A federal judge sided with Cozen O’Connor in its claim that a Treasury Department subdivision didn’t search thoroughly for documents related to licenses to do business in Cuba sought in the firm’s Freedom of Information Act request.
U.S. District Judge Jan E. DuBois of the Eastern District of Pennsylvania ordered the Office of Foreign Assets Control to look more closely in its records for the requested documents, including any records detailing the government’s procedures for granting licenses to people and entities to conduct business in Cuba.
The firm alleged that the OFAC limited its search to its licensing department, despite the agency’s admission that the requested documents could be in the possession of other departments.
“In this case, defendant has failed to explain why it limited its search to the licensing division, when the agency‘s own declaration shows that documents in the possession of other divisions ‘may be relevant,’” DuBois wrote in his opinion. “Viewing the record in the light most favorable to defendant, the court concludes that there is no genuine issue of material fact that the scope [of] defendant‘s search was inadequate.”
Hayes Hunt, the Cozen O’Connor attorney on the case, did not return a call or respond to an email seeking comment. The U.S. Attorney’s Office for the Eastern District of Pennsylvania, which represented the OFAC in the case, did not respond to a request for comment.
Cozen O’Connor also argued that the agency used inadequate search terms in its efforts to retrieve the documents. The court concurred.
“In addition to OFAC‘s search for the terms ‘Cuba,’ ‘policy,’ ‘procedure,’ ‘licensing policy,’ and ‘licensing procedure,’ plaintiff argues that defendant should have used additional terms such as ‘guidelines,’ 'directions,’ 'instructions,’ or ‘guidance.’ This court agrees that the search terms used by defendant were inadequate, although for different reasons than plaintiff provides,” DuBois said.
The judge reasoned that the agency’s efforts did not adequately address the third component of Cozen O’Connor’s FOIA request: criteria that the OFAC uses to grant licenses to applicants.
“Defendant‘s search terms instead focus only on plaintiff‘s first two requests covering defendant‘s procedures and policies for reviewing applications,” DuBois said. “Consequently, the court concludes that, viewed in the light most favorable to defendant, the record leaves no genuine issue of material fact that the search terms used by the defendant were inadequate.”
DuBois summed up the case, noting, “Taken as whole, the record in this case—including the scope of defendant‘s search, the terms used in that search, and the indications of overlooked materials—shows there is no genuine issue of material fact that defendant‘s search was inadequate. Defendant failed to search beyond a single division or use search terms responsive to each of plaintiff‘s requests, and the ‘positive indications of overlooked materials’ support plaintiff‘s contention that defendant‘s search was inadequate.”