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Cornucopia Institute v. United States Department of Agriculture

United States District Court, District of Columbia

September 27, 2018

CORNUCOPIA INSTITUTE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.

          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, 29

          RUDOLPH CONTRERAS. UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         In 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.

         II. BACKGROUND

         In 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.[1] 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. ¶ 24-26.

         Since 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.

         In 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.

         Aside 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.[2] See Def.'s SMF ¶ 64.

         Cornucopia does not challenge the adequacy of AMS's search, [3] and 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.

         III. LEGAL STANDARD

         The 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)).

         “FOIA 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)).

         To 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 marks omitted).

         IV. ANALYSIS

         The 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.

         A. FOIA Exemption 5

         Citing 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 process privilege.

         FOIA 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)).

         In this 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).

         “To 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 ...


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