NAACP Legal Defense & Educational Fund, Inc. v. U.S. Department Of Justice

Background

The NAACP Legal Defense & Education Fund, Inc. (LDF) filed a Freedom of Information Act (FOIA) action against the Department of Justice (DOJ). LDF’s April 11, 2018 request sought records concerning DOJ’s role in the Department of Commerce’s decision to add a citizenship-status question to the 2020 decennial census. The request covered five categories, including records about DOJ’s request for the question as necessary to enforce Section 2 of the Voting Rights Act, the adequacy of citizenship information from the American Community Survey, and possible effects on census response rates.

DOJ initially told LDF that all responsive records were exempt from disclosure because disclosure could interfere with law-enforcement proceedings. After LDF appealed and filed this lawsuit, DOJ conducted several supplemental searches. DOJ ultimately released 178 pages in full or in part and withheld 63 pages in full. The parties’ cross-motions for summary judgment concerned only whether DOJ’s search was adequate. The court stated that LDF had abandoned its other claims and dismissed them.

Legal standard

In a FOIA case, the agency must show that it conducted a search reasonably calculated to find the requested records. The search need not be perfect, but the agency must search locations likely to contain responsive records and use search terms reasonably tailored to the request. Agency declarations are generally presumed to be made in good faith, but they must describe the search in enough detail for the court to evaluate its reasonableness.

The search for records covered by subpart (2)

The court found DOJ’s search of its census collection database inadequate for records responsive to subpart (2), which sought documents concerning DOJ’s request for a citizenship-status question on the 2020 census to enforce Section 2 of the Voting Rights Act. DOJ searched the database using the terms “census” and “citizenship question.”

The court ruled that these terms were too restrictive. Records could discuss the citizenship-status question and Section 2 of the Voting Rights Act without using either phrase. The court also found DOJ’s explanation for using only those terms illogical and insufficient. DOJ’s assertion that broader searches would be burdensome was speculative and did not describe the actual burden with enough specificity. The court noted that the database could be searched electronically and that searches could be narrowed through additional terms, Boolean operators, or limits on the identified custodians.

The court rejected DOJ’s argument that LDF was improperly dictating the search terms. It characterized LDF’s proposed terms as suggestions for developing a reasonable search, not as an attempt to control DOJ’s search. The court ordered the parties to meet and confer about new search terms for subpart (2) and submit a joint status letter within 21 days.

The search for records covered by subparts (1), (3), (4), and (5)

The court also found DOJ’s searches for records responsive to subparts (1), (3), (4), and (5) inadequate because DOJ failed to search all locations likely to contain responsive records. For these subparts, DOJ had asked several Voting Section personnel and John M. Gore whether additional records were likely to exist, but it had not searched the census collection database for these categories.

The court concluded that DOJ had ample reason to believe the database could contain responsive records. The database included documents related to the citizenship-status question, the Gary letter, the 2020 census litigation, and Voting Rights Act enforcement. Because the database was likely to contain responsive records, FOIA required DOJ to search it. The court rejected DOJ’s argument that searches using “census” and “citizenship question” would likely have found records responsive to the other subparts, finding that DOJ had offered no logical explanation for that assertion.

The court also rejected DOJ’s claim that searching the database would be futile because agency personnel had concluded that additional records were unlikely to exist. The court found that it was not clear that a database search would produce no responsive records, particularly because a custodian had previously been unaware of additional documents in his possession. DOJ was therefore ordered to conduct a new database search for records responsive to subparts (1), (3), (4), and (5).

Disposition

Judge Alison J. Nathan denied DOJ’s motion for summary judgment and granted LDF’s cross-motion for summary judgment. The court ordered DOJ to conduct an adequate search for documents responsive to every subpart of LDF’s FOIA request. It also required the parties to submit agreed search terms for subpart (2) and update the court about the search for the other subparts. The clerk was directed to enter judgment.