Louise Trauma Center LLC v. United States Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LOUISE TRAUMA CENTER LLC,
Plaintiff,

v. Civil Action No. 21-2371 (JDB)

U.S. DEPARTMENT OF HOMELAND
SECURITY,
Defendant.

MEMORANDUM OPINION

Louise Trauma Center LLC (“LTC”) sued to enforce eleven Freedom of Information Act

(“FOIA”) requests it filed with the Department of Homeland Security (“DHS”). All but one of

plaintiff’s requests have been resolved. The outstanding request seeks “all records concerning” a

DHS division charged with conducting asylum-related research. The parties have filed cross-

motions for summary judgment as to (1) whether DHS conducted an adequate search or,

alternatively, (2) whether LTC’s request was invalid because it did not “reasonably describe” the

records sought. The Court will grant summary judgment to DHS on the second basis.

Background

LTC is a nonprofit organization “dedicated to raising awareness about immigrant women

who have suffered from gender-based violence such as female genital mutilation (FGM), rape,

domestic violence, and forced marriage.” Compl. [ECF No. 1] ¶ 5. The organization filed eleven

FOIA requests with DHS in 2020. See Def.’s Statement of Material Facts Not in Genuine Dispute

[ECF No. 27-1] (“Def.’s SMF”) ¶ 1; Compl. ¶¶ 7–62. After the agency failed to respond within

the statutory time frame, LTC sued to have those requests enforced. See generally Compl. All

but one of those requests has now been satisfied. See Def.’s SMF ¶ 8.

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 The last disputed request, denoted by the parties as Request #11, seeks the following:

Request for records concerning the documentation Center required by 8 CFR
208.1b.

Louise Trauma Center hereby requests a copy of all records concerning the
documentation center maintained by the Director of International Affairs. Please
give us a table of contents, rules, procedures, policy statements, annual reports, etc.

8 cfr 208.lb states:

“The Director of International Affairs shall maintain a documentation center with
information on human rights conditions.”

Dates: 1-1-20 through the date you begin to search

Def.’s SMF ¶ 1 (emphasis added); see Pl.’s Opp’n to Def.’s Mot. & Cross-Mot. for Summ. J. [ECF

No. 29] (“Pl.’s Cross-Mot. & Opp’n”) at 6.

DHS initially construed Request #11 as a duplicate of Request #10. Pl.’s Statement of

Material Facts Not in Dispute [ECF No. 29-1] (“Pl.’s SMF”) ¶ 2. Request #10 sought the

following:

Request for records compiled and disseminated by the Director of International
Affairs

Louise Trauma Center hereby requests a copy of all records compiled and
disseminated by the Director of International Affairs, as required by 8 cfr 208.1b
which states:

The Director of International Affairs shall also, in cooperation with the Department
of State and other appropriate sources, compile and disseminate to asylum officers
information concerning the persecution of persons in other countries on account of
race, religion, nationality, membership in a particular social group, or political
opinion, torture of persons in other countries, and other information relevant to
asylum determinations, and shall maintain a documentation center with information
on human rights conditions.

Dates: 1-1-20 through the date you begin to search

Def.’s SMF ¶ 5 (emphasis added). However, DHS reopened Request #11 after LTC asserted that

each request sought different documents. Pl.’s SMF ¶ 4; see Def.’s SMF ¶¶ 6–7.

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 While processing Requests #10 and #11, DHS determined that LTC was quoting outdated

regulations, and that the “documentation center” described in the cited regulation now refers to the

Refugee, Asylum, and International Operations (“RAIO”) Research Unit, and the “Director of

International Affairs” now refers to the Associate Director of the RAIO Directorate. See Decl. of

Jerrod Panter [ECF No. 27-2] (“Panter Decl.”) ¶¶ 12–15. Accordingly, pursuant to Request #10,

DHS searched records of individual RAIO researchers tracking country conditions, as well as the

relevant document management system, for information “compiled and disseminated” during the

relevant time period. Id. ¶ 18. DHS located 1,437 responsive pages and released 1,012 pages in

full and 435 pages in part. Id. LTC does not contest the adequacy of the search or the basis for

withholdings as to Request #10. Joint Status Report [ECF No. 24] (“June 20, 2023 JSR”) at 1.

