Cornucopia Institute v. United States Department of Agriculture

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CORNUCOPIA INSTITUTE, :
:
Plaintiff, :
: Civil Action No.: 16-148 (RC)
v. :
: Re Document Nos.: 28, 29
UNITED STATES DEPARTMENT OF :
AGRICULTURE, :
:
Defendant. :

MEMORANDUM OPINION

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

I. INTRODUCTION

In early 2013, The Cornucopia Institute (“Cornucopia”) requested records from the

Agricultural Marketing Service (“AMS”), a component of the United States Department of

Agriculture (“USDA”), primarily regarding visits in 2012 by officials from the USDA’s National

Organic Program (“NOP”) to organic dairies in Texas and New Mexico. Unsatisfied with the

agency’s response, Cornucopia brought this Freedom of Information Act (“FOIA”) lawsuit.

Presently before the Court are the parties’ cross-motions for summary judgment, which concern

the propriety of AMS’s withholding of certain portions of responsive records under FOIA

Exemptions 4 and 5. For the reasons explained below, the Court concludes that the agency has

justified the vast majority of its withholdings. Accordingly, as to all records except for

photographs taken during the Texas and New Mexico trip—–which AMS must disclose—the

Court grants the agency’s motion for summary judgment and denies Cornucopia’s motion for the

same.
 II. BACKGROUND

In January 2013, Cornucopia submitted a FOIA request to AMS seeking, “information

regarding visits to organic dairies in Texas and New Mexico by Matthew Michael, the Director

of the NOP’s Compliance and Enforcement Division, and Deputy Administrator Miles McEvoy,

or any other USDA official or agent acting at NOP’s request.” Def.’s Statement of Material

Facts as to Which There is No Genuine Issue (“Def.’s SMF”) ¶ 1, ECF No. 28. 1 Cornucopia also

sought materials related to any other dairies that were “visited directly by NOP staff in 2012.”

Def.’s SMF ¶ 1. In May 2013, AMS sent an interim response to Plaintiff, releasing a batch of

responsive documents, with redaction of some responsive material. Def.’s SMF ¶ 3. AMS also

indicated that additional responsive records would be forthcoming. Def.’s SMF ¶ 3. On various

occasions between October 15, 2014 and October 7, 2015, Cornucopia requested updates

regarding the status of the FOIA request, and, after each request for a status update, AMS

informed Cornucopia that it was still processing records for the FOIA response. See Def.’s SMF

¶¶ 4–7. AMS also noted that it had contacted certain dairies to determine whether the responsive

records contained any business confidential information. See Def.’s SMF ¶ 5; Compl. ¶ 19, ECF

No. 1; see also Predisclosure Notification Procedures for Confidential Commercial Information,

Exec. Order No. 12600, 52 Fed. Reg. 23, 781 (June 23, 1987) (requiring notice to submitters of

confidential commercial information whenever an agency determines that it may be required to

disclose that information under FOIA and requiring an agency to give the submitter an

1
All citations to Defendant’s Statement of Material Facts as to Which There is No
Genuine Issue reflect facts that Cornucopia does not dispute. See Pl.’s Statement of Material
Facts to Which There is No Genuine Issue, & Response to Def.’s Statement of Material Facts to
Which There is No Genuine Dispute ¶ 1, ECF No. 30-1.

2
opportunity to object to disclosure). Displeased with the delay, Cornucopia filed this lawsuit in

January 2016. See Def.’s SMF ¶ 8; Compl. ¶ 24–26.

Since Cornucopia filed this suit, AMS has provided a total of 4,254 pages of responsive

records, with portions of certain records redacted under FOIA Exemptions 4, 5, and 6. See Mem.

of L. in Supp. of Def.’s Mot. Summ. J. (“Def.’s MSJ”) at 1, 11–45, ECF No. 28; see also Def.’s

SMF ¶ 11. Most of the responsive records for which AMS has asserted FOIA exemptions relate

to visits by NOP Deputy Administrator McEvoy and Director Michael to six organic dairy

operations—Aurora Organic Dairy; Boehning Dairy, LLC; Redland Dairy; Hilltop Dairy, LLC;

Native Pastures Dairy; and Natural Prairie Dairy Farm, LLC—between July 24 and July 27,

2012. See Def.’s SMF ¶¶ 60–61. According to AMS, the main purposes of the July 2012 trip

were to assess the implementation of a pasture rule by accredited certifying agents (“ACAs”)—

non-agency entities that are accredited by the USDA to issue certificates to organic operations

that comply with USDA organic regulations, Def.’s SMF ¶ 32—and by ruminant operations, and

to evaluate how a 2012 drought was impacting operators. Def.’s SMF ¶ 60. While touring the

organic dairy farms, officials also evaluated, among other things, how the organic dairy farms

were sourcing replacement heifers and how farms and dairy processors were coordinating

sanitizer use of bulk milk trucks. Def.’s SMF ¶ 60.

In preparing to tour the six dairies, AMS obtained records that are responsive to

Cornucopia’s FOIA request. Many records were either created by the dairies themselves as part

of the process of obtaining certification from an accredited certifying agent or were created by an

ACA as part of the same certification process. See Def.’s SMF ¶ 62. For each of the six dairy

operations, AMS received the operation’s organic system plans, or OSPs. See Def.’s SMF ¶ 62.

An OSP—which, according to AMS, serves as “the foundation of the organic certification

3
process,” Def.’s SMF ¶ 34—contains detailed information about all stages of an operation’s

production process. See Def.’s SMF ¶ 34–35; see also 7 U.S.C. § 6502(13) (defining “organic

plan” as “a plan of management of an organic farming or handling operation . . . that includes

written plans concerning all aspects of agricultural production or handling described in this

chapter including crop rotation and other practices as required under th[e] chapter”). ACAs use

OSPs to determine whether an organic operation has complied with statutory requirements and

qualifies for organic labeling. See Def.’s SMF ¶ 35. According to AMS, OSPs are specific to

each organic operation and describe in detail the operation’s business model. See Def.’s SMF ¶

36. In addition to OSPs, AMS obtained records such as the dairies’ respective applications for

organic certification, correspondence between the dairies and ACAs responsible for assessing

them, inspection reports developed by the ACAs and attachments to those reports, the ACAs’

inspection findings, and organic certificates issued by the ACAs. See Def.’s SMF ¶ 62 (listing

which types of documents AMS received about each dairy operation). AMS received input from

the six affected organic dairies, objecting to the disclosure of certain information in AMS’s

possession as both confidential business information and trade secret information. See Def.’s

SMF ¶¶ 9–25.

