CLOSED,TYPE I−FOIA
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−02518−CRC

GOVERNMENT ACCOUNTABILITY PROJECT v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY Assigned to: Judge Christopher R. Cooper Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 11/21/2017 Date Terminated: 06/03/2020 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

GOVERNMENT ACCOUNTABILITY PROJECT

represented by Matthew Topic LOEVY & LOEVY 311 N. Aberdeen Street Third Floor Chicago, IL 60607 (312) 243−5900 Fax: (312) 243−5902 Email: matt@loevy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Merrick Jason Wayne LOEVY & LOEVY 311 N. Aberdeen Street Third Floor Chicago, IL 60607 (312) 243−5900 Fax: (312) 243−5902 Email: merrick@loevy.com ATTORNEY TO BE NOTICED

Joshua Hart Burday LOEVY & LOEVY 311 N. Aberdeen Street Third Floor Chicago, IL 60607 (312) 243−5900 Fax: (312) 243−5902 Email: joshb@loevy.com ATTORNEY TO BE NOTICED

V.
Defendant
UNITED STATES DEPARTMENT OF HOMELAND SECURITY

represented by Jeremy S. Simon U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2528 Fax: (202) 252−2599 Email: jeremy.simon@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

11/21/2017
11/22/2017 11/22/2017 01/17/2018 01/18/2018 01/18/2018 02/14/2018 02/14/2018
02/14/2018 02/27/2018 02/28/2018
02/28/2018 04/03/2018 04/06/2018
04/06/2018 05/08/2018 05/09/2018
05/09/2018

1 COMPLAINT against UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number 0090−5216810) filed by GOVERNMENT ACCOUNTABILITY PROJECT. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit, # 3 Exhibit, # 4 Summons, # 5 Summons, # 6 Summons)(Burday, Joshua) (Entered: 11/21/2017)
Case Assigned to Judge Christopher R. Cooper. (zsb) (Entered: 11/22/2017)
2 SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 11/22/2017)
3 Consent MOTION for Extension of Time to Answer or Otherwise Respond to Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 01/17/2018)
MINUTE ORDER granting 3 Defendant's Motion for Extension of Time. Defendant's response to the complaint shall now be due by February 16, 2018. Signed by Judge Christopher R. Cooper on 1/18/2018. (lccrc2) (Entered: 01/18/2018)
Set/Reset Deadlines: Answer due by 2/16/2018 (lsj) (Entered: 01/18/2018)
4 ANSWER to 1 Complaint, by UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(Simon, Jeremy) (Entered: 02/14/2018)
MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. Since the requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure do not apply, it is hereby ORDERED that the parties shall confer and file a joint proposed schedule for briefing or disclosure by February 28, 2018. Signed by Judge Christopher R. Cooper on 2/14/2018. (lccrc2) (Entered: 02/14/2018)
Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 2/28/2018 (lsj) (Entered: 02/14/2018)
5 Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 02/27/2018)
MINUTE ORDER: In light of 5 the parties' Joint Status Report, the parties are directed to file a further joint status report by April 3, 2018 proposing a further schedule for production. Signed by Judge Christopher R. Cooper on 2/28/2018. (lccrc2) (Entered: 02/28/2018)
Set/Reset Deadlines: Joint Status Report due by 4/3/2018 (lsj) (Entered: 02/28/2018)
6 Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 04/03/2018)
MINUTE ORDER: In light of 6 the parties' joint status report, the parties are directed to file a further joint status report by May 8, 2018 proposing a further schedule for production. Signed by Judge Christopher R. Cooper on 4/3/2018. (lccrc2) (Entered: 04/06/2018)
Set/Reset Deadlines: Joint Status Report due by 5/8/2018 (lsj) (Entered: 04/06/2018)
7 Joint STATUS REPORT and Proposed Briefing Schedule by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 05/08/2018)
MINUTE ORDER: In light of 7 the parties' joint status report, the summary judgment briefing schedule in this case shall be as follows: Defendant's motion for summary judgment shall be due by June 27, 2018; Plaintiff's combined opposition and cross−motion shall be due by July 27, 2018; Defendant's combined reply and opposition shall be due by August 17, 2018; and Plaintiff's reply shall be due by September 7, 2018. Signed by Judge Christopher R. Cooper on 5/9/2018. (lccrc2) (Entered: 05/09/2018)
Set/Reset Deadlines: Summary Judgment motions due by 6/27/2018. Response to Motion for Summary Judgment due by 7/27/2018. Reply to Motion for Summary Judgment due by 8/17/2018. Replies due by 9/7/2018. (lsj) (Entered: 05/09/2018)

06/27/2018 07/27/2018
08/17/2018 08/20/2018 08/21/2018 09/10/2018 09/10/2018
10/01/2018 10/12/2018 10/12/2018 10/12/2018 10/24/2018 10/25/2018
10/25/2018 11/16/2018

8 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Proposed Order, # 2 Declaration of James V.M.L. Holzer)(Simon, Jeremy) (Entered: 06/27/2018)
9 MOTION for Partial Summary Judgment by GOVERNMENT ACCOUNTABILITY PROJECT (Attachments: # 1 Memorandum in Support Memorandum, # 2 Statement of Facts Statement of Genuine Issues of Fact, # 3 Statement of Facts Statement of Material Facts, # 4 Text of Proposed Order Proposed Order)(Topic, Matthew) (Entered: 07/27/2018)
10 Unopposed MOTION for Extension of Time to File Combined Opposition and Reply by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 08/17/2018)
MINUTE ORDER granting 10 Defendant's Motion for Extension of Time. It is hereby ORDERED that Defendant's opposition and reply brief is due on or before September 10, 2018 and Plaintiff's reply is due on or before October 1. Signed by Judge Christopher R. Cooper on 8/20/18. (lccrc2) (Entered: 08/20/2018)
Set/Reset Deadlines: Defendant's Opposition and Reply Brief due by 9/10/2018. (lsj) (Entered: 08/21/2018)
11 Memorandum in opposition to re 9 MOTION for Partial Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Response to Plaintiff's Local Rule 7(h) Statement, # 2 Supplemental Declaration of James V.M.L. Holzer, # 3 Proposed Order)(Simon, Jeremy) (Entered: 09/10/2018)
12 REPLY to opposition to motion re 8 MOTION for Summary Judgment , Local Rule 7(h) Statement and Supporting Memorandum (duplicate of Docket Entry No. 11) filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Response to Plaintiff's Local Rule 7(h) Statement, # 2 Supplemental Declaration of James V.M.L. Holzer, # 3 Proposed Order)(Simon, Jeremy) (Entered: 09/10/2018)
13 REPLY to opposition to motion re 9 MOTION for Partial Summary Judgment filed by GOVERNMENT ACCOUNTABILITY PROJECT. (Topic, Matthew) (Entered: 10/01/2018)
14 ORDER denying 8 Defendant's Motion for Summary Judgment and granting 9 Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Christopher R. Cooper on 10/12/2018. (lccrc2) (Entered: 10/12/2018)
15 MEMORANDUM OPINION re 14 Order denying Defendant's Motion for Summary Judgment and granting Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Christopher R. Cooper on 10/12/2018. (lccrc2) (Entered: 10/12/2018)
Set/Reset Deadlines: Meet & Confer Statement due by 10/26/2018. Responses due by 11/2/2018. (znbn) (Entered: 10/12/2018)
16 Consent MOTION for Extension of Time to Comply with Deadlines in Court's October 12, 2018 Order by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 10/24/2018)
MINUTE ORDER granting Defendant's 16 Consent Motion for Extension of Time to Comply with Deadlines in Court's October 12, 2018 Order. The October 26, 2018 deadline for the parties to meet and confer regarding potential search terms is now extended to November 9, 2018; the November 2, 2018 deadline for the parties, should they be unable to agree on search terms, to propose their preferred terms to the Court is now extended to November 16, 2018. Signed by Judge Christopher R. Cooper on 10/25/2018. (lccrc2) (Entered: 10/25/2018)
Set/Reset Deadlines: Meet & Confer Statement due by 11/9/2018. Deadline for the parties, should they be unable to agree on search terms, to propose their preferred terms to the Court is now extended to 11/16/2018. (znbn) (Entered: 10/25/2018)
17 Joint STATUS REPORT Regarding Search Terms by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 11/16/2018)

