La Union DEL Pueblo Entero v. Fed. Emergency Mgmt. Agency

1

LA UNION DEL PUEBLO ENTERO v. FEDERAL EMERGENCY MANAGEMENT AGENCY et al.

Civil Action No. 5:21-CV-71

United States District Court, S.D. Texas, Laredo Division

August 1, 2023

ORDER

Marina Garcia Marmolejo United States District Judge

In this public records case, Plaintiff La Union del Pueblo Entero (LUPE) has sued the Federal Emergency Management Agency (FEMA) (Dkt. No. 1).^[1]LUPE believes FEMA violated the Freedom of Information Act (FOIA) and the Administrative Procedure Act (APA) when it failed to disclose documents concerning its Individuals and Households Program (IHP) (id. ¶¶ 11, 73-76, 85).

Pending before the Court are three motions: FEMA's motion to dismiss based on mootness grounds, FEMA's motion for summary judgment, and LUPE's motion for discovery (Dkt Nos. 40, 42). The United States Magistrate Judge has issued a Report and Recommendation assessing the motions, and the parties have filed objections, responses, and replies (Dkt Nos. 51, 52, 53, 54, 55, 56). Having considered the record arguments, and applicable authorities, the Court finds the Report (Dkt. No. 51) shall be ADOPTED IN PART. Below, the Court assumes the reader is familiar with the case's factual and procedural background, the parties' arguments, and the Report's contents.

DISCUSSION

1. Recommendation: LUPE's lawsuit has not been mooted, and FEMA's motion to dismiss should be denied.

The parties did not object to this recommendation. Finding no clear error, the Court ADOPTS this portion of the Report. FEMA's motion to dismiss on mootness grounds is DENIED.

2. Recommendation: There is a genuine issue of material fact over the adequacy of FEMA's search.

The Court concurs with this finding. FEMA's objection is therefore OVERRULED. For the reasons stated by the Report (Dkt. No. 51 at 10-14), there is a genuine dispute of material fact over the adequacy of FEMA's search.

In its objection, FEMA argues that Batton v. Evers, 598 F.3d 169 (5th Cir. 2010), a precedential Fifth Circuit decision, compels a ruling in its favor (Dkt. No. 53 at 2-4). FEMA maintains the following position: Because the Fifth Circuit held two declarations in Batton showed the agency's search was adequate, FEMA's declaration, which provides more information than the ones in Batton, requires the same result (id.). While FEMA's position is persuasive at first blush, after a close inspection of the district court record in Batton, FEMA's declaration is actually less descriptive than the ones filed in Batton.

In Batton, the requestor asked the Internal Revenue Service (IRS) to produce his federal tax returns, communications between him and the IRS, and financial transactions implicating his tax liability for the 2001 to 2003 tax years. 598 F.3d at 173. During the ensuing FOIA litigation, the IRS produced two declarations. Id. at 176. The most relevant declaration testified to the following:

[U]nder my supervision, Pamella Charles searched the following databases for documents responsive to Plaintiff's request: System of Records 22.034 - Individual Return Files, Adjustments and Miscellaneous Records; 24.030 - CADE Individual Master File; 24.047 - Audit Underreporter Case File; 42.001 - Examination Administrative File and 42.008 - Audit Information Management System.

These databases would contain the type of documents requested by Plaintiff[,] for example, documents related to his tax returns[,] which would be located in the Individual Master File which includes the IDRS.

The databases were searched electronically using the identifying information provided by Plaintiff in his request[,] including his name and Social Security Number.

Some of these databases provided electronic documents that were immediately gathered and reviewed. Other databases identified the location of paper copies of documents which were unavailable in electronic format and copies of these documents were gathered in paper copy format. Furthermore, we searched for documents in the possession of Revenue Agent Chris Driskill. In all, my search located over 5000 documents.

See Batton, No. 4:07-cv-2852, Dkt. No. 40-1 ¶ 6 (S.D. Tex. Sept. 4, 2008) (line breaks inserted by the Court).

The Fifth Circuit found this declaration, coupled with a more general declaration, showed the IRS performed a search reasonably calculated to yield responsive documents. 598 F.3d at 176. It so held because the declaration named the IRS databases explored and explained the databases would contain the information sought. Id.

