IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA KAREN L. HOFFMANN, : Plaintiff, : CIVIL ACTION : No. 20-6427 v. : : U.S. CUSTOMS AND : BORDER PROTECTION, : Defendant. : MEMORANDUM September 10, 2025 Anita B. Brody, J. On February 21, 2019, Plaintiff Karen L. Hoffmann submitted a request under the Freedom of Information Act, 5 U.S.C. §§ 552, et seq. (“FOIA”) to the U.S. Customs and Border Protection (the “CBP” or “the
Agency”) seeking records of communications involving CBP personnel at the Eagle Pass Port of Entry along the southern border. Her request
encompassed the period beginning January 1, 2019 and concerned suspected efforts to coordinate the movement of migrants on the
Mexican side of the border. She brought this civil action to compel the Agency’s response to her request. The CBP subsequently searched its records and produced
documents to Hoffmann. It then sought summary judgment, as did Plaintiff in a cross-motion. On June 28, 2023, I denied the CBP
motion, granted Hoffmann’s motion in part, and ordered the Agency to take particular steps to determine the existence of, and to produce as
appropriate, additional documents responsive to the FOIA request. ECF Nos. 50, 51. The CBP set out its efforts to do so in subsequent status reports accompanied by declarations from CBP personnel.
The CBP now renews its motion for summary judgment, which Hoffmann opposes. ECF Nos. 70, 73, 76. For the reasons set forth
below, I will grant summary judgment to the Agency.
I. Undisputed Factual and Procedural Background1 Plaintiff directed a FOIA request to the CBP on February 21, 2019
1 The CBP did not file a separate Statement of Undisputed Material Facts in conjunction with the current motion. Instead, it included an “Undisputed Factual Background” section in its brief in support of its motion. ECF No. 70, Mem. of Law at 2-6. Plaintiff did not dispute the presentation of the facts in the CBP’s brief. The facts relevant to the summary judgment question at this stage are sufficiently clear. The absence of a separate statement of undisputed facts has not impaired the seeking:
[1] Any and all correspondence and/or record of communications between CBP agents or employees and Hector Menchaca; [2] Any and all correspondence and/or record of communications between CBP agents or employees and the telephone number +52-878- 703-2497. [3] Any and all communications relating to the capacity of CBP to accept asylum seekers for processing at the Eagle Pass POE [Port of Entry] from January 1, 2019 to present. [4] Any and all internal or external CBP communications regarding a list of migrants awaiting their turn to present themselves at the Eagle Pass POE from January 1, 2019 to present. [5] Any and all internal or external CBP communications regarding migrants detained in Piedras Negras, Mexico, from January 1, 2019 to present. Compl. at ¶ 12, ECF No. 1. The CBP FOIA Division subsequently searched for responsive information from the Del Rio, Texas sector of the Agency, including a search of email accounts in the cbp.dhs.gov domain. At Plaintiff’s request, the Agency also searched for records Court’s review of this motion. from its Office of Field Operations, including a manual search of
records, and produced additional material in February and July 2022. See Decl. of Patrick A. Howard, July 27, 2022, ¶¶ 13-14, MSJ Ex. 1,
ECF No. 70-1. In subsequent communications about the Agency’s production,
Plaintiff suggested that mobile devices of Eagle Pass Port Director Paul Del Rincon and Assistant Port Director Pete Macias were possible repositories of responsive records, specifically in the “WhatsApp”
mobile application. See, e.g., Undated E-mail from K. Hoffmann to E. Gill, ECF No. 37-4. The Agency consulted its cloud-based mobile
phone management system and confirmed in April 2021 that WhatsApp was installed on the devices that Del Rincon and Macias were using at
that time, i.e., in April 2021.2 Decl. of John J. MacNeil, Oct. 7, 2021, at
2 The technology did not have the capability to determine if WhatsApp had been installed on previous devices that were not then in use, nor how the application was used, if at all. The Agency’s records indicated that the devices with WhatsApp that Del Rincon and Macias were then using had been assigned to them in 2020, which meant that they were not the devices Del Rincon or Macias would have had access to during the period of the FOIA request. ¶ 3, MSJ Ex. 2, ECF No. 70-2. The following month, at the direction of
