Rubman v. United States Citizenship & Immigration Services , 800 F.3d 381 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3733
DAVID RUBMAN,
Plaintiff-Appellant,
v.
UNITED STATES CITIZENSHIP &
IMMIGRATION SERVICES and
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 5129 — Charles P. Kocoras, Judge.
____________________
ARGUED APRIL 23, 2015 — DECIDED AUGUST 31, 2015
____________________
Before BAUER and SYKES, Circuit Judges, and REAGAN,
Chief District Judge. *
* Of the Southern District of Illinois, sitting by designation.
2 No. 14-3733
SYKES, Circuit Judge. H-1B visas allow U.S. companies to
hire noncitizen workers with specialized skills. The United
States Citizenship and Immigration Services (“CIS”), an
agency within the Department of Homeland Security
(“DHS”), is responsible for their issuance. David Rubman
sent CIS a request under the Freedom of Information Act
(“FOIA”) seeking “copies of all documents reflecting statis-
tics … about H-1B visa applications” from the last four
years. CIS responded with a single document: a data table
that the agency had created to respond to his request.
Rubman doubted the table’s accuracy and insisted that CIS
provide the documents he originally asked for: “‘ALL doc-
uments reflecting statistics’” about H-1B visa applications,
including internal statistical reports and e-mails. CIS re-
fused, insisting that additional records would not be helpful
and would “only create additional confusion.” Rubman
sued, challenging the adequacy of the search that CIS per-
formed in response to his FOIA request. The district court
granted summary judgment in favor of the agency.
We reverse. An adequate search is one that was both per-
formed in good faith and reasonably designed to uncover
the requested records. CIS failed to conduct an adequate
search as required by law when it unilaterally narrowed
Rubman’s request for “all documents” to a single, newly
generated statistical table.
I. Background
A. The H-1B Visa Program
The H-1B visa is a temporary, nonimmigrant visa for
workers in “specialty occupations,” defined as those that
No. 14-3733 3
typically require at least a bachelor’s degree in a specific
field of study. See 8 U.S.C. § 1184(i). Visa holders are able to
work in the U.S. for three years (extendable to six), after
which they must apply for a different visa or return to their
home country (there’s no path to citizenship). By statute the
number of H-1B visas that can be issued per fiscal year is
capped at 65,000. See id. § 1184(g)(1)(A)(vii). An additional
20,000 H-1B visas are available for workers with postgradu-
ate degrees from American universities, and visas awarded
to governmental, nonprofit, and educational research enti-
ties are not counted toward either limit. See id.
§ 1184(g)(5)(A)–(C). Visa petitions are submitted by U.S.
employers on behalf of the noncitizen workers they want to
hire, and the employers must demonstrate that the visa
recipients will enjoy the same working conditions and wages
as comparable domestic employees. See id. § 1182(n)(1)(A).
The H-1B visa program is controversial, and recent pro-
posals to raise the cap have been hotly contested. See, e.g.,
Tim Henderson, States, Cities Call for Skilled Foreign Workers
Amid Abuse Claims, THE PEW CHARITABLE TRUSTS: STATELINE
(June 8, 2015), http://www.pewtrusts.org/en/research-and-
analysis/blogs/stateline/2015/6/08/states-cities-call-for-
skilled-foreign-workers-amid-abuse-claims.
The process by which CIS administers the H-1B visa pro-
gram is outlined in 8 C.F.R. § 214.2(h)(8)(ii)(B). In short, the
agency projects how many petitions it must process to issue
a full complement of visas, taking into account historical
rates of denials, withdrawals, and revocations. Employers
submit petitions starting on April 1 of each year, and the
filing period is closed once CIS receives its target number
(which often takes just a few days). If the agency receives
more petitions than it projects it will need, a lottery is con-
4 No. 14-3733
ducted; selected petitions are issued a receipt number while
the others are rejected and returned, along with their filing
fees. The receipted petitions are then processed and visas
awarded. Recipients can start work on October 1.
