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The Government Must Use A Variety Of Terms To Search For Records For A FOIA Request

CATEGORY: Client Update for Public Agencies
CLIENT TYPE: Public Employers
DATE: Aug 04, 2022

Inter-Cooperative Exchange (ICE) is a cooperative of fishers who harvest and deliver crab off the coast of Alaska.  In 2005, as part of a program designed to allocate crab resources among the harvesters and coastal communities, an arbitrator developed a price formula to guide the price of crab.  In 2014, Alaska increased the minimum wage, which raised the question of whether this increase should be included in the price formula.  A member of a U.S. Government Regional Council tasked with making this decision, Glen Merrill, advocated for including this extra cost.  He was unsuccessful.

ICE thereafter filed a Freedom of Information Act (FOIA) request, a federal governmental document public access law upon which California’s Public Records Act is modeled.  The request sought information behind Merrill’s and the government’s actions, including records related to “crab arbitration system standards” and “the Alaska state minimum wage increase”.    The government produced 146 records along with a search log that showed that the government had searched Merrill’s emails, network, and desktop using three search terms: “binding arbitration”, “arbitration”, and “crab”.  Merrill also submitted a declaration stating that he did not own a government cellphone but had searched his personal cellphone with the three terms and had found no responsive records.

ICE was unsatisfied with this response and filed suit to compel the government to conduct a more thorough search and produce further records.  The Ninth Circuit Court of Appeals reviewed this suit and held that the search terms used were not reasonably calculated to uncover all documents relevant to ICE’s request.

The critical inquiry was whether the government’s selection of the three search terms was reasonably calculated to uncover all responsive documents.  The Ninth Circuit explained that the test for making this determination was one of reasonableness while keeping in mind that “FOIA requests are not a game of Battleship”, and also that requestors are not entitled to a “perfect” search.

The Ninth Circuit compared the government’s search here to two previous cases, in which the government had used a variety of keywords which included common misspellings and alternate spellings.  The Ninth Circuit concluded that the government’s search was inadequate for three reasons.

First, the terms did not cover the part of the FOIA request that was related to the Alaska minimum wage.  Second, the search terms did not encompass the broad request for records relating to crab arbitration.  Third, the terms did not account for related variants and shorthand terms.  Thus, the government was unable to meet its burden of showing the adequacy of its search beyond a material doubt.

The Ninth Circuit also determined that aside from the inadequate search terms, allowing Merrill to personally search his personal cellphone by looking for or listening to keywords was indeed reasonable.  Aside from the inadequacy of the chosen search terms, the fact that the government showed that Merrill did not use his personal cell phone for government business and that he searched his text messages, Facebook account, WhatsApp account, and voicemails for records was enough to convince the Ninth Circuit that the search of Merrill’s cell phone was “reasonably calculated to uncover all relevant documents.”

Inter-Coop. Exch. v. United States Dep’t of Com., 36 F.4th 905, 913 (9th Cir. 2022).

Note:

This case illustrates just how important it is for public agencies to provide a detailed accounting of the search they undertake in response to CPRA or FOIA requests. Adequate search terms should always be chosen, and a diligent search should always be conducted.

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