United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN
PART AND DENYING IN PART PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT RE DOCUMENT NOS.: 28,
RUDOLPH CONTRERAS. UNITED STATES DISTRICT JUDGE.
early 2013, The Cornucopia Institute
(“Cornucopia”) requested records from the
Agricultural Marketing Service (“AMS”), a
component of the United States Department of Agriculture
(“USDA”), primarily regarding visits in 2012 by
officials from the USDA's National Organic Program
(“NOP”) to organic dairies in Texas and New
Mexico. Unsatisfied with the agency's response,
Cornucopia brought this Freedom of Information Act
(“FOIA”) lawsuit. Presently before the Court are
the parties' cross-motions for summary judgment, which
concern the propriety of AMS's withholding of certain
portions of responsive records under FOIA Exemptions 4 and 5.
For the reasons explained below, the Court concludes that the
agency has justified the vast majority of its withholdings.
Accordingly, as to all records except for photographs taken
during the Texas and New Mexico trip--which AMS must
disclose-the Court grants the agency's motion for summary
judgment and denies Cornucopia's motion for the same.
January 2013, Cornucopia submitted a FOIA request to AMS
seeking, “information regarding visits to organic
dairies in Texas and New Mexico by Matthew Michael, the
Director of the NOP's Compliance and Enforcement
Division, and Deputy Administrator Miles McEvoy, or any other
USDA official or agent acting at NOP's request.”
Def.'s Statement of Material Facts as to Which There is
No. Genuine Issue (“Def.'s SMF”) ¶ 1,
ECF No. 28. Cornucopia also sought materials related
to any other dairies that were “visited directly by NOP
staff in 2012.” Def.'s SMF ¶ 1. In May 2013,
AMS sent an interim response to Plaintiff, releasing a batch
of responsive documents, with redaction of some responsive
material. Def.'s SMF ¶ 3. AMS also indicated that
additional responsive records would be forthcoming.
Def.'s SMF ¶ 3. On various occasions between October
15, 2014 and October 7, 2015, Cornucopia requested updates
regarding the status of the FOIA request, and, after each
request for a status update, AMS informed Cornucopia that it
was still processing records for the FOIA response.
See Def.'s SMF ¶¶ 4-7. AMS also noted
that it had contacted certain dairies to determine whether
the responsive records contained any business confidential
information. See Def.'s SMF ¶ 5; Compl.
¶ 19, ECF No. 1; see also Predisclosure
Notification Procedures for Confidential Commercial
Information, Exec. Order No. 12600, 52 Fed. Reg. 23, 781
(June 23, 1987) (requiring notice to submitters of
confidential commercial information whenever an agency
determines that it may be required to disclose that
information under FOIA and requiring an agency to give the
submitter an opportunity to object to disclosure). Displeased
with the delay, Cornucopia filed this lawsuit in January
2016. See Def.'s SMF ¶ 8; Compl. ¶
Cornucopia filed this suit, AMS has provided a total of 4,
254 pages of responsive records, with portions of certain
records redacted under FOIA Exemptions 4, 5, and 6.
See Mem. of L. in Supp. of Def.'s Mot. Summ. J.
(“Def.'s MSJ”) at 1, 11-45, ECF No. 28;
see also Def.'s SMF ¶ 11. Most of the
responsive records for which AMS has asserted FOIA exemptions
relate to visits by NOP Deputy Administrator McEvoy and
Director Michael to six organic dairy operations-Aurora
Organic Dairy; Boehning Dairy, LLC; Redland Dairy; Hilltop
Dairy, LLC; Native Pastures Dairy; and Natural Prairie Dairy
Farm, LLC-between July 24 and July 27, 2012. See
Def.'s SMF ¶¶ 60-61. According to AMS, the main
purposes of the July 2012 trip were to assess the
implementation of a pasture rule by accredited certifying
agents (“ACAs”)- non-agency entities that are
accredited by the USDA to issue certificates to organic
operations that comply with USDA organic regulations,
Def.'s SMF ¶ 32-and by ruminant operations, and to
evaluate how a 2012 drought was impacting operators.