B. Rubman’s FOIA Request
David Rubman is a retired immigration attorney and for-
mer adjunct law professor at Northwestern University. On
May 10, 2012, he submitted a FOIA request to CIS for the
following:
[C]opies of all documents reflecting statistics
(specified below) about H-1B visa applications
that were assigned a receipt number for [fiscal
years 2009, 2010, 2011, and 2012].
The requested statistics for each of the re-
quested years are:
(a) Number of H-1B visa applications for
cap-subject initial employment;
(b) Number of approved H-1B visa applica-
tions … ;
(c) Number of denied H-1B visa applica-
tions … ;
(d) Number of withdrawn H-1B visa appli-
cations … .
….
I am seeking documents which will show
whether [CIS] is complying with the statutory
mandate … to issue no more than 65,000 cap-
No. 14-3733 5
subject H-1B visas in each of the listed fiscal
years.
Rubman closed his FOIA request by saying, “If you have any
question about what documents I am seeking, please contact
me so that we can both be on the same page about what I am
asking for.”
CIS replied by letter on September 17. The agency stated,
“We have completed our search for records that are respon-
sive to your request. The record consists of 4 pages of mate-
rial and we have determined to release it in full.” In sub-
stance, the agency’s response consisted of a single statistical
table purporting to show the data Rubman had requested.
Beneath the table was a list of indecipherable database query
“parameters” used to create the table. Also listed was the
date the statistical table was generated: August 14, 2012,
about three months after Rubman’s FOIA request.
On October 1 Rubman wrote CIS, pointing out that the
agency’s table did not classify receipts by fiscal year as he’d
requested; if it had, the total number of receipted petitions
per year would equal the sum of the approvals, denials, and
withdrawals for that year (i.e., every receipted petition
would be accounted for). CIS responded by e-mail on
October 12. The agency “sincerely apologize[d] for any
inconvenience our original response may have caused” and
attached a revised table.
Rubman wrote to CIS once more on October 22. He con-
tended that the new table was “clearly inaccurate” and “can-
not be reconciled” with either the first table CIS had pro-
vided or other publicly available data. For example, Rubman
pointed out that the first table showed three-and-a-half times
6 No. 14-3733
as many denials as the second table. After explaining the
apparent incongruities, Rubman concluded (and we quote
him without alteration):
In light of this serious discrepancy, I must
insist that you provide me the documents I
originally asked for: “ALL documents reflect-
ing statistics … about H-1B visas that were as-
signed a receipt number for (2009, 2010, 2011
and 2012].” (emphasis added). I am sure there
are, inter alia, weekly and monthly statistical re-
ports as well as emails discussing the calcula-
tion of when the cap is reached.
Jill Eggleston, CIS’s Director of FOIA Operations, re-
sponded on November 14 stating that the second table was
“complete and accurate.” She explained that CIS created the
table because it had interpreted Rubman’s initial request as
one for statistics. Regarding his request for additional doc-
uments, Eggleston noted that “counting the cap is a very
complex process.” She continued:
Internal emails discussing the calculation of
when the cap will be reached would not pro-
vide you with an accurate calculation of H-1B
cap filings for fiscal years 2009 to 2012, as they
represent ongoing calculations and monitoring
of cap filings until the cap closed each fiscal
year. Additionally, they would not alter the
outcome of the results that were provided to
you on October 12, 2012, but rather only create
additional confusion.
No. 14-3733 7
Eggleston closed by reviewing in detail the alleged statistical
discrepancies. In short, CIS’s position was that the “reports
contain information based on different data points about
different subsets of H-1B petitions,” and “[a]s a result, the
data cannot be compared.”
Rubman filed an administrative appeal with CIS, which
was denied because the agency considers a request that has
been “granted in full” unappealable. As permitted by FOIA,
Rubman then filed this suit in federal court. 1
Settlement negotiations were tried and failed, and the
case was submitted to the court on cross-motions for sum-
mary judgment. The judge observed that “the facts of the
case at bar are unique in that the produced records mainly
consisted of a Table that allegedly conveyed the information
requested, as opposed to a disclosure of purely internal
documents, which is more common in FOIA cases.” The
judge went on to hold, however, that Rubman’s initial FOIA
request was “non-specific and unwieldy” and therefore CIS’s
interpretation of the request as one for statistics was reason-
able. The judge also concluded that Rubman’s October 22
letter, which specifically requested internal reports and
e-mails, was an impermissible “modification” of his original
FOIA request to which CIS was not obliged to respond. The
judge accordingly entered judgment for CIS, and Rubman
appealed.
