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Case TitleGOVERNMENT ACCOUNTABILITY PROJECT v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv02518
Date Filed2017-11-21
Date ClosedOpen
JudgeJudge Christopher R. Cooper
PlaintiffGOVERNMENT ACCOUNTABILITY PROJECT
Case DescriptionThe Government Accountability Project submitted a FOIA request to the Department of Homeland Security for records concerning policies for border checks. The agency acknowledged receipt of the request, but after hearing nothing further from the agency, GAP filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Attorney's fees

DefendantUNITED STATES DEPARTMENT OF HOMELAND SECURITY
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Opinion/Order [15]
FOIA Project Annotation: Judge Christopher Cooper has ruled that the Department of Homeland Security did not conduct an adequate search for records requested by the Government Accountability Project pertaining to "ideological tests" and "searches of cellphones" at the U.S. border. The agency did an electronic records search for records containing the verbatim language used by GAP " "ideological tests" and "border" for the first request, and "search" and "cellphone" for the second request " and found no responsive records. After GAP filed suit, DHS conducted a further search of emails between dhs.gov and eop.gov containing the keywords. This search yielded no records concerning ideological tests and 807 documents containing the terms "search" and "cellphone." But after reviewing those records, DHS determined none were responsive to GAP's request. GAP complained that the searches were too limited and should have contained more keywords. Cooper agreed, finding that Summers v. Dept of Justice, 934 F. Supp. 458 (D.D.C. 1996), where the court found that a search for former FBI Director J. Edgar Hoover's commitment calendars was insufficient because the FBI only used the word "commitment," instead of obvious search terms like "appointment" and "diary." Cooper pointed out that "while 'ideological tests' may not have quite as obvious substitutes as 'commitment calendars,' searching for that phrase verbatim was always doomed to return limited results. At the very least, the agency should have used synonyms for 'test' and proxies for 'ideological' and should not have grouped the two words together " since that risks excluding any emails where both 'ideological' and 'tests' were used, but not in the precise 'ideological tests' syntax." Cooper also found that Bagwell v. Dept of Justice, 311 F. Supp. 3d 223 (D.D.C. 2018), where a search for records concerning DOJ's involvement in the sexual abuse scandal at Penn State was found inadequate because the agency searched only the term "Pennsylvania State University" rather than including "PSU" or "Penn State." Cooper noted that Bagwell applied here as well. He pointed out that "searching only for the word 'cellphone' is inadequate, variants that may well be used in correspondence " like the two-word version 'cell phone' or simply 'phone' " must also be included. Such variants may be just as likely to be used by the relevant government officials." Ordering the parties to confer on a reasonable list of search terms, Cooper observed that "FOIA requests are not a game of Battleship. The requester should not have to score a direct hit on the records sought based on the precise phrasing of his request. Rather, the agency must liberally interpret the request and frame its search accordingly."
