Stevens v. Broadcasting Board of Governors

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACQUELINE STEVENS,

Plaintiff,

Case No. 18-cv-5391

v.

Judge Mary M. Rowland

BROADCASTING BOARD OF

GOVERNORS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Jacqueline Stevens brings this action against several federal agencies

under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking to compel the

adequate search and disclosure of all responsive records withheld in response to her

FOIA requests. On March 2, 2020, Stevens filed a motion to compel the production of

certain documents related to the case. Dkt. 44. In order to facilitate the litigation, the

parties agreed to consolidate their briefing, so that the government responded to

Stevens’s Motion and filed a Motion for Summary Judgement at the same time. Dkt.

54. In this Opinion, the Court addresses the issues raised in the Motion for Summary

Judgement. In a concurrent opinion issued today, the Court addresses the Motion to

Compel. For reasons stated herein, the government’s Motion for Summary

Judgement [54] is granted as to USGS and ICE on the issue of adequacy of search

and denied as to the other agencies.

SUMMARY JUDGMENT STANDARD

FOIA confers jurisdiction in the district court to enjoin an agency from improperly

withholding records maintained or controlled by the agency. See 5 U.S.C.

§ 552(a)(4)(B); McGehee v. CIA, 697 F.2d 1095, 1105 (D.C. Cir. 1983) (quoting

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980)). An

agency's disclosure obligation is triggered by its receipt of a request that “reasonably

describes” the records sought and “is made in accordance with [the agency's]

published rules stating the time, place, fees (if any), and procedures to follow.” 5

U.S.C. § 552(a)(3)(A); see Citizens for Responsibility and Ethics in Washington v. FEC,

711 F.3d 180, 185, n.3 (D.C. Cir. 2013) (“Of course, the duties that FOIA imposes on

agencies . . . apply only once an agency has received a proper FOIA request.”) (citation

omitted).

“FOIA cases typically and appropriately are decided on motions for summary

judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C.

2009) (citing Bigwood v. U.S. Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C.

2007)). A court may grant summary judgment when “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). A “material” fact is one capable of affecting the

substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to

return a verdict for the non-movant. Scott v. Harris, 550 U.S. 372, 380 (2007).

In a FOIA case, an agency is entitled to summary judgment when it demonstrates

that there are no material facts in dispute as to the adequacy of its search for or

production of responsive records. Nat'l Whistleblower Ctr. v. U.S. Dep't of Health &

Human Servs., 849 F. Supp. 2d 13, 21 (D.D.C. 2012). An inadequate search for records

constitutes an improper withholding under the FOIA. See Maydak v. U.S. Dep't of

Justice, 254 F. Supp. 2d 23, 44 (D.D.C. 2003) (citations omitted). Thus, “[a] requester

dissatisfied with the agency's response that no records have been found may

challenge the adequacy of the agency's search by filing a lawsuit in the district court

after exhausting any administrative remedies.” Valencia–Lucena v. U.S. Coast

Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). The Court must then determine the

adequacy of the agency's search, guided by principles of reasonableness. See Campbell

v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998).

When assessing the agency's search, the Court generally “may rely on ‘[a]

reasonably detailed affidavit, setting forth the search terms and the type of search

performed, and averring that all files likely to contain responsive materials (if such

records exist) were searched.’” Valencia–Lucena, 180 F.3d at 326 (quoting Oglesby v.

United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). Such affidavits are

“accorded a presumption of good faith” by the Court. Demma v. DOJ, 1996 WL 11932,

*3 (N.D. Ill. Jan. 10, 1996). Summary judgment is inappropriate “if a review of the

record raises substantial doubt” about the adequacy of the search, id., but “the [mere]

fact that a particular document was not found does not demonstrate the inadequacy

of a search.” Boyd v. Criminal Div. of U.S. Dep't of Justice, 475 F.3d 381, 390–91 (D.C.

Cir. 2007) (citations omitted); see Iturralde v. Comptroller of Currency, 315 F.3d 311,

315 (D.C. Cir. 2003) (“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.”) (citation omitted).

A district court reviewing an agency's motion for summary judgment conducts a

de novo review of the record, and the responding agency bears the burden of proving

that it has complied with its obligations under FOIA. See 5 U.S.C. § 552(a)(4)(B); see

also In Def. of Animals v. Nat'l Insts. of Health, 543 F. Supp. 2d 83, 92–93 (D.D.C.

2008) (citing Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.

