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National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


July 13, 2012

NATIONAL DAY LABORER ORGANIZING NETWORK, CENTER FOR CONSTITUTIONAL RIGHTS, AND IMMIGRATION JUSTICE CLINIC OF THE BENJAMIN N. CARDOZO SCHOOL OF LAW, PLAINTIFFS,
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT AGENCY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, FEDERAL BUREAU OF INVESTIGATION, AND OFFICE OF LEGAL COUNSEL, DEFENDANTS.

The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

OPINION AND ORDER

"Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."*fn1

I. INTRODUCTION

The parties in this litigation have starkly different viewpoints about 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."*fn2 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 they have spent thousands of hours and hundreds of thousands of dollars responding to plaintiffs' request.*fn3 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,*fn4 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.*fn5 Under the Secure Communities program, those fingerprints are also now sent to DHS to be checked against immigration records.*fn6 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.*fn7 The defendants' searches involved hundreds of employees and thousands of hours and resulted in the production of tens of thousands of responsive records.*fn8 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 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.*fn9 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.*fn10 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 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.*fn11

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 granted*fn12 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 to uncover all relevant documents."*fn13 "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."*fn14

FOIA cases are generally resolved on motions for summary judgment,*fn15 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."*fn16 "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.'"*fn17 "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."*fn18

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.*fn19

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."*fn20 In addition, plaintiffs may defeat summary judgment if they can show "some tangible evidence" that defendants have not satisfied their burden.*fn21 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.*fn22

In their affidavits, agencies must "'identify the searched files and describe at least generally the structure of the agency's file system' which renders any further search unlikely to disclose additional relevant information."*fn23 They must establish that they searched all custodians who were reasonably likely to possess responsive documents.*fn24 And they must "set[] forth the search terms and the type of search performed."*fn25

"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."*fn26 However, "[e]vidence that relevant records have not been released may shed light on whether the agency's search was indeed inadequate."*fn27

III. DISCUSSION

A. The Agencies' Selection of Custodians to Search

I begin by assessing the agencies' choices to exclude certain custodians from their searches.

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.*fn28

Homeland Security Investigations (HSI): With one exception not at issue here, this office did not search for records.*fn29 Other than the records of individual aliens and two sample worksheets that were produced, HSI "determined the office would not be likely to have any other responsive records."*fn30 However, according to documents produced by other ICE offices, at least one HSI employee was involved in opt-out discussions in September, 2010.*fn31 HSI played a role in enforcing Memoranda of Understanding between local law enforcement agencies and ICE*fn32 and, in 2011, was tasked, along with other ICE programs, with "provid[ing] an update on Secure Communities and its continued expansion."*fn33

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.*fn34 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 decision- making on the opt out issue."*fn35 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."*fn36

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."*fn37 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):

According to ICE, only two members of its OSLTC searched their records for responsive documents.*fn38 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."*fn39 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."*fn40 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 in light of Law's description."*fn41 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.*fn42

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.*fn43

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.*fn44 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.*fn45 The officer's presence at one meeting, however, is not sufficiently probative of the existence of records in the office's control so as 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.*fn46 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;*fn47 a March, 2010 correspondence between DHS and the FBI notes that Mueller would have to personally approve changes to Washington, D.C.'s participation in Secure Communities;*fn48 on July 21, 2010, Mueller met with DHS Secretary Napolitano "to discuss information sharing";*fn49 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;*fn50 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."*fn51

However, the FBI did not search the Director's files for Opt-Out or RPL documents from the pre-October 15, 2010 period.*fn52 Defendants justify this 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."*fn53 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.*fn54

Defendants do not and cannot dispute that by November 18, 2010, the Director's Office was involved in the opt-out issue.*fn55 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.*fn56 The FBI searched for records from the Director's Office from after October 15, 2010 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."*fn57

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."*fn58 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 performed and no documents were found.*fn59

The parties disagree over the scope of the search that OGC should have conducted.*fn60 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."*fn61 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)*fn62 and that, after October 15, 2010 and in part because of this lawsuit, it was involved in the opt-out question.*fn63

Because the National Security Law Branch of OGC never responded to the initial instructions from the FOIA office to conduct a search and because 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").*fn64

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 reasonably assume that the two offices possessed responsive documents.*fn65

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.*fn66 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."*fn67 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 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.*fn68 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.*fn69 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."*fn70

FOIA, however, requires that agencies conduct a search "reasonably calculated to uncover all relevant documents," not "most" relevant documents.*fn71 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 twenty-two 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.

