UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ORGANIZATION FOR COMPETITIVE MARKETS,

Plaintiff,

v.

OFFICE OF INSPECTOR GENERAL, USDA, No. 14-cv-1902 (EGS) Defendant,

and

NATIONAL CATTLEMEN’S BEEF ASSOCIATION,

Defendant- Intervenor.

MEMORANDUM OPINION

I. Introduction

In this Freedom of Information Act (“FOIA”) lawsuit,

Plaintiff Organization for Competitive Markets (“OCM”) seeks to

compel Defendant, the Office of Inspector General (“OIG”) of the

United States Department of Agriculture (“USDA”), to produce

documents related to OIG’s 2011 audit of USDA’s Agricultural

Marketing Service (“AMS”) regarding AMS’ oversight of USDA’s

beef promotion program entitled “Agricultural Marketing Service

1 Oversight of the Beef Research and Promotion Board’s Activities”

(the “audit report”).

Following several rounds of document production,

administrative appeals, and the filing of this action, the

remaining records have been withheld in full or redacted

pursuant to FOIA Exemptions 4, 5, 6, and 7. Pending before the

Court are the parties’ cross motions for summary judgment. Upon

consideration of the motions, the responses and replies thereto,

applicable law, the entire record, and for the reasons explained

below, the Court GRANTS Defendant USDA-OIG’s Motion for Summary

Judgment, GRANTS Defendant-Intervenor NCBA’s Motion for Summary

Judgment, and DENIES Plaintiff OCM’s Motion for Summary

Judgment.1

II. Background

A. Factual Background

OCM is a non-profit organization whose “mission is to work

for transparent, fair, and truly competitive agricultural and

food markets.” Compl., ECF No. 1 ¶ 4.2 OCM “monitors federal

checkoff operations and expenditures” to “provide[] its members

1 On April 9, 2019, USDA-OIG filed a motion seeking leave to file a sur-reply. See Mot. Leave to File Sur-Reply, ECF No. 103. Since the Court grants USDA-OIG’s Motion for Summary Judgment, the Court DENIES USDA-OIG’s Motion for Sur-Reply. 2 When citing electronic filings throughout this opinion, the

Court cites to the ECF header page number, not the original page number of the filed document.

2 and the public with information on a broad range of such

programs and issues.” Id. at ¶ 5. The relevant program here is

the Beef Checkoff Program, a beef promotion program, see Compl.,

ECF No. 1 ¶ 1; which is administered and supervised by the USDA

and the AMS. See Counter-Statement of Disp. Facts by Pl. (“Pl.

Counter SODF”), ECF No. 90-3 ¶ 117. The Cattlemen’s Beef

Promotion & Research Board (“CBB” or “Beef Board”) and the Beef

Promotion Operating Committee (“BPOC”) “assist in developing and

implementing beef promotion and research projects for the Beef

Checkoff Program.” Id. at ¶ 121.

In January 2011, USDA-OIG notified AMS that it would

“conduct an audit of AMS’ oversight of the CBB” to “evaluate the

structure and relationship between AMS and the CBB, the CBB and

Qualified State Beef Councils [(“QBSCs”)], and the CBB and

contractors with the Beef Checkoff Program.” Id. at ¶¶ 132-133.

During this audit, OIG met with several QBSCs3 and entities that

contract with the Beef Checkoff Program (“Beef Checkoff

Contractors”).4 These entities provided USDA-OIG with documents

to assist in the audit. See id. at ¶ 142.

3 QSBCs collect the funding for the Beef Checkoff Program through the assessment on cattle sold in the United States. Pl. Counter SOMF, ECF No. 90-3 ¶ 123. After providing a portion to the CBB, the QSBCs “retain[] the remainder for activities of the [QSBC] that are authorized by the Beef Act.” Id. 4 “[T]he Beef Checkoff Program contract[s] with established

national nonprofit industry-governed organizations to implement

3 OIG issued its initial audit report on March 29, 2013,

titled “Agricultural Marketing Service Oversight of the Beef

Research and Promotion Board’s Activities.”5 Pl. Counter SODF,

ECF No. 90-3 ¶ 135. After USDA-OIG published the audit report,

OCM submitted a FOIA request to USDA-OIG seeking the following

records:

(1) All records relied on for the findings and conclusions contained in the audit report; (2) All records gathered in preparation for the report (whether ultimately used to support the findings or not); (3) All records indicating or otherwise relating to the IG’s determination of relevant data set parameters; (4) All internal and external communications relating to the audit report; (5) All records that relate to the standards by which OIG determined compliance issues relating to operations and structure of the Beef Board (e.g., conflict of interest policies, competitive bidding requirements, etc.); and (6) All records referencing or relating to the 2010 independent audit and/or its consideration or exclusion from consideration for the current report.

Compl., ECF No. 1 ¶ 15. Between productions at the

administrative level and during this litigation, USDA-OIG has

produced over 23,000 documents. See Decl. of Alison Decker,

Assistant Counsel to the Inspector General with USDA-OIG

programs of promotion, research, consumer information and industry information.” Id. at ¶ 126. 5 After receiving letters questioning the quality of the report,

USDA-OIG re-opened the audit to ensure the quality of the findings. Pl. Counter SOMF, ECF No. 90-3 ¶ 136, 138. USDA-OIG published its final audit report on January 31, 2014. Id. at ¶ 140.

4 (“Decker Decl.”), ECF No. 88-3 ¶ 125. OIG referred an additional

24,000 documents to AMS for processing. Id.

B. Procedural History

USDA-OIG and Defendant-Intervenor, National Cattlemen’s

Beef Association (“NCBA”),6 filed Motions for Summary Judgment on

November 14, 2018. See Second Mot. Summ. J. (“OIG Mot. Summ.

J.”), ECF No. 88; Def.-Int. NCBA’s Mot. Summ. J. (“NCBA Mot.

Summ. J.”), ECF No. 87.

