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Humane Society of United States v. Animal and Plant Health Inspection Service

United States District Court, District of Columbia

June 3, 2019

HUMANE SOCIETY OF THE UNITED STATES, Plaintiff,
v.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE, et al. Defendants.

          MEMORANDUM OPINION

          TREVOR N. McFADDEN, U.S.D.J.

         The 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.

         I.

         Under 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.[1]

         In 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, https://acis.aphis.edc.usda.gov/ords/f?p=118:203:0 (last visited May 29, 2019).[2] 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. Id.

         The 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.

         * * *

         The 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.[3] The Service searched its Animal Care Information System for responsive records using the certificate number and pulled responsive records. Id. ¶ 42.[4] The search returned 137 pages of inspection records (inspection reports and attached veterinary records), 663 photographs, and 11 videos. Id.[5]

         The 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.

         The 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.

         The 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).[6] Id. ¶ 29. The Service pulled responsive records: two pages of records for Berlin Kennel and three pages of records for Owen Yoder. Id. ¶ 43.

         The 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.

         The 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.

         II.

         Summary 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.

         Courts 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.

         III.

         FOIA 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).

         A.

         Exemption 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).

         1.

         The 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 ...


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