Physicians Comm. for Responsible Med. v. USDA, No. 13-0483, 2018 WL 2389723 (D.D.C. May 25, 2018) (Jackson, J.)

Physicians Comm. for Responsible Med. v. USDA, No. 13-0483, 2018 WL 2389723 (D.D.C. May 25, 2018) (Jackson, J.)

Re:  Request for records concerning dairy checkoff and beef checkoff programs

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

• Procedural Requirements, "Agency Records":  "The Court finds that defendant USDA neither created nor obtained the NCBA beef checkoff records, and it was not in control of them at the time the FOIA request was made."  "Therefore, the documents do not qualify as 'agency records' subject to FOIA[.]"  The court explains that "there is no question that [defendant] did not create the records plaintiff seeks[]" and rejects plaintiff's "argument [based] on the fact that the agency has the authority to audit [the intervenor's] records[,]" finding that "[b]y ordering the agency to 'exercise its right of access,' the Court 'effectively would be compelling the agency to "create" an agency record,' and this would 'extend the reach of [FOIA] beyond what. . . Congress intended.'"  Regarding control, the court finds that "[the intervenor] intends to retain control of its records and intellectual property, as evidenced by the undisputed facts in this case and the provision in [the intervenor's] Operating Agreement governing [the intervenor's] ownership rights[,]" "while the agency may have a right to audit certain [intervenor] records, it is undisputed that it has not exercised that right[,]" "'[defendant] has no knowledge of any USDA personnel having either read or relied on the records in question[,]'" and "'[i]t goes without saying that an agency cannot integrate into its record system a document created by a third party that none of its employees have read . . . .'"