That said, FOIA does not require that plaintiffs state their requests for records with “technical precision.” Inst. for Just. v. Internal Revenue Serv., 941 F.3d 567, 572 (D.C. Cir. 2019). To the contrary, this Circuit's case law makes clear that agencies must construe FOIA requests “liberally.” Id. (quoting Nation Mag., Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)).
This Circuit has, however, considered the burden that production of requested documents would impose on an agency in determining whether an agency response was required. See, e.g., Am. Fed'n of Gov't Emps., 907 F.2d at 209 (finding a request unreasonably burdensome when it "would require the agency to locate, review, redact, and arrange for inspection a vast quantity of material"); see also Inst. for Justice v. I.R.S., 941 F.3d 567, 570 (D.C. Cir. 2019) (noting that agencies must disclose all non-exempt records "subject, as always, to limits aimed at protecting agencies from undue burdens"); Long v. Immigration and Customs Enf't, 149 F. Supp. 3d 39, 55-56 (D.D.C. 2015) (collecting cases); but see Kwoka v. I.R.S., No. 17-cv-1157, 2018 WL 4681000, *5 (D.D.C. Sept. 18, 2018) (merely assuming that the labor necessary to "review[] an already-identified set of documents" could qualify as an unreasonable burden). Plaintiff filed the same memoranda at both ECF No. 13 and ECF No. 14.
See NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 161–62, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Although FOIA requires federal agencies to make "reasonable efforts to search for" the records requested, 5 U.S.C. § 552(a)(3)(C), it does not require agencies to create new records, Kissinger v. Reps. Comm. for Freedom of the Press , 445 U.S. 136, 151–52, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) ; see also Inst. for Just. v. Internal Revenue Serv. , 941 F.3d 567, 569 (D.C. Cir. 2019) ("FOIA imposes no duty on agencies to create new records in response to FOIA requests."); Yagman v. Pompeo , 868 F.3d 1075, 1080–81 (9th Cir. 2017) (explaining that an agency is under no duty to simply answer questions under FOIA). However, "the burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not [currently existing] agency records."
See NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 161–62, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Although FOIA requires federal agencies to make "reasonable efforts to search for" the records requested, 5 U.S.C. § 552(a)(3)(C), it does not require agencies to create new records, Kissinger v. Reps. Comm. for Freedom of the Press , 445 U.S. 136, 151–52, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) ; see also Inst. for Just. v. Internal Revenue Serv. , 941 F.3d 567, 569 (D.C. Cir. 2019) ("FOIA imposes no duty on agencies to create new records in response to FOIA requests."); Yagman v. Pompeo , 868 F.3d 1075, 1080–81 (9th Cir. 2017) (explaining that an agency is under no duty to simply answer questions under FOIA). However, "the burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not [currently existing] agency records."
Accordingly, in 1996, Congress enacted the Electronic Freedom of Information Act Amendments ("E-FOIA"), Pub. L. No. 104-231, 110 Stat. 3048 (1996), which "codified a principle already established" by federal courts, i.e. , that " ‘the full disclosure policies of the FOIA’ " pertain as much to records created or stored electronically as to those documented on paper. Ctr. for Investigative Reporting v. DOJ , 14 F.4th 916, 938 (9th Cir. 2021) (quoting Institute for Just. v. IRS , 941 F.3d 567, 571 (D.C. Cir. 2019) ); see S. REP. NO. 104-272, at 29 (1996) (stating that "[a]s a general rule, information maintained in electronic form should be no less subject to the FOIA than information maintained in conventional paper record form"). Toward this end, E-FOIA describes a disclosable agency "record" as "any information that would be an agency record subject to the requirements of [ 5 U.S.C. § 552 ] when maintained by an agency in any format, including an electronic format." 5 U.S.C. § 552(f)(2)(A).
Despite its seemingly boundless breadth, FOIA still "protect[s] agencies from undue burdens." Inst. for Just. v. IRS, 941 F.3d 567, 570 (D.C. Cir. 2019).
5 U.S.C. § 552(a)(3)(A). In accord with this textual emphasis on reasonableness, an agency determining the scope of a FOIA request and the concomitant scope of its obligation to search for and produce potentially responsive records "'has a duty to construe a FOIA request liberally,'" Inst. for Justice v. IRS, 941 F.3d 567, 572 (D.C. Cir. 2019) (quoting Nation Mag., Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)), and to "read FOIA requests 'as drafted,'" Machado Amadis, 971 F.3d at 370 (quoting Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984)); see also People for the Ethical Treatment of Animals v. Nat'l Insts. of Health, 745 F.3d 535, 540 (D.C. Cir. 2014). At the same time, "agencies are not obligated to search 'beyond the four corners of the request,'" as defined by the requester's description of the records sought, "'nor are they required to divine a requester's intent.'"
Courts evaluate both the scope of the FOIA request and the adequacy of the agency's search for responsive records de novo. 5 U.S.C. § 552(a)(4)(B); see also, e.g., DiBacco I, 795 F.3d at 188 (adequacy of search reviewed de novo); Dillon v. Dep't of Justice, 444 F. Supp. 3d 67, 84 (D.D.C. 2020) (scope of request reviewed de novo); Conservation Force v. Ashe, 979 F. Supp. 2d 90, 97 (D.D.C. 2013) (same). In defining the description of the records sought and the scope of the concomitant search, "an agency 'has a duty to construe a FOIA request liberally,'" Inst. for Justice v. IRS, 941 F.3d 567, 572 (D.C. Cir. 2019) (quoting Nation Mag., 71 F.3d at 890), and to "read FOIA requests 'as drafted,'" Machado Amadis v. Dep't of State, 971 F.3d 364, 370 (D.C. Cir. 2020) (quoting Millerv. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984)); see also People for the Ethical Treatment of Animals v. Nat'l Insts. of Health, 745 F.3d 535, 540 (D.C. Cir. 2014). At the same time, "agencies are not obligated to search 'beyond the four corners of the request,'" as defined by the requester's description of the records sought, "'nor are they required to divine a requester's intent.'"
We must draw all reasonable inferences in Dr. Shapiro’s favor and can rule for the FBI only if there is no material issue of fact in dispute. See Inst. for Justice v. IRS , 941 F.3d 567, 569 (D.C. Cir. 2019). As the FBI did not sufficiently explain its determinations, we reverse the district court’s contrary ruling, vacate the decision in part and remand for further proceedings.
To use Plaintiffs' analogy, the request “pointed the agency to the specific filing cabinet where the records are held.” Pls.' Cross-MSJ at 11; Inst. for Just. v. IRS, 941 F.3d 567, 571 (D.C. Cir. 2019) (collecting sources illustrating that this Circuit applies standard FOIA principles to paper records and electronic databases alike in evaluating the adequacy of an agency's search).