UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ORGANIZATION FOR COMPETITIVE MARKETS,
Plaintiff,
v.
OFFICE OF INSPECTOR GENERAL, USDA, No. 14-cv-1902 (EGS) Defendant,
and
NATIONAL CATTLEMEN’S BEEF ASSOCIATION,
Defendant- Intervenor.
MEMORANDUM OPINION
I. Introduction
In this Freedom of Information Act (“FOIA”) lawsuit,
Plaintiff Organization for Competitive Markets (“OCM”) seeks to
compel Defendant, the Office of Inspector General (“OIG”) of the
United States Department of Agriculture (“USDA”), to produce
documents related to OIG’s 2011 audit of USDA’s Agricultural
Marketing Service (“AMS”) regarding AMS’ oversight of USDA’s
beef promotion program entitled “Agricultural Marketing Service
1 Oversight of the Beef Research and Promotion Board’s Activities”
(the “audit report”).
Following several rounds of document production,
administrative appeals, and the filing of this action, the
remaining records have been withheld in full or redacted
pursuant to FOIA Exemptions 4, 5, 6, and 7. Pending before the
Court are the parties’ cross motions for summary judgment. Upon
consideration of the motions, the responses and replies thereto,
applicable law, the entire record, and for the reasons explained
below, the Court GRANTS Defendant USDA-OIG’s Motion for Summary
Judgment, GRANTS Defendant-Intervenor NCBA’s Motion for Summary
Judgment, and DENIES Plaintiff OCM’s Motion for Summary
Judgment.1
II. Background
A. Factual Background
OCM is a non-profit organization whose “mission is to work
for transparent, fair, and truly competitive agricultural and
food markets.” Compl., ECF No. 1 ¶ 4.2 OCM “monitors federal
checkoff operations and expenditures” to “provide[] its members
1 On April 9, 2019, USDA-OIG filed a motion seeking leave to file a sur-reply. See Mot. Leave to File Sur-Reply, ECF No. 103. Since the Court grants USDA-OIG’s Motion for Summary Judgment, the Court DENIES USDA-OIG’s Motion for Sur-Reply. 2 When citing electronic filings throughout this opinion, the
Court cites to the ECF header page number, not the original page number of the filed document.
2 and the public with information on a broad range of such
programs and issues.” Id. at ¶ 5. The relevant program here is
the Beef Checkoff Program, a beef promotion program, see Compl.,
ECF No. 1 ¶ 1; which is administered and supervised by the USDA
and the AMS. See Counter-Statement of Disp. Facts by Pl. (“Pl.
Counter SODF”), ECF No. 90-3 ¶ 117. The Cattlemen’s Beef
Promotion & Research Board (“CBB” or “Beef Board”) and the Beef
Promotion Operating Committee (“BPOC”) “assist in developing and
implementing beef promotion and research projects for the Beef
Checkoff Program.” Id. at ¶ 121.
In January 2011, USDA-OIG notified AMS that it would
“conduct an audit of AMS’ oversight of the CBB” to “evaluate the
structure and relationship between AMS and the CBB, the CBB and
Qualified State Beef Councils [(“QBSCs”)], and the CBB and
contractors with the Beef Checkoff Program.” Id. at ¶¶ 132-133.
During this audit, OIG met with several QBSCs3 and entities that
contract with the Beef Checkoff Program (“Beef Checkoff
Contractors”).4 These entities provided USDA-OIG with documents
to assist in the audit. See id. at ¶ 142.
3 QSBCs collect the funding for the Beef Checkoff Program through the assessment on cattle sold in the United States. Pl. Counter SOMF, ECF No. 90-3 ¶ 123. After providing a portion to the CBB, the QSBCs “retain[] the remainder for activities of the [QSBC] that are authorized by the Beef Act.” Id. 4 “[T]he Beef Checkoff Program contract[s] with established
national nonprofit industry-governed organizations to implement
3 OIG issued its initial audit report on March 29, 2013,
titled “Agricultural Marketing Service Oversight of the Beef
Research and Promotion Board’s Activities.”5 Pl. Counter SODF,
ECF No. 90-3 ¶ 135. After USDA-OIG published the audit report,
OCM submitted a FOIA request to USDA-OIG seeking the following
records:
(1) All records relied on for the findings and conclusions contained in the audit report; (2) All records gathered in preparation for the report (whether ultimately used to support the findings or not); (3) All records indicating or otherwise relating to the IG’s determination of relevant data set parameters; (4) All internal and external communications relating to the audit report; (5) All records that relate to the standards by which OIG determined compliance issues relating to operations and structure of the Beef Board (e.g., conflict of interest policies, competitive bidding requirements, etc.); and (6) All records referencing or relating to the 2010 independent audit and/or its consideration or exclusion from consideration for the current report.
Compl., ECF No. 1 ¶ 15. Between productions at the
administrative level and during this litigation, USDA-OIG has
produced over 23,000 documents. See Decl. of Alison Decker,
Assistant Counsel to the Inspector General with USDA-OIG
programs of promotion, research, consumer information and industry information.” Id. at ¶ 126. 5 After receiving letters questioning the quality of the report,
USDA-OIG re-opened the audit to ensure the quality of the findings. Pl. Counter SOMF, ECF No. 90-3 ¶ 136, 138. USDA-OIG published its final audit report on January 31, 2014. Id. at ¶ 140.
4 (“Decker Decl.”), ECF No. 88-3 ¶ 125. OIG referred an additional
24,000 documents to AMS for processing. Id.
B. Procedural History
USDA-OIG and Defendant-Intervenor, National Cattlemen’s
Beef Association (“NCBA”),6 filed Motions for Summary Judgment on
November 14, 2018. See Second Mot. Summ. J. (“OIG Mot. Summ.
J.”), ECF No. 88; Def.-Int. NCBA’s Mot. Summ. J. (“NCBA Mot.
Summ. J.”), ECF No. 87.
