Inter-Cooperative Exch. v. U.S. Dep't of Commerce

• Decision Date: 07 June 2022
• Docket Number: 20-35171
• Parties: INTER-COOPERATIVE EXCHANGE, an Alaska cooperative corporation, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF COMMERCE ; National Oceanic and Atmospheric Administration ; National Marine Fisheries Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

36 F.4th 905

INTER-COOPERATIVE EXCHANGE, an Alaska cooperative corporation, Plaintiff-Appellant,

v.UNITED STATES DEPARTMENT OF COMMERCE ; National Oceanic and Atmospheric Administration ; National Marine Fisheries Service, Defendants-Appellees.

No. 20-35171

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 8, 2021 Seattle, Washington

Filed June 7, 2022

Michelle DeLappe (argued), Fox Rothschild LLP, Seattle, Washington, for Plaintiff-Appellant.

Casen B. Ross (argued) and Daniel Tenny, Appellate Staff; Bryan Schroder, United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Spencer Nathan Thal, Vanguard Law, Poulsbo, Washington, for Amicus Curiae Deep Sea Fisherman's Union of the Pacific.

Before: Ronald M. Gould, Richard C. Tallman, and Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Bumatay ;

Dissent by Judge Tallman

BUMATAY, Circuit Judge:

In this case, crab fishers pull their nets from the water and cast them for government documents. Inter-Cooperative Exchange ("ICE"), a cooperative of fishers who harvest and deliver crab off the coast of Alaska, relies on an arbitration system to set the price of crab. After the government decided not to factor Alaska's minimum wage increase into the arbitration system, ICE sought to find out why. It requested the government's communications through the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. FOIA generally compels federal agencies to search for and disclose government records.

In response to ICE's request, the government used three—really two—search terms: "binding arbitration," "arbitration," and "crab." On the facts here, these terms were not reasonably calculated to uncover all documents relevant to ICE's request. We therefore hold the government failed to uphold its obligation to adequately search for records and reverse.

I.

Federal law established eight regional fishery management councils to implement fishery management plans to conserve and manage United States coastal fisheries. 16 U.S.C. § 1801 et seq. ; see also Oregon Trollers Ass'n v. Gutierrez , 452 F.3d 1104, 1108 (9th Cir. 2006). The councils run under the auspices of the Secretary of Commerce, through the National Marine Fisheries Service ("NMFS").¹ 16 U.S.C. § 1801 et seq. The North Pacific Fishery Management Council ("Council") is one of those councils and manages fisheries off the coast of Alaska. 16 U.S.C. § 1852(a)(1)(G). The Council consists of voting members from both the federal and state levels. Id. § 1852(a)(1)(G), (b).

In 2005, NMFS implemented a program recommended by the Council to allocate crab resources among harvesters, processors, and coastal communities. 50 C.F.R. § 680.20. Because the quota system displaced the traditional market forces that determined prices, the program also established a crab price arbitration system to guide price negotiations and "preserve[ ] the historical division of revenues in the fishery." Id. § 680.20(g)(2)(ii)(B), (h)(4)(i)(B). As part of this system, an arbitrator establishes a non-binding price formula to guide negotiations between harvesters and processors, and another arbitrator resolves price disputes. Id. § 680.20(g), (h). ICE was formed a year later to represent the interests of crab fishers.

For years, costs did not inform the price formula. But in 2014, Alaska increased the minimum wage, and this raised the question of whether costs—the higher wages paid to processor employees—should be considered under the arbitration system. The Council prepared a discussion paper on the matter and reviewed it at a 2017 meeting. At the meeting, Glen Merrill, an Assistant Regional Administrator for NMFS and a voting member on the Council, introduced a motion to include costs for consideration in the arbitration system. The motion failed. Afterward, John Sackton, a price-formula arbitrator for the crab arbitration system, exchanged emails with Merrill about the effect of the minimum wage increase. In those emails, Merrill told Sackton that cost information could in fact be considered.

To better understand the record and the reasoning behind Merrill's actions, ICE filed a FOIA request with NOAA. It requested:

1) All correspondence to or from Glenn Merrill, Assistant Regional Administrator for the Alaska Region of NMFS, from January 1, 2016 through the present 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.

For purposes of this request, the term "correspondence" includes without limitation all emails, text messages, social media messages, voice mails, facsimiles and letters, regardless of whether sent from or received on government or personal devices or transmitted through some other means.

