Inter-Cooperative Exchange v. Usdoc ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTER-COOPERATIVE EXCHANGE, an No. 20-35171
Alaska cooperative corporation,
Plaintiff-Appellant, D.C. No.
3:18-cv-00227-
v. TMB
UNITED STATES DEPARTMENT OF
COMMERCE; NATIONAL OCEANIC OPINION
AND ATMOSPHERIC
ADMINISTRATION; NATIONAL
MARINE FISHERIES SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, Chief District Judge, Presiding
Argued and Submitted November 8, 2021
Seattle, Washington
Filed June 7, 2022
Before: Ronald M. Gould, Richard C. Tallman, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bumatay;
Dissent by Judge Tallman
2 INTER-COOPERATIVE EXCHANGE V. USDOC
SUMMARY *
Freedom of Information Act
The panel reversed the district court’s grant of summary
judgment to federal defendants in a Freedom of Information
Act (“FOIA”) action brought by Inter-Cooperative
Exchange (“ICE”), a cooperative of fishers who harvest and
deliver crab off the coast of Alaska, seeking the
government’s communications concerning the
government’s decision not to factor Alaska’s minimum
wage increase into the arbitration system that sets the price
of crab.
The North Pacific Fishery Management Council
manages fisheries off the coast of Alaska. In 2005, the
National Marine Fisheries Service (“NMFS”) implemented
a program recommended by the Council to allocate crab
resources among harvesters, processors, and coastal
communities. As part of this system, an arbitrator
established a non-binding price formula. In 2014, Alaska
increased the minimum wage, which raised the question of
whether costs should be considered under the arbitration
system. The Council reviewed the matter at a 2017 meeting
where Glen Merrill, an Assistant Regional Administrator of
NMFS and a voting member of the Council, introduced an
unsuccessful motion to include costs for consideration in the
arbitration system. Merrill subsequently exchanged emails
with John Sackton, a price-formula arbitrator for the crab
arbitration system. ICE filed its FOIA request seeking
information behind Merrill’s actions. In response, the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
INTER-COOPERATIVE EXCHANGE V. USDOC 3
government produced 146 records along with a search log
indicating it searched Merrill’s emails, network, and
desktop, but not his cellphone. The government used three
search terms – “binding arbitration,” “arbitration,” and
“crab.” Merrill submitted a declaration stating that he did
not have a government cellphone, but that he had searched
his personal cellphone using the three terms, and had found
no responsive records.
The panel held that on the facts here, the three search
terms were not reasonably calculated to uncover all
documents relevant to ICE’s request. ICE contended that the
government’s choice of search terms was unduly narrow and
not reasonably calculated to uncover all documents relevant
to its FOIA request. The panel held that the government’s
choice of search terms was overly narrow. First, the terms
completely disregarded half of ICE’s FOIA request because
they did not include search terms to cover the request for
minimum-wage records. Second, the government failed to
justify its contention that the two selected keywords –
“arbitration” and “crab” – were logical choices to target
records related to the interpretation and application of the
arbitration system standards, as ICE requested. Third, the
government should have considered common variants of its
chosen keywords. The panel concluded that the government
failed to uphold its obligation to adequately search for
records, and was not entitled to summary judgment on ICE’s
FOIA claim.
ICE also argued that it was unreasonable to allow Merrill
to personally search his cellphone by looking for or listening
for keywords. The panel held that aside from the use of
overly narrow search terms, it agreed with the district court
that the government conducted a reasonably adequate search
of Merrill’s text, social media, and voicemail records.
4 INTER-COOPERATIVE EXCHANGE V. USDOC
The panel reversed and remanded for further
proceedings consistent with this opinion.
Judge Tallman dissented. He wrote that the majority
failed to acknowledge the limited scope of this appeal. The
question presented was not the overall adequacy of the
government’s FOIA search of government record systems.
Instead, the sole issue was the validity of the government’s
search as to Glenn Merrill’s cellphone. And Merrill’s
personal cellphone – unlike the agency record systems
searched – was not likely to contain additional responsive
records. Judge Tallman wrote separately to express his
unwillingness to use this narrow case as a broader vehicle to
order an invasive search of a government employee’s
personal cellphone already searched absent any evidence
that the new search would reasonably uncover additional
relevant documents.
COUNSEL
Michelle DeLappe (argued), Fox Rothschild LLP, Seattle,
Washington, for Plaintiff-Appellant.
Casen B. Ross (argued) and Daniel Tenny, Appellate Staff;
Bryan Schroder, United States Attorney; Civil Division,
United States Department of Justice, Washington, D.C.; for
Defendants-Appellees.
Spencer Nathan Thal, Vanguard Law, Poulsbo, Washington,
for Amicus Curiae Deep Sea Fisherman’s Union of the
Pacific.
INTER-COOPERATIVE EXCHANGE V. USDOC 5
OPINION
BUMATAY, Circuit Judge:
In this case, crab fishers pull their nets from the water
and cast them for government documents. Inter-Cooperative
Exchange (“ICE”), a cooperative of fishers who harvest and
deliver crab off the coast of Alaska, relies on an arbitration
system to set the price of crab. After the government decided
not to factor Alaska’s minimum wage increase into the
arbitration system, ICE sought to find out why. It requested
the government’s communications through the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. FOIA generally
compels federal agencies to search for and disclose
government records.