Plaintiff filed its Opposition and Cross-Motion for Summary
Judgment on January 9, 2019. See Cross-Mot. Summ. J. by OCM
(“OCM Mot. Summ. J.”), ECF No. 90; Pl.’s Opp. Mot. Summ. J., ECF
No. 91. On February 26, 2019, Defendant and Defendant-Intervenor
filed their oppositions and replies. See Mem. Opp. to Cross-Mot.
Summ. Judgment by NCBA (“NCBA Opp. & Reply”), ECF No. 96; Reply
to Opp. Mot. Summ. J. by OIG (“OIG Opp. & Reply”), ECF No. 97.
Plaintiff filed its reply on March 22, 2019. See Reply to Opp.
to Mot. Summ. J. by OCM (“OCM Reply”), ECF No. 102. The parties
6 On October 25, 2016, the Court granted NCBA’s Motion to Intervene for the limited purpose of “reviewing documents and records for NCBA’s confidential and proprietary business information and objecting to the production of documents and records to OCM exclusively on the basis that those documents and records contain NCBA’s confidential and proprietary business information.” Order Granting Mot. Int., ECF No. 39 at 1. Accordingly, NCBA moves for summary judgment only as to the Exemption 4 withholdings and USDA-OIG’s segregability obligations with regard to those withholdings. See NCBA Mot. Summ. J., ECF No. 87 at 37-53.
5 each filed Notices of Supplemental Authority and responses
thereto in June and July 2020. See ECF Nos. 105-107, 109. The
cross motions are ripe and ready for the Court’s adjudication.
III. Legal Standard
A. FOIA
FOIA was enacted to “pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)
(internal quotation marks omitted). Accordingly, FOIA favors
“full agency disclosure unless information is exempted under
clearly delineated statutory language.” Id. at 360-61 (internal
quotation marks omitted). The agency has the burden of showing
that the withheld information falls under a FOIA exemption. See
5 U.S.C. § 552(a)(4)(B); Pub. Citizen Health Rsch. Grp. v. FDA,
185 F.3d 898, 904 (D.C. Cir. 1999) (quoting Niagara Mohawk Power
Corp. v. DOE, 169 F.3d 16, 18 (D.C. Cir. 1999)).
B. FOIA Improvement Act
The FOIA Improvement Act (“FIA”), Pub. L. No. 114-185, 130
Stat. 538 (2016), imposes an additional requirement on agencies
seeking to invoke this or any other FOIA exemption. In relevant
part, the FIA provides that: “An agency shall . . . withhold
information under this section only if . . . (I) the agency
reasonably foresees that disclosure would harm an interest
protected by [a FOIA] exemption; or (II) disclosure is
6 prohibited by law.” 5 U.S.C. § 552(a)(8)(A). In other words, “an
agency must release a record—even if it falls within a FOIA
exemption—if releasing the record would not reasonably harm an
exemption-protected interest and if its disclosure is not
prohibited by law.” Rosenberg v. U.S. Dep’t of Def., 342 F.
Supp. 3d 62, 73 (D.D.C. 2018), on reconsideration in part, 442
F. Supp. 3d 240 (D.D.C. 2020).
Congress imposed this additional requirement on agencies
“to foreclose the withholding of material unless the agency can
articulate both the nature of the harm [from release] and the
link between the specified harm and specific information
contained in the material withheld.” Reps. Comm. for Freedom of
the Press v. FBI, 3 F.4th 350, 369 (D.C. Cir. 2021) (citation
and internal quotation marks omitted). Meeting the foreseeable
harm requirement is “an independent and meaningful burden.” Ctr.
for Investigative Reporting v. U.S. Customs & Border Prot., 436
F. Supp. 3d 90, 106 (D.D.C. 2019) (quoting NRDC v. EPA, No. 17-
CV-5928 (JMF), 2019 WL 3338266, at *1 (S.D.N.Y. July 25, 2019)).
C. Summary Judgment
Summary judgment is proper when “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). In FOIA
cases, a government agency is entitled to summary judgment only
if “the agency proves that it has fully discharged its [FOIA]
7 obligations . . . after the underlying facts and the inferences
to be drawn from them are construed in the light most favorable
to the FOIA requester.” Moore v. Aspin, 916 F. Supp. 32, 35
(D.D.C. 1996) (citations omitted). “FOIA cases typically and
appropriately are decided on motions for summary judgment.”
Coffey v. Bureau of Land Mgmt, 249 F. Supp. 3d 488, 494 (D.D.C.
2017).
When considering a motion for summary judgment under FOIA,
the court must review the record de novo. 5 U.S.C. §
552(a)(4)(B). The court may rely on agency affidavits or
declarations that are “relatively detailed and non-conclusory.”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991) (affirming that “relatively detailed and non-conclusory”
declarations “are accorded a presumption of good faith, which
cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents”) (internal
quotations omitted). “The Court may grant summary judgment based
solely on information provided in an agency's affidavits or
declarations when they ‘describe the documents and the
justifications for nondisclosure with reasonably 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.’” Coffey, 249 F. Supp. 3d at 494 (quoting Larson v.
8 Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). “[T]he
government need not justify its withholdings document-by-
document; it may instead do so category-of-document by category
of document.” Crooker v. ATF, 789 F.2d 64, 67 (D.C. Cir. 1986).
IV. Analysis
A. Defendant’s Search for Responsive Documents Was Adequate
FOIA requires an agency to conduct 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
has the burden to “show that it made a good faith effort to
conduct a search for the requested records, using methods which
can be reasonably expected to produce the information
requested.” Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68
(D.C. Cir. 1990).
Since receiving Plaintiff’s FOIA request, USDA-OIG has
conducted multiple rounds of searches for responsive records.
See Decker Decl., ECF No. 88-3 ¶¶ 14-19, 69. After identifying
the individuals on the audit team and other personnel who might
have relevant records, as well as gaining an understanding of
where the audit team’s records and communications were
maintained, USDA-OIG conducted searches of both hard copy and
electric files in the relevant field offices and various
personnel email records. See id. ¶¶ 14-19, 20-29. USDA-OIG
9 conducted a second search in January 2015, again “forward[ing]
the FOIA request to all relevant parties in Audit to conduct a
search for any records responsive to the request.” Id. ¶ 70.
