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
2

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.GOV1email 

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.
3

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 
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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 
5

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.
6

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 
7

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 
8

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.3If 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 
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.

________________________

CHRISTOPHER R. COOPER

United States District Judge

Date: October 12, 2018

 

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.