With respect to Request #11, DHS interpreted LTC’s request to seek the specific kinds of

documents listed in the request—“a table of contents, rules, procedures, policy statements, annual

reports,” and possibly records “similar” to those listed. Compare Panter Decl. ¶ 12 (indicating

DHS interpreted the request to refer to those specific documents), with Second Decl. of Jarrod

Panter [ECF No. 31-2] (“Suppl. Panter Decl.”) ¶ 5 (indicating DHS also searched for documents

similar to those listed). DHS did not attempt a search for “all records concerning the

documentation center.” See Panter Decl. ¶ 12. The search of the RAIO Research Unit turned up

one responsive document, a 104-page set of Standard Operating Procedures for the RAIO Research

Unit. Def.’s SMF ¶ 2. DHS released 83 pages of this document in their entirety and 21 pages in

part. Id. ¶ 3.

In June 2023, the parties informed the Court that they had reached an impasse on Request

#11. June 20, 2023 JSR at 2. LTC claimed that DHS had “misconstrued the request” and that

“‘all’ means ‘all.’” Id. DHS maintained that it had performed an adequate search and located no

further responsive documents. Id. To resolve this remaining dispute, DHS filed a motion for

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summary judgment. That motion makes two arguments. First, the agency claims that it performed

an adequate search pursuant to a reasonable construction of Request #11. Def.’s Mot. for Summ.

J. & Mem. in Supp. Thereof [ECF No. 27] (“Def.’s Mot.”) at 5–8. In the alternative, DHS argues

that Request #11 was invalid because it did not “reasonably describe the records sought.” Id. at

8–11. LTC opposed DHS’s motion and cross-moved for summary judgment on the same issues.

Pl.’s Cross-Mot. & Opp’n. DHS submitted an opposition and reply, Def.’s Reply in Supp. of Mot.

for Summ. J. [ECF No. 30] (“Def.’s Reply & Opp’n”), and LTC submitted a reply in support of

its motion, Pl.’s Reply to Def.’s Opp’n [ECF No. 33] (“Pl.’s Reply”). The motions are now fully

briefed and ripe for decision.

Legal Standard

“[T]he basic purpose of the Freedom of Information Act [is] to open agency action to the

light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976) (internal quotation

marks omitted). To “ensure an informed citizenry, vital to the functioning of a democratic

society,” the law “requir[es] agencies to adhere to a general philosophy of full agency disclosure.”

U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 142 (1989) (cleaned up). “Unlike the review of

other agency action that must be upheld if supported by substantial evidence and not arbitrary or

capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’ and directs

the district courts to ‘determine the matter de novo.’” U.S. Dep’t of Just. v. Reps. Comm. for

Freedom of Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

Ordinarily, FOIA cases are decided on summary judgment. See, e.g., Kayll v. U.S. Dep’t

of Homeland Sec., Civ. A. No. 22-2830 (JDB), 2024 WL 81231, at *3 (D.D.C. Jan. 8, 2024). A

court may grant summary judgment based on affidavits or declarations that are “relatively detailed

and non-conclusory.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)

(internal quotation marks omitted). The question for the court is whether “[v]iewing the evidence

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in the light most favorable to [the non-moving party], . . . it [can] be said that the [agency] affidavits

[leave] no substantial and material fact to be determined and that [the moving party is] entitled to

summary judgment as a matter of law.” Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771

(D.C. Cir. 1981) (per curiam). Agency affidavits are accorded a “presumption of good faith, which

cannot be rebutted by purely speculative claims about the existence and discoverability of other

documents.” Shapiro v. U.S. Dep’t of Just., 40 F.4th 609, 613 (D.C. Cir. 2022) (quoting Bartko

v. DOJ, 898 F.3d 51, 74 (D.C. Cir. 2018)).

