Am. Ctr. for Equitable Treatment, Inc. v. Office of Mgmt. & Budget

• Decision Date: 19 December 2017
• Docket Number: Case No. 16–cv–01820 (APM)
• Parties: AMERICAN CENTER FOR EQUITABLE TREATMENT, INC., Plaintiff, v. OFFICE OF MANAGEMENT AND BUDGET, Defendant.
• Court: U.S. District Court — District of Columbia

281 F.Supp.3d 144

AMERICAN CENTER FOR EQUITABLE TREATMENT, INC., Plaintiff,

v.OFFICE OF MANAGEMENT AND BUDGET, Defendant.

Case No. 16–cv–01820 (APM)

United States District Court, District of Columbia.

Signed December 19, 2017

Andrew M. Grossman, Mark Wendell DeLaquil, Baker & Hostetler, LLP, Reed D. Rubinstein, Dinsmore & Shohl LLP, Washington, DC, for Plaintiff.

Joshua M. Kolsky, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Judge

I. INTRODUCTION

Plaintiff American Center for Equitable Treatment, Inc., brings this Freedom of Information Act ("FOIA") action against Defendant Office of Management and Budget ("OMB"), following its request for disclosure of records related to, among other things, (1) the Paperwork Reduction Act, its implementing regulations, and OMB's guidance concerning the Act; (2) OMB's review of "information collection requests" and petitions for review of collected information; and (3) OMB's interpretation or application of certain regulations of the U.S. Patent and Trademark Office. In response to Plaintiff's FOIA requests—there were three—OMB produced some records in full, some in part, and withheld others in their entirety.

Both parties have moved for summary judgment under Federal Rule of Civil Procedure 56. The sole issue before the court is whether Defendant conducted an adequate search in response to Plaintiff's three FOIA requests. For the reasons set forth below, the court holds that OMB has not sufficiently explained why the parameters of its search—specifically, the time limits and search terms it used—were adequate to identify all responsive records. In all other respects, OMB's search was reasonable. Accordingly, the court grants in part and denies in part Defendant's Motion for Summary Judgment and denies in part Plaintiff's Cross–Motion for Summary Judgment.

II. BACKGROUND

A. Factual Background

In 2016, Plaintiff submitted three separate FOIA requests to OMB. Pl.'s Cross–Mot. for Summ. J., ECF No. 17 [hereinafter Pl.'s Opp'n], Pl.'s Statement of Undisputed Material Facts, ECF No. 17–1 [hereinafter Pl.'s Stmt.], at 1,¹ ¶ 2; Def.'s Reply and Opp'n to Pl.'s Cross–Mot. for Summ. J., ECF No. 20 [hereinafter Def.'s Reply], Def.'s Resp. to Pl.'s Statement of Undisputed Material Facts, ECF No. 20–1 [hereinafter Def.'s Resp. Stmt.], ¶ 2. The requests and the agency's responses are set forth below.

1. Plaintiff's First FOIA Request (2016–096/2016–128)

On June 10, 2016, Plaintiff submitted its first request ("First Request") to OMB, seeking:

(1) All records referencing or concerning the Paperwork Reduction Act, 44 USC § 3501 et seq. , its implementing regulations in 5 CFR Part 1320, and [OMB] guidance issued to agencies AND United States Patent and Trademark Office (PTO) rules 37 CFR 1.111, 1.115, 1.116, 1.130, 1.131, and/or 1.132, including but not limited to (a) all Information Collection Requests (ICRs), (b) OMB Forms 83–I, 83–C, 83–D, 83–E and certifications and supporting evidence thereto, (c) estimates of paperwork burden and their derivation pursuant to 5 CFR 1320.8(a)(4), and (d) Supporting Statements referencing or concerning the PTO rules specified in this Request.

(2) All records referencing or concerning OMB review of ICR References Nos. 201301–0651–002 and 201209–0651–014 not otherwise included in Request # 1 above.

(3) All records referencing or concerning OMB's interpretation and/or application of 5 CFR 1320.3(h), and any of its subparts, with respect to PTO rules 37 CFR 1.111, 1.115, 1.116, 1.130, 1.131 and/or 1.132.

(4) All records referencing or concerning Gilbert P. Hyatt.

Def.'s Mot. for Summ. J., ECF No. 16 [hereinafter Def.'s Mot], Decl. of Dominic Mancini, ECF No. 16–1 [hereinafter Mancini Decl.], Ex. 2. Plaintiff defined the relevant time period for items 1–3 to be June 1, 2012, through the date of the request, but put no time limitation on item 4. Id. Plaintiff also suggested a list of search terms, including: "(1) regulatory provisions and Information Collection Request numbers such as ‘ 37 CFR 1.111 ’ and ‘0651–0031;’ (2) the last names of OMB and PTO staff who would likely have produced or received the requested records; and (3) terms that OMB staff were likely to include in relevant documents such as ‘Manual of Patent Examination Procedure’ and ‘patent prosecution.’ " Pl.'s Stmt. 2, ¶ 4 (quoting Mancini Decl., Ex. 2); cf. Def.'s Resp. Stmt. ¶ 4.

