In Inter-Cooperative Exchange v. Department of Commerce, — F.4th —, 2022 WL 2036299 (June 7, 2022), a Ninth-Circuit panel split over the proper approach to searching a government employee’s personal cell phone for records responsive to a FOIA request.  As the majority irreverently described the suit: “In this case, crab fishers pull their nets from the water and cast them for government documents.” Inter-Coop, supra, slip op. at 5.

Factual Background

The National Marine Fisheries Service (“NMFS”), is a component of the National Oceanic and Atmospheric Administration (“NOAA”). NOAA is housed in the Department of Commerce.  While NMSF has responsibilities for the nation’s coastal ocean fisheries, each of eight regional coastal fisheries is managed directly by a regional fisheries management council; for Alaska that council is North Pacific Fishery Management Council (“the North Pacific Council”).  See, id. at 5-6.

In 2005, NMFS implemented a program to allocate crab resources among harvesters, processors, and coastal communities in Alaska. Id., at 6; see, 50 C.F.R. §680.20. Because the new quota system would displace the traditional market, NMFS also established a crab price arbitration system. Inter-Coop, supra, slip op. at 6.[1]

In 2014, Alaska’s electorate increased the state’s minimum wage,[2] raising the question of whether higher wages paid to employees of crab processors should be considered under the arbitration system.  Id. at 6.  The North Pacific Council debated the issue. At an April 9, 2017 meeting of the Council, Glen Merrill, NMFS Assistant Regional Administrator for the Alaska Region, unsuccessfully sought Council approval to mandate consideration of increased labor costs. But his effort failed. Id.  Nevertheless, he subsequently advised John Sackton, a price-formula arbitrator for the crab arbitration system, that cost information could in fact be considered.[3] Id. at 6-7.

Upon discovering this, the Inter-Cooperative Exchange (“Inter-Coop”), a cooperative of Alaskan crab fishers, was understandably puzzled.  Inter-Cooperative Exchange v. United States Department of Commerce, Dkt. No. 18-cv-227, Complaint, ¶52 (D. Alaska)(filed Oct. 2, 2018)(“Complaint”); Inter-Coop, supra, slip op. at 7. Inter-Coop submitted a FOIA request for all communications between Merrill and Sackton, as well as all other documents, “relating to (a) the interpretation and application of the arbitration system standards set forth at 50 C.F.R. §680.20(g) and/or (b) the Alaska state minimum wage increase approved by voters in November 2014.”  Id.

The agency used three search terms — “binding arbitration,” “arbitration,” and “crab” — to locate documents in its files, concluding that the terms would also uncover any discussion of the Alaska minimum wage increase. Id. at 8.  The agency reasoned that it had discussed the topic only with regard to the crab price arbitration system.  But might Merrill have discussed the implications of the state minimum wage for the crab arbitration system via cell phone?  Merrill did not have a government-issued cell phone.  But per the agency’s direction, Merrill searched his personal cell phone. He asserted that he had used the three search terms and found no responsive documents on his cell phone, including his iMessage, WhatsApp, and Facebook accounts.  He also affirmed that he had found no responsive voicemails.  Id. at 9.

Inter-Coop filed suit, asserting that the search of Merrill’s personal cell phone was inadequate.[4] With respect to the asserted absence of messages to Merrill’s cell phone, Inter-Coop alleged that “it is common knowledge in the industry that the ARA [Assistant Regional Administrator Merrill] routinely texts about NMSF and Council matters.”  Complaint, supra, at ¶48. 

