Reclaim the Records v. United States Dep't of State

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RECLAIM THE RECORDS et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, Defendant.

No. 23-CV-1471 (JMF)

United States District Court, S.D. New York

August 7, 2024

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge

Alec Ferretti is a board member of Reclaim the Records, a non-profit organization that acquires genealogical data sets from government sources for the purpose of making them free and accessible to the public. See ECF No. 1 (“Compl.”), ¶ 6. In 2017, Ferretti and Reclaim the Records (together, “Plaintiffs”) submitted a request for a “copy of the index to all birth and death records held by the State Department for the Panama Canal Zone” under the Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552 et seq. Compl. ¶ 9. The Department of State (the “Department”) failed to promptly process the request, and this action followed; thereafter, the Department denied the request on the ground that the record requested by Plaintiffs does not exist. See id. ¶¶ 5 24-25; ECF No. 12, at 1. The parties' dispute - presented by way of crossmotions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, see ECF Nos. 21, 35 - turns on whether the index Plaintiffs seek can be generated from preexisting data held by the Department. For the reasons that follow, the Court concludes that the Department has the better of the argument. Accordingly, its motion for summary judgment is GRANTED and Plaintiffs' cross-motion for summary judgment is DENIED.

BACKGROUND

The following facts, which are undisputed unless otherwise indicated, derive from the sworn declarations of Regina L Ballard, Division Chief of the Office of Records Management within the Department's Bureau of Consular Affairs see ECF No. 22 (“Ballard Decl.”), ECF No. 46 (“Ballard 2d Decl.”), and Sharon Westmark Division Chief of the Production Services Design and Development Division within the Bureau of Consular Affairs see ECF No. 47 (“Westmark Decl.”), submitted in support of the Department's motion for summary judgment, among other evidence submitted by the parties. Courts treat such declarations with “a presumption of good faith,” Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994), to the extent “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith,” Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999).

A. Panama Canal Zone Birth and Death Records

In 1999, the Panama Canal Commission transferred to the Department birth and death records for the Panama Canal Zone (“PCZ”), an area of Panama controlled by the United States between 1903 and 1979. See Ballard Decl. ¶ 10. The Department primarily maintains these records as “paper records” in sixty-eight boxes containing 95,200 index cards. Id. ¶¶ 11-12. Although the Department “attempted to import some of the PCZ data” to the Passport Information Electronic Records System (“PIERS”) as part of a wider effort to digitize passport records, the resulting data was “of such poor quality that the Department abandoned the effort and decided to preserve them in their paper form instead.” Id. ¶ 21. As a result, there is “an imperfect match of the data in PIERS and the paper records for the PCZ birth records and the PCZ death records,” Ballard 2d Decl. ¶ 17, and the 95,200 paper index cards constitute the Department's “official birth and death records for the PCZ,” Westmark Decl. ¶ 13.

To locate a specific PCZ birth or death record, a Department employee starts by entering the relevant name, date of birth, and file type (e.g., birth or death record) in PIERS. Ballard 2d Decl. ¶ 18; Westmark Decl. ¶ 11. The PIERS application then queries multiple, separate databases for “all relevant PRISM file numbers,” which are unique numbers assigned to each image of a digitized document. Id. ¶ 12. Because there is a “unique PRISM number for each scanned document, . . . there could be multiple PRISM numbers associated with a recordholder,” and a search could produce multiple results. Id. ¶ 13. When the employee attempts to retrieve the scanned record associated with a particular PRISM number, “the PIERS application code on the backend searches the relevant file shares[] to retrieve the image of,” in this case, “the PCZ birth or death record.” Id. ¶ 12. But because the digital data is incomplete, the Department is “unable to validate the accuracy of' the results generated by the PIERS application and must ultimately rely on the paper index cards “as its official birth and death records for the PCZ,” id. ¶ 13. Therefore, even if a Department employee is able to identify “the corresponding entry in PIERS” for a PCZ birth or death record, the employee must “undertake a lengthy process to ensure that the information in PIERS matches” the information in the paper record for the individual in question. Ballard 2d Decl. ¶ 22. If the employee is unable to locate the record in PIERS, the employee can only identify the corresponding paper record by going through the boxes of index cards or “book volumes” of those same records. Id. ¶¶ 23-24, 26. Neither the boxes nor the book volumes contain any “index or list for the PCZ records.” Id. ¶¶ 25, 27.

