UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) THE CORNUCOPIA INSTITUTE ) ) Plaintiff, ) ) v. ) Civil Action No. 16-215 (RMC) ) UNITED STATES DEPARTMENT ) OF AGRICULTURE, ) ) Defendant. ) _________________________________ )
MEMORANDUM OPINION
The Cornucopia Institute brings suit pursuant to the Freedom of Information Act
(FOIA), 5 U.S.C § 552 (2012), against the Agriculture Management Service of the Department
of Agriculture National Organic Program, challenging the adequacy of that agency’s response to
its FOIA request. Both parties move for summary judgment and The Cornucopia Institute
(Cornucopia) also requests in camera review of 34 records to determine the adequacy of the
redactions. The Court will grant the agency’s motion for summary judgment and deny
Cornucopia’s motion for summary judgment and in camera review.
I. BACKGROUND
The Cornucopia Institute is a national nonprofit organization focused on public
interest farm policy that researches and investigates a range of issues from sustainable
agricultural practices to organic certification policies. Declaration of Will Fantle (Fantle Decl.)
[Dkt. 20] ¶ 4. In its investigative role, Cornucopia took a tour of Shamrock Farm Dairies
(Shamrock) in late 2008 to determine if the company was in compliance with its organic
certificate. Id. ¶ 9. On October 12, 2008, after determining that Shamrock was not in
1 compliance, Cornucopia filed a complaint with the United States Department of Agriculture
(USDA) National Organic Program (NOP) to alert the Agriculture Management Service (AMS
or Service) that Shamrock had violated its organic certificate. Id. ¶ 10. In November and
December 2011, Cornucopia learned from NOP Deputy Director Miles McEvoy that the
investigation based on Cornucopia’s complaint about Shamrock, and two other organic
corporations—Oskri Organics (Oskri) and JAV Food Corporation (JAV)—had been closed. See
id. ¶ 12; Fantle Decl. Ex. 2 [Dkt. 21] at 9.1 On January 24, 2012, Cornucopia filed a FOIA
request with AMS, asking for records pertaining to the NOP investigations into JAV, Oskri, and
Shamrock. See Amended Declaration of Matthew Michael (Michael Am. Decl.) [Dkt. 17-1] ¶ 5.
AMS assigned the request FOIA case number 2012-AMS-01320-F. See id.
A. The AMS Initial Search for Responsive Records
AMS began providing records related to Oskri Organics and JAV Food
Corporation on April 19, 2012; on February 3, 2014, AMS sent a final letter stating that all of the
records relating to Oskri and JAV had been turned over either fully or partially with redactions
under FOIA Exemptions 4, 5, and 6. See Michael Am. Decl. ¶ 6; Michael Am. Decl. Attach. B
[Dkt. 15-2] at 1. In the same letter, AMS stated that it was withholding all records relating to
Shamrock under FOIA Exemption 7(A) because the investigation was ongoing. See Michael
Am. Decl. ¶ 6; Michael Am. Decl. Attach. B at 7.
B. Cornucopia’s Appeal to AMS
On February 26, 2014, Cornucopia appealed the withholding of records relating to
Shamrock. See Michael Am. Decl. ¶ 7. Cornucopia argued it had an email from Mr. McEvoy
1 All page number references to Fantle Declaration Exhibits are to the electronic case filing (ECF) page number.
2 confirming that AMS completed the Shamrock investigation in December 2011 and, therefore,
withholding the records was unjustified. See Michael Am. Decl. Attach. C [Dkt. 15-3] at 1. On
April 22, 2014, AMS informed Cornucopia that it received the FOIA appeal but that its review
would not be completed for several months. See Fantle Decl. Ex. 2 at 8. AMS also advised
Cornucopia to withdraw its appeal and submit a new FOIA request after AMS finished the
Shamrock investigation. Fantle Decl. ¶ 17. On April 24, 2014, Cornucopia ignored AMS’s
suggestion and reiterated that Cornucopia had an email showing the Shamrock investigation
concluded in December 2011. See Fantle Decl. Ex. 2 at 6-7. On April 25, 2014, AMS
responded, denying that the Shamrock investigation had closed but agreeing to process
Cornucopia’s FOIA request. See id. at 6. Cornucopia responded the same day with a copy of the
email it received from Mr. McEvoy in December 2011. See Fantle Decl. ¶ 17.
Between May 13, 2014 and June 30, 2014, AMS searched additional databases
and identified 595 records relating to the Shamrock investigation. Michael Am. Decl. ¶ 7. In
conducting this search, AMS used the search terms “Shamrock” and “NOPC-003-09,” and
looked through “hardcopy casefiles, NOP’s electronic shared drive, the electronic NOP
complaint database, the electronic and hardcopy files of the investigator and the [Compliance &
Enforcement] C&E Director, and the email archives of the investigator and the C&E Director.”
