# Stevens v. Broadcasting Board of Governors

> District Court, N.D. Illinois · March 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10144509

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** March 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10144509

## Opinion text

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

25

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10144509. Public record. Not legal advice.