the Agency, supervisors of Del Rincon and Macias inspected their mobile devices but found no responsive WhatsApp messages. See
Decl. of David Garcia, June 22, 2021, MSJ Ex. 3, ECF No. 70-3 (concerning Del Rincon phone); Decl. of Bob B. Parker, June 23, 2021,
MSJ Ex. 4, ECF No. 70-4 (concerning Macias phone). The parties filed cross-motions for summary judgment in 2022, which I resolved on June 28, 2023. ECF Nos. 35, 37, 50-51. I
determined that the Agency’s response as of that time was inadequate as to: (1) the search terms CBP used in its review of email accounts in the
cbp.dhs.gov domain; and (2) its search of mobile devices used by Del Rincon and Macias. ECF No. 50 at 42-43. I ordered injunctive relief
in two areas. First, the CBP had to conduct a revised review of all email accounts in the cbp.dhs.gov domain using search terms that had
been proposed in the summary judgment briefing. I also required the parties to meet and confer if the revised search returned an
overwhelming number of potentially responsive records. Second, the CBP had to conduct a revised search for responsive records from active and inactive mobile devices used by Del Rincon and Macias. The
search was to encompass WhatsApp messages and data, text messages, and call logs. I required the Agency to submit a declaration from a
forensic data recovery specialist about the searches of the mobile devices and efforts taken to recover any lost data or to verify that all data
from inactive devices was transferred to their active devices. ECF No. 51.3
A. The e-mail searches Following that ruling, the CBP conducted additional searches of
the cbp.dhs.gov email accounts, employing search terms that Plaintiff had specified. To gauge the volume of the response, it began by running the search as to flag emails transmitted on two random dates
within the relevant period. This initial search yielded 271,948 records. The Agency paused the search, as it estimated that six to seven million
3 As set out in the Memorandum addressing the cross motions, I could not determine from the record at that time whether the devices believed to have been used by Del Rincon and Macias during the relevant time – which reportedly had been wiped or gone missing – contained responsive records, or whether any responsive records they once contained might be available elsewhere. ECF No. 50 at 40. pages of records would have been generated from a search of the entire
period between January 1 and February 21, 2019. The Agency relayed to Hoffmann information about what it did and did not find in that initial
search. It stated its objection that the review of such a large output constituted an undue burden, given what appeared to be the unlikely
prospect of finding any records that were sought in the FOIA request and that had not already been produced. The Agency then applied another search term suggested by Hoffmann to limit the results, but that
revised search yielded 124,793 pages. The Agency again conveyed this information to Hoffmann, following which the parties conferred about
the search results. Decl. of Patrick A. Howard, Nov. 7, 2024, ¶ 10, MSJ Ex. 10, ECF No. 70-10. The CBP produced 650 additional pages of
separate documents on February 27, 2024. Id., ¶ 6. B. The mobile phone searches
A Senior Attorney in the Office of Chief Counsel, Diane C. Bustos, oversaw the Agency’s response to my 2023 Order regarding the
collection of information about the mobile and inactive phones of Del Rincon and Macias. She arranged for a digital forensic analyst to examine all active and inactive mobile devices known to have been
assigned to Del Rincon and Macias since January 2019 that were still within the possession of the Agency. The forensic expert searched the
devices using keyword searches provided by counsel. She uncovered no records responsive to the FOIA request. Decl. of Anniebeth
Labiosa, Mar. 18, 2024, ¶¶ 3-21, MSJ Ex. 8, ECF No. 70-8. Attorney Bustos and the property manager responsible for the division that included the Eagle Pass Port of Entry attempted without
success to locate additional devices that Del Rincon and Macias may have possessed in early 2019. Most recently, they discovered that Del
Rincon may have possessed a Samsung phone during the relevant time period. The Agency could determine that a Samsung phone had been
assigned to Del Rincon on August 6, 2018. It was marked as “returned” on November 16, 2021 and marked “destroyed” on February 18, 2022.
