Am. Soc'y for the Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv., No. 19-3112, 2021 WL 1163627 (S.D.N.Y. Mar. 25, 2021) (Buchwald, J.)

Am. Soc'y for the Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv., No. 19-3112, 2021 WL 1163627 (S.D.N.Y. Mar. 25, 2021) (Buchwald, J.)

Re:  Seventy-six requests concerning administration and enforcement of Animal Welfare Act

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

• Exemption 4:  The court relates that "[plaintiff] first challenges the Agencies' redactions of revenue and sales volume information on the Form 7003 annual license renewal applications, known as 'Block 10' information based on where it is entered on Form 7003."  The court finds that "[t]he Agencies satisfy the Argus Leader's first requirement to demonstrate that the dealers submitting the Form 7003s at issue actually and customarily treated the Block 10 information as private."  "As reflected in the Agencies' declaration, the Agencies contacted the dealers to discuss how they treated the Block 10 information and then determined that the Block 10 information was 'customarily' treated as 'confidential' by the dealers and 'not ordinarily or actually released to the public.'"  "With respect to Argus Leader's second condition regarding government assurances of confidentiality, [the court relates that] the Agencies offer no evidence that they provided any such assurances."  The court finds that "[w]hile the Supreme Court in Argus Leader did not resolve the issue of whether government assurances are necessary to satisfy Exemption 4, such assurances are indisputably relevant to the Exemption 4 analysis."  "Here, though, the Court need not decide whether government assurances of confidentiality are required."  "That is because, at the time the dealers submitted the Form 7003s in question, the Agencies took the public position that they would not treat Block 10 information as confidential."  "Therefore, when the dealers submitted the Block 10 information at issue to the Agencies between 2013 and 2018, they were on notice that it was the Agencies' policy to release that information in response to a FOIA request."  "In other words, the dealers had no reasonable expectation that the Agencies would treat the information as confidential."  "The Court therefore joins the growing chorus of opinions reasoning that Exemption 4 does not apply when an agency publicly acknowledges that it will not treat information as confidential, a conclusion that is even endorsed by the Department of Justice's official guidance on Exemption 4 in the wake of Argus Leader."
  
  "The Court reaches the same result for the annual license fee information reflected on the Form 7003s at issue, which is entirely derived from the Block 10 information."  "First, as the Block 10 information on these Form 7003s is itself not protected, the dealers can have no confidentiality interest in the annual license fee amount that was calculated by simply inputting the Block 10 information into a statutory formula."  "Second, and equally important, the USDA represented in [another case] that it was agency policy to 'routinely release[ ] the amount of fees paid in response to FOIA requests.'"  "As with the Block 10 information, the Agencies' public position at the time the Form 7003s in question were submitted that they would release the fee information prevents that information from being considered 'confidential' for purposes of Exemption 4."
  
  "The final Exemption 4 redactions that the ASPCA challenges are those the Agencies applied to an [Animal and Plant Health Inspection Service ("APHIS")] inspection report photograph of written instructions from a licensee about how it 'operates to ensure the proper care of animals,' which the Agencies characterize as 'proprietary' information."  The court finds that, "[h]ere, . . . the Agencies submit no proof that they contacted the licensee to determine whether it customarily and actually treats the broker instructions at issue as confidential."  "Instead, the Agencies assert in conclusory fashion that they 'determined the broker's instructions [are] considered confidential and would qualify as private' without presenting any evidence of the licensee's actual custom."  "The Court, of course, affords no deference to the Agencies' legal conclusion that the underlying information is confidential when the declaration is shorn of any evidence that would support that assertion."
   
• Exemption 5, Attorney-Client Privilege:  First, the court holds that "[certain] redacted information comes from an email sent from [the USDA Deputy Administrator] to several high-ranking USDA officials and a member of the USDA's Office of General Counsel."  "After conducting an in camera review of the information in question, the Court has confirmed that the Agencies properly invoked the attorney-client privilege to protect information that explicitly discusses legal advice tendered by the Office of General Counsel."  Second, the court finds that "[an] email, which was sent by [the USDA Deputy Administrator] to her staff, relays legal advice provided by the Office of General Counsel and discusses draft legal documents that were being prepared with the help of the Office of General Counsel."  "This information is protected by the attorney-client privilege and is exclusively contained in the first two paragraphs of [the email]."  "The remainder of the Agencies' redactions to this email are not attorney-client privileged."  Finally, the court relates that "disclosure of this information 'would represent an intrusion into the attorney-client relationship, impeding the government's efforts to obtain and utilize full and frank legal advice to ensure its observance of the law.'"  "Based on this record, the Court is satisfied that disclosing the privileged information would harm the interests intended to be protected by the attorney-client privilege and thus the Agencies are justified in withholding that information."
   