Issues: Search - Reasonableness of search
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-11-211COMPLAINT against UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number 0090-5216810) filed by GOVERNMENT ACCOUNTABILITY PROJECT. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit, # 3 Exhibit, # 4 Summons, # 5 Summons, # 6 Summons)(Burday, Joshua) (Entered: 11/21/2017)
2017-11-22Case Assigned to Judge Christopher R. Cooper. (zsb) (Entered: 11/22/2017)
2017-11-222SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 11/22/2017)
2018-01-173Consent MOTION for Extension of Time to Answer or Otherwise Respond to Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 01/17/2018)
2018-01-18MINUTE ORDER granting 3 Defendant's Motion for Extension of Time. Defendant's response to the complaint shall now be due by February 16, 2018. Signed by Judge Christopher R. Cooper on 1/18/2018. (lccrc2) (Entered: 01/18/2018)
2018-01-18Set/Reset Deadlines: Answer due by 2/16/2018 (lsj) (Entered: 01/18/2018)
2018-02-144ANSWER to 1 Complaint, by UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(Simon, Jeremy) (Entered: 02/14/2018)
2018-02-14MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. Since the requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure do not apply, it is hereby ORDERED that the parties shall confer and file a joint proposed schedule for briefing or disclosure by February 28, 2018. Signed by Judge Christopher R. Cooper on 2/14/2018. (lccrc2) (Entered: 02/14/2018)
2018-02-14Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 2/28/2018 (lsj) (Entered: 02/14/2018)
2018-02-275Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 02/27/2018)
2018-02-28MINUTE ORDER: In light of 5 the parties' Joint Status Report, the parties are directed to file a further joint status report by April 3, 2018 proposing a further schedule for production. Signed by Judge Christopher R. Cooper on 2/28/2018. (lccrc2) (Entered: 02/28/2018)
2018-02-28Set/Reset Deadlines: Joint Status Report due by 4/3/2018 (lsj) (Entered: 02/28/2018)
2018-04-036Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 04/03/2018)
2018-04-06MINUTE ORDER: In light of 6 the parties' joint status report, the parties are directed to file a further joint status report by May 8, 2018 proposing a further schedule for production. Signed by Judge Christopher R. Cooper on 4/3/2018. (lccrc2) (Entered: 04/06/2018)
2018-04-06Set/Reset Deadlines: Joint Status Report due by 5/8/2018 (lsj) (Entered: 04/06/2018)
2018-05-087Joint STATUS REPORT and Proposed Briefing Schedule by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 05/08/2018)
2018-05-09MINUTE ORDER: In light of 7 the parties' joint status report, the summary judgment briefing schedule in this case shall be as follows: Defendant's motion for summary judgment shall be due by June 27, 2018; Plaintiff's combined opposition and cross-motion shall be due by July 27, 2018; Defendant's combined reply and opposition shall be due by August 17, 2018; and Plaintiff's reply shall be due by September 7, 2018. Signed by Judge Christopher R. Cooper on 5/9/2018. (lccrc2) (Entered: 05/09/2018)
2018-05-09Set/Reset Deadlines: Summary Judgment motions due by 6/27/2018. Response to Motion for Summary Judgment due by 7/27/2018. Reply to Motion for Summary Judgment due by 8/17/2018. Replies due by 9/7/2018. (lsj) (Entered: 05/09/2018)
2018-06-278MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Proposed Order, # 2 Declaration of James V.M.L. Holzer)(Simon, Jeremy) (Entered: 06/27/2018)
2018-07-279MOTION for Partial Summary Judgment by GOVERNMENT ACCOUNTABILITY PROJECT (Attachments: # 1 Memorandum in Support Memorandum, # 2 Statement of Facts Statement of Genuine Issues of Fact, # 3 Statement of Facts Statement of Material Facts, # 4 Text of Proposed Order Proposed Order)(Topic, Matthew) (Entered: 07/27/2018)
2018-08-1710Unopposed MOTION for Extension of Time to File Combined Opposition and Reply by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 08/17/2018)
2018-08-20MINUTE ORDER granting 10 Defendant's Motion for Extension of Time. It is hereby ORDERED that Defendant's opposition and reply brief is due on or before September 10, 2018 and Plaintiff's reply is due on or before October 1. Signed by Judge Christopher R. Cooper on 8/20/18. (lccrc2) (Entered: 08/20/2018)
2018-08-21Set/Reset Deadlines: Defendant's Opposition and Reply Brief due by 9/10/2018. (lsj) (Entered: 08/21/2018)