Reasonable search terms were identified, id. ¶ 77; and searches
were conducted of the audit team email, regional field office
electronic and hard copy files, the audit SharePoint site, and
the Office of Counsel email and records, id. ¶¶ 69-93.
Plaintiff does not question the adequacy of USDA-OIG’s
search, and the Court concludes that the searches conducted by
OIG were sufficient to meet USDA-OIG’s FOIA obligations.
Accordingly, the Court GRANTS summary judgment to USDA-OIG on
the adequacy of the search.
B. USDA-OIG’s Exemption Claims
Plaintiff challenges USDA-OIG’s use of Exemption 4 and 5 to
withhold or redact two groups of documents responsive to
Plaintiff’s FOIA request.7 The first group consists of 193
7 USDA-OIG invoked Exemption 7(C) and 7(D) to redact handwritten notes related to a law enforcement matter and a record prepared by a confidential source. OIG Mot. Summ. J., ECF No. 88-1 at 14- 15. Plaintiff does not contest these redactions. See generally Pl.’s Opp. Mot. Summ. J., ECF No. 91. The Court has reviewed the Vaughn indexes, declarations, and relevant legal authority, and after careful consideration, GRANTS USDA-OIG’s Motion for Summary Judgment for documents withheld pursuant to Exemptions 7(C) and 7(D). USDA-OIG invoked Exemption 6 to withhold names, titles, email addresses, and phone numbers of lower-level USDA- OIG and USDA-AMS employees. OIG Mot. Summ. J., ECF No. 88-1 at 11. OCM disputes only the withholding of “title, posting, and job grade for lower[-]level employees.” OCM Mot. Summ. J., ECF No. 90 at 42. USDA-OIG responds that “this information is
10 records containing information about the Beef Checkoff
Contractors and the QSBCs, which were withheld pursuant to
Exemption 4.8 The second group, withheld pursuant to Exemption
5’s deliberative process privilege, includes draft audit reports
and communications between USDA-OIG and AMS and/or the Beef
Board during OIG’s audit of AMS.9 The Court addresses each group
of documents below.
1. USDA-OIG Properly Invoked Exemption 4 to Withhold Confidential Business Information from the QSBCs and Beef Checkoff Contractors
Pursuant to Exemption 4, USDA-OIG and AMS redacted and
withheld information about Beef Checkoff Contractors10 and
substantially in OIG’s Vaughn indices.” Def.’s Opp’n to Pl.’s Mot. Summ. J. & Reply Br., ECF No. 98 at 22. OCM’s reply briefing does not address this issue. See generally, OCM Reply, ECF No. 102. The Court therefore concludes that OCM no longer contests the Exemption 6 withholdings. USDA-OIG has explained why disclosure of the withheld information “would constitute a clearly unwarranted invasion of personal privacy.” Id. at 11 (quoting 5 U.S.C. § 552(b)(6)). Accordingly, the Court GRANTS USDA-OIG’s Motion for Summary Judgment for documents withheld pursuant to Exemption 6. 8 The withheld documents are listed in the Vaughn Index Prepared
by USDA-AMS for AMS & OCM Bates Nos. (Aug. 31, 2018) (“AMS Vaughn Index I”), ECF No. 88-33, and Vaughn Index Prepared by USDA AMS for NCBA Bates Nos. (Aug. 31, 2018) (“AMS Vaughn Index II”), ECF No. 88-34. 9 The withheld draft audit reports are listed in Ex. 58–
Supplemental Vaughn Index for Draft Audit Reports (“OIG Supp. Vaughn Index”) (Aug. 26, 2016), ECF No. 88-6, at 382-94. 10 The withheld records from Beef Checkoff Contractors include
137 records from NCBA, Second Supp. Evans Decl., ECF No. 87-4 ¶¶ 60-196; eight records from the American National Cattle Women, Inc. (“ANCW”), Decl. of Gwen Geis (“Geis-ANCW Decl.”), ECF No. 88-10 ¶¶ 8, 12-15a; four records from the United States Meat Export Federation (“USMEF”), Decl. of Dan Halstrom (“Halstrom-
11 information from various QSBCs.11 Pl. Counter SODF, ECF No. 90-3
¶¶ 177-80. FOIA Exemption 4 protects “trade secrets and
commercial or financial information obtained from a person [that
is] privileged or confidential.” 5 U.S.C. § 552(b)(4).
a. USDA-OIG’s Declarations and Vaughn Indexes are Sufficiently Detailed
OCM contends that USDA-OIG’s declarations and Vaughn
indexes are insufficient to support withholding under Exemption
4. OCM Mot. Summ. J., ECF No. 90 at 37-39. First, OCM argues
that the declarations and Vaughn indexes are conclusory and do
not meet the agency’s burden of proof because they “are replete
with buzzwords . . . but they all lack meaningful substance.”
Id. at 38-39. The Court agrees with USDA-OIG and is persuaded
that the declarations and Vaughn indexes provide sufficient
details about the content of the withheld information.
USMEF Decl.”), ECF No. 88-11 ¶¶ 8, 12-15; and thirteen records from the Meat Import Council of America Inc. (“MICA”), Decl. of Laurie Bryant (“Bryant-MICA Decl.”), ECF No. 88-12 ¶¶ 8, 13-19. See Counter SOMF, ECF No. 90-3 ¶¶ 177-78. 11 Information was redacted from six records from the Kansas Beef
Council (“KBC”), Decl. of Kevin Thielen (“Thielen-KBC Decl.”),ECF No. 88-13 ¶¶ 30-43; five records from the Michigan Beef Industry Council (“MBIC”), Decl. of George Quackenbush (“Quackenbush-MBIC Decl.”), ECF No. 88-14 ¶¶ 26-30; one record from the Nebraska Beef Council (“NBC”), Decl. of Ann Marie Bosshamer (“Bosshamer-NBC Decl.”), ECF No. 88-15 ¶ 26; eleven records from the Pennsylvania Beef Council (“PBC”), Decl. of Bridget Bingham (“Bingham-PBC Decl.”), ECF No. 88-17 ¶¶ 31-41; and one record from the Texas Beef Council (“TBC”), Decl. of Richard Wortham (“Wortham-TBC Decl.”), ECF No. 88-16 ¶ 25. See also Counter SOMF, ECF No. 90-3 ¶¶ 179-80.
