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Farmworker Just. v. U.S. Dep't of Agric., No. 19-1946, 2021 WL 827162 (D.D.C. Mar. 4, 2021) (Friedrich, J.)

Date

Farmworker Just. v. U.S. Dep't of Agric., No. 19-1946, 2021 WL 827162 (D.D.C. Mar. 4, 2021) (Friedrich, J.)

Re:  Request for records concerning H-2A visa program

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

  • Exemption 4:  The court relates that "[t]he Department redacted one record under Exemption 4:  an email from the CEO of McCorkle Nurseries to the Department outlining his views on proposed legislation."  The court finds that "the McCorkle email was improperly redacted under Exemption 4."  The court relates that "[t]he Department does not argue that the information contained trade secrets or was privileged, and Farmworker Justice does not dispute that the materials were commercial in nature."  The court finds that "[i]t is undisputed that McCorkle shared the same information he sent to the Department with the paid members of the Georgia Farm Bureau, . . . which includes a membership of approximately 265,000 families."  "Having shared the information at issue with over a quarter of a million people, McCorkle cannot be said to have 'closely held' it, and the contents were not 'secret,' or 'private.'"
     
  • Exemption 5, Deliberative Process Privilege & Attorney Work-Product Privilege:  First, the court relates that "[t]he Department redacted two sets of documents under Exemption 5:  portions of meeting minutes and a paragraph of an email exchange between Department employees."  "In light of . . . the cursory reasoning and support provided by the Department, the Court is unable to determine whether the Department properly invoked Exemption 5 to withhold portions of the meeting minutes and the email exchange."  "Conclusory assertions in the Department's declarations and briefing that the materials were predecisional and deliberative are insufficient."  "The Department has not provided specific record support, nor has it engaged with the relevant factors under the case law."  "The Department's declaration, . . . does not adequately explain, for example, the relationship between the email discussing the November 2017 Farm Labor Survey and a future agency decision, such that the Court can conclude that the discussion about the already-conducted November 2017 survey is predecisional."  "Further, the Department has not explained the relative hierarchical roles of those involved in the discussions . . . ."

    Second, the court finds that, "[s]o too, the Department did not adequately support its assertion that certain materials were exempt from disclosure under the attorney-client privilege."  "The Department states that the redacted text 'relays advice provided by USDA counsel to the Office of the Secretary during its exploration of options relating to a regulatory issue,' . . . but provides little more."  The court finds that "the Department cannot simply state that an attorney was involved in a discussion."  "It 'must establish each of the following essential elements:  (1) the holder of the privilege is, or sought to be, a client; (2) the person to whom the communication is made is a member of the bar or his subordinate and, in connection with the communication at issue, is acting in his or her capacity as a lawyer; (3) the communication relates to a fact of which the attorney was informed by his client, outside the presence of strangers, for the purpose of securing legal advice; and (4) the privilege has been claimed by the client.'"

    Third, the court finds that "the Department did not articulate a specific foreseeable harm that was connected to the underlying redacted materials."  "The Department instead provided a generalized statement of harm that could apply to any records exempted under Exemption 5."  The court explains that "'[i]f the defendants wish to establish foreseeable harm when they supplement the record, they will need to provide context and insight into the specific decision-making processes or deliberations at issue, and how they in particular would be harmed by disclosure.'"

    Finally, the court finds that "[w]ithout adequate explanation of the redacted information . . . the Court is unable to determine whether non-exempt material was appropriately segregated."
Court Decision Topic(s)
District Court opinions
Exemption 4
Exemption 5
Exemption 5, Attorney Work-Product Privilege
Exemption 5, Deliberative Process Privilege
Updated November 9, 2021