UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GOVERNMENT ACCOUNTABILITY PROJECT, Plaintiff, Case No. 1:17-cv-2518 (CRC) v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant. MEMORANDUM OPINION This Freedom of Information Act case is reminiscent of the classic board game Battleship, where players array a fleet of plastic warships on a secret grid and alternate directing “shots” at the opponent’s vessels by calling out precise coordinates. A shot hits its mark only if an enemy vessel is situated on a specified target. Plaintiff Government Accountability Project (“GAP”) asked for any records in the Department of Homeland Security’s (“DHS”) possession that related to “ideological tests” and “searches of cellphones” at the U.S. border. The agency obliged in a manner consistent with the rules of Battleship. It canvassed its electronic records for direct hits, looking only for records that contained the verbatim language GAP used in its request. For the first search, it used the terms “ideological tests” and “border”; for the second, it used the keywords “search” and “cellphone.” After the searches yielded zero responsive documents, GAP complained that DHS unreasonably omitted additional search terms that quite likely would have generated a more robust return. Because FOIA requests do not operate like a game of Battleship—and for other more technical reasons that follow—the Court agrees and will order the agency to conduct its search anew. I. Background On April 4, 2017, GAP, a non-profit advocacy organization, submitted a FOIA request to DHS. Complaint ¶ 6. GAP requested three species of documents. It sought (1) “correspondence between White House staff and the DHS concerning ideological tests at the U.S. Border”; (2) “correspondence concerning searches of cellphones, the protocols, information about who was searched . . . , search rates, protocols if a search is refused, etc., for citizens and non-citizens, at the U.S. border”; and (3) “any records generated in connection with topics listed above that raised or were responding to compliance of 5 U.S.C. § 2303(b)(8),” a federal whistleblower- protection statute. Id. Some five months passed with no response from DHS, so GAP filed suit in November 2017 to force the agency’s hand. Id. ¶ 8. Ten days later, on December 1, the agency informed GAP that its search had located no responsive records. Def’s MSJ, Ex. 2, Declaration of James V.M.L. Holzer (“Holzer Decl.”) ¶ 11. But “[o]ut of an abundance of caution,” the agency “conducted an additional broader search,” this time soliciting the assistance of DHS’s Office of the Chief Information Officer (“OCIO”). Id. ¶ 12. It sent “two search taskers” to OCIO. The first asked OCIO to search for “any and all emails” between DHS.GOV and EOP.GOV1 email addresses that used the words “ideological test” and “border.” Id. ¶ 13. The second requested “any and all emails” between the same email addresses using the words “search” and “cellphone.” Id. ¶ 14. 1 DHS believed that “EOP”—which stands for Executive Office of the President—was the appropriate email suffix for White House staffers. 2 OCIO completed its search in January 2018. ...
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