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U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:18-cv-09363-AJN

NAACP Legal Defense & Educational Fund, Inc. v. U.S. Department Of Justice Assigned to: Judge Alison J. Nathan Cause: 05:552 Freedom of Information Act

Date Filed: 10/12/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff

NAACP Legal Defense & Educational Fund, Inc.

represented by Aaron Ross Sussman Naacp Legal Defense & Educational Fund, Inc. 40 Rector St. New York, NY 10006 (212)-965-2200 Email: asussman@naacpldf.org TERMINATED: 07/28/2020

Cerissa Cafasso American Oversight 1030 15th Street NW Ste B255 Washington, DC 20005 202-869-5244 Email: cerissa.cafasso@americanoversight.org TERMINATED: 10/24/2019

Emma Lewis American Oversight 1030 15th St NW Ste B255 Washington, DC 20005 202-919-6303 Email: emma.lewis@americanoversight.org ATTORNEY TO BE NOTICED

John Zachery Morris NAACP Legal Defense Fund 40 Rector Street 5th Floor

V. Defendant U.S. Department Of Justice

10006 New York, NY 10006 212-965-2200 Email: zmorris@naacpldf.org ATTORNEY TO BE NOTICED
Leah Camille Aden NAACP Legal Defense & Educational Fund, Inc. New York, NY 10006 212-965-7715 Fax: 212-226-7592 Email: laden@naacpldf.org ATTORNEY TO BE NOTICED
represented by Rebecca Kopplin DOJ-Civ 1100 L Street NW Washington, DC 20005 202-514-3953 Email: rebecca.m.kopplin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/12/2018
10/12/2018 10/12/2018 10/12/2018 10/12/2018

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Docket Text

1 COMPLAINT against U.S. Department Of Justice. (Filing Fee $ 400.00.)Document filed by NAACP Legal Defense & Educational Fund, Inc.. (Attachments: # 1 Exhibit A - Apr. 11, 2018 Request, # 2 Exhibit B - Apr. 25, 2018 Letter, # 3 Exhibit C - Apr. 30, 2018 Letter, # 4 Exhibit D - May 31, 2018 Letter, # 5 Exhibit E - July 13, 2018 Email, # 6 Exhibit F - July 16, 2018 Email, # 7 Exhibit G - August 28, 2018 Letter, # 8 Exhibit H - Sept. 17, 2018 Email, # 9 Exhibit I - Sept. 27, 2018 Letter)(Aden, Leah) (Entered: 10/12/2018)

2 CIVIL COVER SHEET filed. (Aden, Leah) (Entered: 10/12/2018)

3 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department
of Justice, re: 1 Complaint,,. Document filed by NAACP Legal Defense & Educational Fund, Inc.. (Aden, Leah) (Entered: 10/12/2018)

4 NOTICE OF APPEARANCE by Leah Camille Aden on behalf of NAACP Legal Defense & Educational Fund, Inc.. (Aden, Leah) (Entered: 10/12/2018)

5 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by NAACP Legal Defense & Educational

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10/16/2018
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10/18/2018

Fund, Inc..(Aden, Leah) (Entered: 10/12/2018)
Civil Case Opening Fee Payment: for 1 Complaint,,. Filing fee $ 400.00.(Aden, Leah) (Entered: 10/15/2018)
***NOTICE TO ATTORNEY TO PAY THE FILING FEE. Notice to Attorney Leah Camille Aden. Civil Case Opening Fee of $400 Due: for
1 Complaint,,. The filing fee due was not paid; either in whole or in part. If the filing fee is not paid within five (5) days, per Amended Standing Order 15-mc-131, this case will be administratively closed. Filing Fee due by 10/22/2018. (jgo) (Entered: 10/15/2018)
Civil Case Opening Fee Payment: for 1 Complaint,,. Filing fee $ 400.00, receipt number ANYSDC-15748003.(Aden, Leah) (Entered: 10/15/2018)
***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Leah Camille Aden. The following case opening statistical information was erroneously selected/entered: Fee Date 10/12/2018;. The following correction(s) have been made to your case entry: the Fee Date has been modified to 10/15/2018;. (jgo) (Entered: 10/16/2018)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Alison J. Nathan. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (jgo) (Entered: 10/16/2018)
Magistrate Judge Henry B. Pitman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (jgo) (Entered: 10/16/2018)
Case Designated ECF. (jgo) (Entered: 10/16/2018)
6 ELECTRONIC SUMMONS ISSUED as to U.S. Department Of Justice. (jgo) (Entered: 10/16/2018)
7 SUMMONS RETURNED EXECUTED (FOIA CASE) Summons and Complaint,, served. U.S. Department Of Justice served on 10/17/2018, answer due 11/16/2018. Service was accepted by Haojun Li, Clerk, U.S. Attorney for Southern District of New York. Document filed by NAACP Legal Defense & Educational Fund, Inc.. (Aden, Leah) (Entered: 10/17/2018)
8 SUMMONS RETURNED EXECUTED (FOIA CASE) Summons and

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Complaint,, served. Service was accepted by Brian Cress, Mail Clerk and Authorized Agent of the U.S. Department of Justice. Document filed by NAACP Legal Defense & Educational Fund, Inc.. (Aden, Leah) (Entered: 10/18/2018)
9 NOTICE OF APPEARANCE by Aaron Ross Sussman on behalf of NAACP Legal Defense & Educational Fund, Inc.. (Sussman, Aaron) (Entered: 10/25/2018)
10 NOTICE OF INITIAL PRETRIAL CONFERENCE: Parties ordered to submit via ECF proposed case management plan and joint letter seven days before conference. (Initial Conference set for 2/8/2019 at 03:15 PM in Courtroom 906, 40 Centre Street, New York, NY 10007 before Judge Alison J. Nathan.) (Signed by Judge Alison J. Nathan on 10/26/2018) (jca) Modified on 10/26/2018 (jca). (Entered: 10/26/2018)
11 MOTION for Cerissa Irene Cafasso to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-15891145. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by NAACP Legal Defense & Educational Fund, Inc.. (Attachments: # 1 Affidavit in Support of Motion to Appear Pro Has Vice, # 2 Certificates of Good Standing, # 3 Text of Proposed Order) (Cafasso, Cerissa) (Entered: 11/09/2018)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 11 MOTION for Cerissa Irene Cafasso to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-15891145. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 11/09/2018)
12 ORDER granting 11 Motion for Cerissa Irene Cafasso to Appear Pro Hac Vice (HEREBY ORDERED by Judge Alison J. Nathan)(Text Only Order) (Nathan, Alison) (Entered: 11/14/2018)
13 NOTICE OF APPEARANCE by Rebecca Kopplin on behalf of U.S. Department Of Justice. (Kopplin, Rebecca) (Entered: 11/15/2018)
14 ANSWER to 1 Complaint,,. Document filed by U.S. Department Of Justice.(Kopplin, Rebecca) (Entered: 11/16/2018)
15 NOTICE OF APPEARANCE by John Zachery Morris on behalf of NAACP Legal Defense & Educational Fund, Inc.. (Morris, John) (Entered: 12/07/2018)
16 LETTER MOTION to Stay in Light of Lapse in Appropriations addressed to Judge Alison J. Nathan from Rebecca M. Kopplin dated January 24, 2019. Document filed by U.S. Department Of Justice. (Kopplin, Rebecca) (Entered: 01/24/2019)
17 ORDER denying as moot 16 Letter Motion to Stay: In light of the restoration of the funding to the Department of Justice, the request to stay all deadlines and adjourn the initial pretrial conference is denied as moot. (Signed by Judge Alison J. Nathan on 1/28/2019) (jwh) (Entered:

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05/13/2019 05/13/2019 05/13/2019

01/28/2019)
18 INITIAL REPORT OF PARTIES BEFORE PRETRIAL CONFERENCE. Joint Letter Document filed by U.S. Department Of Justice. (Attachments: # 1 Civil Case Management Plan and Scheduling Order)(Kopplin, Rebecca) (Entered: 02/01/2019)
Minute Entry for proceedings held before Judge Alison J. Nathan. Initial pre-trial conference held. Case management plan entered. See transcript for complete details. (Court Reporter Rose Prater) (qs) (Entered: 02/08/2019)
19 MEMO ENDORSEMENT on re: 18 Initial Report of Parties Before Pretrial Conference filed by U.S. Department Of Justice. ENDORSEMENT: SO ORDERED. (Cross Motions due by 5/10/2019., Motions due by 4/12/2019., Responses due by 6/7/2019, Replies due by 6/28/2019.) (Signed by Judge Alison J. Nathan on 2/8/2019) (kv) (Entered: 02/11/2019)
20 CONSENT LETTER MOTION for Extension of Time addressed to Judge Alison J. Nathan from Rebecca M. Kopplin dated 4/5/2109. Document filed by U.S. Department Of Justice. (Attachments: # 1 Proposed Revised Scheduling Order)(Kopplin, Rebecca) (Entered: 04/05/2019)
21 REVISED SCHEDULING ORDER: Upon consideration of the Defendant's motion for an extension of the summary judgment briefing schedule, the motion is GRANTED. It is hereby ORDERED that Defendant shall file its motion for summary judgment on or before May 13, 2019; Plaintiff shall files its combined cross-motion for summary judgment and opposition on or before June 10, 2019; Defendant shall file its combined opposition and reply on or before July 8, 2019; and Plaintiff shall file its reply on or before July 29, 2019. SO ORDERED. (Signed by Judge Alison J. Nathan on 4/10/2019) ( Cross Motions due by 6/10/2019., Motions due by 5/13/2019., Responses due by 7/8/2019, Replies due by 7/29/2019.) (ks) (Entered: 04/10/2019)
22 MOTION for Summary Judgment . Document filed by U.S. Department Of Justice. Responses due by 6/10/2019(Kopplin, Rebecca) (Entered: 05/13/2019)
23 MEMORANDUM OF LAW in Support re: 22 MOTION for Summary Judgment . . Document filed by U.S. Department Of Justice. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Kopplin, Rebecca) (Entered: 05/13/2019)
24 DECLARATION of Tink Cooper in Support re: 22 MOTION for Summary Judgment .. Document filed by U.S. Department Of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Kopplin, Rebecca) (Entered: 05/13/2019)