The Government moved for summary judgment.  Inter-Coop sought permission to engage in discovery directed at the adequacy of the agency’s search of Merrill’s cell phone records.  It sought to cast doubt upon the purported non-existence of records by submitting a message log showing that Merrill had used his personal cell phone to text another Councilmember’s government-issued cellphone during Council meetings.  Inter-Cooperative Exchange v. United States Department of Commerce, Dkt. No. 18-cv-227, 2019 WL 6842531, *4 (D. Alaska Dec. 16, 2019)(link to slip opinion here).  Ultimately, without permitting discovery, the Court reject plaintiff’s inferences that messages exchanged between Councilmembers during Council meetings must concern official government business, rather than personal matters, and that the existence of the messages plaintiffs had identified undermined Merrill’s assertion that he never conducted government business on his personal accounts. Id at *7, *9.

The District Court granted the government’s motion for summary judgment, among other things finding Merrill’s search of his personal cell phone adequate. Id. at *6-*7.[5]

On appeal, Inter-Coop argued that the agency’s decision to allow Merrill to personally search his own cell phone was unreasonable.  Inter-Coop, supra, slip op. at 17.  It also asserted that the use of the three terms Merrill used to search his personal cell phone were inadequate.  Id. at 11, 13.

The Decision

The majority, in an opinion written by Judge Bumatay, found the agency’s search inadequate for three reasons.  First, it agreed that the three search terms “completely disregarded” half of Inter-Coop’s FOIA request, namely for documents relating to Alaska’s minimum wage increase.  Id. at 14.  The majority refused to accept the agency’s justification that the topic was a “policy concern” for the Council only “by virtue of the crab price arbitration regulations.”  In its view, the declarations submitted had simply not adequately made that factual assertion. Id.

Second, NOAA failed to show that the three selected keywords were “logical choices” to identify records related to the “‘interpretation and application of the arbitration system standards.’”  Id. at 15 (quoting Inter-Coop’s FOIA request).  Indeed, Judge Bumatay noted, none of the three keywords appeared in a critical email Merrill sent to Sackton regarding the effect of the Alaska minimum wage increase on the crab arbitration system.  Merrill had used the words “cost,” “non-binding price formula,” and “arbitrator.”  Id. at 15.  That Merrill’s substantive response about the crab arbitration system would have escaped identification in a search focused on the agency’s chosen search terms “raise[d] substantial doubt” about those search terms’ adequacy.  Id. at 15-16.

Third, the Court faulted NOAA for failing to considered common variants of its chosen keywords. Instead of solely using “arbitration,” the agency should have searched for “closely related variants, such as ‘arbitrator’ or ‘arbitrating.’”  Id. at 16.  Including “variants” was particularly important in searching text and social media messages, which often use “informal [language] and contain typographical errors, shorthand, symbols, and abbreviations.” Id.  (quoting United States v. Dhingra, 371 F.3d 557, 559 n.3 (9th Cir. 2004)).  For example, “‘arb’ would be a common, text-message shorthand for ‘arbitration.’” Id.

Aside from the use of overly narrow search terms, the majority held that NOAA conducted a reasonably adequate search of Merrill’s text, social media, and voicemail messages.  Id. at 17-18.

The majority asserted that the court’s review, in adequacy of search cases, focuses most heavily on the adequacy of the search terms used.  See, id. at 18.  And, it explained, “[o]nce we are satisfied that the government’s search terms are reasonably calculated to uncover all responsive documents, we do not ‘micro manage’ the government’s search.” Id.[6] Thus, reviewing courts generally leave it to “the [G]overnment to determine which agency employees have a sufficiently ‘close nexus’ to a requested record to perform a reasonable search for records.” Id. (referencing Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 328 (D.C. Cir. 1999)).[7]

Given the “reasonably detailed factual recitation” of Merrill’s search of his personal cellphone, Inter-Coop had failed to provide a persuasive reason to doubt NOAA’s “good faith” explanation of the adequacy of the search.  Id. at 18.

The Court remanded for the NMFS to reformulate the search terms to be used for Merrill’s phone.  Id. at 19.[8]

In dissent, Judge Tallman reminded his colleagues that the sole issue on appeal was the adequacy of the search of Merrill’s personal cell phone, not the records in government files or on government computers. He concluded that a search of Merrill’s personal cellphone was unnecessary.  Id. at 19-20 (Tallman, J., dissenting).