Plaintiff filed its Opposition and Cross-Motion for Summary

Judgment on January 9, 2019. See Cross-Mot. Summ. J. by OCM

(“OCM Mot. Summ. J.”), ECF No. 90; Pl.’s Opp. Mot. Summ. J., ECF

No. 91. On February 26, 2019, Defendant and Defendant-Intervenor

filed their oppositions and replies. See Mem. Opp. to Cross-Mot.

Summ. Judgment by NCBA (“NCBA Opp. & Reply”), ECF No. 96; Reply

to Opp. Mot. Summ. J. by OIG (“OIG Opp. & Reply”), ECF No. 97.

Plaintiff filed its reply on March 22, 2019. See Reply to Opp.

to Mot. Summ. J. by OCM (“OCM Reply”), ECF No. 102. The parties

6 On October 25, 2016, the Court granted NCBA’s Motion to Intervene for the limited purpose of “reviewing documents and records for NCBA’s confidential and proprietary business information and objecting to the production of documents and records to OCM exclusively on the basis that those documents and records contain NCBA’s confidential and proprietary business information.” Order Granting Mot. Int., ECF No. 39 at 1. Accordingly, NCBA moves for summary judgment only as to the Exemption 4 withholdings and USDA-OIG’s segregability obligations with regard to those withholdings. See NCBA Mot. Summ. J., ECF No. 87 at 37-53.

5 each filed Notices of Supplemental Authority and responses

thereto in June and July 2020. See ECF Nos. 105-107, 109. The

cross motions are ripe and ready for the Court’s adjudication.

III. Legal Standard

A. FOIA

FOIA was enacted to “pierce the veil of administrative

secrecy and to open agency action to the light of public

scrutiny.” Dep't of Air Force v. Rose,

(1976)

(internal quotation marks omitted). Accordingly, FOIA favors

“full agency disclosure unless information is exempted under

clearly delineated statutory language.”

(internal

quotation marks omitted). The agency has the burden of showing

that the withheld information falls under a FOIA exemption. See

(a)(4)(B); Pub. Citizen Health Rsch. Grp. v. FDA,

, 904 (D.C. Cir. 1999) (quoting Niagara Mohawk Power

Corp. v. DOE,

(D.C. Cir. 1999)).

B. FOIA Improvement Act

The FOIA Improvement Act (“FIA”),

Stat. 538 (2016), imposes an additional requirement on agencies

seeking to invoke this or any other FOIA exemption. In relevant

part, the FIA provides that: “An agency shall . . . withhold

information under this section only if . . . (I) the agency

reasonably foresees that disclosure would harm an interest

protected by [a FOIA] exemption; or (II) disclosure is

6 prohibited by law.”

(a)(8)(A). In other words, “an

agency must release a record—even if it falls within a FOIA

exemption—if releasing the record would not reasonably harm an

exemption-protected interest and if its disclosure is not

prohibited by law.” Rosenberg v. U.S. Dep’t of Def.,

(D.D.C. 2018), on reconsideration in part,

(D.D.C. 2020).

Congress imposed this additional requirement on agencies

“to foreclose the withholding of material unless the agency can

articulate both the nature of the harm [from release] and the

link between the specified harm and specific information

contained in the material withheld.” Reps. Comm. for Freedom of

the Press v. FBI,

, 369 (D.C. Cir. 2021) (citation

and internal quotation marks omitted). Meeting the foreseeable

harm requirement is “an independent and meaningful burden.” Ctr.

for Investigative Reporting v. U.S. Customs & Border Prot.,

, 106 (D.D.C. 2019) (quoting NRDC v. EPA, No. 17-

CV-5928 (JMF),

, at *1 (S.D.N.Y. July 25, 2019)).

C. Summary Judgment

Summary judgment is proper when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In FOIA

cases, a government agency is entitled to summary judgment only

if “the agency proves that it has fully discharged its [FOIA]

7 obligations . . . after the underlying facts and the inferences

to be drawn from them are construed in the light most favorable

to the FOIA requester.” Moore v. Aspin,

(D.D.C. 1996) (citations omitted). “FOIA cases typically and

appropriately are decided on motions for summary judgment.”

Coffey v. Bureau of Land Mgmt,

(D.D.C.

2017).

When considering a motion for summary judgment under FOIA,

the court must review the record de novo.

(a)(4)(B). The court may rely on agency affidavits or

declarations that are “relatively detailed and non-conclusory.”

SafeCard Servs., Inc. v. SEC,

(D.C. Cir.

1991) (affirming that “relatively detailed and non-conclusory”

declarations “are accorded a presumption of good faith, which

cannot be rebutted by purely speculative claims about the

existence and discoverability of other documents”) (internal

quotations omitted). “The Court may grant summary judgment based

solely on information provided in an agency's affidavits or

declarations when they ‘describe the documents and the

justifications for nondisclosure with reasonably specific

detail, demonstrate that the information withheld logically

falls within the claimed exemption, and are not controverted by

either contrary evidence in the record nor by evidence of agency

bad faith.’” Coffey,

(quoting Larson v.

8 Dep’t of State,

(D.C. Cir. 2009)). “[T]he

government need not justify its withholdings document-by-

document; it may instead do so category-of-document by category

of document.” Crooker v. ATF,

(D.C. Cir. 1986).

IV. Analysis

A. Defendant’s Search for Responsive Documents Was Adequate

FOIA requires an agency to conduct a search that is

“reasonably calculated to uncover all relevant documents.”

Weisberg v. DOJ,

(D.C. Cir. 1983). An agency

has the burden to “show that it made a good faith effort to

conduct a search for the requested records, using methods which

can be reasonably expected to produce the information

requested.” Oglesby v. U.S. Dep't of the Army,

(D.C. Cir. 1990).

Since receiving Plaintiff’s FOIA request, USDA-OIG has

conducted multiple rounds of searches for responsive records.