2018-09-1011Memorandum in opposition to re 9 MOTION for Partial Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Response to Plaintiff's Local Rule 7(h) Statement, # 2 Supplemental Declaration of James V.M.L. Holzer, # 3 Proposed Order)(Simon, Jeremy) (Entered: 09/10/2018)
2018-09-1012REPLY to opposition to motion re 8 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum (duplicate of Docket Entry No. 11) filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Response to Plaintiff's Local Rule 7(h) Statement, # 2 Supplemental Declaration of James V.M.L. Holzer, # 3 Proposed Order)(Simon, Jeremy) (Entered: 09/10/2018)
2018-10-0113REPLY to opposition to motion re 9 MOTION for Partial Summary Judgment filed by GOVERNMENT ACCOUNTABILITY PROJECT. (Topic, Matthew) (Entered: 10/01/2018)
2018-10-1214ORDER denying 8 Defendant's Motion for Summary Judgment and granting 9 Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Christopher R. Cooper on 10/12/2018. (lccrc2) (Entered: 10/12/2018)
2018-10-1215MEMORANDUM OPINION re 14 Order denying Defendant's Motion for Summary Judgment and granting Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Christopher R. Cooper on 10/12/2018. (lccrc2) (Entered: 10/12/2018)
2018-10-12Set/Reset Deadlines: Meet & Confer Statement due by 10/26/2018. Responses due by 11/2/2018. (znbn) (Entered: 10/12/2018)
2018-10-2416Consent MOTION for Extension of Time to Comply with Deadlines in Court's October 12, 2018 Order by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 10/24/2018)
2018-10-25MINUTE ORDER granting Defendant's 16 Consent Motion for Extension of Time to Comply with Deadlines in Court's October 12, 2018 Order. The October 26, 2018 deadline for the parties to meet and confer regarding potential search terms is now extended to November 9, 2018; the November 2, 2018 deadline for the parties, should they be unable to agree on search terms, to propose their preferred terms to the Court is now extended to November 16, 2018. Signed by Judge Christopher R. Cooper on 10/25/2018. (lccrc2) (Entered: 10/25/2018)
2018-10-25Set/Reset Deadlines: Meet & Confer Statement due by 11/9/2018. Deadline for the parties, should they be unable to agree on search terms, to propose their preferred terms to the Court is now extended to 11/16/2018. (znbn) (Entered: 10/25/2018)
2018-11-1617Joint STATUS REPORT Regarding Search Terms by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 11/16/2018)
2018-11-2118ORDER regarding additional search terms. Signed by Judge Christopher R. Cooper on 11/21/2018. (lccrc2) (Entered: 11/21/2018)
2019-08-0619NOTICE of Appearance by Merrick Jason Wayne on behalf of GOVERNMENT ACCOUNTABILITY PROJECT (Wayne, Merrick) (Entered: 08/06/2019)
2019-09-06MINUTE ORDER: The parties are hereby ORDERED to file a joint status report by Friday, September 13, 2019 with an update on the status of production. Signed by Judge Christopher R. Cooper on 9/6/19. (lccrc2) (Entered: 09/06/2019)
2019-09-06Set/Reset Deadlines: Joint Status Report due by 9/13/2019 (lsj) (Entered: 09/06/2019)
2019-09-1320Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 09/13/2019)
2019-09-17MINUTE ORDER: In light of 20 Joint Status Report, the parties are hereby ORDERED to file a joint status report by October 1, 2019, which shall include an update on when the Department of Homeland Security expects to complete its review of the search results and, if responsive records are identified, a proposed production schedule. Signed by Judge Christopher R. Cooper on 9/17/19. (lccrc2) (Entered: 09/17/2019)
2019-09-17Set/Reset Deadlines: Joint Status Report due by 10/1/2019 (lsj) (Entered: 09/17/2019)
2019-10-0121Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 10/01/2019)
2019-10-03MINUTE ORDER: In light of 21 Joint Status Report, the parties are hereby ORDERED to file a joint status report by October 29, 2019, which shall include the parties' proposals for further proceedings. Signed by Judge Christopher R. Cooper on 10/3/19. (lccrc2) (Entered: 10/03/2019)
2019-10-04Set/Reset Deadlines: Joint Status Report due by 10/29/2019 (lsj) (Entered: 10/04/2019)
2019-10-2922Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 10/29/2019)
2019-10-31MINUTE ORDER: The parties are directed to file a joint status report by December 2, 2019, which shall include their respective proposals for further proceedings. Signed by Judge Christopher R. Cooper on 10/31/19. (lccrc2) (Entered: 10/31/2019)
2019-10-31Set/Reset Deadlines: Joint Status Report due by 12/2/2019 (lsj) (Entered: 10/31/2019)
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