In response to ICE’s request, the government used
three—really two—search terms: “binding arbitration,”
“arbitration,” and “crab.” On the facts here, these terms
were not reasonably calculated to uncover all documents
relevant to ICE’s request. We therefore hold the government
failed to uphold its obligation to adequately search for
records and reverse.
I.
Federal law established eight regional fishery
management councils to implement fishery management
plans to conserve and manage United States coastal
fisheries. 16 U.S.C. § 1801 et seq.; see also Oregon Trollers
Ass’n v. Gutierrez, 452 F.3d 1104, 1108 (9th Cir. 2006). The
councils run under the auspices of the Secretary of
Commerce, through the National Marine Fisheries Service
6 INTER-COOPERATIVE EXCHANGE V. USDOC
(“NMFS”). 1 16 U.S.C. § 1801 et seq. The North Pacific
Fishery Management Council (“Council”) is one of those
councils and manages fisheries off the coast of Alaska.
16 U.S.C. § 1852(a)(1)(G). The Council consists of voting
members from both the federal and state levels. Id.§ 1852(a)(1)(G), (b).
In 2005, NMFS implemented a program recommended
by the Council to allocate crab resources among harvesters,
processors, and coastal communities. 50 C.F.R. § 680.20.
Because the quota system displaced the traditional market
forces that determined prices, the program also established a
crab price arbitration system to guide price negotiations and
“preserve[] the historical division of revenues in the
fishery.” Id. § 680.20(g)(2)(ii)(B), (h)(4)(i)(B). As part of
this system, an arbitrator establishes a non-binding price
formula to guide negotiations between harvesters and
processors, and another arbitrator resolves price disputes.
Id. § 680.20(g), (h). ICE was formed a year later to represent
the interests of crab fishers.
For years, costs did not inform the price formula. But in
2014, Alaska increased the minimum wage, and this raised
the question of whether costs—the higher wages paid to
processor employees—should be considered under the
arbitration system. The Council prepared a discussion paper
on the matter and reviewed it at a 2017 meeting. At the
meeting, Glen Merrill, an Assistant Regional Administrator
for NMFS and a voting member on the Council, introduced
a motion to include costs for consideration in the arbitration
system. The motion failed. Afterward, John Sackton, a
1
NMFS is now a component of the National Oceanic and
Atmospheric Administration (“NOAA”). 5 U.S.C. § App. 1 Reorg. Plan
4 1970.
INTER-COOPERATIVE EXCHANGE V. USDOC 7
price-formula arbitrator for the crab arbitration system,
exchanged emails with Merrill about the effect of the
minimum wage increase. In those emails, Merrill told
Sackton that cost information could in fact be considered.
To better understand the record and the reasoning behind
Merrill’s actions, ICE filed a FOIA request with NOAA. It
requested:
1) All correspondence to or from Glenn
Merrill, Assistant Regional Administrator for
the Alaska Region of NMFS, from January 1,
2016 through the present relating to (a) the
interpretation and application of the
arbitration system standards set forth at
50 C.F.R. § 680.20(g) and/or (b) the Alaska
state minimum wage increase approved by
voters in November 2014.
For purposes of this request, the term
“correspondence” includes without
limitation all emails, text messages, social
media messages, voice mails, facsimiles and
letters, regardless of whether sent from or
received on government or personal devices
or transmitted through some other means.
....
2) All documents relating to (a) interpretation
and application of the arbitration system
standards set forth at 50 C.F.R. § 680.20(g)
and/or (b) the Alaska state minimum wage
increase approved by voters in November
2014.
8 INTER-COOPERATIVE EXCHANGE V. USDOC
For purposes of this request, the term
“documents” includes without limitation all
analyses, memoranda, minutes, motions,
notes, papers and other records, and all drafts
of the same.
Two months later, in response to the FOIA request,
NOAA produced 146 records. According to a search log
accompanying the production, NOAA searched Merrill’s
emails, network, and desktop. The search included only
three search terms: “binding arbitration,” “arbitration,” and
“crab.” The search log did not show that NOAA searched
Merrill’s cellphone. Nor did the government’s response
include any of Merrill’s text, social media, or voicemail
messages. ICE claims that a NOAA attorney also confirmed
that the government did not search Merrill’s text messages
in response to the FOIA request. Unhappy with the search,
ICE filed a FOIA administrative appeal.
After receiving no response to the appeal, ICE sued the
Department of Commerce, NOAA, and NMFS, claiming
that the FOIA search was inadequate. 2 The government
moved for summary judgment. The government’s motion
included a declaration from James Balsiger, Merrill’s
supervisor. In his declaration, Balsiger explained that
although Merrill does not use a government cellphone,
Merrill did search his personal cellphone, including his text
messages and social media accounts, using the three search
terms. Balsiger clarified that it was an “inadvertent error”
that the search log suggested that Merrill’s phone was not
searched.
2
Shortly after ICE filed its complaint, the government provided a
letter to ICE denying the administrative appeal.