He explained that when the government “demonstrates the unlikelihood of the existence of any responsive records on a particular record system,” it need not search that system at all. Id. at 20.  NMFS’s declarations had established that Merrill’s cell phone “was not reasonably likely to contain responsive records.”  Id.  Merrill had sworn that he did not use his personal cellphone for government business, assertions which, Judge Tallman asserted, had gone unchallenged.  Id. at 20-21.[9]

Judge Tallman continued, “[w]here the Government’s declarations establish that a search would be futile, the reasonable search required by FOIA may be no search at all.” Id. at 21 (paraphrasing Reyes v. EPA, 991 F. Supp. 2d 20, 27 (D.D.C. 2014).  Thus, the reasonable search required of Merrill’s personal cellphone was actually no search at all.  Id. (citing Hunton & Williams LLP v. EPA, 248 F. Supp. 3d 220, 238 (D.D.C. 2017) (finding a plaintiff was not entitled to a FOIA search of government employees’ text messages when the plaintiff did not “point to any evidence indicating that text messages were used for agency business”)).

Moreover, Merrill avowed that he was fully aware that agency policy required him to copy or forward any message related to government business sent or received from his personal device to his official agency email account. Id. at 22.[10]  Absent contrary evidence, courts presume that a government employee has “properly discharged the duty to forward official business communications from a personal . . . account to an official email account.” Id. (quoting Judicial Watch, Inc. v. U.S. Department of Justice, 319 F. Supp. 3d 431, 437–38 (D.D.C. 2018)).  Merrill’s declaration had therefore established that the records on his personal cellphone, if any, would have been duplicative of records already within his official email account.  Id.

Judge Tallman twice reiterated that Inter-Coop may well have made a strong case that the three search terms employed were inadequate for a search of government records systems, say, for example, Merrill’s government email account, computer network, and desktop computer.  Id. at 23, 26.  Unlike, Merrill’s cell phone, record systems used for official government business are highly likely to contain responsive records.  Id. at 26.

Matching the majority’s cleverly irreverent wit, Judge Tallman ended his dissent with the following flourish: “Inter-Coop” dropped its crab pots into NOAA records. But it laid them in the wrong spot. When the pots were finally pulled from the water, they came up empty. So where’s the crab?”  Id. at 27.

The majority addressed the dissent’s approach in a footnote, raising three issues.  Id. at 16-17 n.6.  It noted, first, that the District Court had not concluded that Merrill’s cell phone need not be searched, and, second, that in the District Court, NOAA appeared to concede the necessity of searching of Merrill’s cellphone.  Thirdly, the majority rejected the concept “that the government can agree to search a device, conduct an inadequate search, and then claim some immunity under FOIA after being called out for the inadequacy of its search.” Id.

All For Naught?: Assistant Regional Administrator Merrill Leaves the Government

One June 3, 2002, four days before the Ninth Circuit rendered its opinion, Merrill left NMFS for the private sector.  Glenn Merrill Leaves NMFS for Fisheries Job in Private Sector, Seafoodnews.com (June 6, 2022).  Merrill’s departure from the Government may complicate a supplemental search of Merrill’s records, because Merrill’s personal cell phone is arguably no longer within the Government’s “possession or control.”  See, Gawker Media, LLC v. Dep’t of State, 266 F. Supp. 3d 152, 155, 158-60 (D.D.C. 2017)(Ketanji Brown Jackson, D.J.)(citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980)).  As then-District-Judge Ketanji Brown Jackson explained:

Plaintiffs have failed to identify any affirmative obligation on State’s part to retrieve records from former employees in the course of responding to a FOIA request, and they have not explained how, absent any such duty to search and retrieve the records that Reines maintained outside of [the State Department’s] custody, any failure of Reines to search adequately, or tender properly, the government-related emails contained in his private email account has any bearing whatsoever on the question of whether State has conducted an adequate search of its records for FOIA purposes. 