11/21/2018 08/06/2019 09/06/2019 09/06/2019 09/13/2019 09/17/2019
09/17/2019 10/01/2019 10/03/2019
10/04/2019 10/29/2019 10/31/2019 10/31/2019 12/02/2019 12/02/2019
12/03/2019 12/06/2019 12/06/2019
01/07/2020 01/08/2020

18 ORDER regarding additional search terms. Signed by Judge Christopher R. Cooper on 11/21/2018. (lccrc2) (Entered: 11/21/2018)
19 NOTICE of Appearance by Merrick Jason Wayne on behalf of GOVERNMENT ACCOUNTABILITY PROJECT (Wayne, Merrick) (Entered: 08/06/2019)
MINUTE ORDER: The parties are hereby ORDERED to file a joint status report by Friday, September 13, 2019 with an update on the status of production. Signed by Judge Christopher R. Cooper on 9/6/19. (lccrc2) (Entered: 09/06/2019)
Set/Reset Deadlines: Joint Status Report due by 9/13/2019 (lsj) (Entered: 09/06/2019)
20 Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 09/13/2019)
MINUTE ORDER: In light of 20 Joint Status Report, the parties are hereby ORDERED to file a joint status report by October 1, 2019, which shall include an update on when the Department of Homeland Security expects to complete its review of the search results and, if responsive records are identified, a proposed production schedule. Signed by Judge Christopher R. Cooper on 9/17/19. (lccrc2) (Entered: 09/17/2019)
Set/Reset Deadlines: Joint Status Report due by 10/1/2019 (lsj) (Entered: 09/17/2019)
21 Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 10/01/2019)
MINUTE ORDER: In light of 21 Joint Status Report, the parties are hereby ORDERED to file a joint status report by October 29, 2019, which shall include the parties' proposals for further proceedings. Signed by Judge Christopher R. Cooper on 10/3/19. (lccrc2) (Entered: 10/03/2019)
Set/Reset Deadlines: Joint Status Report due by 10/29/2019 (lsj) (Entered: 10/04/2019)
22 Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 10/29/2019)
MINUTE ORDER: The parties are directed to file a joint status report by December 2, 2019, which shall include their respective proposals for further proceedings. Signed by Judge Christopher R. Cooper on 10/31/19. (lccrc2) (Entered: 10/31/2019)
Set/Reset Deadlines: Joint Status Report due by 12/2/2019 (lsj) (Entered: 10/31/2019)
23 Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 12/02/2019)
MINUTE ORDER: The parties are directed to appear for a telephonic status conference on Friday, December 6, 2019 at 10:00 a.m. Signed by Judge Christopher R. Cooper on 12/2/19. (lccrc2) Modified to correct date on 12/3/2019 (lsj). (Entered: 12/02/2019)
Set/Reset Hearings: Telephone Conference set for 12/6/2019 at 10:00 AM before Judge Christopher R. Cooper. (lsj) (Entered: 12/03/2019)
Minute Entry for proceedings held before Judge Christopher R. Cooper: Telephone Conference held on 12/6/2019. Joint Status Report due by 1/7/2020. (Court Reporter: Lisa Moreira.) (kt) (Entered: 12/06/2019)
MINUTE ORDER: As stated on the record at today's status conference, the parties are directed to file their next joint status report by January 7, 2019, which shall include, if necessary, a proposed briefing schedule on attorney's fees. Signed by Judge Christopher R. Cooper on 12/6/19. (lccrc2) (Entered: 12/06/2019)
24 Joint STATUS REPORT by GOVERNMENT ACCOUNTABILITY PROJECT. (Burday, Joshua) (Entered: 01/07/2020)
MINUTE ORDER: In light of 24 the parties' latest joint status report, the parties are directed to file their next status report by February 7, 2020, which shall include an update on whether further proceedings concerning attorney's fees are needed. Should further proceedings be necessary, briefing shall proceed on the following schedule:

01/08/2020 02/06/2020 02/21/2020 03/23/2020
04/06/2020 04/07/2020
04/07/2020 05/07/2020
05/11/2020
06/02/2020

Plaintiff shall file its fee petition by February 21, 2020; Defendant shall file its opposition by March 23, 2020; Plaintiff shall file its reply by April 7, 2020. Signed by Judge Christopher R. Cooper on 1/8/20. (lccrc2) (Entered: 01/08/2020)
Set/Reset Deadlines: Joint Status Report due by 2/7/2020. Petition due by 2/21/2020. Responses due by 3/23/2020. Replies due by 4/7/2020. (lsj) (Entered: 01/08/2020)
25 Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 02/06/2020)
26 MOTION for Attorney Fees by GOVERNMENT ACCOUNTABILITY PROJECT (Attachments: # 1 Exhibit 1 − Topic Affidavit)(Burday, Joshua) (Entered: 02/21/2020)
27 Memorandum in opposition to re 26 MOTION for Attorney Fees filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Proposed Order, # 2 Exhibit A (Redacted Offer of Judgment))(Simon, Jeremy) (Entered: 03/23/2020)
28 Unopposed MOTION for Extension of Time to File Fee Petition Reply by GOVERNMENT ACCOUNTABILITY PROJECT (Attachments: # 1 Text of Proposed Order)(Burday, Joshua) (Entered: 04/06/2020)
MINUTE ORDER granting 28 Plaintiff's Unopposed Motion for Extension of Time to File Reply. Plaintiff shall file its reply by May 7, 2020. No further extension requests shall be granted. Signed by Judge Christopher R. Cooper on 4/7/20. (lccrc2) (Entered: 04/07/2020)
Set/Reset Deadlines: Replies due by 5/7/2020. (lsj) (Entered: 04/07/2020)
29 REPLY to opposition to motion re 26 MOTION for Attorney Fees filed by GOVERNMENT ACCOUNTABILITY PROJECT. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Text of Proposed Order)(Burday, Joshua) (Entered: 05/07/2020)
30 REPLY to opposition to motion re 26 MOTION for Attorney Fees Plaintiff's Corrected Reply in Support of Its Petition for Attorneys Fees and Costs filed by GOVERNMENT ACCOUNTABILITY PROJECT. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Text of Proposed Order)(Burday, Joshua) (Entered: 05/11/2020)
31 ORDER denying 26 GAP's Motion for Attorney Fees and dismissing case. See full Order for details. Signed by Judge Christopher R. Cooper on 6/2/20. (lccrc2) (Entered: 06/02/2020)

 
 Case 1:17-cv-02518-CRC Document 1 Filed 11/21/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COURT OF THE DISTRICT OF COLUMBIA

GOVERNMENT ACCOUNTABILITY

)

PROJECT,

)

1612 K. St. NW, Suite #1100

)

Washington DC, 20006

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY,

)

OFFICE OF GENERAL COUNSEL

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY

)

WASHINGTON, DC, 20528

)

)

Defendant.

)

COMPLAINT Plaintiff GOVERNMENT ACCOUNTABILITY PROJECT brings this suit to overturn Defendant UNITED STATES DEPARTMENT OF HOMELAND SECURITY’s refusal, in violation of the Freedom of Information Act, to produce records in a timely manner relating to correspondence between White House staff and DHS concerning ideological tests at the U.S. border and records related to search protocols for citizens and non-citizens at the U.S. border.
INTRODUCTION 1. Pursuant to the fundamental philosophy of the American constitutional form of government, it is the public policy of the United States to foster democracy and allow any person to obtain copies of the records of agencies for any public or private purpose consistent with the terms of the federal Freedom of Information Act, 5 U.S.C. § 552.