12 To justify its withholdings, an agency must provide a
“relatively detailed justification that specifically identifies
the reasons why a particular exemption is relevant and
correlate[s] those claims with the particular part of a withheld
document to which they apply.” S. All. for Clean Energy v. DOE,
853 F. Supp. 2d 60, 67 (D.D.C. 2012) (quoting Mead Data Central,
Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir.
1977)) (internal quotations omitted). “[C]onclusory and
generalized allegations of exemptions” are not sufficient to
justify withholdings. Vaughn v. Rosen, 484 F.2d 820, 826-27
(D.C. Cir. 1973) (finding indexing insufficient where the
government merely claimed that all the withheld documents fell
under three exemptions).
The Vaughn indexes in this case provide document-specific
and exemption-specific descriptions for all documents that were
withheld pursuant to Exemption 4. See AMS Vaughn Index I, ECF
No. 88-33 and AMS Vaughn Index II, ECF No. 88-34. The Vaughn
indexes contain a document-by-document list asserting the basis
and explanation for the withholding and a document description,
including the date of the document, the agency that authored it,
and the contents. See AMS Vaughn Index I & II, ECF Nos. 88-33-
88-34. For example, many of the documents are described as
“accounting journal and financial ledger,” “business ledger
journal entries of ANCW invoices,” or “profit and loss ledger”
13 See Vaughn Index I, ECF No. 88-33, at 28 (AMS007996-008001), 29
(AMS008024-008111), 85 (AMS018319-018324). The document
descriptions for the other documents withheld under Exemption 4
contain similar detail. This level of detail is wholly
distinguishable from Vaughn, where the government failed to
identify which documents fell under which exemptions. 484 F.2d
at 827. Moreover, both the Vaughn indexes and the declarations
from each QSBC and Beef Checkoff Contractor provide the type of
information contained in the withheld document and detailed
reasons for confidentiality, including that the information is
not the kind normally released to the public.12 For these
reasons, the Court concludes that the declarations and Vaughn
indexes are sufficiently detailed.
b. The Financial and Commercial Records from the QSBCs and Beef Checkoff Contractors are Confidential Under Exemption 4
OCM does not dispute that the withheld information
constitutes commercial or financial information obtained from a
person, but disputes that the information is confidential. See
OCM Mot. Summ. J., ECF No. 90 at 31. The Court therefore
12For example, AMS018574-018601 contains “information regarding MBIC’s assets, liabilities, revenue, accounting bases, detailed financial information, administrative expenses, and aggregated information concerning MBIC payroll and employee benefits.” Quackenbush-MBIC Decl., ECF No. 88-14 ¶ 30.
14 addresses whether the information is confidential for purposes
of Exemption 4.
When the parties were initially briefing these issues, the
Court of Appeals for the District of Columbia Circuit’s (“D.C.
Circuit”) test for "confidentiality" depended on whether the
withheld information was compelled or voluntarily submitted to
the government. See Shteynlyuger v. Ctrs. for Medicare &
Medicaid Servs., 698 F. Supp. 3d 82, 118 (D.D.C. 2023); Critical
Mass Energy Project v. Nuclear Regul. Comm’n, 975 F.2d 871, 878-
79 (D.C. Cir. 1992). However, in Food Marketing Institute, the
Supreme Court rejected this distinction and “considered two
conditions that might be required for information provided to
the government to be confidential within the meaning of
Exemption 4: (1) that information is ‘customarily kept private,
or at least closely held, by the person imparting it,’ and (2)
that ‘the party receiving [the information] provides some
assurance that it will remain secret.’”13 Food Mktg. Inst. v.
Argus Leader Media, 588 U.S. 427, 434 (2019) [hereinafter FMI].
FMI clearly requires the first condition, however, neither the
13After the Supreme Court published Food Marketing Institute, the parties submitted briefs containing the supplemental authority and revised arguments on the Exemption 4 withholdings. See ECF Nos. 105, 106, 107, and 109. For Exemption 4, the Court focuses on the arguments in the parties’ supplemental authority briefing.
15 Supreme Court nor the D.C. Circuit have addressed whether the
second condition is necessary for information to be
“confidential.” See Shteynlyuger, 698 F. Supp. 3d at 118. As it
currently stands in this Circuit, "information is confidential
under Exemption 4 if it is of a kind that would customarily not
be released to the public by the person from whom it was
obtained." Id. at *20.
The Court is persuaded that USDA-OIG has met its burden of
showing that the redacted information is generally treated as
private by the owner of the records. The withheld contents
include information such as financial reports, accounting
ledgers, budgets, and vendor contact information. See e.g.,
Bingham-PBC Decl., ECF No. 88-17 ¶¶ 24-26. USDA-OIG provided
declarations from each QSBC and Beef Checkoff Contractor
specifically stating for each document at issue that the
entities have “never publicly disclosed such information.” See,
e.g., id. at ¶¶ 24-26, 31-41 (“PBC has never publicly disclosed
its accounting ledgers and financial journals, employee
allocation worksheets, employee timesheets, financial
statements, vendor invoices, bank statements, or deposit
summaries.”).
OCM does not offer any contradictory evidence of public
disclosure or bad faith that would call the declarations into
question. Rather, OCM argues that the second condition in FMI—
16 government assurance of privacy—is a necessary condition which
is absent from the Beef Act. OCM Resp. to OIG Notice of Supp.
Auth., ECF No. 106 at 2. OCM also argues that the “contractors
do not have an expectation of privacy in information that, by
law, they have no right to keep secret and that they are
required to keep and provide the government . . . .” Id.