Id. at 159-60.  But see, Competitive Enterprise Institute  v. Office of Science and Technology Policy, 827 F.3d 145 (D.C. Cir. 2016).

Observations

The manner in which government employees search text, social media accounts, and voicemail on their own private cell phones has significant implication for the privacy interests of government employees.  Such devices will hold much personal information in which the employee has a very significant privacy interest.  See, Riley v. California, 573 U.S. 373, 393-397 (2014).  Granted, exposure of such private personal matters could be avoided if agency employees did not use their cell phones for official business,[11] or if agencies provided employees with cell phones for use on official business.[12] The former may not be practical without the latter, particularly for government employees whose work frequently takes them “into the field.”

Inter-Coop provides three options: (1) FOIA professionals searching an employees’ cell phone as they do agency files, (2) permitting employees to search their own personal devices, (3) requiring no search of employees’ cell phone or other personal devices. Each has implications in terms of employee privacy and the risks that responsive official communications will not be located.

The first option, that advocated by Inter-Coop, would ultimately involve FOIA professionals (or some agency official other than the owner of the device) viewing material that is personal and irrelevant to the FOIA request.[13]  Any word search will turn up non-responsive, and even non-official, texts and posts. And the broader the search, the greater the amount of such material exposed to the searchers.  But the searchers will have less of a motive to withhold responsive material on improper grounds, i.e., to avoid revelation of misconduct, simple embarrassment, or failure to forward official email to a government account (itself a basis for adverse action).

The second option, permitting employees to search their own personal devices, was the Inter-Coop majority’s choice and is more protective of privacy.  The employee can search his or her own records and provide only responsive documents that qualify as “agency records.”  But the employee may well have a strong motive to simply fail to report documents, particularly when that employee’s conduct is called into question, as Merrill’s conduct was called into question by Inter-Coop.

The courts could, as a general rule, hold that an employees’ search of his or her own personal device is sufficient, but create an exception for circumstances in which there is reason to doubt the employees’ credibility.  The source of such a lack of credibility might be suspicions about the individual’s handling of official messages on his or her devices,[14] or suspicions about the official conduct in which the employee engaged.  In Inter-Coop, there does not appear to be any evidence that Merrill used his cell phone in an attempt to shield official conversations from scrutiny or that Merrill failed to comply with the obligation to forward messages received on his personal cell phone to his official account.  But it would be extremely difficult for a FOIA plaintiff ever to adduce such evidence regarding a particular government employee. The closest Inter-Coop comes to making such assertions is its allegation that Merrill “routinely uses texts about NMFS and Council matters.”  Complaint, ¶48.

But Merrill’s course of conduct raises questions, ones that, at least according to plaintiffs, remain unresolved based upon the responsive documents the agency did produce. Why would Merrill advise an arbitrator that arbitrators could take the Alaska minimum wage into account when he knew that the North Pacific Council had rejected his motion to do so?  Were there no intervening communications on the matter that would shed light on Merrill’s decision?[15]

Of course, if not kept within very limited bounds, any exception requiring someone other than the employee to search the employee’s cell phone could swallow the general privacy-protective rule.  Presumably, creative lawyers could often advance plausible reasons cast doubt upon an employee’s handling of their personal device or the official conduct in which they engaged.  And having such a nuanced rule might give rise to the need for discovery regarding either the employee’s use of his or her cell phone or the employee’s unexplained conduct.  In re Clinton, 973 F.3d 106 (D.C. Cir. 2020), provides a cautionary tale.  In that case the D.C. Circuit had to issue a writ of mandamus to preclude a deposition on former Secretary of State Hillary Rodham Clinton, after several rounds of discovery (spanning a five-year period) based on an allegation of agency “bad faith” in responding to a FOIA request.[16]

The third option, requiring no search of the employee’s device at all, was the dissenting judge’s preferred choice.  The rule would be maximally protective of privacy, as well as of agencies’ and employees’ time.  But such a blanket general rule increases the need for some exception for circumstances in which there is reason to believe that official communications are on an employee’s cell phone (but not otherwise in the agencies’ records system).  Moreover, because of the difficulty plaintiffs might have in making such allegations, such an approach increases both the risk that official communications will not be revealed, and the risk that there will never even be searches for such communications.

