Case Detail

FOIA Project Annotation: Judge Rosemary Collyer has ruled that the Agricultural Marketing Service conducted an adequate search for records concerning its National Organic Program certification investigations of Shamrock Farm Dairies, Oskri Organics, and JAV Food Corporation in response to the Cornucopia Institute's request and that it properly withheld records under a variety of exemptions. The Cornucopia Institute had previously filed a complaint against Shamrock and the agency initially claimed those records were protected under Exemption 7(A) (interference with ongoing investigation or proceeding). However, after the Cornucopia Institute provided an email from the agency indicating the Shamrock investigation had been closed in 2011, the agency searched for records of the Shamrock investigation as well. Besides challenging the adequacy of the search, the Cornucopia Institute limited its claims to redactions in 34 documents and asked Collyer to conduct an in camera review of those records. The Cornucopia Institute contended that the agency's failure to provide the Shamrock investigation records until nearly four years after its initial FOIA request was evidence that the search was not adequate. Collyer, however, pointed out that "a delay in response time allows a requester to appeal in order to obtain requested records. Cornucopia appealed and, eventually, AMS turned over the responsive records. While the delay may be extended, it is not an issue for which this Court can provide a remedy at this time, and does not invalidate the search." The Cornucopia Institute also complained that some records that it knew existed were not turned over. Here, Collyer noted that "the fact that documents mentioned in the released records were not included in the agency response set does not itself indicate that the search was unreasonable and does not rebut the presumption of good faith afforded to the agency's declarations. Therefore, even assuming arguendo that Cornucopia did not receive every record related to the Shamrock investigation, that assumption does not prove the inadequacy of the search." The Cornucopia Institute argued that records created after the agency's investigation of Shamrock was closed could not qualify as predecisional under Exemption 5 (privileges). Collyer observed that the letter to Cornucopia from the agency "only indicates that Cornucopia's complaint against Shamrock was closed in 2010, not that all investigations into Shamrock were closed. AMS states that Shamrock was still under investigation under July 2014. Thus, any records before July 2014 could well be pre-decisional, as the descriptions of the records demonstrate." The Cornucopia Institute also argued that information shared with Quality Assurance International, a USDA-approved accredited certifying agent, did not qualify as interagency memoranda. Collyer pointed out that "QAI functions as an agent of USDA and therefore is 'enough like the agency's own personnel' for records shared between the two to be considered interagency and qualify for Exemption 5." However, Collyer rejected claims that QAI could be considered a confidential source for purposes of Exemption 7(D) (confidential sources). She noted that "an agency must do more than simply state that a source provided information on a confidential basis." She added that "the 'crime' at issue is a failure to comply with USDA organic certification requirements, which does not weigh in favor of a finding of confidentiality because there is no indication that companies seek retribution from individuals who investigate organic certifications." Nevertheless, she observed that since she had found the same information was covered by Exemption 6 (invasion of privacy), it was something of a pyrrhic victory. Having found that she was able to rule on the basis of two Vaughn indices the agency had submitted, Collyer rejected the Cornucopia Institute's request for in camera inspection.
Issues: Exemption 7(A) - Interference with ongoing investigation

Date Filed	Doc #	Docket Text
2016-02-09	1	COMPLAINT against UNITED STATES DEPARTMENT OF AGRICULTURE ( Filing fee $ 400 receipt number 0090-4407322) filed by CORNUCOPIA INSTITUTE. (Attachments: # 1 Civil Cover Sheet)(Stotter, Daniel) (Entered: 02/09/2016)
2016-02-09		Case Assigned to Judge Rosemary M. Collyer. (md) (Entered: 02/10/2016)
2016-02-10		SUMMONS Not Issued as to UNITED STATES DEPARTMENT OF AGRICULTURE, U.S. Attorney, U.S. Attorney General. (md) (Entered: 02/10/2016)
2016-02-10	2	REQUEST FOR SUMMONS TO ISSUE filed by CORNUCOPIA INSTITUTE.(Stotter, Daniel) (Entered: 02/10/2016)