Analysis

As noted above, DHS makes two alternative arguments in support of its motion for

summary judgment. Because the question of whether Request #11 is “reasonably described” is

logically antecedent to whether the search was adequate, the Court begins there.

I. Reasonably Described

FOIA requires that agencies make available nonexempt agency records upon receipt of a

request that “reasonably describes such records.” 5 U.S.C. § 552(a)(3)(A). Because a “reasonably

describe[d]” request is a “prerequisite[] for triggering the agency’s duties to search and produce

responsive records,” an agency is entitled to summary judgment when the requestor’s submission

is not sufficiently well-defined. Cato Inst. v. Dep’t of Def., Civ. A. No. 21-1223 (JEB), 2023 WL

3231445, at *2 (D.D.C. May 3, 2023) (quoting MacLeod v. DHS, Civ. A. No. 15-1792 (KBJ),

2017 WL 4220398, at *6 (D.D.C. Sept. 21, 2017)). 1

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Whether a request is “reasonably described” is more frequently litigated as a ground for dismissal pursuant
to Fed. R. Civ. P. 12(b)(6). See, e.g., Gun Owners of Am., Inc. v. FBI (“Gun Owners”), 594 F. Supp. 3d 37, 42
(D.D.C. 2022) (“[A]lthough FOIA cases typically and appropriately are decided on motions for summary judgment,
a motion under Rule 12(b)(6) is the appropriate vehicle for determining whether a plaintiff’s request reasonably
describes the records sought.” (internal citations and quotation marks omitted)). However, courts in this district also
grant summary judgment when a request is not “reasonably described.” See, e.g., Cato Inst., 2023 WL 3231445, at
*2; Sack v. CIA, 53 F. Supp. 3d 154, 163–65 (D.D.C. 2014).

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 “The linchpin inquiry is whether ‘the agency is able to determine precisely what records

are being requested.’” Dale v. IRS, 238 F. Supp. 2d 99, 104 (D.D.C. 2002) (quoting Tax Analysts

v. IRS, 117 F.3d 607, 610 (D.C. Cir. 1997)). On review, courts consider the request “as drafted,

not as either agency officials or [the requester] might wish it was drafted.” Nat’l Sec. Couns. v.

CIA, 969 F.3d 406, 410 (D.C. Cir. 2020) (alteration in original) (quoting Miller v. Casey, 730 F.2d

773, 777 (D.C. Cir. 1984)). A FOIA request “‘reasonably describes’ agency records when it

‘would be sufficient [to enable] a professional employee of the agency who was familiar with the

subject area of the request to locate the record with a reasonable amount of effort.’” Am. Ctr. for

Liberty & Just. v. U.S. Dep’t of Homeland Sec. (“ACLJ”), 573 F. Supp. 3d 78, 81 (D.D.C. 2021)

(alteration in original) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 545 n.36 (D.C. Cir. 1990)).

DHS argues that LTC’s demand for “all records concerning the documentation center”—

now understood by the parties and the Court to refer to the RAIO Research Unit—is not

“reasonably described” because it is “impossible to limit its scope in any reasonable or manageable

way.” Def.’s Mot. at 9; see Suppl. Panter Decl. ¶ 10 (characterizing the request as “unreasonable”).