Case 1:17-cv-02518-CRC Document 1 Filed 11/21/17 Page 2 of 3
PARTIES 2. Plaintiff GOVERNMENT ACCOUNTABILITY PROJECT is a non-profit organization serving the public by protecting government and corporate whistleblowers who expose wrongdoing. 3. Defendant UNITED STATES DEPARTMENT OF HOMELAND SECURITY is a federal agency subject to the Freedom of Information Act, 5 U.S.C. § 552.
JURISDICTION AND VENUE 4. This case is brought under 5 U.S.C. § 552(a)(6)(c)(i) and presents a federal question conferring jurisdiction on this Court. 5. Venue is proper under 5 U.S.C. § 552(a)(4)(B) because a plaintiff may always bring a federal FOIA suit in the U.S. District Court for the District of Columbia.
GAP’S FOIA REQUEST 6. On April 4, 2017, GAP requested from DHS all non-exempt “correspondence between White House staff and the DHS concerning ideological tests at the U.S. border,” as well as “all correspondence concerning searches of cellphones, the protocols, information about who was searched (with identifying information redacted), search rates, protocols if a search is refused, etc., for citizens and non-citizens, at the U.S. border.” GAP also requested “any records generated in connection with topics listed above that raised or were responding to compliance of 5 U.S.C. § 2302(b)(8).” A true and correct copy of the request is attached as Exhibit A. 7. On April 6, 2017, DHS acknowledged receipt of GAP’s request and invoked a 10day extension pursuant to the FOIA statute. A true and correct copy of the response is attached as Exhibit B. 8. As of the date of filing, over five months have passed since DHS invoked a 10day extension and DHS has failed to produce any records or follow-up with GAP in any way.
- 2 -

Case 1:17-cv-02518-CRC Document 1 Filed 11/21/17 Page 3 of 3
COUNT I – VIOLATION OF FOIA 9. The above paragraphs are incorporated by reference. 10. Defendant DHS is an agency subject to FOIA. 11. The requested records are not exempt under FOIA. 12. Defendant DHS has refused to produce the requested records in a timely manner. WHEREFORE, GAP asks that the Court:
i. declare that DHS has violated FOIA; ii. order DHS to conduct a reasonable search for records and to produce the
requested records; iii. enjoin DHS from withholding non-exempt public records under FOIA; iv. award Plaintiff reasonable attorney’s fees and costs; v. award such other relief the Court considers appropriate.

Matthew Topic Joshua Burday LOEVY & LOEVY 311 North Aberdeen, 3rd Floor Chicago, IL 60607 312-243-5900 foia@loevy.com Atty. No. 41295

RESPECTFULLY SUBMITTED, /s/ Joshua Hart Burday ____________________________ Attorneys for Plaintiff GOVERNMENT ACCOUNTABILITY PROJECT
- 3 -

Case 1:17-cv-02518-CRC Document 1-2 Filed 11/21/17 Page 1 of 3 Tuesday, April 4, 2017 at 9:23:30 AM Central Daylight Time
Subject: FOIA Date: Tuesday, April 4, 2017 at 9:23:06 AM Central Daylight Time From: Zack Kopplin To: foia@hq.dhs.gov

Government Accountability Project

4/3/2017
Zack Kopplin, GAP Inves4gator 832 Valence Street New Orleans, Louisiana 70115 225-715-5946

Re: FOIA Request
Dear Freedom of Informa4on Oﬃcer:
Pursuant to the Freedom of Informa4on Act, 5 U.S.C. § 552, I am reques4ng any and all documents and records, as deﬁned by the Act, that are not currently in the public domain, related to:
Any and all nonexempt, unclassiﬁed correspondence between White House staﬀ and the DHS concerning ideological tests at the U.S. border. Any and all correspondence concerning searches of cellphones, the protocols, informa4on about who was searched (with iden4fying informa4on redacted), search rates, protocols of a search is refused, etc, for ci4zens and non-ci4zens, at the U.S. border.
In addi4on, I would ask that you search for any records generated in connec4on with topics listed above that raised or were responding to compliance of 5 U.S.C.§ 2302(b)(8).
Thank you very much for your assistance.
If any of the material covered by this request has been destroyed or removed, please provide all surrounding documenta4on including, but not limited to, a descrip4on of the ac4on taken regarding the materials and jus4ﬁca4on for those ac4ons taken. For any documents or por4ons you deny due to a speciﬁc FOIA exemp4on, please provide a detailed jus4ﬁca4on of your grounds for claiming such exemp4on, explaining why the exemp4on is relevant to the document or por4on of the document withheld.
The Government Accountability Project requests that all fees incurred in connec4on with the acached request be waived, because “disclosure of the informa4on is in the public interest and is not primarily in the commercial interest of the requester.” 5 U.S.C. §552 (a)(4)(A)(iii).
In my individual capacity, I also request fees be waived because as an inves4gator for the Government Accountability Project, I am primarily involved in gathering informa4on about alleged and actual government ac4vity and dissemina4ng it to the public. I have wricen for a wide variety of na4onal and interna4onal news outlets, including The Atlan,c, Slate Magazine, Poli,co Magazine, Science Magazine, the Daily Beast, and The Guardian, and will disseminate what I receive in the news media.

The Government Accountability Project consents to the deleFon of any material that would violate an individual’s rights under the Privacy Act. We will work with your oﬃce to priori4ze responsive data for this

EXHIBIT A

Page 1 of 3

Case 1:17-cv-02518-CRC Document 1-2 Filed 11/21/17 Page 2 of 3
request, further reﬁne the request if you ﬁnd any terms too imprecise, conduct searches for unclassiﬁed responsive records, or engage in any other reasonable ac4vi4es that would lessen the agency’s burden and costs.
The Requesters’ Public Interest Status and History
GAP is a non-proﬁt, non-par4san, public interest organiza4on chartered under IRS Code §501 (C)(3) as a nonproﬁt, educa4onal and charitable organiza4on. We seek to serve the public through achieving governmental accountability by protec4ng and encouraging federal and corporate employees who observe or are vic4mized by wrongdoing, gross waste of public funds, threats to public health and safety, environmental contamina4on, corrup4on, abuse of the public trust and other abuses of power.
GAP accomplishes these goals primarily by conduc4ng advocacy campaigns before Congress, through the media, and for the general public and by providing legal representa4on to whistleblowers to combat the retalia4on they have suﬀered in exercising their right of occupa4onal free speech. Our twin aims are to promote corporate and government accountability and to expose, inves4gate, and correct substan4ve problems that formed the basis of protected whistleblowing disclosures. GAP’s role is well-recognized by the courts and, as an organiza4on, has informa4onal standing under the First Amendment protec4ng its receipt of disclosed informa4on. Taylor v. RTC. 56 F.3d 1437 (D.C. 1995); United States v. Garde, 573 F. Supp. 604 (D.D.C. 1987); ~ Generally Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 756-57 (1976).
GAP has a 20-year history of working in the public interest. GAP does not take individual cases based on the client’s ability to pay, how much money GAP believes it can recover in legal fees through li4ga4on or any other commercial interest. Rather, GAP takes cases of legi4mately harassed whistleblowers, oken pro-bono (without charge), that further public policy or legisla4ve changes that make the law stronger for workers who witness and choose to tell the truth about corporate and taxpayer-ﬁnanced wrongdoing and to pursue exposure and resolu4on of the wrongdoing. It is through this work and with the help of whistleblowers that GAP has, among other things, pushed for enactment of several whistleblower protec4on statutes, exposed unhealthy food at supermarket chains, pushed for independent reviews of the safety of the Alaska pipeline, exposed the threat of explosion in waste tanks at the Hanford nuclear site, and pushed for policy reform within numerous execu4ve agencies. All this ac4vity is done primarily with the interest of the public in mind.
DisseminaFon of the Requested InformaFon
In our eﬀorts to promote government accountability, GAP works closely with Members of Congress, the media, and the public to alert them to irregulari4es. The informa4on requested will be used in connec4on with a campaign aimed at key decision-makers at the federal level, the general public, and self-selected subscribers. More speciﬁcally, GAP will publicize the responsive records so that all federal employees who seek assistance at OSC can be fully-informed about the oﬃce’s methods for inves4ga4ng their complaints.
The combined circula4on and viewer-base of our na4onal, regional, and self-subscribed outlets ensure that the informa4on will, indeed, be widely distributed to diverse segments of the public who will beneﬁt from knowing the manner in which OSC inves4gates complaints, and the eﬀorts that OSC has taken to ensure the highest quality training and instruc4on for its staﬀ. As a consequence, public understanding and trust of government opera4ons will certainly be enhanced.
Non-commercial use of the Requested InformaFon
Disclosure of this informa4on by GAP is in no way connected with any commercial interest since GAP is a non-proﬁt, tax-exempt organiza4on under § 501 (c)(3) of the IRS Code. The informa4on we are seeking is crucial to advance public knowledge and will not be put to any commercial use.
Page 2 of 3

