United States District Court, District of Columbia
BERMAN JACKSON United States District Judge
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].
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].
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
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.
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.
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. §
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
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.
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.
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.
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
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 ....
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.").
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. 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"). It requested "copies of records
related to the beef checkoff ...