Smith v. Bharara

Background

John Smith, proceeding without a lawyer, brought a Freedom of Information Act (FOIA) action against the United States Marshals Service (USMS) and the Executive Office for United States Attorneys (EOUSA). He requested records concerning his transfers between state and federal custody in 2010 and 2011 and his detention at a GEO facility. He submitted two requests to each agency.

The USMS produced nine pages in response to one request in December 2017. After the lawsuit began, it searched for records responsive to both USMS requests and, in July 2020, produced 14 pages in total, including the nine pages previously produced. The USMS searched its main electronic database using Smith’s name, USMS number, federal identification number, and date of birth. It also searched more broadly for all records concerning Smith rather than only records about the 2011 transfers and detention.

The EOUSA initially forwarded Smith’s requests to a USMS FOIA officer without conducting its own search. After the court ordered clarification and allowed a further search, the EOUSA searched several sources, including a database of matters handled by the United States Attorney’s Office for the Southern District of New York, a public court-records database, electronically stored records associated with an internal case number, and archived emails of Assistant United States Attorney Nola Heller. The searches produced no responsive records, although the archived-email search found seven emails that mentioned Smith and were deemed nonresponsive.

Court’s analysis

In a FOIA case, an agency seeking summary judgment must show that it conducted a search reasonably calculated to find the requested records. The court evaluates the search methods, including the search locations and terms used, rather than requiring proof that every existing record was found.

USMS

The court held that the USMS met its burden. The USMS declaration described the database searched, the search terms used, and the broad scope of the search. The court also noted that the USMS produced 14 pages of responsive records, with limited redactions that Smith did not challenge.

The court rejected Smith’s bad-faith argument. Although the USMS took nearly three years to respond to his second request, the court held that delay alone did not show bad faith when the agency ultimately conducted an adequate search. The court also rejected arguments based on the USMS’s failure to produce a writ that Smith believed existed and its discovery of additional records during the later search.

EOUSA

The court held that the EOUSA had not shown that its search was adequate. The EOUSA used broader search terms in the Lexis CourtLink search but searched AUSA Heller’s archived emails only for Smith’s full name. The agency also appeared to search its general electronic database only for documents associated with an internal case number. The EOUSA did not explain why it used different search terms in different electronic sources, particularly when some sources were more likely than others to contain responsive records.

The court rejected several other challenges to the EOUSA’s search. It held that the EOUSA did not have to interview witnesses, search records held by other agencies, or search additional databases when it had identified databases reasonably likely to contain responsive communications. The court also found that Smith had not shown that the EOUSA acted in bad faith. The EOUSA’s initial decision to forward the requests to the USMS was arguably mistaken, but it was not without a basis, and the evidence did not support an inference that the EOUSA failed to forward the requests as it claimed.

Disposition

Judge Laura Taylor Swain granted the defendants’ motion for summary judgment to the extent it was brought on behalf of the USMS. She denied the motion without prejudice to renewal to the extent it was brought on behalf of the EOUSA. The EOUSA was ordered to redo its electronic searches using a broad, uniform selection of search terms, or to explain any necessary inconsistencies, and to submit declarations reporting the results and any additional productions by April 30, 2021. The EOUSA could renew its summary judgment motion with that supplemental submission.

The court directed the clerk to terminate the USMS as a defendant and to terminate the summary judgment motion. The court denied Smith’s request for discovery concerning the forwarding of his requests. It also denied his request to reinstate section 1983 claims under the grounds stated in earlier court orders. His requests for appointment of counsel and for the court to conduct an in-camera review of records were denied without prejudice to renewal after the EOUSA submitted its supplemental materials.