United States District Court, District of Columbia
N. MCFADDEN UNITED STATES DISTRICT JUDGE.
a Freedom of Information Act case, in which the Plaintiff
Cornucopia Institute seeks the “entire investigative
files for five operations” targeted for investigation
by the National Organic Program, a component of the
Agricultural Marketing Service. Compl. ¶ 13; Tucker
Decl. ¶ 4. I conclude that the Government has fully
satisfied its FOIA obligations, with a search reasonably
calculated to locate responsive records, and production of
nearly all non-exempt records. I will therefore grant the
Government's Motion for Summary Judgment as to the
lion's share of the records at issue, but grant
Cornucopia's cross-motion as to three pages.
2015, Cornucopia Institute sent the Agricultural Marketing
Service, an agency within the U.S. Department of Agriculture
(USDA), a FOIA request for “the entire investigative
files for five operations targeted for enforcement actions by
the NOP [National Organic Program] since the beginning of
fiscal year 2013.” Decl. of Jennifer Tucker Ex. 1,
Def.'s Mot. Summ. J., ECF No. 14-2; Compl. ¶ 13. The
request listed the operations as “Rosewood Products,
” “The Sixty, ” “Serenigy, ”
“Magill Ranch, ” and “Organic Avenue
Juices.” Id. Cornucopia filed suit in May
2016, having received no documents. Compl. 6.
January 7 and May 26, 2016, ” the Government searched
for responsive records. Tucker Decl. ¶ 8. The search
focused on records held by the NOP's Compliance and
Enforcement Division, since that division “process[es]
incoming complaints alleging actionable violations, ”
and investigates those complaints. Id. ¶¶
4, 13. The search involved the NOP's FOIA specialist,
specialists from the NOP's Compliance and Enforcement
Division “who were in charge of the investigations at
issue, ” and the Compliance and Enforcement
Division's director. Id. ¶ 9. A
complaint's corresponding investigative files are
“store[d] and manage[d] . . . on [the NOP's] shared
network computer drive, ” and “each complaint is
assigned a unique number when it is received.”
Id. ¶ 10. So the search team “identified
the complaints, by number, in an NOP database that tracks
complaints, and searched for and retrieved investigative
materials stored under those complaint numbers by accessing
the program's shared drive.” Id.
“NOP employees also searched hard copy paper
investigative records that were maintained in storage
cabinets” in the program's Washington, District of
Columbia office. This search yielded 881 responsive pages, of
which the Government released 420 pages in full, 225 pages in
part, and withheld 236 pages in full. Id. ¶ 16.
The Government invoked FOIA Exemptions 4, 5, 6, 7(C), 7(D),
and 7(E) for the records withheld. Id.; see
5 U.S.C. § 552(b)(4)-(7).
the parties had filed and briefed two cross-motions for
summary judgment, I ordered the Government to “either
search for and release to the Plaintiff all non-exempt
portions” of nine records or categories of records that
the Plaintiff claimed were obvious omitted portions of the
five investigative files, or else to “submit a
supplemental declaration describing in greater detail the
efforts that Defendant has taken with respect to these
documents, including why  additional efforts . . . are not
required by law.” Order of Jan. 12, 2018, ECF No. 23;
see also Pl.'s Mem. In Support of Pl.'s Mot.
Summ. J. and Opp. to Defs.' Mot. Summ. J. 7-12, ECF No.
23. The Government then undertook an extensive supplemental
search for the listed documents, meeting with relevant
officials and digging through pertinent hard copy
investigative files, shared drive folders, and email records.
Decl. of Lynnea Schurkamp ¶¶ 4-16, Notice of Filing
Supplemental Decl., ECF No. 25-1 (Schurkamp Decl.).
Eventually, the Government located and produced nearly all
the documents, except for five that they could not find.
Schurkamp Decl. ¶¶ 17-20. Three of the requested
documents already been produced. Id. ¶ 18. When
invited to provide further briefing “in light of
factual developments, ” Minute Order, Mar. 19, 2018,
Cornucopia only repeated its objections to the
Government's original exemption determinations and
renewed its request for in camera review, reasoning
that “the Court's January 12, 2018, Order ruled on
Plaintiff's adequacy of search objections.”
Pl.'s Further Mem. 2 (Pl.'s Supp. Mem). The
Government rested on its prior briefing. Def.'s Response
to Pl.'s Supp. Mem 2.
prevail on a motion for summary judgment, a movant must show
that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). FOIA
requires federal agencies to “disclose information to
the public upon reasonable request unless the records at
issue fall within specifically delineated exemptions.”
Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66
(D.C. Cir. 2008); see also 5 U.S.C. §
552(a)(3)(A) (records sought must be “reasonably
describe[d]”). A FOIA defendant is entitled to summary
judgment if it proves “beyond material doubt  that it
has conducted a search reasonably calculated to uncover all
relevant documents, ” Morley v. CIA, 508 F.3d
1108, 1114 (D.C. Cir. 2007) (citation omitted), and that
there is no genuine dispute over whether “each document
that falls within the class requested either has been
produced, is unidentifiable or is wholly exempt from the
Act's inspection requirements.” Weisberg v.
Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980)
(citation omitted). The “vast majority” of FOIA
cases are decided on motions for summary judgment. See
Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527
(D.C. Cir. 2011).
for records requires “both systemic and case-specific
exercises of discretion and administrative judgment and
expertise, ” and is “hardly an area in which the
courts should attempt to micro-manage the executive
branch.” Schrecker v. Dep't of Justice,
349 F.3d 657, 662 (D.C. Cir. 2003). To establish the
reasonableness of its search, an agency can submit a
“reasonably detailed affidavit, setting forth the
search terms and the type of search performed, and averring
that all files likely to contain responsive materials (if
such records exist) were searched.” Oglesby v. U.S.
Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
Agency declarations are given “a presumption of good
faith, which cannot be rebutted by ‘purely speculative
claims about the existence and discoverability of other
documents.'” SafeCard Servs. Inc. v. SEC,
926 F.2d 1197, 1201 (D.C. Cir. 1991) (citation omitted).
“[S]ummary judgment . . . is warranted if the
affidavits 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).
The Government's Search Efforts Satisfy FOIA's
satisfy FOIA, the Government must conduct a “search
reasonably calculated to uncover all relevant
documents.” Weisberg v. U.S. Dep't of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (citation
omitted). Here, the Government's search team looked in
the pertinent shared electronic drives and in headquarters
hard-copy files, and then conducted extensive follow up
searches for specific documents. Tucker Decl. 3-4; Schurkamp
Decl. ¶¶ 4-16. Cornucopia makes (or has
made) three arguments challenging the legal
adequacy of the Government's extensive search efforts,
but each fail.
Cornucopia briefly contends that the Government failed to
describe any pre-litigation search, and “did not
undertake a search until January 7, 2017.” Pl.'s
Mem. In Support of Pl.'s Mot. Summ. J. and in Opp. To
Def.'s Mot. Summ. J. 6 (Pl.'s Opp.). But even if a
pre-litigation search is required-an assumption for which
Cornucopia cites no authority-the Government did
perform such a search. “Between January 7 and May 26,
2016, ” the Government searched for responsive
records. Tucker Decl. ¶ 8 (emphasis added). Cornucopia
seems to have simply misread Ms. Tucker's affidavit on
Cornucopia argues that the Government's original search
was legally inadequate. Because the Government “did not
disclose the name of the database searched [or] disclose the
other databases that were considered but rejected for the
search, ” the Government did not search by using the
subjects of the investigations as keywords, and “there
is no discussion of a search or regional offices or other
[Agricultural Marketing Service] offices, ” Cornucopia
concludes that “it is fair to say that [Ms. Tucker]
fails to provide any useful description whatsoever as the
agency's search methodology.” Pl.'s Opp. 6-7.
Not so. We must remember that Cornucopia specifically
requested “the entire investigative files for
five operations targeted for enforcement actions by the
NOP.” Tucker Decl. Ex. 1 (emphasis added). The
Government knows that it “stores . . . investigative
and other files . . . on [NOP's] shared network computer
drive, ” and “hard copy paper investigative
records . . . in storage cabinets within NOP office space in
Washington, [District of Columbia].” Tucker Decl.
¶¶ 10-11. By searching these locations, the
Government conducted a search “reasonably calculated to
uncover” the investigative files at issue. See
Weisberg, 745 F.2d at 1485. Cornucopia offers only
speculation that the Government would have been better served
using search terms (even though investigative files are
organized by complaint number), or looking in other databases
or offices, and speculation cannot rebut the presumption of
good faith given to agency declarations. SafeCard Servs.
Inc., 926 F.2d at 1201.
and most substantially, Cornucopia contends that the
Government has failed “to follow-up on clear leads
indicating the existence of additional agency records
responsive to Plaintiff's FOIA request.” Pl.'s
Opp. 7. Cornucopia identified many documents that certainly
seem like part of pertinent investigative files, including
the complaint that kicked off the Magill Ranch investigation,
and “exhibits” mentioned by various investigation
summaries that the Government produced. Id. 10-12.
And the Government does have an obligation to “follow
through on obvious leads to discover requested
documents.” Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 325 (D.C. Cir. 1999). But the
follow-up search that the Government has conducted here
satisfies this standard, and ...