Here, FEMA's declaration is not as specific as the Batton declaration above. Its declaration testifies to the following:

The Office of Response and Recovery (ORR), IHP and the Reporting and Analytics Division (RAD), conducted multiple searches of major information systems, including FEMA's network data systems within the r-drive, Processing Procedures Manual (PPM), FEMA NPSC Programs intranet portal, Virginia Systems Repository (VSR), and Individual Assistance Pre-Shift Notes (IAPN) platform. The search terms derived from the Plaintiff's request. The search produced a total of 3,893 pages of responsive records consisting of standard operating procedures (SOPs), training material, and pre-shift instructions for staff providing individual assistance to various designated disasters in the country.

An additional search was conducted in FEMA's Region 6 (R6) for responsive records related to the IHP in their areas of responsibility. R6 conducted a search of their respective network drives and SharePoint sites using search terms such as “inspections” and “guidelines”. The results of the R6 search yielded 442 pages of inspection guidelines.

(Dkt. No. 40-1 ¶¶ 6-7).

Certainly, the declaration names the specific databases explored. However, more is needed. Unlike the Batton declaration, FEMA's does not explain why these databases would likely contain responsive documents. In Batton, the databases' names supplied this explanation. For example, it is obvious that a database named “Individual Return Files” would likely contain the requestor's federal tax returns. Likewise, databases named “Audit Underreporter Case File” and “Audit Information Management System” would likely contain documents analyzing the requestor's potential tax liability. Here, database names like “r-drive,” “Virginia Systems Repository,” and “FEMA Region 6” do not self-evidently convey why these databases would contain responsive records. An explanation is therefore required. Contrary to FEMA's position, FEMA's declaration does not provide more contextual information than the ones submitted in Batton.

FEMA's declaration is also wanting for another reason: Its explanation of the search terms used is too cursory. In Batton, the IRS explained it used the requestor's personally identifying information, such as his name and Social Security Number. Batton, Dkt. No. 40-1 ¶ 6. Understandably, this brief statement sufficed. The requestor sought IRS documents that implicated his tax delinquency status for a certain date range. Using his personally identifying information as search terms could reasonably be expected to produce responsive documents.

This case is markedly different. Compared to the requestor in Batton, LUPE seeks more general information. LUPE's FOIA request sought all records communicating IHP substantive or procedural standards used by FEMA and its affiliates, as well as all records relating to future changes in IHP standards (Dkt. No. 1-1). To help FEMA interpret this broad request, LUPE supplied examples of documents it desired: standard operating procedures, IHP inspection guidelines, IHP line items, FEMA policy memoranda, quick reference guides, FEMA manuals for its helpline, and contractor training documents (id.).

Given LUPE's expansive request, it stands to reason that FEMA must use a larger set of search terms compared that used in Batton. It follows that FEMA must also provide a more detailed description than the IRS did in Batton. After all, the law requires FEMA to show methods were “reasonably expected to produce the information requested.” Batton, 598 F.3d at 176 (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)) (emphasis added). Here, simply naming two search terms-“inspections” and “guidelines”-with a general statement that FEMA used terms “derived from [LUPE's] request” does not show the search was reasonably calculated to produce responsive records (compare Dkt. No. 40-1 ¶¶ 6-7 with NRDC v. EPA, No. 1:17-cv-5928, Dkt. No. 36 ¶¶ 13-14 (S.D.N.Y. Oct. 16, 2018) (agency declaration explaining official chose relevant email database, imposed a date range, and then listed over 50 search terms used, such as “framework rules,” “procedures for prioritization,” “chemicals for risk evaluation,” “section 5 review,” “methylene chloride,” and “Pigment Violet 29”)).

The Court also notes that FEMA's underlying logic is far too rigid. If the Court accepts FEMA's proposition that “The statements in this prior case sufficed, then supplying some more detail in this case necessitates the same outcome,” it would undermine the reasonableness standard required by the Fifth Circuit. As another district court noted, “[t]he adequacy of an agency's search is measured by a standard of reasonableness and is dependent on the circumstances of the case.” Verde v FAA, 287 F.Supp.3d 661, 667 (S.D. Tex. 2018) (quoting Weisberg v. U.S. Dep't of Just., 705 F.2d 1344, 1351 (D.C. Cir. 1983)). Thus, consistent with most, if not all, areas of the law, what will be “reasonable” will necessarily turn on the specific facts and circumstances of a case. See, e.g., Hudson v. Lincare, Inc., 58 F.4th 222, 231 (5th Cir. 2023) (noting, in a Title VII retaliation case, what a “reasonable employee” would consider “materially adverse”...