UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) PUBLIC CITIZEN, ) ) Plaintiff, ) ) v. ) Civil No. 21-cv-01408 (APM) ) U.S. DEPARTMENT OF AGRICULTURE, ) ) Defendant. ) )

MEMORANDUM OPINION

I.

Plaintiff Public Citizen filed this Freedom of Information Act (“FOIA”) suit seeking

information pertaining to the operations of certain meat- and poultry-processing facilities during

the early months of the COVID-19 pandemic. Defendant U.S. Department of Agriculture

(“USDA”) produced thousands of pages of responsive material, but it withheld portions of four

records based on FOIA Exemption 4. According to USDA, the withheld information contains

confidential commercial information that USDA obtained from meat- and poultry-processing

facilities and a trade association. Plaintiff challenges that assertion.

The parties’ cross-motions for summary judgment are now before the court. For the

reasons that follow, the court grants Plaintiff’s motion as to all withholdings due to USDA’s failure

of proof.

II.

This suit arises from Plaintiff’s FOIA request submitted to USDA on May 1, 2020. The

request sought: (1) communications between USDA officials or staff and representatives of certain meat- and poultry-processing plants “related to COVID-19, the coronavirus, and/or plant closures,

slowdowns, or openings”; (2) communications between USDA and the Department of Labor

“relating to poultry, beef, and pork slaughter and/or processing facilities, and COVID-19 or the

coronavirus”; and (3) all records regarding worker safety or occupational health at such facilities

concerning the pandemic. Compl., ECF No. 1, ¶ 5. Plaintiff asked for expedited processing of its

FOIA request, which USDA granted. Id. ¶¶ 6, 8. USDA produced thousands of pages on a rolling

basis, but it withheld some responsive materials. Def.’s Mot. for Summ. J., ECF No. 15

[hereinafter Def.’s Mot.], Def’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J., ECF No.

15-1 [hereinafter Def.’s Mem.], at 5–6. To the parties’ credit, through diligent efforts they were

able to narrow the records in dispute to only four. See generally Def.’s Mot., Ex. 1, ECF No. 15-

3 [hereinafter Ex. 1], Attachment F [hereinafter Vaughn Index]. They are identified as numbers

1, 2, 4, and 5 on the agency’s Vaughn Index. 1 The contested withholdings are premised on

Exemption 4.

III.

The court begins with the governing legal principles. Exemption 4 is designed to prevent

disclosure of “trade secrets and commercial or financial information obtained from a person” that

is “privileged or confidential.”

(b)(4). Information is not subject to disclosure

under Exemption 4 if it is “(1) commercial or financial, (2) obtained from a person, and

(3) privileged or confidential.” Pub. Citizen Health Rsch. Grp. v. FDA,

(D.C.

Cir. 1983). Information is considered confidential if it is “customarily and actually treated as

private by its owner.” Food Mktg. Inst. v. Argus Leader Media,

(2019).

1 Initially, there were six records at issue, but Plaintiff withdrew objections to two. Pl.’s Cross-Mot. for Summ. J., ECF No. 16 [hereinafter Pl.’s Cross-Mot.], Pl.’s Mem. in Supp. of Pl.’s Cross-Mot. & in Opp’n to Def.’s Mot. for Summ. J., ECF No. 16 [hereinafter Pl.’s Mem.], at 5. Vaughn Index Entries 3 and 6 therefore are no longer at issue.

2 The agency bears the burden “of proving that the documents are exempt from disclosure,” and this

burden does not shift “[e]ven when the requester files a motion for summary judgment.”

Pub. Citizen Health Rsch. Grp. v. FDA,

, 904 (D.C. Cir. 1999) (internal marks

omitted) (quoting Nat’l Ass’n of Gov’t Emps. v. Campbell,

(D.C. Cir. 1978)).

A.

The court addresses Vaughn Index Entries 1 and 2 together because the parties do the same.

Def.’s Mem. at 9–14; Pl.’s Cross-Mot. for Summ. J., ECF 16 [hereinafter Pl.’s Cross-Mot.], Pl.’s

Mem. in Supp. of Pl.’s Cross-Mot. & in Opp’n to Def.’s Mot., ECF No. 16 [hereinafter Pl.’s

Mem.], at 8–17. 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 at 1. Vaughn

Index Entry 2 is a reopening plan for the same Smithfield Sioux Falls facility that the company

directly submitted to USDA. Vaughn Index at 3. 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.”