Case 1:17-cv-02518-CRC Document 1-2 Filed 11/21/17 Page 3 of 3 Please be reminded that under the Freedom of Informa4on Act, we are en4tled to a response to this request within twenty working days. Should this request be denied for any reason, we ask that a detailed explana4on be provided along with the name of the person to whom administra4ve appeals should be addressed. RequesFng Expedited Processing This informa4on is of huge public interest and a poten4al harm exists to thousands of people who may travel to the United States as shown by this major news ar4cle this morning. Its only been a couple hours and the ar4cle is making headlines everywhere. hcps://www.wsj.com/ar4cles/trump-administra4on-considers-far-reaching-steps-for-extreme-venng1491303602 This informa4on could inform a wide range of U.S. society and policies, including trade, tourism, immigra4on, educa4on, and human rights among others. There is an urgent need to inform the public about DHS policy. We will inform the public, dissemina4ng this informa4on in the na4onal and interna4onal media. Thank you in advance for your assistance and coopera4on, Zack Kopplin, Inves4gator and Outreach Associate Government Accountability Project 225-715-5946
Page 3 of 3

Case 1:17-cv-02518-CRC Document 1-3 Filed 11/21/17 Page 1 of 2
U.S. Department of Homeland Security Washington, DC 20528
Homeland Security
April 6, 2017
SENT VIA E-MAIL TO: ZackK@whistleblower.org
Zack Kopplin Investigator and Outreach Associate 832 Valence Street New Orleans, LA 70115
Re: 2017-HQFO-00612
Dear Mr. Kopplin:
This letter acknowledges receipt of your April 4, 2017, Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS), for any and all nonexempt, unclassified correspondence between White House staff and the DHS concerning ideological tests at the U.S. border. Any and all correspondence concerning searches of cellphones, the protocols, information about who was searched (with identifying information redacted), search rates, protocols of a search is refused, etc, for citizens and non-citizens, at the U.S. border. This office received your request on April 4, 2017.
As it relates to your request for expedited processing and fee waiver, your request is granted.
Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Consistent with 6 C.F.R. § 5.5(a) of the DHS FOIA regulations, the Department processes FOIA requests according to their order of receipt. Although DHS’ goal is to respond within 20 business days of receipt of your request, FOIA does permit a 10-day extension of this time period in certain circumstances. As your request seeks documents that will require a thorough and wide-ranging search, DHS will invoke a 10-day extension for your request pursuant to 5 U.S.C. § 552(a)(6)(B). If you would like to narrow the scope of your request, please contact our office. We will make every effort to comply with your request in a timely manner.
We have queried the appropriate component(s) of DHS for responsive records. If any responsive records are located, they will be reviewed for determination of releasability. Please be assured that one of the processors in our office will respond to your request as expeditiously as possible. We appreciate your patience as we proceed with your request.
Your request has been assigned reference number 2017-HQFO-00612. Please refer to this identifier in any future correspondence. To check the status of your FOIA request, you may contact this office at 1-866-431-0486 or 202-343-1743, or you may check the status of your request online at http://www.dhs.gov/foia-status.
EXHIBIT B

Case 1:17-cv-02518-CRC Document 1-3 Filed 11/21/17 Page 2 of 2 Sincerely,
LaEbony Livingston FOIA Program Specialist

 
 Case 1:17-cv-02518-CRC Document 5 Filed 02/27/18 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________________________

GOVERNMENT ACCOUNTABILITY PROJECT, )

)

Plaintiff,

)

v.

) Case No: 17-2518 (CRC)

)

U.S. DEPARTMENT OF HOMELAND SECURITY, )

)

Defendant.

)

_______________________________________________ )

STATUS REPORT AND PROPOSED SCHEDULE

Pursuant to the Court’s order dated February 14, 2018, the parties, by and through

undersigned counsel, report to the Court as follows.

1. The Complaint in this action was filed under the Freedom of Information Act

(“FOIA”). Defendant answered the Complaint on February 14, 2018.

2. This lawsuit involves a FOIA request by the Government Accountability Project

(“GAP”) directed to the Department of Homeland Security (“DHS”) as more fully described in

Attachment “A” to the Complaint.

3. DHS has conducted an initial search for records responsive to the request and, at

this time, has identified 801 potentially responsive documents. DHS has begun reviewing these

documents for actual responsiveness to the request and is confirming the completeness of its

search. At this time, DHS is not in a position to estimate the number of potentially responsive

documents that it will need to process. DHS expects to be in a position to provide an estimated

number of pages potentially responsive to the request within 30 days and to provide an estimated

production schedule at that time.

Case 1:17-cv-02518-CRC Document 5 Filed 02/27/18 Page 2 of 2
4. The parties propose that they provide the Court with a further status report on or
before April 3, 2018, and that the Court defer setting a briefing schedule at this time.
Respectfully submitted,
JESSIE K. LIU, D.C. Bar #472845 United States Attorney
DANIEL F. VAN HORN, D.C. BAR # 924092 Civil Chief
By: ____/s/___________________ JEREMY S. SIMON, D.C. BAR #447956 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2528 Jeremy.Simon@usdoj.gov
Counsel for Defendant
AND
______/s/_______________________ Joshua Burday LOEVY & LOEVY 311 North Aberdeen, 3rd Floor Chicago, IL 60607 312-243-5900 foia@loevy.com
Counsel for Plaintiff

 
 Case 1:17-cv-02518-CRC Document 6 Filed 04/03/18 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________________________

GOVERNMENT ACCOUNTABILITY PROJECT, )

)

Plaintiff,

)

v.

) Case No: 17-2518 (CRC)

)

U.S. DEPARTMENT OF HOMELAND SECURITY, )

)

Defendant.

)

_______________________________________________ )

STATUS REPORT AND PROPOSED SCHEDULE

Pursuant to the Court’s order dated February 28, 2018, the parties, by and through

undersigned counsel, report to the Court as follows.

1. The Complaint in this action was filed under the Freedom of Information Act

(“FOIA”). Defendant answered the Complaint on February 14, 2018.

2. This lawsuit involves a FOIA request by the Government Accountability Project

(“GAP”) directed to the Department of Homeland Security (“DHS”) as more fully described in

Attachment “A” to the Complaint.

3. DHS conducted an initial search for records responsive to the request. It was

initially reported in the prior status report that DHS had located 801 potentially responsive

documents. The accurate count, however, is 888 potentially responsive documents. DHS has

begun reviewing these documents for actual responsiveness to the request and is confirming the

completeness of its search. At this time, DHS has reviewed 276 records for responsiveness.