Decl. of Diane Bustos, Apr. 18, 2024, ¶ 6, MSJ Ex. 9, ECF 70-9.4 The
4 The period of time in which Del Rincon actually used that Samsung device, if at all, is not clear from the record. Two sources of information reflect that Del Rincon was using iPhones in 2020 and 2021, not a Samsung device, even as the Samsung was still recorded as Agency has stated that deactivated CBP phones are destroyed in an
effort to protect against the unintended release of national security and/or sensitive law enforcement information. Decl. of Diane C.
Bustos, Mar. 18, 2024, ¶¶ 12-13, MSJ Ex. 6, ECF No. 70-6. The Agency’s property logs did not document a Samsung phone
having been provided to Macias. The local property manager inquired of the Agency’s cellular service provider, AT&T, as well as the manufacturer, Samsung, in an effort to obtain any information that might
help him locate such a device within the Agency’s inventory, but to no avail. Based on what Agency staff learned from AT&T, it reported to
Hoffmann that Macias’s cell phone number was associated with a particular Samsung phone from June 2018 through December 2019 but
that it could not locate the actual device to search it for any records.
“assigned” to him. See Decl. of John J. MacNeil, Oct. 7, 2021, at ¶¶ 4, 7, MSJ Ex. 2, ECF No. 70-2 (explaining that the Agency’s mobile telephone management system reflected that Del Rincon was using an iPhone Series 8 device when he was upgraded to an iPhone Series XR device on February 7, 2020); Decl. of David Garcia, June 22, 2021, MSJ Ex. 3, ECF No. 70-3 (reporting on May 5, 2021 visual inspection of cellular phone then used by Del Rincon, which was described as an “iPhone XR”). Upon further inquiry of AT&T, it learned that there had been “no
activity” on the device except in June 2020. Decl. of Alejo Gaudea, Mar. 18, 2024, ¶¶ 7-9, MSJ Ex. 7, ECF No. 70-7; Decl. of Diane Bustos,
Apr. 18, 2024, ¶ 8, MSJ Ex. 9, ECF No. 70-9. This rendered it an unlikely repository of documents responsive to the FOIA request.
Both Del Rincon and Macias declare that they have no independent recollection of what mobile device they used in the January-February 2019 timeframe. They both describe a process in which IT or property
personnel from the Agency would arrange for the replacement of their mobile devices on a periodic basis for upgrades or to address a defect.
Neither of them was responsible for keeping track of or logging their Agency property in this regard. Decl. of Paul Del Rincon, Nov. 7,
2024, ¶¶ 2, 4, 5, MSJ Ex. 13, ECF No. 70-13; Decl. of Pete Macias (unsigned), Nov. 7, 2024, ¶¶ 2-5, MSJ Ex. 14, ECF No. 70-14. Despite
searching its local property records thoroughly, the Agency was unable to account for the loss of the Samsung phone that was associated with
Macias’s phone number. See Decl. of Alejo Gaudea, Mar. 18, 2024, ¶¶ 7-8, 11, MSJ Ex. 7, ECF No. 70-7. Plaintiff requested an opportunity to depose Del Rincon and
Macias and subpoena cellular service providers in light of the unavailability of some of these mobile devices for review. Pl.’s Stmt.
Re: Unresolved Issues, June 3, 2024, ECF No. 63. She argued that the testimony of Del Rincon and Macias “concerning their communications
and communication devices” constituted “sources of evidence and responsive information” to which she was entitled. Id. at 6. I did not grant her request to permit this discovery and instead set a deadline for
the Agency to file its summary judgment motion. ECF No. 65.
II. Legal Standards FOIA grants the pu blic access to government agencies by requiring
agencies to make records available upon a request that “reasonably describes such records.” Manna v. U.S. Dep’t of Justice, 51 F.3d 1158,
1163 (3d Cir. 1995); 5 U.S.C. § 552(a)(3). Upon receipt of a FOIA request, an agency must conduct a reasonable search and produce all
responsive records not otherwise protected from production under one of the statute’s enumerated exemptions. See, e.g., Abdelfattah v. U.S. Dep’t of Homeland Security, 488 F.3d 178, 182 (3d Cir. 2007). An
agency “fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all
relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations omitted). Agencies
responding to FOIA requests must “make more than perfunctory searches and, indeed, follow through on obvious leads to discover requested documents.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d
321, 325 (D.C. Cir. 1999). The Court may grant summary judgment to a government agency
as the moving party if it demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.
