Cozen complains that Treasury has not supplied it with documents relating to entities that were listed on its request but were not designated until after the request was made. Treasury has no obligation to produce documents that were not responsive at the time the request was made. See Bonner v. U.S. Dep’t of State, 289 U.S. App. D.C. 56, 928 F.2d 1148, 1152 (D.C. Cir. 1991).
An agency does not have a continuing duty to update its previous response to a FOIA request. McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1103 (D.C. Cir. 1983). A document’s status is determined at the cut-off date. Bonner, 928 F.2d at 1153. A subsequent decision that changes the status of the document does not render it improperly withheld. Id. This is consistent with the notion that an agency is not required to produce documents that were exempt at the cut-off date but subsequently became nonexempt after the agency fully responded to the FOIA request. See Ashfar v. Dep’t of State, 226 U.S. App. D.C. 388, 702 F.2d 1125, 1137 n.18 (D.C. Cir. 1983) (noting that although the government declassified requested documents after the cut-off date, remanding the case to take into account that change would be contrary to FOIA’s goal of speedy and final resolution of FOIA requests); McGehee, 697 F.2d at 1103. In these circumstances, the requester may submit another FOIA request. Bonner, 928 F. 2d at 1153.
An agency is expected, however, to update the FOIA request when it has improperly withheld information in its prior responses or has not responded fully to the FOIA request. See id. An inadequate search renders the initial cut-off date as suspect. Dayton Newspaper Inc. v. Dep’t of Veterans Affairs, 510 F. Supp. 2d 441, 452 (S.D. Ohio 2007). Therefore, when a search has been found to be inadequate and another search must be conducted, the date of the supplemental search can serve as the cut-off date. Id. at 451; Wilderness Soc’y v. U.S. Bureau of Land Mgmt, No. 01-2210, 2003 WL 255971, at *7 n. 18 (D.D.C. 2003).
Cozen O’Connor v. United States Dep’t of Treasury, 2008 U.S. Dist. LEXIS 97941 (December 3, 2008, Savage, J.)(emphases supplied).