Aside from materials created by the dairies or by ACAs, AMS identified internal agency

records as responsive to Cornucopia’s FOIA request, including email correspondence, an

itinerary for the Texas and New Mexico trip, a trip report and drafts of that report, and

photographs taken during the trip. Def.’s SMF ¶ 63. With respect to Cornucopia’s request for

records regarding other visits by NOP staff to dairies in 2012, AMS identified as responsive

certain audit plans and cost estimates generated by AMS’s Audit, Review, and Compliance

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Branch; NOP certification file review worksheets; NOP witness audit checklists; external AMS

email communications; and an OSP of another dairy operation. 2 See Def.’s SMF ¶ 64.

Cornucopia does not challenge the adequacy of AMS’s search, 3 and does not contest any

redactions pursuant to FOIA Exemption 6. However, Cornucopia questions the appropriateness

of certain of the AMS’s redactions under FOIA Exemptions 4 and 5. The parties’ cross-motions

for summary judgment are now ripe for the Court’s review.

III. LEGAL STANDARD

The Freedom of Information Act, or FOIA, “sets forth a policy of broad disclosure of

Government documents in order ‘to ensure an informed citizenry, vital to the functioning of a

democratic society.’” FBI v. Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v. Robbins

Tire & Rubber Co., 437 U.S. 214, 242 (1978)); see also Judicial Watch v. U.S. Dep’t of Defense,

847 F.3d 735, 738 (D.C. Cir. 2017) (“Congress enacted FOIA to give the public ‘access to

official information long shielded unnecessarily from public view.’”). The Act mandates release

of properly requested federal agency records unless the materials fall squarely within one of nine

statutory exemptions. Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011); Students Against

Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2011) (citing 5 U.S.C. § 552(a)(3)(A),

(b)).

2
Unlike the six previously mentioned dairy operations, this dairy operation did not
object to the release of information that might otherwise be protected under a FOIA exemption.
See Def.’s SMF ¶¶ 26–27.
3
Cornucopia’s cross-motion for summary judgment initially challenged the adequacy of
the AMS’s search, arguing that it had failed to follow up on known leads that might have
uncovered additional responsive records. See Pl.’s Mem. Supp. Mot. Summ. J. at 5–8, ECF No.
30. However, AMS has provided evidence of follow-up actions, and Cornucopia apparently
agrees that AMS has satisfied its search obligations. See Pl.’s Reply, ECF No. 33; Def.’s Supp.
Reply to Pl.’s Reply in Supp. of Pl.’s Renewed Mot. for Summ. J. at 1–2, ECF No. 35.

5
 “FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing

Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). The agency is

entitled to summary judgment if no material facts are genuinely in dispute and the agency

demonstrates “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.” Competitive Enter. Inst. v. EPA, 232 F. Supp.

3d 172, 181 (D.D.C. 2017). “This burden does not shift even when the requester files a cross-

motion for summary judgment because ‘the Government ultimately has the onus of proving that

the documents are exempt from disclosure,’ while the ‘burden upon the requester is merely to

establish the absence of material factual issues before a summary disposition of the case could

permissibly occur.’” Hardy v. ATF, 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (brackets omitted)

(quoting Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999)).

To carry its burden, the agency must provide “a relatively detailed justification,

specifically identifying the reasons why a particular exemption is relevant and correlating those

claims with the particular part of the withheld document to which they apply.” Elec. Privacy

Info. Ctr. v. U.S. Drug Enf’t Agency, 192 F. Supp. 3d 92, 103 (D.D.C. 2016) (quoting Mead Data

Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). “[T]he government

cannot justify its withholdings on the basis of summary statements that merely reiterate legal

standards or offer ‘far-ranging category definitions for information.’” Citizens for Responsibility

& Ethics in Wash. v. U.S. Dep’t of Justice, 955 F. Supp. 2d 4, 13 (D.D.C. 2013) (quoting King v.

U.S. Dep’t of Justice, 830 F.2d 210, 221 (D.C. Cir. 1987)). A court will endorse an agency’s

decision to withhold records if the agency’s justification for invoking a FOIA exemption

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“appears ‘logical’ or ‘plausible.’” Pinson v. U.S. Dep’t of Justice, 245 F. Supp. 3d 225, 239

(D.D.C. 2017) (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)). Nonetheless,

“exemptions from disclosure must be narrowly construed . . . and conclusory and generalized

allegations of exemptions are unacceptable.” Morley v. CIA, 508 F.3d 1108, 1114–15 (D.C. Cir.

2007) (citation and internal quotation marks omitted).

IV. ANALYSIS

The cross-motions for summary judgment presently before the Court concern the

appropriateness of AMS’s invocation of FOIA Exemptions 4 and 5 to shield portions of records

responsive to Cornucopia’s request for information primarily regarding visits by officials from

the USDA’s NOP to organic dairies in Texas and New Mexico in July 2012. See Def.’s MSJ at

13–45; Pl.’s Mem. Supp. Mot. Summ. J. at 9–25, ECF No. 30 (“Pl.’s MSJ). As explained below,

the Court concludes—contrary to Plaintiff’s objections—that the agency has provided logical

and plausible bases for most of its withholdings under FOIA Exemptions 4 and 5, that the agency

has provided detailed justifications supporting its segregability determinations, and that in

camera review of the disputed documents in not warranted in this case. Accordingly, except as

to the photographs taken during the Texas and New Mexico trip—which AMS must disclose—

the Court grants Defendant’s motion for summary judgment, and denies Plaintiff’s cross-motion

for the same.

A. FOIA Exemption 5

Citing FOIA Exemption 5’s deliberative process privilege, AMS has withheld portions of

four categories of records: (1) the Texas and New Mexico Trip Report and drafts of that report,

(2) photographs from the Texas and New Mexico trip, (3) two intra-agency email

correspondence, and (4) NOP witness audit checklists. See Def.’s MSJ at 13–20. Cornucopia

7
contends that, with respect to each of the categories except for the NOP witness audit checklists,

AMS has failed to show that the material withheld under the deliberative process privilege

relates “to any specific agency decision making process, as opposed to a general fact gathering

investigation by the agency’s site visits to various organic farm facilities.” Pl.’s MSJ at 11. As

explained below, the Court concludes that AMS has satisfied its burden of showing that it

properly invoked the deliberative process privilege to withhold three of the four categories of

disputed records. However, AMS has not met its burden of showing that photographs from the

Texas and New Mexico trip are properly withheld under the deliberative process privilege.

FOIA Exemption 5 shields “inter-agency or intra-agency memorandums or letters that

would not be available by law to a party . . . in litigation with the agency[.]” 5 U.S.C. §

552(b)(5). “To qualify, a document must . . . satisfy two conditions: its sources must be a

Government agency, and it must fall within the ambit of a privilege against discovery under

judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior

v. Klamath Water Users Protective Ass’n (“Klamath”), 532 U.S. 1, 8 (2001). “Exemption 5

‘incorporates the traditional privileges that the Government could assert in civil litigation against

a private litigant’—including the presidential communications privilege, the attorney-client

privilege, the work product privilege, and the deliberative process privilege—and excludes these

privileged documents from FOIA’s reach.” Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir.