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25 CROSS MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment (Doc. 22). Document filed by NAACP Legal Defense & Educational Fund, Inc.. Responses due by 7/8/2019 (Attachments: # 1 Notice of Combined Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment)(Aden, Leah) (Entered: 06/10/2019)
26 MEMORANDUM OF LAW in Support re: 25 CROSS MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment (Doc. 22). . Document filed by NAACP Legal Defense & Educational Fund, Inc.. (Attachments: # 1 Declaration of Leah C. Aden, # 2 Exhibit A, # 3 Exhibit B, # 4 Plaintiff's Statement of Material Facts, # 5 Text of Proposed Order)(Aden, Leah) (Entered: 06/10/2019)
27 REPLY MEMORANDUM OF LAW in Support re: 22 MOTION for Summary Judgment ., 25 CROSS MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment (Doc. 22). and Opposition Memorandum of Law. Document filed by U.S. Department Of Justice. (Attachments: # 1 Exhibit Ex 6 - Gore Deposition Transcript Extract)(Kopplin, Rebecca) (Entered: 07/08/2019)
28 DECLARATION of Tink Cooper in Opposition re: 22 MOTION for Summary Judgment ., 25 CROSS MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment (Doc. 22).. Document filed by U.S. Department Of Justice. (Attachments: # 1 Exhibit Ex L - Rule 45 Subpoena)(Kopplin, Rebecca) (Entered: 07/08/2019)
29 REPLY MEMORANDUM OF LAW in Support re: 25 CROSS MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment (Doc. 22). . Document filed by NAACP Legal Defense & Educational Fund, Inc.. (Aden, Leah) (Entered: 07/29/2019)
30 LETTER addressed to Judge Alison J. Nathan from Leah C. Aden dated 10/21/2019 re: NAACP Legal Defense & Educational Fund, Inc. v. U.S. Dep't of Justice, No. 18-cv-9363 (AJN). Document filed by NAACP Legal Defense & Educational Fund, Inc..(Aden, Leah) (Entered: 10/21/2019)
31 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by NAACP Legal Defense & Educational Fund, Inc.. (Cafasso, Cerissa) (Entered: 10/22/2019)
32 MEMO ENDORSEMENT on re: 31 Proposed Order for Withdrawal of Attorney filed by NAACP Legal Defense & Educational Fund, Inc.. ENDORSEMENT: SO ORDERED. Attorney Cerissa Cafasso terminated. (Signed by Judge Alison J. Nathan on 10/24/2019) (kv) (Entered: 10/24/2019)
NOTICE OF REDESIGNATION TO ANOTHER MAGISTRATE

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JUDGE. The above entitled action has been redesignated to Magistrate Judge Sarah L. Cave. Please note that this is a reassignment of the designation only. (sjo) (Entered: 11/12/2019)
33 LETTER addressed to Judge Alison J. Nathan from Leah C. Aden dated December 4, 2019 re: NAACP Legal Defense & Educational Fund, Inc. v. U.S. Dept of Justice, No. 18-cv-9363 (AJN). Document filed by NAACP Legal Defense & Educational Fund, Inc..(Aden, Leah) (Entered: 12/06/2019)
34 LETTER addressed to Judge Alison J. Nathan from Rebecca Kopplin dated December 13, 2019 re: Plaintiff's December 6 Letter. Document filed by U.S. Department Of Justice. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kopplin, Rebecca) (Entered: 12/13/2019)
35 LETTER addressed to Judge Alison J. Nathan from Austin Evers dated January 21, 2020 re: census collection database flaws. Document filed by NAACP Legal Defense & Educational Fund, Inc..(Aden, Leah) (Entered: 01/21/2020)
36 LETTER addressed to Judge Alison J. Nathan from Rebecca Kopplin dated February 5, 2020 re: Plaintiff's January 21 Letter. Document filed by U.S. Department Of Justice. (Attachments: # 1 Exhibit A).(Kopplin, Rebecca) (Entered: 02/05/2020)
37 OPINION & ORDER re: 22 MOTION for Summary Judgment . filed by U.S. Department Of Justice, 25 CROSS MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment (Doc. 22). filed by NAACP Legal Defense & Educational Fund, Inc.. In sum, DOJ has not carried its burden of showing that its search was adequate with respect to any subpart of LDF's FOIA request. As such, its motion for summary judgment is DENIED, and LDF's cross-motion for summary judgment is GRANTED. DOJ is hereby ORDERED to conduct an adequate search to identify documents responsive to each subpart of LDF's FOIA request. Within 21 days of the date of this Opinion and Order, the parties shall meet and confer and submit a joint letter setting out agreed-upon search terms for a search of the census collection database for records responsive to subpart (2) of LDF's request. In that letter, the parties shall also update the Court on the status of the search of the census collection database for records responsive to subparts (1), (3), (4), and (5) of LDF's request. The Clerk of Court is respectfully requested to enter judgment. This resolves Dkt. Nos. 22 and 25. SO ORDERED. (Signed by Judge Alison J. Nathan on 5/29/2020) (ks) Transmission to Orders and Judgments Clerk for processing. (Entered: 05/29/2020)
38 CLERK'S JUDGMENT re: 37 Memorandum & Opinion. in favor of NAACP Legal Defense & Educational Fund, Inc. against U.S. Department Of Justice. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated May 29, 2020, in sum, DOJ has not carried its burden of

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showing that its search was adequate with respect to any subpart of LDF's FOIA request. As such, its motion for summary judgment is DENIED, and LDF's cross-motion for summary judgment is GRANTED. DOJ is hereby ORDERED to conduct an adequate search to identify documents responsive to each subpart of LDF's FOIA request. Within 21 days of the date of the Opinion and Order, the parties shall meet and confer and submit a joint letter setting out agreed-upon search terms for a search of the census collection database for records responsive to subpart (2) of LDF's request. In that letter, the parties shall also update the Court on the status of the search of the census collection database for records responsive to subparts (1), (3), (4), and (5) of LDF's request. (Signed by Clerk of Court Ruby Krajick on 05/29/2020) (Attachments: # 1 Notice of Right to Appeal) (dt) (Entered: 06/01/2020)
39 JOINT LETTER addressed to Judge Alison J. Nathan from Rebecca M. Kopplin dated June 19, 2020 re: Parties' Conferral concerning search terms. Document filed by U.S. Department Of Justice..(Kopplin, Rebecca) (Entered: 06/19/2020)
40 MEMO ENDORSEMENT on re: 39 Letter filed by U.S. Department Of Justice. ENDORSEMENT: By June 29, 2020, the parties shall inform the Court of their views regarding whether there is anything further for the Court to resolve in this case or whether the case can be closed. (Signed by Judge Alison J. Nathan on 6/25/2020) (jwh) (Entered: 06/25/2020)
41 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Emma Lewis to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20438210. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by NAACP Legal Defense & Educational Fund, Inc.. (Attachments: # 1 Affidavit Affidavit of E. Lewis, # 2 Exhibit Exhibit A, # 3 Text of Proposed Order Proposed Order).(Lewis, Emma) Modified on 6/26/2020 (vba). (Entered: 06/26/2020)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 41 MOTION for Emma Lewis to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20438210. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): Affidavit is not notarized.;. Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days attach Proposed Order. (vba) (Entered: 06/26/2020)
42 JOINT LETTER addressed to Judge Alison J. Nathan from Rebecca M. Kopplin dated June 29, 2020 re: Parties' conferral regarding further disputes. Document filed by U.S. Department Of Justice..(Kopplin, Rebecca) (Entered: 06/29/2020)

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43 MEMO ENDORSEMENT on re: 42 Letter filed by U.S. Department Of Justice. ENDORSEMENT: SO ORDERED. (Signed by Judge Alison J. Nathan on 6/30/2020) (jca) (Entered: 06/30/2020)
44 CONSENT MOTION for Aaron Sussman to Withdraw as Attorney for Plaintiff. Document filed by NAACP Legal Defense & Educational Fund, Inc.. (Attachments: # 1 Text of Proposed Order).(Aden, Leah) (Entered: 07/27/2020)
45 ORDER GRANTING UNOPPOSED MOTION TO WITHDRAW AS COUNSEL OF RECORD. Upon consideration of the Plaintiff's Unopposed Motion to Withdraw Aaron Sussman as Counsel of Record for Plaintiff NAACP Legal Defense and Educational Fund, Inc., the motion is GRANTED. It is hereby ORDERED that Aaron Sussman is withdrawn as counsel for Plaintiff. SO ORDERED. Granting 44 Motion to Withdraw as Attorney. Attorney Aaron Ross Sussman terminated. (Signed by Judge Alison J. Nathan on 7/28/2020) (rjm) (Entered: 07/28/2020)
46 JOINT LETTER addressed to Judge Alison J. Nathan from Rebecca M. Kopplin dated August 31, 2020 re: Status Report. Document filed by U.S. Department Of Justice..(Kopplin, Rebecca) (Entered: 08/31/2020)
47 JOINT LETTER addressed to Judge Alison J. Nathan from Rebecca M. Kopplin dated October 28, 2020 re: Status Report. Document filed by U.S. Department Of Justice..(Kopplin, Rebecca) (Entered: 10/28/2020)

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 Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 1 of 18

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.,

Plaintiff, v.

Case No. 18-cv-9363

U.S. DEPARTMENT OF JUSTICE,

Defendant.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552 et seq.
INTRODUCTION 1. Plaintiff NAACP Legal Defense and Educational Fund, Inc. (“LDF”) brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq., as amended, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, to obtain injunctive and other appropriate relief, requiring Defendant U.S. Department of Justice (“DOJ”) to respond to a FOIA request that LDF sent on April 11, 2018 (“Request”), and to promptly disclose the requested records. 2. The Request seeks records concerning DOJ’s role in the March 26, 2018 decision issued by U.S. Department of Commerce (“DOC”) Secretary Wilbur Ross to reinstate a citizenship status question on the 2020 decennial U.S. Census. Top officials at both DOC and DOJ have asserted that reinstating the citizenship status question purportedly is necessary to protect minority

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voting rights and to enforce Section 2 of the Voting Rights Act.1 Specifically, the Request seeks records in DOJ’s Civil Rights Division (“CRD”) and the Office of Legal Policy (“OLP”) concerning: (1) DOJ’s review of whether a citizenship status question on the 2020 decennial U.S. Census is necessary to enforce Section 2 of the Voting Rights Act, and/or how adding a citizenship question will improve protections for minority voting rights; (2) DOJ’s request for a citizenship status question as necessary to enforce Section 2 of the Voting Rights Act; (3) DOJ’s review of whether a citizenship status question on the Census Bureau’s American Community Survey (“ACS”) is insufficient to enforce Section 2 of the Voting Rights Act, as asserted by DOC Secretary Ross; (4) DOJ’s review of whether a citizenship status question will have an impact on the response rate of Black people in the 2020 decennial Census count; and (5) DOJ’s review of whether a citizenship status question will have an impact on the response rate of non-Black racial or ethnic groups on the 2020 decennial Census count.
3. Although LDF’s Request is narrow and reasonable and LDF expressed a willingness to discuss any issue in further processing the Request, more than six months later DOJ has failed to produce a single document in response to the Request.
4. Indeed, six months after the Request was submitted, OLP has failed to make any determination on the Request.
5. CRD, meanwhile, has apparently failed to conduct a search but nonetheless improperly made a blanket determination denying the Request, claiming that any responsive records, and any portions thereof, are exempt from production pursuant to 5 U.S.C. §§ 552(b)(5)
1 See Letter from Arthur E. Gary, General Counsel, DOJ, to Dr. Ron Jarmin, Acting Director, Census Bureau (Dec. 12, 2017), https://www.documentcloud.org/documents/4340651-Text-ofDec-2017-DOJ-letter-to-Census.html; Memorandum from Wilbur Ross, Secretary, DOC, to Karen Dunn Kelley, Under Sec’y for Econ. Affairs, DOC at 1 (Mar. 26, 2018), https://www.commerce.gov/sites/commerce.gov/files/2018-03-26_2.pdf.
2

