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The Cornucopia Institute v. United States Department of Agriculture

United States District Court, District of Columbia

October 17, 2017




         The Cornucopia Institute brings suit pursuant to the Freedom of Information Act (FOIA), 5 U.S.C § 552 (2012), against the Agriculture Management Service of the Department of Agriculture National Organic Program, challenging the adequacy of that agency's response to its FOIA request. Both parties move for summary judgment and The Cornucopia Institute (Cornucopia) also requests in camera review of 34 records to determine the adequacy of the redactions. The Court will grant the agency's motion for summary judgment and deny Cornucopia's motion for summary judgment and in camera review.

         I. BACKGROUND

         The Cornucopia Institute is a national nonprofit organization focused on public interest farm policy that researches and investigates a range of issues from sustainable agricultural practices to organic certification policies. Declaration of Will Fantle (Fantle Decl.) [Dkt. 20] ¶ 4. In its investigative role, Cornucopia took a tour of Shamrock Farm Dairies (Shamrock) in late 2008 to determine if the company was in compliance with its organic certificate. Id. ¶ 9. On October 12, 2008, after determining that Shamrock was not in compliance, Cornucopia filed a complaint with the United States Department of Agriculture (USDA) National Organic Program (NOP) to alert the Agriculture Management Service (AMS or Service) that Shamrock had violated its organic certificate. Id. ¶ 10. In November and December 2011, Cornucopia learned from NOP Deputy Director Miles McEvoy that the investigation based on Cornucopia's complaint about Shamrock, and two other organic corporations-Oskri Organics (Oskri) and JAV Food Corporation (JAV)-had been closed. See id. ¶ 12; Fantle Decl. Ex. 2 [Dkt. 21] at 9.[1] On January 24, 2012, Cornucopia filed a FOIA request with AMS, asking for records pertaining to the NOP investigations into JAV, Oskri, and Shamrock. See Amended Declaration of Matthew Michael (Michael Am. Decl.) [Dkt. 17-1] ¶ 5. AMS assigned the request FOIA case number 2012-AMS-01320-F. See id.

         A. The AMS Initial Search for Responsive Records

         AMS began providing records related to Oskri Organics and JAV Food Corporation on April 19, 2012; on February 3, 2014, AMS sent a final letter stating that all of the records relating to Oskri and JAV had been turned over either fully or partially with redactions under FOIA Exemptions 4, 5, and 6. See Michael Am. Decl. ¶ 6; Michael Am. Decl. Attach. B [Dkt. 15-2] at 1. In the same letter, AMS stated that it was withholding all records relating to Shamrock under FOIA Exemption 7(A) because the investigation was ongoing. See Michael Am. Decl. ¶ 6; Michael Am. Decl. Attach. B at 7.

         B. Cornucopia's Appeal to AMS

         On February 26, 2014, Cornucopia appealed the withholding of records relating to Shamrock. See Michael Am. Decl. ¶ 7. Cornucopia argued it had an email from Mr. McEvoy confirming that AMS completed the Shamrock investigation in December 2011 and, therefore, withholding the records was unjustified. See Michael Am. Decl. Attach. C [Dkt. 15-3] at 1. On April 22, 2014, AMS informed Cornucopia that it received the FOIA appeal but that its review would not be completed for several months. See Fantle Decl. Ex. 2 at 8. AMS also advised Cornucopia to withdraw its appeal and submit a new FOIA request after AMS finished the Shamrock investigation. Fantle Decl. ¶ 17. On April 24, 2014, Cornucopia ignored AMS's suggestion and reiterated that Cornucopia had an email showing the Shamrock investigation concluded in December 2011. See Fantle Decl. Ex. 2 at 6-7. On April 25, 2014, AMS responded, denying that the Shamrock investigation had closed but agreeing to process Cornucopia's FOIA request. See id. at 6. Cornucopia responded the same day with a copy of the email it received from Mr. McEvoy in December 2011. See Fantle Decl. ¶ 17.

         Between May 13, 2014 and June 30, 2014, AMS searched additional databases and identified 595 records relating to the Shamrock investigation. Michael Am. Decl. ¶ 7. In conducting this search, AMS used the search terms “Shamrock” and “NOPC-003-09, ” and looked through “hardcopy casefiles, NOP's electronic shared drive, the electronic NOP complaint database, the electronic and hardcopy files of the investigator and the [Compliance & Enforcement] C&E Director, and the email archives of the investigator and the C&E Director.” Second Declaration of Matthew Michael (Michael 2d Decl.) [Dkt. 25-1] ¶ 5. On May 18, 2015 and July 9, 2015, Cornucopia contacted AMS for updates on the appeal and AMS responded that it was still processing the records. See Fantle Decl. ¶¶ 18-19; Fantle Decl. Ex. 3 [Dkt. 21] at 11.

         C. Cornucopia Files Current Lawsuit

         On February 9, 2016, after not receiving any additional records from AMS, Cornucopia filed this action. See Compl. [Dkt. 1]. Between May 6, 2016 and May 16, 2016, AMS located an additional 2, 213 records, using the same search terms and databases as its 2014 search. Michael Am. Decl. ¶ 8. Between May 31, 2016 and September 30, 2016, AMS released 2, 808 responsive records, providing 2, 135 pages in their entirety and 673 pages partially redacted under FOIA Exemptions 5, 6, and 7. See id.; see also Michael 2d Decl. ¶ 8.