Cir. 2003)). The district court must analyze all underlying facts and inferences in the

light most favorable to the FOIA requester. See Willis v. DOJ, 581 F. Supp. 2d 57, 65

(D.D.C. 2008). Accordingly, summary judgment for an agency is appropriate only if

the agency proves that it has “fully discharged its [FOIA] obligations[.]” Moore, 916

F. Supp. at 35 (citing Miller v. U.S. Dep't of State, 779 F.2d 1378, 1382 (8th Cir.

1985)). “A requester is entitled only to records that an agency has in fact chosen to

create and retain.” Yeager v. Drug Enf't Admin., 678 F.2d 315, 321 (D.C. Cir. 1982).

Thus, an agency has no obligation under FOIA “to commit to paper information that

does not exist in some form as an agency ‘record.’” Id. Nor does FOIA obligate an

agency to “answer questions disguised as a FOIA request” or to “create documents or

opinions in response to an individual's request for information.” Dugan v. Dep't of

Justice, 82 F. Supp. 3d 485, 497 (D.D.C. 2015) (quoting Adams v. FBI, 572 F. Supp.

2d 65, 68 (D.D.C. 2008)).

BACKGROUND1

I. The FOIA Requests

Jacqueline Stevens is a professor at Northwestern University. DSOF ¶ 3. Between

2015 and 2018, she filed 29 FOIA requests seeking records from 11 different federal

agencies. Dkt. 55, Mot. Summ. J., 1. On August 8, 2018, she filed the present lawsuit

to compel production of records responsive to her requests. At present, outstanding

issues remain related to requests submitted to six agencies— the U.S. Agency for

Global Media (USAGM, formerly the Broadcasting Board of Governors); the

Department of Health and Human Services (HHS); Citizenship and Immigration

Services (USCIS); the United States Geological Survey (USGS); the United States

Administration for International Development (USAID); and Immigration and

Customs Enforcement (ICE). DSOF ¶¶ 4-9. Concurrently with its Motion for

Summary Judgement, the government has submitted declarations from the officials

responsible for fulfilling Stevens’s FOIA requests at each agency. See Dkt. 56-1 to 6.

The declarants signed the declarations under penalty of perjury and stated that the

information was true to the best of their knowledge and belief. DSOAF ¶ 81.

1 The facts in this Background section are undisputed unless otherwise noted. The government’s Rule

56.1 Statement of Facts (Dkt. 56) is abbreviated as “DSOF”. Stevens responded to the government’s

Statement of Facts at Dkt. 59-1. She did not file her own Statement of Facts. After the first round of

briefing, the Court permitted the government to file a Statement of Additional Facts (Dkt. 67), here

abbreviated as “DSOAF.” Stevens has not responded to these additional facts and so they are deemed

admitted. In its Reply, the government asserts that Stevens violated Local Rule 56.1 by citing directly

to the record in her briefing. Whether to require strict compliance with Local Rule 56.1 is in the Court’s

discretion. Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 414 (7th Cir. 2019). Given the limited

factual record at issue here, the Court does not require strict adherence to Local Rule 56.1 to adjudicate

the merits of the issue.

II. USAGM

In June 2016, Stevens submitted a FOIA request to USAGM (named the

Broadcasting Board of Governors at the time) seeking contracts and work products

associated with the company D3 Systems, Inc. DSOF ¶ 10. The request included

background information and work status updates. Id. The contracts office of USAGM

conducted a search. Id. at ¶ 11. Eventually, in June 2018, USAGM produced 1,487

pages and withheld 1,195 responsive pages under various FOIA exemptions. Id. at ¶

13. USAGM’s declaration asserts that the search was reasonably calculated to locate

responsive records and that the agency has no reason to believe that additional

responsive records in its custody exist. Id. at ¶ 14.

III. HHS

In May 2018, Stevens submitted two FOIA requests to HHS. Id. at ¶ 15. These

requests sought all materials related to Professor David Senn and his representatives

from 2016 on; all correspondence between HHS, ICE, and Customs and Border Patrol

(CBP) related to age assessments of individuals in their custody; contracts and other

materials by care provider Southwest Key related to age assessments of

unaccompanied alien children; and invoices and other records documenting HHS

expenditures related to age assessments maintained or submitted by Southwest Key.

Id. at ¶¶ 15-16.