INTER-COOPERATIVE EXCHANGE V. USDOC 9
Merrill also submitted a declaration. Merrill confirmed
that he had no government cellphone, and he only used a
personal cellphone. But he searched his cellphone anyway.
Merrill stated that “[ICE’s] request sought records
concerning the interpretation and application of . . . crab
arbitration standards,” and based on his understanding of the
request, Merrill and NMFS selected the three search terms.
Merrill’s declaration does not mention any search terms
covering ICE’s request for records on Alaska’s minimum
wage. Merrill then confirmed that he found no responsive
documents using the three search terms on his personal
cellphone, including on his iMessage, WhatsApp, and
Facebook accounts. Merrill also said that he listened to his
voicemails for the search terms and found no responsive
messages.
The district court granted the government’s motion for
summary judgment, finding that the government used
reasonably calculated search terms. The district court was
also satisfied that Merrill adequately searched his cellphone
and found no responsive records.
ICE now appeals. We review a district court’s grant of
summary judgment de novo. Animal Legal Def. Fund v. U.S.
Food & Drug Admin., 836 F.3d 987, 988 (9th Cir. 2016) (en
banc).
II.
We’ve previously underscored the importance of
government transparency in “maintaining a functional
democratic polity, where the people have the information
needed to check public corruption, hold government leaders
accountable, and elect leaders who will carry out their
preferred policies.” Hamdan v. U.S. Dep’t of Just., 797 F.3d
759, 769–70 (9th Cir. 2015). Through FOIA, Congress
10 INTER-COOPERATIVE EXCHANGE V. USDOC
established a “judicially enforceable right to secure
government information from possibly unwilling official
hands.” Id. at 770 (simplified). So in response to a FOIA
request, the government must show beyond material doubt
that its search was adequate. Transgender L. Ctr. v. U.S.
Immigr. & Customs Enf’t, —F.4th —, 2022 WL 1494722, at
*4 (9th Cir. 2022). An adequate search is one that is
“reasonably calculated to uncover all relevant documents.”
Hamdan, 797 F.3d at 770 (simplified).
The adequacy of the search is a core aspect of the
government’s duty under FOIA. We measure this adequacy
“by a standard of reasonableness, construing the facts in the
light most favorable to the requestor.” Citizens Comm’n on
Hum. Rts. v. Food & Drug Admin., 45 F.3d 1325, 1328 (9th
Cir. 1995). It doesn’t matter “whether there might exist any
other documents possibly responsive to the request,” as long
as the search for documents was otherwise adequate.
Hamdan, 797 F.3d at 770–71 (simplified). A search is not
inadequate just because it fails to turn up a “few isolated
documents.” Id. at 771 (simplified). But the “heavy burden”
of proving adequacy always remains with the government.
Transgender L. Ctr., 2022 WL 1494722, at *4; 5 U.S.C.
§ 552(a)(4)(B). The government may meet this burden by
providing “reasonably detailed, nonconclusory affidavits
submitted in good faith.” Hamdan, 797 F.3d at 770
(simplified).
ICE makes several arguments on appeal. First, ICE
argues that NOAA’s chosen search terms were not
reasonably calculated to uncover all responsive documents.
Second, ICE asserts that the search of NOAA Assistant
Director Merrill’s cellphone for text, social media, and
voicemail messages was inadequate. We agree with ICE that
NOAA’s search terms here were insufficient and reverse.
INTER-COOPERATIVE EXCHANGE V. USDOC 11
But on ICE’s second contention, we conclude that the search
of Merrill’s cellphone complied with NOAA’s duty under
FOIA.
A.
ICE contends that NOAA’s choice of search terms was
unduly narrow and not reasonably calculated to uncover all
documents relevant to its FOIA request. ICE sought records
related to two subjects: (a) “[crab] arbitration system
standards” and/or (b) “the Alaska state minimum wage
increase.” In response, NOAA selected three search terms:
“binding arbitration,” “arbitration,” and “crab.” But
common sense tells us that the government only really
selected two search terms since “binding arbitration” is
subsumed by “arbitration.” The question is whether the
government has shown beyond material doubt that these two
search terms were reasonably calculated to uncover all
responsive documents on the two topics requested by ICE.
If not, NOAA hasn’t lived up to its FOIA obligations.
Determining the adequacy of the government’s search
terms is critical to evaluating the government’s compliance
with FOIA. See Reps. Comm. for Freedom of Press v. FBI,
877 F.3d 399, 404 (D.C. Cir. 2017). In general, government
agencies have discretion in crafting search terms designed to
identify responsive records. Bigwood v. U.S. Dep’t of Def.,
132 F. Supp. 3d 124, 140 (D.D.C. 2015). That’s because
government agencies are ordinarily in the best position to
select terms using their “unique knowledge of the manner in
which they keep their own files and the vocabulary they
use.” Anguiano v. U.S. Immigr. & Customs Enf’t, 356 F.
Supp. 3d 917, 921 (N.D. Cal. 2018) (simplified). For this
reason, a FOIA requester “cannot dictate the search terms for
his or her FOIA request.” Bigwood, 132 F. Supp. 3d at 140.
12 INTER-COOPERATIVE EXCHANGE V. USDOC
Even so, the government’s discretion to formulate search
terms “is not boundless.” New Orleans Workers’ Ctr. for
Racial Just. v. U.S. Immigr. & Customs Enf’t, 373 F. Supp.