However, as discussed above, the D.C. Circuit has not extended
the confidentiality test to require an explicit government
assurance of privacy, leaving the only required condition for
confidentiality whether the information is customarily released
to the public. See Shteynlyuger, 698 F. Supp. 3d at 118;
Renewable Fuels Ass’n v. EPA, 519 F. Supp. 3d 1, 11-13 (D.D.C.
2021) (declining to require a government assurance of privacy
“[a]bsent a Supreme Court holding squarely abrogating Circuit
precedent—which Food Marketing clearly is not”).
Accordingly, the Court concludes that the financial and
commercial records from the QSBCs and Beef Checkoff Contractors
are confidential under Exemption 4.
c. USDA-OIG and NCBA Have Satisfied the Foreseeable Harm Standard
To invoke exemption 4, USDA-OIG and NCBA must also satisfy
the foreseeable harm standard set forth in the FIA. See
Shteynlyuger, 698 F. Supp. 3d at 123-24. “[A]pplication of the
foreseeable-harm standard to Exemption 4 requires a showing of
17 foreseeable commercial or financial harm to the submitter upon
release of the contested information.” Id. at 124 (internal
quotations and citations omitted) (recognizing “that few courts
have considered what burden the foreseeable-harm requirement
imposes on agencies” under Exemption 4). OCM does not contest
whether USDA-OIG and NCBA satisfied the foreseeable harm
requirement. See generally OCM Mot. Summ. J., ECF No. 90.
The Court is persuaded that USDA-OIG and NCBA have
sufficiently established the foreseeable harm that could occur
if the withheld information regarding the Beef Checkoff
Contractors and QSBCs are released to the public. Not only do
the withheld documents contain information on NCBA’s
relationship with vendors, but they also contain detailed
information on NCBA’s “business operations, budgeting,
strategies, and operational efficiencies.” NCBA Mot. Summ. J.,
ECF No. 87 at 48-49. In the hands of NCBA’s competitors or the
public, NCBA has adequately shown that any of this information
alone could foreseeably cause financial and competitive harm.
For all these reasons, as to the 193 documents withheld or
redacted pursuant to Exemption 4, the Court GRANTS USDA-OIG and
NCBA’s Motions for Summary Judgment.
18 2. USDA-OIG and AMS Properly Invoked Exemption 5’s Deliberative Process Privilege to Withhold Documents
FOIA Exemption 5 protects from disclosure “inter-agency or
intra-agency memorandums or letters which would not be available
by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). This exemption encompasses “three
evidentiary privileges: the deliberative process privilege, the
attorney-client privilege, and the attorney work product
privilege.” Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir.
2002). While USDA-OIG withheld documents pursuant to all three
privileges, OCM only contests the documents withheld under the
deliberative process privilege.14
To assert the deliberative process privilege, the agency
must establish that the document at issue is both “predecisional
14Plaintiff’s briefing does not challenge the withholding of certain documents under the attorney-client communications privilege or the attorney work-product privilege. The withheld documents include: (1) emails and memorandum between OIG auditors and the OIG Office of Counsel attorneys; and (2) legal research, internal memorandum and drafts of memorandum prepared by the OIG Office of Counsel attorneys. See Decker Decl., ECF No. 88-3 ¶¶ 139-142. The Court concludes that the records were properly withheld under both privileges because they consist of requests for legal advice, legal research prepared by attorneys, or other attorney work product related to potential litigation in response to the audit. See id.; OIG Vaughn Index I, ECF No. 88-6 at 284-381; see also Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 114 (D.D.C. 2005); Exxon Corp. v. DOE, 585 F. Supp. 690, 700 (D.D.C. 1983). Accordingly, the Court GRANTS USDA-OIG’s Motion for Summary Judgment as to documents withheld pursuant to the attorney-client communications privilege or the attorney work-product privilege.
19 and deliberative.” Machado Amadis v. U.S. Dep’t of State, 971
F.3d 364, 370 (D.C. Cir. 2020). A document is predecisional if
it was “generated before the agency’s final decision on the
matter” and deliberative if it was “prepared to help the agency
formulate its position.” Campaign Legal Ctr. v. U.S. Dep’t of
Just., 34 F.4th 14, 23 (D.C. Cir. 2022) (quoting U.S. Fish &
Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786
(2021)); Vaughn, 523 F.2d at 1136 (describing a “deliberative”
document as “a direct part of the deliberative process in that
it makes recommendations or expresses opinion on legal or policy
matters”). The deliberative process privilege “should be
construed ‘as narrowly as consistent with efficient Government
operation.’” Tax’n With Representation Fund v. I.R.S., 646 F.2d
666, 677 (D.C. Cir. 1981) (quoting EPA v. Mink, 410 U.S. 73, 87
(1973)).
Due to the importance of the factual context of each
document when asserting the deliberative process privilege, the
agency must provide “precisely tailored explanations for each
withheld record at issue.” Nat’l Sec. Couns. v. CIA, 960 F.
Supp. 2d 101, 188 (D.D.C. 2013). “At a minimum, the agency must
provide three basic pieces of information in order for the
deliberative-process privilege to apply: (1) the nature of the
specific deliberative process involved, (2) the function and
significance of the document in that process, and (3) the nature
20 of the decisionmaking authority vested in the document’s author
and recipient.” Id. at 189.
a. There Is No Basis to Invoke the Government Misconduct Exception to the Deliberative Process Privilege
The Court first addresses OCM’s argument that government
misconduct in conducting the audit triggers the government
misconduct exception to the deliberative process privilege, and
therefore, USDA-OIG cannot invoke the privilege with regard to
certain records at issue in this case. See OCM Mot. Summ. J.,
ECF No. 90 at 23-24 (citing In re Sealed Case, 121 F.3d 729, 738
(D.C. Cir. 1997)).
OCM claims that there are two categories of misconduct
here. First, OCM asserts that USDA-OIG failed to act
independently in the audit by “permitting the audited agency
[(AMS)] to participate in the audit’s decision-making process.”
