United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
Cornucopia Institute filed a Freedom of Information Act
request seeking records from the Agricultural Marketing
Service concerning investigations conducted by the National
Organic Program of Daniel Lehebauer, Harry Lehenbauer and
Diamond D Organics during the Administration of former
President Barack Obama. See Compl. [Dkt. 1] ¶
with the response it has received, Cornucopia has sued to
obtain more records with fewer redactions. Upon review of the
entire record, the Court will grant the agency's motion
for summary judgment and deny Cornucopia's cross motion
for summary judgment.
Cornucopia Institute is a public interest farm policy
organization, which provides public oversight and research
and investigates agricultural issues. The Agricultural
Marketing Service (the Service) is an agency within the U.S.
Department of Agriculture; it administers programs intended
to facilitate the efficient and fair marketing of U.S.
agricultural products. The National Organic Program (the
Program) is a regulatory program within the Service and is
responsible for developing national standards for
organically-produced agricultural products. See id.
The Compliance and Enforcement Division (Enforcement
Division) of the Program investigates complaints alleging
violations of regulations covering organic foods. It also
processes FOIA requests for Service records. See id.
Freedom of Information Act (FOIA), 5 U.S.C. § 552 et
seq. (2012), provides a means to ask an agency in the
Executive Branch of the federal government for copies of
records concerning its activities, subject to certain
exemptions. Id. In its June 16, 2014 FOIA request,
Cornucopia asked for “copies of all internal or
external correspondence, communications and other documents
between the USDA and any outside individual or entity
regarding Daniel Lehenbauer, Harry Lehenbauer, and Diamond D
Organics (covering the tenure of the Obama
administration).” See Def.'s Mot. Summ. J.
Ex. 1, Declaration of Matthew Michael (1st Michael Decl.),
[Dkt. 9-2] at 1. Cornucopia submitted this FOIA request after
it saw general references to Diamond D Organics, and its
principals, Daniel and Harry Lehenbauer, in records released
by the USDA in response to one of its prior FOIA requests.
See Pl.'s Mot. Summ. J. Attach. 2, Declaration
of Mark A. Kastel (Kastel Decl.) [Dkt. 11-2] ¶ 4.
receipt of Cornucopia's request, a search of Program
records was conducted by, collectively, Matthew Michael,
Director of the Enforcement Division; the Enforcement
Division's top FOIA specialist; and the specialist in
charge of the investigation into the Lehenbauers and Diamond
D Organics. These persons searched “their
government-issued computers, the NOP shared-network drive
and, because they were aware of a recent investigation
responsive to the Cornucopia's request, paper
investigative records.” 1st Michael Decl. ¶ 6.
This search identified 119 pages of records, of which 28
pages were released in full, 78 pages were released in part,
and 13 pages were withheld in their entirety. Id.
¶ 6; see also Def.'s Mot. Summ. J. Attach.
B, FOIA Response of 2/6/15 [Dkt. 9-3]. These records were
provided to Cornucopia on February 6, 2015.
administratively appealed the response to its FOIA request on
March 18, 2015, arguing that the agency had improperly
withheld information under FOIA Exemptions 5, 6 and 7. 1st
Michael Decl. ¶ 7. In June 2016, the Service reviewed
the 119 pages of responsive records, and “agreed to the
discretionary release of additional information in eight (8)
pages, previously redacted under FOIA Exemptions 5 and/or
7(E) and released additional information on one (1) page,
previously redacted under FOIA Exemptions 2 and 7(E), ”
but unredacted elsewhere in the released records.
Id. ¶ 8; see Def.'s Mot. Summ J.
Attach. D, FOIA Response of 6/15/16 [Dkt. 9-5]. This response
was sent to Cornucopia on June 15, 2016.
addition, Mr. Michael and his specialist/investigator
conducted an additional search of the Program's
electronic records. This time they searched the Program's
hardcopy casefiles, electronic shared drive, and electronic
complaint database, as well as the investigator's
individual electronic and hardcopy files, Director
Michael's electronic and hardcopy files, and the email
archives of both the investigator and the Director, which Mr.
Michael attests are the only places where such records would
be located. See Def.'s Reply Ex. 1, 2d Decl. of
Matthew Michael (2d Michael Decl.) [Dkt. 14-1] ¶ 4. In
this search, they located 21 additional pages of responsive
records, which were provided to Cornucopia, with redactions,
on August 31, 2016. Id.
in total, the agency located 140 pages of responsive records,
of which 39 pages were released in full, 86 pages were
released in part and 15 pages were withheld in their
entirety. See id. There is no dispute concerning
these facts. See Pl.'s Mot. Summ. J. Ex. 1,
Pl.'s Statement of Facts (Pl.'s SOF) [Dkt. 11-1]
¶ 4; Def.'s Mot. Summ. J. [Dkt. 9] at 6.
suit, Cornucopia contends that the Service violated FOIA by
(1) failing to conduct an adequate search for records; and
(2) failing to provide all non-exempt responsive records.
See Compl. ¶ 23. After more than adequate legal
attention, see Defendant's Answer [Dkt. 7];
Defendant's Motion for Summary Judgment [Dkt. 9];
Plaintiff's Opposition and Cross Motion for Summary
Judgment [Dkt. 11]; Defendant's Reply and Opposition [
Dkt. 14]; and Plaintiff's Reply [Dkt. 17], the matter is
ripe for decision.
VENUE AND JURISDICTION
552(a)(4)(B) of the U.S. Code grants this Court subject
matter jurisdiction over all actions brought under FOIA, and
makes this an appropriate forum for venue purposes. 5 U.S.C.
§ 552(a)(4)(B) (“On complaint, the district court
of the United States in the district in which the complainant
resides, or has his principal place of business, or in which
the agency records are situated, or in the District of
Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any
agency records improperly withheld from the
complainant.”); see Jones v. Nuclear Regulatory
Comm'n, 654 F.Supp. 130, 131 (D.D.C. 1987).
Court's jurisdiction under FOIA extends only to claims
arising from the improper withholding of agency records.
See 5 U.S.C. § 552(a)(4)(B); see also
Lazaridis v. U.S. Dep't of Justice, 713 F.Supp.2d
64, 66 (D.D.C. 2010) (citing McGehee v. CIA, 697
F.2d 1095, 1105 (D.C. Cir. 1983)).