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Cornucopia Institute v. Agricultural Marketing Service

United States District Court, District of Columbia

May 14, 2018

THE CORNUCOPIA INSTITUTE, Plaintiff,
v.
AGRICULTURAL MARKETING SERVICE, Defendant.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN UNITED STATES DISTRICT JUDGE.

         This is 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.

         I. Background

         In June 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.

         “Between 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).

         After 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.

         II. Legal Standards

         To 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).

         Searching 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).

         III. Analysis

         A. The Government's Search Efforts Satisfy FOIA's Requirements

         To 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[1]) three arguments challenging the legal adequacy of the Government's extensive search efforts, but each fail.

         First, 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 this point.

         Second, 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.

         Finally 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 ...


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