HHS determined it had no contract with Senn at the time, and so determined that

responsive records would be found in correspondence between the agency’s refugee

resettlement office and Professor Senn. Id. at ¶ 17. HHS searched for emails including

terms related to age assessments sent or received by the office’s field specialists and

supervisors that also include ICE, CBP or Senn’s email addresses. Id. at ¶ 18. To

search for Senn’s correspondence, HHS only looked for emails from or to

senn@uthsca.edu. Id. The declaration does not specify the age assessment terms

used.

HHS also found copies of the cooperation agreement between HHS and Southwest

Key and financial reports submitted by Southwest Key. Id. at ¶ 20. The declaration

does not specify how these records were obtained. HHS also determined that it did

not receive records of invoices or similar documents from Southwest Key. Id. HHS

ultimately identified several thousand responsive pages and produced over 2,500

pages with and without redactions. Id. at ¶¶ 21-24. The rest were referred to DHS for

review as the originating agency. Id.

IV. USCIS

Stevens submitted two FOIA requests to USCIS in May 2018. Id. at ¶ 26. She

sought: all information from Northwestern used for registering employees for E-

Verify except for individual data; all emails with Northwestern employees related to

E-Verify; all contracts and work evaluations for contractors on software used by

USCIS and third parties for E-Verify; USCIS evaluations used by contracting officers

to renew contracts. Id.

USCIS FOIA staff determined that the Verification Division was the office most

reasonably likely to have responsive records. Id. at ¶ 27. An analyst in the division

searched for records in the division’s computer database, using search terms and

fields like “Northwestern University,” “E-Verify,” “Hire Date,” “Employer Name,”

“Address.” Id. at ¶ 28. This search identified the names of Northwestern University

contacts. Id. Staff produced the E-Verify memorandum of understanding between

Northwestern and DHS. Id. They then searched the division’s emails and other

communication using the contact information identified in the memorandum. Id. No

responsive emails were found, but three relevant phone call “action logs” were found

and produced to Stevens. Id. The search encompassed the division’s email records

and databases called AVANT, CRM, SAS and WebHQ. Id.

In August 2018, Stevens submitted a second FOIA request to USCIS. Id. at ¶ 30.

She requested information related to a contract between the agency and General

Dynamics, including the initial scope of work, attachments, renewals, and related

emails. Id. at ¶ 31. USCIS determined that the Office of Contract was most

reasonably likely to have responsive records. Id. An analyst at the office searched the

office’s J: drive using the contract number supplied by Stevens. Id. at ¶ 32. He located

the scope of work and all supporting documents in the office’s file related to the

contract. Id. He did not find any responsive emails. Id.

In October 2018, USCIS produced the responsive documents to both requests. For

the first request, it sent to Stevens 51 pages of responsive documents and five Excel

spreadsheets, all unredacted. Id. at ¶ 29. For the second request, USCIS produced

353 responsive records, with 216 pages containing redactions. Id. at ¶ 33. The

declaration asserts that, for both requests, all files reasonably likely to contain

responsive material were searched and that USCIS does not believe that additional

responsive records exist in its control. Id. at ¶¶ 28, 32.

V. USGS

On May 22, 2018, Stevens submitted a FOIA request for records related to a

contract between Northwestern and USGS; records on the expected scope of work and

service, including similar contracts; and records on the evaluation and extension of

the contract. Id. at ¶ 34. USGS assigned the request to the Office of Acquisitions and

Grants, the office responsible for contracts with external parties. Id. at ¶ 35. A

supervisor in the office determined a specialist in the National Acquisition branch

would have the responsive records because he had most recently handled a contract

with Northwestern. Id. at ¶ 36. He determined that the relevant files would be in the

electronic filing system and searched the file associated with the contract. Id. at ¶ 37.

Based on this search, USGS produced 33 pages to Stevens in July 2018. Id. at ¶ 38.

Stevens pointed out that the records did not include records associated with

previous contracts or evaluations of performance. Id. at ¶ 39. USGS eventually

identified 21 contracts with Northwestern, seven of which were likely in existence.

Id. Searching electronic records, the analyst found responsive records for six of the

contracts. Id. The analyst also identified another employee who had previously

worked with Northwestern. Id. at ¶ 40. That employee searched her files and found

more responsive records. Id. at ¶ 40. USGS also says it determined that it did not

maintain evaluations of contractor performance for the contracts. Id. at ¶ 42.

In September and October 2018, USGS produced 626 responsive records. Id. at ¶

41. The agency concluded that no other locations were reasonably likely to have

responsive records. Id. at ¶ 40.