Fed. R. Civ. Proc. 56(a). Summary judgment may be based on an agency’s supporting declaration if it is relatively detailed and
nonconclusory. Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978). Before granting summary judgment in favor of the government, the
court must determine that “the materials submitted by the agency satisfactorily demonstrate the apparent adequacy of the search conducted”; summary judgment would “usually be inappropriate” if “the
agency’s responses raise serious doubts as to the completeness of the search or are for some other reason unsatisfactory[.]” Perry v. Block,
684 F.2d 121, 127 (D.C. Cir. 1982). See also Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994) (noting that summary judgment is not
appropriate where the agency affidavits contain “merely conclusory statements”). An agency’s claim for summary judgment can be “weaken[ed]” by a failure to find a record that once existed, “coupled
with a conclusory affidavit about the methodology of the search.” Aguiar v. D.E.A., 865 F.3d 730, 739 (D.C. Cir. 2017). See also Perry,
684 F.2d at 127 (observing that affidavits that explain scope and method of search in reasonable detail will suffice “in the absence of
countervailing evidence or apparent inconsistency of proof”).
III. Discussion Hoffmann’s FOIA request of the Agency sought correspondence
and records of communications between CBP agents and a particular individual believed to have been operating in Piedras Negras, Mexico and concerning the capacity of the CBP to accept asylum seekers for
processing at the Eagle Pass Port of Entry. At the prior summary judgment stage, I determined that the Agency’s searches had been
unsatisfactory in two areas. The Agency undertook additional review in response to my order and prepared further declarations about its efforts.
Its renewed motion for summary judgment seeks to resolve concerns about the reasonableness of the search that followed my last order. The Agency urges me to find that it has demonstrated beyond material doubt
that its searches were reasonably calculated to uncover all available responsive documents.
Plaintiff does not dispute any factual statement that was presented in the Agency’s renewed motion. But she contends that genuine issues
of material fact exist, precluding judgment in the Agency’s favor, “[b]ecause the agency has repeatedly failed to meet its burden of
showing it complied with FOIA in tasking searches responsive to Plaintiff’s request[.]” ECF No. 73 at 8.
A. The search of email accounts for responsive records The first impediment to summary judgment when I previously considered the Agency’s request was its inadequate search of email
accounts. My prior Order directed the Agency to run a search of its email
records using particular search terms. Agency personnel did so, beginning with a sample search for email messages generated on two
random dates within the relevant time frame. They then reviewed the results, which were large, and determined that: (1) the same messages and documents often occurred repeatedly; (2) some “hits” were Excel
spreadsheets that resulted in an excessive number of pages when formatted for production; and (3) Hector Menchaca’s name did not
appear in any of the records that resulted from the search, although the name of an Agency employee with the same surname often came up as a
false positive result. Agency personnel communicated with Plaintiff about the results and the documents that came up in the search. Supp.
Decl. of Patrick A. Howard, Nov. 7, 2024, MSJ Ex. 10, ECF No. 70-10. The Agency met and conferred with Plaintiff about limitations that
might yield more targeted results than the millions of pages predicted. The Agency also produced 650 additional pages of documents that Plaintiff previously identified as having been missing from earlier
productions. Id. As to this aspect of the Agency’s motion, Plaintiff objects that the
Agency’s “established pattern of non-compliance” with its FOIA obligations “demonstrates that the adequacy of its efforts has been
unreasonable.” ECF No. 73 at 8. She notes that the Agency does not purport to have produced all of the documents that came up in the email search and that the Agency took the position that the number of records
that would need to be reviewed for responsiveness was still excessively voluminous. She complains that the CBP is “hiding behind a problem
of its own creation.” Id. These objections do not preclude summary judgment.