Def.'s SMF ¶ 60. While touring the organic dairy
farms, officials also evaluated, among other things, how the
organic dairy farms were sourcing replacement heifers and how
farms and dairy processors were coordinating sanitizer use of
bulk milk trucks. Def.'s SMF ¶ 60.
preparing to tour the six dairies, AMS obtained records that
are responsive to Cornucopia's FOIA request. Many records
were either created by the dairies themselves as part of the
process of obtaining certification from an accredited
certifying agent or were created by an ACA as part of the
same certification process. See Def.'s SMF
¶ 62. For each of the six dairy operations, AMS received
the operation's organic system plans, or OSPs.
See Def.'s SMF ¶ 62. An OSP-which,
according to AMS, serves as “the foundation of the
organic certification process, ” Def.'s SMF ¶
34-contains detailed information about all stages of an
operation's production process. See Def.'s
SMF ¶ 34-35; see also 7 U.S.C. § 6502(13)
(defining “organic plan” as “a plan of
management of an organic farming or handling operation . . .
that includes written plans concerning all aspects of
agricultural production or handling described in this chapter
including crop rotation and other practices as required under
th[e] chapter”). ACAs use OSPs to determine whether an
organic operation has complied with statutory requirements
and qualifies for organic labeling. See Def.'s
SMF ¶ 35. According to AMS, OSPs are specific to each
organic operation and describe in detail the operation's
business model. See Def.'s SMF ¶ 36. In
addition to OSPs, AMS obtained records such as the
dairies' respective applications for organic
certification, correspondence between the dairies and ACAs
responsible for assessing them, inspection reports developed
by the ACAs and attachments to those reports, the ACAs'
inspection findings, and organic certificates issued by the
ACAs. See Def.'s SMF ¶ 62 (listing which
types of documents AMS received about each dairy operation).
AMS received input from the six affected organic dairies,
objecting to the disclosure of certain information in
AMS's possession as both confidential business
information and trade secret information. See
Def.'s SMF ¶¶ 9-25.
from materials created by the dairies or by ACAs, AMS
identified internal agency records as responsive to
Cornucopia's FOIA request, including email
correspondence, an itinerary for the Texas and New Mexico
trip, a trip report and drafts of that report, and
photographs taken during the trip. Def.'s SMF ¶ 63.
With respect to Cornucopia's request for records
regarding other visits by NOP staff to dairies in 2012, AMS
identified as responsive certain audit plans and cost
estimates generated by AMS's Audit, Review, and
Compliance Branch; NOP certification file review worksheets;
NOP witness audit checklists; external AMS email
communications; and an OSP of another dairy
operation. See Def.'s SMF ¶ 64.
does not challenge the adequacy of AMS's search,
does not contest any redactions pursuant to FOIA Exemption 6.
However, Cornucopia questions the appropriateness of certain
of the AMS's redactions under FOIA Exemptions 4 and 5.
The parties' cross-motions for summary judgment are now
ripe for the Court's review.
Freedom of Information Act, or FOIA, “sets forth a
policy of broad disclosure of Government documents in order
‘to ensure an informed citizenry, vital to the
functioning of a democratic society.'” FBI v.
Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242
(1978)); see also Judicial Watch v. U.S. Dep't of
Defense, 847 F.3d 735, 738 (D.C. Cir. 2017)
(“Congress enacted FOIA to give the public
‘access to official information long shielded
unnecessarily from public view.'”). The Act
mandates release of properly requested federal agency records
unless the materials fall squarely within one of nine
statutory exemptions. Milner v. Dep't of Navy,
562 U.S. 562, 565 (2011); Students Against Genocide v.
Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2011)
(citing 5 U.S.C. § 552(a)(3)(A), (b)).
cases typically and appropriately are decided on motions for
summary judgment.” Defenders of Wildlife v. U.S.
Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)
(citing Bigwood v. U.S. Agency for Int'l Dev.,
484 F.Supp.2d 68, 73 (D.D.C. 2007)). The agency is entitled
to summary judgment if no material facts are genuinely in
dispute and the agency demonstrates “that its search
for responsive records was adequate, that any exemptions
claimed actually apply, and that any reasonably segregable
non-exempt parts of records have been disclosed after
redaction of exempt information.” Competitive
Enter. Inst. v. EPA, 232 F.Supp.3d 172, 181 (D.D.C.
2017). “This burden does not shift even when the
requester files a cross-motion for summary judgment because
‘the Government ultimately has the onus of proving that
the documents are exempt from disclosure,' while the
‘burden upon the requester is merely to establish the
absence of material factual issues before a summary
disposition of the case could permissibly occur.'”
Hardy v. ATF, 243 F.Supp.3d 155, 162 (D.D.C. 2017)
(brackets omitted) (quoting Pub. Citizen Health Research
Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999)).
carry its burden, the agency must provide “a relatively
detailed justification, specifically identifying the reasons
why a particular exemption is relevant and correlating those
claims with the particular part of the withheld document to
which they apply.” Elec. Privacy Info. Ctr. v. U.S.
Drug Enf't Agency, 192 F.Supp.3d 92, 103 (D.D.C.
2016) (quoting Mead Data Cent., Inc. v. U.S. Dep't of
Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).
“[T]he government cannot justify its withholdings on
the basis of summary statements that merely reiterate legal
standards or offer ‘far-ranging category definitions
for information.'” Citizens for Responsibility
& Ethics in Wash. v. U.S. Dep't of Justice, 955
F.Supp.2d 4, 13 (D.D.C. 2013) (quoting King v. U.S.
Dep't of Justice, 830 F.2d 210, 221 (D.C. Cir.
1987)). A court will endorse an agency's decision to
withhold records if the agency's justification for
invoking a FOIA exemption “appears ‘logical'
or ‘plausible.'” Pinson v. U.S. Dep't
of Justice, 245 F.Supp.3d 225, 239 (D.D.C. 2017)
(quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C.
Cir. 2007)). Nonetheless, “exemptions from disclosure
must be narrowly construed . . . and conclusory and
generalized allegations of exemptions are
unacceptable.” Morley v. CIA, 508 F.3d 1108,
1114-15 (D.C. Cir. 2007) (citation and internal quotation
cross-motions for summary judgment presently before the Court
concern the appropriateness of AMS's invocation of FOIA
Exemptions 4 and 5 to shield portions of records responsive
to Cornucopia's request for information primarily
regarding visits by officials from the USDA's NOP to
organic dairies in Texas and New Mexico in July 2012.
See Def.'s MSJ at 13-45; Pl.'s Mem. Supp.
Mot. Summ. J. at 9-25, ECF No. 30 (“Pl.'s MSJ). As
explained below, the Court concludes-contrary to
Plaintiff's objections-that the agency has provided
logical and plausible bases for most of its withholdings
under FOIA Exemptions 4 and 5, that the agency has provided
detailed justifications supporting its segregability
determinations, and that in camera review of the
disputed documents in not warranted in this case.
Accordingly, except as to the photographs taken during the
Texas and New Mexico trip-which AMS must disclose- the Court
grants Defendant's motion for summary judgment, and
denies Plaintiff's cross-motion for the same.