DHS is continuing to review the remaining 612 documents. DHS will know the total number of

responsive documents requiring processing after completion of its review of these documents for

responsiveness. DHS expects to be in a position to provide an estimated number of pages

Case 1:17-cv-02518-CRC Document 6 Filed 04/03/18 Page 2 of 2
potentially responsive to the request by the end of this month and to be in a position to provide
an estimated production schedule at that time.
4. The parties propose that they provide the Court with a further status report on or
before May 8, 2018, and that the Court defer setting a briefing schedule at this time.
Respectfully submitted,
JESSIE K. LIU, D.C. Bar #472845 United States Attorney
DANIEL F. VAN HORN, D.C. BAR # 924092 Civil Chief
By: _______/s/_______________ JEREMY S. SIMON, D.C. BAR #447956 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2528 Jeremy.Simon@usdoj.gov
Counsel for Defendant
AND
______/s/_______________________ Joshua Burday LOEVY & LOEVY 311 North Aberdeen, 3rd Floor Chicago, IL 60607 312-243-5900 foia@loevy.com
Counsel for Plaintiff

 
 Case 1:17-cv-02518-CRC Document 15 Filed 10/12/18 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GOVERNMENT ACCOUNTABILITY PROJECT,
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY,
Defendant.

Case No. 1:17-cv-2518 (CRC)

MEMORANDUM OPINION This Freedom of Information Act case is reminiscent of the classic board game Battleship, where players array a fleet of plastic warships on a secret grid and alternate directing “shots” at the opponent’s vessels by calling out precise coordinates. A shot hits its mark only if an enemy vessel is situated on a specified target. Plaintiff Government Accountability Project (“GAP”) asked for any records in the Department of Homeland Security’s (“DHS”) possession that related to “ideological tests” and “searches of cellphones” at the U.S. border. The agency obliged in a manner consistent with the rules of Battleship. It canvassed its electronic records for direct hits, looking only for records that contained the verbatim language GAP used in its request. For the first search, it used the terms “ideological tests” and “border”; for the second, it used the keywords “search” and “cellphone.” After the searches yielded zero responsive documents, GAP complained that DHS unreasonably omitted additional search terms that quite likely would have generated a more robust return. Because FOIA requests do not operate like a game of Battleship—and for other

Case 1:17-cv-02518-CRC Document 15 Filed 10/12/18 Page 2 of 9
more technical reasons that follow—the Court agrees and will order the agency to conduct its search anew. I. Background
On April 4, 2017, GAP, a non-profit advocacy organization, submitted a FOIA request to DHS. Complaint ¶ 6. GAP requested three species of documents. It sought (1) “correspondence between White House staff and the DHS concerning ideological tests at the U.S. Border”; (2) “correspondence concerning searches of cellphones, the protocols, information about who was searched . . . , search rates, protocols if a search is refused, etc., for citizens and non-citizens, at the U.S. border”; and (3) “any records generated in connection with topics listed above that raised or were responding to compliance of 5 U.S.C. § 2303(b)(8),” a federal whistleblowerprotection statute. Id.
Some five months passed with no response from DHS, so GAP filed suit in November 2017 to force the agency’s hand. Id. ¶ 8. Ten days later, on December 1, the agency informed GAP that its search had located no responsive records. Def’s MSJ, Ex. 2, Declaration of James V.M.L. Holzer (“Holzer Decl.”) ¶ 11. But “[o]ut of an abundance of caution,” the agency “conducted an additional broader search,” this time soliciting the assistance of DHS’s Office of the Chief Information Officer (“OCIO”). Id. ¶ 12. It sent “two search taskers” to OCIO. The first asked OCIO to search for “any and all emails” between DHS.GOV and EOP.GOV1 email addresses that used the words “ideological test” and “border.” Id. ¶ 13. The second requested “any and all emails” between the same email addresses using the words “search” and “cellphone.” Id. ¶ 14.
1 DHS believed that “EOP”—which stands for Executive Office of the President—was the appropriate email suffix for White House staffers.
2

Case 1:17-cv-02518-CRC Document 15 Filed 10/12/18 Page 3 of 9
OCIO completed its search in January 2018. It informed DHS that the “first tasker yielded zero records” and the “second tasker returned 965 megabytes of records,” which amounted to 807 documents. Id. ¶ 16. DHS then “conducted a document-by-document key word search of all 807 documents” and determined that none of them were responsive to GAP’s FOIA request. Id. ¶ 17.
GAP now contends the agency’s searches for communications regarding ideological tests and cellphone searches were inadequate, that a third search needed to be done for the part of its request seeking whistleblower records, and that at the very least, the Court should conduct its own review of some portion of the 807 documents to test the agency’s claim that the documents the search did turn up were ultimately non-responsive. The parties have briefed these issues on summary judgment, and the matter is now ripe for the Court’s resolution. II. Legal Standard
FOIA cases are typically resolved on summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is appropriately granted if “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).
When the adequacy of an agency’s search is questioned, the agency must show “beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)) (internal quotation omitted). The key question is whether the search itself was reasonable, regardless of the results. See Cunningham v. U.S. Dep’t of Justice, 40 F. Supp. 3d 71, 83-84 (D.D.C. 2014). “Therefore, the adequacy of a FOIA search is generally determined not by the fruits of the
3

Case 1:17-cv-02518-CRC Document 15 Filed 10/12/18 Page 4 of 9
search, but by the appropriateness of the methods used to carry out the search.” Francis v. U.S. Dep’t of Justice, 267 F. Supp. 3d 9, 12 (D.D.C. 2017) (alteration and quotation omitted). “Although a requester must reasonably describe the records sought, an agency also has a duty to construe a FOIA request liberally.” Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (alteration, citation, and quotation omitted). In the end, while agencies need not “scour every database,” Francis, 267 F. Supp. 3d at 12, or “turn over every stone,” they “must conduct a ‘good faith, reasonable search of those systems of records likely to possess requested records,’” Freedom Watch, Inc. v. Nat’l Sec. Agency, 220 F. Supp. 3d 40, 44 (D.D.C. 2016) (quoting Cunningham, 40 F. Supp. 3d at 83).
“An agency may prove the reasonableness of its search through a declaration by a responsible agency official[.]” Id. “Agency declarations, especially from individuals coordinating the search, are afforded ‘a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.’” Freedom Watch, 220 F. Supp. 3d at 44 (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). Indeed, courts can award summary judgment solely based on agency affidavits and declarations that are “relatively detailed and non-conclusory.” Id. III. Analysis
GAP initially identified three bases why it is entitled to summary judgment, but in response to subsequent search efforts by DHS, now emphasizes just one.2 It maintains that the
2 In its opening brief, GAP also complained that the agency failed entirely to conduct any search for GAP’s third request seeking whistleblower records, and asked the Court to review in camera some sample of the documents that the allegedly inadequate search nevertheless produced, to evaluate whether they truly were non-responsive. Pl’s MSJ at 3-5. But in light of the additional information provided by DHS in a supplemental declaration, GAP dropped its request for in camera inspection of the records and refined its argument with respect to the agency’s search for whistleblower records. Pl’s Reply at 6. For reasons explained in footnote 4
4

Case 1:17-cv-02518-CRC Document 15 Filed 10/12/18 Page 5 of 9
agency’s search pursuant to GAP’s first two requests—for information on ideological tests and cellphone searches at the border—was inadequate. GAP contends that the search was lacking in three respects: (1) it relied on too few keywords and excluded obvious synonyms; (2) it failed to consult experts to identify search terms likely to produce responsive records; and (3) it canvassed only official government email accounts rather than other forms of electronic communications. Pl’s Mot. for Summ. J. (“Pl’s MSJ”) at 2-4. The Court agrees with GAP on the first score and stops its analysis there, since that is sufficient grounds to grant summary judgment in its favor and order DHS to search its records a second time.
GAP complains that the agency failed to include “logical variations of the terms used to describe the subject matter being sought.” Pl’s MSJ at 2. Instead, the agency searched its records for the exact words in the FOIA request—and nothing else. GAP’s first request asked for correspondence about “ideological tests at the border,” Compl. ¶ 6, so the agency’s search filtered for “ideological tests” and “border,” Holzer Decl. ¶ 13. Words that might serve as proxies for ideology (like “politics” or “values”) were omitted from the search, as were synonyms for test (like “evaluation,” “screening,” or “vetting”). See Pl’s MSJ at 3. Similarly, when GAP asked for correspondence “concerning searches of cellphones,” Compl. ¶ 6, the agency’s search filtered for “cellphone” and “search,” Holzer Decl. ¶ 14, but did not include variant spellings like “cell phone” or “phone,” Pl’s MSJ at 3. GAP contends that the agency’s cramped search is akin to a game of Battleship: fruitful only if the literal request results in a direct hit, but not calculated to turn up all responsive documents.
below, it is not necessary for the Court to reach what remains of GAP’s whistleblower complaint at this time.
5