The Court agrees. LTC’s request for “all records concerning” the RAIO Research Unit is

too amorphous to constitute a valid FOIA request. The RAIO Research Unit is a division of DHS

dedicated to researching “up-to-date, credible, and objective [country of origin information] on

human rights and country conditions to assist in the timely adjudication of [refugee, asylum, and

international operations] applicants’ claims.” RAIO Standard Operating Procedures [ECF No. 27-

4] at 4. Researchers within the unit draft memos and briefing reports on human rights and

migration issues, respond to queries from adjudicators and DHS staff, and conduct related

trainings, among other responsibilities. Id. A request for records “concerning” the RAIO Research

Unit includes all documents having some relation to the activities of an entire division of the

Department. As DHS contends, it refers to everything from “emails . . . discussing the Research

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Unit,” to “news summary bulletins,” “terrorist-related inadmissibility grounds working papers,”

and “documents concerning staffing . . . [or] funding of the Unit.” Def.’s Mot at 10; see

Concerning, Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/concerning (defining “concerning” as “relating to” or “regarding”). The

request has no discernable outer bounds.

Judges in this Circuit routinely hold that requests for records that “pertain to,” “relate to”

or “concern” a topic or person do not “reasonably describe” the records sought. See, e.g., Nat’l

Sec. Couns., 969 F.3d at 409–10 (request for all CIA records “pertaining to the IBM supercomputer

named ‘Watson’” was “not . . . confined” and “called for an unreasonably burdensome search”);

Pinson v. U.S. Dep’t of Just., 245 F. Supp. 3d 225, 244–45 (D.D.C. 2017) (request for all

documents “concerning the activities” of two federal prison gangs was “too vague”); Freedom

Watch, Inc. v. Dep’t of State, 925 F. Supp. 2d 55, 61 (D.D.C. 2013) (request for records that “refer

or relate” to certain subject areas was “fatally overbroad”). “The problem for an agency

responding to such a request is that the lack of clarity leaves the agency to guess at the plaintiff’s

intent.” Sack, 53 F. Supp. 3d at 164. 2

Here, it might be argued that the second line of LTC’s request sufficiently constrains the

scope of the first. The second sentence, “Please give us a table of contents, rules, procedures,

policy statements, annual reports, etc.,” could be construed as a limiting descriptor, delimiting the

request to records similar to those enumerated in this sentence. Indeed, DHS claims this

interpretation is the only “reasonable” construction of LTC’s request. Panter Decl. ¶¶ 12–13;

Suppl. Panter Decl. ¶ 5.

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As a judge in this district has explained, there is a “difference in kind between requests for documents that
‘mention’ or ‘reference’ a specified person or topic and those seeking records ‘pertaining to,’ ‘relating to,’ or
‘concerning’ the same.” Shapiro v. CIA, 170 F. Supp. 3d 147, 155 (D.D.C 2016). While a request for documents
“mentioning” or “referencing” a specific topic may produce thousands or millions of results, there can be little question
about precisely which records are sought. When a request is not “reasonably described,” it is difficult to discern the
contours of what the requestor seeks.

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 However, LTC has repeatedly and vehemently denied that its request is limited in any way.

In its briefing, LTC argues that the second sentence does not limit the scope of the request at all.

To the contrary, LTC claims that it “shows that the plaintiff has a broad, general interest.” Pl.’s

Cross-Mot. & Opp’n at 15. LTC’s statement is consistent with the position it has taken for months.

In April and June 2023, for example, LTC submitted status reports asking that DHS “construe the

word ‘all’ to mean ‘all.’” Joint Status Report [ECF No. 23] (“April 24, 2023 JSR”) at 2; see June

20, 2023 JSR at 2. LTC emphasized in one report that the request “has two sentences,” suggesting

as it did in summary judgment briefing that its request was for “all” records, and that the second

sentence was not intended to limit the scope of the first. June 20, 2023 JSR at 1–2. Further, LTC

made plain that it was “certain there are more responsive documents,” id. at 2, and expressed

bewilderment when “[d]efendant respond[ed] to [its] request with only 104 pages,” April 24, 2023

JSR at 2. LTC’s statements amount to a concession that its FOIA request is not amenable to the

more constrained reading. To the extent that reading was available, LTC has disclaimed it. And

under the broad construction advocated by LTC, the request fails to give the agency “adequate

guidance in locating responsive documents.” Gun Owners, 594 F. Supp. 3d at 51. It is too

“[b]road, sweeping . . . [and] lacking specificity” to require a response. Id. at 42 (alteration in

original) (quoting Dale, 238 F. Supp. 2d at 104).

