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The Cornucopia Institute v. Agricultural Marketing Service

United States District Court, District of Columbia

August 16, 2017




         The 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] ¶ 1.

         Unhappy 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.


         The 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.

         The 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.

         Upon 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.

         Cornucopia 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.

         In 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.

         Thus, 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.

         In this 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.


         Section 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).

         The 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)).

         III. ...

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