DocketNumber: No. 10 Civ. 3488 (SAS)
Citation Numbers: 877 F. Supp. 2d 87
Judges: Scheindlin
Filed Date: 7/13/2012
Status: Precedential
Modified Date: 11/26/2022
OPINION AND ORDER
“Sunlight is said to be the best of disinfectants; electñc light the most efficient policeman. ”
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.”
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.
Plaintiffs bring this action for the purpose of obtaining records, pursuant to FOIA,
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 opt-out question by January 17, 2011 and the remainder of RPL
documents by February 25, 2011.
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.
Plaintiffs make two broad critiques of the agencies’ searches.
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
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.”
FOIA cases are generally resolved on motions for summary judgment,
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.19
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.”
“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.”
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.
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.”
Office of State, Local, and Tribal Coordination (OSLTC): According to ICE, only two members of its OSLTC searched their records for respon
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.
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
However, the FBI did not search the Director’s files for Opt-Out or RPL documents from the pre-October 15, 2010 period.
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.”
The parties disagree over the scope of the search that OGC should have conducted.
Because the National Security Law Branch of OGC never responded to the
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”).
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.
3. BHS
Secretary Napolitano: According to the declaration of its FOIA officer, DHS searched “any documents sent to or from the Secretary.”
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.
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.
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.
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.”
4. Office of Legal Counsel (OLC)
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.”
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.”
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.
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.”
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.
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.”
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
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.”
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.”
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.”
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.
There are emerging best practices for dealing with these shortcomings and they are explained in detail elsewhere.
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,
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.”
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
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.
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.
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
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:126
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).127
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.128
4. Three custodians, chosen by plaintiffs, in the Advisory Groups Management Unit (AGMU).129
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
*113 search terms that they used,130 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 Brandéis 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 letters 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.
. Buckley v. Valeo, 424 U.S. 1, 67, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (quoting Louis Brandeis, Other People's Money and How the Bankers Use It 62 (1933)).
. See www.ndlon.org/en/secure-communities. The documents produced in response to this FOIA request have been compiled at a website entitled Uncover the Truth: ICE and Police Collaborations. See http://uncover thetruth.org.
. See Def. Mem. at 10.
. 5 U.S.C. § 552 et seq.
. See Secure Communities, ICE, http://www. ice.gov/secure_communities/.
. See id.
. The cut-off date for the search of opt-out records was October 15, 2010. That is to say, records created after that date did not need to be produced as part of the January 17, 2011 production and are therefore not the subject of this motion.
. Memorandum of Law in Support of Defendants’" Renewed Motion for Partial Summary Judgment on Adequacy of Search for Opt-Out and Rapid Production List Records ("Def. Mem.”) at 1.
. See Declaration of Ryan Law ("Law Decl.”) and Supplemental Declaration of Ryan Law ("Supp. Law Decl.”) (ICE); Seventh Declaration of David Hardy ("Hardy Decl.”) and Declaration of Dennis Argali ("Argali Decl.”) (FBI); Declaration of David Palmer (“Palmer Decl.”) (DHS); Declaration of Crystal Rene Souza ("Souza Decl.") (EOIR); and Declaration of Paul Colborn (“Colborn Decl.”) (OLC).
. See Memorandum of Law in Opposition to Defendants’ Motion for Partial Summary Judgment and in Support of Plaintiffs’ Cross-Motion for Partial Summary Judgment ("Pl. Mem.”) and Memorandum of Law in Further Support of Plaintiffs’ Cross-Motion for Partial Summary Judgment on Adequacy of Defendants' Search for Opt-Out and Rapid Production List Records ("Pl. Rep. Mem.”). To support their arguments, plaintiffs have submitted seventy-seven documents that were produced by defendants during this litigation. They are indexed and attached to the Declaration of Sunita Patel ("Patel Decl.”) and are referred to here as Patel Doc. x.
. Defendants initially filed this motion, with supporting declarations, on January 12, 2012. See Docket No. 167. Plaintiffs objected to the declarations, arguing that they contained an insufficient level of detail and that the parties’ briefing would therefore focus on the description of the searches rather than the adequacy of the searches. I instructed defendants to refile their brief, along with more detailed declarations, which they did on March 2, 2012.
. The EOIR's motion for partial summary judgment was unopposed by plaintiffs.
. Morley v. Central Intel. Agency, 508 F.3d 1108, 1114 (D.C.Cir.2007).
