The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
The People for the Ethical Treatment of Animals ("PETA") filed this case under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the U.S. Department of Agriculture ("USDA"). PETA seeks release of (1) the redacted portions of documents related to the identity of inspectors who allegedly engaged in misconduct while inspecting a slaughterhouse operated by AgriProcessors, Inc. ("AgriProcessors"); (2) a CD recording of a witness's phone call to USDA regarding the tiger attack on performer Roy Horn; and (3) the redacted portion of affidavits naming the location where alleged Animal Welfare Act violations by Law Enforcement Military Ammunition Sales took place. PETA also alleges that USDA violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, through its alleged practice of withholding witness statements in their entirety instead of merely redacting the names of the witnesses. USDA filed a motion to dismiss or for summary judgment asserting that the information withheld was not subject to disclosure under FOIA and PETA has failed to state an APA claim. PETA filed a cross-motion for summary judgment. As explained below, the Court will grant in part and deny in part the parties' motions.
PETA is an animal protection organization dedicated to ending cruelty to animals. Am. Compl. ¶ 3. As part of its mission, PETA monitors USDA's enforcement activities and advocates for stronger protection for animals through enforcement of the Animal Welfare Act, 7 U.S.C. §§ 2131-2159, and the Humane Methods of Livestock Slaughter Act, 7 U.S.C. §§ 1901-1906. Id. ¶¶ 1 & 3. PETA regularly requests information from USDA regarding investigations and conveys this information to the public. Id. ¶ 4. In this action, PETA challenges the USDA's response to three FOIA requests.*fn1
First, on June 28, 2005, PETA submitted a FOIA request to Animal and Plant Health Inspection Service ("APHIS"), a component of USDA, seeking APHIS's final report concerning a white tiger's mauling of performer Roy Horn during the Las Vegas show "Siegfried and Roy." Am. Compl. ¶ 15; Def.'s Mem. of P. & A. in Supp. of Mot. to Dismiss or for Summ. J. ("Def.'s Mem.") Ex 1, Decl. of Lesia Banks ("Banks Decl.")*fn2 ¶ 8. On July 14, 2005, APHIS disclosed to PETA portions of the report. Am. Comp. ¶ 16; Banks Decl. ¶ 8. APHIS withheld several supporting affidavits, citing the personal privacy provisions set forth in FOIA Exemptions 6 and 7(C), 5 U.S.C. § 552(b)(6) & (7)(C). Am. Compl. ¶ 17. APHIS also withheld a CD recording of a telephone message from a witness regarding the tiger attack. Id.
Second, PETA submitted a FOIA request on August 15, 2005, seeking a copy of USDA's report of the investigation regarding the alleged violation of the Animal Welfare Act by Law Enforcement Military Ammunition Sales ("Le Mas"). Id. ¶ 19. PETA alleges that Le Mas, an ammunition distributor, shot and killed pigs to demonstrate the efficacy of its bullets to U.S. military and law enforcement agencies. Id. On January 12, 2006, USDA released responsive records but withheld two witness affidavits under FOIA Exemptions 5, 6, and 7(C), 5 U.S.C. § 552(b)(5), (6) & (7)(C). Id. ¶ 20; see also Banks Decl. ¶ 10.
Third, on October 26, 2005,*fn3 PETA submitted a FOIA request to the Office of Inspector General ("OIG"), USDA, seeking the OIG's report of the investigation of AgriProcessors related to alleged violations of the Humane Methods of Livestock Slaughter Act. Am. Compl. ¶ 22. OIG released some responsive records on February 28, 2006, but withheld thirteen witness statements, alleging they were exempt from disclosure under the Privacy Act, §§ 552a(j)(2) and 552a(k)(2). Id.
PETA appealed the partial denials of its four FOIA requests. Id. ¶¶14, 18, 21, 23. It did not receive a response within twenty days, and as a result, PETA filed this lawsuit on May 17, 2006. Id. ¶ 24. PETA then filed a two-count First Amended Complaint on June 15, 2006. In count one, PETA challenges the USDA's response to the FOIA requests described above. Id. ¶¶ 27-29.
In count two, PETA alleges a claim under the APA contending that USDA has an arbitrary practice or policy of withholding witness statements in their entirety, instead of releasing them with personal information redacted. Id. ¶¶ 30-31. PETA's First Amended Complaint seeks declaratory and injunctive relief.*fn4 Id., Prayer for Relief at 10.
Subsequently, on July 17, 2006, APHIS released the witness statements and affidavits relating to the tiger attack and the Le Mas ammunition testing described above, but redacted the names and personal identifying information pursuant to Exemptions 6 and 7(C). Def.'s Mem. Ex. 1, Banks Decl. ¶¶ 13-15; id. Ex. 2, Vaughn Index.*fn5 APHIS continued to withhold in its entirety the CD audio recording regarding the tiger attack. Def.'s Mem. Ex. 1, Banks Decl. ¶ 14. On July 14, 2006, OIG released the witness statements and report relating to the AgriProcessors investigation, but also redacted the names and personal identifying information pursuant to Exemptions 6 and 7(C). Def.'s Mem. Ex. 3, MacNeil Decl. ¶ 33.
USDA filed a motion to dismiss or for summary judgment arguing that it has fully and adequately complied with PETA's FOIA requests and that PETA does not have a viable APA claim. PETA filed a cross-motion for summary judgment. The motions are fully briefed and ready for decision.
In presenting its motion to dismiss or for summary judgment, USDA relies on information outside the pleadings, such as the Banks and MacNeil declarations and the Vaughn Index. Because matters outside the pleadings are presented, the Court must treat the motion as one for summary judgment under Rule 56. Fed. R. Civ. P. 12(b)(6).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the ...