INTER-COOPERATIVE EXCHANGE V. USDOC, No. 20-35171 (9th Cir. 2022)
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The Ninth Circuit reversed the district court’s grant of summary judgment to federal defendants in a Freedom of Information Act (“FOIA”) action brought by Inter-Cooperative Exchange (“ICE”), a cooperative of fishers who harvest and deliver crab off the coast of Alaska, seeking the government’s communications concerning the government’s decision not to factor Alaska’s minimum wage increase into the arbitration system that sets the price of crab.
The North Pacific Fishery Management Council manages fisheries off the coast of Alaska. In 2005, the National Marine Fisheries Service (“NMFS”) implemented a program recommended by the Council to allocate crab resources among harvesters, processors, and coastal communities. Alaska increased the minimum wage, which raised the question of whether costs should be considered under the arbitration system. The Council reviewed the matter at a 2017 meeting where an Assistant Regional Administrator of NMFS and a voting member of the Council, introduced an unsuccessful motion to include costs for consideration in the arbitration system.
The court held that on the facts here, the three search terms were not reasonably calculated to uncover all documents relevant to ICE’s request. ICE contended that the government’s choice of search terms was unduly narrow and not reasonably calculated to uncover all documents relevant to its FOIA request. The court held that the government’s choice of search terms was overly narrow.
Court Description: Freedom of Information Act The panel reversed the district court’s grant of summary judgment to federal defendants in a Freedom of Information Act (“FOIA”) action brought by Inter-Cooperative Exchange (“ICE”), a cooperative of fishers who harvest and deliver crab off the coast of Alaska, seeking the government’s communications concerning the government’s decision not to factor Alaska’s minimum wage increase into the arbitration system that sets the price of crab. The North Pacific Fishery Management Council manages fisheries off the coast of Alaska. In 2005, the National Marine Fisheries Service (“NMFS”) implemented a program recommended by the Council to allocate crab resources among harvesters, processors, and coastal communities. As part of this system, an arbitrator established a non-binding price formula. In 2014, Alaska increased the minimum wage, which raised the question of whether costs should be considered under the arbitration system. The Council reviewed the matter at a 2017 meeting where Glen Merrill, an Assistant Regional Administrator of NMFS and a voting member of the Council, introduced an unsuccessful motion to include costs for consideration in the arbitration system. Merrill subsequently exchanged emails with John Sackton, a price-formula arbitrator for the crab arbitration system. ICE filed its FOIA request seeking information behind Merrill’s actions. In response, the INTER-COOPERATIVE EXCHANGE V. USDOC 3 government produced 146 records along with a search log indicating it searched Merrill’s emails, network, and desktop, but not his cellphone. The government used three search terms – “binding arbitration,” “arbitration,” and “crab.” Merrill submitted a declaration stating that he did not have a government cellphone, but that he had searched his personal cellphone using the three terms, and had found no responsive records. The panel held that on the facts here, the three search terms were not reasonably calculated to uncover all documents relevant to ICE’s request. ICE contended that the government’s choice of search terms was unduly narrow and not reasonably calculated to uncover all documents relevant to its FOIA request. The panel held that the government’s choice of search terms was overly narrow. First, the terms completely disregarded half of ICE’s FOIA request because they did not include search terms to cover the request for minimum-wage records. Second, the government failed to justify its contention that the two selected keywords – “arbitration” and “crab” – were logical choices to target records related to the interpretation and application of the arbitration system standards, as ICE requested. Third, the government should have considered common variants of its chosen keywords. The panel concluded that the government failed to uphold its obligation to adequately search for records, and was not entitled to summary judgment on ICE’s FOIA claim. ICE also argued that it was unreasonable to allow Merrill to personally search his cellphone by looking for or listening for keywords. The panel held that aside from the use of overly narrow search terms, it agreed with the district court that the government conducted a reasonably adequate search of Merrill’s text, social media, and voicemail records. 4 INTER-COOPERATIVE EXCHANGE V. USDOC The panel reversed and remanded for further proceedings consistent with this opinion. Judge Tallman dissented. He wrote that the majority failed to acknowledge the limited scope of this appeal. The question presented was not the overall adequacy of the government’s FOIA search of government record systems. Instead, the sole issue was the validity of the government’s search as to Glenn Merrill’s cellphone. And Merrill’s personal cellphone – unlike the agency record systems searched – was not likely to contain additional responsive records. Judge Tallman wrote separately to express his unwillingness to use this narrow case as a broader vehicle to order an invasive search of a government employee’s personal cellphone already searched absent any evidence that the new search would reasonably uncover additional relevant documents.
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