My prior Order required the Agency to conduct a revised search of all email accounts in the cbp.dhs.gov domain using the search terms
proposed by Plaintiff. Anticipating that the revised search might return “an overwhelming number of potentially responsive records,” I required
that the parties meet about how to refine the search so that production would not be an undue burden. See ECF No. 51 at 2-3. That process occurred. And, as I also required, the Agency provided a declaration
describing the revised email search. That declaration – from the Agency’s long-time FOIA Division Branch Chief – confirms that the
Agency followed all reasonable leads and did not withhold production of any responsive records. See Howard Supp. Decl., MSJ Ex. 10, ECF
No. 70-10. The Agency tested Plaintiff’s search terms on a sample of email messages – by limiting the scope to only two days of the relevant period – and learned that the search was effectively unworkable. Even
when an additional limiting term was added, the search yielded 124 documents totaling 124,793 pages. And in its evaluative review of the
pulled records, the Agency’s FOIA staff found no records that referred to Hector Menchaca or that included the specific terms most central to
Plaintiff’s inquiry. Id. at ¶ 8. Its approach to searching its email server and reviewing pulled records to determine their responsiveness to the
FOIA request has been reasonable under the circumstances. Neither FOIA nor my prior Order required the CBP to carry out a
search that would constitute an undue burden. The Agency has acted in accordance with the Order. It is entitled to summary judgment as to its search for responsive records in its email domain.
B. The search of mobile devices for responsive records The other impediment to summary judgment when I previously
considered the Agency’s request was its review of mobile devices used during the relevant period by two particular CBP officials: Eagle Pass
Port Director Paul Del Rincon and Assistant Port Director Pete Macias. My remedial order focused on the possibility of the recovery of any data
that was lost or wiped from mobile devices they may have used during the relevant time for communications encompassed by the FOIA
request. I required the Agency to employ a qualified information technology or forensic data recovery specialist to undertake a revised search for responsive records from both the active devices of Del Rincon
and Macias and any available inactive devices. I required the specialist and appropriate Agency personnel to account for the loss of records and
devices and to detail the recovery efforts in supporting declarations. The revised search for responsive records from the devices was to
include WhatsApp messages and any other responsive WhatsApp data. ECF No. 51 at 3-4. The Agency performed the forensic searches that I ordered but
ultimately found no additional responsive records. The question that remains is whether the Agency has shown in sufficient detail that its
methodology for searching the mobile devices of Del Rincon and Macias was adequate such that it may be granted summary judgment.
Plaintiff contends that it cannot be adequate where CBP admitted “that it destroyed the mobile phone device assigned to Port Director Del Rincon three years after Ms. Hoffmann’s FOIA request and then months after
her April 9, 2021 email directly raising the port directors’ devices as sources of responsive records.” ECF No. 73 at 5-6 (emphasis
removed). See also id. at 8 (noting that while CBP asserts that “it was not possible to conduct searches of” devices used by Del Rincon and
Macias, “[t]his statement boldly ignores the fact that it was possible to search these devices while they still existed”).
1. The search for responsive records on devices used by Del Rincon The summary judgment record reflects that Port Director Paul Del Rincon’s mobile devices were searched by the Agency for records encompassed by the FOIA request in the following manner:
• The Agency conducted a remote search using a cloud-based app in April 2021 that confirmed that WhatsApp was
installed on Del Rincon’s then-current device, an iPhone XR. • A supervisor visually inspected Del Rincon’s iPhone XR on
May 5, 2021 but no responsive records were found in the WhatsApp application.
• Various iPhones that had been issued by the Agency to Del Rincon were subjected to a forensic examination in February-
March 2024. With the exception of one iPhone that could not be accessed, the remaining devices could be reviewed.
Searches of those devices, using the search terms o provided by counsel and encompassing WhatsApp’s various functions, yielded no responsive records. None of the iPhones that were searched had been “in o use” during the early 2019 time period at issue. • During the relevant time period (January 1 – February 21, 2019), a Galaxy S-7 cell phone was assigned to Del Rincon,
but records reflect that the device was destroyed on February 18, 2022 and thus not available for the forensic inspection
that was ordered in June 2023 and conducted in February- March 2024.