2016-02-11	3	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF AGRICULTURE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Consent Forms)(zrdj) (Entered: 02/11/2016)
2016-03-02	4	NOTICE of Appearance by Jason Todd Cohen on behalf of UNITED STATES DEPARTMENT OF AGRICULTURE (Cohen, Jason) (Entered: 03/02/2016)
2016-03-22	5	AMENDED COMPLAINT against UNITED STATES DEPARTMENT OF AGRICULTURE filed by CORNUCOPIA INSTITUTE.(Stotter, Daniel) (Entered: 03/22/2016)
2016-03-23	6	Consent MOTION for Extension of Time to File Answer re 5 Amended Complaint by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 03/23/2016)
2016-03-24		MINUTE ORDER granting 6 Consent Motion for Extension of Time. Defendant shall answer or otherwise respond to the 5 Amended Complaint by April 25, 2016. Signed by Judge Rosemary M. Collyer on 3/24/2016. (lcrmc3) (Entered: 03/24/2016)
2016-03-24		Set/Reset Deadlines/Hearings: Answer to Amended Complaint due by 4/25/2016. (cdw) (Entered: 03/25/2016)
2016-04-25	7	ANSWER to 5 Amended Complaint by UNITED STATES DEPARTMENT OF AGRICULTURE. Related document: 5 Amended Complaint filed by CORNUCOPIA INSTITUTE.(Cohen, Jason) (Entered: 04/25/2016)
2016-04-27		MINUTE ORDER. The parties shall meet, confer, and file by May 11, 2016 a joint proposal for briefing dispositive motions. Signed by Judge Rosemary M. Collyer on 4/27/2016. (lcrmc3) (Entered: 04/27/2016)
2016-04-27		Set/Reset Deadlines/Hearings: Joint Proposed Briefing Schedule due by 5/11/2016 (cdw) (Entered: 04/27/2016)
2016-05-09	8	Consent MOTION for Extension of Time to File a Joint Proposed Briefing Schedule by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 05/09/2016)
2016-05-11		MINUTE ORDER granting 8 Consent Motion for Extension of Time. The parties' proposed briefing schedule is due May 25, 2016. Signed by Judge Rosemary M. Collyer on 5/11/2016. (lcrmc3) (Entered: 05/11/2016)
2016-05-11		Set/Reset Deadlines/Hearings: Proposed Briefing Schedule due by 5/25/2016. (cdw) (Entered: 05/12/2016)
2016-05-25	9	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF AGRICULTURE. (Cohen, Jason) (Entered: 05/25/2016)
2016-05-26		MINUTE ORDER pursuant to 9 Joint Status Report and Proposed Schedule. Defendant shall review and produce responsive documents on a rolling basis. The production shall begin on or about June 1, 2016 and shall be completed by October 1, 2016. A Vaughn index shall accompany the production as necessary. The parties shall meet, confer, and file by November 18, 2016 a Joint Report on the status of production and the need (if any) for further briefing. Signed by Judge Rosemary M. Collyer on 5/26/2016. (lcrmc3) (Entered: 05/26/2016)
2016-05-26		Set/Reset Deadlines/Hearings: Joint Status Report due by 11/18/2016. (cdw) (Entered: 05/26/2016)
2016-06-02	10	NOTICE of Appearance by C. Peter Sorenson on behalf of CORNUCOPIA INSTITUTE (Sorenson, C.) (Entered: 06/02/2016)
2016-11-17	11	Joint STATUS REPORT and Proposed Schedule by UNITED STATES DEPARTMENT OF AGRICULTURE. (Cohen, Jason) (Entered: 11/17/2016)
2016-11-17		MINUTE ORDER requiring Defendant to file a Motion for Summary Judgment no later than January 26, 2017; Plaintiff shall file a response by February 24, 2017; and Defendant may reply by March 24, 2017. Signed by Judge Rosemary M. Collyer on 11/17/2016. (lcrmc3) (Entered: 11/17/2016)
2016-11-17		Set/Reset Deadlines/Hearings: Defendant's Summary Judgment motion due by 1/26/2017. Response to Motion for Summary Judgment due by 2/24/2017. Reply to Motion for Summary Judgment due by 3/24/2017. (cdw) (Entered: 11/21/2016)
2016-11-22		MINUTE ORDER authorizing the parties to file a Joint Motion explaining why 11 Proposed Schedule should be adopted by the Court. Signed by Judge Rosemary M. Collyer on 11/22/16. (lcrmc3) (Entered: 11/22/2016)
2017-01-18	12	Consent MOTION for Extension of Time to File Motion for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 01/18/2017)
2017-01-19	13	Joint MOTION to Modify Briefing Schedule by CORNUCOPIA INSTITUTE (Attachments: # 1 Text of Proposed Order)(Sorenson, C.) (Entered: 01/19/2017)
2017-01-24		MINUTE ORDER granting 12 Defendant's Motion for Extension of Time to File and denying 13 Parties' Joint Motion to Adopt Modified Briefing Schedule. Defendant's Motion for Summary Judgment shall be filed no later than February 2, 2017, Plaintiff's Opposition shall be filed no later than March 3, 2017, and Defendant's Reply shall be filed no later than March 31, 2017. Signed by Judge Rosemary M. Collyer on 1/24/2017. (lcrmc3) (Entered: 01/24/2017)