. Id. (quotation and citation omitted).
. See Bloomberg L.P. v. Board of Governors of the Fed. Reserve Sys., 649 F.Supp.2d 262, 271 (S.D.N.Y.2009).
. Fed.R.Civ.P. 56(c).
. Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
. McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006).
. Carney v. United States Dep't of lustice, 19 F.3d 807, 812 (2d Cir.1994) (quotations and citations omitted).
. Exxon Corp. v. Federal Trade Comm’n, 466 F.Supp. 1088, 1094 (D.D.C.1978).
. Carney, 19 F.3d at 812.
. Families for Freedom v. Customs and Border Protection, 837 F.Supp.2d 331, 336 (S.D.N.Y.2011).
. Katzman v. Central Intel. Agency, 903 F.Supp. 434, 438 (E.D.N.Y.1995) (quoting Church of Scientology v. Internal Revenue Serv., 792 F.2d 146, 151 (D.C.Cir.1986)).
. See Banks v. United States Dep’t of Justice, 700 F.Supp.2d 9, 15 (D.D.C.2010).
. Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C.Cir.2003).
. Id. at 315.
. Weisberg v. United States Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983).
. See Law Supp. Decl. This declaration was submitted after the close of briefing. In their 4/30/12 Letter to the Court (which was submitted before the declaration but after the parties had communicated about the supplemental search), plaintiffs’ criticism centered on the failure to search records beyond email, the failure to use the search term "interoperability,” and the failure to more fully describe the Deputy Director’s file storage system. The first of these concerns was addressed by Law's declaration, which states that the agency searched for "additional electronic or hard-copy files,” id. ¶ 19, and the second two concerns are, given the totality of the agency's search, relatively minor.
. See Law Decl. ¶ 24 n. 3. The parties agreed to a special process for addressing records in the possession of HSI's Law Enforcement Service Center that relate to individual aliens.
. Id.
. 9/10/10 Email, Patel Doc. 24.
. See Undated Memorandum of Understanding Between DHS, ICE, and the Colorado Department of Public Safety, Patel Doc. 38, at 7.
. 5/3/11 Email, Patel Doc. 60, at 1.
. See Memorandum of Law in Opposition to Plaintiffs’ Cross-Motion for Partial Summary Judgment and in Further Support of Defendants’ Motion for Partial Summary Judgment on Adequacy of Search for Opt-Out and Rapid Production List Records (“Def. Rep. Mem.”) at 8.
. PL Mem. at 22. See 4/15/11 Email, Patel Doc. 8, at 3 (conveying ICE's comment to the New York Times that "ICE retained a contractor to assist in the implementation of Secure Communities”) and 4/12/11 Letter from Dan Cadman, ICE contractor, to Marc Rapp, Acting Assistant Director for Secure Communities ("Cadman Letter”), available at http:// big.assets.huffingtonpost.com/LofgrenFollow Up.pdf (describing author’s role in developing and implementing opt-out policy).
. Def. Rep. Mem. at 8.
. Cadman Letter at 2 n. 2.
. See Law Decl. ¶ 49 (stating that only the Deputy Assistant Director and a Senior Public Engagement Officer conducted searches).
. PL Mem. at 22. See 9/27/10 Email from Richard Rocha, Patel Doc. 50 (proposing a conversation to discuss how "OSLTC can help make [ICE’s] position on participation [in Secure Communities] clear”); 9/9/10 Recommendations for Outreach on Required Activation of Secure Communities, Patel Doc. 53 (including OSLTC in the list of offices responsible for clarifying opt-out questions); 1/26/11 Email Chain, Ex. B to Declaration of Sunita Patel in support of PL Rep. Mem. ("Patel Rep. Decl.”) (discussing a meeting in Boston regarding opt-out set up by OSLTC).
. 1/21/11 Email, Ex. A to Patel Rep. Decl. In addition, Patel Doc. 37 contains the September 21, 2010 correspondence of OSLTC's Chief Public Engagement Officer regarding opt-out. According to ICE's declaration, this officer did not search her/his records.
. Def. Reply Mem. at 8-9.
. See Oglesby v. United States Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990) (although one location may be the "most likely” to turn up records, “the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested”).
. Plaintiffs have not presented evidence showing that the Assistant Director for OSLTC was involved in discussions related to opt-out. (The meetings including the Assistant Director that were cited in the 1/21/11 Email did not relate to opt-out).
. Law Decl. ¶ 55.
