United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
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.
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. 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.
The AMS Initial Search for Responsive Records
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.
Cornucopia's Appeal to AMS
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.
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.
Cornucopia Files Current Lawsuit
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.
October 13, 2016, AMS provided Cornucopia with the complete
bate-stamped record and a Vaughn
Index. 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.Fantle Decl. ¶ 23.
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.
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).
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.
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).
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).
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).
Reasonableness of the Search
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.
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 ...