2008) (quoting Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir.

2006)).

In this case, AMS invokes the deliberative process privilege, which “protects ‘documents

reflecting advisory opinions, recommendations and deliberations comprising part of a process by

which government decisions and policies are formulated.’” Loving, 550 F.3d at 38 (quoting

8
Klamath, 532 U.S. at 8). The “privilege rests on the obvious realization that officials will not

communicate candidly among themselves if each remark is a potential item of discovery and

front page news, and its object is to enhance the quality of agency decisions, by protecting open

and frank discussion among those who make them within the Government[.]” Klamath, 535

U.S. at 8–9 (internal citations and quotation marks omitted). The privilege “helps to prevent

premature disclosure of proposed policies and protects against public confusion through the

disclosure of documents suggesting reasons for policy decisions that were ultimately not taken.”

Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252, 258–59 (D.D.C. 2004).

“To fall within the deliberative process privilege, materials must bear on the formulation

or exercise of agency policy-oriented judgment.” Petroleum Info. Corp. v. U.S. Dep’t of Interior,

976 F.2d 1429, 1435 (D.C. Cir. 1992) (emphasis in original). A record qualifies for withholding

only if it is both “predecisional” and “deliberative[.]” Access Reports v. U.S. Dep’t of Justice,

926 F.2d 1192, 1194 (D.C. Cir. 1991). “A document is predecisional if it is ‘generated before

the adoption of an agency policy.’” McKinley v. FDIC, 744 F. Supp. 2d 128, 138 (D.D.C. 2010)

(quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).

Records are “deliberative” if they reflect “the give-and-take of the consultative process.”

Coastal States Gas Corp., 617 F.2d at 866. “[T]o come within the privilege and thus within

Exemption 5, the document must be a direct part of the deliberative process in that it makes

recommendations or expresses opinions on legal or policy matters.” Vaughn v. Rosen, 523 F.2d

1136, 1143–44 (D.C. Cir. 1975). The key question in determining whether the material is

deliberative “is whether disclosure of the information would ‘discourage candid discussion

within the agency.’” Access Reports, 926 F.2d at 1195 (quoting Dudman Commc’ns Corp. v.

U.S. Dep’t of Air Force, 815 F.2d 1565, 1567–68 (D.C. Cir. 1987)). To meet its burden, an

9
“agency must establish ‘what deliberative process is involved, and the role played by the

documents in issue in the course of that process.’” Senate of the Commonwealth of P.R. ex rel.

Judiciary Comm. v. U.S. Dep’t of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987) (quoting

Coastal States Gas Corp., 617 F.2d at 868). However, an agency need not “identify a specific

decision in connection with which a memorandum is prepared.” N.L.R.B. v. Sears, Roebuck &

Co., 421 U.S. 132, 151 n.18. Rather, the agency must show that “the document was generated as

part of a definable decision-making process.” Gold Anti-Trust Action Comm., Inc. v. Bd. of

Governors of the Fed. Reserve Sys., 762 F. Supp. 2d 123, 135–36 (D.D.C. 2011).

AMS has satisfied its burden of showing that three of the four categories of records for

which it has asserted the deliberative process privilege—all categories except for photographs

taken during the Texas and New Mexico trip—qualify for protection. The first category of

records is the Texas and New Mexico Trip Report and drafts of that report. See Def.’s MSJ at

15. AMS explains that the Texas and New Mexico Report arose out of NOP Deputy

Administrator McEvoy and former Director Michael’s July 2012 trip to six dairies in Texas and

New Mexico. See Def.’s MSJ at 15. The purposes of that trip were to determine how effectively

ACAs and organic ruminant operations were implementing an NOP pasture rule; to decide

whether NOP needed to modify the pasture rule; and to evaluate how a 2012 drought was

impacting operators. See Def.’s MSJ at 15; Def.’s Reply at 16. Upon returning from the trip, at

the direction of the NOP Deputy Administrator McEvoy and former Director Michael, AMS

employees created the Trip Report, which, according to AMS, set out then-current opinions and

assessments on myriad issues. See Def.’s Reply at 16.

AMS contends that it has redacted opinions and assessments from the report by AMS

employees regarding (1) whether specifically identified operations visited during the trip were

10
able to meet NOP regulations, including the NOP pasture rule, due to drought conditions; (2) the

accuracy of operators’ interpretations of the pasture rule and opinions regarding how NOP might

clarify what the pasture rule requires; (3) the effects on the temporary variances NOP had issued

to ruminant livestock producers in 2011; (4) whether the organic producers were complying with

regulations concerning sanitizer use in bulk milk trucks; (5) how effectively organic producers

were sourcing replacement livestock and whether NOP regulations regarding replacement

livestock were being accurately interpreted; (6) whether the organic producers that NOP visited

were complying with USDA organic regulations concerning approved sanitizers for milk trucks;

(7) whether the NOP regulations regarding milk parlors were being accurately interpreted; and

(8) general assessments regarding the understanding of USDA organic regulations. Decl. of

Gregory Bridges (“First Bridges Decl.”) ¶ 19, ECF No. 28-2. AMS maintains that, at the time

that the Trip Report was created, the agency had not reached any final determinations regarding

any of these matters. See Third Decl. of Gregory Bridges (“Third Bridges Decl.”) ¶ 9, ECF No.

31-1. Furthermore, the report and drafts of the report were passed between USDA NOP

personnel. See Vaughn Index at 163–68, Michael Decl. Attachment 14, ECF No. 28-1.

Contrary to Plaintiff’s argument, the Court concludes that AMS has shown that the Texas

and New Mexico Trip Report and drafts of that report were generated as part of several definable

decisionmaking processes. According to AMS, the report, which was commissioned by NOP

Deputy Administrator McEvoy and former Director Michael, offered AMS employees’

assessments regarding, among other things, whether certain dairies were accurately interpreting

USDA organic regulations and whether operators were complying with certain regulations. The

report—and prior drafts of the report—are predecisional because the agency had yet to officially

adopt any approach to or take any position on the issues that were addressed in the report. See

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Third Bridges Decl. ¶ 9; see also In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d 150,

161 (D.D.C. 2017) (“‘Developing a position on actions that another decision-maker might take is

workaday agency business, not nefarious government activity, and opinions meant to contribute

towards that deliberative process’ are privileged (quoting ICM Registry, LLC v. U.S. Dep’t of

Commerce, 538 F. Supp. 2d 130, 135 (D.D.C. 2008)); see also, e.g., Nat’l Sec. Archive v. CIA,

752 F.3d 460, 463 (D.C. Cir. 2014) (concluding that draft agency history was covered by the

deliberative process privilege regardless of whether the draft evolved into a final document).