OCM Mot. Summ. J., ECF No. 90 at 23-24. Second, OCM contends
that USDA-OIG misled the public about the extent of AMS’ role in
the audit report. Id. at 24. In support of these allegations,
OCM points to two pieces of evidence suggesting that OIG
breached its duty to act objectively and independently under the
Government Auditing Standards. See id. The first is an email
from Frank Woods, an AMS Audit Liaison Officer, to William
Henderson, USDA-OIG Assistant Director of Audit for Food,
Nutrition, Marketing, and Development, where Mr. Woods wrote,
21 “There is still a LOT of heartburn over the report as written,
and I’m afraid it will reflect poorly on USDA (as a whole) if
released as is.” Ex. 3, ECF No. 90-2 at 10. The second is a
letter from Gil Harden, Assistant Inspector General for Audit at
USDA-OIG, to Mr. Woods and David Shipman, Administrator at AMS,
attaching the “official draft report.” Ex. 5, ECF No. 90-2 at
14. OCM argues that, together, these show AMS played an
improper, “much more influential role” in the audit findings
while giving the public the idea that AMS was minimally
involved. OCM Mot. Summ. J., ECF No. 90 at 24.
Assuming arguendo that the exception applies to FOIA cases,
see Nat’l Whistleblower Ctr. v. Dep’t of Health & Hum. Servs.,
903 F. Supp. 2d 59, 67 (D.D.C. 2021) (concluding the government
misconduct exception can be invoked in a FOIA case); OCM has
not, however, met the high bar required to invoke the exception.
See Ctr. for Pub. Integrity, 486 F. Supp. 3d at 331-32
(emphasizing the extraordinarily narrow application of the
government misconduct exception). “In the rare cases that have
actually applied the exception, the ‘policy discussions’ sought
to be protected with the deliberative process privilege were so
out of bounds that merely discussing them was evidence of a
serious breach of the responsibilities of representative
government,” i.e., “[t]he very discussion ... was an act of
22 government misconduct.” Id.; see also Tax Reform Research Grp.
v. IRS, 419 F. Supp. 415, 426 (D.D.C. 1976).
Here, the evidence does not reach the egregiousness
required to trigger the exception. While the evidence shows that
USDA-OIG communicated and collaborated with AMS regarding the
audit report and that AMS was potentially concerned about the
audit findings, the combination of these does not equate to
evidence that USDA-OIG lost its objectivity and independence
during the audit or that USDA-OIG had a nefarious intent. As
USDA-OIG points out, discussions with the entity being audited
are part of its core responsibilities. OIG Mot. Summ. J., ECF
No. 88-1 at 7–8; see GAO, Gov. Auditing Standards §§ 3.07, 6.62
(Feb. 2024); Ctr. for Pub. Integrity, 486 F. Supp. 3d at 333-34
(finding the government misconduct exception did not apply where
plaintiff failed to show any nefarious intent or that the
withheld contends would reveal egregious government misconduct).
The same is true for Plaintiff’s second theory of
government misconduct—misleading the public. OCM offered no
evidence that USDA-OIG intended to mislead the public. Unlike in
Alexander v. FBI, where the court applied the government
misconduct exception after seeing evidence that the government
knew of the wrong impression it gave to the public, and the
misinformation fostered a pattern of “political cover-up,” here,
there is no evidence that USDA-OIG produced statements or
23 reports giving misinformation to the public, and there is no
evidence that the public was under the impression that AMS did
not assist with the audit report. See Alexander v. FBI, 186
F.R.D. 154, 165-66 (D.D.C. 1999) (a non-FOIA case).
For these reasons, the Court concludes that there is no
basis to invoke the government-misconduct exception to the
deliberative process privilege to certain documents at issue in
this case.
b. The Withheld Documents Are Pre-Decisional and Deliberative
OCM takes issue with USDA-OIG invoking the deliberative
process privilege only for the records listed in OIG’s
Supplemental Vaughn Index for Draft Audit Reports. See OCM Mot.
Summ. J., ECF No. 90 at 23; Supplemental Vaughn Index for Draft
Audit Reports (“OIG Supp. Vaughn Index”) (Aug. 26, 2016), ECF
No. 88-6 at 382-394.15 These withheld documents consist of email
15In total, AMS invoked the deliberative process privilege to withhold or redact thirty-six records, including records containing: (1) emails between CBB and OIG, (2) emails between CBB and AMS, (3) memoranda from CBB to AMS, (4) internal CBB emails, (5) internal CBB documents, and (6) one draft of OIG’s audit report. USDA-OIG withheld an additional 173 records pursuant to the deliberative process privilege consisting of draft audit reports and communications between OIG officers or OIG and AMS/CBB related to the audit. See OIG Vaughn Index I, ECF No. 88-6 at 284; OIG Supp. Vaughn Index, ECF No. 88-6 at 382; OIG Mot. Summ. J., ECF No. 88-1 at 6, 20-21; Feeney declaration and Vaughn Index (ECF No. 88-5 Ex. 3). Plaintiff only challenges the documents in Exhibit 58 as identified above. The Court confirms that the remainder of the withheld records were pre-decisional and deliberative, and therefore were
24 exchanges between USDA-OIG and AMS and “discussion drafts”
attached thereto. See OIG Supp. Vaughn Index, ECF No. 88-6 at
382-394.
As to whether the documents are pre-decisional, OCM argues
that USDA-OIG is wrong to claim that all records prior to the
public release of the final audit report are pre-decisional. See
OCM Mot. Summ. J., ECF No. 90 at 16. However, OCM has failed to
explain why the documents are not pre-decisional. See id. at 9.
The Court is persuaded that USDA-OIG has established that the
withheld documents are pre-decisional because the Vaughn index
and declarations clearly establish that the communications and
exchanged drafts at issue were part of USDA-OIG’s deliberative
process in determining the audit findings, were created prior to
a final decision, and do not reflect the agency’s final
decision. See Decker Decl., ECF No. 88-3 ¶ 129; OIG Supp. Vaughn
Index, ECF No. 88-6 at 382-394. And OCM does not argue that the
communications or the exchanged drafts constituted a final
decision or were treated as law by USDA-OIG, but rather, that
USDA-OIG inappropriately applied a “wholesale exemption for the
entire audit process.” OCM Mot. Summ. J., ECF No. 90 at 15
(internal quotations omitted). This argument fails to address
properly withheld pursuant to the deliberative process privilege and GRANTS USDA-OIG’s Motion for Summary Judgment as to those groups of documents.