OMB's FOIA Officer assigned the request to the agency's Office of Information and Regulatory Affairs ("OIRA"). Def.'s Mot. at 3–4,² ¶ 3; Pl.'s Stmt. at 5, ¶ 1. Over the following weeks, OMB's Office of General Counsel ("OGC") worked with subject matter experts within OIRA to understand what types of responsive records existed. Id. On August 2, 2016, OMB responded to Plaintiff's First Request and indicated that (1) with respect to items 1–3, certain responsive records were available on a website maintained by OIRA, and (2) with respect to item 4, no responsive records were identified. Def.'s Mot. at 4, ¶ 4; Pl.'s Stmt. at 5, ¶ 1; Mancini Decl., Ex. 4. Plaintiff then appealed to OMB's FOIA Officer several days later, arguing in part that many responsive documents were not available on government websites and that OMB did not make a good faith effort to search for responsive documents. Pl.'s Stmt. at 2–3, ¶ 6; see Def.'s Resp. Stmt. ¶ 6; see also Mancini Decl., Ex. 4 (letter of appeal dated August 5, 2016).

Based on additional information provided in the course of Plaintiff's appeal, OGC submitted a request for a centralized search of the e-mail accounts of relevant OIRA staff. Def.'s Mot. at 4, ¶ 5; Pl.'s Stmt. at 5, ¶ 1. Using a Boolean search method, OGC directed the agency's Information Technology staff to search the e-mails of custodians "most likely to have responsive records" using a combination of terms referring to the specific regulatory provisions, e.g., " 37 CFR 1.111," and Information Collection Request ("ICR") numbers sought by Plaintiff, e.g., "0651–0031." Id. ; Pl.'s Stmt. at 3, ¶ 7; see Def.'s Resp. Stmt. ¶ 7. For this search, the agency defined the relevant time period as June 1, 2012, through June 10, 2016. Def.'s Mot. at 4, ¶ 5; Pl.'s Stmt. at 5, ¶ 1. After reviewing the records located in the search, OGC determined that a supplemental search was necessary; accordingly, the subject matter experts conducted a search of their own e-mails and identified a few other potentially responsive records. Def.'s Mot. at 4, ¶ 6; Pl.'s Stmt. at 5, ¶ 1.

On November 30, 2016, OMB responded to Plaintiff's administrative appeal and provided 424 pages of information, which were partially redacted pursuant to FOIA Exemptions 5 and 6. Pl.'s Stmt. at 3, ¶ 8; Def.'s Resp. Stmt. ¶ 8. Defendant also withheld 12 documents in full, citing Exemption 5. Id.

2. Plaintiff's Second FOIA Request (2016–126)

On August 1, 2016, Plaintiff submitted its second request ("Second Request") to OMB, seeking:

(1) All records referencing or concerning the Paperwork Reduction Act, 44 USC § 3501 et seq. , its implementing regulations in 5 CFR Part 1320, and [OMB] guidance issued to agencies AND [PTO] rules 37 CFR 1.105, 1.129, 1.142, 1.143, 1.144, 1.145, and/or 1.146, including but not limited to (a) all Information Collection Requests (ICRs), (b) OMB Form 83–1, 83–C, 83–D, 83–E certifications and supporting evidence thereto, (c) estimates of paperwork burden and their derivation pursuant to 5 C.F.R. § 1320.8(a)(4), and (d) Supporting Statements referencing or concerning these PTO rules or guidance.

(2) All records referencing or concerning Chapter 800 of the PTO's Manual of Patent Examining Procedure (MPEP) including but not limited to (a) all Information Collection Requests (ICRs), (b) OMB Form 83–1, 83–C, 83–D, 83–E certifications and supporting evidence thereto, (c) estimates of paperwork burden and their derivation pursuant to 5 C.F.R. § 1320.8(a)(4), and (d) Supporting Statements referencing or concerning these PTO rules or guidance.

(3) All records referencing or concerning OMB's interpretation and/or application of 5 CFR 1320.3(h), or any of its subparts with respect to (a) 37 CFR 1.105, 1.129, 1.142, 1.143, 1.144, 1.145, and/or 1.146; and/or (b) Chapter 800 of the MPEP; and/or (c) made or issued prior to July 31, 2013, regarding any PTO ICR, agency rule or guidance.

Mancini Decl., Ex. 5. Plaintiff identified the relevant time period for the Second Request to be from June 1, 2012, through the date of the request. The Second Request also provided search terms targeting: "(1) key regulatory provisions; (2) the last names of OMB and PTO staff who would likely have produced or received the requested records; and (3) terms that OMB staff were likely to include in relevant documents." Pl.'s Stmt. 3, ¶ 9; see Mancini Decl., Ex. 5; cf. Def.'s Resp. Stmt. ¶ 9.

Based on the face of the request and after consulting with subject matter experts within OIRA, OGC staff determined that the most effective way to capture responsive records was through a centralized e-mail search of relevant OIRA staff. Def.'s Mot. at 5, ¶ 10; Pl.'s Stmt. at 5, ¶ 1. Using a Boolean search method, the agency searched the e-mails of identified staff from June 1, 2012, through August 1, 2016, that contained combinations of terms referring to the specific regulatory provisions mentioned in the Second Request, as well as terms referring to the two ICR numbers mentioned in the First Request. Id. ; see Mancini Decl., Exs. 2, 5. OMB ultimately responded to Plaintiff's Second Request on December 30, 2016, and produced 252 pages of information, with partial redactions pursuant to Exemption 5. Pl.'s Stmt. at 3, ¶ 10; Def.'s Resp. Stmt. ¶ 10.

3. Plaintiff's Third FOIA Request (2016–127)

On August 2, 2016, Plaintiff submitted its third request ("Third Request") to OMB, seeking:

(1) All records referencing or concerning the implementation of 44 U.S.C. § 3517(b) of the Paperwork Reduction Act, the regulation at

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