Likewise, the report is deliberative because it describes findings from the Texas and New

Mexico trip and assesses how the agency may proceed in light of those findings. See Hall &

Associates LLC v. EPA, 315 F. Supp. 3d 519, 538 (D.D.C. 2018) (“The draft status is a

significant feature of [the disputed] records, because the D.C. Circuit has specifically held that

the deliberative process privilege covers, inter alia, ‘draft documents’ that ‘reflect the personal

opinions of the writer rather than the policy of the agency.’” (quoting Coastal States, 617 F.2d at

866)). The agency need not point to any more specific decisionmaking processes to satisfy its

burden of showing that FOIA Exemption 5 properly applies. See Sears, Roebuck & Co., 421

U.S. at 151 n.18 (“Agencies are, and properly should be, engaged in a continuing process of

examining their policies; this process will generate memoranda containing recommendations

which do not ripen into agency decisions[.]”); Citizens for Responsibility & Ethics in Wash. v.

U.S. Dep’t Homeland Sec., 514 F. Supp. 2d 36, 46–47 (D.D.C. 2007) (finding that “documents

consist[ing] of reports regarding various problems relating to the ongoing response to

[Hurricane] Katrina and suggesting solutions and approaches and draft situation reports” qualify

for protection under the deliberative process privilege) (emphasis in original).

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 The second category of documents for which AMS has cited the deliberative process

privilege is photographs captured during the Texas and New Mexico trip. See Def.’s MSJ at 16.

According to AMS, the photographs were taken to assist with the processes of assessing, among

other things, how effectively the ACAs and organic ruminant operations were implementing the

NOP pasture rule, how the 2012 drought was impacting operators, and whether operators

understood and were following USDA regulations. See Def.’s MSJ at 15–16. Though factual in

nature, AMS argues that the photographs are protected by the deliberative process privilege

because the decision of what images to capture reflects what information certain agency

decisionmakers perceived as important during the trip. See Def.’s Reply at 17. To reveal the

images would offer insight into the inputs that were used to make decisions within the agency.

See Def.’s Reply at 17.

The Court finds that AMS has not shown that the photographs are properly shielded by

the deliberative process privilege. Under this Circuit’s “functional approach” to the deliberative

process privilege, “the legitimacy of withholding does not turn on whether the material is purely

factual in nature . . . , but rather on whether the selection or organization of facts is part of an

agency’s deliberative process[,]” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d

504, 513 (D.C. Cir. 2011). “Under this functional approach, an agency may not rely on the

deliberative process privilege unless, if disclosed, the factual information would reveal

something about the agency’s deliberative process or if the factual information is inextricably

intertwined with the deliberative sections of documents.” Hardy v. ATF, 243 F. Supp. 3d 155,

165 (D.D.C. 2017) (internal quotation marks and citations omitted). AMS contends that the

photographs were taken for the express purpose of aiding the agency in evaluating, among other

things, whether dairies understood and were complying with agency regulations and how the

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2012 drought was impacting operators. See Def.’s Reply at 16–17. And AMS suggests that in

determining what to capture on camera during the trip, agency employees made value judgments

about what material might be useful in their several decisionmaking processes. See id. But this

Court is not persuaded that photographs taken under such circumstances necessarily qualify for

protection under the deliberative process privilege.

First, the Circuit rejected a similar argument for protection of factual information

included in a report in Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931 (D.C.

Cir. 1982). In that case, an agency argued that the deliberative process privilege shielded, in its

entirety, a report prepared by agency personnel because the report “reflect[ed] the choice,

weighing, and analysis of facts by the task force” and “the very narration of the facts . . .

reflect[ed] the evidence selected and credited.” Id. at 935 (internal quotation marks and citations

omitted). The Circuit disapproved of blanket application of the deliberative process privilege,

explaining that “[a]nyone making a report must of necessity select the facts to be mentioned in it;

but a report does not become part of the deliberative process merely because it contains only

those facts which the person making the report thinks material.” Id. “If this were not so, every

factual report would be protected as part of the deliberative process.” Id.

The same considerations that led the Circuit to reject the arguments in Playboy

Enterprises apply as to the photographs at issue in this case. It cannot be that the mere act of

taking a photograph—an act during which the photographer necessarily elects to capture only

certain images—alone renders the photograph part of the deliberative process. That AMS

employees captured only certain images during the Texas and New Mexico trip and that those

images played some unspecified role in the agency’s decisionmaking processes does not suffice

to show that the deliberative process privilege applies. Cf., e.g., Hardy, 243 F. Supp. 3d at 171–

14
73 (finding that the deliberative process privilege did not cover electronic survey data that an

agency had argued would reveal “what information was reliable and relevant to the findings in a

final report.”).

Second, AMS offers no indication that the disputed photographs might be the sort of

factual information to which courts in this district have applied the deliberative process privilege.

AMS does not argue, for example, that the disputed photographs were culled from a larger subset

of photographs and presented to a decisionmaker for use in any decisionmaking process. Cf.

Montrose Chem. Corp. v. Train, 491 F.2d 63, 71 (D.C. Cir. 1974) (“The work of the assistants in

separating the wheat from the chaff is surely just as much part of the deliberative process as is

the later milling by running the grist through the mind of the administrator.”). Indeed, AMS fails

to explain—other than in broad and vague terms—the role that these photographs played in any

decisionmaking process. Cf. Hardy, 243 F. Supp. 3d at 168 (explaining that “[w]hether the

deliberative process privilege applies is necessarily ‘dependent upon the individual document

and the role it plays in the administrative process’” (quoting Coastal States, 617 F.2d at 867)).

Likewise, AMS’s submissions offer no indication of why the release of these disputed

photographs might reveal anything about the agency’s deliberative processes. Because it

appears, based on the submissions before the Court, that the photographs taken during the Texas

and New Mexico trip are factual in nature and because AMS has failed to articulate how release

of the photographs might allow inquiry into agency decisionmakers’ thought processes, the

Court concludes that AMS must release the photographs.

The third category of documents that AMS contends is covered by the deliberative

process privilege are correspondence between AMS employees. See Def.’s MSJ at 16.

Specifically, AMS redacted portions of two emails under the deliberative process privilege. See

15
Def.’s MSJ at 16. One email included “pre-decisional opinions on the effects of the 2012

drought on a producer’s operation.” See Def.’s MSJ at 16. The email was created before NOP

determined its course of action regarding how to address the effects of that drought. See Michael

Decl. ¶¶ 76–80. The second email featured “pre-decisional assessments of how a producer was

sourcing livestock and whether this method would be in compliance with future NOP

regulations.” Def.’s MSJ at 16. AMS asserts that release of materials from these emails could

have a chilling effect on discussions among NOP personnel. See Def.’s MSJ at 19.

