Cornucopia Inst. v. Dep't of Agric., No. 16-148, 2018 WL 4637004 (D.D.C. Sept. 27, 2018) (Contreras, J.)

Cornucopia Inst. v. Dep't of Agric., No. 16-148, 2018 WL 4637004 (D.D.C. Sept. 27, 2018) (Contreras, J.)

Re:  Request for records concerning visits in 2012 by officials from USDA's National Organic Program to organic dairies in Texas and New Mexico

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

• Exemption 5, Deliberative Process Privilege:  The court holds that "[defendant] 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."  However, "[t]he Court finds that [defendant] has not shown that the photographs are properly shielded by the deliberative process privilege."  The court relates that "[defendant] 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 2012 drought was impacting operators."  "And [defendant] 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."  "But this Court is not persuaded that photographs taken under such circumstances necessarily qualify for protection under the deliberative process privilege."
   

• Exemption 4:  The court holds that "concludes that [defendant] has substantiated its withholdings under FOIA Exemption 4."  The court relates that plaintiff withheld "(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."  First, the court rejects plaintiff's argument that "the provision of the Organic Foods Production Act that Plaintiff cites does not expressly foreclose the agency's reliance on FOIA Exemption 4."  The court finds that "[t]he statute features no mention of FOIA and no suggestion that Congress intended to supersede any 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."  Regarding three categories of the records, the court finds that defendant demonstrated that the records were "'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.'"  Regarding the final category of records, the court finds that "[t]he Court finds that [defendant] 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."
   

• Litigation Considerations, "Reasonably Segregable" Requirements:  "Contrary to Plaintiff's claims, the Court concludes that Defendant's very detailed submissions plainly satisfy its burden."