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and (b)(7)(A). However, FOIA requires CRD to make a document-by-document assessment of the applicability of exemptions and a segregability analysis within each document, and DOJ regulations also require CRD to inform LDF of the volume of material withheld. 5 CFR § 16.6 (e)(3).
BACKGROUND 6. DOJ, DOC, and other agencies and officials in the Trump Administration have advocated since at least May of 2017 for the U.S. Census Bureau to add a question on citizenship status to the 2020 decennial U.S. Census. The decennial Census has not included that question since before 1950. That question has never been on the decennial Census during the time that DOJ and other private actors like LDF have worked to enforce the Voting Rights Act of 1965. However, toward the end of 2017, Administration officials began offering the justification that adding the question purportedly was necessary to protect minority voting rights. Indeed, in a March 26, 2018 memorandum, DOC Secretary Ross stated that DOJ, via a December 12, 2017 letter,2 requested adding the citizenship question to effectively enforce Section 2 of the Voting Rights Act and to “protect[] minority population voting rights.”3 7. The proposal to add a citizenship status question on the decennial Census is the subject of multiple federal lawsuits. See Letter from Leah C. Aden, Deputy Director of Litigation, LDF et al., to Melanie Ann Pustay, Director or OIP, DOJ, at 6 n.2, dated August 28, 2018, (a true and correct copy is attached hereto as Exhibit G). Recent reports and evidence derived from that litigation have cast serious doubt on DOC Secretary Ross’s claim that the request for the citizenship status question originated with DOJ’s letter to the Acting Director of the Census Bureau
2 Letter from Arthur E. Gary, supra note 1. 3 Memorandum from Wilbur Ross, supra note 1.
3

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rather than with Administration officials and DOC Secretary Ross himself.4 According to the Hon.
Jesse M. Furman of the Southern District of New York, the decision to add the citizenship status
question represented a “strong showing of bad faith,” and Secretary Ross’s “statements [that DOJ
requested the addition of the citizenship status question] were potentially untrue.”5
8. At least 171 voting rights and civil and human rights groups, including LDF,6 have
opposed the addition of the citizenship status question on the decennial Census, finding no merit
to the claim that that question would aid in the enforcement of the Voting Rights Act or help protect
minority voting rights.7 LDF and other advocates contend that this rationale is pretextual, and that
the addition of the question is designed to undermine the apportionment of people and diminish
the voting rights and the voting power of voters of color.8 This belief is consistent with bi-partisan
experts who have warned officials that the addition of a citizenship status question will jeopardize
the accuracy of the count by chilling participation of communities of color. Indeed, on January 29,
4 See, e.g., Salvador Rizzo, Wilbur Ross’s False Claim to Congress that the Census Citizenship Question Was DOJ’s Idea, WASH. POST (July 30, 2018), https://www.washingtonpost.com/news/fact-checker/wp/2018/07/30/wilbur-rosss-false-claim-tocongress-that-the-census-citizenship-question-was-dojs-idea/?utm_term=.7a8658a54e23. 5 Ari Berman, Federal Judge Rips Trump Administration Over Census Citizenship Question, MOTHER JONES, https://www.motherjones.com/politics/2018/07/federal-judge-rips-trumpadministration-over-census-citizenship-question/ (July 3, 2018) (citing pending litigation in New York v. U.S. Dep’t of Commerce, No. 18-cv-02921 (JMF) (S.D.N.Y. Apr. 3, 2018). 6 See Letter from Leah C. Aden, Dep. Director of Litigation, LDF et al. to Jennifer Jessup, DOC (Aug. 7, 2018), http://www.naacpldf.org/files/case_issue/2018.08.07_NAACP%20LDF%20Final %20Draft%20Public%20Comment_%20Census.%20%28rev%27d%29.pdf. 7 Letter from Anti-Defamation League to Jennifer Jessup, DOC at 3-4 (July 30, 2018) (also stating that 160 Republican and Democratic mayors, six former Census Bureau directors, two former DOC Secretaries, over 120 U.S. Representatives, and more than 600 faith leaders have opposed the citizenship status question). 8 See New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766, 775 (S.D.N.Y. 2018) (“[Plaintiffs] plausibly allege that Secretary Ross’s decision to reinstate the citizenship question on the 2020 census was motivated by discriminatory animus and [] its application will result in a discriminatory effect. . . [T]hat conclusion is supported by indications that Defendants deviated from their standard procedures in hastily adding the citizenship question; by evidence suggesting that Secretary Ross’s stated rationale for adding the question is pretextual; and by contemporary statements of decisionmakers, including statements by the President, whose reelection campaign credited him with ‘officially’ mandating Secretary Ross's decision to add the question right after it was announced.”).
4

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2018, the Census Bureau’s chief scientist, John Abowd, sent a now-publicly available internal memorandum to DOC Secretary Ross with a detailed analysis of DOJ’s request. That analysis found that there was “a reasonable inference that a question on citizenship would lead to some decline in overall self-response.”9 That analysis further indicated that a citizenship status question “would make the 2020 Census modestly more burdensome in the direct sense, and potentially much more burdensome in the indirect sense that it would lead to a larger decline in self-response for non-citizen households.”10
9. Moreover, while the publicly available record reveals that Trump Administration officials had been requesting the reinstatement of the citizenship status question prior to the DOJ’s December 2017, letter, contrary to what Secretary Ross has claimed,11 it appears that the DOJ letter was the first time that the pretextual rationale of “protect[ing] against racial discrimination in voting” was proffered.12

9 Memorandum from John M. Abowd, Chief Scientist & Assoc. Director for Research &

Methodology, to Wilbur L. Ross, Jr., Sec’y of Commerce, DOC at 1281 (Jan. 19, 2018)

http://www.osec.doc.gov/opog/FOIA/Documents/AR%20-%20FINAL%20FILED%20-

%20ALL%20DOCS%20%5bCERTIFICATION-INDEX-

DOCUMENTS%5d%206.8.18.pdf#page=1289; see also Hansi Lo Wang, Documents Shed Light

on Decision to Add Census Citizenship Question, NPR (June 10, 2018),

https://www.npr.org/2018/06/10/618567462/documents-shed-light-on-decision-to-add-census-

citizenship-question.

10 Id.

11 See Tara Bahrampour, Wilbur Ross Actively Pushed to Add Citizenship Question to 2020

Census,

Documents

Show,

WASH.

POST

(July

24,

2018),

https://www.washingtonpost.com/local/social-issues/wilbur-ross-actively-pushed-to-add-

citizenship-question-to-2020-census-documents-show/2018/07/24/5601b3b6-8f65-11e8-bcd5-

9d911c784c38_story.html?noredirect=on&utm_term=.daca1df33242 (“A cache of documents

released by the Commerce Department late Monday night provides further evidence that Secretary

Wilbur Ross was pushing to add a citizenship question to the 2020 Census far more actively, and

much earlier, than his later sworn testimony indicated.”); Tara Bahrampour, New Document

Contradicts Ross’s Testimony Congressional Testimony on Census Citizenship Question, WASH.

POST (Oct. 11, 2018), https://www.washingtonpost.com/local/social-issues/new-document-

contradicts-rosss-congressional-testimony-on-census-citizenship-question/2018/10/11/9bedc8d6-

cd97-11e8-920f-dd52e1ae4570_story.html?noredirect=on&utm_term=.3d18cb3a177f.

12 Letter from Arthur E. Gary, supra note 1, at 1.

5

Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 6 of 18
10. The decision by DOC Secretary Ross under the Trump Administration to add a citizenship status question to the 2020 decennial U.S. Census, and the roles of DOJ and other agencies in that decision, have been opaque and seemingly manufactured. Complying with this Request will help bring clarity and transparency to whatever decision-making process led to the decision to add that question. This will serve the public interest by helping to ensure that the government properly carries out its constitutional duty of accurately and fairly conducting the decennial Census, and enforces the Voting Rights Act and protects minority voting rights.
11. Rather than comply with the Request as required under the FOIA statute, OLP has failed to provide any determination as to the Request, while CRD has failed to search for, much less produce, records responsive to this Request, wrongfully claiming that every responsive record, and portion thereof, is exempt.
12. OLP has yet to make a determination regarding the Request. LDF timely appealed CRD’s adverse determination on its Request pursuant to 5 U.S.C. § 552(a)(6)(A)(i)(III)(aa). DOJ denied the appeal. Pursuant to 5 U.S.C. § 552(a)(6)(C)(i) and 5 U.S.C. § 552(a)(4), LDF has properly exhausted all administrative remedies.
JURISDICTION AND VENUE 13. This Court has subject-matter jurisdiction over this action and personal jurisdiction over the parties under 5 U.S.C. § 552(a)(4)(B), 5 U.S.C. §§ 701–706, and 28 U.S.C. §§ 1331, 2201, and 2202. 14. Venue is proper in the United States District Court for the Southern District of New York pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). Plaintiff LDF has its principal place of business in this district.
6

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PARTIES 15. Plaintiff NAACP Legal Defense and Educational Fund, Inc. is a non-partisan, nonprofit 501(c)(3) corporation established under the laws of the State of New York. LDF is the nation’s oldest civil rights law organization, founded in 1940 by former Supreme Court Justice Thurgood Marshall. Since its inception, LDF has used legal, legislative, public education, and other advocacy strategies to promote the full, equal, and active participation of Black people in America’s democracy. In furtherance of its missions, LDF has worked for over seven decades to secure and enforce voting rights for Black people and ensure equal political participation for all. LDF’s efforts to ensure equal political participation and representation for Black people have included involvement in a number of seminal Supreme Court decisions, including: Evenwel v. Abbott, 136 S. Ct. 1120 (2016); Shelby County v. Holder, 570 U.S. 529 (2013); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Terry v. Adams, 345 U.S. 461 (1953); Schnell v. Davis, 336 U.S. 933 (1949) (per curiam); and Smith v. Allwright, 321 U.S. 649 (1944). For approximately five decades, LDF has brought or otherwise been involved in actions under Section 2 of the Voting Rights Act to remedy discrimination and provide equal opportunities to voters of color to participate in the political process, including: Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395 (M.D. La. 2017); Ga. State Conf. of the NAACP v. Fayette Cty. Bd. of Comm’rs, 118 F. Supp. 3d 1338 (N.D. Ga. 2015); League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006); Chisom v. Roemer, 501 U.S. 380 (1991); Houston Lawyers’ Ass’n v. Attorney Gen. of Texas, 501 U.S. 419 (1991); and Thornburg v. Gingles, 478 U.S. 30 (1986). LDF, therefore, is intimately familiar with the information that is needed—or not needed—to enforce Section 2. LDF also educates the public, including Black community members and others, through reports, press releases, and other media
7

Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 8 of 18
about the Census, what it means for their communities, and how to ensure that they are counted in
the Census.
16. Defendant DOJ is a department of the executive branch of the U.S. government
headquartered in Washington, D.C., and an agency of the federal government within the meaning
of 5 U.S.C. § 552(f)(1). The Civil Rights Division (CRD) and the Office of Legal Policy (OLP)
are components of DOJ. The Office of Information Policy (OIP) is also a component of DOJ and performs two functions with regard to FOIA—it processes requests on behalf of certain other DOJ
components, including OLP, and adjudicates FOIA appeals of determinations made by any DOJ
component. On information and belief, DOJ has possession, custody, and control of the records
that LDF seeks.
LDF’S REQUESTS AND DOJ’S RESPONSES
17. On April 11, 2018, LDF submitted the Request to DOJ’s Civil Rights Division (CRD) DOJ’s Office of Legal Policy (OLP) by regular mail and online form. (A true and correct
copy of the Apr. 11, 2018 Request is attached hereto as Exhibit A).
18. Specifically, LDF seeks: (a) All documents,13 including but not limited to draft and final memoranda, opinions, analyses, or correspondence, relating to the U.S. Department of Justice’s review of whether a citizenship status question on the 2020 decennial U.S. Census is necessary to enforce Section 2 of the Voting Rights Act and/or how adding a citizenship question will improve protections for minority voting rights.
(b) All documents, including but not limited to draft and final memoranda, opinions, analyses, or correspondence, relating to the U.S. Department of Justice’s request for a citizenship status question
13 LDF requested that the DOJ interpret the “term ‘document’ … in the broadest possible sense within the meaning of the [FOIA]” and to “include, without limitation, any written, printed, typed, spoken, computerized, or other graphic, phonic, or recorded matter of any kind or nature, however produced or reproduced, whether sent or received or neither, including drafts and copies bearing notations or marks not found on the original.”
8

Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 9 of 18
on the 2020 decennial U.S. Census as necessary to enforce Section 2 of the Voting Rights Act.
(c) All documents, including but not limited to draft and final memoranda, opinions, analyses, or correspondence, relating to the Department’s review of whether a citizenship status question on the American Community Survey (ACS) is “insufficient in scope, detail, and certainty” to enforce Section 2 of the Voting Rights Act.
(d) All documents, including but not limited to draft and final memoranda, opinions, analyses, or correspondence, relating to the Department’s review of whether a citizenship status question on the 2020 decennial U.S. Census will have an impact on the response rate of Black or African American people on the 2020 decennial U.S. Census count.
(e) All documents, including but not limited to draft and final memoranda, opinions, analyses, or correspondence, relating to the Department’s review of whether a citizenship status question on the 2020 decennial U.S. Census will have an impact on the response rate of non-Black or non-African American racial or ethnic groups on the 2020 decennial U.S. Census count.
19. LDF requested expedited processing of the Request under 5 U.S.C. § 552(a)(6)(E)
because “the requested records concern the integrity of the democratic process, the funding of
public programs, and other matters that are of vital interest to the American public. The requested
records, thus, involve matters ‘of widespread and exceptional media interest in which there exist
possible questions about the government’s integrity that affect public confidence.’” Id. at 2
(quoting 28 C.F.R. § 16.5(e)(1)). Alternatively, LDF requested DOJ’s response to its Request “no
later than 20 business days after receipt of [the Request]” (citing 5 U.S.C. § 552(a)(3) and (6)).
20. LDF also requested a fee waiver with respect to the Request pursuant to the FOIA
statute and DOJ’s regulations. Ex. A at 2.
21. LDF further asked that for any exempted document, DOJ disclose any reasonably
segregable non-exempt portion of it. Id. at 2-3.
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Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 10 of 18
CRD’s Responses to LDF’s Request 22. On April 25, 2018, April N. Freeman, writing for Nelson D. Hermilla of CRD, sent a letter to Leah C. Aden, LDF’s then-Senior Counsel (now Deputy Director of Litigation), acknowledging receipt of the Request and assigning it the tracking number 18-00245-F. (A true and correct copy of the Apr. 25, 2018 Letter is attached hereto as Exhibit B). 23. CRD’s letter stated that there would be a delay in processing the Request and put forth the option of limiting the Request to potentially expedite the response time. Id. 24. CRD has taken the position that it will not produce any documents in response to that Request because they are purportedly exempt from disclosure under FOIA. Indeed, on May 31, 2018, Mr. Hermilla of CRD sent a letter to Ms. Aden stating that, “[a]fter consideration of the responsive records,” CRD had “determined that all responsive records are exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A) since disclosure thereof could reasonably be expected to interfere with law enforcement proceedings regarding the review of this issue by the Civil Rights Division’s Voting Section.” May 31, 2018 Letter at 1-2 (emphasis added). (A true and correct copy of the May 31, 2018 Letter is attached hereto as Exhibit D). 25. CRD also responded that in addition to being exempt under 5 U.S.C. § 552(b)(7)(A), “certain information within these records . . . should also be denied pursuant to 5 U.S.C. § 552(b)(5), since records consist of attorney work product, and pre-decisional deliberative material and attorney client material.” Id. at 2. 26. CRD informed LDF that it could resubmit its Request once DOJ “has closed this matter” when “any documents that may be released . . . will not jeopardize the Department’s currently active enforcement interest in this matter.” Id.
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Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 11 of 18
27. CRD’s response provided no estimate of the volume of responsive records withheld.
28. On August 28, 2018, LDF timely filed an appeal with DOJ concerning CRD’s final determination and sought that that appeal be handled on an expedited basis. Ex. G.
29. In its appeal, LDF argued that CRD: (1) failed to demonstrate that it conducted any search, let alone an adequate one, for responsive records; (2) failed to produce all or even any responsive documents (with or without redactions); (3) improperly relied on FOIA exemptions to withhold information, including issuing unsupported, blanket assertions of exemptions under 5 U.S.C. § 552(b)(7)(A) and 5 U.S.C. § 552(b)(5) without (i) articulating any reasonably foreseeable harm to any interest protected by either of those exemptions, (ii) identifying any functional categories of records to justify application of Exemption 7, (iii) providing any information to assess or even surmise whether any documents justify application of Exemption 5, or (iv) providing any estimate of the volume of materials that it has withheld under the exemptions or why providing such an estimate would harm those interests purportedly protected by those exemptions; and (4) failed in its obligation to segregate and produce responsive, non-exempt information.
30. On September 17, 2018, Ms. Aden received an email indicating that LDF’s request for expedited processing of its appeal had been denied. (A true and correct copy of the Sept. 17, 2018 email is attached hereto as Exhibit H).
31. On September 28, 2018, Ms. Aden of LDF received a letter from Christina D. Troiani, Associate Chief of OIP’s Administrative Appeals Staff, dated September 27, 2018, affirming CRD’s initial determination to withhold records and effectively deny the Request. (A true and correct copy of the Sept. 27, 2018 Letter is attached hereto as Exhibit I).
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Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 12 of 18
32. Through CRD’s adverse determination regarding the Request and DOJ’s affirmance of CRD’s determination on appeal, LDF has exhausted its administrative remedies as to these issues and seeks immediate judicial review.
OLP/OIP’s Responses to LDF’s Request 33. On April 30, 2018, Vanessa R. Brinkmann, Senior Counsel at OIP, responded separately on behalf of OLP, sending a letter to Sherrilyn Ifill, Sam Spital, Leah Aden, and Aaron Sussman of LDF acknowledging receipt of the Request on behalf of OLP. (A true and correct copy of the Apr. 30, 2018 Letter is attached hereto as Exhibit C). 34. In the letter, Ms. Brinkmann stated that LDF’s request for expedited processing had been referred to the Director of Public Affairs, who determined that the request be denied. Id. at 1. 35. The letter further stated that because the Request falls within “unusual circumstances” under the FOIA statute, OIP, on behalf of OLP, would need to extend the time limit to respond beyond the ten additional days the FOIA statute permits an agency in such circumstances. Id. 36. In the letter, OIP informed LDF that it assigned the Request to the “complex track” and stated that LDF could narrow the scope of its Request and agree to an alternative timeframe for OIP to process the Request. Id. at 1-2. 37. Finally, in that letter, OIP informed LDF that it had not yet made a decision about LDF’s request for a fee waiver. Id. at 2. 38. On May 24, 2018, Ms. Aden and Mr. Sussman had a telephone call with Brittnie Baker, a FOIA Analyst for OIP assigned to the Request. Ms. Baker answered questions regarding the definition of “complex track,” “unusual circumstances,” and what the next steps would be, including that a significant backlog would likely cause a delay of quite a few months before any
12

Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 13 of 18
search results related to LDF’s Request would be received from OLP by OIP and thereafter reviewed.
39. OIP has simply stated that it has no timeframe as to when it will respond. On July 13, 2018, Mr. Sussman sent an email to Ms. Baker of OIP asking for a status update on the OLP portion of the Request and a timeframe for when LDF might receive a determination. (A true and correct copy of the July 13, 2018 Email is attached hereto as Exhibit E).
40. On July 16, 2018, Ms. Baker responded to Mr. Sussman’s email, stating, “[t]he search is still pending, so there is no timeframe update at this time other than it may take a number of months to get the search results back and then review any records located for responsiveness and disclosure.” (A true and correct copy of the July 16, 2018 Email is attached hereto as Exhibit F).
41. LDF has received no further correspondence regarding the processing of the OLP portion of the Request.
42. Through OIP’s failure to respond to the Request on behalf of OLP within the time period required by law, LDF has constructively exhausted its administrative remedies and seeks immediate judicial review.
CLAIMS FOR RELIEF Count I: Violation of FOIA for Failure to Conduct Adequate Searches for
Responsive Records 43. LDF repeats and re-alleges the allegations contained in paragraphs 1 through 42 above, inclusive. 44. LDF properly requested records that on information and belief are currently within the possession, custody, and control of DOJ, including its components CRD and OLP.
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Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 14 of 18
45. DOJ is an agency subject to FOIA, and it must therefore make reasonable efforts to search for requested records.
46. DOJ has provided no information to suggest whether it has reviewed any agency records, located agency records that might be responsive to the Request, or otherwise conducted an adequate search for records.
47. DOJ’s failure to conduct an adequate search for responsive records violates FOIA. 48. Therefore, LDF is entitled to injunctive and declaratory relief requiring DOJ to promptly make reasonable efforts to search for records responsive to the Request. Count II: Violation of FOIA for Wrongful Withholding of Non-exempt Responsive Records 49. LDF repeats and re-alleges the allegations contained in paragraphs 1 through 48 above, inclusive. 50. LDF properly requested records that on information and belief are currently within the possession, custody, and control of DOJ. 51. DOJ is an agency subject to FOIA, and its components CRD and OLP must therefore release in response to a FOIA request any non-exempt records and provide a lawful reason for withholding any materials. 52. CRD has provided no information to suggest whether it has reviewed any agency records, located agency records that might be responsive to the Request, or otherwise conducted an adequate search for records which would enable LDF to determine whether DOJ is wrongfully withholding and failing to produce non-exempt agency records responsive to LDF’s Request. 53. CRD has provided no information to suggest whether it has reviewed any agency records, located agency records that might be responsive to the Request, or otherwise conducted an adequate search for records which would enable LDF to determine whether DOJ it is wrongfully
14

Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 15 of 18
withholding non-exempt agency records requested by LDF by failing to segregate exempt information in otherwise non-exempt records responsive to the Request.
54. CRD has made unsupported, blanket assertions of Exemptions 5 and 7(A) and has failed to articulate any reasonably foreseeable harm to any interest protected by either of these exemptions, contrary to FOIA and the FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 2(1)(D), 130 Stat. 538, 539 (2016) (codified as amended at 5 U.S.C. 552(a)(8)(A)(i)(I)). CRD has failed to establish that the narrow categories for exemptions apply.
55. In addition to providing no documents or any portions thereof, CRD has also failed to provide any information about the records it is withholding, making it impossible for LDF to evaluate which records are being withheld under Exemption 7, which are being withheld under Exemption 5, and whether withholding all documents in their entirety is justified under these narrow exceptions to FOIA’s general rule of “broad disclosure.” Milner v. Dep’t of Navy, 562 U.S. 562, 571 (2011) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989)).
56. “To fit within Exemption 7(A), the government must show that (1) a law enforcement proceeding is pending or prospective and (2) release of the information could reasonably be expected to cause some articulable harm.” Amnesty Int’l USA v. CIA, 728 F. Supp. 2d 479, 525 (S.D.N.Y. 2010) (internal quotation marks omitted). In its determination letter denying LDF’s Request, CRD listed three “law enforcement proceedings,” none of which DOJ is party to, and made no statements regarding the articulable harm that would be expected, other than stating that disclosure “could reasonably be expected to interfere” with CRD’s “review of this issue.” Ex. D at 1-2. See Citizens for Responsibility and Ethics in Washington (CREW) v. U.S. Dep’t of Justice, 746 F.3d 1082, 1098 (D.C. Cir. 2014) (explaining that “it is not sufficient for the agency to simply assert that disclosure will interfere with enforcement proceedings”; it also
15

Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 16 of 18
must, at minimum, define the categories of documents that it is withholding and explain “the specific risks entailed in premature disclosure” of each category). Id. at 1099. CRD’s failure to provide all non-exempt records responsive to the Request violates FOIA.
57. Through OLP’s failure to respond to the Request, the component is wrongfully withholding non-exempt agency records requested by LDF by failing to produce non-exempt records responsive to the Request.
58. Through OLP’s failure to respond to the Request, the component is wrongfully withholding non-exempt agency records requested by LDF by failing to segregate exempt information in otherwise non-exempt records responsive to the Request.
59. Therefore, LDF is entitled to declaratory and injunctive relief requiring CRD and OLP to produce promptly all non-exempt records or portions thereof responsive to the Request and provide indexes justifying the withholding of any responsive records or portions thereof withheld under claim of exemption.
Count III: Violation of FOIA for Failure to Provide a Determination Within 30 Business Days
60. LDF repeats and re-alleges the allegations contained in paragraphs 1 through 59 above, inclusive.
61. Within 20 days (excepting Saturdays, Sundays, and legal public holidays) after receiving the Request under FOIA, OLP had a legal duty to determine whether it must comply with the Request and a legal duty to notify the requester, here LDF, immediately of the agency’s determination and the reasons for that determination. If the Request constitutes “unusual circumstances,” as OIP, on behalf of OLP, claimed it does in this matter, the agency has an additional ten days to determine whether it will comply with the Request.
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Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 17 of 18

62. OLP’s failure to determine whether to comply with the Request within 30 business days after receiving it violates FOIA, 5 U.S.C. §§ 552(a)(6)(A)(i), 552(a)(6)(B)(i-iii) and applicable regulations promulgated thereunder.
REQUESTED RELIEF WHEREFORE, LDF requests that the Court award them the following relief: 1. Order CRD and OLP to conduct and complete a search or searches reasonably calculated to uncover all records responsive to the Request; 2. Order CRD and OLP to produce, within twenty (20) days of the Court’s order, or by such other date as the Court deems appropriate, all records or portions thereof responsive to the Request and indexes justifying the withholding of any responsive records or portions thereof withheld under claim of exemption, without charge for any search or duplication fees; 3. Declare that CRD violated FOIA by unlawfully withholding the requested records; 4. Declare that OLP violated FOIA by failing to make a determination within the time period required by law; 5. Enjoin CRD and OLP from continuing to withhold any and all non-exempt records or portions thereof responsive to the Request; 6. Award LDF the costs of this proceeding, including reasonable attorneys’ fees and other litigation costs reasonably incurred in this action, pursuant to 5 U.S.C. § 552(a)(4)(E); and 7. Grant such other relief as the Court may deem just and proper.

DATED this 12th day of October, 2018.

Respectfully submitted,
/s/ Leah C. Aden Sherrilyn A. Ifill
President & Director Counsel Janai S. Nelson

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Case 1:18-cv-09363 Document 1 Filed 10/12/18 Page 18 of 18
Leah C. Aden Samuel Spital Aaron Sussman NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC. 40 Rector St., 5th Fl. New York, NY 10006 (212) 965-2200 laden@naacpldf.org asussman@naacpldf.org /s/ Austin R. Evers Austin R. Evers
Executive Director Cerissa Cafasso (D.C. Bar No. 1011003)* AMERICAN OVERSIGHT 1030 15th Street NW, B255 Washington, DC 20005 (202) 869-5244 austin.evers@americanoversight.org cerissa.cafasso@americanoversight.org *pro hac vice motion forthcoming Counsel for Plaintiff NAACP Legal Defense & Educational Fund, Inc.
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 Case 1:18-cv-09363-AJN Document 37 Filed 05/29/20 Page 1 of 23

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
NAACP Legal Defense & Education Fund, Inc., Plaintiff,
–v– Department of Justice,
Defendant.

5/29/2020
18-cv-9363 (AJN) OPINION & ORDER

ALISON J. NATHAN, District Judge: Plaintiff NAACP Legal Defense & Education Fund, Inc. (“LDF”) brought this Freedom
of Information Act (“FOIA”) action claiming, in relevant part, that the Department of Justice (“DOJ”) failed to conduct an adequate search in response to its FOIA request for documents related to the proposed inclusion of a citizenship status question on the 2020 decennial census. Now before the Court are the parties’ cross-motions for summary judgment on the narrow and limited question of the adequacy of DOJ’s search for documents responsive to LDF’s FOIA request. For the reasons that follow, the Court DENIES DOJ’s motion and GRANTS LDF’s cross-motion. The Court concludes that LDF has established on this record the inadequacy of DOJ’s search, which was facially under-inclusive and unduly restrictive. As a remedy, the parties are required to meet and confer on agreed-upon search terms for DOJ to use in conducting a further search that is reasonably calculated to discover the requested documents. I. BACKGROUND
The undisputed facts set out in this Opinion and Order are drawn from the parties’ submissions, including the agency declarations submitted by DOJ, which are afforded a presumption of good faith for purposes of these summary judgment motions. See Carney v. U.S.

Case 1:18-cv-09363-AJN Document 37 Filed 05/29/20 Page 2 of 23
Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994).1 The Court also considers supplemental submissions filed by the parties in October and December 2019 and January and February 2020. See Dkt. Nos. 30, 33–36.
On March 26, 2018, Wilbur Ross, the Secretary of the Department of Commerce, issued a memorandum outlining his decision to reinstate a citizenship status question on the 2020 decennial census. See generally Dkt. No. 23-3. In it, he stated that the decision to do so was informed by a December 12, 2017 letter request from Arthur Gary, General Counsel of DOJ’s Justice Management Division. See id. The Gary letter requested that the Census Bureau reinstate a citizenship status question on the 2020 decennial census, asserting that citizenship data “is critical to [DOJ’s] enforcement of Section 2 of the Voting Rights Act and its important protections against racial discrimination in voting.” Dkt. No. 23-1 at 1. The Department of Commerce’s decision—and the DOJ justification on which it was based—prompted multiple federal lawsuits and FOIA requests. Plaintiff LDF, believing DOJ’s rationale to be pretextual and “seeking much-needed transparency about this issue of utmost public importance,” Dkt. No. 26 at 3, submitted one such FOIA request to DOJ’s Civil Rights Division and Office of Legal Policy on April 11, 2018. Below, the Court summarizes LDF’s request and DOJ’s response.2
1 Because LDF’s Rule 56.1 statement refers only to undisputed facts that are established elsewhere in the record, the Court need not consider DOJ’s argument that it disregard LDF’s Rule 56.1 statement. See Dkt. No. 27 at 14. 2 Because LDF is no longer pursuing its claims as they relate to requests made of the Office of Legal Policy, see Dkt. No. 26 at 4 n.6, this Opinion and Order discusses DOJ’s response with respect to requests made of the Civil Rights Division only.
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Case 1:18-cv-09363-AJN Document 37 Filed 05/29/20 Page 3 of 23
A. The FOIA Request
LDF’s April 11 FOIA request seeks records relating to DOJ’s role in the Department of
Commerce’s decision to add a citizenship status question to the 2020 decennial census. See Dkt.
No. 1-1. In particular, the request seeks copies of five separate categories of documents:3
1) All documents, including but not limited to draft and final memoranda, opinions, analyses, or correspondence, relating to the U.S. Department of Justice’s review of whether a citizenship status question on the 2020 decennial U.S. Census is necessary to enforce Section 2 of the Voting Rights Act and/or how adding a citizenship question will improve protections for minority voting rights.
2) All documents, including but not limited to draft and final memoranda, opinions, analyses, or correspondence, relating to the U.S. Department of Justice’s request for a citizenship status question on the 2020 decennial U.S. Census as necessary to enforce Section 2 of the Voting Rights Act.
3) All documents, including but not limited to draft and final memoranda, opinions, analyses, or correspondence, relating to the Department’s review of whether a citizenship status question on the American Community Survey (ACS) is “insufficient in scope, detail, and certainty” to enforce Section 2 of the Voting Rights Act.
4) All documents, including but not limited to draft and final memoranda, opinions, analyses, or correspondence, relating to the Department’s review of whether a citizenship status question on the 2020 decennial U.S. Census will have an impact on the response rate of Black or African American people on the 2020 decennial U.S. Census count.
5) All documents, including but not limited to draft and final memoranda, opinions, analyses, or correspondence, relating to the Department’s review of whether a citizenship status question on the 2020 decennial U.S. Census will have an impact on the response rate of non-Black or non-African American racial or ethnic groups on the 2020 decennial U.S. Census count.
3 The request specifies that “[t]he term ‘document’ is to be interpreted in the broadest possible sense within the meaning of the Freedom of Information Act and shall include, without limitation, any written, printed, typed, spoken, computerized, or other graphic, phonic, or recorded matter of any kind or nature, however produced or reproduced, whether sent or received or neither, including drafts and copies bearing notations or marks not found on the original.” Dkt. No. 1-1 at 1 n.1.
3