Based on AMS’s submissions, it is clear that both emails contain predecisional, staff

opinions and assessments regarding matters under consideration by the agency. Such documents

are precisely what the deliberative process privilege is designed to shield. See Coastal States,

617 F.2d at 866 (noting that the deliberative process privilege “covers recommendations, draft

documents, proposals, suggestions, and other subjective documents which reflect the personal

opinions of the writer rather than the policy of the agency”); see also Access Reports, 926 F.2d

1195 (“The ‘key question’ in identifying ‘deliberative’ material is whether disclosure of the

information would ‘discourage candid discussion within the agency.’” (quoting Dudman

Commc’ns Corp., 815 F.2d at 1567–68)). The Court disagrees with Plaintiff’s contention that

AMS has failed to establish that these emails relate to any specific decisionmaking process.

Indeed, AMS’s submissions make abundantly clear what processes each email concerned. See

Def.’s MSJ at 19. AMS need not identify any more specific decisions or decisionmaking

processes to which the materials relate to justify its invocation of the deliberative process

privilege. See Access Reports (explaining that appropriateness of withholding materials under

the deliberative process privilege “does not ‘turn[] on the ability of an agency to identify a

specific decision in connection with which a memorandum is prepared” (quoting Sears, Roebuck

16
& Co., 421 U.S. at 151 n.18)); see also Public Emps for Envtl. Responsibility v. Office of Sci. &

Tech. Pol’y, 881 F. Supp. 2d 8 (D.D.C. 2012) (concluding that “the absence of . . . specific

information” linking deliberative materials to “specific decisions” was “not fatal to [an agency]

privilege claims, especially given the Working Group’s advisory nature and the likelihood that it

would deliberate and examine many proposals without arriving at specific decisions for each

proposal”).

The final category of records for which AMS has invoked the deliberative process

privilege is NOP witness audit checklists. See Def.’s MSJ at 19–20. AMS has redacted

observations and information that the NOP auditors believed important to the evaluation of

whether particular ACAs should be accredited to inspect and to certify operations as organic.

See Def.’s MSJ at 19–20. AMS contends that release of this information could chill internal

agency communications between NOP auditors and their supervisors and might discourage full

and frank discussion of whether an ACA should be accredited. See Def.’s MSJ at 20. Plaintiff

does not dispute that the redactions to this category of documents are appropriate under the

deliberative process privilege. See Pl.’s MSJ at 11. The Court agrees. AMS has explained that

it redacted the impressions and opinions of agency staff members regarding whether to accredit

certain entities. These materials are predecisional because they relate to the specific process of

whether to offer accreditation to a prospective ACA, and they are deliberative because they

reflect the give-and-take of the process of determining whether a prospective ACA is worthy of

accreditation. Accordingly, the Court finds that AMS has met its burden with respect to this

category of documents.

17
 B. FOIA Exemption 4

Having assessed AMS’s Exemption 5 withholdings, the Court next considers AMS’s

withholdings under FOIA Exemption 4. FOIA Exemption 4 authorizes agencies to withhold

documents that contain “trade secrets and commercial or financial information obtained from a

person and privileged or confidential.” 5 U.S.C. § 552(b)(4). “Unlike many other types of

information subject to an agency’s control, materials implicating Exemption 4 are generally not

developed within the agency.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 148 (D.C. Cir. 2006).

Instead, the agency typically has procured the “information from third parties, either by

requirement or by request.” Id. “If the requested documents constitute ‘trade secrets,’ they are

exempt from disclosure, and no further inquiry is necessary.” Pub. Citizen Health Research Grp.

v. FDA, 704 F.2d 1280, 1286 (D.C. Cir. 1983). But, where documents instead constitute

“commercial or financial information,” records are exempt from disclosure only if they are “(1)

commercial or financial, (2) obtained from a person, and (3) privileged and confidential.” Id. at

1289–90.

AMS has withheld four broad categories of information pursuant to FOIA Exemption 4:

(1) the identities of sourcing inputs; (2) protocols, procedures, and processes used in organic

dairy production; (3) farm descriptions and facility descriptions; and (4) production output

information. See Def.’s MSJ at 23. AMS contends that materials that fall within the first three

categories—that is, all categories except for production output information—qualify for

protection as trade secrets. See Def.’s MSJ at 24–31. And AMS argues that, regardless of

whether the disputed materials are protected as trade secrets, all four categories of records are

shielded under FOIA Exemption 4 as confidential business information. See Def.’s MSJ at 32–

44. Plaintiff disputes the applicability of FOIA Exemption 4 to the disputed documents, arguing

18
that (1) AMS has improperly asserted FOIA Exemption 4 to withhold documents for which

disclosure is compelled by law, and that (2) even if disclosure of certain materials is not

mandated by law, AMS has not carried its burden of showing that disclosure of materials such as

OSPs and certification of compliance analyses is likely to cause substantial competitive harm.

See Pl.’s MSJ at 22–25; Pl.’s Reply at 8–15. As explained below, the Court disagrees with

Plaintiff on both fronts and concludes that AMS has substantiated its withholdings under FOIA

Exemption 4.

1. Plaintiff Has Not Shown That Any Conflicting Statutory Scheme Bars the Agency from
Relying on FOIA Exemption 4

Before addressing whether AMS has met its burden of showing that the disputed

documents qualify as trade secrets and/or business confidential records that are protected by

FOIA Exemption 4, the Court first considers Plaintiff’s contention that Exemption 4 cannot

shield certain disputed records because the agency has a duty under a different statute to disclose

those records to the public. See Pl.’s MSJ at 22–25. Plaintiff asserts that the Organic Foods

Production Act of 1990, 7 U.S.C. § 6501, et seq., mandates that the agency “provide public

access to certification documents and laboratory analyses that pertain to certification.” Pl.’s MSJ

at 22–23 (quoting 7 U.S.C. § 6506(a)(9)). According to Plaintiff, this provision dictates that “at

a minimum, the OSPs” and ‘“any analyses that pertain’ to ongoing compliance with the OSPs . .

. are expressly not confidential under Exemption (b)(4), as a matter of law.” Pl.’s MSJ at 23

(quoting 7 U.S.C. § 6506(a)(9)).

AMS disagrees that the law compels disclosure of the disputed records. The agency

argues that 7 U.S.C. § 6506(a)(9) is ambiguous on the question of what records qualify as

“certification documents and laboratory analyses that pertain to certification.” Def.’s Reply at 3.

Citing agency regulations—namely, 7 C.F.R. § 205.504(b)(5)—and Chevron, U.S.A., Inc. v.

