Zeigler v. USDA – Farm Serv. Agency, No. 19-02633, 2021 U.S. Dist. LEXIS 172584 (D.S.C. Sept. 10, 2021) (Harwell, J.)

Zeigler v. USDA – Farm Serv. Agency, No. 19-02633, 2021 U.S. Dist. LEXIS 172584 (D.S.C. Sept. 10, 2021) (Harwell, J.)

Re:  Request for certain records concerning USDA employee

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court finds that "[t]o the extent Plaintiff's claims are based on Defendant's delay (as opposed to improper withholding of documents) . . . those claims became 'moot' when Defendant processed and released the requested records it believed responsive."
   
• Litigation Considerations & Waiver, and Discretionary Disclosure, Waiver:  The court holds that, "contrary to Plaintiff's arguments, Defendant did not waive or forfeit FOIA exemptions or the determination as to which records were 'agency records' under FOIA by failing to assert the claims within 20 days."  "When an agency fails to meet FOIA's explicit timelines, the penalty is not waiver of exemptions, but rather '[t]he 'penalty' is that the agency cannot rely on the administrative exhaustion requirement to keep cases from getting into court.'"
   
• Litigation Considerations, Adequacy of Search:  The court finds that "[o]n the record before the Court, there is no genuine issue of material fact that the Defendant's searches were adequate."  "There is no reason to doubt the credibility of [defendant's] declarations, which appear to have been submitted in good faith and set forth in detail the Agency's efforts to locate responsive documents."  The court notes that plaintiff "makes no argument that Defendant's search for items 2, 3, and 4 was not adequate."  Regarding item 1, the court discusses the parties' communication regarding agreeing on search terms.
   
• Procedural Requirements, "Agency Records":  "The Court has reviewed Defendant's in camera submission, along with the Vaughn index, and concludes that the Defendant properly deemed the withheld materials to be the personal records of [the USDA employee] not subject to disclosure under FOIA."  "The majority of the withheld emails consist of emails between [the USDA employee] and his business partner, with whom [the USDA employee] had a hunting business."  "These emails discuss various aspects of the hunting business . . . ."  "Other withheld emails include emails between [the USDA employee] and his Sunday School class, members of the community regarding local athletics, Junior Legion, and Booster Club."  "There are also some emails that involve personal real estate transactions and other personal business."  "With regard to the emails reviewed by the Court in camera, the emails designated as 'personal' do not contain substantive or official agency information and they do not appear to facilitate any agency business."  Regarding the Burka factors, the court finds that "[defendant] . . . states that [the USDA employee] could delete the emails at any time and the emails were not integrated into any official agency file," "there was no agency business being conducted and the emails did not contain substantive agency information," "[t]here was no agency business being conducted with respect to the emails characterized as personal," and "[t]he emails were not integrated into any official record or file, but rather were simply maintained on the server where employee emails are stored."  Responding to plaintiff's argument that the USDA employee forwarded many of the emails at issue to other agency employees, the court finds that "merely forwarding these emails to other agency employees is not dispositive."  "The decisive Burka factor is the extent to which the creator of the document and other employees acting within the scope of their employment relied upon the document to carry out the business of the agency."  "There is nothing to suggest the withheld emails were relied on by agency employees in the conduct of official duties or to carry out the business of the agency."