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Case TitleCOZEN O'CONNOR v. THE OFFICE OF FOREIGN ASSETS CONTROL
DistrictEastern District of Pennsylvania
CityPhiladelphia
Case Number2:2017cv01490
Date Filed2017-04-03
Date ClosedOpen
JudgeHONORABLE JAN E. DUBOIS
PlaintiffCOZEN O'CONNOR
Case DescriptionThe law firm of Cozen O'Connor submitted a FOIA request to the Office of Foreign Assets Control for records concerning granting licenses to persons or companies to trade with Cuba. The agency acknowledged receipt of the request and told the law firm that it had no records. Cozen O'Connor filed an administrative appeal. The agency's original decision was upheld on appeal. Cozen O'Connor then filed suit.
Complaint issues: Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees

DefendantTHE OFFICE OF FOREIGN ASSETS CONTROL
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Opinion/Order [17]
Opinion/Order [18]
FOIA Project Annotation: A federal court in Pennsylvania has ruled that the Office of Foreign Assets Control did not conduct an adequate search in response to a request from the law firm of Cozen O'Connor for records about granting licenses to individuals or companies to conduct business in Cuba. OFAC decided that its Licensing Division was the only component likely to have responsive records. However, after conducting a database search containing five key words, OFAC located no records. Cozen O'Connor filed an administrative appeal, which was denied. Cozen O'Connor then filed suit. The court rejected the agency's allegations, finding that on its face the search was clearly insufficient. The court noted that the agency's affidavit indicating that the Licensing Division was the only component likely to have responsive records "shows the opposite: there are divisions or entities within OFAC that should have been included in defendant's search," including the Office of Compliance and Enforcement. The court observed that "in this case, defendant has failed to explain why it limited its search to the Licensing Division, when the agency's own declaration shows that documents in the possession of other divisions 'may be relevant.' Viewing the record in the light most favorable to defendant, the Court concludes that there is no genuine issue of material fact that the scope of defendant's search was inadequate." The court criticized the search terms as well. The court pointed out that "defendant's search terms were not reasonably calculated to uncover documents relevant to [the third item in plaintiff's request] for the 'criteria that OFAC uses to determine' whether to grant licenses. None of the search terms used by defendant are related to that 'criteria.' Defendant's search terms instead focus only on plaintiff's first two requests covering defendants' procedures and policies for reviewing applications." Cozen O'Connor argued that materials available on OFAC's website indicated other sources of information about licenses. OFAC asserted the references only applied to licenses in general, not to licenses for Cuba. However, the court noted that "the documents distinguish between general and specific licenses, instruct applicants on what to include in applications for specific licenses, and provide guidance to applicants on specific topics. It is reasonable to infer that defendant has additional documents related to the policies and procedures embodied in the documents supplied by plaintiff. Considered in light of the inadequacy of the scope of defendant's search and the inadequacy of the search terms used by the defendant, the 'positive indications of overlooked materials' in this case show that there is no genuine issue of material fact as to the inadequacy of defendant's search." The court sent the case back to the agency for a more thorough search.
Issues: Search - Reasonableness of search
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-04-031COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against THE OFFICE OF FOREIGN ASSETS CONTROL ( Filing fee $ 400 receipt number PPP157375), filed by COZEN O'CONNOR. (Attachments: # 1 Civil Cover Sheet, # 2 Case Management Track Form, # 3 Designation Form)(jmv, ) (Entered: 04/03/2017)