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Id. at 1–2 (footnotes omitted). The Civil Rights Division confirmed receipt of LDF’s FOIA request on April 25, 2018. Dkt. No. 24 ¶ 4.
B. DOJ’s Response Because the limited issue before the Court is the adequacy of the search conducted by DOJ, it is necessary to recount with some detail the specific nature of the search. Pursuant to its routine procedures, when the Civil Rights Division receives a request seeking specific documents such as the one at issue here, it contacts the Section that specializes in the enforcement of the particular statute or issues referenced in the request—in this case, the Voting Section. Id. ¶¶ 5–6. It also contacts either the Office of the Assistant Attorney General, which has senior management authority of the Civil Rights Division’s twelve sections, or the Deputy Assistant Attorney General with supervisory authority over the relevant Section or information relevant to the subject matter of the request. Id. ¶ 7. In this case, the request was referred to the Office of the Assistant Attorney General, which identified John M. Gore, the Deputy Assistant Attorney General responsible for reviewing the Voting Section,4 as the only Office of the Assistant Attorney General employee likely to have records responsive to LDF’s request. Id. ¶ 13. The Civil Rights Division had previously received other requests similar to subpart (2) of LDF’s FOIA request, which it interpreted as seeking only records “relating to DOJ’s decision to send the Gary Letter, including the process of drafting and sending the Gary Letter, and DOJ’s decisionmaking process.” Id. ¶ 8. In conducting searches for records responsive to these earlier requests, Chris Herren, Chief of the Voting Section, Rebecca J. Wertz, the Principal Deputy Chief, and Robert S. Berman, a Deputy Chief and FOIA contact in the Section, determined that
4 Gore was also the Acting Assistant Attorney General for Civil Rights from late July 2017 to early November 2018. Dkt. No. 24 ¶ 13.
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Herren was the only person in the Voting Section likely to be in possession of responsive records because he was the only person who had communicated with the Office of the Assistant Attorney General and Gore regarding the Gary Letter. Id. ¶ 11. Herren searched his email account for emails with the Office of the Assistant Attorney General and Gore related to the Gary letter and identified responsive email chains between he and Gore. Id. ¶ 11. This search was completed by January 2018, id. ¶ 11, and responsive documents were forwarded to DOJ’s Freedom of Information/Privacy Act Branch on February 12, 2018, id. ¶¶ 11–12. The Voting Section subsequently advised the Freedom of Information/Privacy Act Branch that the documents sent on February 12, 2018 were identical to the responsive records located with respect to subpart 2 of LDF’s request. Id. ¶ 12. The Office of the Assistant Attorney General also conducted searches for the earlier FOIA requests similar to subpart (2) of LDF’s request, searching Gore’s email for the term “census” on February 15, 2018. Id. ¶ 13–14. This search turned up responsive records, which were also forwarded to the Freedom of Information/Privacy Act Branch. Id. ¶ 14. In addition to relying on prior searches to identify records responsive to subpart (2) of LDF’s request, the Civil Rights Division undertook additional searches to identify records responsive to subparts (1), (3), (4), and (5). Id. ¶ 17.
On May 31, 2018, the Civil Rights Division issued a response to LDF, informing it that “all responsive records were exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A) since disclosure thereof could reasonably be expected to interfere with law enforcement proceedings regarding the review of this issue by the Civil Rights Division’s Voting Section.” Dkt. No. 24-3 at 1–2. On August 28, 2018, LDF administratively appealed the sufficiency of the May 31 response withholding all responsive documents, see Dkt. No. 26-2, and on September 27, 2018,
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the Civil Rights Division’s response was affirmed, see Dkt. No. 26-3. Following the denial of its appeal, LDF initiated this action on October 12, 2018. See Dkt. No. 1.
The Civil Rights Division then conducted several supplemental searches and provided LDF with four additional responses. The first of these supplemental searches, which took place on July 3, 2018, consisted of an additional electronic search of Gore’s email account for the period January 23, 2017 to July 3, 2018, again using the search term “census.” Dkt. No. 24 ¶ 15. The Civil Rights Division also separately searched for emails for which Arthur Gary or Bethany Pickett, Counsel to the Assistant Attorney General, were addressees. Id. These searches were intended to identify any additional documents responsive to subpart (2) of LDF’s request. Ultimately, approximately 25 emails between Gore and other DOJ employees were identified that related to the Gary Letter. Id. These documents, which were largely duplicative of documents identified in the initial searches, were forwarded to the Freedom of Information/Privacy Act Branch. Id.
A second supplemental search was conducted on August 2, 2018 to identify hard copy documents responsive to subpart (2) of LDF’s request, again for the period January 23, 2017 to August 2, 2018. Id. ¶ 16. Gore, Herren, Pickett, and Ben Aguiñaga, Gore’s Chief of Staff, were identified as individuals likely to have responsive hard copy records. Id. Of these individuals, only Gore indicated that he had responsive hard copy documents, of which he ultimately turned over 114 pages. Id. These same custodians also conducted a search for ESI responsive to subpart (2) of LDF’s request but did not identify any additional documents. Dkt. No. 28 ¶ 7.
On November 16, 2018, the Civil Rights Division issued a supplemental response to LDF, releasing 78 pages of documents in full or in part and withholding an additional 42 pages. See Dkt. No. 24-4. Following the Civil Rights Division’s release of these pages, it conducted a
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third supplemental search to identify additional documents responsive to subparts (1), (3), (4), and (5) of LDF’s request. This search consisted of providing Herren, Wertz, and Berman— personnel with “knowledge of the portfolios of all Voting Section employees”—LDF’s FOIA request and asking them if additional documents responsive to these subparts were likely to exist in the Voting Section. Dkt. No. 24 ¶ 18; Dkt. No. 28 ¶ 8. They concluded that no such additional responsive documents were likely to exist. Gore was also provided with LDF’s FOIA request and indicated that he did not have additional documents responsive to these subparts. Dkt. No. 24 ¶ 18; Dkt. No. 28 ¶ 8.
On February 14, 2019, the Civil Rights Division issued a second supplemental response indicating that it located no documents responsive to subparts (1), (3), (4), and (5) of LDF’s request. Dkt. No. 24 ¶ 26; see also Dkt. No. 24-6. A month later, on March 15, 2019, it issued a third supplemental response, releasing 97 pages in full and withholding 17 pages in full. Dkt. No. 24 ¶ 27; see also Dkt. No. 24-7. This response released pages from the hard copy documents that Gore turned over in August 2018 but were mistakenly omitted from earlier responses. Dkt. No. 24 ¶ 27.
A third and final supplemental search was then conducted, though DOJ does not indicate when. Id. ¶ 20. This search was prompted by DOJ’s discovery of three additional responsive documents during the course of this litigation. Id. For its final supplemental search, the Civil Rights Division searched the census collection database that was created during the substantive litigation concerning the 2020 decennial census. Id. ¶¶ 20, 22. This database is composed of electronic and hard copy documents from Gore, Herren, Pickett, and Aguiñaga; documents collected in response to FOIA requests regarding the 2020 decennial census and the citizenship status question, the Gary letter, and Kris Kobach and the White House Commission on Election
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Integrity; and 13 expert witness reports relating to Section 2 of the Voting Rights Act provided by the Voting Section. Id. ¶¶ 20–21. The Civil Rights Division searched this database for records associated with Gore, Herren, Pickett, and Aguiñaga that included the term “census” in order to “compile the largest possible data collection to locate all documents responsive to [LDF’s] request.” Id. ¶ 22. A separate search was also run for the term “citizenship question.” Id. Ultimately, these searches of the census collection database did not identify any additional responsive documents not already identified. Id.
On May 9, 2019, the Civil Rights Division issued its fourth and final supplemental response, releasing three pages in part or in full and withholding four. Id. ¶ 28; see also Dkt. No. 24-9. These pages comprised the three additional responsive documents discussed above. In total, in response to LDF’s request, DOJ has release 178 pages in full or in part and withheld 63 pages in full.
C. Litigation On October 12, 2018, LDF commenced this action pursuant to 5 U.S.C. § 552(a)(4)(B), claiming that DOJ (1) failed to conduct adequate searches for responsive records; (2) wrongfully withheld non-exempt responsive records; and (3) failed to provide LDF with a determination as to whether it would comply with LDF’s request within 30 days of receiving it, as required by 5 U.S.C. § 552(a)(6). Dkt. No. 1 ¶¶ 43–62. At the initial pretrial conference in this matter, the Court adopted the parties’ briefing schedule for cross-motions for summary judgment. See Dkt. No. 19. DOJ filed its motion for summary judgment with respect to LDF’s first and second claims on May 13, 2019, see Dkt. No. 23, and LDF filed its cross-motion for summary judgment on June 10, 2019, see Dkt. No. 25. Because LDF does not contest DOJ’s assertion that “the only disputed issue regarding [the Civil
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Rights Division’s] response is the adequacy of [its] search for responsive records,” Dkt. No. 27 at 1—and indeed only seeks summary judgment on its adequacy of search claim—the Court deems its other claims abandoned and dismisses them.5 Accordingly, it considers each party’s summary judgment motion with respect to LDF’s first claim only. II. LEGAL STANDARD
The Freedom of Information Act “was enacted to promote honest and open government and to assure the existence of an informed citizenry ‘to hold the governors accountable to the governed.’” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (quoting Ethyl Corp. v. EPA, 25 F.3d 1241, 1245 (4th Cir. 1994)). It entitles members of the public “to have access to any record maintained by a federal agency, unless that record is exempt from disclosure.” A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138, 143 (2d Cir. 1994).
“Summary judgment is the procedural vehicle by which most FOIA actions are resolved.” Seife v. United States Dep’t of State, 298 F. Supp. 3d 592, 604 (S.D.N.Y. 2018) (citation omitted). As a general matter, a court may not grant summary judgment unless the parties’ submissions, taken together, show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA.” Carney, 19 F.3d at 812. Because LDF no longer challenges the withholding of any documents responsive to its request, the Court considers only whether DOJ has met its “burden of showing that its search was adequate.” Id. In a FOIA case, “[a]ffidavits or declarations supplying facts indicating that the agency has conducted a thorough search,”
5 LDF has reiterated in recent filings that “the sole remaining issue in this litigation” is the “adequacy of DOJ’s search for records in [the Civil Rights Division] responsive to LDF’s request.” Dkt. No. 35.
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which are “accorded a presumption of good faith” by courts, are sufficient to sustain this burden. Id. (quoting Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). Accordingly, where agency submissions are “adequate on their face[s],” a district court may award summary judgment in the agency’s favor on the basis of its affidavits alone. Id.
Conversely, summary judgment in the agency’s favor is inappropriate “where the agency’s response raises serious doubts as to the completeness of the agency’s search, where the agency’s response is patently incomplete, or where the agency’s response is for some other reason unsatisfactory.” Nat’l Day Laborer Org. Network v. U.S. Immigration & Customs Enf’t Agency, 877 F. Supp. 2d 87, 96 (S.D.N.Y. 2012) (quoting Exxon Corp. v. Federal Trade Comm’n, 466 F. Supp. 1088, 1094 (D.D.C. 1978)). “A district court that finds a search to be inadequate may direct the defendant to conduct additional searches.” Immigrant Def. Project v. United States Immigration, 208 F. Supp. 3d 520, 527 (S.D.N.Y. 2016) (citing Nat’l Day Laborer Org. Network, 877 F. Supp. 2d at 112). III. DISCUSSION