. PL Mem. at 23.
. Under Secure Communities, fingerprints sent by state and local law enforcement to the FBI's IAFIS database are automatically forwarded to DHS’s IDENT database for an immigration check. The central questions regarding “opt-out” was whether state and local law enforcement would be permitted to use the FBI database without having the information that they input forwarded to DHS and, if the answer to that question was no, whether the local agencies could chose not to receive the resulting immigration information back from DHS.
. 12/6/06 Testimony to the Senate Judiciary Committee, Patel Doc. 64. In 2008, FBI Deputy Director John Pistole described the Bureau's involvement in Secure Communities as an example of federal-local collaboration that helps ICE achieve its goals. See 3/28/08 ICE News Release, Patel Doc. 62.
. 3/26/10 Email from Secure Communities Branch Chief for Deployment to Redacted Recipients, Patel Doc. 27.
. 7/8/10 DHS Weekly Report, Patel Doc. 39, at 1528. The document said that Napolitano and Mueller were scheduled to meet on July 21. Defendants do not suggest the meeting never occurred. See Def. Rep. Mem. at 13.
. See 7/30/10 Email Chain, Patel Doc. 28 (congressional inquiry circulated by the Director's Office to the FBI Chief of Staff, Deputy Director, Associate Deputy Director, and Office of General Counsel); 9/16/10 Email Chain, Patel Doc. 29 (Secretary Napolitano's response to congressional inquiry).
. Secure Communities Internal Meeting Minutes, Patel Doc. 5 at 1893.
. Within the Director’s Office, only the Office of Public Affairs and the Office of Congressional Affairs conducted Opt-Out and RPL searches. See Hardy Decl. ¶¶ 16, 17, 26.
. Argali Deck ¶ 6.
. Def. Rep. Mem. at 12. These records, like many others, were produced on a less rapid basis during 2011 and 2012.
. See 11/18/10 Email Chain, Patel Doc. 17 (FBI staffers circulating drafts of a memo to the Director on opt-out). See also Patel Docs 19, 30, 32 (documents showing involvement by Director in opt-out after October 15, 2010).
. See Def. Opp. Mem. at 13-14; Pi. Rep. Mem. at 6-7.
. Hardy Decl. II 17.
. Carney, 19 F.3d at 812.
. In a previous declaration, Hardy swore that OGC "reported having no documents responsive to plaintiffs' request.” 11/12/10 Declaration of David M. Hardy in Support of Defendants’ Opposition to Plaintiffs' Motion for Preliminary Injunction [Docket No. 15 Ex. Bl]. The truth, according to Hardy’s most recent declaration, is that OGC never reported back at all.
. Following the parties’ lead, I exclude from this discussion the OGC representative from the Access Integrity Unit, who did conduct a search.
. Def. Rep. Mem. at 13.
. See Policy Initiation and Coordination Memo, Patel Doc. 10.
. See, e.g., 12/1/10 Email, Patel Doc. 18.
. See Pl. Mem. at 14-15 and Pl. Rep. Mem. at 7.
. See Patel Docs. 63, 65 (describing the mission of the OLEC) and Patel Doc. 20 (5/11/11 email from Executive Assistant Director saying that he has "a pretty good feel for [the opt-out issue] and ha[s] been tracking it for a while”).
. See Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C.Cir.2002) (noting that compliance with FOIA requires "both systemic and case-specific exercises of discretion and administrative judgment and expertise”).
. Argali Decl. ¶ 7.
. Hardy Decl. ¶¶ 17-18.
. Id. ¶ 20.
. Id.
. Morley, 508 F.3d at 1114.
. Palmer Decl. ¶ 30.
. Id.
. PL Rep. Mem. at 8.
. See Palmer Decl. ¶ 24.
. See 9/6/10 Email Thread, Patel Doc. 23.
. See National Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency (“NDLON”), 827 F.Supp.2d 242, 258-59 (S.D.N.Y.2011).
. 9/6/10 Email Thread, Patel Doc. 23.
. Agencies have an obligation to "follow through on obvious leads to discover requested documents” Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) and "the court evaluates the reasonableness of an agency’s search based on what the agency knew at its conclusion rather than what the agency speculated at its inception” Campbell v. United States Dep’t of Justice, 164 F.3d 20, 28 (D.C.Cir.1998). According to emails on 4/27/11, the Office of General Counsel had submitted comments regarding the October 2 Memorandum in October, 2010. See Patel Doc. 45. Because of redactions, it is unclear to the Court whether the files of the woman referenced in the first paragraph of the 4:26 p.m. email were searched, but they should have been. It also appears likely that Deputy GC Audrey Anderson was involved in discussions about the October 2 Memorandum prior to the October 15, 2010 cut-off date. Thus, a reasonable search would also have examined her records.