USDA says that these records are “confidential” for

purposes of Exemption 4. Def.’s Mem. at 14–15.

3 USDA cannot meet its burden as to these records because its factual proffer rests entirely

on inadmissible hearsay. See Pl.’s Mem. at 17. Motions for summary judgment in FOIA suits, as

in all cases, are governed by Federal Rule of Civil Procedure 56. See Wash. Post Co. v. U.S. Dep’t

of Health & Hum. Servs.,

(D.C. Cir. 1989). Rule 56(c)(1)(B) provides, in

relevant part, that “[a] party asserting that a fact cannot be” can make such showing by establishing

that the “adverse party cannot produce admissible evidence to support the fact.” The rules

regarding the admissibility of hearsay statements apply at the summary judgment stage.

See Gleklen v. Democratic Cong. Campaign Comm., Inc.,

(D.C. Cir. 2000)

(stating that “sheer hearsay” “counts for nothing” on summary judgment);

(“While a

nonmovant is not required to produce evidence in a form that would be admissible at trial, the

evidence still must be capable of being converted into admissible evidence.”).

In FOIA cases, courts have relaxed the rule against hearsay for some purposes. “[C]ourts

may consider hearsay in FOIA cases when assessing the adequacy of the agency’s search” and

“FOIA declarants may rely on information obtained through inter-agency consultation.” Humane

Soc’y of U.S. v. Animal & Plant Health Inspection Serv.,

(D.D.C. 2019);

see also DiBacco v. U.S. Dep’t of Army,

(D.C. Cir. 2019) (holding that

information relayed from subordinates to a declarant in a FOIA action satisfied the personal

knowledge requirement of Rule 56). But “it is a different matter to rely on out-of-court statements

from private third-parties to justify an agency’s withholding.” Humane Soc’y, 386 F. Supp. at 44.

See also Ecological Rts. Found. v. EPA,

, 49 (D.D.C. 2021) (“[C]ourts have

declined to adopt a permissive approach to hearsay in all aspects of FOIA cases and thus, for

example, have rejected as impermissible hearsay an agency’s invocation of FOIA exceptions

reliant on out-of-court statements by private third parties.”).

4 That is particularly true with respect to Exemption 4. Courts consistently have rejected

hearsay statements offered to support the exemption. Perhaps most notably, in Brown v. Perez,

the Tenth Circuit flatly refused to consider on hearsay grounds a letter from a third-party owner

claiming its information was confidential.

(10th Cir. 2016). No company

representative had filed an affidavit, and the agency’s declaration did not say that a representative

would be prepared to testify at a trial about the letter’s contents. See

“Because the agency has

not shown the letter or its contents would be admissible at trial,” the Tenth Circuit held, “we may

not consider it on summary judgment.”

at 1232–33.

Courts in this District have done the same. Two recent cases illustrate the point.

In Leopold v. Department of Justice, the court declined to consider letters written by lawyers of

the third-party whose information was at issue. No. 19-cv-3192 (RC),

, at *6

(D.D.C. Jan. 13, 2021). The court explained that “[e]ach letter is a statement made out of court

and the government has not established the applicability of any hearsay exception.”

The court

also observed that “[t]he government could have, and probably should have, obtained sworn

declarations from these agencies to support the claimed exemptions—such efforts would have

been reasonable.”

Similarly, in Humane Society International v. U.S. Fish & Wildlife Service,

the court refused to consider third-party objections to disclosure that “were not notarized and were

not made under the penalty of perjury.” No. 16-cv-720 (TJK),

, at *4 (D.D.C.

Mar. 29, 2021). The court faulted the defendants for “mak[ing] no argument explaining why the

Court should consider [the objections’] content” and for not “request[ing] time to cure them.”

