Reclaim the Records v. U.S. Dep’t of State, No. 23-1529, 2024 WL 3938296 (S.D.N.Y. Aug. 26, 2024) (Caproni, J.)

Reclaim the Records v. U.S. Dep’t of State, No. 23-1529, 2024 WL 3938296 (S.D.N.Y. Aug. 26, 2024) (Caproni, J.)

Re: Request for “‘the Index or finding aid to the Reports of Death of a U.S. Citizen Abroad’” from 1975 to present

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

• Litigation Considerations, Adequacy of Search:  The court relates that “[t]he State Department asserts that no such document exists.”  “When a U.S. embassy or consulate receives a report that a U.S. citizen has died abroad, it creates a Consular Report of Death of a U.S. Citizen Abroad (“CRDA”).” “A typical CRDA lists the decedent’s birth date and the circumstances surrounding his or her death.”  “The State Department maintains CRDAs in both paper and digital forms.”  “To digitize a paper CRDA, a State Department employee scans and imports the record into the Passport Information Electronic Records System (“PIERS”), an electronic database maintained by DOS.”  “According to a declaration from . . . the Division Chief for the Office of Records Management, Records Review and Release Division within Passport Services, Bureau of Consular Affairs of the State Department, there are no records responsive to [plaintiff’s] request.”  “This is because the State Department relies on PIERS’s search function, rather than a system-wide index or ‘finding aid,’ to identify records.”  The court finds that “[t]he State Department’s position that its search was adequate is substantially supported by [defendant’s] declaration.” “Considering her significant personal knowledge and experience with State Department recordkeeping and retrieval practices, [defendant’s declarant’s] attestation that ‘the Department does not maintain any index of, or “finding aid” for,’ the CRDAs is entitled to significant weight.”  “[Defendant’s declarant’s] detailed explanation of the Department’s recordkeeping and retrieval systems enhances the credibility of her declaration.” “[Defendant’s declarant’s] explanation is corroborated by other State Department employees with whom she consulted as part of the Department’s search.”  “Specifically, she states that she spoke with Department personnel possessing ‘subject matter expertise’ . . . .”  “[Defendant’s declarant’s] descriptions of her consultations with colleagues, which she conducted in tandem with other search efforts and as a complement to her own personal knowledge, are appropriate and credible.” “[Defendant’s declarant’s] declarations make clear that the State Department, following a review of its systems and capacities, reasonably concluded that the records [plaintiff] is seeking do not exist.”  “That satisfies its burden on summary judgment.”  “[Defendant’s declarant’s] further representation that ‘[a]ll files likely to contain relevant records were searched’ and no responsive records were uncovered eliminates any doubt as to the adequacy of the Department’s search.” Additionally, the court finds that “[h]aving failed to present evidence of incompleteness, agency bad faith, or some other ground upon which to challenge the State Department’s declarations, Plaintiffs have failed to raise a genuine dispute of material fact as to the adequacy of the Department’s search.”
  
  “Setting aside the State Department’s efforts to locate a preexisting responsive document, Plaintiffs argue that the Department could fulfill [plaintiff’s] request with relative ease by running search queries on its existing database.”  To make this argument, plaintiff’s rely on “the Electronic Freedom of Information Act (“E-FOIA”) Amendments of 1996, [which] ‘require[s] federal agencies . . . to make “reasonable efforts to search for [responsive] records in electronic form or format” – defining “search” as “to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request.”’”  “[Plaintiff’s] request is for a document extrinsic to the CRDAs themselves.” “Because no such document exists, . . . fulfilling the request would require the State Department to create a new document, exceeding its obligations under FOIA.”  “[T]here is nothing to suggest that the State Department could have fulfilled [plaintiff’s] request simply by producing all or some of the CRDAs in its possession.”  “Rather, he explicitly sought a master document that indicated (1) the full range of CRDAs from 1975 to the present, (2) the name of each decedent associated with those CRDAs, and (3) the date of death for each decedent.”  “Plaintiffs are skeptical of the State Department’s account of its technical limitations, insisting that a ‘straightforward process of querying, sorting and exporting data’ would satisfy Mr. Ferretti’s request.” “Plaintiffs support this assertion with a declaration from . . . a Managing Director at Berkeley Research Group with significant experience in database design and management.”  “[This declarant] opines that fulfilling [plaintiff’s] request ‘would not be burdensome for the Government’ and could be done ‘with ease’ using the systems [defendant’s declarant] describes in her declaration.”  The court finds that “[plaintiff’s declarant’s] declaration is of limited value to the Court.”  “[Plaintiff’s declarant’s] general understanding of databases is not a substitute for the firsthand knowledge of [defendant’s declarant’s], who have spent years working with the specific database at issue in this case.”