Case 1:17-cv-02518-CRC Document 15 Filed 10/12/18 Page 6 of 9
The Court agrees. Again, though a “requester must reasonably describe the records sought, an agency also has a duty to construe a FOIA request liberally.” Nation Magazine, 71 F.3d at 890. And ultimately, it is the agency’s burden to show “beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild, 641 F.3d at 514 (quotation omitted). Two cases in this district confirm that DHS failed to meet this burden.
The first, Summers v. Department of Justice, speaks to the agency’s search for correspondence about “ideological tests.” In Summers, the FOIA requester asked for “any and all commitment calendars” of former FBI Director J. Edgar Hoover; the FBI searched only for the word “commitment.” 934 F. Supp. 458, 461 (D.D.C. 1996) (alteration omitted). Though the search was “fruitful,” turning up some “daily logs and other appointment calendars,” the court agreed with Summers that the search should have included “two of the most obvious search terms” (“appointment” and “diary”) to better ensure that “all documents responsive to the FBI’s request would be discovered.” Id. While “ideological tests” may not have quite as obvious substitutes as “commitment calendars,” searching for that phrase verbatim was always doomed to return limited results. At the very least, the agency should have used synonyms for “test” and proxies for “ideological” and should not have grouped the two words together—since that risks excluding any email where both “ideological” and “tests” were used, but not in the precise “ideological tests” syntax.
DHS tries to distinguish Summers. It contends that the court ordered an expansion of the search terms only because the FBI’s initial search suggested the additional terms “appointment” and “diary” would have yielded still more returns. Def’s Reply and Opposition at 6. But that is not how this Court reads Summers. The key fact in Summers was that the FBI “failed to use two
6

Case 1:17-cv-02518-CRC Document 15 Filed 10/12/18 Page 7 of 9
of the most obvious search terms . . . to ensure that all documents responsive to the FBI’s request would be discovered.” 934 F. Supp. at 461. That the FBI’s initial search revealed particular synonyms that the court said must be included in the subsequent search doesn’t mean that its holding applies only to cases where the first search was at least somewhat helpful. If that were right, the Summers rule would apply only to the class of cases where it is needed the least. Consider Summers itself: if the court had ruled the other way—and said the agency need not redouble its search efforts using additional terms—the requester could have simply filed a new FOIA request asking specifically for diaries and appointments, terms Summers knew would produce responsive documents given the fruits of the first search. But according to DHS’s argument here, if the initial search using only the request’s verbatim language turned up nothing, not only would Summers offer no solace, but the requester has gained no new insights from the initial search that could help him craft a second, more effective FOIA request. The Court will not adopt such a counterintuitive view of Summers; its holding applies here, and it mandates that the agency include logical variations of “ideological tests.”
A second case, Bagwell v. Department of Justice, goes to the adequacy of the agency’s search for correspondence regarding cellphone searches at the border. In Bagwell, the FOIA requester sought documents relating to the investigation of the child sex abuse scandal at Pennsylvania State University. 311 F. Supp. 3d 223 (D.D.C. 2018). Responding to the request, the Executive Office for United States Attorneys searched for documents referencing “Pennsylvania State University”—which tracked the exact wording of the request—but did not include other “names commonly used to refer to the University” like “PSU” or “Penn State.” Id. at 229. This very Court easily rejected the search as insufficient: “Because it is likely that emails concerning the investigation would use ‘PSU’ or ‘Penn State’ rather than the full name of the
7

Case 1:17-cv-02518-CRC Document 15 Filed 10/12/18 Page 8 of 9
University, the Department’s search was not reasonably calculated to find all responsive emails.” Id. at 230. That logic applies likewise to DHS’s search for correspondence about cellphone searches. Searching only for the word “cellphone” is inadequate; variants that may well be used in correspondence—like the two-word version “cell phone” or simply “phone”—must also be included. Such variants may be just as likely to be used by the relevant government officials. For proof, look no further than the Supreme Court’s most famous case to date on cellphones—or, rather, cell phones—Riley v. California, 134 S. Ct. 2473 (2014). A ctrl+F word-search for “cellphone” in that case returns zero hits; the same search for “cell phone” returns 117.
FOIA requests are not a game of Battleship. The requester should not have to score a direct hit on the records sought based on the precise phrasing of his request. Rather, the agency must liberally interpret the request and frame its search accordingly. Guided by Summers and Bagwell, the Court concludes that DHS neither liberally construed GAP’s request, Nation Magazine, 71 F.3d at 890, nor conducted a search reasonably likely to produce all responsive records, Ancient Coin Collectors Guild, 641 F.3d at 514. Therefore, it will order DHS to conduct an additional search of its records. Before doing so, the Court will order the parties to meet and confer within fourteen days and engage in a good faith effort to arrive at a reasonably limited set of additional search terms that rectify the under-inclusivity of the “ideological tests” and “cellphone” search terms without being too over-inclusive.3 If the parties cannot reach
3 The Court appreciates DHS’s concern that searches for commonly-used words like “cell,” “phone,” and “test” may return too many records for the agency to digest. See Def’s Reply and Opposition Ex. 2, Supplemental Declaration of James V.M.L. Holzer (“Holzer Supp. Decl.”) ¶ 12. But that concern dictates using more sophisticated search techniques, including additional filtering keywords or Boolean operators and connectors, to winnow the results to a manageable level. See Bagwell, 311 F. Supp. 3d at 230 n.3; see also Nat’l Day Laborer Org. Network v. U.S. Immigration & Customs Enf’t Agency, 877 F. Supp. 2d 87, 106-07 (S.D.N.Y. 2012) (giving several examples of how slight changes to search terminology and use of Boolean
8

Case 1:17-cv-02518-CRC Document 15 Filed 10/12/18 Page 9 of 9

agreement, they shall file a joint submission setting forth their respective terms and their positions on all disputed terms within seven days thereafter.4 IV. CONCLUSION
For the foregoing reasons, the Court will grant plaintiff’s motion for summary judgment with respect to the adequacy of the search and deny defendant’s motion for summary judgment. A separate Order shall accompany this memorandum opinion.

Date: October 12, 2018

________________________ CHRISTOPHER R. COOPER United States District Judge

connectors yields dramatically different results). It does not justify foregoing a reasonable search.
4 GAP also complains that the agency’s search for whistleblower records was unreasonably confined to official government email accounts. Pl’s Reply at 6. Because the Court is ordering a further search of those email accounts, it will defer resolution of this point to enable the parties to consider the issue in their discussions concerning new search parameters.
9

 
 Case 1:17-cv-02518-CRC Document 17 Filed 11/16/18 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________________________

GOVERNMENT ACCOUNTABILITY PROJECT, )

)

Plaintiff,

)

v.

) Case No: 17-2518 (CRC)

)

U.S. DEPARTMENT OF HOMELAND SECURITY, )

)

Defendant.

)

_______________________________________________ )

STATUS REPORT REGARDING SEARCH TERMS

The parties, by and through undersigned counsel, report to the Court as follows on the

issue of search terms pursuant to the Court’s memorandum opinion dated October 12, 2018.