1 A district court’s jurisdiction over a FOIA suit arises under 5 U.S.C.
§ 552(a)(4)(B), which requires the court to “determine the matter de
novo” (i.e., without deference to the agency’s disclosure decision) and
puts “the burden … on the agency to sustain its action.” If the court finds
that the agency has unlawfully withheld records, it can enjoin the agency
from withholding them and order their production. See id.
8 No. 14-3733
II. Discussion
A. “Inadequate Search” FOIA Claims
“The basic purpose of FOIA is to ensure an informed citi-
zenry, vital to the functioning of a democratic society, need-
ed to check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214, 242 (1978). Toward that end, FOIA provides
that agencies “shall make … records promptly available to
any person” who submits a request that “(i) reasonably
describes such records and (ii) is made in accordance with
[the agency’s] published rules.” 5 U.S.C. § 552(a)(3)(A). The
Act is “broadly conceived,” and its “basic policy” is in favor
of disclosure. Robbins Tire, 437 U.S. at 220. Agencies are,
however, permitted to withhold records under nine statuto-
ry exemptions and three special exclusions for law-
enforcement records. See 5 U.S.C. § 552(b)–(c).
The withholding of records pursuant to a statutory ex-
emption is a frequent source of litigation. But Rubman
brings a different kind of FOIA suit: He challenges the
adequacy of CIS’s records search. To prevail on summary
judgment in this type of FOIA claim, the agency must show
that there is no genuine issue of material fact about the
adequacy of its records search. See Becker v. IRS, 34 F.3d 398,
405 (7th Cir. 1994); Steinberg v. DOJ, 23 F.3d 548, 551 (D.C.
Cir. 1994). To demonstrate that its search was adequate, “the
agency must show that it made a good faith effort to conduct
a search for the requested records, using methods which can
be reasonably expected to produce the information request-
ed.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990). In other words, the search must have been a good-
faith effort and reasonable in light of the request. Good faith
No. 14-3733 9
is presumed, see SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1200 (D.C. Cir. 1991), and it can be bolstered by evidence of
the agency’s efforts to satisfy the request. Reasonableness is a
flexible and context-dependent standard. See Davis v. DOJ,
460 F.3d 92, 103 (D.C. Cir. 2006) (“[T]he adequacy of an
agency’s search is measured by a standard of reasonableness,
and is dependent upon the circumstances of the case.”)
(internal quotation marks omitted).
Evidence that a search was reasonable and conducted in
good faith generally comes in the form of “reasonably
detailed nonconclusory affidavits submitted in good faith.”
Matter of Wade, 969 F.2d 241, 249 n.11 (7th Cir. 1992). The
affidavit requirement is important because
[a] reasonably detailed affidavit, setting forth
the search terms and the type of search per-
formed, and averring that all files likely to con-
tain responsive materials (if such records exist)
were searched, is necessary to afford a FOIA
requester an opportunity to challenge the ade-
quacy of the search and to allow the district
court to determine if the search was adequate
in order to grant summary judgment.
Oglesby, 920 F.2d at 68.
In response to an agency affidavit, the FOIA requester
can present “‘countervailing evidence’ as to the adequacy of
the agency’s search.” Iturralde v. Comptroller of Currency,
315 F.3d 311, 314 (D.C. Cir. 2003). Once both parties have
made their case, “if a review of the record raises substantial
doubt [about the adequacy of the search], particularly in
view of well defined requests and positive indications of
10 No. 14-3733
overlooked materials, summary judgment [in favor of the
agency] is inappropriate.” Id. (internal quotation marks
omitted). If the court finds the agency’s search inadequate,
“the requester must show ‘some reason to think that the
document would have turned up if the agency had looked
for it,’” though since neither the requester nor the court
know the content of the agency’s records, this is a low bar.