Conclusions

Both Judge Bumatay and Judge Tallman provide humorous comments about fishing for government documents with unsatisfactory results.  Ultimately, this may be a case in which FOIA fails to provide clarity because the key official, Assistant Regional Administrator Merrill, may have conducted business through oral conversations he did not memorialize.  In any event, Inter-Coop highlights the challenges posed by government employees’ use of personal cell phone and other devices for official business.  And the underlying facts certainly provide grist for conspiracy theorists with an interest in the Alaska crab industry.

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[1] As part of this system, one arbitrator establishes a non-binding price formula to guide harvesters-processor negotiations, and a second arbitrator resolves price disputes. Id.; see, 50 C.F.R. §680.20(g), (h).

[2] See, Ballotpedia, Alaska Minimum Wage Increase, Ballot Measure 3 (2014).  The minimum wage was not only increased, but also indexed for inflation.  See, Alaska Stat. §23.10.065(a); “An Act Increasing The Alaska Minimum Wage,” 2014 Alaska Laws Initiative Measure 3,” Alaska 2014 Session Laws, §3 (certified Nov. 26, 2014)(available on westlaw). Thus, the minimum wage keeps pace with the rate of inflation.

[3] Inter-Cooperative Exchange v. United States Department of Commerce, Dkt. No. 18-cv-227, Complaint, ¶30 (D. Alaska)(filed Oct. 2, 2018). 

[4] Inter-Coop’s suspicions were no doubt aroused by the absence of any reference to a search of Merrill’s cell phone in the search log accompanying the agency’s production of of documents.  Inter-Coop, supra, slip op. at 8.  Moreover, a NOAA attorney had confirmed to Inter-Coop that Merrill’s cell phone had not been searched.  Id. The Government later asserted the failure to mention the search of Merrill’s personal cell phone had been “inadvertent error.” Id.

[5] NOAA had produced 146 pages of documents, but withheld six records involving communications between Merrill, a NOAA Office of General Counsel attorney, and a North Pacific Council staffmember based on the attorney-client privilege.  The District Court upheld the agency’s decision with respect to those documents. Id. at *7.

[6] This assertion appears to be inconsistent with the approach of the D.C. Circuit and D.C. District Court.  See, Reporters Committee for Freedom of the Press v. FBI, 877 F.3d 399 (D.C. Cir. 2017)(requiring a search for responsive documents in the FBI Director’s Office, given the Director’s Office’s intimate involvement in coordinating the Bureau’s response to the public controversy that was the subject of the FOIA request); Office of Information Policy, Department of Justice Guide to the Freedom of Information Act, Procedural Requirements at 47-48 n.178 (“DOJ Guide”) (listing numerous cases in which a court found the government’s explanation of its failure to search certain records inadequate, including 13 D.C. Circuit or D.C. District Court opinions).  

[7] In the referenced case, the D.C. Circuit found the Government’s search inadequate, because the agency’s FOIA professionals had not contacted the captain of the Coast Guard vessel whose log book they could not locate. Valencia-Lucena, 180 F.3d at 328.  The case provides support only for the “close nexus” standard, not deference to agency FOIA professionals in deciding which sources to pursue for responsive documents.

[8] As will be noted infra, Merrill’s departure from the Government may complicate implementing the panel’s directive to repeat the search of Merrill’s private texts, social media posts, and voicemail.

[9] As noted above, Inter-Coop did seek to adduce evidence to challenge the veracity of the statement, and sought discovery to further support their allegation that Merrill used his personal cell phone for official business.