See Decker Decl., ECF No. 88-3 ¶¶ 14-19, 69. After identifying

the individuals on the audit team and other personnel who might

have relevant records, as well as gaining an understanding of

where the audit team’s records and communications were

maintained, USDA-OIG conducted searches of both hard copy and

electric files in the relevant field offices and various

personnel email records. See id. ¶¶ 14-19, 20-29. USDA-OIG

9 conducted a second search in January 2015, again “forward[ing]

the FOIA request to all relevant parties in Audit to conduct a

search for any records responsive to the request.” Id. ¶ 70.

Reasonable search terms were identified, id. ¶ 77; and searches

were conducted of the audit team email, regional field office

electronic and hard copy files, the audit SharePoint site, and

the Office of Counsel email and records, id. ¶¶ 69-93.

Plaintiff does not question the adequacy of USDA-OIG’s

search, and the Court concludes that the searches conducted by

OIG were sufficient to meet USDA-OIG’s FOIA obligations.

Accordingly, the Court GRANTS summary judgment to USDA-OIG on

the adequacy of the search.

B. USDA-OIG’s Exemption Claims

Plaintiff challenges USDA-OIG’s use of Exemption 4 and 5 to

withhold or redact two groups of documents responsive to

Plaintiff’s FOIA request.7 The first group consists of 193

7 USDA-OIG invoked Exemption 7(C) and 7(D) to redact handwritten notes related to a law enforcement matter and a record prepared by a confidential source. OIG Mot. Summ. J., ECF No. 88-1 at 14- 15. Plaintiff does not contest these redactions. See generally Pl.’s Opp. Mot. Summ. J., ECF No. 91. The Court has reviewed the Vaughn indexes, declarations, and relevant legal authority, and after careful consideration, GRANTS USDA-OIG’s Motion for Summary Judgment for documents withheld pursuant to Exemptions 7(C) and 7(D). USDA-OIG invoked Exemption 6 to withhold names, titles, email addresses, and phone numbers of lower-level USDA- OIG and USDA-AMS employees. OIG Mot. Summ. J., ECF No. 88-1 at 11. OCM disputes only the withholding of “title, posting, and job grade for lower[-]level employees.” OCM Mot. Summ. J., ECF No. 90 at 42. USDA-OIG responds that “this information is

10 records containing information about the Beef Checkoff

Contractors and the QSBCs, which were withheld pursuant to

Exemption 4.8 The second group, withheld pursuant to Exemption

5’s deliberative process privilege, includes draft audit reports

and communications between USDA-OIG and AMS and/or the Beef

Board during OIG’s audit of AMS.9 The Court addresses each group

of documents below.

1. USDA-OIG Properly Invoked Exemption 4 to Withhold Confidential Business Information from the QSBCs and Beef Checkoff Contractors

Pursuant to Exemption 4, USDA-OIG and AMS redacted and

withheld information about Beef Checkoff Contractors10 and

substantially in OIG’s Vaughn indices.” Def.’s Opp’n to Pl.’s Mot. Summ. J. & Reply Br., ECF No. 98 at 22. OCM’s reply briefing does not address this issue. See generally, OCM Reply, ECF No. 102. The Court therefore concludes that OCM no longer contests the Exemption 6 withholdings. USDA-OIG has explained why disclosure of the withheld information “would constitute a clearly unwarranted invasion of personal privacy.” Id. at 11 (quoting

(b)(6)). Accordingly, the Court GRANTS USDA-OIG’s Motion for Summary Judgment for documents withheld pursuant to Exemption 6. 8 The withheld documents are listed in the Vaughn Index Prepared

by USDA-AMS for AMS & OCM Bates Nos. (Aug. 31, 2018) (“AMS Vaughn Index I”), ECF No. 88-33, and Vaughn Index Prepared by USDA AMS for NCBA Bates Nos. (Aug. 31, 2018) (“AMS Vaughn Index II”), ECF No. 88-34. 9 The withheld draft audit reports are listed in Ex. 58–

Supplemental Vaughn Index for Draft Audit Reports (“OIG Supp. Vaughn Index”) (Aug. 26, 2016), ECF No. 88-6, at 382-94. 10 The withheld records from Beef Checkoff Contractors include

137 records from NCBA, Second Supp. Evans Decl., ECF No. 87-4 ¶¶ 60-196; eight records from the American National Cattle Women, Inc. (“ANCW”), Decl. of Gwen Geis (“Geis-ANCW Decl.”), ECF No. 88-10 ¶¶ 8, 12-15a; four records from the United States Meat Export Federation (“USMEF”), Decl. of Dan Halstrom (“Halstrom-

11 information from various QSBCs.11 Pl. Counter SODF, ECF No. 90-3

¶¶ 177-80. FOIA Exemption 4 protects “trade secrets and

commercial or financial information obtained from a person [that

is] privileged or confidential.”

(b)(4).

a. USDA-OIG’s Declarations and Vaughn Indexes are Sufficiently Detailed

OCM contends that USDA-OIG’s declarations and Vaughn

indexes are insufficient to support withholding under Exemption

4. OCM Mot. Summ. J., ECF No. 90 at 37-39. First, OCM argues

that the declarations and Vaughn indexes are conclusory and do

not meet the agency’s burden of proof because they “are replete

with buzzwords . . . but they all lack meaningful substance.”

. The Court agrees with USDA-OIG and is persuaded

that the declarations and Vaughn indexes provide sufficient

details about the content of the withheld information.

USMEF Decl.”), ECF No. 88-11 ¶¶ 8, 12-15; and thirteen records from the Meat Import Council of America Inc. (“MICA”), Decl. of Laurie Bryant (“Bryant-MICA Decl.”), ECF No. 88-12 ¶¶ 8, 13-19. See Counter SOMF, ECF No. 90-3 ¶¶ 177-78. 11 Information was redacted from six records from the Kansas Beef

Council (“KBC”), Decl. of Kevin Thielen (“Thielen-KBC Decl.”),ECF No. 88-13 ¶¶ 30-43; five records from the Michigan Beef Industry Council (“MBIC”), Decl. of George Quackenbush (“Quackenbush-MBIC Decl.”), ECF No. 88-14 ¶¶ 26-30; one record from the Nebraska Beef Council (“NBC”), Decl. of Ann Marie Bosshamer (“Bosshamer-NBC Decl.”), ECF No. 88-15 ¶ 26; eleven records from the Pennsylvania Beef Council (“PBC”), Decl. of Bridget Bingham (“Bingham-PBC Decl.”), ECF No. 88-17 ¶¶ 31-41; and one record from the Texas Beef Council (“TBC”), Decl. of Richard Wortham (“Wortham-TBC Decl.”), ECF No. 88-16 ¶ 25. See also Counter SOMF, ECF No. 90-3 ¶¶ 179-80.