II. Duty to Notify

LTC suggests that summary judgment should nonetheless be denied because DHS failed

to inform it “of any perceived deficiencies in” Request #11. Pl.’s Cross-Mot. & Opp’n at 17. 3 As

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LTC also claims that summary judgment should be rendered in its favor due to this failure to notify. See
Pl.’s Reply at 8 (“Plaintiff’s request was reasonably described. If it wasn’t, DHS failed to promptly notify Plaintiff of
the possible problems. Therefore, summary judgment should be rendered in favor of Plaintiff.”). Granting summary
judgment for LTC could hardly be the right result; doing so would suggest that LTC had drafted a request the agency
could reasonably research. Rather, the cases in this district suggest that granting a plaintiff summary judgment would
be appropriate only if the Court or the parties could identify a reasonable interpretation of the request, notwithstanding
the agency’s contentions. See New Orleans Workers’ Ctr., 373 F. Supp. 3d at 34 (“[D]efendant appears to have
resolved any issues presented by the specific deficiencies it identifies in the plaintiffs’ Request.”); Parker v. U.S. Dep’t

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LTC notes, courts in this district have denied motions to dismiss and motions for summary

judgment when the agency failed to negotiate the scope of a FOIA request contrary to its own

regulations. See, e.g., Wright v. U.S. Dep’t of Health & Hum. Servs., Civ. A. No. 22-1378 (RC),

2022 WL 18024624, at *4 (D.D.C. Dec. 30, 2022) (denying motion to dismiss as to whether

documents were reasonably described when the agency failed to comply with its own regulations

requiring notification of inadequacy); New Orleans Workers’ Ctr., 373 F. Supp. 3d at 28 (denying

motion for summary judgment as to adequacy of search when the agency did not follow its own

regulations requiring notification and issues with the search’s scope had apparently been resolved);

Parker, 852 F. Supp. 2d at 13–14 (denying motion for summary judgment as to whether documents

were reasonably described when the agency failed to notify requestor as required by regulation).

But the Court does not find similar relief appropriate under the facts of this case. To begin,

while DHS’s regulations recommend that agencies contact requestors about narrowing their

requests, the regulations do not require this course of action. See 6 C.F.R. § 5.3(b)–(c) (2022);

Def.’s Opp’n & Reply at 10–11. 4 Further, courts in this district are not even in accord as to the

significance of an agency’s failure to notify a requester of an excessively vague request. Some

courts have treated violation of a notice requirement as “merely a factor in the summary-judgment

analysis” while others have treated it as “nearly dispositive.” Cato Inst., 2023 WL 3231445, at *5.

Accordingly, some courts have granted summary judgment for the agency even when the agency

did not clearly raise the vagueness issue previously. See id. at *5–6 (granting summary judgment

despite agencies’ failure to specifically note that the request was not reasonably described); cf. Sai,

of Just. Exec. Off. for U.S. Atty’s’, 852 F. Supp. 2d 1, 13–14 (D.D.C. 2012) (“The Court finds this request clear
enough to constitute a valid FOIA request.”). While denying judgment to the agency to permit the parties to negotiate
the scope of the request may be appropriate in some cases, see Charles v. United States, Civ. A. No. 21-1983 (BAH),
2022 WL 951242, at *6 (D.D.C. Mar. 30, 2022) (denying motion to dismiss where DOJ had failed to negotiate the
scope of the request), it is not warranted here for the reasons discussed.
4
DHS’s regulations, as applied in New Orleans Workers’ Center, formerly required consultation, but have
since been revised. See 373 F. Supp. 3d at 33 n.5 (noting the subsequent amendment to 6 C.F.R. § 5.3(b)).

