II. Electronic Searches

An agency’s duty to search may also require it to conduct specialized electronic searches where appropriate. For example, one court held that the Department of Justice was required to use the electronic legal database PACER, a widely used database that provides access to federal court records, to search for responsive records of files within its own possession.²⁴

In another case, the FBI sought to withhold a tape recording of two individuals under Exemption 7(C), and, because the privacy interest under that exemption is diminished for deceased individuals, claimed that it had attempted to determine whether they were alive, but had not been successful.²⁵ However, the court held that the FBI's search was not reasonable, as it had only used search methods “plainly fated to reach a dead end” and failed to pursue “reasonable alternatives.”²⁶ The court noted that the agency did not search its institutional databases for the individuals' social security numbers, which could then be searched in the Social Security Death Index.²⁷ Instead, the agency only looked to whether the requested record itself — the tape recording — contained their social security numbers.²⁸ Also, the agency consulted a set of books discussing a limited number of "noteworthy" deceased people titled Who Was Who, rather than searching within sources more likely to contain relevant information, such as a Google search for the individuals’ obituaries.²⁹

However, in a different case, a requester sought e-mails known to have already been deleted.³⁰ A court held that because there was insufficient evidence to support the plaintiff’s arguments about the recoverability of electronic files, and because the agency claimed the files had been found in paper format, the FDA’s search was not unreasonable merely because it had failed to hire a specialist to recover the deleted files, or to search for back-up e-mails on a different computer.³¹

Although the result may depend on the specific circumstances, you may in some cases be able challenge a search as inadequate where digital tools were not used to assist in a search.

In addition to the general search methodology questions, in the case of electronic searches you should also attempt to find out what terms and strings were used or excluded from a search.