VI. USAID

In October 2015, Stevens submitted a FOIA request to USAID. Id. at ¶ 43. She

requested copies of all contracts and other documents about Northwestern

University. Id. The request particularly highlighted discussions regarding the

Northwestern campus in Doha. Id. Stevens subsequently clarified the scope of the

request, asking for all emails on USAID servers with “northwestern.edu” in the

address field; all references to “northwestern university” on the servers; all materials

referring to Northwestern in the “missions in Israel, Kuwait, Qatar, Pakistan, and

Saudi Arabia;” and all contracts and grants involving Northwestern. Id. at ¶ 46.

Over the course of several years, USAID forwarded the request to its Mission in

the West Bank and Gaza, Mission in Pakistan, Bureau for the Middle East, Bureau

for Asia, and Bureau for Management, Office of the Chief Information Officer,

Information and Assurance Division. Id. at ¶¶ 48, 51, 54-55; DSOAF at ¶ 86. These

bureaus and missions were the closest corresponding to the ones Stevens requested,

and the Information and Assurance Division could search USAID servers. Id. USAID

bureaus and independent offices usually contain sub-offices like an Office of the

Assistant Administrator and an Office of Strategic Planning operations, which are

included within a bureau’s FOIA search. DSOAF at ¶¶ 83-84.

Every staff member in USAID’s Mission in the West Bank and Gaza searched for

the term “Northwestern” in their gmail, desktop, documents folder, local drive, and

shared drives. Id. at ¶ 85. In order to narrow the search, a FOIA specialist instructed

the Mission to not include emails from staff that are alumni of Northwestern or

logistical emails from faculty passing through. Dkt. 56-5, Colbow Decl. ¶ 20. This was

done with the expectation that the emails would be captured in the Information and

Assurance Division’s email search. Id. Responsive records were found and produced.

DSOF at ¶ 50. The Pakistan mission conducted a similar search, however, no

responsive records were found. Id.

An officer at the Bureau for Middle East searched the network drive of its

predecessor bureau using the term “Northwestern” but retrieved no results. Id. at

¶ 54. The officer also searched file drawers and consulted with several long-term

employees, but located no files related to Northwestern. Id. Another employee

conducted a paper file search and also did not find any responsive records. Id. The

Bureau for Asia searched its accounting system and shared drives using the term

“northwestern” and received no responsive records. DSOAF at ¶ 86. Meanwhile, the

Information and Assurance Division searched the “Gmail Vault” archive of all USAID

accounts for the search term “@northwestern.edu” over the relevant time frame.

DSOF at ¶ 55. This returned almost twenty-five thousand emails. Id. USAID

determined, however, that none of the records were responsive to the FOIA request.

Id. USAID ultimately produced to Stevens 927 responsive pages. Id. at ¶ 53.

VII. ICE

There are unresolved issues related to four FOIA requests that Stevens submitted

to ICE. Id. at ¶ 57. First, in March 2018, Stevens submitted a FOIA request to ICE

seeking all documents uploaded to the PLAnet case management system starting in

2016 regarding people claiming U.S. citizenship. Id. at ¶ 58. The Enforcement and

Removal Operations (ERO) determined it was unlikely to possess responsive records

because PLAnet is used by the Office of the Principal Legal Advisor. Id. at ¶ 59. The

legal office then produced a 36-page Excel spreadsheet of U.S. citizen claims from the

PLAnet database to Stevens. Id. at ¶¶ 60, 62.

Also in March 2018, Stevens submitted a FOIA request for all material since 2016

related to the use of detainee labor by private contractors. Id. at ¶ 65. ICE tasked its

Enforcement and Removal Office to search for responsive records. Id. at ¶ 67. The

custody management division of that office employed the search term “Voluntary

Work Program” to search paper and electronic files for responsive records. Id. ICE

also tasked the Office of Acquisition Management to search for responsive records.

Id. at ¶ 68. That office assigned its division responsible for detention contracts to

conduct the search, which did so by searching all records regarding “private use of

detainee labor.” Id. at ¶ 68.

These searches found 22 potentially responsive pages. Id. at ¶ 69. The Office of

the Principal Legal Advisor also uncovered 4,015 responsive pages. Id. at ¶ 70. And

ICE reviewed several thousand records referred by USCIS. Id. at ¶ 69. In total, ICE

produced 6,062 responsive pages. Id. at ¶¶ 69-70.