Second Declaration of Matthew Michael (Michael 2d Decl.) [Dkt. 25-1] ¶ 5. On May 18, 2015
and July 9, 2015, Cornucopia contacted AMS for updates on the appeal and AMS responded that
it was still processing the records. See Fantle Decl. ¶¶ 18-19; Fantle Decl. Ex. 3 [Dkt. 21] at 11.
C. Cornucopia Files Current Lawsuit
On February 9, 2016, after not receiving any additional records from AMS,
Cornucopia filed this action. See Compl. [Dkt. 1]. Between May 6, 2016 and May 16, 2016,
AMS located an additional 2,213 records, using the same search terms and databases as its 2014 3 search. Michael Am. Decl. ¶ 8. Between May 31, 2016 and September 30, 2016, AMS released
2,808 responsive records, providing 2,135 pages in their entirety and 673 pages partially redacted
under FOIA Exemptions 5, 6, and 7. See id.; see also Michael 2d Decl. ¶ 8.
On October 13, 2016, AMS provided Cornucopia with the complete bate-stamped
record and a Vaughn Index.2 Michael Am. Decl. ¶ 8. However, Cornucopia states that it did not
receive these records until AMS filed its Motion for Summary Judgment on March 8, 2017.3
Fantle Decl. ¶ 23.
AMS moved for summary judgment on February 2, 2017 asserting that it had sent
all responsive records to Cornucopia in response to the 2012 FOIA request. See Mot.
Cornucopia opposed and filed a cross motion for summary judgment on April 4, 2017,
challenging the timeliness of AMS’s response to the FOIA request, adequacy of the search,
withholdings under FOIA Exemptions, and segregability, and requesting an in camera review of
34 records. See Pl.’s Mem. of Points and Auths. in Supp. of Pl.’s Mot. for Summ. J. and in
Opp’n to Def.’s Mot. for Summ. J. (Opp’n) [Dkt. 18-1]. AMS filed its combined opposition and
reply on May 15, 2017. See Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. for Summ. J. and Opp’n
to Pl.’s Cross-Mot. for Summ. J. (Reply) [Dkt. 25]. The matter is ripe for decision.
2 See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973) (requiring agencies to prepare an itemized index correlating each withheld record, or portion thereof, with a specific FOIA exemption and the relevant part of the agency’s nondisclosure justification). 3 It is unclear why Cornucopia did not receive the Motion for Summary Judgment until March 8, 2017; it was filed on the Court’s ECF system and went directly to Cornucopia’s counsel’s email February 2, 2017. See Def.’s Mot. for Summ. J. (Mot.) [Dkt. 14].
4 II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is the typical vehicle to resolve an action brought under
FOIA. See McLaughlin v. DOJ, 530 F. Supp. 2d 210, 212 (D.D.C. 2008). Under Federal Rule
of Civil Procedure 56 summary judgment is appropriate if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P.
56(c). The party seeking summary judgment bears the initial burden of demonstrating the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
In considering whether there is a triable issue of fact, the Court must draw all
reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The party opposing a motion for summary judgment, however, “may not
rest upon the mere allegations or denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial.” Id. at 248.
B. FOIA
FOIA requires federal agencies to release government records to the public upon
request, subject to nine listed exceptions. See 5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007). FOIA cases are typically and appropriately decided on motions for summary
judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F.
Supp. 477, 481 n.13 (D.D.C. 1980), aff’d sub nom. Rushford v. Smith, 656 F.2d 900 (D.C. Cir.
1981). In a FOIA case, a court may award summary judgment solely on the basis of information
provided by the department or agency in affidavits or declarations when the affidavits or
declarations describe “the documents and the justifications for nondisclosure with reasonably
5 specific detail, demonstrate that the information withheld logically falls within the claimed
exemption, and are not controverted by either contrary evidence in the record nor by evidence of
agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
A defending agency in a FOIA case must show 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. See Sanders v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010), aff’d sub nom.
Sanders v. DOJ, No. 10-5273, 2011 WL 1769099 (D.C. Cir. Apr. 21, 2011). The adequacy of a
search is measured by a standard of reasonableness and depends on the individual circumstances
of each case. Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The question is not
whether other responsive records may exist, but whether the search itself was adequate.
Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994).
Thus, to rebut a challenge to the adequacy of a search, an agency must show that
“the search was reasonably calculated to discover the requested documents, not whether it
actually uncovered every document extant.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201
(D.C. Cir. 1991) (citing Meeropol v. Meese, 790 F.2d 942, 950-51 (D.C. Cir. 1986)). Agencies
are not required to search every record system, but agencies must conduct a good faith,
reasonable search of those systems of records likely to possess the requested records. Oglesby v.
Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990), overruled in part on other grounds, 79 F.3d
1172 (D.C. Cir. 1996). An agency may prove the reasonableness of its search by a declaration
by responsible agency officials, so long as the declaration is reasonably detailed and not
controverted by contrary evidence or evidence of bad faith. See Casey, 656 F.2d at 738. Once
an agency has provided such affidavits, the burden shifts to the plaintiff to demonstrate the lack
6 of a good faith search. See Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993). If a review of
the record raises substantial doubt as to the reasonableness of a search, especially in light of
“well-defined requests and positive indications of overlooked materials,” then summary
judgment may be inappropriate. Founding Church of Scientology of Washington, D.C., Inc. v.
NSA, 610 F.2d 824, 837 (D.C. Cir. 1979).
III. ANALYSIS
A. Reasonableness of the Search
Under FOIA, an agency must undertake a search that is “reasonably calculated to
uncover all relevant documents.” Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983). An
agency moving for summary judgment in a FOIA case must first demonstrate that it made a
good-faith effort to search for responsive materials in a manner “reasonably expected to produce
the information requested.” Oglesby, 920 F.2d at 68. Where an agency affidavit avers that a
reasonable search was conducted, the agency is entitled to such a presumption of good faith. See
Defenders of Wildlife v. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004). An affidavit can
be rebutted only when inadequate on its face or with evidence that the agency’s search was not
made in good faith. See id. A plaintiff cannot rebut the good faith presumption that attaches to
an agency’s affidavit “through purely speculative claims about the existence and discoverability
of other documents.” Brown v. DOJ, 742 F. Supp. 2d 126, 129 (D.D.C. 2010). Hypothetical
assertions are insufficient to raise a material question of fact with respect to the adequacy of an
agency’s search. Oglesby, 920 F.2d at 67 n.13.
Cornucopia first argues that the AMS search was inadequate because it did not
provide records relating to the investigation into Shamrock until nearly four years after the initial
FOIA request and nearly two years after AMS states the investigation ended. See Opp’n at 6; see
also Reply at 10 (“AMS did not develop its formal decision concerning the Shamrock case until 7 July 2014.”). A delay in response time allows a requester to appeal in order to obtain requested
records. 5 U.S.C. § 552(a)(6)(A)(i)(III)(aa). Cornucopia appealed and, eventually, AMS turned
over the responsive records. While the delay may be extended, it is not an issue for which this
Court can provide a remedy at this time, and does not invalidate the search.
Cornucopia also argues the search was unreasonable because of “major gaps” in
the responsive records, including a lack of records indicating the outcome of negotiations
between Shamrock and AMS and the unavailability of several records that are referenced in
produced materials but not included. Opp’n at 8-9. AMS states the locations searched, why
those locations were the ones reasonably likely to contain responsive records, and the search
terms used. See Michael 2d Decl. ¶¶ 4-8. Cornucopia provides no basis to find that other
records exist and should have been discovered in a reasonable search; its argument to that effect
is merely speculation. To determine the adequacy of a search, courts look to “whether the search
was reasonably calculated to discover the requested documents, not whether it actually
uncovered every document extant.” SafeCard Servs., Inc., 926 F.2d at 1201 (citing Meeropol,
790 F.2d at 950-51; Weisberg, 745 F.2d at 1357). An agency is not required to cross-reference
documents listed on responsive records. See Steinberg, 23 F.3d at 552 (holding that the FBI’s
search was still adequate even though it did not cross-reference documents mentioned in
responsive records). The fact that documents mentioned in the released records were not
included in the agency response set does not itself indicate that the search was unreasonable and
does not rebut the presumption of good faith afforded to the agency’s declarations. Therefore,
even assuming arguendo that Cornucopia did not receive every record related to the Shamrock
investigation, that assumption does not prove the inadequacy of the search.
8 To the contrary, FOIA require agencies to provide an affidavit “with reasonable
detail” that includes “the search terms and the type of search performed, and averring that all
files likely to contain responsive materials . . . were searched.” Oglesby, 920 F.2d at 68.
Cornucopia argues that AMS provided “only generalized and conclusory statements describing
the systems of records searched” and that it did not search all the relevant systems. Opp’n at 8.
In support, Cornucopia cites Mr. Michael’s amended declaration. See id. (quoting Michael Am.
