Wallick v. Agric. Mktg. Serv., No. 16-2063, 2017 WL 5592665 (D.D.C. Nov. 20, 2017) (Contreras, J.)

Monday, November 20, 2017

Wallick v. Agric. Mktg. Serv., No. 16-2063, 2017 WL 5592665 (D.D.C. Nov. 20, 2017) (Contreras, J.)

Re: Request for records concerning Organic Materials Review Institute ("OMRI")'s application for accreditation as Material Review Organization

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

  • Procedural Requirements, Searching for Responsive Records:  Regarding the scope of the request, "the Court finds that [the Agricultural Marketing Service ("AMS")]'s current position that [plaintiff's] FOIA request only sought information pertaining to OMRI's initial application for certification, and any follow-up actions relating to that initial application, is reasonable, and should therefore govern the scope of its search for responsive documents."  The court relates that "[t]he plain language of the original request clearly indicates an interest only in documents related to a single application for certification, rather than several."  However, causing confusion was "language which appeared in the clarification emails, but not in the original FOIA request."  After reviewing the language, the court finds that "[plaintiff's] FOIA request only included a request for OMRI's original application for certification as an MRO, and all documentation related to that application, and not subsequent applications for recertification and documents related to those applications."  The court also states that "[i]f [plaintiff] still wishes to receive documents pertaining to applications for recertification and audits related to those applications, he must submit another FOIA request to AMS."

    Regarding the search for responsive records, the court finds that "two of [plaintiff's] objections, that AMS 'did not search in all locations necessary to find all responsive records,' . . . and that it 'failed to perform follow-up actions to locate further responsive records suggested by existing records,' . . . prevent the Court from granting summary judgment to AMS concerning the adequacy of its search."  The court explains that, first, "AMS's statement that the two networks searched were the only places likely to have all responsive records is merely conclusory."  "Without additional background information, [the] Court cannot determine whether AMS did indeed search in locations likely to have all responsive records or whether a search for paper records . . . would have also been appropriate."  "[Defendant] never explains how OMRI's application would have made it onto either email system: for example, [it] never states that OMRI submitted its application by email rather than in paper form, or that it is common practice for AMS employees to email these kinds of applications to each other, thereby uploading them to the agency's email server."  Second, the court finds that "the failure of the agency's search to uncover relevant documents that were supposed to be attached to already retrieved relevant documents 'as standalone records that were responsive to' [plaintiff's] request leaves 'the Court in doubt about whether the agency has conducted a reasonable search.'"  The court does find that "the search terms were not deficient, but rather reasonably calculated to uncover all documents relevant to the search."
  • Exemption 5, Deliberative Process Privilege:  "[T]he Court has determined [the one redacted sentence at issue] does not properly fall under Exemption 5."  "The redacted sentence is simply an off-hand comment from a supervisor to a subordinate employee about the potential effect of OMRI's decision to exclude the subordinate employee from an upcoming audit."  "It is not part of any identifiable deliberative process, nor does it appear to constitute a recommendation as to how the agency should proceed."  "And if it actually is part of such a deliberative process, the agency has produced insufficient detail for the Court to so find."  The court also rejects defendant's argument "that, in the alternative, the Court should not order the release of the sentence because it was found within a document that was not responsive to [plaintiff's] FOIA request."  "Under this theory, even if the sentence were found to have been improperly withheld pursuant to Exemption 5, it could still be redacted because the agency was not required to release any portion of the document in the first place, but rather did so out of generosity."  The court rejects this and holds that "once an agency has deemed a document to be responsive and has produced it to the requester, regardless of whether it actually is or not, the agency may not redact information without sufficiently justifying such redaction pursuant to one of FOIA's statutory exemptions."
District Court
Exemption 5
Updated June 28, 2018