Patterson v. IRS, 56 F.3d 832, 841 (7th Cir. 1995) (quoting
Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). Im-
portantly, the question at summary judgment is not whether
the agency might have additional, unidentified responsive
documents in its possession. See Wade, 969 F.2d at 249 n.11.
Rather the court need only determine whether the search
itself was performed reasonably and in good faith.
Rubman believes CIS’s records search was inadequate
because the agency never looked for the type of records he
requested: He wanted a search of CIS’s preexisting “docu-
ments reflecting statistics,” while CIS interpreted his request
as one for newly generated summary statistics. The district
court held that CIS’s interpretation of his FOIA request, and
the resulting search, were reasonable. We turn now to the
degree of deference we should give that conclusion.
B. Standard of Review
Summary-judgment decisions are normally reviewed de
novo. CIS argues that a more deferential standard would be
appropriate, and it suggests that we borrow the two-tiered
analysis used in FOIA exemption cases. But because appel-
late review of exemption cases implicates a unique set of
No. 14-3733 11
concerns that do not exist in an adequacy-of-the-search case,
we conclude that de novo review is appropriate.
When summary judgment is granted to an agency that
has withheld documents under one of FOIA’s statutory
exemptions, “the threshold inquiry in our review is to
examine de novo the [agency’s] declarations in ‘considering
whether the [district] court had an adequate factual basis for
the decision rendered.’” Patterson, 56 F.3d at 836 (quoting
Becker, 34 F.3d at 402) (second alteration in original). Wheth-
er the factual basis for a court’s decision was adequate
depends on factors such as the specificity of the agency’s
affidavit and the court’s use of tools like in camera review
and so-called Vaughn indexes. See, e.g., id.; Solar Sources,
Inc. v. United States, 142 F.3d 1033, 1038 (7th Cir. 1998). If the
factual basis was sufficient for the court to decide if the
exemption applies, we review the court’s conclusion only for
clear error. See Appleton Papers, Inc. v. EPA, 702 F.3d 1018,
1022 (7th Cir. 2012); Enviro Tech Int’l, Inc. v. EPA, 371 F.3d 370,
373 (7th Cir. 2004). 2
We’ve explained that “the clearly erroneous standard [is]
appropriate in light of the unique circumstances presented
in FOIA exemption cases.” Solar Sources, 142 F.3d at 1039 n.5.
The use of a deferential standard of review in exemption
cases has been justified because
[t]he issue whether a document is exempt
will often involve interpretation of the docu-
2 There is no consensus among the circuits about the appropriate
standard of review for FOIA exemption cases. See U.S. Dep’t of Justice,
GUIDE TO THE FOIA, Litigation Considerations, 130–33 (2013),
http://www.justice.gov/oip/doj-guide-freedom-information-act-0.
12 No. 14-3733
ment vis-à-vis the standards for exemption and
in the light of the background of the matter.
The opportunity of the requesting party to ar-
gue that issue is limited by the fact that he or
she does not know the contents of the docu-
ment withheld or its redacted portion … and
he or she may not be familiar with some of the
background facts. As a result, the real respon-
sibility for appraisal of the issue is with the dis-
trict court, and review by the appellate court is
correspondingly limited.
Becker, 34 F.3d at 402 n.11. Concern for the conservation of
judicial resources also looms large in exemption cases. Dis-
trict courts sometimes face “the monumental task of review-
ing the denial of … FOIA request[s] comprising millions of
pages of documents.” Solar Sources, 142 F.3d at 1038. And so
while we closely scrutinize whether a court had adequate
information from which to determine if an exemption ap-
plies, we don’t redo the entire review ourselves with the goal
of reaching an independent (de novo) conclusion. See Vaughn
v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973) (“The scope of
inquiry [in FOIA exemption cases] will not have been fo-
cused by the adverse parties and, if justice is to be done, the
examination must be relatively comprehensive. Obviously
an appellate court is even less suited to making this inquiry
than is a trial court.”).