Finally, In June 2018, Stevens submitted two requests for records related to

grievances submitted by people in ICE custody to ICE or Polk County officials,

starting in 2016. Id. at ¶¶ 72, 76. The Enforcement and Removal Office was tasked

with searching for responsive records. Id. at ¶¶ 73, 77. The custody management

division and Houston field office carried out the search. Id. They searched their email

systems, hard drives, and shared drives using the search terms “Grievances,”

“Grievance logs,” “responding to grievances,” and “Polk County Detention Facility.”

Id. at ¶¶ 74, 78. This search returned on responsive Excel spreadsheet. Id. A

supplemental search by the Enforcement and Removal Office found another

responsive Excel spreadsheet. Id. at ¶ 79. Both were produced to Stevens. Id. at

¶¶ 75, 79.

ANALYSIS

For the agencies at issue, Stevens contests the adequacy of the scope of the search

conducted and the process employed. To succeed at summary judgement, an agency

declaration must show, with reasonable detail, that the search “was reasonably

calculated to uncover all relevant documents.” Oglesby v. U.S. Dep't of Army, 920 F.2d

57, 68 (D.C. Cir. 1990). Stevens also challenges the legal adequacy of several of the

declarations.

I. The Declarations Are Admissible Evidence

The first issue we address is the legal sufficiency of the declarations submitted by

the government. Stevens argues that four of the declarations, those submitted by

officials from USAGM, HHS, USCIS, and ICE, are legally insufficient and should be

disregarded by the Court. Courts have held that “unsworn declarations, subscribed

by the declarant as true under penalty of perjury” may be used to satisfy the agency’s

obligation to show that it conducted an adequate search. Carney v. U.S. Dep't of Just.,

19 F.3d 807, 812 n.1 (2d Cir. 1994). 28 U.S.C. § 1746 describes the form such

declarations must take to be legally cognizable. Specifically, the declaration must

take “substantially the following form: . . . ‘I declare . . . under penalty of perjury that

the foregoing is true and correct.’” 28 U.S.C. § 1746. The disputed declarations state,

“I declare that the foregoing is true and correct to the best of my knowledge and belief

and is given under penalty of injury,” or some close variation thereof. Dkt. 56-2, Smith

Decl. ¶ 21.

Stevens takes issue with the use of the phrase “true and correct to the best of my

knowledge and belief.” She raises two objections. She suggests that using the phrase

means that declaration is invalid under 28 U.S.C. § 1746 and thus inadmissible

hearsay. But the statute only requires that the declaration take “substantially” the

prescribed form, and the instant declarations were all made under penalty of perjury.

See DSOAF at ¶ 81.

Stevens also claims that the declarations should be disregarded because they are

made on “information and belief” and thus rely on second-hand information. But the

plain meaning of the declarants’ statements is that they believe what they are saying.

They clearly are not offering unverified allegations based on “information and belief”

as a plaintiff might in a complaint. What is more, declarations in FOIA cases may

rely on information relayed to the declarant by other members of the agency. See

DiBacco v. Dep't of the Army, 926 F.3d 827, 833 (D.C. Cir. 2019). The Court need not

disregard the declarations.

II. USAGM

Scope of Search

Stevens objects to the scope of search employed by USAGM. She argues that the

Office of Professional Research and the Voice of America, divisions of USAGM, should

have also conducted searches for responsive documents. The agency’s declaration,

however, affirms that that search was reasonably calculated to find responsive

records and that the agency does not believe there are additional responsive records

that have not been produced. DSOF at ¶ 14. Stevens offers no contradictory evidence,

instead saying that USAGM should justify its more limited search. But “speculative

claims about [the] existence of other documents cannot rebut [the] presumption of

good faith afforded [to] agency affidavits.” Mace v. E.E.O.C., 197 F.3d 329, 330 (8th

Cir. 1999) (citing SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200

(D.C.Cir.1991)).2 The scope of USAGM’s search was not unreasonable.

Search Process

Stevens also objects to the search process described by USAGM, specifically that

the declaration does not list the search terms employed. It is well established that a

FOIA declaration must be “reasonably detailed” and particularly list the “search

2 Stevens attempts to distinguish SafeCard and related cases from the present situation, presumably

to suggest that the present declarations are not entitled to good faith. It is clear, however, that the

good-faith principle articulated by SafeCard and its progeny does not depend on whether the agency

conducted a “room-to-room search for the box of missing documents.” SafeCard Servs., Inc. v. S.E.C.,

926 F.2d 1197, 1201 (D.C. Cir. 1991).

terms” used. Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir.

