Reclaim the Records v. United States Department of State

Background

Reclaim the Records and Alec Ferretti requested, under the Freedom of Information Act (FOIA), a copy of the index to all birth and death records held by the United States Department of State for the Panama Canal Zone. The plaintiffs sought the index in a searchable digital format, not the underlying birth or death certificates.

The Department received the request in 2017 but did not complete its processing for several years. After the plaintiffs filed this action, the Department stated that it had searched for responsive records and found no existing index or search aid for the Panama Canal Zone records.

The Department primarily maintains the records as paper index cards—about 95,200 cards in 68 boxes. It also has incomplete and poor-quality digital data in its Passport Information Electronic Records System, or PIERS. Department declarations stated that PIERS uses multiple databases, can return multiple possible records, and requires employees to verify information against the paper records. The Department had never extracted a comprehensive list from PIERS. It stated that creating an inventory from the paper cards or compiling and verifying information from PIERS would take years.

Legal question and standards

The parties filed cross-motions for summary judgment, a procedure used when the court decides that no genuine dispute of important fact requires a trial. The central question was whether the requested index already existed, could be readily generated from the Department’s existing data, or would have to be created anew.

FOIA generally requires an agency to disclose existing records unless an exemption applies, but it does not require an agency to create a new record. In a FOIA case, an agency must show that it conducted a search reasonably designed to locate responsive records. If the agency provides sufficiently detailed declarations supporting its search, the requester must present evidence of bad faith or other tangible evidence showing that summary judgment is inappropriate.

Court’s reasoning

The court held that the Department’s search was adequate. The Department searched the paper records and PIERS for any existing index or list, without limiting the search by date or by whether the records were birth records, death records, or both. Department personnel also consulted employees familiar with the relevant systems and databases. The court found that the declarations described the search in enough detail and were entitled to a presumption of good faith.

The plaintiffs relied in part on a declaration from a database expert who argued that the Department could use names, dates of birth, and related information to generate a searchable list. The court gave that argument little weight because the expert was not a Department employee, based his understanding on the Department’s own declarations, and made broad statements about ordinary databases rather than the specific PIERS system.

The court also found that the expert’s declaration did not overcome the Department’s technical explanations. A PIERS search could produce multiple numbers for a person, require an employee to select and verify the correct record, and involve separate steps for retrieving scanned documents. The digital data did not match the paper records perfectly, and PIERS could display only a limited number of results. The court concluded that the Department did not maintain a preexisting index and did not have a system capable of generating one on demand.

The court separately concluded that satisfying the request would require creating a new record, which FOIA does not require. The Department would have to conduct many searches, verify results against the physical cards, combine incomplete search results, and add records that had never been digitized—or manually create an inventory from all 95,200 paper cards. The court determined that these were extraordinary measures the Department was not required to undertake.

The court distinguished a Second Circuit decision involving another agency that was required to use programming to retrieve information because that agency already had the ability to access the requested information in the relevant way during its ordinary business. Here, the court found that the Department had shown that PIERS did not have a comparable ability to produce the requested index.

Disposition

The court granted the United States Department of State’s motion for summary judgment and denied Reclaim the Records and Alec Ferretti’s cross-motion for summary judgment. The Clerk was directed to enter judgment for the Department and close the case.