D.C. District Rules USPTO FOIA Search Adequate

Yesterday, Judge Chris Cooper issued a decision, Lantz v. United States, No. 17-cv-940 (CRC), 2018 U.S. Dist. LEXIS 127305 (D.D.C. July 31, 2018) granting the United States Patent and Trademark Office's motion for summary judgment and denying the plaintiff's summary judgment motion. James Lantz contended that the USPTO's response to his FOIA request was inadequate.

The USPTO withheld some documents pursuant to FOIA Exemption 5, which permits the withholding of documents that would be privileged in litigation. The Court cited Brayton v. Office of U.S. Trade Rep., 641 F.3d 521,527, 395 U.S. App. D.C. 155 (D.C. Cir. 2011) for its position that challenges to the adequacy of searches in response to FOIA requests and the justification of FOIA exemptions be decided by summary judgment motions. Another D.C. Circuit decision held that an agency does not have to search all of its records, only those likely to include responsive documents. Oglesbyv. Dep't of the Army, 920 F.2d 57, 68, 287 U.S. App.D.C. 126 (D.C. Cir. 1990).

Judge Cooper rejected Lantz's contention that the search was inadequate because it did not find certain emails he knows from an independent source exist. He cited to Iturralde v. Comptroller of Currency, 315 F.3d 311, 315, 354 U.S. App. D.C. 230 (D.C. Cir. 2003) for the position that the adequacy of the search should be evaluated by the nature of the methods used not the actual results.

Lantz also objected to the USPTO searching for just last names, and not first names. Judge Cooper dismissed this because emails using only the first name of individuals were likely to be found by searches for other key phrases. It also rejected its argument that searching only relevant Outlook folders was inadequate, because, "employees who conducted searches had access to all of their emails through Microsoft Outlook,regardless of whether the emails were stored on the computer's hard drive, the agency network, or cloud based storage." Lantz, 2018 U.S. Dist. LEXIS 127305, at *8. Further Judge Cooper did not believe that the fact that 39 employees sent or received responsive emails but only 11 employees searched for emails was an indication that the search was inadequate. "[T]he fact that a name appears on an email chain—i.e., the mere fact that the individual received the email—does not suggest that the person is likely to hold additional responsive emails. " Id. at 9.

The Court also rejected Lantz's objection to the USPTO's reliance on FOIA Exemption 5. The USPTO's boilerplate explanations for why certain documents would be privileged were sufficient. "While Lantz is correct that USPTO's justifications are generic and repetitious, it does not follow that they are inadequate. The very purpose of a Vaughn index is to allow the summarization of records without disclosing their content; some amount of boilerplate is to be expected." Id. at 11. The sender, recipient, and subject metadata along with the generic invocations of privilege were enough for the Vaughn index to be adequate.