event, however, the Privacy and Civil Liberties Unit is
required to conduct a search for documents responsive to RPL VII.
128

A search of these three test employees’ records using a negotiated
search methodology will permit plaintiffs and the Court to evaluate whether the
earlier manual review was in fact adequate.
129

Plaintiffs believe that the AGMU may have documents relating to a
key recommendation made by the Advisory Policy Board (which is technically not
comprised of FBI employees) to the FBI Director, which he accepted, to make
information sharing between the FBI and DHS mandatory. Defendants searched
the AGMU and produced responsive records, but have provided no details about
the nature or scope of that search. See Hardy Decl. ¶ 17 n.6. A renewed, targeted
search for responsive records (including for opt-out records from February through
October, 2010) is therefore appropriate.
46

3.

1.
2.

3.

4.

5.

6.

7.

whether these four custodians’ records reveal that it is
reasonable to believe that others had responsive records.
Ivan Fong’s records should be searched unless he
submits a sworn affidavit stating that he was not involved
in any opt-out discussions prior to October 15, 2010.
Three US-VISIT custodians who already searched their
records but did not provide the court with the search
terms that they used,130 selected by plaintiffs.
ICE:
Five HSI employees, selected by plaintiffs.
The OSLTC Chief of Staff and the Chief Public
Engagement Officer who engaged in correspondence
regarding opt-out on September 21, 2010.
Of the approximately 106 Field Coordinators in ICE’s
Enforcement and Removal Operations who conducted
searches but did not provide details about which search
terms were actually used, plaintiffs may select twenty
custodians to conduct new, fully-documented searches.
One custodian from the ICE Office of the Director,
chosen by defendants, who conducted a search using the
eight search terms recommend by the FOIA office.
Two custodians from the ICE Office of the Executive
Secretariat, chosen by plaintiffs, about whose search
defendants gave no information.
In addition, ICE is instructed to inform plaintiffs about
the extent to which contractors were included in the
searches, and, if plaintiffs are dissatisfied, submit to the
Court a supplemental declaration.
Finally, ICE is instructed to answer the questions about
archive recovery systems and SharePoint instructions
(but not the other two questions) on page twenty-nine of
plaintiffs’ memorandum of law.

130

Compare Palmer Decl. ¶ 25 (stating that specific search terms were
“recommended” to US-VISIT custodians) with ¶ 32 (stating that specific search
terms were “used” by Office of the Secretary custodians).
47

IV.

CONCLUSION
This litigation, filed more than two years ago, has already engendered

four judicial opinions - now five. I once again urge the Government to heed the
now famous words of Justice Louis Brandeis with which I began this opinion. For
the reasons stated above, the motions ofOLC and EOIR are granted. The motions
of ICE, the FBI, DHS, and plaintiffs are granted in part and denied in part. The
Clerk of the Court is directed to close these motions [Docket Nos. 177 and 186].
The parties are instructed to meet and confer and then to submit letters to the Court
proposing a timeline for the effectuation of this decision. If the parties prefer, they
may call Chambers to schedule a conference.

Dated:

New York, New York
July 13,2012

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- Appearances For Plaintiffs:
Sonia R. Lin, Esq.
Peter L. Markowitz, Esq.
Immigration Justice Clinic
Benjamin N. Cardozo School of Law
55 Fifth Ave., Rm 1154
New York, New York 10003
[phone]
Anthony J. Diana, Esq.
Therese Craparo, Esq.
Jeremy D. Schildcrout, Esq.
Bridget P. Kessler, Esq.
Mayer Brown LLP
1675 Broadway
New York, New York 10019
[phone]
Sunita Patel, Esq.
Ghita Schwarz, Esq.
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, New York 10012
[phone]
For Defendants:
Christopher Connolly
Joseph N. Cordaro
Ellen London
Assistant U. S. Attorneys
86 Chambers Street, 3rd Floor
New York, New York 10004
[phone]/2761

49