Decl. ¶ 7 (“The agency searched all files likely to contain relevant documents.”) and ¶ 8 (“[T]he
agency conducted an additional search of its electronic records and located additional responsive
information.”)). The Court agrees that Mr. Michael’s amended declaration provided insufficient
information for the Court to determine if the search were adequate. However, Mr. Michael’s
second declaration, which was submitted with AMS’s reply brief, contains the information
necessary to evaluate the search. See Michael 2d Decl. ¶¶ 4-8. Based on both, the Court finds
the search was “reasonably calculated to uncover all relevant documents.” Weisberg, 705 F.2d at
1351.
B. Objections to Withholdings from Records
In a FOIA action, a defendant must also demonstrate that any information withheld
from disclosure is exempt and that the agency segregated non-exempt materials. See 5 U.S.C.
§ 552(a)(4)(B), (b). An agency may satisfy this burden by providing “a relatively detailed
justification through the submission of an index of documents, known as a Vaughn Index,
sufficiently detailed affidavits or declarations, or both.” Ctr. for Int’l Envtl. Law v. Office of the U.S.
Trade Representative, 237 F. Supp. 2d 17, 22 (D.D.C. 2002) (internal quotations omitted); see also
Vaughn, 484 F.2d 820. AMS redacted 673 records in part and released 2,135 in full. Of the
redacted records, AMS applied Exemptions 5, 6, 7(c), 7(d), and 7(e).
9 1. Unspecified or Non-existent Exemption
Cornucopia objects to several records (pages Bates-stamped 002328-35) that it
argues are not explained by AMS or were improperly redacted. See Opp’n at 11. Mr. Michael’s
second declaration addresses these pages, explaining that the redactions were not made for the
FOIA search, but were in the record when it was located by NOP, and an unredacted version of
the record could not be located. See Michael 2d Decl. ¶ 8 n.3; see also Reply at 23 n.10.
Because these redactions were not part of the FOIA review but are in the underlying records, the
failure to explain in the Vaughn Index does not indicate a FOIA violation.
Cornucopia also objects to several records that it claims AMS incorrectly
identified as containing redacted information under Exemptions 5(1) and 5(2). See Opp’n at 11.
This was a small error—which AMS acknowledges, Reply at 23 n.10—and was not so grievous
that Cornucopia could not have recognized the basis for the exemption. The records are listed on
the AMS amended Vaughn Index as containing redacted information under Exemption (5). See
AMS Revised Vaughn Index [Dkt. 15-6] at 9.
2. Exemption (5)
Under 5 U.S.C. § 552(b)(5), an agency may protect “inter-agency or intra-agency
memorandums or letters that would not be available by law to a party other than an agency in
litigation with the agency.” This pertains to records that would not be discoverable during
litigation with the agency, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975), including
records that would be protected under the attorney-client privilege, the attorney work-product
privilege, and the executive deliberative process privilege. Formaldehyde Inst. v. HHS, 889 F.2d
1118, 1121 (D.C. Cir. 1989). Exemption 5 is intended to “protect[] open and frank discussion
10 among those who make [agency decisions] within the Government.” DOI v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 9 (2001).
AMS relies on the deliberative process privilege to withhold interagency records
that contain:
(i) NOP Investigator’s written deliberative review and analysis of operator’s organic certification inspection report;
(ii) NOP Investigator’s written deliberative notes prepared during and after an interview with a source and informant to a law enforcement action;
(iii) portions of an interagency memoranda and emails from lower- level employee to her supervisor and other senior officials in the agency regarding her recommendations concerning the scope and the direction of the investigation;
(iv) emails between NOP Managers and USDA Office of the General Counsel; and
(v) draft enforcement action letter from certifying agent to operator between NOP Investigator and AMS Compliance and Analysis Investigator about weighing of enforcement action options and planning.
Reply at 8-9 (citing Michal Am. Decl. ¶ 15). For a record to be covered by the deliberative
process privilege the record must be both (1) pre-decisional or antecedent to the adoption of
agency policy and (2) deliberative, meaning it must actually be related to the process by which
policies are formulated. See Jordan v. DOJ, 591 F.2d 753, 774 (D.C. Cir. 1978); see also Am.
Immigration Council v. Dep’t of Homeland Security, 905 F. Supp. 2d 206, 217-18 (D.D.C.
2012).
Cornucopia largely argues that the records are not pre-decisional because the
Shamrock investigation was closed in 2010 or 2011 and the redacted records at issue were
created on a later date. See Opp’n at 12-13. However, the letter that Cornucopia cites for the
proposition that the Shamrock investigation closed in 2010 or 2011 only indicates that
11 Cornucopia’s complaint against Shamrock was closed in 2010, not that all investigations into
Shamrock were closed. See Fantle Decl. Ex. 2 at 9. AMS states that Shamrock was still under
investigation until July 2014. Michael 2d Decl. ¶ 10. Thus, any records before July 2014 could
well be pre-decisional, as the descriptions of the records demonstrate.