1999); see also Reps. Comm. for Freedom of Press v. Fed. Bureau of Investigation, 877

F.3d 399, 404 (D.C. Cir. 2017) (denying summary judgement when an agency affidavit

failed to include the search terms employed). USAGM’s declaration fails to meet this

basic standard.

The government objects that USAGM has produced 1,501 pages responsive to the

request. But summary judgement turns on the search process employed, not the

number of documents produced. See Citizens for Resp. & Ethics in Washington v. U.S.

Dep't of Veterans Affs., 69 F. Supp. 3d 115, 123 (D.D.C. 2014). The Court cannot

determine whether USAGM conducted a reasonable search for documents responsive

to Stevens’s FOIA request without knowing what it looked for. Summary judgement

is denied as to USAGM.

III. HHS

Scope of Search

There are several issues with the HHS’s declaration outlining its search for

documents responsive to Stevens’s two FOIA requests. One of Stevens’s requests was

for files related to work requested of Professor Senn. DSOF at ¶ 15. The declaration

states that HHS determined there had been no contract with Senn at the relevant

time. Id. at ¶ 17. It does not, however, describe how the agency reached that

conclusion. Id. It does not list, for example, the files searched or the search terms

used. Id. The government responds that Stevens has not properly disputed whether

there was, in fact, a contract and has offered no evidence suggesting that there was.

But the Court evaluates FOIA declarations based on the process described, not on the

contested existence of responsive documents. See Citizens for Resp. & Ethics in

Washington, 69 F. Supp. 3d at 123. Without a more detailed account of the agency’s

search, the Court cannot grant summary judgement.

The same reasoning applies to at least two other elements of HHS’s declaration.

The declaration states that HHS determined that it did not receive any invoices or

similar records from Southwest Key. DSOF at ¶ 20. But again, the Court cannot tell

how this conclusion was arrived at. If it was the result of a search, more detail must

be provided. If it was inferred from an agency policy, it should be articulated.

Although the Court assumes good faith in an agency declaration, it still must be

“reasonably detailed” as to the process of the search conducted. Valencia–Lucena v.

U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). Similarly, the assertion that

the agency used “terms relating to age assessment” when searching for emails on the

subject is insufficiently detailed. Courts have consistently held that a declaration

should list the search terms used. Id. A general reference to the type of term employed

is not an adequate substitute. Summary judgement is denied as to HHS.

Stevens also raises several other, less persuasive, objections. Stevens asserts that

HHS only searched for a contract with Senn and not related documents like proposals

or bids. The declaration makes clear, however, that HHS did in fact search for such

related communication. DSOF at ¶ 18. Stevens also says that the search for

communication with Senn was insufficient because it searched specifically for his

email address and did not include searches for communication with his potential

“representatives.” Stevens argues that the agency should have searched for any email

with the same domain as Senn. Searching for communication with Senn’s email,

however, is a reasonable way for the agency to identify any representatives also

included in the conversation. If any had been identified, HHS would have then been

required to search for their correspondence as well. Searching for the domain would

have returned all emails from people from the same academic institution, whether or

not they worked with Senn. Given that HHS’s search was reasonable, the Court will

not require the agency to pursue other “speculative” approaches. Mace v. E.E.O.C.,

197 F.3d 329, 330 (8th Cir. 1999).

Finally, Stevens says that HHS did not search for materials related to age

assessments provided by Southwest Key. But this is not the case. HHS produced its

cooperative agreement with Southwest Key and related financial reports. DSOF at ¶

20.

IV. USCIS

Scope of Search

Stevens objects to the scope of search described in USCIS’s declaration. According

to the declaration, for the two requests filed the search was performed by the

Verification Office and the Office of Contracting respectively because they were the

places “most reasonably likely” to have responsive documents. DSOF at ¶¶ 27, 31. As

Stevens correctly points out, “‘most likely’ is not the relevant metric” DiBacco v. U.S.

Army, 795 F.3d 178, 190 (D.C. Cir. 2015). The agency must search all locations

reasonably likely to produce responsive results, not just the one most likely. Id.

However, simply using the phrase “most likely” is not enough to render a

declaration inadequate. Although “most likely” may imply that there are other

“likely” locations left unsearched, it does not necessarily make it so. In DiBiacco v.

