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Physicians Committee For Responsible Medicine v. United States Department of Agriculture

United States District Court, District of Columbia

May 25, 2018

PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant, and NATIONAL CATTLEMEN'S BEEF ASSOCIATION, Defendant-Intervenor

          MEMORANDUM OPINION

          AMY BERMAN JACKSON United States District Judge

         Plaintiff Physicians Committee for Responsible Medicine brought this case against the United States Department of Agriculture ("USDA"), alleging that USDA violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., when it withheld in full or redacted in part documents that related to the government's dairy checkoff and beef checkoff programs that were responsive to plaintiffs FOIA request. See Compl. [Dkt. #1].

         Some of the disputed documents allegedly in USDA's possession that related to the dairy checkoff program were created by and received from an organization called Dairy Management, Inc. ("DMI"). The Court granted DMI's motion to intervene in the matter in order to resolve one narrow question: whether the documents created by DMI were "agency records" subject to FOIA. See Min. Order (Dec. 23, 2013). Because the Court answered the question in the affirmative, defendant was required to process over 8, 000 documents. See Mem. Op. & Order [Dkt. # 32] at 13. The review and production of those documents took approximately three and a half years to complete, and on July 20, 2017, the parties voluntarily dismissed Claims 1 and 2 of the complaint that related to the dairy checkoff program. Stip. of Dismissal [Dkt. # 73].

         Claim 3, the only remaining claim before the Court, pertains to records involving the beef checkoff program. See Compl. ¶¶ 38-50. In the summary judgment motion now pending before the Court, plaintiff argues that the beef checkoff records created by another intervenor in this case, the National Cattlemen's Beef Association ("NCBA"), qualify as "agency records, " and that defendant USDA has violated FOIA by refusing to search NCBA's files for responsive records. See PL's Mot. for Summ. J. [Dkt. # 77] ("PL's Mot."); PL's Mem. of P. & A. in Supp. of PL's Mot. [Dkt. # 77] ("PL's Mem") at 1-2. Both defendant USDA and intervenor NCBA have filed cross-motions for summary judgment, contending that NCBA's records are not "agency records" subject to FOIA. See Def-Intervenor NCBA's Cross-Mot. for Summ. J. & Opp. to PL's Mot. [Dkt. # 80] ("NCBA Cross-Mot."); Def.-Intervenor NCBA's Mem. of P. & A. in Supp. of NCBA Cross-Mot. [Dkt. #80-1] ("NCBA Cross-Mem."); USDA Cross-Mot. for Summ. J. as to Claim 3 & Opp. to PL's Mot. [Dkt. # 83] ("USDA Cross-Mot.").[1]

         Thus, the question before the Court is again a narrow one: whether the documents created by NCBA are subject to FOIA. This time, the answer is no.

         BACKGROUND

         I. Regulatory Background

         USDA's Agricultural Marketing Service ("AMS") administers programs that create domestic and international marketing opportunities for U.S. producers of food, fiber, and specialty crops. Decl. of Kenneth Payne [Dkt. # 83-3] ("Payne Decl.") ¶¶ 5, 9. AMS, Research and Promotion Division, oversees six of these checkoff programs applicable to beef, eggs, lamb, pork, sorghum, and soybean. USDA Statement of Material Facts Not in Dispute in Supp. of USDA Cross-Mot. [Dkt. # 83-1] ("USDA SOF") ¶ 1; PL's Resp. to USDA SOF [Dkt. # 87] ("PL's Resp. to USDA SOF")¶1.

         Pursuant to the Beef Promotion and Research Act of 1985, 7 U.S.C. §§ 2901-2911, the USDA issued the Beef Research and Promotion Order ("Beef Order"), 7 C.F.R §§ 1260.101-1260.217, which authorized the creation of the Beef Research and Promotion Program (the "beef checkoff) and the Cattlemen's Beef Promotion and Research Board ("Beef Board") to administer that program. See USDA SOF ¶¶ 2-3; PL's Resp. to USDA SOF ¶¶ 2-3. The beef checkoff program was created to strengthen the beef industry's position in the marketplace, and it is funded by an assessment on all cattle sold in the United States and on cattle, beef, and beef products imported into the United States. 7 U.S.C. § 2901(b).

         The Beef Board is comprised of beef, dairy, and veal producers and importers of live cattle and beef products who are all appointed by the Secretary of Agriculture. Payne Decl. ¶ 18. AMS maintains regulatory oversight and authority over the Beef Board. USDA SOF ¶ 6; PL's Resp. to USDA SOF ¶ 6.