Cornucopia also argues that some of the records containing Exemption 5
redactions are not interagency memoranda because they were shared with Shamrock and/or
Quality Assurance International (QAI). QAI is “a USDA-approved Accredited Certifying
Agent” that “certif[ies] production and handling operations to the USDA organic standard.” Id.
¶ 9. AMS argues that QAI operates as an agent of the USDA NOP when it issues and evaluates
organic standard certifications. See id. Cornucopia does not dispute this point, but does refer to
QAI as a “third part[y].” Opp’n at 12. Therefore, the draft notices of noncompliance submitted
by QAI to NOP qualify as interagency records.
“[C]onsultants may be enough like the agency’s own personnel to justify calling
their communications intra-agency.” Klamath Water, 532 U.S. at 12; see also Fox News
Network, LLC v. Dep’t of the Treasury, 739 F. Supp. 2d 515, 540 (S.D.N.Y. 2010) (finding that a
federal reserve bank functioned enough like Treasury’s own personnel during the relevant
transactions to justify calling their communications intraagency). Based on Mr. Michael’s
representations about the relationship between the USDA and QAI, the Court finds that QAI
functions as an agent of USDA and therefore, is “enough like the agency’s own personnel” for
records shared between the two to be considered interagency and qualify for Exemption 5. See
Klamath Water, 532 U.S. at 12.
Next, Cornucopia challenges the sufficiency of the descriptions of exempt
materials in the Vaughn Index, arguing AMS provides only “a very generalized statement
12 suggesting that release of these records would reveal ongoing policy discussions.” Opp’n at 15.
Courts focus on the function, not form, of a Vaughn Index and other supporting documents, such
as agency declarations, to assess the sufficiency of a FOIA response. See Judicial Watch, Inc. v.
FDA, 449 F.3d 141, 146 (D.C. Cir. 2006) (“[W]e focus on the functions of the Vaughn index, not
the length of the document descriptions . . . . [A]n agency may even submit other measures in
combination with or in lieu of the index itself.”); see also Keys v. DOJ, 830 F.2d 337, 349 (D.C.
Cir. 1987) (“[I]t is the function, not the form, of the index that is important.”). The affidavits,
declarations, and Vaughn Index in combination must “give the reviewing court a reasonable
basis to evaluate the claim of privilege,” Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C. Cir. 1994)
(internal quotation marks and citation omitted), by “provid[ing] a relatively detailed justification,
specifically identifying the reasons why a particular exemption is relevant and correlating those
claims with the particular part of a withheld document to which they apply.” Mead Data Cent.,
Inc. v. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977).
For each of the records containing redactions exempt under the deliberative
process privilege, AMS includes a conclusory statement on its Vaughn Index that release of the
information would revel ongoing policy discussions. Had AMS said no more, the Court would
have agreed that its explanation was insufficient. However, there is more. In addition to the
general statement, the Vaughn Index also includes more specific descriptions of each record and
the analysis behind the redactions, averring that actions recommended in particular records were
later adopted as policy or not and are, therefore, pre-decisional and deliberative. See AMS
Revised Vaughn Index at 7-8. Additionally, Mr. Michael’s second declaration provided further
justifications for application of Exemption 5. See Michael 2d Decl. ¶¶ 11-12 (indicating the
records include the weighing of different investigative options, “[t]he investigator’s assessments,
13 conclusions and recommendations” which were not binding or final, and other “options and
recommendations about the limit and scope of the investigation” intended to assist the final
decision maker). Considering the entirety of AMS’s supporting documentation, the Court finds
that AMS has satisfactorily explained why the particular records are deliberative under
Exemption 5.
Finally, Cornucopia challenges the claimed exemptions for attorney-client
privilege, arguing that AMS fails to identify an attorney as party to the records and does not
specify what about a record makes it an attorney-client communication. See Opp’n at 14. The
Court disagrees. The Vaughn Index clearly states that the redacted records are “[e]mails between
NOP Managers and AMS Office of General Counsel [(OCG)] Attorneys,” AMS Revised Vaughn
Index at 9, and Mr. Michael expounds upon that description in his second declaration explaining
“[t]he withheld communications reflect legal advice sought from OGC concerning the settlement
proposals and other aspects of the Shamrock investigation.” Michael 2d Decl. ¶ 13.
3. Exemptions 6 and 7(C)
Exemption 6 protects from disclosure “personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). “The term ‘similar files’ is broadly interpreted, such that
Exemption 6 protects from disclosure all information that ‘applies to a particular individual’ in
the absence of a public interest in disclosure.” Lardner v. DOJ, 638 F. Supp. 2d 14, 23 (D.D.C.