12 To justify its withholdings, an agency must provide a

“relatively detailed justification that specifically identifies

the reasons why a particular exemption is relevant and

correlate[s] those claims with the particular part of a withheld

document to which they apply.” S. All. for Clean Energy v. DOE,

(D.D.C. 2012) (quoting Mead Data Central,

Inc. v. U.S. Dep’t of Air Force,

(D.C. Cir.

1977)) (internal quotations omitted). “[C]onclusory and

generalized allegations of exemptions” are not sufficient to

justify withholdings. Vaughn v. Rosen,

(D.C. Cir. 1973) (finding indexing insufficient where the

government merely claimed that all the withheld documents fell

under three exemptions).

The Vaughn indexes in this case provide document-specific

and exemption-specific descriptions for all documents that were

withheld pursuant to Exemption 4. See AMS Vaughn Index I, ECF

No. 88-33 and AMS Vaughn Index II, ECF No. 88-34. The Vaughn

indexes contain a document-by-document list asserting the basis

and explanation for the withholding and a document description,

including the date of the document, the agency that authored it,

and the contents. See AMS Vaughn Index I & II, ECF Nos. 88-33-

88-34. For example, many of the documents are described as

“accounting journal and financial ledger,” “business ledger

journal entries of ANCW invoices,” or “profit and loss ledger”

13 See Vaughn Index I, ECF No. 88-33, at 28 (AMS007996-008001), 29

(AMS008024-008111), 85 (AMS018319-018324). The document

descriptions for the other documents withheld under Exemption 4

contain similar detail. This level of detail is wholly

distinguishable from Vaughn, where the government failed to

identify which documents fell under which exemptions.

. Moreover, both the Vaughn indexes and the declarations

from each QSBC and Beef Checkoff Contractor provide the type of

information contained in the withheld document and detailed

reasons for confidentiality, including that the information is

not the kind normally released to the public.12 For these

reasons, the Court concludes that the declarations and Vaughn

indexes are sufficiently detailed.

b. The Financial and Commercial Records from the QSBCs and Beef Checkoff Contractors are Confidential Under Exemption 4

OCM does not dispute that the withheld information

constitutes commercial or financial information obtained from a

person, but disputes that the information is confidential. See

OCM Mot. Summ. J., ECF No. 90 at 31. The Court therefore

12For example, AMS018574-018601 contains “information regarding MBIC’s assets, liabilities, revenue, accounting bases, detailed financial information, administrative expenses, and aggregated information concerning MBIC payroll and employee benefits.” Quackenbush-MBIC Decl., ECF No. 88-14 ¶ 30.

14 addresses whether the information is confidential for purposes

of Exemption 4.

When the parties were initially briefing these issues, the

Court of Appeals for the District of Columbia Circuit’s (“D.C.

Circuit”) test for "confidentiality" depended on whether the

withheld information was compelled or voluntarily submitted to

the government. See Shteynlyuger v. Ctrs. for Medicare &

Medicaid Servs.,

, 118 (D.D.C. 2023); Critical

Mass Energy Project v. Nuclear Regul. Comm’n,

, 878-

79 (D.C. Cir. 1992). However, in Food Marketing Institute, the

Supreme Court rejected this distinction and “considered two

conditions that might be required for information provided to

the government to be confidential within the meaning of

Exemption 4: (1) that information is ‘customarily kept private,

or at least closely held, by the person imparting it,’ and (2)

that ‘the party receiving [the information] provides some

assurance that it will remain secret.’”13 Food Mktg. Inst. v.

Argus Leader Media,

, 434 (2019) [hereinafter FMI].

FMI clearly requires the first condition, however, neither the

13After the Supreme Court published Food Marketing Institute, the parties submitted briefs containing the supplemental authority and revised arguments on the Exemption 4 withholdings. See ECF Nos. 105, 106, 107, and 109. For Exemption 4, the Court focuses on the arguments in the parties’ supplemental authority briefing.

15 Supreme Court nor the D.C. Circuit have addressed whether the

second condition is necessary for information to be

“confidential.” See Shteynlyuger, 698 F. Supp. 3d at 118. As it

currently stands in this Circuit, "information is confidential

under Exemption 4 if it is of a kind that would customarily not

be released to the public by the person from whom it was

obtained." Id. at *20.

The Court is persuaded that USDA-OIG has met its burden of

showing that the redacted information is generally treated as

private by the owner of the records. The withheld contents

include information such as financial reports, accounting

ledgers, budgets, and vendor contact information. See e.g.,

Bingham-PBC Decl., ECF No. 88-17 ¶¶ 24-26. USDA-OIG provided

declarations from each QSBC and Beef Checkoff Contractor

specifically stating for each document at issue that the

entities have “never publicly disclosed such information.” See,

e.g., id. at ¶¶ 24-26, 31-41 (“PBC has never publicly disclosed

its accounting ledgers and financial journals, employee

allocation worksheets, employee timesheets, financial

statements, vendor invoices, bank statements, or deposit

summaries.”).

OCM does not offer any contradictory evidence of public

disclosure or bad faith that would call the declarations into

question. Rather, OCM argues that the second condition in FMI—

16 government assurance of privacy—is a necessary condition which

is absent from the Beef Act. OCM Resp. to OIG Notice of Supp.

