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Gallace v. U.S. Department of Agriculture

January 17, 2003

MARJORIE GALLACE, PLAINTIFF,
v.
U.S. DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Currently before the Court are the U.S. Department of Agriculture's ("USDA") Motion for Summary Judgment, Ms. Marjorie Gallace's Opposition Brief, and USDA's Reply Brief. The underlying matter involves Ms. Gallace's request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., for USDA records"dated from January 1, 1993, to the May 3, 1993, [Cooperative Research and Development Agreement] between Delta & Pine Land and Agricultural Research Service." Defendant's Ex. A. Dissatisfied with the documents she received from USDA and the scope of USDA's efforts to locate additional responsive documents, Ms. Gallace filed a lawsuit in this Court to obtain a broader search. Upon consideration of the parties' submissions and the entire record, the Court will grant USDA's Motion for Summary Judgment in part and deny it in part.

I. BACKGROUND

Ms. Gallace's FOIA request arose out of her disagreement with a seed-sterilization project conducted by the Agricultural Research Service ("ARS") and a private company, Delta & Pine Land ("D&PL").*fn1 After conducting a spirited correspondence with various government officials in 1999 and 2000, on September 2, 2000, she submitted"a formal request for records (letters, memorandums, minutes of meetings) dated from January 1, 1993, to the May 3, 1993, CRADA between Delta & Pine Land and Agricultural Research Service." Id. The "CRADA" referred to a Cooperative Research and Development Agreement between ARS and D&PL, the purpose of which was to develop infertile cotton seed as a varietal protection device.

In response to Ms. Gallace's September 2, 2000, request for records, USDA's FOIA Officer initiated a search for responsive records. First, the FOIA Officer recognized that she had previously gathered materials relating to the CRADA for other FOIA requesters; she located and reviewed those documents from her own office files. Next, she consulted with Dr. Melvin Oliver, the Cropping Systems Research Laboratory scientist who was involved in the development of cotton seed sterilization research and who served as the Authorized Departmental Officer's Designated Representative on the project. Dr. Oliver had been responsible for the administration and supervision of the CRADA. Dr. Oliver suggested that she also contact the offices of two other ARS employees: Dr. Norma Trolinder, a former ARS scientist who was involved in seed sterilization research, and Dr. Jerry Quisenberry, the former Laboratory Director.

The FOIA Officer sent written memoranda and Ms. Gallace's letter to Drs. Oliver and Quisenberry, asking them to search for responsive documents and notifying them of the documents already located in her office. Dr. Oliver responded by telephone that he could not find any additional responsive documents. Dr. Quisenberry sent back a fax with the message,"Dr. Oliver will have all the information." Defendant's Motion for Summary Judgment, Declaration of Valerie Herberger ("1st Herberger Decl."), ¶ 9 and Ex. D. In addition, the FOIA Officer consulted with Dr. Trolinder's former assistant and learned that Dr. Trolinder had resigned from ARS in September of 1994 and that all of her files had been destroyed sometime around May of 1999, when her former department moved to a new building and it was determined that her files were no longer needed.

The FOIA Officer also forwarded a copy of Ms. Gallace's request and the list of located documents to Ms. Diana Blalock, the current Technology Licensing Coordinator in the Office of Technology Transfer ("OTT") who has responsibility for negotiating licenses for inventions and preparing the license agreements. On September 25, 2000, Ms. Blalock responded by telephone that she had searched her files, as well as the files of Dr. D. E. Zimmer, a Technology Transfer Coordinator, and Mr. Randy Deck, a Patent Advisor, and had found no additional responsive documents.

Thereafter, by letter dated October 10, 2000, ARS released to Ms. Gallace thirty-one pages of responsive records without excision. Another nine pages were released, from which ARS redacted certain information under Exemption 4 of FOIA, which pertains to"trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential."*fn2 5 U.S.C. § 552(b)(4). In its cover letter, ARS told Ms. Gallace that searches were performed by the Authorized Departmental Officer's Designated Representative ("ADODR") and by the Patent Licensing Specialist in the OTT. ARS also indicated that"[n]o minutes were taken at meetings held[;] therefore, no documents exist in the files maintained by the ADODR or OTT." 1st Herberger Decl. ¶ 13; Defendant's Ex. E.

Dissatisfied with this response, Ms. Gallace appealed on October 16, 2000, because the responsive records did not include minutes of meetings or notes taken at meetings held between ARS and D&PL. By memorandum dated October 23, 2000, the FOIA Officer requested again that Dr. Oliver and Ms. Blalock search their files; each responded on October 24th that they had found no responsive documents. Dr. Oliver did forward three documents that he had used in preparation for 1992 presentations to D&PL employees concerning seed sterilization, but the FOIA Officer determined that these documents were outside the time period listed in Ms. Gallace's FOIA request.

In addition, the FOIA Officer contacted Willard J. Phelps, the Authorized Departmental Officer who has authority to enter into, administer, and terminate CRADAs. Since he was not involved in initial contacts or detailed negotiations, Mr. Phelps reported that he had no notes or minutes of meetings pertaining to the CRADA.

Therefore, in a November 9, 2000, letter to Mrs. Gallace, the ARS Administrator affirmed USDA's initial action on her FOIA request and told her that no more meeting minutes or notes from meetings, dated within the time period specified in her request, could be located relating to the CRADA.

Ms. Gallace initiated this lawsuit on June 4, 2001, requesting an order to require USDA to disclose the names of current and former employees who attended meetings and held discussions with D&PL and to search their files for notes of meetings and discussions leading to the CRADA. In addition, Ms. Gallace seeks an order requiring USDA to release all such documents and to pay for the cost of this lawsuit.

By letter dated August 23, 2001, ARS wrote to Ms. Gallace in an effort to resolve this case. It thereby released the three 1992 documents that Dr. Oliver had located, which had initially been determined to be outside the scope of Ms. Gallace's FOIA request. ARS also further detailed the scope of its search and agreed to make available the 1997 amendment to the CRADA, which was also outside the scope of Ms. Gallace's FOIA request. By letter dated September 7, 2001, ARS provided an even more detailed description of its search and ...


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