3d 16, 45 (D.D.C. 2019) (simplified). The choice of search
terms must be both practical and grounded in common sense.
See Rein v. U.S. Pat. & Trademark Off., 553 F.3d 353, 363
(4th Cir. 2009). Government agencies, like all
bureaucracies, often use jargon, acronyms, shorthand, and
common variants of terms. And when a FOIA request
arrives at the agency’s doorstep, it may need to keep that in
mind when devising search terms. See Government
Accountability Project v. U.S. Dep’t of Homeland Sec.,
335 F. Supp. 3d 7, 11–12 (D.D.C. 2018) (ruling that “FOIA
requests are not a game of Battleship” and that the
government fails its FOIA obligations when it ignores
“logical variations,” “synonyms,” and “proxies” “calculated
to turn up all responsive documents”). That, of course, does
not mean that every conceivable term, variant, or misspelling
must be considered by an agency, as FOIA requestors are
only “entitled to a reasonable search for records, not a
perfect one.” Hamdan, 797 F.3d at 772.
The test is one of reasonableness. On a challenge to the
adequacy of selected search terms, the government needs to
“back[] up” its assertion that the terms chosen were
reasonable. Transgender L. Ctr., 2022 WL 1494722, at *4;
cf. Am. Ctr. for Equitable Treatment, Inc. v. Off. of Mgmt. &
Budget, 281 F. Supp. 3d 144, 152 (D.D.C. 2017) (ruling that
a government agency had to explain why it refused to use
“terms that are common in practice”). In the end, if based
on the circumstances of a particular case, the government’s
chosen terms are not “reasonably calculated to uncover all
relevant documents,” Hamdan, 797 F.3d at 770 (simplified),
then the government has not fulfilled its duties under FOIA.
INTER-COOPERATIVE EXCHANGE V. USDOC 13
Two cases from our sister circuits illustrate our
approach. In DiBacco v. U.S. Army, the D.C. Circuit found
a search adequate when the government used a “variety of
keywords” and included “common misspellings” of various
codenames and pseudonyms. 795 F.3d 178, 190–91 (D.C.
Cir. 2015). Given the adequacy of the search terms, it did
not matter that the government omitted two requested terms
because it “need not knock down every search design
advanced by every requester.” Id. at 191.
And in Rein, the Fourth Circuit evaluated the adequacy
of a government search that used over 40 keywords
consisting of terms found in the FOIA request, “additional
related words or phrases” designed to produce responsive
records, “isolated terms” like acronyms, and “alternate
spellings.” 553 F.3d at 360 & n.11. The government agency
there also instructed its employees that the list of keywords
was not “all-inclusive” and that the search should not be
limited to only those terms. Id. at 360. Based on the
comprehensive manner of the search, the Fourth Circuit
found the government met its FOIA obligation, even if the
search did not produce all responsive documents. Id. at 362–
64. 3
Given this background, ICE claims NOAA’s search
terms were inadequate for three reasons: (1) the terms did
not cover the part of the FOIA request related to the Alaska
minimum wage; (2) the two search terms did not encompass
the broad request for records relating to the crab arbitration
3
The government’s response to a FOIA request is context specific,
see Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990), and we
do not mean to suggest that the government must take all the actions it
took in Rein to satisfy its FOIA duty in every case. But the government
must take a wide-eyed approach to crafting its search terms. And, of
course, Rein is a fine example of the government doing so.
14 INTER-COOPERATIVE EXCHANGE V. USDOC
system; and (3) the terms did not account for related variants
and shorthand terms. We agree that NOAA’s choice of
search terms was overly narrow.
First, the terms completely disregarded half of ICE’s
FOIA request. ICE sought records not just on “[crab]
arbitration system standards,” but also for records related to
the “Alaska state minimum wage increase”—either
conjunctively or disjunctively with records about the
arbitration system. Yet, it’s clear that the two keywords—
“crab” and “arbitration”—were not designed to generate
records related to the minimum wage. And Merrill’s
declaration confirms that. In his declaration, Merrill states
that the keywords were developed in response to ICE’s
request for crab-arbitration records. He never mentioned
devising search terms to cover the request for minimum-
wage records.
And we don’t accept NOAA’s explanation on appeal for
the lack of any minimum-wage search terms. It states that it
didn’t craft search terms independently tailored to the
minimum-wage request because that topic was only a
“policy concern” for the Council “by virtue of the crab price
arbitration regulations.” That might be true, but NOAA
presented no evidence to support that claim. In their
declarations, neither Merrill nor his supervisor, Balsiger,
pointed to the overlap between the two subjects as the reason
why no minimum-wage search terms were used. Instead,
Merrill merely noted that the two search terms “reflected the
specific parameters of [ICE’s] FOIA request.” That’s
incorrect because the parameters of ICE’s request included
minimum-wage records. While we grant the government
leeway in developing keywords, it’s unreasonable to
suggest, without supporting evidence, that the terms “crab”
and “arbitration” would uncover all records related to the
INTER-COOPERATIVE EXCHANGE V. USDOC 15
minimum-wage increase. Put differently, by using only
those two search terms, the government did not take a
practical or common-sense approach to ICE’s request.
