Humane Soc'y of the U.S. v. U.S. Dep't of Agric.

• Decision Date: 28 June 2021
• Docket Number: Case No. 1:17-cv-02570 (TNM)
• Citation: 549 F.Supp.3d 76
• Parties: The HUMANE SOCIETY OF the UNITED STATES, Plaintiff, v. U.S. DEPARTMENT OF AGRICULTURE and Farm Service Agency, Defendant.
• Court: U.S. District Court — District of Columbia

549 F.Supp.3d 76

The HUMANE SOCIETY OF the UNITED STATES, Plaintiff,

v.U.S. DEPARTMENT OF AGRICULTURE and Farm Service Agency, Defendant.

Case No. 1:17-cv-02570 (TNM)

United States District Court, District of Columbia.

Signed June 28, 2021

Matthew Eric Penzer, Peter A. Brandt, Margaret E. Robinson, Laura Fox, Humane Society of the United States, Washington, DC, for Plaintiff.

Claire M. Whitaker, John Moustakas, Kathleene A. Molen, Fred Elmore Haynes, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

The Humane Society of the United States ("Society") submitted a Freedom of Information Act request seeking information about loans issued to food animal production facilities in certain California counties. The Farm Service Agency—which runs the loan program—invoked several FOIA exemptions to withhold details about the borrowers, their loan applications, and the issued loans.

The Society sues the Farm Service Agency and its parent, the U.S. Department of Agriculture (collectively, the "Agency"). It challenges the Agency's decision to not produce a loan recipient's name, address, and operation type; the intended use of the loan; and the documents the Agency creates during its environmental review of these loans. According to the Society, no statute prohibits the Agency from disclosing these requested materials. The Society also asserts that such information is not privileged and confidential and that the public's interest in monitoring use of public funds and the Agency's compliance with its statutory duties outweighs any privacy interest. The Court agrees, with some limitations. The Court will grant the Society's summary judgment motion and deny the Agency's motion.

I.

The Agency administers a Farm Loan Program ("FLP") to assist farmers and ranchers who cannot obtain conventional loans from private lenders or who have suffered financial setbacks. See Defs.’ Statement of Material Facts ("Defs.’ SOMF") ¶¶ 30–31, ECF No. 64-2. The FLP is available to "individual and family-sized farmers and ranchers." Id. ¶ 31. The Agency offers both direct and guaranteed loans, which allow borrowers to make capital improvements or purchase livestock and equipment. Id. ¶¶ 32, 37–38.

An applicant must meet several criteria to qualify for a loan. "Primarily, the applicant must be the operator or owner/operator of a family sized farm." Id. ¶ 50. Borrowers also "must have acceptable credit history" and "the legal capacity to incur the obligations of the loan," and they cannot "be delinquent on a federal debt" or "have any outstanding unpaid judgments." Id. ¶ 51.

Before issuing a loan, the Agency undertakes an environmental review of the intended use of the funds. See id. ¶ 52. It completes an Environmental Screening Worksheet—Form FSA-850 (formerly Form RD-1940-22)—"to evaluate potential environmental impacts in keeping with the provisions of the National Environmental Policy Act" ("NEPA"). Id. ¶ 53. The "FSA-850 may be prepared by employees who have received appropriate environmental training." Id. ¶ 54. Once the Environmental Screening Worksheet is complete, an "authorized agency official who has been delegated the appropriate level of authority (and completed environmental training) for the proposed action must review and concur with the preparer's findings before processing of the loan request." Id.

If approved, the loan "funds are disbursed" and "[b]orrower repayment of the loan funds received is scheduled out either at the end of the operating cycle or in annual installments, depending on the term of the loan." Id. ¶ 58.

The Society is a nonprofit organization "whose mission is to fight to end suffering for all animals." Pl.’s Statement of Material Facts ("Pl.’s SOMF") ¶ 1, ECF No. 65-2. The Society submitted a FOIA request to the Agency for "any and all records relating or referring to funds granted to, denied to, or requested by" food animal production, processing, or slaughtering facilities in 16 California counties that experienced drought between February 2015 and August 2016. Id. ¶¶ 16–17; see also Defs.’ SOMF ¶ 1. The Society defined "funds" to include "loans, grants, payments, and other types of financial transaction." Decl. of Matthew Penzer Ex. A at 5, ECF No. 65-4.¹ According to the Society, it submitted the FOIA request "to assess the environmental impacts" of the FLP loans and loan guarantees and "to ensure [the Agency] is complying with its statutory duties." Pl.’s SOMF ¶ 16.

