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Wallick v. Agricultural Marketing Service

United States District Court, District of Columbia

November 20, 2017

RICHARD S. WALLICK, Plaintiff,
v.
AGRICULTURAL MARKETING SERVICE, Defendant.

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

         Granting in Part and Denying in Part Defendant's Motion for Summary Judgment; Granting in Part and Denying in Part Plaintiff's Cross-Motion for Summary Judgment

         I. INTRODUCTION

         This case stems from a Freedom of Information Act request for documents pertaining to the Organic Materials Review Institute's application for accreditation as a Material Review Organization, which empowers it to review and certify materials as compliant with federal organic regulations. The central issues presented in this case are the adequacy and scope of the agency's search for the documents requested and the propriety of the redaction of a single sentence pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5). Defendant Agricultural Marketing Services, a component of the U.S. Department of Agriculture and the agency tasked with certifying[1] groups as Material Review Organizations, has moved for summary judgment on the grounds that its search in response to the FOIA request at issue was reasonable and adequate and its redaction pursuant to 5 U.S.C. § 552(b)(5) was proper. Plaintiff Richard Wallick has cross-moved for summary judgment, asking the Court to find Defendant's search inadequate and its redaction insufficiently supported. For the reasons set forth below, the Court will grant in part and deny in part Defendant's motion for summary judgment, and grant in part and deny in part Plaintiff's cross-motion.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         On February 25, 2016, Plaintiff Richard Wallick, through his attorney David Stotter, submitted a FOIA request by email to the U.S. Department of Agriculture's Agricultural Marketing Service (AMS). The request sought:

1. The complete application submitted by the Organic Materials Review Commission (OMRI) for that organization to produce technical reports for the NOSB's ISO 65 program, including any attachments filed with, or in support of, this OMRI application, as well as copies of all documents for the USDA AMS's review of that application, and all documents for the USDA AMS's decision approving this application, including any communications within USDA AMS, and any communications with other subdivisions of USDA, and any communications between USDA AMS and OMRI regarding the above referenced application.
2. All documents in the possession or control of AMS for any follow-up action pertaining to the review and/or approval of the application described in item 1 above, or discussing the USDA's process for the application described in item 1 in the paragraph above.

Ex. 1, ECF No. 13-1 at 10-11. The time frame for the records he sought was January 1, 2007 to February 25, 2016. Id. at 10.

         OMRI is a Material Review Organization (MRO) based in Eugene, Oregon. “As a MRO, OMRI is an [non-governmental] entity accredited or authorized to review and approve materials as compliant with USDA organic regulations. This accreditation is not a contract, but rather an authorization to certify products as organic.” Bridges Decl. ¶ 6, ECF No. 13-1. The purpose of Mr. Wallick's FOIA request, as stated in the request, was to “prepare reports to [national and regional food safety and agricultural safety organizations] to facilitate their educational and legal campaigns promoting food safety, and in promoting the appropriate use of organic agriculture.” Ex. 1, ECF No. 13-1 at 11.

         On March 7, 2016, Plaintiff submitted a “revised and corrected” request. Compl. ¶ 15, ECF. No. 1. The manner in which this request was different from the original February 25 request is unclear from the record, and AMS never admits to receiving the revised request. Instead, on March 10, 2016, AMS's FOIA Officer Gregory Bridges emailed Mr. Stotter confirming receipt of the February 25 request on March 7 and assigning the request a tracking number. Ex. 2, ECF No. 13-1 at 17.

         Five weeks later, Mr. Stotter emailed Mr. Bridges inquiring as to the status of his client's FOIA request. The next day, the two spoke on the phone. Id. at 16. After the call, Mr. Bridges sent a follow-up email, characterizing their discussion as having modified Mr. Wallick's FOIA request to include:

1. The complete application, and supporting documentation, submitted by OMRI for that organization to produce technical reports for NOSB's ISO 65 program,
2. All AMS communication related to the processing of this application, and
3. All AMS communication related to OMRI's ISO certification.

Id. at 16.