         On October 13, 2016, AMS provided Cornucopia with the complete bate-stamped record and a Vaughn Index.[2] Michael Am. Decl. ¶ 8. However, Cornucopia states that it did not receive these records until AMS filed its Motion for Summary Judgment on March 8, 2017.[3]Fantle Decl. ¶ 23.

         AMS moved for summary judgment on February 2, 2017 asserting that it had sent all responsive records to Cornucopia in response to the 2012 FOIA request. See Mot. Cornucopia opposed and filed a cross motion for summary judgment on April 4, 2017, challenging the timeliness of AMS's response to the FOIA request, adequacy of the search, withholdings under FOIA Exemptions, and segregability, and requesting an in camera review of 34 records. See Pl.'s Mem. of Points and Auths. in Supp. of Pl.'s Mot. for Summ. J. and in Opp'n to Def.'s Mot. for Summ. J. (Opp'n) [Dkt. 18-1]. AMS filed its combined opposition and reply on May 15, 2017. See Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. for Summ. J. and Opp'n to Pl.'s Cross-Mot. for Summ. J. (Reply) [Dkt. 25]. The matter is ripe for decision.


         A. Summary Judgment

         Summary judgment is the typical vehicle to resolve an action brought under FOIA. See McLaughlin v. DOJ, 530 F.Supp.2d 210, 212 (D.D.C. 2008). Under Federal Rule of Civil Procedure 56 summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

         In considering whether there is a triable issue of fact, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The party opposing a motion for summary judgment, however, “may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. at 248.

         B. FOIA

         FOIA requires federal agencies to release government records to the public upon request, subject to nine listed exceptions. See 5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n.13 (D.D.C. 1980), aff'd sub nom. Rushford v. Smith, 656 F.2d 900 (D.C. Cir. 1981). In a FOIA case, a court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations when the affidavits or declarations describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

         A defending agency in a FOIA case must show that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information. See Sanders v. Obama, 729 F.Supp.2d 148, 154 (D.D.C. 2010), aff'd sub nom. Sanders v. DOJ, No. 10-5273, 2011 WL 1769099 (D.C. Cir. Apr. 21, 2011). The adequacy of a search is measured by a standard of reasonableness and depends on the individual circumstances of each case. Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The question is not whether other responsive records may exist, but whether the search itself was adequate. Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994).

         Thus, to rebut a challenge to the adequacy of a search, an agency must show that “the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (citing Meeropol v. Meese, 790 F.2d 942, 950-51 (D.C. Cir. 1986)). Agencies are not required to search every record system, but agencies must conduct a good faith, reasonable search of those systems of records likely to possess the requested records. Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990), overruled in part on other grounds, 79 F.3d 1172 (D.C. Cir. 1996). An agency may prove the reasonableness of its search by a declaration by responsible agency officials, so long as the declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad faith. See Casey, 656 F.2d at 738. Once an agency has provided such affidavits, the burden shifts to the plaintiff to demonstrate the lack of a good faith search. See Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993). If a review of the record raises substantial doubt as to the reasonableness of a search, especially in light of “well-defined requests and positive indications of overlooked materials, ” then summary judgment may be inappropriate. Founding Church of Scientology of Washington, D.C., Inc. v. NSA, 610 F.2d 824, 837 (D.C. Cir. 1979).

         III. ANALYSIS

         A. Reasonableness of the Search

         Under FOIA, an agency must undertake a search that is “reasonably calculated to uncover all relevant documents.” Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983). An agency moving for summary judgment in a FOIA case must first demonstrate that it made a good-faith effort to search for responsive materials in a manner “reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68. Where an agency affidavit avers that a reasonable search was conducted, the agency is entitled to such a presumption of good faith. See Defenders of Wildlife v. Dep't of Interior, 314 F.Supp.2d 1, 8 (D.D.C. 2004). An affidavit can be rebutted only when inadequate on its face or with evidence that the agency's search was not made in good faith. See id. A plaintiff cannot rebut the good faith presumption that attaches to an agency's affidavit “through purely speculative claims about the existence and discoverability of other documents.” Brown v. DOJ, 742 F.Supp.2d 126, 129 (D.D.C. 2010). Hypothetical assertions are insufficient to raise a material question of fact with respect to the adequacy of an agency's search. Oglesby, 920 F.2d at 67 n.13.

         Cornucopia first argues that the AMS search was inadequate because it did not provide records relating to the investigation into Shamrock until nearly four years after the initial FOIA request and nearly two years after AMS states the investigation ended. See Opp'n at 6; see also Reply at 10 (“AMS did not develop its formal decision concerning the Shamrock case until July 2014.”). A delay in response time allows a requester to appeal in order to obtain requested records. 5 U.S.C. § 552(a)(6)(A)(i)(III)(aa). Cornucopia appealed and, eventually, AMS turned over the ...

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