Pub. Citizen v. USDA, No. 21-01408, 2022 WL 3139003 (D.D.C. Aug. 5, 2022) (Mehta, J.)

Pub. Citizen v. USDA, No. 21-01408, 2022 WL 3139003 (D.D.C. Aug. 5, 2022) (Mehta, J.)

Re:  Request for records concerning operations of certain meat- and poultry-processing facilities during early months of COVID-19 pandemic

Disposition:  Denying defendant’s motion for summary judgment; granting plaintiff’s motion for summary judgment

• Exemption 4 & Litigation Considerations, Summary Judgment:  “[T]he court grants Plaintiff’s motion as to all withholdings due to USDA’s failure of proof.”  The court relates that “Vaughn Index Entry 1 is a letter from Smithfield Foods, a pork producer and food-processing company, sent to the South Dakota Department of Health, which in turn sent it to USDA.”  “The withheld portions of the letter reflect ‘potential operational changes at a Smithfield facility’ in Sioux Falls ‘and a summary of the steps that Smithfield was taking to adhere with federal guidance issued by the Occupational Safety Health Administration . . . , the Center for Disease Control and Prevention . . . , and Executive Order 13,917.’”  “Vaughn Index Entry 2 is a reopening plan for the same Smithfield Sioux Falls facility that the company directly submitted to USDA.”  “This Entry details ‘the operational actions planned with the reopening of a Smithfield meat processing facility in Sioux Falls, South Dakota,’ and the withheld portions specifically describe ‘Smithfield’s internal processes, protective measures, and protocols for addressing health and safety guidance and regulatory requirements during the COVID-19 pandemic.’”  “The withheld portions for Entry 2 also ‘include a reopening timetable that includes reopening dates, departments, harvesting capacity, and the number of affected employees in each department.’”  The court finds that “USDA cannot meet its burden as to these records because its factual proffer rests entirely on inadmissible hearsay.”  The court explains that “[i]n FOIA cases, courts have relaxed the rule against hearsay for some purposes.”  “But ‘it is a different matter to rely on out-of-court statements from private third-parties to justify an agency’s withholding.’”  “That is particularly true with respect to Exemption 4.”  “Courts consistently have rejected hearsay statements offered to support the exemption.”  “Here, USDA’s only evidence as to Vaughn Index Entries 1 and 2 is inadmissible hearsay.”  “It takes the form of a letter from Smithfield’s outside counsel to USDA dated August 7, 2020 (after Plaintiff’s FOIA request but before it filed suit).”  “USDA nowhere explains how the Smithfield Letter can be converted into admissible evidence:  it identifies no hearsay exception that would make the correspondence admissible, nor does it suggest that a Smithfield representative would testify under oath to its contents.”  “The court therefore cannot consider the Smithfield Letter and, because USDA has offered no other evidence in support of Vaughn Entries 1 and 2, the court is compelled to grant summary judgment in favor of Plaintiff.”
  
  The court also finds that “USDA’s withholdings as to Vaughn Index Entry 4 likewise fail because they are not supported by admissible evidence.”  “Those records are emails the Vice President of a trade association, the National Chicken Council (‘NCC’), sent . . . requesting USDA’s intervention in a local government’s efforts to implement vigorous COVID-19 transmission management measures at a particular poultry plant.”  “USDA withheld ‘portions of emails that reference specific processing facilities that, when read in tandem with the portions of the email that USDA has released, would reveal confidential commercial information – specifically, the facility’s discussions with local regulators about its ability to operate during the pandemic and the health and safety requirements that the facility was implementing.’”  “That assertion, however, rests exclusively on what it was told by NCC – via email.”  “The email and its contents are hearsay.”  “With no admissible evidence to support the withholdings of Vaughn Index Entry 4, the court grants summary judgment in favor of Plaintiff as to that record.”
  
  Finally, the court finds that “Plaintiff prevails as to Vaughn Index Entry 5 not because of a lack of admissible proof but a lack of any proof whatsoever.”  “The Entry 5 records consist of a large spreadsheet and internal briefing documents created by USDA ‘based on submitter submissions and inspections during the early stages of the COVID-19 pandemic.’”  “The records include data on an ‘impacted company’s daily slaughter capacities under normal operations, daily slaughter capacities in pandemic conditions, proposed re-opening dates, and in some instances feedback from state actors on mitigation efforts, and absenteeism rates.’”  “USDA did not withhold the data but did redact the names of the meat- and poultry-processors so as not to identify any particular company with the data.”  “According to USDA, release of the companies’ names ‘would provide competitors insight on operational weakness during the ongoing pandemic, which could be exploited by local competitors.’”  The court finds that “USDA’s position is flawed because it is not supported by any proof that the owners of the information treated it as private.”  “The confidentiality inquiry centers on ‘how the particular party customarily treats the information, not how the industry as a whole treats the information.’”  “Thus, it was imperative that USDA come forward with admissible statements from the companies themselves.”  “The agency’s impression of how the industry typically views the withheld information is not enough.”  “Ultimately, the court agrees with Plaintiff that ‘by failing to submit any evidence regarding whether the poultry and meatpacking companies customarily or actually treat the information as private, USDA has failed to satisfy [its] burden’ of showing that the information is confidential.”