. See Patel Docs. 45-46.
. See Palmer Decl. ¶¶ 6, 17 (listing the offices that DHS determined were likely to maintain responsive records but not asserting that the list was exhaustive and not asserting that DHS made any determination regarding HSAC).
. See 9/30/09 HSAC Meeting Minutes, Patel Doc. 69.
. Palmer Deck ¶ 23.
. Pl. Mem. at 18.
. Id. at 1.
. Because OLC is so much smaller than ICE, the FBI, and DHS, I address both its choice of custodians and its method of search here.
. Colborn Decl. ¶ 3.
. OLC’s search of departed attorneys’ emails — which included only the terms "secure communities” and "interoperability”— should have used additional terms (such as, e.g., opt-out, opt out, ICE, IDENT, and IAF-IS). If the entirety of OLC’s search had consisted of searches using only those two terms, it would have been inadequate. However, in combination with the additional steps that the office took, its limited search of departed attorneys’ emails does not render the entire search inadequate.
. Plaintiffs also argue that the agencies did not sufficiently describe the geography of their file storage systems. This may be true. In general, however, the important shortcomings in defendants' declarations involve their inadequate description of searches. A fuller description of searches would make less consequential any gaps in defendants' description of their file storage systems.
. Law Deck ¶ 20.
. Id. ¶ 36. See How-To-Search for Opt-Out Records, Ex. B to Law Deck The recommended search terms were: "opt-out,” “voluntary,” "opting-out,” “mandate,” "mandatory,” "participation,” “choosing,” and "opt out.” The instructions said, in bold letters, "however, please do not be limited by the suggested terms if you believe that you may have responsive documents that can be located with other search terms.” Id.
. See Law Deck ¶¶ 44-47 (describing the searches of three components within the OPLA and noting that a fourth component (Homeland Security Investigations) conducted a search using only the terms "opt-out” and "opt out” because "other terms were likely to produce large numbers of unresponsive documents unrelated to Secure Communities”); ¶ 49 (two staff members in the OSLTC conducted searches using the terms "opt-out,” "voluntaiy,” and "mandatory”); ¶ 51 (Office of Public Affairs searched using the eight recommended terms plus "Secure Communities”); ¶ 52 (Office of the Director used the eight recommended terms).
. See id. ¶ 37-43.
. See id. ¶ 50 (no indication of which search terms were used by the Office of Congressional Relations).
. The FBI’s FOIA officer explains that although his office "did not provide specific instruction as to how the individual searches [of paper files, e-mail, and personal drives] were to be performed, each employee conducted a manual review of his or her records to locate potentially responsive records.” Hardy Decl. ¶ 19. Although Hardy does not define his use of the phrase "manual review,” defense counsel construe Hardy's statement to mean "a search involving review of every individual document for potential responsiveness.” Def. Mem. at 16. "The FBI largely did not rely on search terms, but instead relied on the knowledge of its custodians” who "sift[ed] through and review[ed] tens of thousands of pages of records.” Def. Rep. Mem. at 15. If in fact the IIU employees who conducted this search looked through every one of their email messages and other files, then they will have conducted an adequate search. Hardy, however, does not say that; rather, that is defense counsels’ construction of the phrase "manual review.” It seems likely that some IIU custodians only reviewed certain categories of documents (i.e., emails from certain people or documents in certain folders) or narrowed the number of emails that they examined by first using search terms. In any event, the FBI's declarant should have provided some specificity about what this manual search entailed. Such a description need not "set forth with meticulous documentation the details of an epic search,” Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982), but it does need to contain "reasonable specificity of detail rather than merely conclusory statements,” Grand Cent. P’ship v. Cuomo, 166 F.3d 473, 478 (2d Cir.1999).
. See Hardy Decl. ¶ 16.
. See id.
. Palmer Decl. ¶ 20. Compare id. ¶ 25 ("exact manner in which searches were conducted was left to the discretion of the individual custodians” in US-VISIT office and their search terms were not reported to the Court (or, presumably, the FOIA office)) with id. ¶ 32 (custodians in the Office of the Secretary used the eight recommended terms).
