United States District Court, District of Columbia
N. McFADDEN, U.S.D.J.
Humane Society submitted two Freedom of Information Act
requests to the Animal and Plant Health Inspection Service,
seeking site-inspection reports and other inspection records
for specific animal dealers and exhibitors. The Service
released responsive records but redacted significant portions
citing privacy concerns. The Humane Society alleges that
those redactions are improper, and the parties have filed
cross-motions for summary judgment. For the reasons stated
below, the Court will grant in part and deny in part both
motions for summary judgment.
the Animal Welfare Act (“AWA”), dealers and
exhibitors must be licensed by the U.S. Department of
Agriculture (“USDA”) to market, transport, or
exhibit animals. See 7 U.S.C. §§ 2133-34.
And licensees must comply with the standards promulgated by
the USDA for the “humane handling, care, treatment, and
transportation of animals.” See Id.
§§ 2133, 2143. The Service, a USDA component,
administers and enforces the AWA by inspecting licensed
facilities and documenting noncompliant activity, among other
things. Woods Decl. 1 ¶¶ 6, 70, ECF No. 18-2.
Inspectors conduct three types of inspections: pre-licensing
inspections, routine compliance inspections, and focused
inspections to follow-up on documented noncompliances.
Id. ¶ 8.
2012, the Service started posting inspection reports online
to a searchable database. Def.'s Resp. to Statement of
Undisputed Facts (“SUMF Resp.”) ¶ 13, ECF
No. 22-1. The Service rolled out an updated database in 2017
with new redactions. Id. ¶ 15; Woods Decl. 1
¶ 14. The new database distinguishes between individuals
or homestead facilities-businesses co-located with the
owner's personal residence-and non-homestead facilities.
Woods Decl. 1 ¶¶ 14-16. For example, the public can
search for non-homestead businesses using the licensee's
name or certificate number. See SUMF Resp. ¶
20. Not so for homestead businesses. See Id. If
someone does a generalized search, e.g., for all
licensed dealers in Ohio, the database will return a list of
homestead and non-homestead facilities, and for each facility
there is a link to the last three years' inspection
reports for that facility. See USDA Animal Care
Public Search Tool, APHIS,
(last visited May 29, 2019). There is no identifying
information next to the links for the homestead facilities.
Id. Meanwhile, non-homestead businesses are
identified by name, address, and customer number.
Service also redacts inspection reports on the database
differently depending on facility-type. Woods Decl. 1
¶¶ 14-17. It minimally redacts inspection reports
for non-homestead facilities, redacting only the signature of
the inspector and the signature and title of the receiving
official. Id. ¶ 15. For homestead facilities,
however, it redacts reports more heavily. Id. ¶
16. The Service also withholds the licensee's name and
address, customer ID, certificate number, inspection
identification number, and site name. Id. But in
both cases, the Service releases the narrative portion of the
report that describes any noncompliant conduct the inspector
observed. Id. ¶ 17.
* * *
Humane Society requested “complete copies of all
inspection reports from January 1, 2015 to the time the
agency fulfill[ed] th[e] request, for any USDA-licensed
facilities operating under USDA Certificate No.
52-C-0035.” Id. ¶ 18. The Service
searched its Animal Care Information System for responsive
records using the certificate number and pulled responsive
records. Id. ¶ 42. The search returned 137
pages of inspection records (inspection reports and attached
veterinary records), 663 photographs, and 11 videos.
Service released nine pages of inspection records in full but
redacted information from the other 127 pages citing FOIA
Exemptions 6 and 7(c). Id. ¶ 22. For the
inspection reports, the Service redacted street addresses and
zip codes, signatures of inspectors and facility
representatives, the narrative descriptions of the
inspections, names of third-parties, inspection
identification numbers, month and day of inspection, animal
inventories, and certified mail tracking numbers.
Id. ¶ 48. For the records attached to the
inspection reports, such as veterinary records, the Service
withheld portions with details that allowed the information
to be matched to the inspection reports available on the
online database. Id. ¶ 54. The Service also
withheld in full 663 pages of photographs and 11 videos.
Id. ¶ 22.
Humane Society appealed administratively, challenging the
agency's application of the exemptions. Id.