Because PIERS utilizes multiple databases “housing different aspects of . . . information,” a “database quer[y]” for a comprehensive list of the relevant PCZ birth and death records would “generate unreliable data that Department personnel would have to separately validate.” Westmark Decl. ¶ 14. The Department has never extracted such a comprehensive list from PIERS. Ballard Decl. ¶ 26. Indeed, according to Ballard, “[undertaking this exercise . . . would take years to complete,” as an “IT specialist would have to do a bulk pull of this information and then a Department Passport analyst would need to verify that the data pulled matched the actual information in the digitized record” and confirm that the information could be released in accordance with the Privacy Act. Id. “[A]n inventory of the Department's PCZ records . . . derived from the [95,200] paper index cards” would similarly “take a Department employee several years to complete.” Westmark Decl. ¶¶ 13-14; Ballard Decl ¶ 19.

B. Plaintiffs' FOIA Request

On June 30, 2017, Plaintiffs submitted a FOIA request for “a copy of the index to all birth and death records held by the State Department for the Panama Canal Zone.” ECF No. 36-1, at 1. In a letter to the Department, Ferretti explained that a “vital records index is typically the document either contained at the end of a book of vital records, or in a separate volume, alphabetically listing all vital events which took place in a jurisdiction during a specified time period, usually organized by surname or in sequential order.” Id. Ferretti also explained that “[t]hese indexes have often been digitized in a searchable database format” and requested that “this index be sent to [him] digitally, in a searchable database format, if such database exists.” Id. at 1-2. Significantly, Plaintiffs did not request, and do not seek here, “the release of any actual birth or death certificates that were indexed.” ECF No. 42 (“Pls.' Opp'n”), at 1.

Although the Department acknowledged the request on August 23, 2017, see ECF No. 36-2, it failed to act on the request for years, see ECF Nos. 36-3, 36-4, 36-5, 36-6. In May 2021, the Department stated, in response to Ferretti's fifth request for a status update, that the FOIA request was in process and the estimated date of completion was February 14, 2022. See ECF No. 36-7. The next month, a Department FOIA Analyst e-mailed Ferretti stating that it was “very difficult to process [Plaintiffs'] request” and seeking clarification as to the range of years covering the PCZ birth and death records sought. ECF No. 36-8. In reply, Ferretti referred the Department analyst to a Department records disposition schedule from 2021, which specifies that the Department is in possession of an “Index of Panama Canal Zone Birth Certificates, adoption records and related documents for persons born between 1904 and 1979” and an “Index of Panama Canal Zone Death Certificates for persons who died between 1904 and 1979.” See id.; see also ECF Nos. 1-8, 22-2. According to the Department, these entries refer to the sixty-eight boxes of index cards constituting the Department's “official” PCZ birth and death records, not a separate index of those cards. See Ballard Decl. ¶¶ 14-15; Ballard 2d Decl. ¶ 29.

On February 2, 2023, over five and a half years after Plaintiffs' filed their FOIA request, Plaintiffs filed this action seeking review of the Department's failure to promptly release the requested records under 5 U.S.C. ¶ 552(a)(4)(b). See Compl. ¶¶ 1-2, 3, 5. Two months later, in a letter dated April 13, 2023, the Department informed Ferretti that it had “conducted searches and found no responsive records” and that “that complete[d] the processing of [Plaintiffs'] request.” ECF No. 22-4. More specifically, the Department explained as follows:

[T]he Department does not maintain an index or search aid for birth and death records for the Panama Canal Zone. The system where these birth and death records are stored does not contain an index or spreadsheet or allow for the extraction and compilation of certain information from the records stored in the system. Rather, the Department can only retrieve the records stored in the system manually and one-at-a-time, meaning that the Department must search the system using personally identifiable information, including the name and date of birth of an individual, to locate a particular birth or death record for the Panama Canal Zone.

Id. According to Ballard, the Department had “searched for any index or list that could serve as a search...