The same considerations are not present in FOIA suits
challenging the adequacy of an agency’s records search.
These disputes turn on the good faith and reasonableness of
the search. The inquiry requires an interpretation of the
agency’s duties (under FOIA and related regulations) and
No. 14-3733 13
the record (including the FOIA request, subsequent corre-
spondence between the agency and the requester, and
affidavits). This kind of inquiry is manageable in scale,
amenable to the adversarial process, and routinely subject to
de novo appellate review. We conclude that summary judg-
ment in a FOIA case challenging the adequacy of a search
should be reviewed under the traditional de novo standard.3
C. The Adequacy of CIS’s Search
1. The Response to Rubman’s FOIA Request
Rubman has not alleged bad faith by CIS. The agency
proved responsive throughout the process, especially in its
quick creation of the second data table. See Meeropol v. Meese,
790 F.2d 942, 953 (D.C. Cir. 1986) (“[A]dditional releases
suggest a stronger, rather than a weaker, basis for accepting
the integrity of the search … .”) (internal quotation marks
omitted). We therefore focus on the reasonableness of the
search.
The type and scope of CIS’s search was determined by its
interpretation of Rubman’s FOIA request as one for statistics.
In general, “an agency … has a duty to construe a FOIA
request liberally.” Nation Magazine v. U.S. Customs Serv.,
71 F.3d 885, 890 (D.C. Cir. 1995). Furthermore, DHS regula-
tions require its subsidiary agencies to clarify ambiguous
FOIA requests:
3 We note that the D.C. Circuit now reviews all summary-judgment
decisions in FOIA cases de novo. See, e.g., Petroleum Info. Corp. v. Dep’t of
Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992).
14 No. 14-3733
If a component determines that your request
does not reasonably describe records, it shall
tell you either what additional information is
needed or why your request is otherwise insuf-
ficient. The component also shall give you an
opportunity to discuss your request so that you
may modify it to meet the requirements of this
section.
6 C.F.R. § 5.3(b). CIS did not consult Rubman because it
found his request to be, unambiguously, a request for sum-
mary statistics.
FOIA states that “an agency shall provide [a] record in
any form or format requested by the person if the record is
readily reproducible by the agency in that form or format.”4
§ 552(a)(3)(B); see also 6 C.F.R. § 5.11(b)(3) (“Components
shall honor a requester’s specified preference of form or
format of disclosure … .”); DeLorme Pub. Co. v. Nat’l Oceanic
& Atmospheric Admin., 907 F. Supp. 10, 12 (D. Me. 1995) (“An
agency’s duty is to disclose records, and records are format-
ted information. … Nothing in the FOIA excuses an agency
from disclosing a particular record because it has disclosed
the content elsewhere in a different format.”). This means
that agencies must be attentive not only to the content of the
records sought by a FOIA request but also to their form. In
4 This provision was added to FOIA in 1996 as part of the Electronic
Freedom of Information Act Amendments of 1996, Pub. L. 104-231,
110 Stat. 3048, 3049 (codified as amended at 5 U.S.C. § 552(f)(2)). While it
certainly indicates that a requester is entitled to electronic copies of
documents if they’re “readily reproducible,” see Sample v. Bureau of
Prisons, 466 F.3d 1086, 1088 (D.C. Cir. 2006), the language of “form or
format” clearly cuts more broadly than electronic documents alone.
No. 14-3733 15
this case, unfortunately, CIS fixated on the former to the
exclusion of the latter.
Rubman’s initial request did not define the term “docu-
ment,” but that’s hardly unusual. FOIA requesters often have
no way to know exactly what type of records an agency has
in its possession. But that doesn’t mean Rubman’s use of the
word “document” could simply be ignored. A document
may convey statistics, but it is not itself a statistic. Rubman’s
FOIA request itself drew attention to this distinction when it
asked for “documents reflecting statistics” and “documents
that show the requested data.” (Emphases added.) See also
Forsham v. Harris, 445 U.S. 169, 185 (1980) (“The Freedom of
Information Act deals with ‘agency records,’ not information
in the abstract.”).