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). See Def.’s Mem. at 14 (citing Def.’s Mot., Ex. 1,

5 Decl. of Alexis Graves [hereinafter Graves Decl.], ¶ 24); Def.’s Mot., Ex. 1, Attachment G

[hereinafter Smithfield Letter], at 74 (CM/ECF pagination)). USDA parrots Smithfield’s assertion

that because “only a handful of Smithfield’s 55,000 employees were privy” to the contents of the

letter to the South Dakota Department of Health, and that “fewer than ten of its employees were

involved in the development of its COVID-19 response in conjunction with federal and state

government,” the records are confidential. Vaugn Index at 3. But 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.

Before moving on, the court must note that USDA admits that the Smithfield Letter

contains inadmissible hearsay but, inexplicably, does not fully abandon its reliance on the letter.

USDA’s opening brief urged that the Smithfield information was confidential for a different

reason: because USDA had offered Smithfield an express assurance of confidentiality when it

submitted information to the agency. Def.’s Mem. at 18 (citing Graves Decl. ¶ 31). To support

that fact, USDA relied on Smithfield’s representation that “a former Undersecretary for Food

Safety, Mindy Brashears, provided Smithfield an explicit assurance of confidentiality during an

April 21, 2020, teleconference.” Graves Decl. ¶ 31 (citing Smithfield Letter). After Plaintiff

objected on the grounds of hearsay, see Pl.’s Mem. at 23–24, USDA withdrew that asserted fact,

citing Plaintiff’s objection to the “unsworn letter,” see Def.’s Reply in Supp. of Def.’s Mot. &

Opp’n to Pl.’s Cross-Mot., ECF No. 20, at 5. Yet, USDA did not back away from the Smithfield

Letter’s other factual contention—that the company kept the disputed records closely held—even

6 though Plaintiff also objected to it on hearsay grounds. See

. USDA cannot have it both

ways: the Smithfield Letter is hearsay or it is not. It is inadmissible hearsay.

B.

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 to Ms. Brashears, requesting USDA’s

intervention in a local government’s efforts to implement vigorous COVID-19 transmission

management measures at a particular poultry plant. Vaughn Index at 6. 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. See Graves Decl.

¶ 25 (“Submitter NCC advised . . . .”) (citing Def.’s Mot., Ex. 1, Attachment H at 78–82). 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.

C.

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.” Vaughn Index at 8. 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

7 from state actors on mitigation efforts, and absenteeism rates.”

at 8–9. 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.”

; see also Def.’s Mot., Def.’s Statement of Material

Facts, ECF No. 15-2, ¶ 24 (“Recognizing the closely held nature in which meat and poultry

processors hold confidential commercial information such as reduced outputs, and other

confidential commercial information like absenteeism rates, planned reopening dates and details

regarding engagement with regulator authorities, USDA appropriately marked its internal charts,

(sic) briefs compiling this information ‘privileged’, ‘confidential’, ‘or internal use,’ and ‘not for

public dissemination.’”). USDA further says that disclosure “would also undermine USDA’s

efforts to combat supply chain issues,” and there “was an implied assurance of confidentiality”

given to the companies who provided the information. Vaughn Index at 9. Also, as a sign of how

it viewed the information, USDA marked it as “internal” and “not for public release.”

.

USDA’s position is flawed because it is not supported by any proof that the owners of the

information treated it as private. See Graves Decl. ¶ 26. The confidentiality inquiry centers on

“how the particular party customarily treats the information, not how the industry as a whole treats

the information.” Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin.,

(D.C. Cir. 2001) (emphasis added); see also Renewable Fuels Ass’n v. EPA,

, 10

(D.D.C. 2021) (emphasis added) (internal quotation marks and citation omitted). 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

8 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. Pl.’s Reply Mem. in Further Supp. of Pl.’s Cross-Mot., ECF No. 22, at 17 (emphasis

added). The court therefore grants Plaintiff’s cross-motion for summary judgment as to the

withheld information in Vaughn Index Entry 5. 2

V.

For the foregoing reasons, the court grants Plaintiff’s motion for summary judgment and

denies USDA’s motion for summary judgment. A final, appealable order accompanies this

Memorandum Opinion.

Dated: August 5, 2022 Amit P. Mehta United States District Judge

2 Because the court grants Plaintiff’s motion due to USDA’s failure of proof, the court need not address Plaintiff’s various arguments on the merits of whether Exemption 4 applies.

9