The Society challenged the Agency's response to its FOIA request, and the parties cross-moved for summary judgment. Defs.’ SOMF ¶¶ 19–20. During briefing, the Agency identified "a number of irregularities with [its] production of documents." Id. ¶ 21; see also Pl.’s SOMF ¶ 20. So the Court denied the motions and ordered the Agency to reprocess the documents. Defs.’ SOMF ¶ 22. The Agency later made three releases of records and redacted material under FOIA Exemptions 3, 4, and 6. See id. ¶¶ 24, 26, 27.

The Society again contests some of the Agency's withholdings, and the parties have filed renewed cross-motions for summary judgment. Their motions are ripe for disposition.²

II.

At summary judgment, the movant must show that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party first must identify those portions of the record that show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (cleaned up). The Court construes the evidence "in the light most favorable to the non-moving party." Brubaker v. Metro. Life Ins. Co. , 482 F.3d 586, 588 (D.C. Cir. 2007).

FOIA reflects a "general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Dep't of Air Force v. Rose , 425 U.S. 352, 360–61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (cleaned up). The statute's nine enumerated exemptions "do not obscure the basic policy that disclosure, not secrecy, is the dominant objective." Id. at 361, 96 S.Ct. 1592. Courts narrowly construe FOIA's exemptions "in keeping with FOIA's presumption in favor of disclosure." Pub. Citizen, Inc. v. OMB , 598 F.3d 865, 869 (D.C. Cir. 2010).

"The agency bears the burden of establishing that a claimed exemption applies." Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Just. , 746 F.3d 1082, 1088 (D.C. Cir. 2014). "[S]ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Pub. Citizen v. U.S. Dep't of Health & Hum. Servs. , 975 F. Supp. 2d 81, 94 (D.D.C. 2013) (cleaned up). Courts review the applicability of FOIA exemptions de novo. King v. U.S. Dep't of Just. , 830 F.2d 210, 217 (D.C. Cir. 1987). FOIA cases typically resolve at the summary judgment stage. See Brayton v. Off. of the U.S. Trade Rep. , 641 F.3d 521, 527 (D.C. Cir. 2011).

III.

The Agency spills much ink justifying withholding decisions on information that the Society does not request. See Reply in Supp. Pl.’s Cross-Mot. Summ. J. ("Pl.’s Reply") at 6, ECF No. 70 ("[The Agency] devotes an exceptionally large portion of its brief to defending information that [the Society] has repeatedly and consistently stated it does not seek and is not challenging in this case."). The Society disputes only some of the material the Agency withheld. Specifically, the Society challenges the Agency's decision not to produce the following categories of information under FOIA Exemptions 3, 4, and 6:

(1) the name of the loan recipient;

(2) the street address for the operation receiving the loan and/or the loan project's specific location;

(3) the type of operation receiving the loan (e.g. , dairy and milk production facility) and/or the North American Industry Classification System ("NAICS") number of the operation receiving the loan³ ;

(4) the loan purpose and/or intended use of loan proceeds; and (5) information relating to the environmental factors that are part of FLP reviews.

See Mem. of P. & A. in Supp. Pl.’s Cross-Mot. Summ. J. ("Pl.’s Cross-Mot.") at 13, ECF No. 65-1; Pl.’s SOMF ¶ 22.⁴ So the Court only considers the asserted FOIA exemptions for the disputed information.

A.

First, the Agency asserts that it properly invoked FOIA Exemption 3. This exemption authorizes an agency to withhold records that are "specifically exempted from disclosure by another statute" if the statute "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue." 5 U.S.C. § 552(b)(3)(A)(i).

The Agency relies on the Food, Conservation and Energy Act, 7 U.S.C. § 8791 (" Section 8791"). See Defs.’ Mem. of P. & A. in Supp. Mot. Summ. J. ("Defs.’ Mot.") at 12 n.1, ECF No. 64-1; Decl. of Kimberly Morris ("Morris Decl.") ¶ 13, ECF No. 64-4 (detailing information withheld under Section 8791 ). This statute provides in relevant part:

Except as provided in paragraphs (3) and (4), the Secretary, any officer or employee of the Department of Agriculture, or any contractor or cooperator of the Department, shall not disclose—

(A) information provided by an agricultural producer or owner of agricultural land concerning the agricultural operation, farming or conservation practices, or the land itself, in order to participate in programs of the Department.

7 U.S.C. § 8971(b)(2).⁵

The Court conducts a two-step inquiry under Exemption 3. It first decides whether the statute is a "statute of exemption as contemplated by exemption 3"—or a "withholding statute"; if so, it then examines whether "the withheld material satisfies...