“[W]hen a plaintiff questions the adequacy of the search an agency made in order to satisfy its FOIA request, the factual question it raises is whether the search was reasonably calculated to discover the requested documents.” Grand Cent. P’ship, 166 F.3d at 489 (quoting SafeCard, 926 F.2d at 120); see also Garcia v. U.S. Dep’t of Justice, Office of Info. and Privacy, 181 F.Supp.2d 356, 366 (S.D.N.Y. 2002) (“[A]gency affidavits must show that the agency made a good faith effort to search for the requested documents, using methods ‘reasonably calculated’ to produce documents responsive to the FOIA request.” (quoting Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984))). “The adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to
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carry out the search.” Nat’l Day Laborer Org. Network, 877 F. Supp. 2d at 96 (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 316 (D.C. Cir. 2003)). In other words, the adequacy of a search is judged against a reasonableness standard: “an agency’s search need not be perfect, but rather need only be reasonable.” Grand Cent. P’ship, 166 F.3d at 489 (citing SafeCard, 926 F.2d at 1201).
Under Second Circuit law, “to establish the adequacy of a search, agency affidavits must be . . . ‘relatively detailed and nonconclusory.’” Id. (quoting SafeCard, 926 F.2d at 1200). A “satisfactory agency affidavit should, at a minimum, describe in reasonable detail the scope and method by which the search was conducted.” Amnesty Int’l USA v. C.I.A., 2008 WL 2519908, at *8 (S.D.N.Y. June 19, 2008) (quoting Maynard v. CIA, 986 F.2d 547, 559–60 (1st Cir. 1993)); see also Iturralde, 315 F.3d at 313–14 (“[T]he agency may meet its burden by providing ‘a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched.’” (quoting Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990))). If a court makes a threshold determination that an agency affidavit is sufficiently specific, it then proceeds to consider whether the underlying search was reasonable. See Immigrant Def. Project, 208 F. Supp. 3d at 526 (“[T]he declarations—together with their supplements—are sufficiently specific for the Court to judge the reasonableness of the underlying search.”).
To satisfy the reasonableness standard articulated above, “an agency must search all locations likely to contain responsive records; not simply where the records are ‘most likely’ to be found.” Knight First Amendment Inst. at Columbia Univ. v. U.S. Dep’t of Homeland Sec., 407 F. Supp. 3d 311, 324 (S.D.N.Y. 2019); see also DiBacco v. U.S. Army, 795 F.3d 178, 190 (D.C. Cir. 2015). In applying this reasonableness standard, courts consider, among other things,
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“the search terms and type of search performed” and the “nature of the records system or database searched.” See Knight First Amendment Inst., 407 F. Supp. 3d at 324; see also Schwartz v. Dep’t of Def., 2017 WL 78482, at *6 (E.D.N.Y. Jan. 6, 2017).
Search terms must “be reasonably tailored to uncover documents responsive to a FOIA request.” Brennan Ctr. for Justice at New York Univ. Sch. of Law v. U.S. Dep’t of Justice, 377 F. Supp. 3d 428, 434 (S.D.N.Y. 2019). It is within the discretion of federal agencies to develop search terms reasonably tailored to respond to the FOIA request at hand. Id. Indeed, generally FOIA petitioners “cannot dictate the search terms to be used.” Id.; see also Bigwood v. United States Dep’t of Def., 132 F.Supp.3d 124, 140 (D.D.C. 2015). However, an agency must provide “logical explanations” for decisions it makes with respect to the search terms it does or does not use. Immigrant Def. Project, 208 F. Supp. 3d at 527 (citing Fox News Network, LLC v. U.S. Dep’t of Treasury, 739 F. Supp. 2d 515, 535 (S.D.N.Y. 2010)). Indeed, “[c]ourts in this District have found that agencies fulfilled their obligation under FOIA even where the agency failed to search certain terms listed in a FOIA request or emphasized by a plaintiff, so long as the agency provided an explanation as to why the search term was not used (such as, the futility of the term to narrow the field of documents or an office’s failure to use the term in question in its records or recordkeeping).” Id.
“FOIA does not demand a search that would be futile.” Amnesty Int’l USA, 2008 WL 2519908, at *11 (citing Am.-Arab Anti-Discrimination Comm. v. U.S. Dep’t of Homeland Sec., 516 F.Supp.2d 83, 87–88 (D.D.C. 2007)). Nor does it require that government agencies act as “full-time investigators on behalf of requestors.” Seife, 298 F. Supp. 3d at 611 (S.D.N.Y. 2018) (quoting Freedom Watch, Inc. v. Cent. Intelligence Agency, 895 F. Supp. 2d 221, 228 (D.D.C. 2012)). Accordingly, an agency need not “respond to a request that is ‘so broad as to impose an
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unreasonable burden upon the agency,’ such as one which ‘require[s] the agency to locate, review, redact, and arrange for inspection a vast quantity of material.’” Id. at 611 (quoting Nat’l Day Laborer Org. Network v. United States Immigration & Customs Enf’t, 2017 WL 1494513, at *11 (S.D.N.Y. Apr. 19, 2017)). However, the agency itself “bears the burden to ‘provide [a] sufficient explanation as to why a search [in response to a FOIA request] would be unreasonably burdensome.’” Ayuda, Inc. v. Fed. Trade Comm., 70 F. Supp. 3d 247, 275 (D.D.C. 2014) (alteration in original) (quoting Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 892 (D.C. Cir. 1995)).
A. DOJ’S SEARCH WAS NOT ADEQUATE As an initial matter, DOJ’s declarations, taken together, are sufficiently specific to allow the Court to judge the reasonableness of the underlying searches. Indeed, they are “nonconclusory,” Grand Cent. P’ship, Inc., 166 F.3d at 488–89, and describe “in reasonable detail the scope and method by which the search[es were] conducted,” Amnesty Int’l USA, 2008 WL 2519908, at *8; see generally Dkt. No. 24; Dkt. No. 28. Having made this threshold determination, the Court proceeds to consider whether the underlying searches set forth in the agency declarations were reasonable. LDF argues that the underlying searches were unreasonable and thus inadequate. The Court agrees for the reasons set forth below and thus grants LDF’s cross-motion for summary judgment.
1. Searches for Documents Responsive to Subpart (2) were Inadequate DOJ’s declarations detail various searches conducted to locate records responsive to subpart (2) of LDF’s FOIA request. The Court focuses its analysis on the last of these searches—the search of the census collection database—which is the search to which LDF primarily objects. As an initial matter, for the reasons articulated below, the Court concludes
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that the census collection database was a location likely to contain records responsive to subpart (2) of LDF’s FOIA request. See infra Section III.A.2. As a result, DOJ was obligated under FOIA to search it. See DiBacco, 795 F.3d at 190. In assessing whether the Civil Rights Division’s search of the census collection database was reasonable, the Court considers the search terms used and the nature of the database, see Knight First Amendment Inst., 407 F. Supp. 3d at 324, to determine whether “the search was reasonably calculated to discover the requested documents,” Grand Cent. P’ship, 166 F.3d at 489.
Applying the reasonableness standard articulated above, the Court concludes that the electronic search of the census collection database was inadequate with respect to subpart (2) of LDF’s request because the search terms used “were too restrictive to be reasonably calculated to uncover all responsive records.” See Knight First Amendment Inst., 407 F. Supp. 3d at 325. In response to this subpart of LDF’s request, which requests documents relating to DOJ’s request for a citizenship status question on the 2020 decennial census as necessary to enforce Section 2 of the Voting Rights Act, the Civil Rights Division first searched the census collection database using only the search term “census.” Dkt. No. 24 ¶ 22. While DOJ has discretion to develop search terms reasonably tailored to subpart (2) of LDF’s request, see Brennan Ctr. for Justice, 377 F. Supp. 3d at 434, its explanation for why it used only this search term to search for records responsive to this subpart is illogical and thus insufficient, see Immigrant Def. Project, 208 F. Supp. 3d at 527. It alleges only that it used the term “census” “to compile the largest possible data collection to locate all documents responsive to [subpart (2) of LDF’s] request.” Dkt. No. 24 ¶ 22. But it does not further explain why or how use of only this term would succeed in compiling the “largest possible data collection” of documents potentially responsive to subpart (2) of LDF’s request. Nor does it account for the fact that a search for the term “census” leaves
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out all of the documents responsive to this subpart of LDF’s request that discuss the citizenship status question as necessary to enforce Section 2 of the Voting Rights Act but do not explicitly mention the word “census.” That such documents exist is confirmed by LDF’s citation to a publicly available document ostensibly responsive to subpart (2) of its request that does not include the term census (or citizenship question). See Dkt. No. 26 at 22 n.54. While DOJ is right that the “failure of an agency to turn up one specific document in its search does not alone render a search inadequate,” Iturralde, 315 F.3d at 315, “[e]vidence that relevant records have not been released may shed light on whether the agency’s search was indeed inadequate.” Nat’l Day Laborer Org. Network, 877 F. Supp. 2d at 96 (quoting Weisberg, 705 F.2d at 1351). In this case, the existence of a potentially responsive document that does not contain the primary search term utilized by the Civil Rights Division—and the possible existence of others—underscores the “underinclusive and unduly restrictive” nature of DOJ’s primary search term. See Knight First Amendment Inst., 407 F. Supp. 3d at 325 (“[T]he Office of the Director’s search using the phrases ‘endorse provision’ and ‘espouse provision’ are underinclusive and unduly restrictive. The search leaves out, for example, records discussing the exclusion or removal of an individual who purportedly endorsed or espoused terrorist activity but did not explicitly mention the ‘endorse provision’ or ‘espouse provision.’”).
Furthermore, the fact that DOJ subsequently conducted a second search of the census collection database using the search term “citizenship question” does not render its inadequate search adequate. Dkt. No. 24 ¶ 22. Indeed, even the combination of searches for these two search terms is “too restrictive to be reasonably calculated to uncover” records responsive to subpart (2) of LDF’s request, because even that combination remains “unreasonably narrow” given the breadth of the request. See Knight First Amendment Inst., 407 F. Supp. 3d at 325
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(finding a search for two search terms “unreasonably narrow given the breadth of Plaintiff’s request”); Brennan Ctr. for Justice, 377 F. Supp. 3d at 434 (finding agencies’ respective uses of three and four search terms inadequate where they failed to employ other obvious search terms). As above, a search for the term “citizenship question” leaves out all of the documents that may be responsive to subpart (2) of LDF’s request but do not explicitly mention the phrase “citizenship question.” Searches using only underinclusive “shorthand phrases” such as this one have been found to be unduly restrictive—and thus inadequate—for this reason. See Knight First Amendment Inst., 407 F. Supp. 3d at 325.
Accordingly, in the absence of a logical explanation for the search terms it used, the Court concludes that DOJ’s search of the census collection database to locate records responsive to subpart (2) of LDF’s request was inadequate, because such a search was not “reasonably calculated to discover the requested documents.” Grand Cent. P’ship, 166 F.3d at 489.
DOJ argues that its search was not inadequate because searching the census collection database using additional search terms, such as those suggested by LDF, would be unreasonably burdensome. It further argues that LDF’s motion is subterfuge for impermissibly dictating the search terms of its own FOIA request. See Dkt. No. 27 at 7–9. The Court considers and rejects both counterarguments below.
With respect to its first counterargument, DOJ fails to bear its burden to “provide [a] sufficient explanation as to why a search [in response to subpart (2) of LDF’s FOIA request] would be unreasonably burdensome.” Ayuda, Inc., 70 F. Supp. 3d at 275 (quoting Nation Magazine, 71 F.3d at 892). It argues only that because the database contains documents unrelated to subpart (2) of LDF’s request, searching it using “broader terms” such as “citizenship” or “Section 2” would be “extremely likely to capture a large number of records