Furthermore, while the statistics that CIS assembled for
Rubman were ultimately relayed to him in document form
(first a four-page printout, then an e-mail attachment), we
think that a FOIA request for “documents” is reasonably
understood (at least presumptively) as one for preexisting
internal agency records. “Records” for FOIA purposes are
those that “the law requires the agency to prepare or which
the agency has decided for its own reasons to create,” NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 162 (1975), and that
“have come into the agency’s possession in the legitimate
conduct of its official duties,” DOJ v. Tax Analysts, 492 U.S.
136, 145 (1989). The data table that CIS created in response to
Rubman’s request was not produced or used in the course of
CIS’s administration of the H-1B program. 5
5Additionally, “[t]he Act does not obligate agencies to create … docu-
ments.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136,
16 No. 14-3733
The idea that a FOIA request for “documents” refers
(again, at least presumptively) to preexisting internal records
is not only most consistent with the broad scope of the
records that are subject to FOIA, it’s also most in line with
FOIA’s purpose of showing requesters “what their government
is up to.” DOJ v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 773 (1989). A preexisting internal document
enjoys marks of authenticity and accuracy that are absent
from one generated by a FOIA officer. Genuine agency
records also foster transparency by revealing—even if indi-
rectly—something about the way the agency operates. The
context-free data table of indeterminate origin released to
Rubman furthered none of these policy goals.
CIS also failed to give due weight to Rubman’s request
for “documents”—plural—and more specifically for “all
documents” about H-1B visa receipts. Even if the term
“documents” were ambiguous, Rubman’s request plainly
envisioned something more than a single data table. In
LaCedra v. Executive Office for United States Attorneys, the D.C.
Circuit held that a FOIA request that opened by asking for
“all documents” on a particular subject but later said it was
“specifically” seeking records on two narrower topics should
have been liberally construed as one for all documents.
317 F.3d 345, 347–48 (D.C. Cir. 2003). Rubman’s case is much
easier—his request never implied that he wanted anything
152 (1980). So FOIA would not have empowered Rubman to insist that
CIS fulfill a request for a newly generated statistical table. This reinforces
our conclusion that Rubman’s request for “documents” is best under-
stood as one for preexisting internal documents rather than newly
generated statistics.
No. 14-3733 17
less than “all documents” reflecting statistics on the H-1B
visa cap.
It’s possible that Rubman’s request was too “non-specific
and unwieldy” to permit an effective search, as the district
judge thought, though we note that CIS has never specifical-
ly lodged that objection, and the search was restricted to a
four-year period. But if so, that’s the exact situation ad-
dressed by 6 C.F.R. § 5.3(b): If Rubman’s request did not
“reasonably describe records,” CIS was required to “give
[him] an opportunity to discuss [his] request” and clarify it. 6
We have no doubt that CIS believed in good faith that it
was being helpful and efficient by generating a summary
data table in response to Rubman’s FOIA request. We cer-
tainly don’t want to discourage agencies from providing raw
data, database query results, or newly generated charts and
tables when a FOIA request asks for them, when there are no
other responsive records available, or when a requester
consents to one of those formats. But when Rubman asked
for “all documents reflecting statistics” and then objected to
CIS’s decision to respond with a newly generated summary
table, the agency was required to search for records in the
form specified in the initial request.
6 If the scope of the search was the problem, CIS was also probably
required to consult with Rubman under 6 C.F.R. § 5.11(e), which says
that if an agency projects that a search will cost more than $25 (re-
questers are generally billed for the cost of the search), then it must both
receive the requester’s permission before proceeding and “offer the
requester an opportunity to discuss the matter with Department person-
nel in order to reformulate the request to meet the requester’s needs at a
lower cost.”