2017-01-24		Set/Reset Deadlines/Hearings: Defendant's Summary Judgment motion due by 2/2/2017. Response to Motion for Summary Judgment due by 3/3/2017. Reply to Motion for Summary Judgment due by 3/31/2017. (cdw) (Entered: 01/24/2017)
2017-02-02	14	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 02/02/2017)
2017-02-02	15	AFFIDAVIT re 14 MOTION for Summary Judgment Declaration of Matthew Michael in Support of Motion for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Attachment A, FOIA Request Dated January 24, 2012, # 2 Attachment B, Initial Response Letters, # 3 Attachment C, FOIA Appeal Dated February 26, 2014, # 4 Attachment D, Appeal Response Letters, # 5 Attachment E, Original Vaughn Index (Shamrock), # 6 Attachment G, Revised Vaughn Index (Shamrock))(Cohen, Jason) (Entered: 02/02/2017)
2017-02-16	16	Consent MOTION for Extension of Time to Modify Briefing Schedule by CORNUCOPIA INSTITUTE (Attachments: # 1 Text of Proposed Order)(Sorenson, C.) (Entered: 02/16/2017)
2017-02-17		MINUTE ORDER granting 16 Plaintiff's Motion for Extension of Time. Plaintiff's opposition to the motion for summary judgment shall be filed no later than April 3, 2017. Defendant's reply shall be filed no later than May 1, 2017. Signed by Judge Rosemary M. Collyer on 2/17/2017. (lcrmc3) (Entered: 02/17/2017)
2017-02-17		Set/Reset Deadlines/Hearings: Response to Motion for Summary Judgment due by 4/3/2017. Reply to Motion for Summary Judgment due by 5/1/2017. (cdw) (Entered: 02/17/2017)
2017-03-22	17	ERRATA Regarding Declaration of Matthew Michael by UNITED STATES DEPARTMENT OF AGRICULTURE 15 Affidavit,, filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Amended Declaration of Matthew Michael)(Cohen, Jason) (Entered: 03/22/2017)
2017-04-04	18	MOTION for Summary Judgment by CORNUCOPIA INSTITUTE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Stotter, Daniel) (Entered: 04/04/2017)
2017-04-04	19	Memorandum in opposition to re 14 MOTION for Summary Judgment filed by CORNUCOPIA INSTITUTE. (Attachments: # 1 Memorandum In Opposition, # 2 Statement of Facts, # 3 Text of Proposed Order)(Stotter, Daniel) (Entered: 04/04/2017)
2017-04-04	20	AFFIDAVIT re 19 Memorandum in Opposition, 18 MOTION for Summary Judgment Declaration of Will Fantle by CORNUCOPIA INSTITUTE. (Stotter, Daniel) (Entered: 04/04/2017)
2017-04-04	21	EXHIBITS re 19 Memorandum in Opposition, 18 MOTION for Summary Judgment , 20 Affidavit Exhibits 1 - 4 Only To Dec. Fantle [Dkt 20] by CORNUCOPIA INSTITUTE. (Stotter, Daniel) Modified event title on 4/5/2017 (znmw). (Entered: 04/04/2017)
2017-04-04	22	ERRATA Regarding Filing of Declaration of Will Fantle & Exhibits 1 - 5 by CORNUCOPIA INSTITUTE. (Stotter, Daniel) (Entered: 04/04/2017)
2017-04-04	23	MOTION for Extension of Time to Allow Late Filing Due To Technology Issues by CORNUCOPIA INSTITUTE (Attachments: # 1 Text of Proposed Order)(Stotter, Daniel) (Entered: 04/04/2017)
2017-04-05		MINUTE ORDER granting 23 Plaintiff's Motion for Extension of Time. The April 4, 2017 filings of 18 Plaintiff's Motion for Summary Judgment and 19 Plaintiff's Opposition to Defendant's Motion for Summary Judgment are accepted by the Court as timely filed. Signed by Judge Rosemary M. Collyer on 4/5/2017. (lcrmc3) (Entered: 04/05/2017)
2017-04-25	24	Consent MOTION for Extension of Time to File Response/Reply as to 14 MOTION for Summary Judgment , 18 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Proposed Order)(Cohen, Jason) (Entered: 04/25/2017)
2017-04-26		MINUTE ORDER granting 24 Defendant's Consent Motion for Extension of Time. Defendant shall file its reply in support of its motion for summary judgment no later than May 15, 2017. Signed by Judge Rosemary M. Collyer on 4/26/2017. (lcrmc3) (Entered: 04/26/2017)
2017-04-26		Set/Reset Deadlines/Hearings: Defendant's reply to Motion for Summary Judgment due by 5/15/2017. (cdw) (Entered: 04/27/2017)
2017-05-15	25	REPLY to opposition to motion re 14 MOTION for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Declaration Second Declaration of Matthew Michael, May 15, 2017)(Cohen, Jason) (Entered: 05/15/2017)
2017-05-15	26	Memorandum in opposition to re 18 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Second Declaration of Matthew Michael)(Cohen, Jason) (Entered: 05/15/2017)
2017-10-17	27	MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 10/17/2017. (DAS) (Entered: 10/17/2017)
2017-10-17	28	ORDER granting 14 Defendant's Motion for Summary Judgment and denying 18 Plaintiff's Motion for Summary Judgment and for In Camera Review. Judgment is entered in favor of Defendant. This case is closed. Signed by Judge Rosemary M. Collyer on 10/17/2017. (DAS) (Entered: 10/17/2017)
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