19
Nat’l Res. Def. Council, 467 U.S. 837, 845 (1984), AMS asserts that its interpretation of the

requirement as not reaching the records that are disputed in this case is entitled to deference. See

Def.’s Reply at 3–12. In response, Plaintiff maintains that the statutory language is plain, not

ambiguous, and that it mandates disclosure of certain disputed records. See Pl.’s Reply at 9–13.

The Court need not wade into the parties’ arguments about what documents qualify as

“certification documents and laboratory analyses” under the Organic Foods Production Act to

address whether AMS is precluded from relying on FOIA Exemption 4. In Environmental

Integrity Project v. E.P.A., 864 F.3d 648 (D.C. Cir. 2017), the D.C. Circuit explained that a later-

enacted statutory scheme that appears to mandate disclosure of certain documents does not

inexorably prevail over FOIA exemptions. See id. at 649. Rather, “Section 559 of Title 5

provides that FOIA exemptions apply unless a later statute expressly supersedes or modifies

those exemptions.” Id. Thus, courts must first ask whether a statute that appears to conflict with

a FOIA exemption was enacted after the FOIA exemption. See id. If the non-FOIA statutory

scheme is the later statute, courts must determine whether that statute expressly supersedes or

modifies FOIA. See id.

Here, the provision of the Organic Foods Production Act that Plaintiff cites does not

expressly foreclose the agency’s reliance on FOIA Exemption 4. FOIA Exemption 4 was

enacted in 1967, see id., while the Organic Foods Production Act was enacted in 1990, see 7

U.S.C. § 6501. Thus, the Court must examine the language of the Organic Foods Production Act

for language that expressly supersedes Exemption 4. The relevant provision states that “[a]

program established under this chapter shall . . . provide for public access to certification

documents and laboratory analyses that pertain to certification.” 7 U.S.C. § 6506(a)(9). The

statute features no mention of FOIA and no suggestion that Congress intended to supersede any

20
FOIA exemptions. Cf. Envtl. Integrity Project, 864 F.3d at 649 (describing statutory schemes

that expressly supersede FOIA exemptions). Accordingly, the Court concludes that Section

6505(a)(9) of the Organic Foods Production Act does not expressly supersede Exemption 4 of

FOIA. Even assuming that the statutory schemes are in tension with one another, the cited

provision of the Organic Foods Production Act does not preclude AMS from relying on FOIA

Exemption 4 to shield the disputed documents.

2. Trade Secrets

Having rejected Plaintiff’s contention that AMS cannot rely on FOIA Exemption 4 due to

a supposedly conflicting statutory disclosure requirement, the Court next considers whether the

disputed records qualify as trade secrets that are protected by FOIA Exemption 4. AMS

contends that three categories of redacted records—(1) protocols, procedures, and processes used

in organic dairy production; (2) farm descriptions and facility descriptions; and (3) production

output information—are exempt from disclosure under FOIA as “trade secrets.” See Def.’s MSJ

at 24. Other than arguing that the disputed records are not properly regarded as confidential—an

argument that this Court rejected above—Plaintiff does not dispute AMS’s assertion that the

disputed records qualify as trade secrets. See Def.’s Reply at 13 (observing that “Plaintiff

ignores that, in addition to being redacted as confidential business information, information was

also redacted as a trade secret.”). The Court concludes that all three categories of redacted

records qualify as trade secrets under FOIA Exemption 4.

For FOIA purposes, a trade secret is “a secret, commercially valuable plan, formula,

process, or device that is used for the making, preparing, compounding, or processing of trade

commodities . . . that can be said to be the end product of either innovation or substantial effort.”

United Techs. Corp. v. U.S. Dep’t of Defense, 601 F.3d 557, 563 n.9 (D.C. Cir. 2010) (alteration

21
in original) (quoting Pub. Citizen Health Research Grp., 704 F.2d at 1288). Trade secret

information must relate to the production process itself. See Ctr. for Auto Safety v. Nat’l

Highway Traffic Safety Admin., 244 F.3d 144, 150–51 (explaining that Public Citizen “narrowly

cabins trade secrets to information relating to the ‘productive process’ itself”).

AMS first contends that the protocols, procedures, and processes used in organic dairy

production qualify as trade secrets. See Def.’s MSJ at 24–28. Among the many records falling

within these categories are records offering information about the dairy operations’ pest and

weed management processes; information about livestock conversion processes; information

about herd health monitoring processes; and information about irrigation processes. See Def.’s

MSJ at 25–26. AMS explains that NOP regulations do not prescribe exactly the protocols,

procedures, and processes that are to be used by organic dairy operations and that the protocols,

procedures, and processes selected by a particular dairy operation are the end product of either

innovation or substantial effort and contain each dairy’s strategic approaches to organic

production. See Def.’s MSJ at 25–27. The Court regards AMS’s justifications as logical and

plausible and finds that these records qualify as trade secrets exempt from disclosure.

AMS next asserts that the “sourcing inputs” used in the organic dairy production qualify

as trade secrets. See Def.’s MSJ at 29–30. Sourcing inputs are the products utilized by organic

dairies in the production process. See Def.’s MSJ at 29. AMS contends that this information—

which includes details about, among other things, feed sources, seed sources, and sanitation and

input sources—qualifies as trade secret material because the sourcing inputs utilized by a

particular facility are not proscribed by agency regulations, but are instead developed through an

iterative process by each dairy operation. See Def.’s MSJ at 29. AMS also states the decision of

what sourcing inputs a dairy operation will utilize is the end product of sustained innovation and

22
substantial efforts and that information regarding these inputs is maintained in confidence and

commercially valuable. See Def.’s MSJ at 29–30. Again, AMS’s justifications—which Plaintiff

does not challenge—strike this Court as logical and plausible. See Def.’s MSJ at 30.

Accordingly, the Court also endorses AMS’s withholding of information regarding sourcing

inputs as protected trade secrets. Cf., e.g., People for the Ethical Treatment of Animals v. U.S.

Dep’t of Health & Human Servs., 2018 WL 4000478, at *3–7 (D.C. Cir. Aug. 17, 2018)

(protecting under Exemption 4 information about the importation of nonhuman primates,

including “shipment-by-shipment quantity, crate size, and airline carrier information” because

release of such “information would cause substantial harm to the competitive position of each

importer”); Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1026 (D.C.

Cir. 1999) (holding that disclosure of the “nature, cost, profit margin, and origin” of certain

shipments would likely cause substantial competitive injury to importers).