. See Colborn Decl. ¶¶ 6, 8 and Ex. A (listing search terms).
. See Souza Decl. 114.
. Families for Freedom v. United States Customs and Border Protection, 837 F.Supp.2d 331, 335 (S.D.N.Y.2011).
. Id.
. Given the tedious nature of the assignment of examining every single document and the difficult and subjective nature of deciding what is and is not responsive, it would have been wise of the FBI to run a few verification tests using sophisticated search techniques to ensure that the manual review was actually capturing the universe of responsive documents. Such tests would have given the Court significantly more confidence regarding the adequacy of these manual reviews. See Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech. 11 (2011). See generally the Text Retrieval Conference (TREC) Legal Track at http://trec-legal.umiacs.umd.edu/.
. The FBI ran a search for "secure communities” in one of its central databases, which did not return any responsive records. See Hardy Decl. ¶ 14. The FBI has not submitted information about the search terms used in the many other searches that employees conducted of their individual and shared records. After I ordered defendants to produce opt-out and RPL documents on an expedited basis, the FBI searched for the terms "opt-out” and "opt out” in the documents that it had already collected in response to plaintiffs’ complete FOIA request. See id. ¶ 25. But I do not know what search terms it used to compile those documents in the first place.
. Def. Rep. Mem. at 4 (citing Perry, 684 F.2d at 127).
. Id. at 10.
. Grand Cent. P’ship, 166 F.3d at 478.
. Iturralde, 315 F.3d at 313 (quoting Ogles-by, 920 F.2d at 68). See also Def. Rep. Mem. at 4 (reiterating this requirement).
. See Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F.Supp.2d 456, 473 (S.D.N.Y.2010) ("I note that not every employee will require hands-on supervision from an attorney. However, attorney oversight of the process, including the ability to review, sample, or spot-check the collection efforts is important. The adequacy of each search must be evaluated on a case by case basis.”).
. Defense counsel in this litigation have noted, correctly, that search obligations under FOIA are not identical to those under the Federal Rules of Civil Procedure. But under FOIA, to prevail on an adequacy of the search motion, a defendant "must show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents.” Morley, 508 F.3d at 1114. Defendants are of course correct to note that " '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' because 'particular documents may have been accidentally lost or destroyed, or a reasonable and thorough search may have missed them.'" Def. Rep. Mem. at 3 (quoting Iturralde, 315 F.3d at 315). The failure to actually uncover all documents is not fatal to the adequacy of the government's search; but the failure to design a search that is reasonably calculated to uncover all documents is fatal. Therefore, much of the logic behind the increasingly well-developed caselaw on e-discovery searches is instructive in the FOIA search context because it educates litigants and courts about the types of searches that are or
. Shira A. Scheindlin, Daniel J. Capra, & The Sedona Conference, Electronic Discovery and Digital Evidence: Cases and Materials at 327 (2d ed.2012). Accord Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 257 (D.Md.2008) ("there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches”).
. Maura R. Grossman & Terry Sweeney, What Lawyers Need to Know About Search Tools: The Alternatives to Keyword Searching Include Linguistic and Mathematical Models for Concept Searching, Nat. L.J. (Aug. 23, 2010) ("What Lawyers Need to Know") (citing three studies showing that Boolean keyword search identifies between twenty and twenty-five percent of relevant documents).
. Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279, 287 F.R.D. 182, 190-91, 2012 WL 607412, at *10 (S.D.N.Y. Feb. 24, 2012) (quoting Ralph C. Losey, Child’s Game of 'Go Fish’ is a Poor Model for e-Discovery Search, in Adventures in Electronic Discovery 209-10 (2011) and citing the following cases criticizing keyword search: United States v. O’Keefe, 537 F.Supp.2d 14, 24 (D.D.C.2008); Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C.2008); Victor Stanley, Inc., 250 F.R.D. at 262; William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134, 136 (S.D.N.Y.2009)).
. Prominent among these are the publications of the Sedona Conference. See, e.g., Sedona’s Commentary on Achieving Quality in the E-Discovery Process (2009) and Commentary on Search & Retrieval Methods (2007), available at www.thesedonaconference.org/ publications.
. William A. Gross, 256 F.R.D. at 136. See Victor Stanley, Inc., 250 F.R.D. at 262 ("Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented. In this regard, compliance with the Sedona Conference Best Practices for use of search and information retrieval will go a long way towards convincing the court that the method chosen was reasonable and reliable.”).
