I. Defining the Reasonableness Standard of Duty to Search

In challenging the adequacy of an agency search, it is not enough to bring “purely speculative claims about the existence and discoverability of other documents”⁸ For example, in a FOIA lawsuit where a requester sought images related to the May 2011 raid on Osama bin Laden’s Abottabad, Pakistan, compound, the requester argued that the Secretary of Defense was likely to possess responsive images in his office — and his office should therefore have been searched — because he had advised President Obama about whether to release the photographs.⁹

The court rejected this argument as “bald conjecture[],” as it did “not necessarily follow” from the mere fact that he advised the President about the photos that he ever saw, possessed, and/or retained them in his office.¹⁰ Therefore, rather than raise unsupported allegations, you should point to specific evidence to show that the agency’s search was inadequate.  

The adequacy of an agency’s search can be called into question if it did not search offices likely to possess the requested documents.¹¹ For example, in a case involving a FOIA request seeking documents related to the ethical behavior of high level officials in the U.S. Department of the Interior, the department failed to search files within the department’s Office of the Inspector General.¹² The court found the search inadequate because it found it “strain[ed] credulity” that the department did not know the OIG was likely to have responsive documents, when a widely publicized investigation of the officials was ongoing, and the OIG was known to be the office that conducted investigations.¹³  

You should be prepared to do some investigating of your own when faced with a “no records” response.

To substantiate a claim that a record exists and to aid the agency in finding the record, you can take a number of steps: (1) locate and provide news reports referencing certain policies, initiatives, reports, people, etc. that would help establish that a document must exist; (2) conduct and provide Internet research on the topic that otherwise tends to establish a record exists; (3) talk with agency personnel or others who may have relevant information about the documents you are seeking, who may have access to them and where they may now be located; (4) provide copies of other government documents, testimony or official statements referencing or alluding to the records you are seeking; or (5) if you feel comfortable doing so, provide documents that you already have in your possession that should have been produced within the set of documents assembled had a proper search been conducted.

In a “no records” response situation it also is extremely helpful to know if particular kinds of documents are referred to by a specific class, name or form number and how agencies index and store their files. Being familiar with internal agency records nomenclature, management and archiving is always a plus. Attempt to speak with FOIA personnel or others at the agency familiar with the records you are seeking to get a better understanding of how records are created and maintained. This can help you provide specific direction to an agency on where or how to go about additional searches in an appeal letter. Finally, if you know of a specific database or class of records you think will have responsive documents you should specifically request that the agency search such sources.

You should also attempt to find out the specifics of the search conducted. This includes when the search was conducted, what offices/files were searched, and who conducted the search and by what means. Note that agencies are required under FOIA to “prepare and make publicly available upon request, reference material or a guide for requesting records or information from the agency” — subject to exemptions to FOIA — that include “an index of all major information systems of the agency” and “a description of major information and record locator systems maintained by the agency.”¹⁴ This knowledge may help you better identify potential flaws in the search that you can highlight in your appeal.

Finally, you should bear in mind when challenging the adequacy of an agency’s search that the agency “has a duty to construe a FOIA request liberally”¹⁵ and for that reason you “need not utilize the precise jargon employed by agency officials” in a request.¹⁶

For example, in a case where the requester sought records “relating to appeals . . . regarding” employment terminations, and the agency failed to turn over records of “reconsiderations” on that subject, a court ordered the agency to disclose the documents.¹⁷ The agency argued that it was not obligated to provide the records because reconsiderations were not “related to” employment termination because they preceded termination.¹⁸ The court held that, on the contrary, because it found the plaintiff’s requests to “plainly indicate that she sought information about appeals lodged at any point [during the termination process]” the agency could not avoid disclosing the documents.¹⁹ You should assert your right to have your request construed broadly if you believe that an agency has unreasonably narrowed the scope of its search.

On the other hand, you should also be aware that where you have not specified some details in your request, an agency may unilaterally narrow the scope of its search so long as it acts in good faith.

For instance, in one case, a requester sought records maintained under his name with the FBI, but he did not specify which office to search.²⁰ The FBI, acting in good faith, “searched its ‘Central Records System’, its ‘Electronic Surveillance (ELSUR) Indices’ and its San Francisco field records, and indicated its willingness to search the records of other specific field offices upon further request.”²¹ On that basis, the U.S. Court of Appeals for the Ninth Circuit rejected that the man’s request could be construed to require the FBI to search all of its field offices.²² The court found that requiring such a broad construction would have been “an unreasonable interpretation of the FOIA.”²³