2009) (quoting Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982)). The threshold
is “fairly minimal,” and “[a]ll information which applies to a particular individual is covered by
Exemption 6, regardless of the type of file in which it is contained.” Washington Post Co. v.
14 HHS, 690 F.2d 252, 260 (D.C. Cir. 1982) (quoting State v. Washington Post, 456 U.S. at 602)
(internal quotation marks omitted).
Exemption 6 requires “a balancing of the individual’s right of privacy against the
preservation of the basic purpose of the Freedom of Information Act to open agency action to the
light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976) (internal
quotation marks and citation omitted); see DOJ v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 756 (1989). The privacy interest at stake belongs to the individual, not the agency.
See Reporters Comm., 489 U.S. at 763-65; Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879
F.2d 873, 875 (D.C. Cir. 1989) (noting an individual’s significant privacy interest “in avoiding
the unlimited disclosure of his or her name and address”). It is the requester’s obligation to
articulate a public interest sufficient to outweigh an individual’s privacy interest. To satisfy, the
public interest must be significant. See Nat’l Archives & Records Admin. v. Favish, 541 U.S.
157, 172 (2004).
Similarly, Exemption 7(C) protects from disclosure information in law
enforcement records4 that “could reasonably be expected to constitute an unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Courts apply a balancing test to determine
whether disclosure is exempt under 7(C). Courts “balance the privacy interests that would be
compromised by disclosure against the public interest in release of the requested information.”
4 Law enforcement records include both criminal and civil investigatory and non-investigatory materials. See Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002); North v. Walsh, 881 F.2d 1088, 1098 (D.C. Cir. 1989); Rural Hous. All. v. USDA, 498 F.2d 73, 81 & n.46 (D.C. Cir. 1974), supp. op. 511 F.2d 1347 (D.C. Cir. 1974). The investigation at issue was conducted by AMS to enforce civil legislation that set requirements for organic certifications and, therefore, was conducted for law enforcement purposes. See Jefferson v. DOJ, 284 F.3d 172, 177 (D.C. Cir. 2002).
15 Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007) (internal quotations and
citations omitted).
AMS seeks to exempt the names and identifying information of individuals
involved in conducting inspection services under Exemptions 6 and 7(C). Additionally, AMS
claims Exemption 6 for the redaction of “[s]ignatures of private individuals,” “[p]ersonal email
addresses of private individuals,” “[p]ersonal telephone numbers of private individuals,” and
“[n]ames and identifying information of private individuals discussed as potential providers of
voluntary mediation services.” AMS Revised Vaughn Index at 3-6; see also Michael Am. Decl.
¶¶ 18-25. Cornucopia challenges these explanations, arguing “[i]t is important for Cornucopia,
and the public, to know whom at USDA was involved in responding to Cornucopia’s 2008
complaint, and directing and overseeing and conducting subsequent investigations, and the
agency staff that were ultimately shaping the resolution of the case and any settlement agreement
and whether civil penalties were addressed.” Opp’n at 19-20. Cornucopia also objects to
withholding the name of a mediator.
Because individuals have a significant privacy interest “in avoiding the unlimited
disclosure of his or her name and address,” the Court turns to Cornucopia’s claim that the public
interest is served by the disclosure of such information. Horner, 879 F.2d at 875. “[T]he only
relevant public interest in the FOIA balancing analysis is the extent to which disclosure of the
information sought would shed light on an agency’s performance of its statutory duties or
otherwise let citizens know what their government is up to.” Lepelletier v. Fed. Deposit Ins.
Corp., 164 F.3d 37, 46 (D.C. Cir. 1999). AMS argues that disclosing the names and other
identifying information of private individuals does not allow the public to learn more about how
AMS conducted its investigation into Shamrock.
16 Cornucopia has not met its burden of demonstrating how disclosure of personal
identifying information would allow the public to “learn more about how the investigation was
conducted,” but has instead merely concluded that the information is “important” to the public.
Opp’n at 19-20. Because Cornucopia has not identified a public interest sufficient to outweigh
the privacy interest of the individuals, the Court finds AMS has properly withheld the
information under Exemptions 6 and 7(C).
4. Exemption 7(D)
Exemption 7(D) protects from disclosure those records or information compiled
for law enforcement purposes that:
could reasonably be expected to disclose the identity of a confidential source . . . [who] furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation. . ., information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D). A source’s confidentiality is determined on a case-by-case basis, and a
court must determine “whether the particular source spoke with an understanding that the
communication would remain confidential.” DOJ v. Landano, 508 U.S. 165, 172 (1993)
(emphasis in original). “A source is confidential within the meaning of Exemption 7(D) if the
source provided information under an express assurance of confidentiality or in circumstances
from which such an assurance could be reasonably inferred.” Williams v. FBI, 69 F.3d 1155,
1159 (D.C. Cir. 1995). The nature of the investigation and the informant’s relation to it are the
most important factors in determining whether implied confidentiality exists. Landano, 508 U.S.
at 179-80.