18 No. 14-3733
2. The Response to Rubman’s October 22 Letter
After initially misinterpreting Rubman’s FOIA request,
CIS’s subsequent actions failed to cure—and in fact exacer-
bated—the error. In his October 22 letter, Rubman unambig-
uously requested preexisting internal documents such as
“statistical reports” and “emails.” Eggleston, CIS’s Director
of FOIA Operations, responded that the disclosure of e-mails
(she didn’t address his request for reports) “would not
provide you with an accurate calculation,” “would not alter
the outcome of the results that were provided to you,” and
“rather [would] only create additional confusion.” Although
agencies are not required to provide “explanatory material”
along with the records they disclose, see Sears, Roebuck & Co.,
421 U.S. at 162, the risk of confusion is not a legitimate basis
for refusing to perform a FOIA search. 7
The district court thought that CIS was not required to
perform a new search in response to Rubman’s October 22
letter because it constituted a “modified” request. We recog-
nize the importance of finality in the FOIA search process,
and that “[r]equiring an additional search each time the
agency receives a letter that clarifies a prior request could
7 In her affidavit Eggleston insists that her statement that internal e-mails
would confuse Rubman should not be interpreted as a concession that
any responsive e-mails (or any other internal documents) exist. While we
understand that CIS has not yet performed a search of preexisting
internal documents, we are highly skeptical of CIS’s suggestion that it
might not have any such documents given its statutory and regulatory
obligations to issue H-1B visas subject to the 65,000 cap. CIS also
acknowledges that if Rubman filed a new FOIA request demanding
preexisting internal documents, it would be obligated to perform such a
search.
No. 14-3733 19
extend indefinitely the delay in processing new requests.”
Kowalcyzk v. DOJ, 73 F.3d 386, 388 (D.C. Cir. 1996). But
Rubman’s October 22 letter only requested “the documents
[he] originally asked for” and then quoted the “all docu-
ments” language from his initial FOIA request. For the
reasons discussed above, Rubman’s initial request was
properly understood to have been for preexisting internal
documents. Once he made clear that he was not satisfied
with CIS’s counteroffer of a statistical table, the agency
should have performed a search of its internal documents.
The cases cited by CIS on this point are not relevant be-
cause they all involved modified requests well outside of the
scope of the original request. See, e.g., Larson v. Dep’t of State,
565 F.3d 857, 857 (D.C. Cir. 2009) (“[Plaintiff’s] FOIA request
gave no indication that she sought DOS documents regard-
ing the agency’s previous responses to her 1995 FOIA re-
quest.”); Kowalcyzk, 73 F.3d at 389 (holding that a FOIA re-
quest sent to FBI headquarters and that made no reference to
New York did not obligate the FBI to search records held in
its New York field office). Agencies are entitled to make
requesters refile (and go to the end of the queue) when they
want to alter the parameters of their initial search request.
But that’s not what happened here, and neither CIS nor
Rubman treated his October 22 letter as a modified request.
Finally, CIS argues that Rubman waived his objection to
the data table when he failed to demand preexisting internal
documents in his October 1 letter; instead he asked CIS to
provide a “corrected response” that properly classified the
visa receipts by year. We don’t see it that way. “A waiver is
ordinarily an intentional relinquishment or abandonment of
a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458,
20 No. 14-3733
464 (1938). Rubman’s willingness to entertain the possibility
that an (accurate) data table could meet his needs did not
mean that he intentionally relinquished his right to have his
original request answered, particularly given that he never
expressly disclaimed his desire for documents. A strict
waiver rule would be inappropriate in the FOIA context; the
statute is supposed to be administered with minimal proce-
dural formality and “in a spirit of cooperation, recognizing
that … agencies are servants of the public.” Memorandum
for the Heads of Executive Departments and Agencies,
74 Fed. Reg. 4683 (Jan. 21, 2009).
III. Conclusion
For these reasons, we hold that CIS failed to conduct an
adequate search in response to Rubman’s FOIA request.
Since CIS has never performed a responsive search (i.e., one
of preexisting internal documents related to CIS’s calculation
of the H-1B visa cap from fiscal years 2009 to 2012), it must
now do so. Of course, Rubman’s request remains subject to
the standard statutory and regulatory provisions related to
FOIA searches; for example, CIS is entitled to withhold any
records that fall under a statutory exemption, and it must
consult with Rubman if it considers his request overbroad.
We REVERSE the summary judgment in favor of CIS and
REMAND for additional proceedings consistent with this
opinion.