U.S. Army, the D.C. Circuit ruled for the Army on summary judgement, even though

it described searching the location “most likely” to have responsive records, because

it subsequently clarified that “the only place containing records responsive” was the

one searched and the Army “knew of no other locations that might contain responsive

records.” Id.

In the instant case, USCIS’s original declaration makes clear that “all files

reasonably likely to contain responsive material were searched, and USCIS has no

reason to believe that additional responsive records exist that are within its custody

and control.” DSOF at ¶¶ 28, 32. As in DiBiacco, this is sufficient to clarify the

ambiguity introduced by the declarant’s inelegant drafting.

Search Process

Stevens also objects to the search process employed by USCIS to fulfill the two

requests. Specifically, she believes that the agency should have used broader search

terms than “Northwestern University” for the first request and the relevant contract

number for the second. Stevens argues that the first search should have included

common abbreviations for Northwestern such as “NWU” and “NU.” In Bagwell v. U.S.

Department of Justice, the D.C. District Court reviewed the adequacy of a search for

documents related to Pennsylvania State University. Bagwell v. U.S. Dep't of Just.,

311 F. Supp. 3d 223 (D.D.C. 2018). The court held that only searching for the school’s

full title was insufficient “[b]ecause it is likely that emails concerning the

investigation would use ‘PSU or ‘Penn State’ rather than the full name,” and so “the

Department's search was not reasonably calculated to find all responsive emails.” Id.

at 230.

Although perhaps not quite as common as Penn State, NU and NWU are common

abbreviations for Northwestern. In fact, the government’s own declarations include

quotes of agency emails referring to “NWU.” See Dkt. 56-5, Colbow Decl. ¶ 17. As in

Bagwell, the government has been “unable to provide a sufficient explanation for why

the Department used the full name of the University alone as a search term.”

Bagwell, 311 F. Supp. 3d at 230. That other terms were also used does not obviate

the likelihood that responsive documents were missed due to the overly-narrow name.

The search thus does not appear “reasonably calculated” to return all responsive

records. There may be a good structural reason why only “Northwestern University”

was used as a search term, but the declaration and government briefing do not

provide it, and the Court will not speculate. Summary judgement is denied as to

USCIS.

As noted, Stevens also objects to the use of the contract’s contract number to find

relevant documents. In this case, however, she does not suggest obvious alternatives

and the declaration makes clear that the approach was calculated to uncover all

responsive files. DSOF at ¶ 32. This search was reasonable.

V. USGS

Search Process

Stevens only raises one issue with USGS’s search. She claims that USGS’s

declaration fails to list the terms used by the agency to conduct its search. However,

the declaration makes clear that the agency searched for records related to the

contract Stevens identified in the contract’s digital file, and that information on

related contracts was gathered by searching for their identifying numbers in the

agency’s electronic filing system. DSOF at ¶¶ 37, 39. The search process outlined by

the declaration is reasonable. Summary judgement is granted as to USGS on the

issue of adequacy of search.

VI. USAID

Scope of Search

Stevens raises several objections to the scope of USAID’s search, but none are

persuasive. First, she complains that the declaration does not describe any search

taking place before she initiated this litigation. However, it is the thoroughness of a

search, not its timeliness, that determines whether it was reasonable under FOIA.

See Navigators Ins. Co. v. Dep't of Just., 155 F. Supp. 3d 157, 169 (D. Conn. 2016); see

also DiBacco v. U.S. Army, 795 F.3d 178, 190 (D.C. Cir. 2015) (upholding summary

judgement for the government even though it only produced documents after

litigation began). Next, she objects to USAID’s apparent failure to search several

locations, like the Office of the Assistant Administrator, she had requested be

searched. The government has subsequently made clear that those locations are sub-

offices that exist within the bureaus and missions that they were searched. DSOAF

at ¶ 83. As a result, the sub-offices were included in the searches conducted. Id. at ¶

84.

Stevens also notes that the declaration does not describe what systems the

Mission in the West Bank and Gaza searched. The government has subsequently

clarified that every staff member searched their emails, desktop, documents folder,

local drive, and share drive, a reasonable scope. DSOAF at ¶ 85. Stevens also states

that the declaration did not demonstrate that the Information and Assurance

Division, the Bureau of Asia, and the Mission in Pakistan searched the locations

reasonably likely to find responsive documents. But the declaration describes the

locations searched by each of these divisions in reasonable detail, and it is entitled to

good faith. See DSOF at ¶¶ 50, 54; DSOAF at ¶ 86. The scope of search outlined by

the USAID’s declaration is reasonable.