1. By order dated October 12, 2018, the Court directed the parties to meet and confer

to arrive at a “reasonably limited set of additional search terms that rectify the under-inclusivity

of the ‘ideological tests’ and ‘cellphone’ search terms without being too over-inclusive.” To the

extent the parties cannot reach agreement, the Court directed the parties to file a joint submission

setting forth their respective terms and their positions on all disputed terms. The Court extended

the parties’ deadline to meet and confer and file the instant submission by order dated October

25, 2018.

2. The parties have conferred and, except as stated in paragraph 4 below, have

agreed on search terms.

3. The parties have agreed that Defendant will conduct a search using the following

search terms within email communications between eop.gov and dhs.gov email addresses:

Search One: “border” and (“vet*” or “screen*” or “evaluat*” or “inquir*” or “politic*” or “ideolog*” or “test*” or “cell*” or “phone” or “value*”)

Case 1:17-cv-02518-CRC Document 17 Filed 11/16/18 Page 2 of 5
Search Two: (“device” and “search” and “border”) or (“device” and “inspect*” and “border”) or (“electronic device” and “border”) The results of these searches will then be reviewed by Defendant for actual responsiveness to Plaintiff’s FOIA request and records will then be processed under a processing schedule that the parties will propose to the Court once the search is run and the volume of potentially responsive records is identified. Defendant reserves the right to request a modification of these searches in the event the volume of potentially responsive records is excessive. The parties agree that Defendant will conduct this search after the Court resolves the parties’ dispute regarding the additional proposed search terms identified in paragraph 4 below. 4. In addition to the above search terms, Plaintiff has proposed a separate search using the term “extreme vetting”, and also adding the following terms within the parenthetical to Search One: (or “cold war” or “Facebook” or “Twitter” or “social media”) in order to capture records that contain the terms “border and cold war”, “border and Facebook,” “border and Twitter,” or “border and “social media.” Plaintiff also proposes that the cut-off date for the search be the date when the search is conducted, while Defendant believes that the cut-off date should be the same as the cut-off date of the original search. Plaintiff’s Position on Additional Terms and Search Cut-Off Date 5. Plaintiff states that, as explained in its summary judgment briefs, the President himself has used the term “extreme vetting” to describe the kind of border test that is the subject of Plaintiff’s FOIA request, and that the Cold-War-era ideological tests were the model for such extreme vetting. Dkt # 903, ¶ 2 (“We should only admit into this country those who share our values and respect our people. In the Cold War, we had an ideological screening test. The time is overdue to develop a new screening test for the threats we face today. I call it extreme vetting. I call it extreme, extreme vetting.”). Plaintiff contends that it is quite plausible that government

Case 1:17-cv-02518-CRC Document 17 Filed 11/16/18 Page 3 of 5
officials have discussed ideological tests at the border without actually using the term “border,” and that due to the uniqueness of the term “extreme vetting,” that term (and it is the only one) should be included without the additional limitation of “border” to address this issue. Defendant has not identified any “extreme vetting” that has been discussed in any other contexts between DHS and the White House that is likely to generate false hits.
6. With regard to Facebook, Twitter, and social media, as Plaintiff previously noted, DHS has referred to the collection of “social media” information of all immigrants entering the United States. Id. at ¶ 10. Facebook and Twitter are two very commonly used social media tools, and people frequently use them on their phones. Defendant has not identified any specific types of false hits likely to result from these additional search terms.
7. With regard to the search cut-off date, Defendant has not provided any compelling, non-speculative justification for departing from the date of the search as the cut-off date, for which courts have expressed a preference, and the request did not limit the time period for the search. Dep’t of Justice Guide to the Freedom of Information Act, Procedural Requirements, at 53-54;1 Dkt. # 1-2.
Defendant’s Position on Additional Terms and Search Cut-Off Date 8. It is Defendant’s position that these additional terms go beyond the scope of the FOIA request which, in relevant part, seeks: “Any and all nonexempt, unclassiﬁed correspondence between White House staﬀ and the DHS concerning ideological tests at the U.S. border. Any and all correspondence concerning searches of cellphones, the protocols, information about who was searched (with identifying information redacted), search rates,
1 Available at https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/proceduralrequirements.pdf.

Case 1:17-cv-02518-CRC Document 17 Filed 11/16/18 Page 4 of 5
protocols of a search is [sic.] refused, etc, for citizens and non-citizens, at the U.S. border.” (ECF No. 1-2) As to these proposed additional terms, Defendant states as follows.
9. To the extent the term “extreme vetting” may have been used in the context of “ideological tests at the U.S. border” as Plaintiff speculates, the existing Search One would capture any such information since it will capture emails in which the term “vet*” and “border” appear, and thus will capture the term “extreme vetting” to the extent it appears in an email that also contains the word “border.” However, Plaintiff is proposing a separate search using the term “extreme vetting” standing alone and unaccompanied by the term “border” that would capture records that the use the term “extreme vetting” but do not also contain the word “border.” Because the request seeks records with respect to “ideological tests at the U.S. border”, the term “extreme vetting” standing alone is not reasonably calculated to locate responsive records to the FOIA request and would be over-inclusive because it would capture documents in which the term “extreme vetting” is used outside the context of a discussion of U.S. borders.
10. The term “border and cold war” goes beyond the scope of the FOIA request, which seeks information regarding “ideological tests at the U.S. border.” Notably, that is not a term that the Plaintiff argued should have been used in Defendant’s search in opposition to Defendant’s motion for summary judgment. (ECF No. 9-1 at 3)
11. As to the terms “border and social media,” “border and Facebook”,” and “border and Twitter,” those terms also go beyond the scope of the FOIA request. The existing proposed searches set forth in paragraph 3 are sufficiently expansive to encompass documents that contain information about any search or inspection of cellphones or other electronic devices at the U.S. border. The addition of the terms “social media,” “Facebook” and “Twitter” would render the

Case 1:17-cv-02518-CRC Document 17 Filed 11/16/18 Page 5 of 5
search over-inclusive and thus add to the time and resources needed to review the potentially
responsive records.
12. With respect to the search cut-off date, Defendant believes the date-range of the
search should be the same as the date-range of the original search. Extending the cut-off date
until the date of the search has the potential to increase the number of search results that will
need to be reviewed on an already expansive search, and goes beyond the scope of records
sought in the FOIA request, which was submitted in April 2017.
Respectfully submitted,
JESSIE K. LIU, D.C. Bar #472845 United States Attorney
DANIEL F. VAN HORN, D.C. BAR # 924092 Civil Chief
By: _____/s/_________________ JEREMY S. SIMON, D.C. BAR #447956 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2528 Jeremy.Simon@usdoj.gov
Counsel for Defendant
AND
________/s/____________________ Joshua Burday LOEVY & LOEVY 311 North Aberdeen, 3rd Floor Chicago, IL 60607 312-243-5900 foia@loevy.com Counsel for Plaintiff

 
 Case 1:17-cv-02518-CRC Document 18 Filed 11/21/18 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GOVERNMENT ACCOUNTABILITY PROJECT,
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY,
Defendant.

Case No. 17-cv-2518 (CRC)

ORDER The Court has reviewed the parties’ submissions regarding additional search terms. With respect to the outstanding disagreements, the Court concludes the following: (1) that Plaintiff’s additional requests detailed in ¶¶ 5-6 of the joint status report are beyond the scope of the original FOIA request; and (2) that the search cut-off date for the additional search discussed in ¶ 3 of the joint status report shall be the date on which that search is conducted. Therefore, Defendant need only conduct the additional search discussed in ¶ 3 of the joint status report, but must use the date of that search as the cut-off date for search returns. SO ORDERED.

Date: November 21, 2018

CHRISTOPHER R. COOPER United States District Judge

 
 Case 1:17-cv-02518-CRC Document 20 Filed 09/13/19 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________________________

GOVERNMENT ACCOUNTABILITY PROJECT, )

)

Plaintiff,

)

v.