Auth., ECF No. 106 at 2. OCM also argues that the “contractors

do not have an expectation of privacy in information that, by

law, they have no right to keep secret and that they are

required to keep and provide the government . . . .” Id.

However, as discussed above, the D.C. Circuit has not extended

the confidentiality test to require an explicit government

assurance of privacy, leaving the only required condition for

confidentiality whether the information is customarily released

to the public. See Shteynlyuger, 698 F. Supp. 3d at 118;

Renewable Fuels Ass’n v. EPA,

, 11-13 (D.D.C.

2021) (declining to require a government assurance of privacy

“[a]bsent a Supreme Court holding squarely abrogating Circuit

precedent—which Food Marketing clearly is not”).

Accordingly, the Court concludes that the financial and

commercial records from the QSBCs and Beef Checkoff Contractors

are confidential under Exemption 4.

c. USDA-OIG and NCBA Have Satisfied the Foreseeable Harm Standard

To invoke exemption 4, USDA-OIG and NCBA must also satisfy

the foreseeable harm standard set forth in the FIA. See

Shteynlyuger, 698 F. Supp. 3d at 123-24. “[A]pplication of the

foreseeable-harm standard to Exemption 4 requires a showing of

17 foreseeable commercial or financial harm to the submitter upon

release of the contested information.” Id. at 124 (internal

quotations and citations omitted) (recognizing “that few courts

have considered what burden the foreseeable-harm requirement

imposes on agencies” under Exemption 4). OCM does not contest

whether USDA-OIG and NCBA satisfied the foreseeable harm

requirement. See generally OCM Mot. Summ. J., ECF No. 90.

The Court is persuaded that USDA-OIG and NCBA have

sufficiently established the foreseeable harm that could occur

if the withheld information regarding the Beef Checkoff

Contractors and QSBCs are released to the public. Not only do

the withheld documents contain information on NCBA’s

relationship with vendors, but they also contain detailed

information on NCBA’s “business operations, budgeting,

strategies, and operational efficiencies.” NCBA Mot. Summ. J.,

ECF No. 87 at 48-49. In the hands of NCBA’s competitors or the

public, NCBA has adequately shown that any of this information

alone could foreseeably cause financial and competitive harm.

For all these reasons, as to the 193 documents withheld or

redacted pursuant to Exemption 4, the Court GRANTS USDA-OIG and

NCBA’s Motions for Summary Judgment.

18 2. USDA-OIG and AMS Properly Invoked Exemption 5’s Deliberative Process Privilege to Withhold Documents

FOIA Exemption 5 protects from disclosure “inter-agency or

intra-agency memorandums or letters which would not be available

by law to a party other than an agency in litigation with the

agency.”

(b)(5). This exemption encompasses “three

evidentiary privileges: the deliberative process privilege, the

attorney-client privilege, and the attorney work product

privilege.” Tax Analysts v. IRS,

(D.C. Cir.

2002). While USDA-OIG withheld documents pursuant to all three

privileges, OCM only contests the documents withheld under the

deliberative process privilege.14

To assert the deliberative process privilege, the agency

must establish that the document at issue is both “predecisional

14Plaintiff’s briefing does not challenge the withholding of certain documents under the attorney-client communications privilege or the attorney work-product privilege. The withheld documents include: (1) emails and memorandum between OIG auditors and the OIG Office of Counsel attorneys; and (2) legal research, internal memorandum and drafts of memorandum prepared by the OIG Office of Counsel attorneys. See Decker Decl., ECF No. 88-3 ¶¶ 139-142. The Court concludes that the records were properly withheld under both privileges because they consist of requests for legal advice, legal research prepared by attorneys, or other attorney work product related to potential litigation in response to the audit. See id.; OIG Vaughn Index I, ECF No. 88-6 at 284-381; see also Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2005); Exxon Corp. v. DOE,

(D.D.C. 1983). Accordingly, the Court GRANTS USDA-OIG’s Motion for Summary Judgment as to documents withheld pursuant to the attorney-client communications privilege or the attorney work-product privilege.

19 and deliberative.” Machado Amadis v. U.S. Dep’t of State,

, 370 (D.C. Cir. 2020). A document is predecisional if

it was “generated before the agency’s final decision on the

matter” and deliberative if it was “prepared to help the agency

formulate its position.” Campaign Legal Ctr. v. U.S. Dep’t of

Just.,

, 23 (D.C. Cir. 2022) (quoting U.S. Fish &

Wildlife Serv. v. Sierra Club, Inc.,

, 786

(2021)); Vaughn, 523 F.2d at 1136 (describing a “deliberative”

document as “a direct part of the deliberative process in that

it makes recommendations or expresses opinion on legal or policy

matters”). The deliberative process privilege “should be

construed ‘as narrowly as consistent with efficient Government

operation.’” Tax’n With Representation Fund v. I.R.S.,

(D.C. Cir. 1981) (quoting EPA v. Mink,

(1973)).

Due to the importance of the factual context of each

document when asserting the deliberative process privilege, the

agency must provide “precisely tailored explanations for each

withheld record at issue.” Nat’l Sec. Couns. v. CIA,

(D.D.C. 2013). “At a minimum, the agency must

provide three basic pieces of information in order for the

deliberative-process privilege to apply: (1) the nature of the

specific deliberative process involved, (2) the function and

significance of the document in that process, and (3) the nature

20 of the decisionmaking authority vested in the document’s author

and recipient.”

.

a. There Is No Basis to Invoke the Government Misconduct Exception to the Deliberative Process Privilege

The Court first addresses OCM’s argument that government

misconduct in conducting the audit triggers the government

misconduct exception to the deliberative process privilege, and

therefore, USDA-OIG cannot invoke the privilege with regard to

certain records at issue in this case. See OCM Mot. Summ. J.,

ECF No. 90 at 23-24 (citing In re Sealed Case,

(D.C. Cir. 1997)).

OCM claims that there are two categories of misconduct

here. First, OCM asserts that USDA-OIG failed to act

independently in the audit by “permitting the audited agency

[(AMS)] to participate in the audit’s decision-making process.”