         Mr. Stotter replied three hours later disagreeing with the characterization that he had modified the request and clarifying that item 2 in the original request should also be interpreted to include “any records pertaining to any follow-up actions by USDA as to the OMRI application to produce technical reports for NOSB's ISO 65 program.” Id. at 15. Mr. Bridges responded the next morning that he agreed that “modify” was not the correct characterization of their telephone conversation, and further clarified that he now understood item 1 of the request to mean:

1. The complete application, and supporting documentation, submitted by OMRI for that organization to produce technical reports for NOSB's ISO 65 program,
2. Any communication and records in AMS's possession related to the processing of this application, and
3. An [sic] communication and record in AMS's possession related to OMRI's ISO 65 certification.

Id. at 14. He further clarified that he now understood item 2 of the request to be seeking “copies of any records pertaining to any follow-up actions by USDA as to the OMRI application to produce technical reports for NOSB's ISO 65 program.” Mr. Stotter responded that he agreed with these interpretations. Id.

         AMS began its search for responsive records on April 25, 2016. Mr. Bridges selected Mike Lopez, Supervisory Agricultural Marketing Specialist in the Audit, Review, and Compliance Branch of AMS's Livestock, Poultry, and Seed Program (LPS) Quality Assessment Division to search for LPS records responsive to the request. Bridges Decl. ¶ 12. “Mr. Lopez searched incoming and outgoing emails within AMS networked share drives, workstation, and shared network systems” on the belief that “these [were] all the places likely to have all responsive records.” Bridges Decl. ¶ 13. “[H]ard copy formats were not searched because AMS does not maintain any physical copies of records received from onsite audits.” Id. Mr. Lopez's search for all documents containing the terms “Organic Materials Review Institute” and “OMRI” yielded 58 documents containing 88 pages “responsive” to Mr. Wallick's request. Id. ¶ 14. The documents were released in full to Mr. Wallick on May 18, 2016, excepting information that was redacted due to FOIA's Exemption 6 concerning personal privacy.[2] Mr. Wallick has not challenged AMS's decision to withhold this information.

         In a letter attached to this interim disclosure, Mr. Bridges stated that the next disclosure of responsive documents would be delivered to Mr. Stotter “no later than June, [sic] 16, 2016.” Ex. 3, ECF No. 13-1 at 20. However, AMS did not release its second and final disclosure until early winter. In the interim, Mr. Wallick had filed this lawsuit on October 17, 2016, claiming that “AMS has violated FOIA by failing to provide Plaintiff with all non-exempt responsive records for his February 25, 2016 and March 7, 2016 FOIA requests, and by failing to complete an adequate search which was reasonably calculated to locate all response [sic] responsive records to his FOIA request.” Compl. ¶ 20, ECF No. 1.

         Although Defendant asserts that it had begun its second search on May 12, 2016, prior to the filing of the complaint, it did not provide its second and final disclosure of records from the National Organic Program (NOP) until December 22, 2016, after this action had commenced. For this search, Mr. Bridges selected NOP's FOIA Project Manager/Litigation Coordinator Lynnea Schurkamp, who searched the NOP cloud email network with the terms: “‘Organic Materials Review Commission', ‘Organic Materials Review Institute' AND ‘ISO', ‘Organic materials [sic] Review Institute' AND ‘ISO 65', ‘Organic Materials Review Institute' AND ‘ISO 65 Program', and ‘OMRI' and [sic] ‘ISO 65.' Bridges Decl. ¶ 16-17. The search yielded 25 pages of “responsive” records, 24 of which were released in full, and one of which had a single sentence redacted pursuant to 5 U.S.C. § 552(b)(5), which protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than in litigation with the agency.” The redacted line is the final sentence of a November 18, 2010 email from Deputy Administrator for NOP Miles McEvoy to Lisa M. Brines, also of NOP, acknowledging receipt of an email from Dr. Brines telling him that OMRI was refusing to allow her to observe an upcoming audit due to the organization's confidentiality agreement. Ex. 4, ECF No. 13-1 at 129.

         AMS claims that “[t]he sentence in the email withheld contained communications between AMS staff members that contained pre-decision records, and dealt with pre-decisional inter-agency discussions on how to approach a decision involving an upcoming audit of OMRI.” Bridges Decl. ¶18. In its Vaughn Index, AMS describes the sentence as consisting “of internal discussion about OMRI's decision not to permit a NOP staff member to attend its certification process. - Disclosure of the information would reveal pre-decisional information and would reduce the likelihood of staff providing full recommendations in future on this issue.” ECF No. 13-2 at 2. In its reply brief, AMS describes the line as “an exchange between NOP and OMRI ...


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