¶ 24. The Service ultimately released additional
portions of 667 pages of records: 663 pages of photographs
and 4 pages of veterinary care records. Id. ¶
28. For the photographs, the Service released the
licensee's name, the certificate number, and the name of
the Service's photographer. Id. ¶ 59. But
the Service still withheld the contents of the photographs,
the descriptions of the photographs, the videos in full, the
inspection identification number, and the month and day of
the inspection under Exemptions 6 and 7(C). Id.
Humane Society also requested “copies of inspection
reports created or obtained in 2016 or 2017” for
certain animal dealers: Marvin Burkholder/Berlin Kennel
(Certificate No. 31-A-0224) and Owen Yoder (Certificate No.
31-A-0198). Id. ¶ 29. The Service pulled
responsive records: two pages of records for Berlin Kennel
and three pages of records for Owen Yoder. Id.
Service released all five pages with information redacted
under FOIA Exemptions 6 and 7(C). Id. ¶ 34. It
withheld the same information from those records as it had
for the Natural Bridge Zoo request-street addresses and zip
codes, the narrative descriptions of the inspections, and so
on. Id. ¶ 48. The Humane Society
administratively appealed the agency's application of the
exemptions, but the Service affirmed the withholdings.
Id. ¶¶ 36, 41.
Humane Society challenges only the Service's withholdings
under Exemptions 6 and 7(C) for both FOIA requests.
See Compl. ¶¶ 57-76, ECF No. 1; Minute
Order June 15, 2018 (dismissing the Humane Society's
claim under the Administrative Procedure Act). It does not
challenge the adequacy of the Service's search for
responsive documents. See Compl. ¶¶ 57-76.
judgment may be granted if “the movant shows 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); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986). A fact is “material”
if it can affect the substantive outcome of the litigation.
Liberty Lobby, 477 U.S. at 248. And a dispute is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Id. “A party asserting that a fact
cannot be or is genuinely disputed must support the
assertion” by “citing to particular parts of
materials in the record.” Fed.R.Civ.P. 56(c)(1). Or the
party may “show that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Id.
can resolve the “vast majority” of FOIA cases on
summary judgment motions. Brayton v. Office of the U.S.
Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In the
FOIA context, the Government is entitled to summary judgment
if it establishes 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). More, while FOIA permits agencies to withhold
information that falls under one of nine specific exemptions,
Pub. Citizen, Inc. v. Office of Mgmt. & Budget,
598 F.3d 865, 869 (D.C. Cir. 2010), the agency must
“demonstrate that the records have not been improperly
withheld, ” Ctr. for the Study of Servs. v.
HHS, 874 F.3d 287, 288 (D.C. Cir. 2017) (internal
quotation marks omitted). And the Court has an affirmative
duty to ensure that the agency releases “[a]ny
reasonably segregable portion of a record, ” 5 U.S.C.
§ 552(b). See Morley, 508 F.3d at 1123.
reflects “a general philosophy of full agency
disclosure unless information is exempted under clearly
delineated statutory language.” Dep't of Air
Force v. Rose, 425 U.S. 352, 360-61 (1976). And
FOIA's exemptions are construed narrowly in keeping with
its presumption in favor of disclosure. Id. at 361.
The agency bears the burden of showing that a claimed
exemption applies. Loving v. Dep't of Defense,
550 F.3d 32, 37 (D.C. Cir. 2008).
6 permits the withholding of “personnel and medical
files and similar files” when the disclosure of that
information “would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. §
552(b)(6). “Similar files” is broadly construed
to include “[g]overnment records on an individual which
can be identified as applying to that individual.”
U.S. Dep't of State v. Wash. Post Co., 456 U.S.
595, 602 (1982). In assessing the applicability of Exemption
6, courts “must weigh th[e] privacy interest in
non-disclosure against the public interest in the release of
the records in order to determine whether, on balance, the
disclosure would work a clearly unwarranted invasion of
personal privacy.” Nat'l Ass'n of Retired
Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)
(“NARFE”). When an agency invokes
Exemption 6, FOIA's strong presumption in favor of
disclosure is at its zenith. Jurewicz v. U.S. Dep't
of Agric., 741 F.3d 1326, 1332 (D.C. Cir. 2014).
threshold question for Exemption 6 is “whether
disclosure of the files would compromise a substantial, as
opposed to de minimis, privacy interest, because if
no significant privacy interest is implicated FOIA demands
disclosure.” Multi Ag Media LLC v. U.S. Dep't
of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008) (cleaned
up). “Substantial, ” in this context,
“means less than it might seem. A substantial privacy