Second, NOAA failed to justify its contention that the
two selected keywords were logical choices to target records
related to the “interpretation and application of the
arbitration system standards,” as ICE requested. The
declarations by Merrill and Balsiger do not explain why the
two search terms would adequately cover the seemingly
broad subject of crab arbitration standards. As we’ve said,
an agency’s affidavit purporting to show the adequacy of a
search must be “reasonably detailed” and “nonconclusory.”
Hamdan, 797 F.3d at 770. Merrill and Balsiger’s
declarations fall short of this standard.
Indeed, the record shows that the two keywords were
absent from a key email that Merrill sent to Sackton, the
price-formula arbitrator, about the effect of the Alaska
minimum wage increase on the arbitration system. Rather
than using NOAA’s keywords, Merrill used other terms such
as “cost,” “non-binding price formula,” and “arbitrator” to
discuss the subject. 4 And although we have said that a
search is not inadequate if it fails to turn up a “single
document,” it may be the case that “a review of the record
raises substantial doubt [about the adequacy of the
government’s search], particularly in view of well-defined
requests and positive indications of overlooked materials.”
Id. at 771 (simplified); see also Transgender L. Ctr., 2022
WL 1494722, at *5. That Merrill’s substantive response
4
To be fair, Sackton used both keywords—“crab” and
“arbitration”—in his initial email to Merrill. But Merrill’s long and
substantive response shows that NOAA used different key terms than the
agency’s search terms to discuss the crab arbitration matter.
16 INTER-COOPERATIVE EXCHANGE V. USDOC
about the crab arbitration system would have escaped the use
of the two search terms “raises substantial doubt” here. Id.Third, we agree with ICE that NOAA should have
considered common variants of its chosen keywords.
NOAA used the keyword “arbitration,” but its search didn’t
encompass closely related variants, such as “arbitrator” or
“arbitrating.” NOAA’s duty to consider variants was
particularly important here since ICE asked for and NOAA
agreed to a search of Merrill’s text messages and social
media. Such communications often use “informal [language]
and contain typographical errors, shorthand, symbols, and
abbreviations.” United States v. Dhingra, 371 F.3d 557, 559
n.3 (9th Cir. 2004). For example, ICE suggests, and we find
plausible, that “arb” would be a common, text-message
shorthand for “arbitration.” So NOAA should’ve explained
why it didn’t consider text-friendly variants of
“arbitration.” 5
In sum, we hold that the search terms selected here were
too narrow. We thus cannot say that NOAA has met its
burden to show adequacy beyond material doubt. NOAA
then was not entitled to summary judgment on ICE’s FOIA
claim. 6
5
Our dissenting colleague finds it “remarkable” to suggest that a
search of a cellphone may require a “broader set of terms” than a search
of an email or computer system. Dissent 26. We disagree. It’s just the
reality of how people communicate these days. People simply don’t use
the same formalities and conventions over cellphones as they do with
computers and emails, and we think FOIA obligations should keep up
with those realities.
Our dissenting colleague agrees that NOAA’s search terms here
6
were “arguably narrow,” but excuses any deficiency because the
INTER-COOPERATIVE EXCHANGE V. USDOC 17
B.
ICE also challenges the specific way in which Merrill’s
cellphone was searched for text messages, social media
records, and voicemail recordings. ICE argues that it was
unreasonable to allow Merrill to personally search his
cellphone by looking for or listening for keywords. On this
ground, we agree with NOAA that the government’s search
method was reasonable.
FOIA requestors are “entitled to a reasonable search for
records, not a perfect one.” Hamdan, 797 F.3d at 772. FOIA
requires “both systemic and case-specific exercises of
discretion and administrative judgment and expertise.”
Johnson v. Exec. Off. for U.S. Atty.’s, 310 F.3d 771, 776
government didn’t need to search Merrill’s cellphone “at all.”
Dissent 19–21. In the dissent’s view, the government only
“gratuitously” searched Merrill’s cellphone and so “no matter how
perfunctory” the search, we must hold it adequate as a matter of law. Id.
at 23, 26–27. There’s several problems with that view. First, we are not
factfinders. And the district court never made a factual determination
that Merrill’s cellphone did not need to be searched. Indeed, the
government’s own declaration suggests otherwise. Balsiger asserted that
the government searched “all of Merrill’s correspondence, as the term is
defined in [the] FOIA request,” which included Merrill’s cellphone
communications, and that “the search was calculated to uncover all
relevant documents.” So, at least in litigating this case in the district
court, NOAA appeared to concede that the search of Merrill’s cellphone
was necessary. Second, the government never asked us to affirm on this
basis. The dissent is the first to raise this novel theory for affirmance.
While we may affirm on any ground, it would be unfair to ICE to do so
because it never had a chance to respond to such an argument. Third, we
are aware of no principle of law or any caselaw supporting the dissent’s
view that the government can agree to search a device, conduct an
inadequate search, and then claim some immunity under FOIA after
being called out for the inadequacy of its search. We decline to adopt
that rule here.