Search Process

There are two potential issues with the search process employed by USAID, both

related to the Evanston, Illinois research university. First, Stevens objects to the

exclusion by the Mission in the West Bank and Gaza of certain emails from or to

alumni of the school and logistical exchanges with faculty visiting the region. This

decision appears to have been reasonable, however, because such exchanges were

captured by the search of all USAID email accounts performed by the Information

and Assurance Division. Dkt. 56-5, Colbow Decl. ¶ 20. Second, the missions and

bureaus involved reportedly searched their files using the search term

“Northwestern.” DSOF at ¶¶ 48, 51, 54-55; DSOAF at ¶ 86. For the same reasons as

discussed with USCIS, this search is insufficient as it omits other common terms for

the school like NWU. Summary judgement is denied as to USAID.

VII. ICE

Scope of Search

Stevens raises three issues with the scope of ICE’s search. First, she hints that

she believes some other portions of the agency, like Homeland Security

Investigations, should have conducted searches for responsive documents. But, again,

“speculative claims about [the] existence of other documents cannot rebut [the]

presumption of good faith afforded [to] agency affidavits.” Mace v. E.E.O.C., 197 F.3d

329, 330 (8th Cir. 1999) (citing SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200

(D.C.Cir.1991).)

She also highlights the use of the phrase “most likely . . . to contain responsive

documents” when describing the files searched. Dkt. 56-6, Fuentes Decl. ¶ 15. As

discussed above, simply searching the places most likely to yield responsive

documents is not enough. But that phrase appears in a portion of the declaration

describing the general guidance that ICE’s FOIA Office provides to program offices

tasked with FOIA requests.

In contrast, the practice of ERO, one of the offices that performed searches, is to

direct “specific employees or offices to conduct searches of their file systems (including

both paper files and electronic files) which in their judgment, based upon their

knowledge of the manner in which they routinely keep records, would be reasonably

likely to have responsive records, if any.” Id. at ¶ 20. This approach is consistent with

FOIA’s requirements. One passing use of the word “most,” not connected to any

search actually conducted, cannot overcome the good faith afforded the declaration.

Finally, Stevens objects to ERO’s transfer of her FOIA request for documents on

the PLAnet system to the legal department, which manages the system. She wants

ERO to also search for documents related to citizenship claims. For support, she

points to a recent case in this district, in which she was the plaintiff, where the legal

department’s search for documents related to citizenship claims was insufficient and

ERO was also required to conduct a search. Stevens v. U.S. Immigr. & Customs Enf't,

432 F. Supp. 3d 752, 762 (N.D. Ill. 2020). Contrary to her assertions, however, that

case does not deal specifically with the PLAnet system—it does not even mention it.

Id.

In that case, Stevens had requested “all correspondence on the detention or

removal proceedings for people claiming or proving U.S. citizenship.” Id. at 759.

Based on this broad request, the court ordered ERO to produce responsive records.

Id. at 763. Her request in the present case is narrower—she seeks “all documents

uploaded to the PLAnet case management system since January 1, 2016 regarding

persons claiming or proving U.S. citizenship.” DSOF at ¶ 58. Therefore, whether or

not ERO has documents related to citizenship claims beyond those on the PLAnet

system is irrelevant. Such documents are beyond the scope of her request. ICE’s legal

office searched the PLAnet system and produced responsive documents. Id. at ¶ 60.

Having ERO conducted the same search of the same system, if possible, would be an

unreasonable waste of agency resources. The scope of the search conducted by ICE

was reasonable.

Search Process

Stevens raises the same objection to ICE’s search process as she did with USAGM

and USGS—the declaration does not list search terms used. But as with USGS, this

is not actually the case. The agency produced a spreadsheet of U.S. citizenship claims

in PLAnet and listed the search terms employed to find other responsive documents.

DSOF at 60; 67-68; 74; 78. Summary judgment is granted as to ICE on the issue

of adequacy of search.

CONCLUSION

For the stated reasons, the government’s Motion for Summary Judgment [54] is

granted as to USGS and ICE on the issue of adequacy of search. As to USAGM and

HHS, summary judgement is denied due to insufficient detail in their declarations

describing their search process. Summary judgement is also denied as to USCIS and

USAID because their searches related to Northwestern University were inadequate.

ENTER:

Dated: March 30, 2021 Marg [Vi bo L/

“MARYM.ROWLAND

United States District Judge

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