Reclaim the Records v. U.S. Dep’t of State, No. 23-1471, 2024 WL 3728979 (S.D.N.Y. Aug. 7, 2024) (Furman, J.)

Reclaim the Records v. U.S. Dep’t of State, No. 23-1471, 2024 WL 3728979 (S.D.N.Y. Aug. 7, 2024) (Furman, J.)

Re:  Request for “‘copy of the index to all birth and death records held by the State Department for the Panama Canal Zone [(“PCZ”)]’”

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiffs’ motion for summary judgment

• Litigation Considerations, Adequacy of Search; Procedural Requirements, Searching for Responsive Records & Responding to FOIA Requests:  “[T]he Court concludes that the Department has satisfied its burden.”  “[Defendant’s] declarations set forth in ‘reasonably specific detail,’ . . . both that the Department conducted an adequate search for any preexisting or readily available indexes and lists and that fulfilling Plaintiffs’ request would require the creation of new records.”  “Plaintiffs fail to rebut the presumption of good faith owed to these representations.”  “The Department is therefore entitled to summary judgment.”  “To begin, [defendant’s] declarations leave no genuine dispute that ‘all appropriate files have been searched.’”  “Contrary to Plaintiffs’ argument that the Department ‘rel[ied] on a narrow definition of “index”’ in conducting its search, . . . the Department ‘searched for any index or list that could serve as a search aid for PCZ birth and/or death records,’ with and ‘without restriction as to the date of such records, . . . [and] regardless of whether any index or list would refer to these records separately or in a combined fashion,’ . . . .”  “Importantly, the Department searched for any already-existing ‘index’ in . . . the two places most likely to hold records responsive to Plaintiffs’ request . . . and confirmed that there is no ‘separate list or index of [the] records.’”  “Finally, [defendant’s declarant] – who, as the Division Chief of the Office of Records Management within the Department’s Bureau of Consular Affairs, is a reliable, if not authoritative, source on ‘the archiving and retrieval of [the] records’ at issue . . . consulted others familiar with Department systems and databases and confirmed that ‘the Department does not maintain any index or list of PCZ birth or death records[]’ . . . .” 
  
  “Plaintiffs do not really challenge the Department’s representation that it conducted an adequate search for ‘an already-existing aid which would guide a Department employee to where among [the sixty-eight] boxes to look for a particular record (i.e., an index).’”  “Instead, relying primarily on a declaration from a purported database expert, . . . they maintain that the Department can search [the database at issue] ‘for the names and dates of birth of individuals born in the Panama Canal Zone between 1904 and 1979, and the names and dates of death of individuals who died in the Panama Canal Zone between 1904 and 1979, any additional data relevant to the particular individual’s vital record (for example, certificate number), and that the data resulting from these searches be provided in a searchable database format.’”  The court finds that, “[f]or starters, it is doubtful that the Court should even consider [this individual’s] declaration.”  “First, “the adequacy of a federal agency’s search for documents in response to a FOIA request is not [usually] a topic on which [the Court] needs the assistance of an expert.’”  “And even if it were, [this individual] ‘is not a [Department] employee, and [ ] does not aver that he has ever worked at . . . the [Department].’”  “As a result, [this individual’s] understanding of the record-keeping system relevant to this case concededly stems entirely from [defendant’s] declarations, . . . and his declaration is limited to broad assertions about ‘[a]ll modern databases’ and what he ‘would expect someone with direct database access’ to do when faced with a FOIA request like Plaintiffs’ . . . .”  “This makes it unlikely that [that individual’s] declaration ‘reflects a reliable application of the principle and methods to the facts of the case.’”  “But even if the Court could properly consider [that individual’s] declaration, the declaration fails to sufficiently counter [defendant’s] detailed technical explanations . . . .”  “In the absence of more specific challenges to [defendant’s] descriptions of the Department’s record-keeping system, [defendant’s] declarations are enough to establish that . . . the Department does not maintain either a preexisting index or list of the relevant birth and death records.”  “Nor does it have the kind of data management system that enables the generation of such an index or list on demand.” 
  
  “That is enough to resolve this case.”  “But the record also makes plain that the only way to satisfy Plaintiffs’ request would be to ‘create’ a record that does not exist, which, as noted, FOIA does not require.”  The court finds that “in order to fulfill Plaintiffs’ request for an index, the Department would have to run hundreds of . . . searches, verify the results by cross-checking them with the physical index cards, stitch each incomplete list of search results together, and then identify and add any non-digitized PCZ birth and death records.”  “Alternatively, the Department would have to manually build ‘an inventory of the Department’s PCZ records . . . from the [95,200] paper index cards,’ a process that would take years to complete.”  “Either way, the Department is ‘not expected,’ let alone required, ‘to take [such] extraordinary measures’ in order to fulfill a FOIA request.”  “Plaintiffs rely heavily on [ACLU Immigrants’ Rights Project v. ICE, 58 F.4th 643 (2d Cir. 2023)] in arguing that the Department ‘should not be permitted to allow technical restrictions of its own design to be the basis for withholding otherwise-available records.’”  “But that case is distinguishable.”  “There, the Second Circuit held that FOIA required Immigration and Customs Enforcement (‘ICE’) to apply ‘codes or some form of programming to retrieve [requested] information’ from its databases in a way that would permit the [plaintiff in that case] to track individual non-citizens across those databases, as doing so would ‘not amount to the creation of records.’”  “Critically, however, ICE had acknowledged that it had the ‘ability to track a single individual across the various stages of immigration proceedings’ and that, ‘although ICE stores immigration data by event, it can, and on an ad hoc basis does, access that information in a person-centric manner in the regular course of agency business.’”  “Here, by contrast, the Department has shown that it does not have a similar ability to pull an index of PCZ birth and death records . . . .” 
  
  “Plaintiffs’ sole remaining contention is that fear of inaccurate data does not justify the Department’s refusal to generate an index.”  “But this contention misses the mark . . . .”  “Plaintiffs’ effort to equate withholding a computer-generated list that surpasses the scope of their request with agency decisions to withhold a requested report or data set on account of objective errors within those documents is . . . without merit.”