18 INTER-COOPERATIVE EXCHANGE V. USDOC
(D.C. Cir. 2002). Once we are satisfied that the
government’s search terms are reasonably calculated to
uncover all responsive documents, we do not “micro
manage” the government’s search. Id. We thus generally
leave it to the government to determine which agency
employees have a “close nexus” to a requested record to
perform a reasonable search for records. See Valencia-
Lucena v. U.S. Coast Guard, 180 F.3d 321, 328 (D.C. Cir.
1999).
Aside from the use of overly narrow search terms as
discussed above, we agree with the district court that NOAA
conducted a reasonably adequate search of Merrill’s text,
social media, and voicemail messages. While it is true that
NOAA’s initial search log did not mention a search of
Merrill’s cellphone, the declaration of his supervisor,
Balsiger, explained that the omission was “an inadvertent
error.” Merrill confirmed that he searched his personal
cellphone for responsive records. In his declaration, Merrill
stated that, to his recollection, he did not use his personal
cellphone for government business; but he searched his text
messages and his Facebook accounts for responsive records
using the keywords and found no records. He submitted that
he had no other social media accounts except for WhatsApp,
which he rarely used and didn’t contain any responsive
records. He also stated that he listened to voicemails on his
phone for the search terms and did not identify any
responsive recordings.
Given the reasonably detailed factual recitation of the
search of Merrill’s cellphone, ICE hasn’t provided a
persuasive reason to doubt NOAA’s “good faith”
explanation of the adequacy of the search. Hamdan,
797 F.3d at 770. Aside from the overly restricted search
terms, we conclude that NOAA’s method of searching
INTER-COOPERATIVE EXCHANGE V. USDOC 19
Merrill’s cellphone was “reasonably calculated to uncover
all relevant documents.” Id. (simplified). 7
III.
NOAA fell short of its FOIA obligation to craft search
terms reasonably calculated to uncover all records relevant
to ICE’s request. The grant of summary judgment in the
government’s favor was thus improper. We reverse and
remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
TALLMAN, Circuit Judge, dissenting:
The majority concludes that the government did not
satisfy its burden under FOIA because the three search terms
used—“binding arbitration,” “arbitration,” and “crab”—
were not reasonably adequate to uncover all official
documents related to ICE’s FOIA request for agency records
regarding arbitration over crab prices. While it is true that
these three terms were arguably narrow, the majority fails to
acknowledge the limited scope of this appeal. The question
presented to us here is not the overall adequacy of the
government’s FOIA search of NOAA record systems.
Instead, the sole issue raised in this appeal is the validity of
7
Our dissenting colleague unfairly characterizes our ruling as
ordering “an invasive search of a government employee’s personal
cellphone.” Dissent 20. On remand, if the district court orders a new
search, we see no problem with Merrill again personally searching his
cellphone using adequate search terms. We fail to see how this amounts
to “an invasive” search, especially since Merrill was already required to
conduct a similar search.
20 INTER-COOPERATIVE EXCHANGE V. USDOC
the government’s search as to Glenn Merrill’s personal
cellphone. And Merrill’s personal cellphone—unlike the
agency record systems searched—was not likely to contain
additional responsive records.
I therefore write separately to express my unwillingness
to use this narrow case as a broader vehicle to order an
invasive search of a government employee’s personal
cellphone already searched absent any evidence that the new
search would reasonably uncover additional relevant
documents. This is particularly so when the employee
voluntarily searched his personal text, voicemail, and social
media messages, and attests that he found none addressing
the subject. The district court understood the distinction and
properly granted summary judgment to NOAA.
When complying with FOIA obligations, “[t]here is no
requirement that an agency search every record system.”
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990). Instead, “[a]n agency need only search files that are
likely to contain responsive records.” Jenkins v. U.S. Dep’t
of Just., 263 F. Supp. 3d 231, 235 (D.D.C. 2017) (citing
Oglesby, 920 F.2d at 68). Put differently, where, as here, the
government demonstrates the unlikelihood of the existence
of any responsive records on a particular record system, the
agency is not required to conduct a search of that system at
all. Id.Here, the government’s affidavits show that Merrill’s
cellphone was not reasonably likely to contain responsive
records. See Hamdan v. U.S. Dep’t of Just., 797 F.3d 759,
770 (9th Cir. 2015) (“An agency can demonstrate the
adequacy of its search through reasonably detailed,
nonconclusory affidavits submitted in good faith.”
(simplified)). Merrill swears that he did not use his personal
cellphone for government business. For example, Merrill
INTER-COOPERATIVE EXCHANGE V. USDOC 21
avows that “[t]o [his] recollection” any texts sent or received
on his cellphone during the relevant time period “were
personal.” Merrill also declares that while his cellphone
contained a private “Facebook account,” he did not have
other social media accounts (i.e., Instagram, LinkedIn,
Twitter) except for WhatsApp, which he rarely used and
which contained no responsive records. 1 ICE offers no
evidence to challenge Merrill’s declaration. 2
Given the government’s proffered affidavit, it is clear
beyond cavil that Merrill’s personal cellphone was unlikely
to contain records responsive to ICE’s FOIA request.
“Where the Government’s declarations establish that a
search would be futile, the reasonable search required by
FOIA may be no search at all.” Reyes v. U.S. Env’t. Prot.