         The Beef Board operates through the Beef Promotion Operating Committee ("BPOC"), which serves as the beef checkoff s central programmatic decision making body. USDA SOF ¶ 3; PL's Resp. to USDA SOF ¶ 3. As directed by statute, BPOC must contract with established "national nonprofit industry-governed organizations ... to implement programs of promotion, research, consumer information, and industry information, " and the contracts must provide that the contracting party "shall keep accurate records of all of its transactions, account for funds received and expended, and make periodic reports to the Committee of activities conducted, and such other reports as the Secretary, the Board, or the Committee may require." 7 U.S.C. § 2904(6); see also USDA SOF ¶ 4; PL's Resp. to USDA SOF ¶ 4. The National Cattlemen's Beef Association is the largest contractor to the beef checkoff program. USDA SOF ¶ 5; PL's Resp. to USDA SOF ¶ 5. AMS reviews and approves BPOC's annual contracts with NCBA and other contractors. USDA SOF ¶ 7; PL's Resp. to USDA SOF ¶ 7.

         NCBA is a private corporate non-profit organization, not a government created entity, and its budget is not subject to approval by any USDA entity. USDA SOF ¶ 8; PL's Resp. to USDA SOF ¶ 8; NCBA Statement of Material Facts as to Which There is no Genuine Dispute [Dkt. # 80-3] ("NCBA SOF") at 5 ¶¶ 1-3, 5; PL's Resp. to NCBA SOF [Dkt. # 85] ("PL's Resp. to NCBA SOF") ¶¶1-3, 5. It employs approximately 130 employees and it is managed through its Executive Committee, which has no members that are federal government employees. NCBA SOF ¶ 4; PL's Resp. to NCBA SOF ¶ 4. Other than being a beef checkoff contractor, the nonprofit serves as a "membership organization with more than 24, 000 members" and as a "policy advocate." NCBA SOF ¶ 1; PL's Resp. to NCBA SOF ¶ 1.

         Every year, NCBA enters into an annual operating agreement with BPOC. NCBA SOF ¶ 6; PL's Resp. to NCBA SOF ¶ 6; see also Evans Decl. [Dkt. ## 80-4, 82-1] ¶ 20; Ex. A to Evans Decl. [Dkt. ## 80-6, 82-2] ("Operating Agreement"). The Beef Board relies on NCBA to "provide various support, management, programs, and other deliverables for [the Board] and BPOC for the benefit of the beef checkoff program." NCBA SOF ¶ 6; PL's Resp. to NCBA SOF ¶ 6. NCBA is reimbursed for its work through authorization requests, NCBA SOF ¶ 7; PL's Resp. to NCBA SOF ¶ 7; see also Operating Agreement at 5 ¶ F, which must detail the goals of the program and estimate the cost of it. See Operating Agreement at 4-5 ¶¶ E-F; Ex. A to Operating Agreement.

         The Operating Agreement states that NCBA is required to provide BPOC with "interim reports of activity as specified on an authorization request or otherwise requested by the Committee." Operating Agreement at 4 ¶ E(4). It also provides:

Contractor shall: [k]eep accurate records and all supporting documentation . . . relating to performance of authorization requests and shall, upon reasonable notice of no more than seven days, make those records available to the Committee, the Board and the Secretary of Agriculture for inspection and audit during the term of this agreement and for three years after its termination ....

         Operating Agreement at 6 ¶ H(1)(a). But, NCBA "retains partial ownership rights over records generated in the course of its beef checkoff contract work." NCBA SOF ¶ 8; PL's Resp. to NCBA SOF ¶ 8; see also Operating Agreement at 6-7 ¶ I ("Ownership of patents, copyrights, trademarks, inventions and publications . . . created or acquired in whole or in part with funds from [BPOC] shall be in proportion to the share of production costs . . . paid by each contributor.").

         II. Factual Background

         Plaintiff Physicians Committee for Responsible Medicine is a non-profit health organization that advocates for preventative medicine through proper nutrition and encourages higher standards for ethics in medical research. Compl. ¶ 2. On January 25, 2012, plaintiff submitted a FOIA request to USD A, Agricultural Marketing Service.[2] PL's Statement of Material Facts Not in Genuine Dispute [Dkt. # 77] ("PL's SOF") at 17 ¶ 1; USDA Statement Addressing PL's SOF [Dkt. # 83-2] ("USDA Resp. to PL's SOF") ¶ 1; see Decl. of Valerie L. Emmer-Scott [Dkt. # 14-3] ("Emmer-Scott Decl.") ¶ 32; Ex. O to Emmer-Scott Decl. [Dkt. # 14-17] ("FOIA Request").[3] It requested "copies of records related to the beef checkoff ...


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