Finally, AMS contends that farm and facility descriptions qualify as trade secrets. See

Def.’s MSJ at 30–31. According to AMS, design choices made by organic dairies regarding

farm and facilities take into consideration factors such as how to optimize use of farm space,

efficiency in the movement of cattle from one part of the dairy to another, compliance with NOP

regulations, and the safety and welfare of animals. Def.’s MSJ at 31. AMS claims that farm and

facility layouts are selected and developed based on years of research, planning, innovation, and

testing, and that knowledge of these layouts is commercially valuable information. Def.’s MSJ

at 31. Furthermore, AMS asserts that farm and facility descriptions are maintained in

confidence. The Court regards AMS’s justifications as logical and plausible, and therefore,

concludes that materials within this category are protected as trade secrets under FOIA

Exemption 4. Cf., e.g., Forest Cty. v. Potawatomi Cmty. v. Zinke, 278 F. Supp. 3d 181, 199–206

23
(D.D.C. 2017) (concluding that Exemption 4 protected, among other things, a “description of

gaming facilities” and “projected size and phasing of [a particular] [f]acility” featured in a

disputed report).

3. Confidential Business Information

Finally, the Court examines whether the remaining disputed records are protected from

disclosure under FOIA Exemption 4 as confidential business information. To show that records

qualify as confidential business information protected by Exemption 4, an agency must establish

that the withheld records are “(1) commercial or financial, (2) obtained from a person, and (3)

privileged or confidential.” Pub. Citizen Health Research Grp., 704 F.2d at 1290. AMS

contends that four categories of records qualify as confidential business information—(1) the

identities of sourcing inputs; (2) protocols, procedures, and processes used in organic dairy

production; (3) farm descriptions and facility descriptions; and (4) production output

information. See Def.’s MSJ at 32. Because this Court has already determined that three of the

four categories are exempt from disclosure as trade secret information, the Court need only

consider whether the final category—production output information—qualifies as confidential

business information. See Petrucelli v. Dep’t of Justice, 51 F. Supp. 3d 142, 163 n.9 (D.D.C.

2014) (noting that, because withheld information was protected under one FOIA exemption, the

court “need not consider [the applicability of another exemption] separately with respect to the

same information” (citing Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011))).

Plaintiff does not dispute that the production output information is commercial or financial. Nor

does Plaintiff question whether the information was “obtained from a person.” See Pl.’s MSJ at

24–25. But Plaintiff does challenge whether the records qualify as privileged or confidential.

24
See Pl.’s MSJ at 25. The Court concludes that AMS has carried its burden of demonstrating that

the redacted production output information is covered by Exemption 4.

Though Plaintiff does not challenge whether the redacted production output information

is commercial or financial and whether the records were obtained from a person, the Court

nonetheless briefly considers these issues to confirm that the agency has carried its burden. First,

to determine whether information is “commercial” or “financial,” courts in this district give these

words their ordinary meanings. See Wash. Post Co. v. HHS, 690 F.2d 252, 266 (D.C. Cir. 1982).

As a general matter, records are “commercial” or “financial” so long as the submitter of the

information has a “commercial interest” in them. See Baker & Hostetler LLP v. U.S. Dep’t of

Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006). The D.C. Circuit has given “commercial

interest” a broad definition; it includes records that “reveal basic commercial operations,” “relate

to the income-producing aspects of a business,” or bear upon the “commercial fortunes” of an

organization. Id. (internal quotation marks and citations omitted). Here, the Court has no doubt

that the production output information qualifies as information in which the submitters have

some “commercial interest.” According to AMS, these records reveal each dairy’s production

capabilities and sales information. See Def.’s MSJ at 43–44. Competitors “could use that

information to determine the dairy’s ability to service new or expanding customers and use that

against the dairy in the bidding process.” Def.’s MSJ at 43. Based on this explanation, the Court

has little trouble concluding that this information bears directly upon the commercial fortunes of

the dairies.

Second, the Court also concludes that the information in question was obtained from a

person. A “person” under FOIA, includes “an individual, partnership, corporation, association,

or public or private organization other than an agency[.]” 5 U.S.C. § 551(2). Information

25
generated by the federal government itself is not “obtained from a person” for purposes of

Exemption 4. See Bd. of Trade v. Commodity Futures Trading Comm’n, 627 F.2d 392, 404

(D.C. Cir. 1980). According to AMS, the information that it has redacted as business

confidential records were obtained either through documents submitted by the dairy operations to

the ACAs or obtained by the ACAs through inspections. See Def.’s MSJ at 33. Neither the

dairy operations nor the ACAs are government entities. See Def.’s SMF ¶ 32. Plaintiff makes

no argument that this information might fall short of meeting the statutory condition. See

generally Pl.’s MSJ. Accordingly, the Court finds that AMS has satisfied this requirement.

Finally, the Court must address whether the production output information is

confidential. In this Circuit, courts apply different standards to allegedly confidential records

based on whether the information in question was furnished voluntarily to the Government or

whether the Government required its submission. See Critical Mass Energy Project v. Nuclear

Regulatory Comm’n, 975 F.2d 871, 878–80 (D.C. Cir. 1992) (en banc). Where, as here, the

Government compelled submission of the information, see Def.’s MSJ at 35 (acknowledging that

dairies are required to submit certain information about their business operations for inspection

purposes), courts ask whether “disclosure of the information is likely . . . (1) to impair the

Government’s ability to obtain necessary information in the future; or (2) to cause substantial

harm to the competitive position of the person from whom the information was obtained.” Nat’l

Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (footnote omitted).

AMS argues that both the “impairment prong” and the “competitive harm prong” are met

here with respect to production output information. According to AMS, “dairies provide this

information and allow for inspections with an expectation that Confidential Business Information

will not be disclosed publicly or to their competitors.” Def.’s MSJ at 35. AMS speculates that

26
“public disclosure of proprietary information w[ould] discourage participation in the NOP

Organic Program[.]” Def.’s MSJ at 35. AMS also contends that disclosure of this production

output information would cause substantial harm to the competitive positions of the respective

dairies, meeting the “competitive harm” prong. See Def.’s MSJ at 43–45; Def.’s Reply at 13–14.

The Court concludes that AMS has shown that the “competitive harm prong” is met. 4

Courts “‘need not conduct a sophisticated economic analysis of the likely effects of

disclosure’ to decide if substantial competitive harm would occur.” Ctr. for Digital Democracy

v. FTC, 189 F. Supp. 3d 151, 161 (D.D.C. 2016). Instead, an agency may present “evidence

revealing actual competition and the likelihood of substantial competitive injury . . . to bring

commercial information within the realm of confidentiality.” Id. (internal quotation marks and

citation omitted). Importantly, the D.C. Circuit has explained that courts “generally defer to the

agency’s predictive judgments as to ‘the repercussions of disclosure.’” United Techs. Corp. v.

U.S. Dep’t of Def., 601 F.3d 557, 563 (D.C. Cir. 2010) (quoting McDonnell Douglas Corp. v.