OCM Mot. Summ. J., ECF No. 90 at 23-24. Second, OCM contends

that USDA-OIG misled the public about the extent of AMS’ role in

the audit report. Id. at 24. In support of these allegations,

OCM points to two pieces of evidence suggesting that OIG

breached its duty to act objectively and independently under the

Government Auditing Standards. See id. The first is an email

from Frank Woods, an AMS Audit Liaison Officer, to William

Henderson, USDA-OIG Assistant Director of Audit for Food,

Nutrition, Marketing, and Development, where Mr. Woods wrote,

21 “There is still a LOT of heartburn over the report as written,

and I’m afraid it will reflect poorly on USDA (as a whole) if

released as is.” Ex. 3, ECF No. 90-2 at 10. The second is a

letter from Gil Harden, Assistant Inspector General for Audit at

USDA-OIG, to Mr. Woods and David Shipman, Administrator at AMS,

attaching the “official draft report.” Ex. 5, ECF No. 90-2 at

14. OCM argues that, together, these show AMS played an

improper, “much more influential role” in the audit findings

while giving the public the idea that AMS was minimally

involved. OCM Mot. Summ. J., ECF No. 90 at 24.

Assuming arguendo that the exception applies to FOIA cases,

see Nat’l Whistleblower Ctr. v. Dep’t of Health & Hum. Servs.,

(D.D.C. 2021) (concluding the government

misconduct exception can be invoked in a FOIA case); OCM has

not, however, met the high bar required to invoke the exception.

See Ctr. for Pub. Integrity, 486 F. Supp. 3d at 331-32

(emphasizing the extraordinarily narrow application of the

government misconduct exception). “In the rare cases that have

actually applied the exception, the ‘policy discussions’ sought

to be protected with the deliberative process privilege were so

out of bounds that merely discussing them was evidence of a

serious breach of the responsibilities of representative

government,” i.e., “[t]he very discussion ... was an act of

22 government misconduct.” Id.; see also Tax Reform Research Grp.

v. IRS,

(D.D.C. 1976).

Here, the evidence does not reach the egregiousness

required to trigger the exception. While the evidence shows that

USDA-OIG communicated and collaborated with AMS regarding the

audit report and that AMS was potentially concerned about the

audit findings, the combination of these does not equate to

evidence that USDA-OIG lost its objectivity and independence

during the audit or that USDA-OIG had a nefarious intent. As

USDA-OIG points out, discussions with the entity being audited

are part of its core responsibilities. OIG Mot. Summ. J., ECF

No. 88-1 at 7–8; see GAO, Gov. Auditing Standards §§ 3.07, 6.62

(Feb. 2024); Ctr. for Pub. Integrity, 486 F. Supp. 3d at 333-34

(finding the government misconduct exception did not apply where

plaintiff failed to show any nefarious intent or that the

withheld contends would reveal egregious government misconduct).

The same is true for Plaintiff’s second theory of

government misconduct—misleading the public. OCM offered no

evidence that USDA-OIG intended to mislead the public. Unlike in

Alexander v. FBI, where the court applied the government

misconduct exception after seeing evidence that the government

knew of the wrong impression it gave to the public, and the

misinformation fostered a pattern of “political cover-up,” here,

there is no evidence that USDA-OIG produced statements or

23 reports giving misinformation to the public, and there is no

evidence that the public was under the impression that AMS did

not assist with the audit report. See Alexander v. FBI,

(D.D.C. 1999) (a non-FOIA case).

For these reasons, the Court concludes that there is no

basis to invoke the government-misconduct exception to the

deliberative process privilege to certain documents at issue in

this case.

b. The Withheld Documents Are Pre-Decisional and Deliberative

OCM takes issue with USDA-OIG invoking the deliberative

process privilege only for the records listed in OIG’s

Supplemental Vaughn Index for Draft Audit Reports. See OCM Mot.

Summ. J., ECF No. 90 at 23; Supplemental Vaughn Index for Draft

Audit Reports (“OIG Supp. Vaughn Index”) (Aug. 26, 2016), ECF

No. 88-6 at 382-394.15 These withheld documents consist of email

15In total, AMS invoked the deliberative process privilege to withhold or redact thirty-six records, including records containing: (1) emails between CBB and OIG, (2) emails between CBB and AMS, (3) memoranda from CBB to AMS, (4) internal CBB emails, (5) internal CBB documents, and (6) one draft of OIG’s audit report. USDA-OIG withheld an additional 173 records pursuant to the deliberative process privilege consisting of draft audit reports and communications between OIG officers or OIG and AMS/CBB related to the audit. See OIG Vaughn Index I, ECF No. 88-6 at 284; OIG Supp. Vaughn Index, ECF No. 88-6 at 382; OIG Mot. Summ. J., ECF No. 88-1 at 6, 20-21; Feeney declaration and Vaughn Index (ECF No. 88-5 Ex. 3). Plaintiff only challenges the documents in Exhibit 58 as identified above. The Court confirms that the remainder of the withheld records were pre-decisional and deliberative, and therefore were

24 exchanges between USDA-OIG and AMS and “discussion drafts”

attached thereto. See OIG Supp. Vaughn Index, ECF No. 88-6 at

382-394.

As to whether the documents are pre-decisional, OCM argues

that USDA-OIG is wrong to claim that all records prior to the

public release of the final audit report are pre-decisional. See

OCM Mot. Summ. J., ECF No. 90 at 16. However, OCM has failed to

explain why the documents are not pre-decisional. See id. at 9.