• Exemption 5, Deliberative Process Privilege:  First, regarding "notes from APHIS's inspection of [a] Farm and a draft memorandum regarding the same," the court holds that "[t]he vast majority of the information redacted from these attachments is not privileged, as it is purely factual material that does not reveal – even indirectly – how any agency action or policy was formed."  "The factual timeline of events contained in the notes does not appear to be a selectively curated presentation of the facts."  "Likewise, the majority of the draft memorandum, with the exception of the last two paragraphs, simply summarizes the background of APHIS['] investigation of [the] Farm."  "Furthermore, as with the notes discussed above, nothing about the memorandum suggests that it reflects the author’s considered judgment in selectively presenting the facts."  "Moreover, the Agencies' submissions do not assert that there actually were any changes to the draft that would disclose the Agencies' deliberative process."  "Indeed, the Court's in camera comparison of this draft memorandum with another document from an email the next day that no longer identified the memorandum as a 'draft' confirmed that the two versions are identical."  "On the other hand, the last two paragraphs of the draft memorandum (with the exception of the first two sentences of the penultimate paragraph) outline the potential steps that the Agencies may take with respect to [the] Farm if certain events should come to pass."  "Unlike the purely factual matter analyzed above, this discussion about how the Agencies might respond in various scenarios would reveal the Agencies' interim thoughts on courses of action that are contingent and subject to change."  "This information is an illustrative example of the [sic] what the deliberative process privilege intends to protect, and it was therefore properly withheld by the Agencies."
  
  Second, regarding two other emails, the court finds that "[w]hile [defendant's] argument is persuasive for [one] email . . .which describes how the Agencies weighed various factors to arrive at a decision about how to proceed with the . . . Farm situation, the same cannot be said of [the other] email . . . which merely expresses . . . agreement with the plan the Agencies had already decided upon."  "Therefore, [the first email] falls under the deliberative process privilege and [the second] email does not."
  
  Third, regarding one email and attachment, the court finds that some portions are deliberative, while other portions concern a "final decision on the appropriate course of action [which] had already been made."  The court finds similarly regarding the challenged portions of another email, finding that the portions "post-date[] APHIS's effective rescission of its confiscation order . . . and does not reflect any pre-decisional deliberative discussions about how the Agencies weighed various factors in arriving at their plan."
  
  Finally, regarding foreseeable harm, "the Court is satisfied based on the Agencies' submissions that the limited material that falls into the deliberative process privilege, if revealed, would harm these interests."  "Those interests are particularly acute in the context of the . . . Farm episode because, as the record demonstrates, these deliberations concerned a sensitive and evolving situation involving the threat of litigation over the Agencies' actions."
   
• Litigation Considerations, Pattern-or-Practice Claims & Proactive Disclosures:  The court first notes that "[w]hile it is true that the Second Circuit has 'not yet recognized or articulated the inquiry relevant to a pattern or practice claim in the FOIA context,' the court has noted that '[o]ther circuits and district courts have . . . concluded that a plaintiff may bring an independent claim alleging a pattern or practice of violating the FOIA."  "[The] Court agrees with the D.C. Circuit's analysis and joins the other district courts in this Circuit in recognizing that FOIA policy and practice claims are justiciable."  "The Court agrees [plaintiff's allegation that "the Agencies decided to decommission the public databases that hosted their most frequently requested categories of records and instead instructed members of the public to submit FOIA requests for those records"] plausibly demonstrate that the Agencies made a decision . . . that led to a self-inflicted breakdown in their ability to timely process FOIA requests and promptly produce responsive records."  "In decommissioning public databases of their most frequently requested records, the Agencies deliberately reversed measures designed to alleviate their FOIA burdens without having in place an adequate plan to address the eminently foreseeable increase in FOIA requests."  "Likewise, [plaintiff] also plausibly alleges the Agencies acted unlawfully by invoking FOIA exemptions after [the date of the decommissioning of the public databases] to conceal information in records that the Agencies previously chose to publish on the databases."  However, the court finds that "[b]ecause Congress already acted to address the Agencies' policies and practices adopted on [the decommissioning date] that underlie the [plaintiff's] claims, [plaintiff] has not established that the Court must intervene to correct a policy or practice that the Agencies have in place that 'will impair [plaintiff's] lawful access to information in the future.'"  The court relates that Congress "enact[ed] Section 788 of the Further Consolidated Appropriations Act of 2020," which required that "the Agencies . . . 'restore on [their] website the searchable database and its contents that were available [prior to the decommissioning date], and all content generated since that date.'"  "Accordingly, [plaintiff] does not state a valid policy and practice claim upon which relief can be granted."