FOIA Exemption 5
FOIA Exemption 5's deliberative process privilege, AMS
has withheld portions of four categories of records: (1) the
Texas and New Mexico Trip Report and drafts of that report,
(2) photographs from the Texas and New Mexico trip, (3) two
intra-agency email correspondence, and (4) NOP witness audit
checklists. See Def.'s MSJ at 13-20. Cornucopia
contends that, with respect to each of the categories except
for the NOP witness audit checklists, AMS has failed to show
that the material withheld under the deliberative process
privilege relates “to any specific agency decision
making process, as opposed to a general fact gathering
investigation by the agency's site visits to various
organic farm facilities.” Pl.'s MSJ at 11. As
explained below, the Court concludes that AMS has satisfied
its burden of showing that it properly invoked the
deliberative process privilege to withhold three of the four
categories of disputed records. However, AMS has not met its
burden of showing that photographs from the Texas and New
Mexico trip are properly withheld under the deliberative
Exemption 5 shields “inter-agency or intra-agency
memorandums or letters that would not be available by law to
a party . . . in litigation with the agency[.]” 5
U.S.C. § 552(b)(5). “To qualify, a document must .
. . satisfy two conditions: its sources must be a Government
agency, and it must fall within the ambit of a privilege
against discovery under judicial standards that would govern
litigation against the agency that holds it.”
Dep't of Interior v. Klamath Water Users Protective
Ass'n (“Klamath”), 532
U.S. 1, 8 (2001). “Exemption 5 ‘incorporates the
traditional privileges that the Government could assert in
civil litigation against a private litigant'-including
the presidential communications privilege, the
attorney-client privilege, the work product privilege, and
the deliberative process privilege-and excludes these
privileged documents from FOIA's reach.” Loving
v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008)
(quoting Baker & Hostetler LLP v. U.S. Dep't of
Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006)).
case, AMS invokes the deliberative process privilege, which
“protects ‘documents reflecting advisory
opinions, recommendations and deliberations comprising part
of a process by which government decisions and policies are
formulated.'” Loving, 550 F.3d at 38
(quoting Klamath, 532 U.S. at 8). The
“privilege rests on the obvious realization that
officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page
news, and its object is to enhance the quality of agency
decisions, by protecting open and frank discussion among
those who make them within the Government[.]”
Klamath, 535 U.S. at 8-9 (internal citations and
quotation marks omitted). The privilege “helps to
prevent premature disclosure of proposed policies and
protects against public confusion through the disclosure of
documents suggesting reasons for policy decisions that were
ultimately not taken.” Judicial Watch, Inc. v. U.S.
Postal Serv., 297 F.Supp.2d 252, 258-59 (D.D.C. 2004).
fall within the deliberative process privilege, materials
must bear on the formulation or exercise of agency
policy-oriented judgment.” Petroleum Info.
Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1435
(D.C. Cir. 1992) (emphasis in original). A record qualifies
for withholding only if it is both
“predecisional” and “deliberative[.]”
Access Reports v. U.S. Dep't of Justice, 926
F.2d 1192, 1194 (D.C. Cir. 1991). “A document is
predecisional if it is ‘generated before the adoption
of an agency policy.'” McKinley v. FDIC,
744 F.Supp.2d 128, 138 (D.D.C. 2010) (quoting Coastal
States Gas Corp. v. Dep't of Energy, 617 F.2d 854,
866 (D.C. Cir. 1980)). Records are “deliberative”
if they reflect “the give-and-take of the consultative
process.” Coastal States Gas Corp., 617 F.2d
at 866. “[T]o come within the privilege and thus within
Exemption 5, the document must be a direct part of the
deliberative process in that it makes recommendations or
expresses opinions on legal or policy matters.”
Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir.
1975). The key question in determining whether the material
is deliberative “is whether disclosure of the
information would ‘discourage candid discussion within
the agency.'” Access Reports, 926 F.2d at
1195 (quoting Dudman Commc'ns Corp. v. U.S. Dep't
of Air Force, 815 F.2d 1565, 1567-68 (D.C. Cir. 1987)).
To meet its burden, an “agency must establish
‘what deliberative process is involved, and the role
played by the documents in issue in the course of that
process.'” Senate of the Commonwealth of P.R.
ex rel. Judiciary Comm. v. U.S. Dep't of Justice,
823 F.2d 574, 585-86 (D.C. Cir. 1987) (quoting Coastal