FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT INTER-COOPERATIVE EXCHANGE, an No. 20-35171 Alaska cooperative corporation, Plaintiff-Appellant, D.C. No. 3:18-cv-00227- v. TMB UNITED STATES DEPARTMENT OF COMMERCE; NATIONAL OCEANIC OPINION AND ATMOSPHERIC ADMINISTRATION; NATIONAL MARINE FISHERIES SERVICE, Defendants-Appellees. Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, Chief District Judge, Presiding Argued and Submitted November 8, 2021 Seattle, Washington Filed June 7, 2022 Before: Ronald M. Gould, Richard C. Tallman, and Patrick J. Bumatay, Circuit Judges. Opinion by Judge Bumatay; Dissent by Judge Tallman 2 INTER-COOPERATIVE EXCHANGE V. USDOC SUMMARY * Freedom of Information Act The panel reversed the district court’s grant of summary judgment to federal defendants in a Freedom of Information Act (“FOIA”) action brought by Inter-Cooperative Exchange (“ICE”), a cooperative of fishers who harvest and deliver crab off the coast of Alaska, seeking the government’s communications concerning the government’s decision not to factor Alaska’s minimum wage increase into the arbitration system that sets the price of crab. The North Pacific Fishery Management Council manages fisheries off the coast of Alaska. In 2005, the National Marine Fisheries Service (“NMFS”) implemented a program recommended by the Council to allocate crab resources among harvesters, processors, and coastal communities. As part of this system, an arbitrator established a non-binding price formula. In 2014, Alaska increased the minimum wage, which raised the question of whether costs should be considered under the arbitration system. The Council reviewed the matter at a 2017 meeting where Glen Merrill, an Assistant Regional Administrator of NMFS and a voting member of the Council, introduced an unsuccessful motion to include costs for consideration in the arbitration system. Merrill subsequently exchanged emails with John Sackton, a price-formula arbitrator for the crab arbitration system. ICE filed its FOIA request seeking information behind Merrill’s actions. In response, the * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. INTER-COOPERATIVE EXCHANGE V. USDOC 3 government produced 146 records along with a search log indicating it searched Merrill’s emails, network, and desktop, but not his cellphone. The government used three search terms – “binding arbitration,” “arbitration,” and “crab.” Merrill submitted a declaration stating that he did not have a government cellphone, but that he had searched his personal cellphone using the three terms, and had found no responsive records. The panel held that on the facts here, the three search terms were not reasonably calculated to uncover all documents relevant to ICE’s request. ICE contended that the government’s choice of search terms was unduly narrow and not reasonably calculated to uncover all documents relevant to its FOIA request. The panel held that the government’s choice of search terms was overly narrow. First, the terms completely disregarded half of ICE’s FOIA request because they did not include search terms to cover the request for minimum-wage records. Second, the government failed to justify its contention that the two selected keywords – …
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