Agency, 991 F. Supp. 2d 20, 27 (D.D.C. 2014) (simplified).
That principle applies here. Merrill’s declaration establishes
1
While Merrill did not state that he never used his personal
cellphone to make government-related telephone calls, his affidavit
stated that he searched the “voicemail inbox on [his] personal phone and
listened through the messages,” but “found no responsive records.”
Since Merrill listened to the content of each and every voicemail, the
narrowness of the search terms used are immaterial to the voicemail
search because all messages were reviewed without reliance on the
terms.
2
ICE argues that responsive documents might be found on Merrill’s
cellphone because Merrill exchanged texts with a colleague and Council
member during Council meetings that they both attended in 2018. But
there is no evidence that these messages were related to government
business. Merrill stated any texts sent or received “were personal,” and
it is unsurprising that colleagues who convene for meetings would send
personal text messages to each other around the time of those meetings.
ICE’s “purely speculative claims about the existence and discoverability
of other documents,” Bartko v. U.S. Dep’t of Just., 898 F.3d 51, 74 (D.C.
Cir. 2018) (citation and quotation omitted), therefore cannot rebut the
law’s presumption of good faith.
22 INTER-COOPERATIVE EXCHANGE V. USDOC
that another search of his personal cellphone for government
records would prove futile. The reasonable search therefore
required by FOIA was no search at all. See Hunton &
Williams LLP v. U.S. Env’t Prot. Agency, 248 F. Supp. 3d
220, 238 (D.D.C. 2017) (finding a plaintiff was not entitled
to a FOIA search of government employees’ text messages
when the plaintiff did not “point to any evidence indicating
that text messages were used for agency business or
otherwise show that searching text messages would be likely
to lead to responsive documents”).
The government was also not required to perform a
search of Merrill’s personal cellphone for a second,
independent reason. Merrill avows that he was fully aware
that agency policy required him to copy or forward any
message related to government business sent or received
from his personal device to his official agency email
account. “Absent evidence to the contrary, a government
employee is presumed to have properly discharged the duty
to forward official business communications from a personal
. . . account to an official email account.” Jud. Watch, Inc.
v. U.S. Dep’t of Just., 319 F. Supp. 3d 431, 437–38 (D.D.C.
2018). ICE has presented no genuine evidence to raise a
question of Merrill’s compliance with his recordkeeping
obligations, so the presumption applies here. See id.;
Brennan Ctr. for Just. at N.Y. Univ. Sch. of L. v. U.S. Dep’t
of Just., 377 F. Supp. 3d 428, 435–36 (S.D.N.Y. 2019).
Merrill’s declaration therefore establishes that the
records on his personal cellphone, if any, would have been
duplicative of records already within his official email
account. Jud. Watch, Inc., 319 F. Supp. 3d at 438. It makes
little sense to hold that the government is required to search
again a record system—much less a government employee’s
INTER-COOPERATIVE EXCHANGE V. USDOC 23
private cellphone—when there is no reason to believe that
previously undisclosed records would be found there.
Because no search was required of Merrill’s personal
cellphone, it logically follows that the government’s search
of Merrill’s cellphone—no matter how perfunctory—was
per se adequate. Although the government was not required
to search Merrill’s personal cellphone, it nevertheless chose
to do so. ICE may well make a strong case that the three
search terms employed were inadequate for a search of other
record systems, say, for example, Merrill’s government
email, computer network, and desktop. But here ICE has
only challenged the search of Merrill’s personal cellphone.
Even if the search terms the government chose to employ
were unduly narrow in other contexts, those terms were
necessarily broader than employing no search terms at all.
Accordingly, we should affirm the district court and hold
that the government’s FOIA search was adequate as a matter
of law. See Hall v. N. Am. Van Lines, Inc., 476 F.3d 683,
686 (9th Cir. 2007). (“We may affirm on any basis supported
by the record, whether or not relied upon by the district
court.”).
A contrary holding runs the risk of undermining the
fundamental purpose of FOIA—“to facilitate public access
to government documents.” Hamdan, 797 F.3d at 770
(simplified). Instead of quickly searching systems unlikely
to contain responsive records out of an abundance of caution,
agencies may completely forego a search of these systems
because, if they did perform a search, they would be forced
to either expend additional resources or face litigation. 3 This
3
Despite receiving partial fees for performing a search, agencies
nevertheless expend considerable resources in complying with their
FOIA obligations. Cf. Antonin Scalia, The Freedom of Information Act
24 INTER-COOPERATIVE EXCHANGE V. USDOC
may lead to even fewer records systems being searched and
even less information being turned over to the public.
The majority rejects this approach, suggesting it
espouses a novel legal principle that was not supported by
the district court’s findings or specifically argued by the
government. While there is nothing novel about a
formulation of the law which “follows logically from prior
cases,” Perveler v. Estelle, 974 F.2d 1132, 1134 (9th Cir.
1992), nor anything inappropriate about applying the law to
the factual record, the Court nevertheless should still affirm
on the basis that the three search terms “binding arbitration,”
“arbitration,” and “crab” were adequate.
The majority argues that the government was required to
employ natural derivatives to the search terms to keep up
with the “realities” of how people communicate, Maj. Opin.
at 16 n.5, and was also required to use search terms explicitly
responsive to both aspects of ICE’s FOIA request. But based
on these facts and the narrow issue presented, I disagree.