2017-04-03Summons Issued as to THE OFFICE OF FOREIGN ASSETS CONTROL, U.S. Attorney and U.S. Attorney General Forwarded To: 1 given to AUSA; 2 Origs mailed to counsel on 4/3/17 (jmv, ) (Entered: 04/03/2017)
2017-04-032Disclosure Statement Form pursuant to FRCP 7.1 by COZEN O'CONNOR.(jmv, ) (Entered: 04/03/2017)
2017-04-073Acceptance of Service by U.S. Attorney Re: accepted summons and complaint on behalf of the United States Attorney (only). (amas) (Entered: 04/07/2017)
2017-04-104NOTICE of Appearance by HAYES A. HUNT on behalf of COZEN O'CONNOR with Certificate of Service(HUNT, HAYES) (Entered: 04/10/2017)
2017-04-245AFFIDAVIT of Service by Ambiko Guice re: served Summons, Complaint, Case Management Track Designation, Disclosure Statement upon United States Office of the Attorney General by Personal on 04/13/17 (LEONARD, THOMAS) (Entered: 04/24/2017)
2017-04-246AFFIDAVIT of Service by Ambiko Guice re: served Summons, Complaint, Case Management Track Designation, Disclosure Statement upon Office of Foreign Assets Control by Personal Service on 04/13/17 (LEONARD, THOMAS) (Entered: 04/24/2017)
2017-05-017ANSWER to 1 Complaint, by THE OFFICE OF FOREIGN ASSETS CONTROL.(REID, SCOTT) (Entered: 05/01/2017)
2017-05-048NOTICE of Hearing: JOINT TELEPHONE CONFERENCE SET FOR 6/6/2017 04:45 PM BEFORE HONORABLE JAN E. DUBOIS. (Attachments: # 1 Conference Information Report.pdf, # 2 Scheduling & Discovery Policy-Counsel.pdf)(mvh, ) (Entered: 05/04/2017)
2017-06-089ORDER THAT ON OR BEFORE 7/7/17, DEFENDANT SHALL FILE AND PROVIDE PLAINTIFF WITH A COPY OF THE ADMINISTRATIVE RECORD. ON OR BEFORE 8/4/17, DEFENDANT SHALL FILE AND SERVE ITS MOTION FOR SUMMARY JUDGMENT. ON OR BEFORE 8/25/17, PLAINTIFF SHALL FILE AND SERVE ITS RESPONSE TO THE MOTION FOR SUMMARY JUDGMENT AND ITS CROSS MOTION FOR SUMMARY JUDGMENT. ON OR BEFORE 9/8/17, DEFENDANT SHALL FILE AND SERVE ITS RESPONSE TO PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT. LEAVE TO FILE REPLIES MUST BE REQUESTED BY LETTER TO CHAMBERS. REPLIES WILL BE PERMITTED ONLY IF NECESSARY TO RESPOND TO ISSUES RAISD FOR THE FIRST TIME IN RESPONSE TO THE SUMMARY JUDGMENT MOTIONS; AND, TWO (2) COPIES OF EACH OF THE AFORESAID DOCUMENTS SHALL BE SERVED ON THE COURT (CHAMBERS, ROOM 12613) WHEN THE ORIGINAL IS FILED. SIGNED BY HONORABLE JAN E. DUBOIS ON 6/6/17. 6/8/17 ENTERED & E-MAILED.(fdc) (Entered: 06/08/2017)
2017-08-0410MOTION for Summary Judgment filed by THE OFFICE OF FOREIGN ASSETS CONTROL.Memorandum, Declaration, Certificate of Service. (Attachments: # 1 Exhibit Exhibit A)(REID, SCOTT) (Entered: 08/04/2017)
2017-08-0411Statement of Material Facts in Support of its Motion for Summary Judgment by THE OFFICE OF FOREIGN ASSETS CONTROL. (REID, SCOTT) (Entered: 08/04/2017)
2017-08-2412RESPONSE in Opposition re 10 MOTION for Summary Judgment filed by COZEN O'CONNOR. (LEONARD, THOMAS) (Entered: 08/24/2017)
2017-08-3013CROSS MOTION FOR SUMMARY JUDGEMENT and Cross Motion for Summary Judgment filed by COZEN O'CONNOR. (LEONARD, THOMAS) Modified on 9/1/2017 (lvj, ). (Entered: 08/30/2017)
2017-09-0114ORDER THAT DEFENDANTS REQUEST IS GRANTED AND DEFENDANT SHALL FILE ITS REPLY BY 9/8/17. SIGNED BY HONORABLE JAN E. DUBOIS ON 8/31/17. 9/1/17 ENTERED AND COPIES EMAILED.(rf, ) Modified on 9/1/2017 (rf, ). (Entered: 09/01/2017)
2017-09-0115Letter to the Honorable Jan E. DuBois from Scott W. Reid (rf, ) (Entered: 09/01/2017)
2017-09-0816RESPONSE in Support re 10 MOTION for Summary Judgment filed by THE OFFICE OF FOREIGN ASSETS CONTROL. (Attachments: # 1 Exhibit)(REID, SCOTT) (Entered: 09/08/2017)
2017-11-3017MEMORANDUM AND OPINION. SIGNED BY HONORABLE JAN E. DUBOIS ON 11/29/17. 11/30/17 ENTERED & E-MAILED.(fdc) (Entered: 11/30/2017)
2017-11-3018MEMORANDUM AND ORDER THAT PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT IS GRANTED AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS DENIED. SIGNED BY HONORABLE JAN E. DUBOIS ON 11/29/17. 11/30/17 ENTERED & E-MAILED.(fdc) (Entered: 11/30/2017)
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by FOIA Project Staff