• The iPhone that Del Rincon was actively using in February 2024 was examined by the forensic expert for any historic
records falling within the scope of the FOIA request, but none were found. 2. The search for responsive records on devices used by Macias
The summary judgment record reflects that Assistant Port Director Pete Macias’s mobile devices were searched by the Agency for records encompassed by the FOIA request in the following manner:
• The Agency conducted a remote search using a cloud-based
app in April 2021 that confirmed that WhatsApp was installed on Macias’s then-current device, an iPhone XR. • A supervisor visually inspected Macias’s iPhone XR on May 5, 2021 but no responsive records were found in the
WhatsApp application. • Various iPhones that the Agency issued to Macias were
subjected to a forensic examination. None of the iPhones that were searched had been “in use” during the time period
at issue. • Searches of iPhones used by Macias, using the search terms
provided by counsel and encompassing WhatsApp’s various functions, yielded no results. • The Agency contacted its cellular service provider and
learned that during the relevant time period (January 1 – February 21, 2019), a Samsung Galaxy S-7 cell phone was
associated with Macias’s phone number. The Agency searched for the device but could not locate it. No forensic
examination of that device was possible. • Upon further inquiry of its cellular service provider, the
Agency learned that cellular service was not activated on the Macias Samsung device except in June 2020.
• The iPhone that Macias was actively using in February 2024 was examined by the forensic expert for any historic records
falling within the scope of the FOIA request, but none were found.
3. Plaintiff’s objection to the adequacy of the search As noted above, the Agency conducted a physical review of active iPhones of Del Rincon and Macias and a forensic review of those
devices and any deactivated iPhones it could locate. It found no documents responsive to the FOIA request. The Agency admits that a
Samsung phone that was assigned to Del Rincon during the relevant time of early 2019 was destroyed in 2022. It also admits that its
property logs fail to account for the location or use of a different Samsung phone that was associated with Macias’s mobile number for a
period of time that overlapped with the relevant period. Plaintiff does not challenge the efforts of the forensic examiner to
uncover documents responsive to the FOIA request on the devices that were searched. Nor does she impeach the thoroughness of the property manager’s efforts to track a missing device assigned to Agency
personnel in his sector. Rather, Plaintiff contends that the search cannot have been reasonable where the Agency could not account for the
destruction of the Del Rincon device or the loss of the Macias device. She argues that any attempt by the CBP to demonstrate that it acted
reasonably in conducting its searches is precluded because, in her view, the Agency “violated the law in destroying the very sources of responsive records it was asked to search.” ECF No. 73 at 8. But the
Agency’s destruction of an inactive mobile phone that “it was asked to search” does not amount to a violation of law. And it does not preclude
the grant of summary judgment to the Agency after it has produced what it has available.
Courts agree that the destruction of records does not constitute a FOIA violation when the destruction was not undertaken to be
purposefully evasive of FOIA responsibilities. In Houser v. Department of Health & Human Services, 486 F. Supp.3d 104 (D.D.C.
2020), the Centers for Medicare and Medicaid Services failed to place a litigation hold on potentially responsive records after it received the plaintiff’s FOIA request. As a result, certain records were destroyed
and could not be provided to the plaintiff. The reviewing court, however, concluded that the agency’s searches for responsive records
were reasonable under the circumstances: The plaintiff has made no showing that CMS purposely destroyed documents in order to avoid having to release them, and nothing in the record of this case suggests that CMS’s error was willful or otherwise warrants further action by the Court. [Citation omitted.] Furthermore, “[i]f the agency is no longer in possession of the document, for a reason that is not itself suspect, then the agency is not improperly withholding that document and the court will not order the agency to take further action in order to produce it.” SafeCard Servs. [v. S.E.C.], 926 F.2d [1197,] 1201 [(D.C. Cir. 1991)] (emphasis added). Houser, 486 F. Supp.3d at 114-15. Similarly, in Minkovski v. U.S. Department of Treasury, 384 F. Supp.3d 244 (E.D.N.Y. 2019), the Eastern District of New York accepted that the destruction of records pursuant to ordinary practices did not undermine the adequacy of an agency’s searches. It also pointed to several other cases in which courts were presented with the circumstance that documents had been destroyed but FOIA obligations were deemed satisfied: See Conti v. U.S. Dep’t of Homeland Sec., No. 12- CV-5827, 2014 WL 1274517, at *140 (S.D.N.Y. Mar. 24, 2014) (finding that the Department of Homeland Security “has no obligation to preserve its records according to the rules of civil discovery”); Flowers v. I.R.S., 307 F. Supp.2d 60, 71 (D.D.C. 2004) (finding that the Internal Revenue Service conducted an adequate search for records by providing a “non-suspect reason for the destruction” of documents by submitting “published document-retention schedules”); Landmark Legal Found v. E.P.A., 272 F. Supp.2d 59, 66-67 (D.D.C. 2003) (“FOIA does not impose a document retention requirement on agencies. Even where an agency was obligated to retain a document and failed to do so, that failure would create neither responsibility under FOIA to reconstruct those documents nor liability for the lapse.”).