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315 F. Supp. 3d at 250 (rejecting plaintiff’s contention that the agency waived its right to contest

the scope of the request by providing a partial response).

Most significantly here, the record demonstrates that the parties went back and forth about

the scope of LTC’s request for at least eight months between the filing of the lawsuit and summary

judgment. See Def.’s Reply & Opp’n at 11. While DHS may not have specifically criticized the

request for being not “reasonably described,” the parties’ communications suggest that competing

interpretations of the request’s scope was the central issue. For example, in October 2022, LTC

advised the Court in a status report that it believed DHS had “misconstrue[d] the request and did

an inadequate search.” Pl.’s Status Report [ECF No. 17] at 5. DHS acknowledged that LTC had

“raised issues regarding the search” and stated that it was “open to receiving [search] suggestions

and determining if additional searching is warranted.” Def.’s Status Report [ECF No. 18] ¶¶ 6–

7. 5 Unlike in New Orleans Workers Center, where the court found no evidence in the record that

the agency had confronted the requestor about the scope of its request prior to summary judgment,

373 F. Supp. 3d at 34, the evidence here suggests that the boundaries of LTC’s request were always

at issue, and that LTC had numerous opportunities to explain what it wanted from the agency. Cf.

Charles, 2022 WL 951242, at *6 (denying motion to dismiss where agency “made no effort to

confer with plaintiff to resolve any issues at any point prior to filing its motion to dismiss, in

violation of its duty to confer outlined in its own FOIA regulations”).

Despite this persistent dispute, the Court is not aware of any effort by LTC to assist the

agency in narrowing or defining the boundaries of its request. Cf. Nat’l Sec. Couns., 969 F.3d at

5
Other evidence from the parties’ communications suggests a similar dispute. For example, in December
2022, January 2023, and March 2023, the parties filed joint status reports continually acknowledging LTC’s concern
that its request had been “misconstrued.” Joint Status Report [ECF No. 20] at 6; Joint Status Report [ECF No. 21] at
7; Pl.’s Status Report [ECF No. 22] at 4. In April 2023, LTC submitted a status report expressing bewilderment that
“Defendant respond[ed] to [a request for “‘all’ records”] with only 104 pages.” April 24, 2023 JSR at 2. Then and
again in June 2023, LTC asked the agency to “construe the word ‘all’ to mean ‘all.’” June 20, 2023 JSR at 2.

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10 (faulting requestor for failing to “refine its request after the [agency] invited it to do so”). LTC

claims that it could not, because it lacked knowledge about the types of records in the agency’s

possession. See Pl.’s Cross-Mot. & Opp’n at 15. And LTC suggests it is now better positioned

to help since DHS has listed in its motion for summary judgment various documents to which a

request for “all records” could refer. Id. at 15–16, 18. The problem is that those “suggestions”

derive from either common sense (e.g., documents concerning staffing and funding), or the one

document DHS produced responsive to Request #11. See Def.’s Resp. to Pl.’s SMF [ECF No. 31-

1] ¶¶ 8–9 (noting that documents were “mentioned in the Standard Operating Procedures”). “FOIA

does not require that the government go fishing in the ocean for fresh water fish,” Freeman v. U.S.

Dep’t of Just., Civ. A. No. 90-2754 (SSH), 1991 U.S. Dist. LEXIS 19214, at *5 (D.D.C. Oct. 16,

1991), and the Court will not deny summary judgment when plaintiff has failed to suggest it seeks

anything less than “all records concerning” an entire division of DHS. 6

Conclusion

For the reasons stated above, DHS’s motion for summary judgment will be granted, and

LTC’s cross-motion for summary judgment will be denied. A separate Order consistent with this

Memorandum Opinion will issue.

/s/
JOHN D. BATES
United States District Judge
Dated: February 20, 2024

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The Court does not reach the question whether DHS’s search was adequate.

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