[10] That requirement is imposed by section 10 of the Presidential and Federal Records Act Amendments of 2014, Pub. L. 113–187, 128 Stat. 2003, 2014 (2014)(codified at 44 U.S.C. §2911).  Section 2911 provides:

An officer or employee of an executive agency may not create or send a record using a non-official electronic messaging account unless such officer or employee— ‘‘(1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record; or ‘‘(2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later than 20 days after the original creation or transmission of the record.

Subsection (b) provides that “intentional violation” of subsection (a), or any implementing rules, regulations, or guidelines), shall be a basis for adverse actions as severe as removal from office, pursuant to 5 U.S.C. §§5701-5704, 7511-15, 7541-43.

[11] According to some reports, for some time a sizable number of federal employees violate bans on using personal cell phones for work purposes.  See, Federal Employees Often Violate Personal Device Security Policies, Study Finds, Federal Manager’s Daily Report (Feb. 26, 2018); Survey Finds Risky Uses of Devices for Federal Duties, Federal Manager’s Daily Report (Sept. 11, 2015).

[12] Of course, sometimes there can be an intermingling of the personal and official, such as when government officials interact with each other in professional or private social settings.

[13] Inter-Coop’s electronic discovery expert had asserted a manual search of cellphone messages is unreliable. Rather, the typical protocol for locating cellphone evidence requires first backing up the phone, then searching the extracted phone data. The District Court did not find those assertions persuasive.  Inter-Coop, supra, at *6, *7.  But note, for example, that the Department of Interior’s policy regarding such searches outlines three options for records custodians to use to identify responsive text on personal cell phones: (1) reviewing texts and taking screenshots, (2) full data backup (similar to the approach Inter-Coop’s electronic discovery expert suggested), or (3) reviewing transferred electronic copies of text messages and printing out relevant text messages.  Department of Interior, FOIA Bulletin Number: 21-01: Collecting Text Messages Responsive to Freedom of Information Act Requests §5 (effective Oct. 2, 2020).

[14] For example, in the Trump Administration some White House officials allegedly improperly used personal cell phone and encrypted apps to engage in official communications in ways that did not sufficiently ensure the communications would be preserved for official records.  See, Letter from Elijah E. Cummings, Chairman, House Committee on Oversight & Reform to Pat A. Cipollone, Counsel to the President dated March 21, 2019.

[15] Moreover, even with regard to the April 9, 2017 North Pacific Council meeting, there seems to be a mystery.  According to plaintiffs, NMFS intended to have Merrill make a motion that no action be taken to incorporate processor employee wages into the arbitration system.  Merrill exchanged texts with a processor seeking to have such costs taken into account on April 7, 2017.  And two days later, at the Council meeting, Merrill moved that such costs be taken into account.  Yet NMFS produced no documents about any communications between April 7 and April 9 that indicated why the agency’s position changed.  Complaint, ¶¶42-48.

[16] The State Department’s alleged bad faith, the “hook” for the extensive discovery, was its “attempts to settle the [requester’s] FOIA case . . . before Secretary Clinton’s use of a private server became public knowledge.”  Id. at 114-15.  (Given that a second FOIA request can be made, particularly if new documents are discovered, the alleged strategy would seem a rather poor one for foreclosing a request for a search of Department records on former Secretary Clinton’s private server.)  In the discovery order that ultimately led former Secretary Clinton to seek a writ of mandamus, the District Court ordered Secretary Clinton’s deposition, “primarily to probe her motives for using a private email server and her understanding of the State Department’s records-management obligations.”  Id.  The D.C. Circuit found those issues irrelevant to the adequacy of the Department’s search of records Clinton had long ago turned over to the Department.  Id. Moreover, the Court explained, a bad-faith inquiry in a FOIA context is relevant only in so far as it goes to the actions of the individuals who conducted the search — and Hillary Clinton was not involved in the search.  Id.