The Court is persuaded that USDA-OIG has established that the

withheld documents are pre-decisional because the Vaughn index

and declarations clearly establish that the communications and

exchanged drafts at issue were part of USDA-OIG’s deliberative

process in determining the audit findings, were created prior to

a final decision, and do not reflect the agency’s final

decision. See Decker Decl., ECF No. 88-3 ¶ 129; OIG Supp. Vaughn

Index, ECF No. 88-6 at 382-394. And OCM does not argue that the

communications or the exchanged drafts constituted a final

decision or were treated as law by USDA-OIG, but rather, that

USDA-OIG inappropriately applied a “wholesale exemption for the

entire audit process.” OCM Mot. Summ. J., ECF No. 90 at 15

(internal quotations omitted). This argument fails to address

properly withheld pursuant to the deliberative process privilege and GRANTS USDA-OIG’s Motion for Summary Judgment as to those groups of documents.

25 the applicable legal standard. See Campaign Legal Ctr., 34 F.4th

at 23.

As to whether the records are deliberative, OCM argues that

USDA-OIG is wrong to claim that because the records “play[] a

role in the final audit report,” they are all deliberative. See

OCM Mot. Summ. J., ECF No. 90 at 17. However, OCM has failed to

explain why the documents are not deliberative. See id. at 10.

The Court is persuaded that USDA-OIG has established that the

withheld documents are deliberative. The record establishes that

USDA-OIG communicated with AMS as part of an iterative process

to “obtain necessary information, clarify audit issues, and

discuss possible resolution of the audit findings and

recommendations.” OIG Mot. Summ. J., ECF No. 88-1 at 7; see also

OIG Supp. Vaughn Index, ECF No. 88-6 at 382-394. Clearly, this

“give-and-take” between the agencies supported USDA-OIG’s

efforts in conducting audits and is deliberative in nature.

Accordingly, the Court concludes that the withheld

documents are pre-decisional and deliberative.

c. USDA-OIG Has Satisfied the Foreseeable Harm Standard

To invoke the deliberative process privilege, USDA-OIG must

also satisfy the foreseeable harm standard set forth in the FIA.

See Reps. Comm. for Freedom of the Press, 3 F.4th at 361. Under

this standard, “[a]n agency shall . . . withhold information

26 under this section only if . . . (I) the agency reasonably

foresees that disclosure would harm an interest protected by an

exemption described in subsection (b); or (II) disclosure is

prohibited by law.”

(a)(8)(A)(i). This is a

“heightened standard for an agency’s withholdings under

Exemption 5.” Jud. Watch, Inc., 375 F. Supp. 3d at 100.

OCM does not contest whether USDA-OIG satisfied the

foreseeable harm standard. The Court is persuaded that USDA-OIG

has sufficiently established the foreseeable harm that could

occur if these communications and “discussion drafts” were

released to the public. Not only would it hinder the ability for

AMS and USDA-OIG to openly communicate in the future, but it

would also confuse the public as to what the final audit

findings were or why certain suggestions were not implemented.

Decker Decl., ECF No. 88-3 ¶ 135. This type of inter-agency

reflection and collaboration is exactly what the deliberative

process privilege was designed to protect.

d. The Court Rejects OCM’s Argument that Exemption 5 Is Inapplicable Here

Finally, OCM argues that “[e]xemption 5 is inapplicable to

communications between an auditing OIG and agencies under

audit,” See OCM Mot. Summ. J., ECF No. 90 at 17; contending that

“[t]he relationship between an auditing Inspector General and an

agency under audit is not ‘deliberative,’” id. at 19; and that

27 “[d]raft documents shared with entities under audit are not

deliberative,” id. at 22. The Court disagrees.

The deliberative process privilege is “[i]ntended to

protect open and frank discussion among government officials to

enhance the quality of agency decisions.” Hardy v. Bureau of

Alcohol, Tobacco, Firearms & Explosives,

(D.D.C. 2017) (quoting Dep't of Interior v. Klamath Water

Users Protective Ass'n,

(2001) (internal

quotations omitted)). The Government Accountability Office’s

(“GAO”) Government Auditing Standards require that USDA-OIG

maintain independence while simultaneously obtaining comments

from officials of the audited entity. See GAO, Gov. Auditing

Standards §§ 3.07, 6.62 (Feb. 2024). By communicating with AMS

throughout the audit and providing AMS with draft reports for

comment, USDA-OIG is fulfilling its responsibility of

“develop[ing] a report that is fair, complete, and objective,”

by including the “perspective of the audited entity’s

responsible officials and corrective actions they plan to take.”

Id. at § 6.62. OCM does not cite to, nor can the Court find, any

authority suggesting that there is or should be an exception to

the deliberative process privilege to allow disclosure of the

agencies’ encouraged collaboration.

OCM also argues the exchanged drafts lost any protection

under Exemption 5 when USDA-OIG shared the documents with AMS.

28 OCM Mot. Summ. J., ECF No. 90 at 23-24 (citing Ctr. for Auto

Safety v. DOJ,

(D.D.C. 1983)). OCM points the

Court to Center for Auto Safety, arguing that once a document

that may have been deliberative is shared with a self-interested

party, the document loses any claim to withholding under

Exemption 5.

Asserting that AMS was a self-interested party

for the purposes of the audit, OCM relies on—but fails to cite

any authority supporting—a “Congressional recognition” that

“agency heads are not disinterested deliberators when evaluating

their own programs,” id. at 24.

However, OCM’s characterization of Center for Auto Safety

misses several key aspects of the court’s holding. In Center for

Auto Safety, the court held that records were disqualified for

protection under Exemption 5 when the Department of Justice

(“DOJ”) released the records to the public, which was also the

DOJ’s adversary, during ongoing negotiations. Ctr. for Auto

Safety,

. Here, drafts here were exchanged

between two government agencies as required by auditing

standards. See GAO, Gov. Auditing Standards § 6.62; see also

Hamilton Sec. Grp. v. Dep’t of Hous. & Urb. Dev.,

(D.D.C. 2000) (holding drafts fell under

deliberative process privilege despite knowing that OIG’s audit

process included receiving two rounds of auditee comments).

