FOIA Requires Public Agencies To Prove The Adequacy Of Their Search For Records Beyond Material Doubt

CATEGORY: Client Update for Public Agencies, Fire Watch, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Jun 01, 2022

In the spring of 2018, a transgender woman named Roxsana Hernandez entered the United States seeking asylum. Hernandez died while being moved between various facilities under the control of the U.S. Immigration & Customs Enforcement (ICE).

The Transgender Law Center (TLC), acting on behalf of Hernandez’s family and estate, filed two Freedom of Information Act (FOIA) requests seeking government records about Hernandez’s detention and death.  The first FOIA request was directed to ICE and the second was directed to the Department of Homeland Security (DHS).

Months later, having received no records from ICE or DHS, TLC filed a lawsuit seeking to force ICE and DHS to conduct adequate searches for the requested records and release them.  The lawsuit prompted the agencies to begin disclosing records.  However, the agencies also redacted numerous documents and claimed that others were exempt altogether. The agencies filed for summary judgment, arguing that their production was complete and “adequate”.  The District Court granted summary judgment and dismissed TLC’s claim.  TLC appealed the dismissal to the Ninth Circuit Court of Appeals.

The Ninth Circuit considered whether:  ICE and DHS’s search and production was “adequate”; the agencies’ privilege log (aka Vaughn index) was sufficient; and the agencies’ invocation of the deliberative process privilege was justified.

The Ninth Circuit held that the agencies’ search for documents was not adequate.  An adequate search is one that is reasonably calculated to uncover all relevant documents.  The public entity conducting the search must prove its search meets this standard beyond a material doubt.

TLC had pointed to various email accounts that it believed should have been searched and included in the document production.  The agencies did not provide evidence they had searched those accounts.  Instead, the agencies indicated that TLC had no way of proving whether they had searched because redactions of email addresses already produced meant that the email accounts may have already been searched.  The Ninth Circuit found this insufficient, because the search was not diligent.  The agencies did not appropriately respond to “positive indications of overlooked materials” and did not fulfill their duty to follow “obvious leads.”

When withholding documents from a records request in a FOIA litigation, the withholding agency generally must provide a privilege log called a Vaughn index.  This index lists the documents withheld, the basis for the withholding (generally a codified exemption or privilege), and a brief explanation of why the withheld document is subject to the exemption or privilege.  The Ninth Circuit requires agencies that withhold documents to provide as much of an explanation as possible without thwarting the exemption’s purpose.  The withholder must also provide enough information so that the requester can “intelligently advocate release of the withheld documents” and so that the court can “intelligently judge the contest”.  The Ninth Circuit noted that many of the explanations offered by DHS and ICE were conclusory or boilerplate and thus held that the Vaughn index was insufficient.

Finally, the Ninth Circuit also dealt with the deliberative process privilege.  This privilege allows a document to be withheld from a FOIA production if the document is “predecisional” (made before the decision at issue was made or before the adoption of agency policy) and “deliberative” (related to the process by which policies are formulated).  (Note that this calculus also applies to California Public Records Act requests.)

ICE and DHS withheld documents that they had simply labeled as drafts, citing the deliberative process privilege.  Because the “draft” designation contained no references to any decision to which the document pertains, that designation did not suffice to withhold a document under the deliberative process privilege.  Simply labeling a document as a draft, without connecting it to a deliberation that took place or a decision that was made, is insufficient to protect the document from disclosure via the deliberative process privilege.

Transgender L. Ctr. v. Immigr. & Customs Enf’t, 33 F.4th 1186 (9th Cir. 2022).


This case deals with the FOIA. The California Public Records Act (CPRA) is modeled directly on the FOIA, and judicial decisions interpreting the FOIA may be helpful for CPRA issues.  This case serves as a reminder for public agencies to conduct thorough searches for requested documents and only withhold documents, or redact only those portions of documents, which squarely fit within a particular exemption from disclosure.

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