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relating to voting issues but not responsive for records relating to Plaintiff’s request.” Dkt. No. 24 ¶ 22; see also Dkt. No. 28 ¶ 5 (“[LDF’s] suggested terms are too general and could potentially encompass a great many records unrelated to the 2020 Census and the December 12, 2017 letter or the effect of adding a citizenship question on minority populations”). Such a speculative and cursory explanation is insufficient on its face to satisfy DOJ’s burden because it fails to “describe with reasonable specificity the actual burden imposed” by the request. See Seife, 298 F. Supp. 3d at 612 (finding insufficient an explanation that provided no information with respect to the volume of, the level of difficulty of, or amount of time such a search would require).
Moreover, DOJ’s burden argument is belied by the nature of the database, which the Court also considers in determining the reasonableness of a search. Electronic databases may be searched using a few keystrokes, and searches can be refined by combining search terms using Boolean operators. See Nat’l Day Laborer Org. Network, 877 F. Supp. 2d at 106. DOJ is undoubtedly capable of creating and executing such targeted searches because it used Boolean operators in collecting documents to populate the census collection database. See Dkt. No. 24 ¶ 20 (listing search terms used to collect records for database, including “citizenship and DOC” and “citizenship and ACS,” among others). Furthermore, as LDF points out, searches of the census collection database could be further constrained by limiting them to the custodians DOJ has already identified as likely to have records responsive to this subpart of LDF’s request. See Dkt. No. 29 at 13. In light of the cursory nature of its explanation and the methods available to it to craft targeted and refined searches responsive to subpart (2) of LDF’s FOIA request, the Court concludes that DOJ has failed to sufficiently explain why using additional search terms would be unduly burdensome.
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DOJ also misconstrues LDF’s motion as a backhanded attempt to dictate the search terms of its own FOIA request. However, LDF’s motion makes clear that the search terms it references, which are drawn from the language of the FOIA request itself, are suggestions as to how DOJ might craft a search that is “reasonably tailored to uncover documents responsive to [its] FOIA request.” Brennan Ctr. for Justice, 377 F. Supp. 3d at 434; see, e.g., Dkt. No. 26 at 10 (describing “suggested” search terms responsive to subpart (2) of its request). It is not improper of LDF to suggest search terms it believes may assist DOJ in crafting an adequate search of the census collection database. Indeed, it is not uncommon for parties to work together in deciding on new search times, as courts in this District sometimes require when the initial search was inadequate. See, e.g., Knight First Amendment Inst., 407 F. Supp. 3d at 326 (“ICE must conduct new searches. The parties should meet and confer and submit a joint status report regarding the new search terms.”); Nat’l Day Laborer Org. Network, 877 F. Supp. 2d at 111 (“The parties will need to agree on search terms and protocols.”).
Because DOJ has failed to establish the adequacy of its search for records responsive to subpart (2) of LDF’s request, it must conduct a new search. The Court will follow the practice of other courts in this District and require the parties to collaborate to craft new search terms. Accordingly, the parties must meet and confer and submit a joint status letter regarding new search terms responsive to subpart (2) of LDF’s request within twenty-one days of the date of this Opinion and Order.
2. Searches for Documents Responsive to Subparts (1), (3), (4), and (5) were Inadequate
DOJ’s declarations also describe searches conducted to locate records responsive to subparts (1), (3), (4), and (5) of LDF’s FOIA request. In assessing whether these searches were reasonable, the Court first considers whether the agency searched “all locations likely to contain
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responsive records.” Knight First Amendment Inst., 407 F. Supp. 3d at 324. An “agency’s decisions about which offices or databases to search . . . must . . . be ‘reasonably calculated to uncover all relevant documents.’” Amnesty Int’l USA, 2008 WL 2519908, at *9 (quoting Oglesby, 920 F.2d at 68). Indeed, it is “well-settled that if an agency has reason to know that certain places may contain responsive documents, it is obligated under FOIA to search barring an undue burden.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999) (emphasis added).
Because the Court finds that DOJ failed to search all locations likely to contain responsive records, it concludes that the searches it conducted to locate records responsive to subparts (1), (3), (4), and (5) of LDF’s FOIA request were inadequate. DOJ’s searches for records responsive to these subparts consisted entirely of the following: Herren, Wertz, and Berman were provided with LDF’s FOIA request and asked if any additional records responsive to these subparts existed in the Voting Section. Dkt. No. 28 ¶ 8. Gore was also provided with LDF’s FOIA request and asked whether he had any additional records responsive to these subparts. Id. The Voting Section custodians concluded that no such additional responsive records were likely to exist, and Gore indicated that he did not have any additional responsive records. Id.; see also Dkt. No. 24 ¶ 17–18.
However, as LDF points out, DOJ had ample reason to believe that the census collection database was also likely to contain records responsive to subparts (1), (3), (4), and (5) of LDF’s request. This database is populated by documents related to the addition of the citizenship status question to the 2020 decennial census. Indeed, the database is comprised of documents responsive to a Rule 45 subpoena issued in the substantive litigation concerning the 2020 decennial census. See Dkt. No. 28-1. Among other categories, this subpoena requested
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documents demonstrating whether DOJ’s enforcement of the Voting Rights Act is hindered by the lack of citizenship data and the use or reliance on citizenship data from the American Community Survey for purposes of enforcement of the Voting Rights Act. Id. Documents responsive to the requests in this subpoena would, at a minimum, also be responsive to subparts (1) and (3) of LDF’s FOIA request, and perhaps others. See supra Section I.A. Because the database was likely to contain records responsive to the other subparts of LDF’s request, DOJ was obligated under FOIA to search it. See Valencia-Lucena, 180 F.3d at 327. Its failure to do so renders the searches it did conduct to locate records responsive to these subparts of LDF’s request inadequate. See id.
DOJ argues that its searches for records responsive to subparts (1), (3), (4), and (5) of LDF’s request were not inadequate, and thus it should not be required to search the census collection database for records responsive to them. However, the Court does not find any of its arguments to this effect availing.
It argues first that its searches were not inadequate because FOIA does not create any requirement that agencies conduct electronic searches. On this point, DOJ is correct. However, it is not the failure to conduct electronic searches in and of itself that renders these searches inadequate; rather, as discussed above, it is the failure to search all locations—including the census collection database—“likely to contain responsive records.” See Knight First Amendment Inst., 407 F. Supp. 3d at 324; see also DiBacco, 795 F.3d at 190. In this instance, then, the need to conduct electronic searches is only precipitated by the fact that the location likely to contain responsive records is an electronic database. DOJ further suggests that it did, in effect, conduct electronic searches of the census collection database for records responsive to these subparts of LDF’s request. Indeed, it asserts that its search of the census collection database for records
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responsive to subpart (2) of LDF’s FOIA request was likely to also return “some records responsive to the other subparts of [LDF’s] request.” See Dkt. No. 28 ¶ 7. However, it fails to provide any logical explanation for why searches for “census” and “citizenship question” would also return records responsive to four separate and distinct subparts of LDF’s request. See Immigrant Def. Project, 208 F. Supp. 3d at 527.
Finally, DOJ argues that it would not be reasonable to conduct electronic searches of the census collection database with respect to subparts (1), (3), (4), and (5) of LDF’s request because Herren, Wertz, Berman, and Gore already determined that additional documents responsive to these subparts were not likely to exist. However, the cases DOJ cites in support of this argument serve only to undermine it. Indeed, these cases stand for the proposition that “an agency is not required to expend its limited resources on searches for which it is clear at the outset that no search will produce the records sought.” See Reyes v. United States Envtl. Prot. Agency, 991 F. Supp. 2d 20, 27 (D.D.C. 2014) (emphasis added); see also Cunningham v. U.S. Dep’t of Justice, 40 F. Supp. 3d 71, 83 (D.D.C. 2014), aff’d, 2014 WL 5838164 (D.C. Cir. Oct. 21, 2014). This is so because “FOIA does not demand a search that would be futile.” Amnesty Int’l USA, 2008 WL 2519908, at *11. However, it is far from clear that no search of the census collection database will produce records responsive to subparts (1), (3), (4), and (5) of LDF’s request—or, in other words, that such a search would be futile.6 Indeed, the Court already concluded, for the reasons articulated above, that the census collection database is likely to contain records responsive to
6 Contrary to DOJ’s contention, the mere fact that Herren, Wertz, Berman, and Gore made a determination that additional documents responsive to these subparts were unlikely to exist does not make it clear at the outset that a search of the census collection database would be futile. This argument is undermined by the fact that, on at least one prior occasion, Gore—the custodian at the center of this action—was unaware that he possessed additional documents responsive to a similar FOIA request that he had not disclosed in the initial search. See Dkt. No. 33. Under these circumstances, where custodians have demonstrated an inability to recall all the records in their possession, it would not be futile to search a preexisting database that has collected all of their communications. Indeed, it would be unreasonable not to when such a database is likely to contain any additional extant records.
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some—if not all—of these subparts of LDF’s requests, and the cases DOJ cites confirm it “must conduct a good faith, reasonable search of those systems of records likely to possess requested records.” Cunningham, 40 F. Supp. 3d at 83 (emphasis added). Thus, contrary to DOJ’s contention, search of the census collection database is not unreasonable but rather is required by FOIA.
Because DOJ has failed to establish the adequacy of its search for records responsive to subparts (1), (3), (4), and (5) of LDF’s request, it must conduct a new search of the census collection database. Any burden that such a search may impose can be mitigated by the methods identified above. The Court implores the parties to work together to craft search terms “reasonably tailored to uncover documents responsive” to these subparts. See Brennan Ctr. for Justice, 377 F. Supp. 3d at 434. IV. CONCLUSION
In sum, DOJ has not carried its burden of showing that its search was adequate with respect to any subpart of LDF’s FOIA request. As such, its motion for summary judgment is DENIED, and LDF’s cross-motion for summary judgment is GRANTED. DOJ is hereby ORDERED to conduct an adequate search to identify documents responsive to each subpart of LDF’s FOIA request.7
Within 21 days of the date of this Opinion and Order, the parties shall meet and confer and submit a joint letter setting out agreed-upon search terms for a search of the census collection database for records responsive to subpart (2) of LDF’s request. In that letter, the
7 The Court is in receipt of LDF’s January 21, 2020 letter suggesting that the census collection database’s search function may be flawed, see Dkt. No. 35, as well as DOJ’s February 5, 2020 response, see Dkt. No. 36. The Court expects that any such issue will be corrected before new searches of the database are conducted.
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parties shall also update the Court on the status of the search of the census collection database for records responsive to subparts (1), (3), (4), and (5) of LDF’s request.
The Clerk of Court is respectfully requested to enter judgment. This resolves Dkt. Nos. 22 and 25.
SO ORDERED.

Dated: May 29, 2020 New York, New York

____________________________________ ALISON J. NATHAN
United States District Judge

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