) Case No: 17-2518 (CRC)

)

U.S. DEPARTMENT OF HOMELAND SECURITY, )

)

Defendant.

)

_______________________________________________ )

JOINT STATUS REPORT

Pursuant to the Court’s order dated September 6, 2019, the parties, by and through

undersigned counsel, report to the Court as follows on the status of the U.S. Department of

Homeland Security’s (“DHS”) supplemental search pursuant to the Court’s order dated

November 21, 2108.

1. On November 16, 2018, the parties filed a Joint Status Report reflecting the

agreed-upon search terms for a supplemental search by DHS, as well as certain limited areas

where the parties were in disagreement. By order dated November 21, 2018, the Court ruled that

DHS need only conduct the additional search discussed in paragraph 3 of the November 16, 2018

report, but that it must use the date of that search as the cut-off date for search returns.

2. DHS regrettably states that, although it had endeavored to do so as explained

herein, it has not yet completed the supplemental search consistent with the Court’s November

21, 2018 order because, in the preparation of this status report, it has realized that there was an

oversight in terms of the cut-off date used for that search. Despite the Court’s order, DHS

inadvertently utilized the cut-off date for the original search and only discovered this error as this

report was being prepared. DHS did complete a search using the agreed-upon search terms,

Case 1:17-cv-02518-CRC Document 20 Filed 09/13/19 Page 2 of 3
albeit with the erroneous cut-off date, and its preliminary review of the results of that search has
identified no responsive records. DHS is confirming that determination, and also is in the
process of re-running the search with a cut-off date to June 21, 2019, the date it initiated the
supplemental search. DHS expects that search to be completed by close of business today,
September 13, 2019. Once DHS knows the number of documents returned, it will be able to
advise the court of when it expects to be in a position to complete its review of those results and,
if there are responsive records identified for processing, propose a production schedule to
Plaintiff. DHS apologizes to the Court and Plaintiff for its oversight in failing to utilize the
correct cut-off date.
3. The parties propose that they file a further status report by October 1, 2019.
Respectfully submitted,
JESSIE K. LIU, D.C. Bar #472845 United States Attorney
DANIEL F. VAN HORN, D.C. BAR # 924092 Civil Chief
By: ________/s/_____________ JEREMY S. SIMON, D.C. BAR #447956 Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2528 Jeremy.Simon@usdoj.gov
Counsel for Defendant
AND
_______/s/____________________ Joshua Burday LOEVY & LOEVY 311 North Aberdeen, 3rd Floor Chicago, IL 60607

Case 1:17-cv-02518-CRC Document 20 Filed 09/13/19 Page 3 of 3
312-243-5900 foia@loevy.com Counsel for Plaintiff

 
 Case 1:17-cv-02518-CRC Document 31 Filed 06/02/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GOVERNMENT ACCOUNTABILITY PROJECT,
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY,
Defendant.

Case No. 17-cv-2518 (CRC)

ORDER Plaintiff Government Accountability Project (“GAP”) filed a Freedom of Information Act (“FOIA”) request with the U.S. Department of Homeland Security (“DHS”) seeking records exposing the Department’s purported administration of “ideological tests” to screen migrants entering the United States along the Southwest border. After an initial search revealed no responsive documents, GAP sued. A confirmatory search came up dry as well, and the parties proceeded to summary judgment. Siding with Plaintiff, the Court found that DHS had applied an overly cramped interpretation of GAP’s FOIA request in conducting its searches and ordered the Department to search again using a broader set of agreed search terms. See Gov’t Accountability Project v. DHS (“GAP I”), 335 F. Supp. 3d 7, 11–13 (D.D.C. 2018) (Cooper, J.). This third search also failed to uncover any responsive records. GAP now moves for attorney’s fees and costs under FOIA’s fees provision, which provides that “[t]he court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). FOIA plaintiffs must make two showings to recover reasonable attorney’s fees: (1) that they are “eligible” for fees because of having

Case 1:17-cv-02518-CRC Document 31 Filed 06/02/20 Page 2 of 4
“substantially prevailed” in the litigation, and (2) that they are “entitled” to recovery given the particular circumstances of the case. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 525–26 (D.C. Cir. 2011). Here, consideration of the first requirement presents an issue that no court appears to have addressed: whether a FOIA plaintiff is eligible for fees where it prevailed on summary judgment yet ultimately received no responsive records in response to its request. The Court need not decide that novel question, however, because even if GAP could be said to have substantially prevailed in the litigation, the Court finds that it is not entitled to a fee award. See, e.g., Maydak v. DOJ, 579 F. Supp. 2d 105, 108 (D.D.C. 2008) (adopting the same approach).
Determining whether a prevailing FOIA plaintiff is entitled to attorney’s fees lies within the sound discretion of the Court. Morley v. CIA, 894 F.3d 389, 391 (D.C. Cir. 2018), cert. denied, 139 S. Ct. 2756 (2019) (per curiam). Four factors are to be considered in making the determination: (1) the public benefit derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether the government’s withholding had a reasonable basis in law. Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008). Non-commercial requesters such as GAP typically get the nod on factors two and three. Morley, 894 F.3d at 392.
As for the first factor—public benefit—the Government maintains that the public could not have gained since no records were ultimately obtained. But, while the absence of records certainly lessens any public benefit, it does not eliminate the potential for public good altogether. The question is whether the public benefited “from the case,” Davy, 550 F.3d at 1159, not just from disclosures that resulted from the case. Here, the Court concluded that DHS had erroneously confined its search to the exact words that GAP included in its FOIA request—akin
2

Case 1:17-cv-02518-CRC Document 31 Filed 06/02/20 Page 3 of 4
to plotting the precise coordinates called out by an opponent in a game of “Battleship.” GAP I, 335 F. Supp. 3d at 12. A ruling rejecting that practice at DHS and other agencies arguably contributed, even if only marginally, to greater public disclosure in future cases, notwithstanding the ultimate futility of the search in this one. As a result, the Court cannot say that this case resulted in absolutely no public benefit.
Unlike the third factor, however, the fourth one—whether the “withholding had a reasonable basis in law”—explicitly presupposes a “withholding.” The only withholding by the agency here was of non-responsive records, and GAP does not contest DHS’s nonresponsiveness determination. This factor thus weighs in the Government’s favor. Because there was no improper withholding, the Court need not decide whether the agency had a “colorable or reasonable basis,” Davy, 550 F.3d at 1163, for crafting its initial searches as it did.
“[W]hen the four [entitlement] factors point in different directions,” as they do here, “the district court has very broad discretion in deciding how to balance those factors and whether to award attorney’s fees.” Morley, 894 F.3d at 391. And, “[a]lthough none of the foregoing four factors is solely dispositive, the ‘failure to satisfy the fourth element [of an unreasonable withholding] may foreclose a claim for attorney fees’ or costs.” Maydak, 579 F. Supp. 2d at 109 (quoting Summers v. DOJ, 477 F. Supp. 2d 56, 63 (D.D.C. 2007)) (alteration in original); see also Morley v. CIA, 245 F. Supp. 3d 74, 78 (D.D.C. 2017), aff’d, 894 F.3d 389 (D.C. Cir. 2018) (“Thankfully, the final factor breaks the tie—it weighs heavily against Morley and is ultimately dispositive.”). Given that DHS did not improperly withhold documents and its renewed search failed to uncover any responsive records, thus limiting any public benefit from the litigation to greater disclosure in future cases, the Court finds in the exercise of its discretion that GAP is not entitled to a fee award under FOIA.
3

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It is, therefore, hereby ORDERED that [26] GAP’s Motion for Attorney Fees is DENIED. It is further ORDERED that this case is DISMISSED. SO ORDERED.

Date: June 2, 2020

CHRISTOPHER R. COOPER United States District Judge

4