. See What Lawyers Need to Know (excerpted in Electronic Discovery and Digital Evidence at 328-29).
. See, e.g., Fox News Network, LLC v. United States Dep’t of the Treasury, 678 F.Supp.2d 162, 166 (S.D.N.Y.2009) (finding that failure to use an obvious acronym made the search inadequate); Hasbrouck v. United States Customs and Border Protection, No. 10 Civ. 3793, 2012 WL 177563 (N.D.Cal. Jan. 23, 2012) (finding failure to search spelling variants as requested was inadequate); Habeas Cotpus Resource Ctr. v. United States Dep’t of Justice, No. 08 Civ. 2649, 2008 WL 5111224 (N.D.Cal. Dec. 2, 2008) (finding declarations that specified two or three search terms were insufficient to establish adequacy).
. See Media Research Center v. United States Dep't of Justice, 818 F.Supp.2d 131 (D.D.C.2011) (defendant was not required to use certain search terms); Vest v. Department of Air Force, 793 F.Supp.2d 103 (D.D.C.2011) (search for spelling variants was not required); Anderson v. United States Dep’t of State, 661 F.Supp.2d 6 (D.D.C.2009) (same).
. See Amnesty Int'l v. Central Intelligence Agency, No. 07 Civ. 5435, 2008 WL 2519908, at *15 (S.D.N.Y. June 19, 2008) (“a search that is designed to return documents containing the phrase 'CIA detainees’ but not 'CIA detainee’ or 'detainee of the CIA’ is not reasonably calculated to uncover all relevant documents .... Nevertheless, that failure does not render the Government’s searches unreasonable in this case [because] the vast majority of [document databases] were searched by hand ... [and] such hand searches are not tainted by any deficiencies in the Government’s computerized searches.”) (some quotations omitted).
. Declaration of Daniel L. Regard II in Support of Plaintiffs' Cross-Motion for Summary Judgment and in Opposition to Defendants’ Motion for Summary Judgment on Adequacy of Search ("Regard Decl.”) ¶ 28.
. Id. ¶ 42.
. What Lawyers Need to Know (excerpted in Electronic Discovery and Digital Evidence at 328). Plaintiffs have urged defendants to conduct searches using multiple variants of the terms "opt out” and "secure communities.” See Law Supp. Dec. ¶ 9 (listing plaintiffs’ recommended terms as "opt-in,” "opt in,” "opt-out,” "opt out,” "opting out,” "opting in” and "secure communities,” "secure -communities,” "scomm,” "s-comm,” “sc,” "circa,” and "scmpo”).
. O’Keefe, 537 F.Supp.2d at 24.
. This does not apply to OLC. Given the size of that office and the various approaches that it took to searching for records, I am confident that the broad search using the terms "ICE” and "Secure Communities” was reasonably designed to uncover all responsive documents.
. Defendants were given three opportunities on this motion to submit detailed declarations (the initial January declarations that were insufficiently detailed, the March moving declarations, and the reply declarations). With a few exceptions noted below, defendants will now need to rectify their failure to establish adequacy by conducting new searches rather than only by submitting new declarations.
. Plaintiffs ask the Court to order the FBI to explain “how searches of electronic records were conducted by individual custodians and what search terms were used.” Pl. Mem. at 28. I do not know if the FBI ever collected that information, although it should have. Revisiting the past searches in that level of detail is less efficient or important than conducting thorough and well-documented searches of specific custodians going forward, and therefore it is not necessary.
. In either event, however, the Privacy and Civil Liberties Unit is required to conduct a search for documents responsive to RPL VII.
. A search of these three test employees' records using a negotiated search methodology will permit plaintiffs and the Court to evaluate whether the earlier manual review was in fact adequate.
. Plaintiffs believe that the AGMU may have documents relating to a key recommendation made by the Advisory Policy Board (which is technically not comprised of FBI employees) to the FBI Director, which he accepted, to make information sharing between the FBI and DHS mandatory. Defendants searched the AGMU and produced responsive records, but have provided no details about the nature or scope of that search. See Hardy Deck ¶ 17 n. 6. A renewed, targeted search for responsive records (including for opt-out records from February through October, 2010) is therefore appropriate.
. Compare Palmer Deck ¶ 25 (stating that specific search terms were “recommended” to US-VISIT custodians) with ¶ 32 (stating that specific search terms were "used” by Office of the Secretary custodians).