Accordingly, the Court concludes that sharing the draft reports

29 with AMS does not rid them of their protection under Exemption

5.

e. The Vaughn Index and Declarations Are Adequate

OCM argues that the Vaughn index and declarations provided

by the government “aren’t even close to the precisely tailored

explanations for each document required to assert a deliberative

process privilege.” OCM Mot. Summ. J., ECF No. 90 at 8 (internal

quotations omitted). OCM claims that USDA-OIG’s Vaughn entries

merely “contain the same boilerplate text in the justification

for withholding section.” Id. at 21. After reviewing the Vaughn

index for the documents at issue and the available declarations,

the Court agrees with USDA-OIG that the detail provided is

adequate. The Supplemental Vaughn Index for Draft Reports

provides the document date, the author(s) of the document

(including the author’s agency and role in the audit), the part

of the deliberative process the document was part of, and the

role of the document in that process. See OIG Supp. Vaughn

Index, ECF No. 88-6 at 382-394.

Moreover, the Vaughn index and declarations clearly

establish the deliberative, give-and-take nature of the

communications and exchanged drafts. The withheld emails and

attached drafts between AMS and USDA-OIG contain back and forth

comments and suggestions between the agencies. See e.g., id. at

30 386 (“[T]hese discussion draft versions contain Donald Pfeil’s

and Joseph Mickiwicz’s assessments and comments . . . relat[ing]

to existing comments from AMS.”). For example, bates number 746

is an “[i]nternal email cover, dated December 6, 2012, attaching

an audit report discussion draft titled, ‘CBB Audit Discussion

Draft 12-6-12.docx,’ containing AMS’ views.” Id. at 383. After

listing the authors and recipients of the email and discussion

draft, USDA-OIG notes, “AMS sent this document to OIG in

response to OIG’s request for comments on the discussion draft.”

Id. The email and attached draft contained AMS’ “opinions and

assessments” on the draft report. Id. This description makes it

clear that the withheld records contain AMS’ opinions on USDA-

OIG’s draft audit report. The detail provided by USDA-OIG is

significantly distinguishable from that in Muttitt v. Department

of State cited by Plaintiff. See OCM Mot. Summ. J., ECF No. 90

at 28. In Muttitt, the Vaughn index did not tell the court

anything more than the document was written by “two unidentified

personnel in two unidentified government agencies exchang[ing]

some sort of ‘comments’ about some unspecified ‘aspect’ of a

negotiation . . . .” Muttitt v. Dep’t of State,

(D.D.C. 2013). Accordingly, the Court concludes that

the Vaughn Index and declarations are adequate to withhold the

documents under Exemption 5.

31 For these reasons, the Court concludes that USDA-OIG

properly invoked Exemption 5 to protect the documents identified

in the Supplemental Vaughn Index for Draft Audit Reports, Ex.

58, ECF No. 88-6 at 382-394.

C. Segregability

“The focus of the FOIA is information, not documents.” Mead

Data Cent., Inc.,

. Therefore, “even if some

materials from the requested record are exempt from disclosure,

any ‘reasonably segregable’ information from those documents

must be disclosed after redaction of the exempt information

unless the exempt portions are ‘inextricably intertwined with

exempt portions.’” Johnson v. Exec. Off. for U.S. Att’ys,

, 776 (D.C. Cir. 2002) (quoting

(b)).

The agency must provide “a detailed justification and not

just conclusory statements to demonstrate that all reasonably

segregable information has been released.” Valfells v. CIA,

(D.D.C. 2010) (citation and internal

quotation marks omitted). The Court has an “affirmative duty” to

ensure that the agency satisfies its segregability obligations.

Trans–Pac. Policing Agreement v. U.S. Customs Serv.,

(D.C. Cir. 1999). “Agencies are entitled to a

presumption that they complied with the obligation to disclose

reasonably segregable material,” which must be overcome by some

32 “quantum of evidence” from the FOIA requester. Sussman v. U.S.

Marshals Serv.,

(D.C. Cir. 2007).

Here, Mr. Brook, AMS’ FOIA Officer, affirmed the agency’s

diligence in conducting a review to identify non-exempt

material, averring that “AMS produced to OCM responsive

documents with redactions, segregating out non-exempted from

exempted information.” Decl. of Mark R. Brook (“Brook Decl.”),

ECF No. 88-7 ¶¶ 135-36.

With regard to the Exemption 4 withholdings, OCM argues

that the declarations and Vaughn indexes fail to “explain why

records relating to checkoff-contracted services cannot be

separated from non-checkoff business records.” OCM Mot. Summ.

J., ECF No. 90 at 40. To rebut the presumption that the agency

complied with its obligation to release segregable material, the

requester must offer “evidence that would warrant a belief by a

reasonable person” to believe segregable information exists.

Only after the presumption is rebutted does the burden shift to

the government to prove no segregable information exists.

OCM offered no evidence demonstrating that segregable

information exists. OCM’s claim that Beef Checkoff financial

records should be segregable from the entities’ non-checkoff

funds not only fails to rebut the presumption, but it also

assumes that OCM would be entitled to Beef Checkoff financial

records. Id. at 39. Given that the Court has concluded that all

33 financial records from the Beef Checkoff Contractors and QSBCs

are “confidential” under Exemption 4, OCM’s argument is

unpersuasive.

With regard to the Exemption 5 withholdings, Mr. Brook’s

declaration together with the Court’s determination that the

information has been properly withheld under the exemption, are

sufficient to trigger the presumption that the agencies

satisfied their FOIA obligations with respect to segregability.

The Court concludes that USDA-OIG’s Vaughn Indexes and

declarations demonstrate that all reasonably segregable, non-

exempt information has been released to OCM. Accordingly, the

Court GRANTS USDA-OIG’s Motion for Summary Judgment and NCBA’s

Motion for Summary Judgment as to USDA-OIG’s segregability

obligations.

V. Conclusion

For the foregoing reasons, the Court GRANTS USDA-OIG’s

Motion for Summary Judgment, ECF No. 88; GRANTS NCBA’s Motion

for Summary Judgment, ECF No. 87; and DENIES OCM’s Cross-Motion

for Summary Judgment, ECF No. 90. An appropriate order

accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan United States District Judge November 12, 2024

34