“In determining whether an agency’s search is
reasonable, a court must consider the likelihood that it will
yield the sought-after information, the existence of readily
available alternatives, and the burden of employing those
alternatives.” Davis v. Dep’t of Just., 460 F.3d 92, 105 (D.C.
Cir. 2006). Each factor here falls in the government’s favor.
First, as discussed above, Merrill’s cellphone was not
likely to “yield the sought-after information,” id., because
Has No Clothes, REGULATION, Mar.–Apr. 1982, at 16–17. This is
because, by its design, FOIA does not fully compensate agencies for the
costs they incur in fulfilling requests. See, e.g., 5 U.S.C.
§ 552(a)(4)(A)(iv) (“Fee schedules shall provide for the recovery of only
the direct costs of search, duplication, or review.” (emphasis added)).
INTER-COOPERATIVE EXCHANGE V. USDOC 25
Merrill swears that he did not use his personal cellphone for
government business. Second, “readily available
alternatives” existed for the government’s search. Id. As
already mentioned, ICE failed to rebut the presumption that
Merrill “properly discharged [his] duty to forward official
business communications . . . to an official email account.”
Jud. Watch, Inc., 319 F. Supp. 3d at 437–38. We must
therefore presume any relevant documents on Merrill’s
cellphone would also exist on his official government email
account. Finally, there is no support in the record or
common sense that a search of Merrill’s government email
would be more burdensome than a search of his private texts,
voicemails, and social media messages.
Moreover, the terms “binding arbitration,” “arbitration,”
and “crab” are the most common words that would be likely
to appear in correspondence regarding the interpretation and
application of the crab price arbitration system standards.
And they were sufficiently responsive to both aspects of
ICE’s FOIA request given that the state’s minimum wage
increase was a policy concern for the North Pacific Fishery
Management Council only because of the crab price
arbitration regulations. Cf. Edelman v. SEC, 172 F. Supp. 3d
133, 147 (D.D.C. 2016) (finding that “in light of the overlap
between [two] subcomponents” of a plaintiff’s FOIA
request, “there is no reason to believe that the [agency’s]
overall search for responsive material would not have
identified any material responsive to [both]
subcomponent[s]”). Given the foregoing, we should hold
the terms “binding arbitration,” “arbitration,” and “crab”
were adequate to search a government employee’s personal
cellphone, especially when any responsive records on that
phone would also be found on the employee’s official
government email. See Founding Church of Scientology of
Wash., D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 834
26 INTER-COOPERATIVE EXCHANGE V. USDOC
(D.C. Cir. 1979) (“[T]he competence of any records-search
is a matter dependent upon the circumstances of the case”).
To be sure, this would be a much different case if ICE
had challenged the use of these search terms as they relate to
the search of other record systems, like Merrill’s email,
computer network, and desktop. These record systems were
used for official government business and, therefore, were
highly likely to contain records responsive to ICE’s FOIA
request. 4 Given the high likelihood of responsive records on
these agency systems, the bar for a reasonable search would
be set much higher. But ICE did not challenge the use of the
search terms as to these other record systems. And it is
remarkable to suggest on these facts that a broader set of
terms is necessary to search a personal cellphone than was
used to search official government files.
In sum, the government in this case was not required to
perform a search of Merrill’s cellphone. But it gratuitously
4
The majority emphasizes the fact that the terms “crab” and
“arbitration” were noticeably absent from an email that Merrill sent to
John Sackton, the crab system arbitrator, about the effect of the Alaska
minimum wage increase on the arbitration system. Maj. Opin. at 15–16.
Granted, “indications that the agencies’ initial production was lacking
many significant documents within their possession” may show the
government’s search was inadequate. Transgender L. Ctr. v. Immigr. &
Customs Enf’t, —F.4th — (9th Cir. 2022). But the missing document
the majority emphasizes came from Merrill’s official government email.
And unlike his email messages, no evidence in the record suggests that
Merrill used text or social media messages to conduct official
government business. See Hunton & Williams LLP, 248 F. Supp. 3d
at 238. That the search terms used were inadequate to search Merrill’s
government email cannot prove they were inadequate to search his
personal cellphone, especially after he had already gone through his
phone and could find nothing relevant to crab price arbitration or state
minimum wage increases.
INTER-COOPERATIVE EXCHANGE V. USDOC 27
chose to do so. Even if the search terms the government
employed were narrow in other contexts, they were
sufficient to probe a government employee’s personal
cellphone and were necessarily broader than no search terms
at all. “FOIA . . . is hardly an area in which the courts should
attempt to micro manage the executive branch.” Johnson v.
Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir.
2002). This is particularly true where the majority ultimately
concludes “that NOAA’s method of searching Merrill’s
cellphone was ‘reasonably calculated to uncover all relevant
documents.’” Maj. Opin. at 18–19. ICE dropped its crab
pots into NOAA records. But it laid them in the wrong spot.
When the pots were finally pulled from the water, they came
up empty. So where’s the crab?
I respectfully dissent from Part II.A of the majority
opinion and would affirm the district court’s entry of
summary judgment for the government.