3. DHS Secretary Napolitano: According to the declaration of its FOIA officer, DHS searched "any documents sent to or from the Secretary."*fn72 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."*fn73 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."*fn74 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 some of the Deputy GCs.*fn75 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.*fn76 As I have previously recounted at length, Martin reviewed and endorsed ICE's (and subsequently DHS's) analysis of the opt-out question.*fn77 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."*fn78 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 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.*fn79

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.*fn80 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 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.*fn81

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*fn82 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."*fn83 Plaintiffs argue that "[t]his is precisely the type of 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."*fn84 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."*fn85 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)*fn86

OLC, which assists the Attorney General in his role as legal advisor to the President, is a small office that employs "approximately twenty attorneys at any one time."*fn87 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 opinions would not have used either the term "ICE" or "secure communities."*fn88

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 the search terms that they used.*fn89 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."*fn90 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]."*fn91

ICE describes its searches with different levels of detail, depending on 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.*fn92 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.*fn93 Instead, he says only that they were provided with the recommended search terms. The same is true of one other office in ICE.*fn94

The majority of the FBI's search was conducted via a "manual" review of the records in the IIU.*fn95 The FBI FOIA office, like the ICE FOIA office, issued an internal search memorandum for circulation to custodians tasked with conducting searches.*fn96 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.*fn97

DHS, like ICE, recommended eight search terms but did not require 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."*fn98

OLC, in contrast, provided the precise terms that its employees used to search individual and shared sources.*fn99 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.*fn100

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.

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."*fn101 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."*fn102

Describing searches with this level of detail was not necessary in the 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."*fn103 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.*fn104 Similar problems permeate many 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."*fn105 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."*fn106

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 merely conclusory statements."*fn107 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."*fn108 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.*fn109

Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context.*fn110

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."*fn111 There is increasingly strong evidence that "[k]eyword search[ing] is not nearly as effective at identifying relevant information as many lawyers would like to believe."*fn112 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."*fn113

There are emerging best practices for dealing with these shortcomings and they are explained in detail elsewhere.*fn114 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 information."*fn115 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.*fn116 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 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,*fn117 sometimes unproblematic,*fn118 and sometimes improper but harmless or at least mitigated.*fn119 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 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."*fn120 There is, he points out, an "absence of any evidence of a thoughtful process in selecting and testing search terms."*fn121

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.

"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."*fn122 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."*fn123

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.*fn124 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 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.*fn125

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:*fn126

1. FBI Director, Deputy Director, Associate Deputy Director, Chief of Staff, Senior Counsel.

2. 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).*fn127

3. 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.*fn128

4. Three custodians, chosen by plaintiffs, in the Advisory Groups Management Unit (AGMU).*fn129

DHS:

1. HSAC

2. 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 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.

3. Three US-VISIT custodians who already searched their records but did not provide the court with the search terms that they used,*fn130 selected by plaintiffs.

ICE:

1. Five HSI employees, selected by plaintiffs.

2. The OSLTC Chief of Staff and the Chief Public Engagement Officer who engaged in correspondence regarding opt-out on September 21, 2010.

3. 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.

4. 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.

5. Two custodians from the ICE Office of the Executive Secretariat, chosen by plaintiffs, about whose search defendants gave no information.

6. 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.

7. 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.

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 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 parties are instructed to meet and confer and then to submit letter to the Court proposing a timeline for the effectuation of this decision. If the parties prefer, they may call Chambers to schedule a conference.

SO ORDERED.


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