Reclaim the Records v. United States Department of State

Background

Alec Ferretti submitted a Freedom of Information Act (FOIA) request to the United States Department of State for an index or finding aid to Consular Reports of Death of a U.S. Citizen Abroad from 1975 to the present. He described the requested information as the names of people whose reports were in the Department’s possession and their dates of death. Reclaim the Records, a nonprofit organization of which Ferretti was a board member, joined him as a plaintiff.

The Department said it did not maintain such an index or finding aid. The Department stores the reports in paper and digital forms. At least 331,000 reports exist in paper form, and most, but not all, have been digitized. Digitized reports are stored in the Passport Information Electronic Records System, or PIERS. Users can search PIERS for individual reports using personally identifiable information, but ordinary searches return only a limited number of results. Backend searches can avoid that limit but produce only reference numbers, requiring employees to search for each report individually to identify the associated names and dates of death. The Department also stated that paper reports are organized by digitization dates and batch numbers, not by the information in Ferretti’s request.

The parties filed cross-motions for summary judgment. Summary judgment is a decision entered when the court finds there is no genuine dispute about an important fact and one side is entitled to judgment under the law.

Adequacy of the Department’s Search

Judge Caproni held that the Department had shown that its search was adequate. The court relied primarily on declarations from Regina Ballard, an official with substantial experience handling the Department’s passport records, and Sharon Westmark, who was familiar with the technical operation of the Department’s databases.

The declarations explained that the Department does not maintain an index of the reports in PIERS, that the former index for an earlier database no longer exists, and that PIERS cannot generate the type of comprehensive list Ferretti requested. The Department also stated that it searched all files likely to contain responsive records and found none. The court found these explanations detailed, logical, and supported by consultations with other Department employees.

After the Department made that showing, the Plaintiffs needed to provide evidence of bad faith, an incomplete search, or another reason summary judgment would be improper. Judge Caproni rejected the Plaintiffs’ arguments that the Department had used an overly narrow definition of “index,” had inadequately explained how the digital reports were organized, or had failed to account for all potentially relevant reports. The court concluded that the Plaintiffs had not raised a genuine factual dispute about the search’s adequacy.

Creation of a New Record

The court separately considered whether the Department could satisfy the request by querying PIERS and producing a database extract. FOIA requires agencies to search for existing records, including electronic records, but generally does not require an agency to create a new record. Applying that rule, the court characterized Ferretti’s request as seeking a master document containing the full range of reports, each decedent’s name, and each date of death—not the individual reports themselves.

Judge Caproni held that the requested document did not already exist. Producing it would require Department employees to obtain reference numbers through backend searches, retrieve the corresponding reports one by one, review the names and dates of death, and compile the information into a new document. The process would also need to account for paper reports that had not been digitized. The court found this to be extensive database research and record creation, rather than the routine electronic searching that FOIA may require.

The court found that the Plaintiffs’ database expert, Ron Schnell, did not create a genuine factual dispute because he lacked firsthand experience with the Department’s specific databases and did not show that the proposed searches would produce the requested information. The court also concluded that two Department documents mentioning an “electronic index” or structured query capabilities did not establish that the Department maintained a user-accessible index or could generate the requested master list through a simple query.

Disposition

The court granted the Department’s motion for summary judgment and denied the Plaintiffs’ cross-motion for summary judgment. The Clerk was directed to close the motions and terminate the case.