AMS redacted the name and identifying information of third parties conducting
inspection services on behalf of USDA because those third parties were providing information
17 for law enforcement purposes “with the understanding that the information [and their identities]
would remain confidential.” Michael 2d Decl. ¶ 17; see also AMS Revised Vaughn Index at 2-3.
Cornucopia challenges the claim of confidentiality, arguing that QAI is a private company that
assists its clients with maintaining USDA organic certifications and in that role must expect the
federal government to seek information concerning adherence to certification standards. See
Opp’n at 23. Cornucopia contends that the nature of the relationship between USDA and QAI
necessarily means that an expectation of confidentiality is unlikely. See id.
An agency must do more than simply state that a source provided information on
a confidential basis. See Citizens for Responsibility & Ethics in Washington v. DOJ, 746 F.3d
1082, 1101 (D.C. Cir. 2014). If an agency does not “present probative evidence that the source
did in fact receive an express grant of confidentiality,” then it must “point to more narrowly
defined circumstances that support the inference of confidentiality.” Id. Here AMS states that
The third-party inspectors transmitted this information to NOP with the understanding that the information would remain confidential. To protect inspectors from reprisal for investigating violations and reporting them to NOP, it is crucial that their identities remain confidential throughout the process. NOP believes that it implies through its actions and its procedures that inspector’s information will be kept confidential and will only be used for official purposes.
Michael 2d Decl. ¶ 17.
Courts should consider four factors in assessing implied assurances of
confidentiality:
the character of the crime at issue, the source’s relation to the crime, whether the source received payment, and whether the source has an ongoing relationship with the law enforcement agency and typically communicates with the agency only at locations and under conditions which assure the contact will not be noticed.
Roth v. DOJ, 642 F.3d 1161, 1184 (D.C. Cir. 2011). The “crime” at issue is a failure to comply
with USDA organic certification requirements, which does not weigh in favor of a finding of
18 confidentiality because there is no indication that companies seek retribution from individuals
who investigate organic certifications. QAI has a relationship with both the government agency
and the potential violator, as it serves to assist the potential violator with maintaining
certification and also works as an agent of USDA in reporting non-compliance. AMS has
provided no evidence as to the manner in which information was disclosed from QAI employees
and its supporting documents do not allow the Court to infer that they provided the information
under an implied assurance of confidentiality.
However, the information redacted under Exemption 7(D) was already found
properly redacted under Exemption 6 because it includes that names and addresses of private
individuals. The Court notes that Cornucopia already knows the identity of QAI. While the
Court does not find on this record that the information was properly withheld under Exemption
7(D), it was properly withheld under Exemption 6.
5. Exemption 7(E)
Exemption 7(E) protects the disclosure of records or information that “would
disclose techniques and procedures for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). “Exemption
7(E)’s requirement that disclosure risk circumvention of the law ‘sets a relatively low bar for the
agency to justify withholding.’” Public Employees for Envtl. Responsibility v. U.S. Section, Int’l
Boundary and Water Comm’n, U.S.-Mexico, 740 F.3d 195, 204-05 (D.C. Cir. 2014) (quoting
Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011)). “To clear that relatively low bar, an agency
must demonstrate only that release of a document might increase the risk ‘that a law will be
19 violated or that past violators will escape legal consequences.’” Id. at 205 (quoting Mayer
Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009)).
AMS withheld “NOP computer database structures and investigative file
organization” and an “NOP spreadsheet table designed and drafted in the course of a law
enforcement investigation” under Exemption 7(E), AMS Revised Vaughn Index at 10-11,
arguing that the information “would reveal techniques and guidelines that NOP investigators
employ in their investigations of potential violations of the Organic Food Production Act of
1990, 7 U.S.C. § 6501 et seq., and the USDA organic food regulations, 7 C.F.R. § 205 et seq.”
Mot. at 18. AMS argues that public disclosure of the information would permit “violators or
potential violators” to “evade or circumvent the law by anticipating the steps taken by NOP
investigators in the process of carrying out investigations.” Id. at 19.
Cornucopia argues that Exemption 7(E) is intended to protect investigatory
techniques, procedures, or guidelines that are “obscure” or “secret” and that AMS has not
provided any evidence to demonstrate that its Shamrock investigation was intended to be
clandestine or was not routine. Opp’n at 24-25. However, FOIA does not require an agency to
provide actual evidence that the techniques and guidelines at issue are “obscure.” Instead the
agency must only “logically explain how the data could help [others] circumvent the law.”
