Cornucopia Inst. v. Agric. Mktg. Serv., No. 16-00866, 2018 WL 2223648 (D.D.C. May 14, 2018) (McFadden, J.)

Cornucopia Inst. v. Agric. Mktg. Serv., No. 16-00866, 2018 WL 2223648 (D.D.C. May 14, 2018) (McFadden, J.)

Re:  Request for investigative files for five operations targeted for investigation by National Organic Program

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "the Government's search team looked in the pertinent shared electronic drives and in headquarters hard-copy files, and then conducted extensive follow up searches for specific documents."  "By searching [the locations where "[t]he Government knows that it 'stores . . . [the requested information],'" the Government conducted a search 'reasonably calculated to uncover' the investigative files at issue."  "[Plaintiff] offers only speculation that the Government would have been better served using search terms (even though investigative files are organized by complaint number), or looking in other databases or offices, and speculation cannot rebut the presumption of good faith given to agency declarations."
   
• Exemption 4:  First, the court holds that "context proves that the redacted product labels were publicly posted, not unpublished."  The court explains that, "[s]ince the labels were being publicly displayed, and thus the subject of the cease and desist notice, the Government cannot invoke Exemption 4's protection for 'confidential' information."  "The Government seems to have obtained this information voluntarily, using product labels that were being customarily (and illegally) displayed to the public."  "The labels were therefore not confidential."  "Since the Government has failed to establish that Exemption 4 applies, FOIA requires disclosure."  Responding to defendant's waiver-based counter-argument that "'the party favoring disclosure has the burden of demonstrating that the information sought is identical to information already publicly available[,]'" the court finds that "'[t]he "identical information" basis for disclosure is . . . entirely distinct from the "customary disclosure" standard.'"
   
• Exemption 5, Deliberative Process Privilege & Attorney-Client Privilege:  The court holds that defendant largely appropriately withheld "'draft notices' of civil penalties and proposed settlement, 'draft . . . recommendations on whether to uphold adverse actions,' draft requests to investigate, internal communications about investigations, proposed penalties, and settlements, and 'communications . . . between NOP and the USDA, Office of General Counsel regarding the investigations.'"  However, the court finds that "[b]ecause the Government has offered only the most conclusory of justifications [concerning two documents] – an unexplained '(b)(5)' claim without reference to even a specific privilege – the Plaintiff has established that no genuine dispute on an issue of material fact precludes disclosure of this document."  Finally, the court rejects "[plaintiff's] argu[ment] that the Government improperly withheld portions of 'proposed settlement agreements' under the deliberative process privilege, since any final agreements or communications with external, non-government actors would not be privileged."  The court finds that, "as the Government has explained in detail, each of these draft settlement agreements were 'created within [the Agricultural Marketing Service],' and are 'the author’s recommendations about what the final version should state . . . created before the agency made any decision regarding the settlement.'"  "This amply satisfied the requirements for the deliberative process privilege."
   
• Litigation Considerations, In Camera Inspection & "Reasonably Segregable" Requirements:  The court finds that, "[a]s for [one specific document], [plaintiff] offers nothing but speculation for the proposition that FOIA's reasonably segregability requirement has been violated."  "The mere possibility of error does not warrant in camera review."