U.S. Dep’t of the Air Force, 375 F.3d 1182, 1191 n.4 (D.C. Cir. 2004)). Still, conclusory

statements about competitive harm are insufficient. See Occidental Pertrolum Corp. v. SEC, 873

F.2d 325, 342 (D.C. Cir. 1989).

Here, AMS states that production output information “would provide competitors with a

clear picture of the dairy’s’ [sic] production capabilities,” including actual and expected

production output, operational acreage, number of cows on-site and information about the cows’

output capabilities, pasture sizes, and stocking rates. See Def.’s MSJ at 43. Competitors could

use this information to “determine the dairy’s ability to service new or expanding customers and

4
Because the Court finds that AMS has demonstrated that the “competitive harm prong”
is met, the Court need not consider AMS’s arguments regarding the “impairment prong.”

27
use that against the dairy in the bidding process.” Def.’s MSJ at 43. Competitors might also use

information about production capabilities to attempt to poach customers by, for example,

offering to produce the same amount of organic dairy for a lower rate. Def.’s MSJ at 43–44.

Plaintiff baldly asserts that AMS has “failed to meet its burden of demonstrating

competitive harm in the present action.” Pl.’s MSJ at 25. The Court disagrees. The D.C. Circuit

has explained that “competition in business turns on the relative costs and opportunities faced by

members of the same industry,” and, accordingly, “there is a potential windfall for competitors to

whom valuable information is released under FOIA.” Worthington Compressors, Inc. v. Costle,

662 F.2d 45, 51 (D.C. Cir. 1981). In line with this observation, courts in this district have found

likelihood of competitive harm due to the disclosure of otherwise-private pricing information.

See, e.g., McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1188–90

(D.C. Cir. 2004) (finding that disclosure of a company’s option year prices would likely cause it

substantial competitive harm by informing the bids of its rivals in the event that the contract was

rebid). The Court finds that AMS has presented sufficient evidence that the dairies face actual

competition and that disclosure of information regarding the dairies’ respective productive

output would likely cause competitive harm.

In sum, the Court concludes that AMS has properly applied FOIA Exemption 4 with

respect to all four categories of disputed documents.

C. Segregability

Before approving an agency’s withholdings, a court has an affirmative duty to ensure that

the agency has released “[a]ny reasonably segregable portion of [an otherwise exempt] record . .

. after deletion of the portions which are exempt.” 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). A court errs if it

28
“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 v. Dep’t of the Army, 611 F.2d 738, 744 (9th

Cir. 1979)). Here, Plaintiff argues that, with respect to redactions under both Exemption 4 and

Exemption 5, AMS has failed to show that it has released all reasonably segregable,

nonexemption information. See Pl.’s MSJ at 12–14, 16–22; Pl.’s Reply at 7–8, 14–15. Plaintiff

relies primarily on the notion that many of the partially released records do not feature

information that Plaintiff regards as useable. See Pl.’s MSJ at 17–21. Plaintiff asks this Court to

review certain disputed documents in camera to confirm that AMS has released all reasonably

segregable portions of exempt records. The Court concludes that AMS has adequately explained

that all segregable information has been provided and only exempt information was redacted,

meeting its segregability obligations. Thus, the Court finds that there is no need to review the

disputed documents in camera.

Segregability is assessed under a burden-shifting framework. “In order to demonstrate

that all reasonably segregable material has been released, the agency must provide a ‘detailed

justification’ for its non-segregability.” Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771,

776 (D.C. Cir. 2002) (quoting Mead Data Cent., Inc., 566 F.2d at 251). “However, the agency is

not required to provide so much detail that the exempt material would be effectively disclosed.”

Id. To make this showing, the agency typically provides a Vaughn index and “a declaration

attesting that the agency released all segregable material.” Judicial Watch, Inc. v. DOJ, 20 F.

Supp. 3d 260, 277 (D.D.C. 2014). Once this information is provided, the agency is “entitled to a

presumption that [it] complied with the obligation to disclose reasonably segregable material.”

Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). The plaintiff must then

29
produce a “quantum of evidence” to rebut this presumption, at which point “the burden lies with

the government to demonstrate that no segregable, nonexempt portions were withheld.” Id.

In response to Plaintiff’s contentions that AMS had failed to release segregable

information, AMS has provided very comprehensive explanations, describing the types of record

redacted and specifying the exact information that was redacted from the records. See Def.’s

Reply at 19–43. AMS further explains that it went through the disputed documents line-by-line

to confirm that all non-exempt material has been released. See Def.’s Reply at 27, 35–37, 39,

41–43. Where AMS has redacted factual information, it has explained that such information is

intertwined with exempt information and, thus, is not segregable. See, e.g., Def.’s Reply at 36–

37, 42. Nonetheless, Plaintiff continues to assert baldly that records may contain segregable

information. See Pl.’s Reply at 15. Contrary to Plaintiff’s claims, the Court concludes that

Defendant’s very detailed submissions plainly satisfy its burden. See Johnson, 310 F.3d at 776

(concluding that an agency that had submitted “a comprehensive Vaughn index, describing each

document withheld, as well as the exemption under which it was withheld” and that had supplied

an additional affidavit on the issue of segregability, had met FOIA’s segregability requirements).

The Court also concludes that Plaintiff has not provided a “quantum of evidence” to rebut the

presumption that the agency has complied with its obligations to disclose reasonably segregable

material. See Sussman, 494 F.3d at 1117.

In light of the Court’s determination that AMS has discharged all of its FOIA obligations,

the Court finds that in camera review is unnecessary and, thus, denies Plaintiff’s request for such

review of specifically identified disputed documents. 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.,

30
147 F.3d 992, 996 (D.C. Cir. 1998). But “district courts have substantial discretion” in deciding

whether to review documents in camera. See Ctr. for Auto Safety v. EPA, 731 F.2d 16, 21 (D.C.

Cir. 1984). “The ultimate criterion is simply . . . [w]hether the district judge believes that in

camera inspection is needed in order to make a responsible de novo determination on the claims

of exemption.” Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Here, reviewing the

claimed exemptions de novo and as explained above, this Court concludes that AMS’s

submissions contain sufficient detail to assess the applicability of the claimed FOIA exemptions.

Accordingly, the Court concludes that in camera review is unwarranted.

V. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED,

and Plaintiff’s cross-motion for summary judgment is DENIED as to all records except for the

photographs taken during the Texas and New Mexico trip. With respect to those photographs,

Plaintiff’s motion for summary judgment is GRANTED and Defendant’s motion is DENIED. 5

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: September 27, 2018 RUDOLPH CONTRERAS
United States District Judge

5
Defendant is not required to release any photographs that are protected by FOIA
Exemption 4.

31