Blackwell, 646 F.3d at 42. There is no evidence to support Cornucopia’s assertion that the
techniques at issue are already known to the public and AMS, to the contrary, has explained that
the methods used to investigate compliance are finely tuned to the type of commodity,
production method, and handling and business practices at issue. See Michael 2d Decl. ¶ 19.
Therefore, AMS logically explains that knowledge of its methods with respect to the Shamrock
investigation would shed significant light on the techniques used in a similar investigation and
20 could help similar producers “evade the requirements of USDA organic regulations.” Id. AMS
has met the relatively low burden of Exemption 7(E).
C. Segregability
If a record contains information that is exempt from disclosure, any reasonably
segregable information must be released after deleting the exempt portions, unless the non-
exempt portions are inextricably intertwined with exempt portions. See 5 U.S.C. § 552(b); see
also Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999).
The court errs if it “simply approve[s] the withholding of an entire document without entering a
finding on segregability, or the lack thereof.” Powell v. U.S. Bureau of Prisons, 927 F.2d 1239,
1242 n.4 (D.C. Cir. 1991) (quoting Church of Scientology of Cal. v. Dep’t of the Army, 611 F.2d
738, 744 (9th Cir. 1979)). To demonstrate that all reasonably segregable material has been
released, the agency must provide a detailed justification rather than conclusory statements.
Mead Data Cent., 566 F.2d at 261.
AMS states that it conducted a “line-by-line review” to identify any segregable
information. Michael Am. Decl. ¶ 12. AMS did not withhold any records in their entirety and
identified the relevant exemption for all redacted information. See id. ¶¶ 13-14. Cornucopia
challenges the sufficiency of AMS’s description of the analysis undertaken to ensure all reasonably
segregable information was provided. It argues that AMS provides only conclusory statements that it
complied with the segregability requirement of FOIA. See Opp’n at 25-26. AMS responds that it
has met its burden by providing a detailed Vaughn Index which identified the withheld portions of
the records and identified the relevant exemption. See Reply at 22.
To enable a court to perform a review of segregability the agency must provide “not
only a detailed justification of the reasons for withholding information, but also a description of the
document from which the information was redacted.” Chesapeake Bay Found., Inc. v. U.S. Army
21 Corps of Eng’rs, 677 F. Supp. 2d 101, 109 (D.D.C. 2009); see also Mead Data Cent., 566 F.2d at
260-61. In addition to Mr. Michael’s declaration, which affirms that a line-by-line segregability
analysis was conducted, AMS provided a revised Vaughn Index which described each type of record
that contained redacted information, the exact type of information that was redacted, and the relevant
exemption justifying the redaction. See Michael Am. Decl. ¶¶ 11-14; AMS Revised Vaughn Index.
Taking those submissions together, the Court finds that AMS has adequately explained that all
segregable information has been provided and only exempt information was redacted.
D. In Camera Review
Trial courts are afforded broad discretion to “examine the contents of” requested
records “in camera to determine whether such records or any part thereof shall be withheld.” 5
U.S.C. § 552(a)(4)(B); see also Spirko v. U.S. Postal Serv., 147 F.3d 992, 996 (D.C. Cir. 1998).
However, “‘[i]f the affidavits provide specific information sufficient to place the documents
within the exemption category, if this information is not contradicted in the record, and if there is
no evidence in the record of agency bad faith, then summary judgment is appropriate without in
camera review of the documents.’” Quiñon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996)
(quoting Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979)).
Cornucopia asks the Court to review in camera 34 pages of redacted records
released by AMS to determine if it properly applied the FOIA exemptions and if there is non-
exempt information that should be released. Because this case is not one where the agency’s
declarations are “‘insufficiently detailed to permit meaningful review of exemption claims,’” in
camera review is unnecessary. Plunkett v. DOJ, No. 11-341, 2015 WL 5159489, at *12 (D.D.C.
Sept. 1, 2015) (quoting Quiñon, 86 F.3d at 1228) (declining in camera review because agency’s
affidavits sufficiently explained its reasons for redacting information under FOIA exemptions).
22 IV. CONCLUSION
The belated complete Vaughn Index and explanations by AMS have
unnecessarily prolonged this case. Cornucopia is a savvy litigant and might not have beaten a
dead horse if AMS had been more fulsome to begin with. Nonetheless, on the basis of the full
record, the Court will grant the AMS motion for summary judgment and deny Cornucopia’s
motion for summary judgment and in camera review. A memorializing Order accompanies this
Opinion.
Date: October 17, 2017 /s/ ROSEMARY M. COLLYER United States District Judge