25 the applicable legal standard. See Campaign Legal Ctr., 34 F.4th
at 23.
As to whether the records are deliberative, OCM argues that
USDA-OIG is wrong to claim that because the records “play[] a
role in the final audit report,” they are all deliberative. See
OCM Mot. Summ. J., ECF No. 90 at 17. However, OCM has failed to
explain why the documents are not deliberative. See id. at 10.
The Court is persuaded that USDA-OIG has established that the
withheld documents are deliberative. The record establishes that
USDA-OIG communicated with AMS as part of an iterative process
to “obtain necessary information, clarify audit issues, and
discuss possible resolution of the audit findings and
recommendations.” OIG Mot. Summ. J., ECF No. 88-1 at 7; see also
OIG Supp. Vaughn Index, ECF No. 88-6 at 382-394. Clearly, this
“give-and-take” between the agencies supported USDA-OIG’s
efforts in conducting audits and is deliberative in nature.
Accordingly, the Court concludes that the withheld
documents are pre-decisional and deliberative.
c. USDA-OIG Has Satisfied the Foreseeable Harm Standard
To invoke the deliberative process privilege, USDA-OIG must
also satisfy the foreseeable harm standard set forth in the FIA.
See Reps. Comm. for Freedom of the Press, 3 F.4th at 361. Under
this standard, “[a]n agency shall . . . withhold information
26 under this section only if . . . (I) the agency reasonably
foresees that disclosure would harm an interest protected by an
exemption described in subsection (b); or (II) disclosure is
prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i). This is a
“heightened standard for an agency’s withholdings under
Exemption 5.” Jud. Watch, Inc., 375 F. Supp. 3d at 100.
OCM does not contest whether USDA-OIG satisfied the
foreseeable harm standard. The Court is persuaded that USDA-OIG
has sufficiently established the foreseeable harm that could
occur if these communications and “discussion drafts” were
released to the public. Not only would it hinder the ability for
AMS and USDA-OIG to openly communicate in the future, but it
would also confuse the public as to what the final audit
findings were or why certain suggestions were not implemented.
Decker Decl., ECF No. 88-3 ¶ 135. This type of inter-agency
reflection and collaboration is exactly what the deliberative
process privilege was designed to protect.
d. The Court Rejects OCM’s Argument that Exemption 5 Is Inapplicable Here
Finally, OCM argues that “[e]xemption 5 is inapplicable to
communications between an auditing OIG and agencies under
audit,” See OCM Mot. Summ. J., ECF No. 90 at 17; contending that
“[t]he relationship between an auditing Inspector General and an
agency under audit is not ‘deliberative,’” id. at 19; and that
27 “[d]raft documents shared with entities under audit are not
deliberative,” id. at 22. The Court disagrees.
The deliberative process privilege is “[i]ntended to
protect open and frank discussion among government officials to
enhance the quality of agency decisions.” Hardy v. Bureau of
Alcohol, Tobacco, Firearms & Explosives, 243 F. Supp. 3d 155,
163 (D.D.C. 2017) (quoting Dep't of Interior v. Klamath Water
Users Protective Ass'n, 532 U.S. 1, 9 (2001) (internal
quotations omitted)). The Government Accountability Office’s
(“GAO”) Government Auditing Standards require that USDA-OIG
maintain independence while simultaneously obtaining comments
from officials of the audited entity. See GAO, Gov. Auditing
Standards §§ 3.07, 6.62 (Feb. 2024). By communicating with AMS
throughout the audit and providing AMS with draft reports for
comment, USDA-OIG is fulfilling its responsibility of
“develop[ing] a report that is fair, complete, and objective,”
by including the “perspective of the audited entity’s
responsible officials and corrective actions they plan to take.”
Id. at § 6.62. OCM does not cite to, nor can the Court find, any
authority suggesting that there is or should be an exception to
the deliberative process privilege to allow disclosure of the
agencies’ encouraged collaboration.
OCM also argues the exchanged drafts lost any protection
under Exemption 5 when USDA-OIG shared the documents with AMS.
28 OCM Mot. Summ. J., ECF No. 90 at 23-24 (citing Ctr. for Auto
Safety v. DOJ, 576 F. Supp. 739 (D.D.C. 1983)). OCM points the
Court to Center for Auto Safety, arguing that once a document
that may have been deliberative is shared with a self-interested
party, the document loses any claim to withholding under
Exemption 5. Id. Asserting that AMS was a self-interested party
for the purposes of the audit, OCM relies on—but fails to cite
any authority supporting—a “Congressional recognition” that
“agency heads are not disinterested deliberators when evaluating
their own programs,” id. at 24.
However, OCM’s characterization of Center for Auto Safety
misses several key aspects of the court’s holding. In Center for
Auto Safety, the court held that records were disqualified for
protection under Exemption 5 when the Department of Justice
(“DOJ”) released the records to the public, which was also the
DOJ’s adversary, during ongoing negotiations. Ctr. for Auto
Safety, 576 F. Supp. at 747. Here, drafts here were exchanged
between two government agencies as required by auditing
standards. See GAO, Gov. Auditing Standards § 6.62; see also
Hamilton Sec. Grp. v. Dep’t of Hous. & Urb. Dev., 106 F. Supp.
2d 23, 31-32 (D.D.C. 2000) (holding drafts fell under
deliberative process privilege despite knowing that OIG’s audit
process included receiving two rounds of auditee comments).
