ADMINISTRATIVE LAW
United States Court of Appeals, Ninth Circuit (2022)
Robert Bulka
In Inter-Cooperative Exchange v. United States Department of Commerce, 36 F.4th 905 (9th Cir. 2022), the Ninth Circuit held that an agency’s response to a Freedom of Information Act (FOIA) request is inadequate where it chooses only three search terms which together are not reasonably calculated to uncover all responsive documents. (Id. at 908). A cooperative of Alaskan crab fishers filed a FOIA request with the National Oceanic and Atmospheric Administration (NOAA) seeking an explanation about the North Pacific Fishery Management Council’s (NPFMC) decision to not allow arbitrators in its crab price negotiation arbitration system to consider a 2014 Alaskan minimum wage hike. (Id. at 909). Before the request was filed, a voting member of the NPFMC indicated in an email to an arbitrator that, contrary to the NPFMC’s official decision, arbitrators could take the effect of minimum wage into account. (Id.). As a result, the cooperative specified in its FOIA request that it sought communications and documents concerning (1) interpreting or applying the arbitration system and (2) the 2014 minimum wage increase. (Id.). In response, the government produced documents, but its search log indicated the only search terms it used were “binding arbitration,” “arbitration,” and “crab.” (Id.). On appeal, the cooperative argued that the search terms were inadequate because they did not cover the piece of the FOIA request about the Alaska minimum wage hike, and the terms were not even sufficiently broad to uncover all documents relevant to the crab arbitration system. (Id. at 912). The Ninth Circuit reversed the lower court’s decision to grant the government summary judgment, reasoning that the NOAA’s chosen search terms were not reasonably calculated to uncover all responsive documents, as NOAA presented no evidence that the three search terms the government employed had anything to do with the Alaska minimum wage increase. (Id.). The court further reasoned that the search was inadequate even with respect to the other half of the FOIA request, as the NPFMC member neglected to use any of the chosen search terms in his substantive response to the arbitrator’s query about arbitration standards. (Id. at 913). Reversing the lower court’s decision, the Ninth Circuit held that an agency’s response to a FOIA request is inadequate where it chooses only three search terms which together are not reasonably calculated to uncover all responsive documents. (Id. at 908).