....

2) All documents relating to (a) 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.

For purposes of this request, the term "documents" includes without limitation all analyses, memoranda, minutes, motions, notes, papers and other records, and all drafts of the same.

Two months later, in response to the FOIA request, NOAA produced 146 records. According to a search log accompanying the production, NOAA searched Merrill's emails, network, and desktop. The search included only three search terms: "binding arbitration," "arbitration," and "crab." The search log did not show that NOAA searched Merrill's cellphone. Nor did the government's response include any of Merrill's text, social media, or voicemail messages. ICE claims that a NOAA attorney also confirmed that the government did not search Merrill's text messages in response to the FOIA request. Unhappy with the search, ICE filed a FOIA administrative appeal.

After receiving no response to the appeal, ICE sued the Department of Commerce, NOAA, and NMFS, claiming that the FOIA search was inadequate.² The government moved for summary judgment. The government's motion included a declaration from James Balsiger, Merrill's supervisor. In his declaration, Balsiger explained that although Merrill does not use a government cellphone, Merrill did search his personal cellphone, including his text messages and social media accounts, using the three search terms. Balsiger clarified that it was an "inadvertent error" that the search log suggested that Merrill's phone was not searched.

Merrill also submitted a declaration. Merrill confirmed that he had no government cellphone, and he only used a personal cellphone. But he searched his cellphone anyway. Merrill stated that "[ICE's] request sought records concerning the interpretation and application of ... crab arbitration standards," and based on his understanding of the request, Merrill and NMFS selected the three search terms. Merrill's declaration does not mention any search terms covering ICE's request for records on Alaska's minimum wage. Merrill then confirmed that he found no responsive documents using the three search terms on his personal cellphone, including on his iMessage, WhatsApp, and Facebook accounts. Merrill also said that he listened to his voicemails for the search terms and found no responsive messages.

The district court granted the government's motion for summary judgment, finding that the government used reasonably calculated search terms. The district court was also satisfied that Merrill adequately searched his cellphone and found no responsive records.

ICE now appeals. We review a district court's grant of summary judgment de novo. Animal Legal Def. Fund v. U.S. Food & Drug Admin. , 836 F.3d 987, 988 (9th Cir. 2016) (en banc).

II.

We've previously underscored the importance of government transparency in "maintaining a functional democratic polity, where the people have the information needed to check public corruption, hold government leaders accountable, and elect leaders who will carry out their preferred policies." Hamdan v. U.S. Dep't of Just. , 797 F.3d 759, 769–70 (9th Cir. 2015). Through FOIA, Congress established a "judicially enforceable right to secure government information from possibly unwilling official hands." Id. at 770 (simplified). So in response to a FOIA request, the government must show beyond material doubt that its search was adequate. Transgender L. Ctr. v. U.S. Immigr. & Customs Enf't , 33 F.4th 1186, 1194–95 (9th Cir. 2022). An adequate search is one that is "reasonably calculated to uncover all relevant documents." Hamdan , 797 F.3d at 770 (simplified).

The adequacy of the search is a core aspect of the government's duty under FOIA. We measure this adequacy "by a standard of reasonableness, construing the facts in the light most favorable to the requestor." Citizens Comm'n on Hum. Rts. v. Food & Drug Admin. , 45 F.3d 1325, 1328 (9th Cir. 1995). It doesn't matter "whether there might exist any other documents possibly responsive to the request," as long as the search for documents was otherwise adequate. Hamdan , 797 F.3d at 770–71 (simplified). A search is not inadequate just because it fails to turn up a "few isolated documents." Id. at 771 (simplified). But the "heavy burden" of proving adequacy always remains with the government. Transgender L. Ctr. , 33 F.4th at 1194 ; 5 U.S.C. § 552(a)(4)(B). The government may meet this burden by providing "reasonably detailed, nonconclusory affidavits submitted in good faith." Hamdan , 797 F.3d at 770 (simplified).

ICE makes several arguments on appeal. First, ICE argues that NOAA's chosen search terms were not reasonably calculated to uncover all responsive documents. Second, ICE asserts that the search of NOAA Assistant Director Merrill's cellphone for text, social media, and voicemail messages was inadequate. We agree with ICE that NOAA's search terms here were insufficient and reverse. But on ICE's second...