Minkovski, 384 F. Supp.3d at 253-54. At the circuit level, the Court of Appeals for the District of Columbia has similarly observed that: … in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA. In considering a challenge to an agency’s retrieval procedures, a reviewing court must thus determine whether the materials submitted by the agency satisfactorily demonstrate the apparent adequacy of the search conducted. Where the agency’s responses raise serious doubts as to the completeness of the search or are for some other reason unsatisfactory, summary judgment in the government’s favor would usually be inappropriate.”
Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). See also Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994) (noting that “[s]ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith” (citation
omitted)). Plaintiff has not presented sufficient evidence from which a
reasonable factfinder could conclude that the CBP either destroyed records responsive to the FOIA request to avoid producing them or that
its responses to her request (and this subsequent litigation) “raise serious doubts as to the completeness of” its search. Plaintiff believes that Del
Rincon and/or Macias used the WhatsApp application on mobile devices as a means of communication while allegedly managing the flow of asylum-seekers at the border in early 2019. It is unknown whether responsive records could have been produced from the absent Samsung
devices had they been examined by a forensic specialist. But there is nothing in the record to suggest that the Agency ever extracted any
records from Samsung devices associated with Del Rincon or Macias and then destroyed the records. Nor is there any evidence that the
Agency purposely destroyed or misplaced their Samsung devices in order to avoid a production of records. On the contrary, the Agency invested significant resources both in undertaking these searches,
including trying alternative paths to uncover any responsive records, and in preparing its responses. See, e.g., Decl. of Diane Bustos, Mar. 18,
2024, ¶¶ 4-8, 11-12, 14, MSJ Ex. 6, ECF No. 70-6 (recounting over 100 hours spent coordinating the location, searching, and review of active
and inactive mobile devices of Del Rincon and Macias). It affirmatively contacted third parties in order to ascertain if there were
any other leads it could pursue in order to determine whether there existed any records of WhatsApp communications in the relevant time.
See Decl. of Alejo Gaudea, Mar. 18, 2024, ¶ 10, MSJ Ex. 7, ECF No. 70-7 (documenting hours spent reviewing property logs and inquiring of cell phone service provider).
Plaintiff may be frustrated at the Agency’s apparent inability to conclusively identify which mobile devices Del Rincon and Macias may
have used while performing their duties in January and February 2019. But the Court cannot impute from the events that transpired as to the
Agency’s mobile phone recordkeeping and record review that the Agency’s search has been incomplete or that it has acted with bad faith in its response to Plaintiff’s FOIA request. The Agency complied with
my Order and has searched the current devices of Del Rincon and Macias for records responsive to the FOIA request – including any
WhatsApp messages, text messages, and call logs to the person and phone number identified in the request. It also searched all available
devices it possessed that were believed to have been used by Del Rincon or Macias at some point in the past that might have captured
communications from January and February 2019. There is nothing more the Agency can do. IV. CONCLUSION Litigation as to a FOIA request is generally resolved at summary
judgment. The CBP’s prior motion was filed at a time where some stones were left unturned, but it has now sufficiently answered as to its
search process. Defendant has satisfied its obligations under FOIA and this Court’s prior Order by conducting a search for responsive records in
the manner I directed and by making available to Plaintiff the responsive records in its possession. The Agency is entitled to summary judgment.
An appropriate order follows.