Accordingly, the Court concludes that sharing the draft reports
29 with AMS does not rid them of their protection under Exemption
5.
e. The Vaughn Index and Declarations Are Adequate
OCM argues that the Vaughn index and declarations provided
by the government “aren’t even close to the precisely tailored
explanations for each document required to assert a deliberative
process privilege.” OCM Mot. Summ. J., ECF No. 90 at 8 (internal
quotations omitted). OCM claims that USDA-OIG’s Vaughn entries
merely “contain the same boilerplate text in the justification
for withholding section.” Id. at 21. After reviewing the Vaughn
index for the documents at issue and the available declarations,
the Court agrees with USDA-OIG that the detail provided is
adequate. The Supplemental Vaughn Index for Draft Reports
provides the document date, the author(s) of the document
(including the author’s agency and role in the audit), the part
of the deliberative process the document was part of, and the
role of the document in that process. See OIG Supp. Vaughn
Index, ECF No. 88-6 at 382-394.
Moreover, the Vaughn index and declarations clearly
establish the deliberative, give-and-take nature of the
communications and exchanged drafts. The withheld emails and
attached drafts between AMS and USDA-OIG contain back and forth
comments and suggestions between the agencies. See e.g., id. at
30 386 (“[T]hese discussion draft versions contain Donald Pfeil’s
and Joseph Mickiwicz’s assessments and comments . . . relat[ing]
to existing comments from AMS.”). For example, bates number 746
is an “[i]nternal email cover, dated December 6, 2012, attaching
an audit report discussion draft titled, ‘CBB Audit Discussion
Draft 12-6-12.docx,’ containing AMS’ views.” Id. at 383. After
listing the authors and recipients of the email and discussion
draft, USDA-OIG notes, “AMS sent this document to OIG in
response to OIG’s request for comments on the discussion draft.”
Id. The email and attached draft contained AMS’ “opinions and
assessments” on the draft report. Id. This description makes it
clear that the withheld records contain AMS’ opinions on USDA-
OIG’s draft audit report. The detail provided by USDA-OIG is
significantly distinguishable from that in Muttitt v. Department
of State cited by Plaintiff. See OCM Mot. Summ. J., ECF No. 90
at 28. In Muttitt, the Vaughn index did not tell the court
anything more than the document was written by “two unidentified
personnel in two unidentified government agencies exchang[ing]
some sort of ‘comments’ about some unspecified ‘aspect’ of a
negotiation . . . .” Muttitt v. Dep’t of State, 926 F. Supp. 2d
284, 307 (D.D.C. 2013). Accordingly, the Court concludes that
the Vaughn Index and declarations are adequate to withhold the
documents under Exemption 5.
31 For these reasons, the Court concludes that USDA-OIG
properly invoked Exemption 5 to protect the documents identified
in the Supplemental Vaughn Index for Draft Audit Reports, Ex.
58, ECF No. 88-6 at 382-394.
C. Segregability
“The focus of the FOIA is information, not documents.” Mead
Data Cent., Inc., 566 F.2d at 260. Therefore, “even if some
materials from the requested record are exempt from disclosure,
any ‘reasonably segregable’ information from those documents
must be disclosed after redaction of the exempt information
unless the exempt portions are ‘inextricably intertwined with
exempt portions.’” Johnson v. Exec. Off. for U.S. Att’ys, 310
F.3d 771, 776 (D.C. Cir. 2002) (quoting 5 U.S.C. § 552(b)).
The agency must provide “a detailed justification and not
just conclusory statements to demonstrate that all reasonably
segregable information has been released.” Valfells v. CIA, 717
F. Supp. 2d 110, 120 (D.D.C. 2010) (citation and internal
quotation marks omitted). The Court has an “affirmative duty” to
ensure that the agency satisfies its segregability obligations.
Trans–Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d
1022, 1028 (D.C. Cir. 1999). “Agencies are entitled to a
presumption that they complied with the obligation to disclose
reasonably segregable material,” which must be overcome by some
32 “quantum of evidence” from the FOIA requester. Sussman v. U.S.
Marshals Serv., 494 F. 3d 1106, 1117 (D.C. Cir. 2007).
Here, Mr. Brook, AMS’ FOIA Officer, affirmed the agency’s
diligence in conducting a review to identify non-exempt
material, averring that “AMS produced to OCM responsive
documents with redactions, segregating out non-exempted from
exempted information.” Decl. of Mark R. Brook (“Brook Decl.”),
ECF No. 88-7 ¶¶ 135-36.
With regard to the Exemption 4 withholdings, OCM argues
that the declarations and Vaughn indexes fail to “explain why
records relating to checkoff-contracted services cannot be
separated from non-checkoff business records.” OCM Mot. Summ.
J., ECF No. 90 at 40. To rebut the presumption that the agency
complied with its obligation to release segregable material, the
requester must offer “evidence that would warrant a belief by a
reasonable person” to believe segregable information exists. Id.
Only after the presumption is rebutted does the burden shift to
the government to prove no segregable information exists. Id.
OCM offered no evidence demonstrating that segregable
information exists. OCM’s claim that Beef Checkoff financial
records should be segregable from the entities’ non-checkoff
funds not only fails to rebut the presumption, but it also
assumes that OCM would be entitled to Beef Checkoff financial
records. Id. at 39. Given that the Court has concluded that all
33 financial records from the Beef Checkoff Contractors and QSBCs
are “confidential” under Exemption 4, OCM’s argument is
unpersuasive.
With regard to the Exemption 5 withholdings, Mr. Brook’s
declaration together with the Court’s determination that the
information has been properly withheld under the exemption, are
sufficient to trigger the presumption that the agencies
satisfied their FOIA obligations with respect to segregability.
The Court concludes that USDA-OIG’s Vaughn Indexes and
declarations demonstrate that all reasonably segregable, non-
exempt information has been released to OCM. Accordingly, the
Court GRANTS USDA-OIG’s Motion for Summary Judgment and NCBA’s
Motion for Summary Judgment as to USDA-OIG’s segregability
obligations.
V. Conclusion
For the foregoing reasons, the Court GRANTS USDA-OIG’s
Motion for Summary Judgment, ECF No. 88; GRANTS NCBA’s Motion
for Summary Judgment, ECF No. 87; and DENIES OCM’s Cross-Motion
for Summary Judgment, ECF No. 90. An appropriate order
accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan United States District Judge November 12, 2024