Am. Soc'y for Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv.

AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, Plaintiff, v. THE ANIMAL AND PLANT HEALTH INSPECTION SERVICEand THE UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants.

19 Civ. 3112 (NRB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 25, 2021

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE

The American Society for the Prevention of Cruelty to Animals ("ASPCA") brought this case under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), against the United States Department of Agriculture ("USDA") and its constituent agency the Animal and Plant Health Inspection Service ("APHIS" and together with USDA, the "Agencies").

This case presents three broad issues. First, the APSCA challenges the Agencies' redactions of certain information under FOIA Exemption 4, which protects confidential business information. Next, the ASPCA contends that the Agencies improperly withheld information under FOIA Exemption 5, which shields privileged information from disclosure. Finally, the ASPCA charges that the Agencies have adopted a policy and practice of violating the FOIA that requires the Court's intervention.

The parties cross-move for summary judgment on the Agencies' application of Exemptions 4 and 5. (ECF Nos. 42, 49.) The Agencies move for judgment on the pleadings on the ASPCA's policy and practice claim (ECF No. 42) and the parties also cross-move for summary judgment on that claim (ECF Nos. 42, 49). For the reasons discussed below, the Court grants in part and denies in part the parties' cross-motions for summary judgment on the Agencies' assertions of the FOIA exemptions and grants the Agencies' motion for judgment on the pleadings on the ASPCA's policy and practice claim.

BACKGROUND

A. The Freedom of Information Act

The FOIA requires that federal agencies make their records "promptly available to any person" upon request. 5 U.S.C. § 552(a)(3)(A). This mandatory disclosure regime is limited by nine statutory exemptions. Id. § 552(b). Moreover, even when information falls under one or more of those exemptions, agencies may withhold that information only if "the agency reasonably foresees that disclosure would harm an interest protected by [the] exemption" or if "disclosure is prohibited by law." Id. § 552(a)(8)(A).

Upon receiving a request for information, agencies have 20 business days to determine whether to comply with such requests and to notify the requester of its determination. Id. § 552(a)(6)(A)(i).

Finally, the FOIA provides a private right of action that permits requesters to challenge whether an agency has improperly withheld information that must be disclosed. Id. § 552(a)(4)(B).

B. Factual Background

The ASPCA is a non-profit organization whose mission is to "provide an effective means for the prevention of cruelty to animals throughout the United States." (Pl.'s Statement of Material Facts and Defs.' Response (ECF No. 56) ("SOMF") ¶¶ 1-2.) To further its organizational goals, the ASPCA monitors enforcement of federal animal welfare laws, including by submitting FOIA requests to federal agencies. (See id. ¶ 12; Decl. of Tonya Woods Regarding Pl.'s Policy & Practice Allegations (ECF No. 45) ("Woods P&P Decl.") ¶ 32 n.1.)

As relevant to this lawsuit, the ASPCA submitted 76 FOIA requests to the Agencies between February 2016 and January 2019. (SOMF ¶ 32.) These requests sought information related to the Agencies' administration and enforcement of the Animal Welfare Act, 7 U.S.C. §§ 2131 et seq. ("AWA"), which is theprimary federal statute governing the humane treatment of animals by commercial entities, such as dealers and breeders.

1. The Agencies' Application of FOIA Exemptions 4 and 5¹

One type of record that the ASPCA repeatedly requested was annual license renewal applications submitted to APHIS by animal dealers, known as Form 7003. When producing these records to the ASPCA, the Agencies invoked FOIA Exemption 4 to redact information submitted by the dealers regarding their revenue, the number of animals they sold, and their annual license fee, which is calculated based on a dealer's revenue. (Woods Decl. ¶¶ 174-76.)

Additionally, in response to the ASPCA's request for APHIS inspection reports, the Agencies redacted under Exemption 4 a photograph from an inspection that would reveal an APHIS licensee's proprietary animal care instructions. (Id. ¶ 177.)

Finally, the ASPCA submitted a request for records concerning the Agencies' 2017 inspections of and enforcement actions taken against Ruby Fur Farm, which is discussed in more detail below. (Id. ¶ 57.) In response to this request,the Agencies withheld or redacted information from several records under Exemption 5 that the Agencies assert is protected by either the attorney-client privilege or the deliberative process privilege. (Id. ¶¶ 178-81.)

The ASPCA asserts that the Agencies unlawfully withheld the redacted information in these three categories of records.

2. The Timeliness and Adequacy of the Agencies Responses to the ASPCA's FOIA Requests²

The ASPCA alleges that the Agencies have adopted a policy and practice of violating the FOIA's processing and production requirements.

The Amended Complaint catalogues the following requests to which the Agencies did not timely respond. Between February 2016 and January 2017, the ASPCA submitted five FOIA requests that the Agencies did not respond to in a timely manner. (Am. Compl. ¶¶ 50-54.) However, from February 2017 through April 2019, the Agencies failed to timely respond to 30 of the ASCPA's FOIA requests. (Id. ¶¶ 55-84.) And, prior to the ASPCA filing this lawsuit, the Agencies had not produced responsive records for at least 20 of those requests. (Id. ¶¶ 56-57, 60, 63-66, 68, 70, 72-75, 77-78, 80-84.)Moreover, most of the ASPCA's requests submitted during this time period were similar and fairly straightforward, such as seeking inspection reports of dog breeders from the previous month (id. ¶¶ 55, 57, 60, 65, 70-71, 77-79, 82, 84), or recent AWA enforcement action records (id. ¶¶ 56, 58, 61, 63, 66, 69, 74, 76, 83). In none of these cases did the Agencies seek an extension or otherwise attempt to reclassify the request to remove it from the FOIA's 20-day response window. (See id. ¶¶ 55-84.)

A notable uptick in the Agencies' noncompliance with the FOIA's processing and prompt production requirements coincided with the Agencies' decision on February 3, 2017 to decommission two databases that allowed members of the public to search and access inspection and enforcement records related to APHIS licensees. (See id. ¶¶ 35-36, 41, 46-47; compare id. ¶¶ 50-54, with id. ¶¶ 55-84.) These databases had been established in 2009 to alleviate the Agencies' FOIA burdens by making publicly available some of their most frequently requested records. (Id. ¶ 37.) Publishing these databases reduced the volume of APHIS's FOIA request by 35% within a year. (Id.) The ASPCA was one of the entities that regularly relied on these databases to obtain records in lieu of submitting FOIA requests. (See id. ¶¶ 35, 40.)

After taking down the databases, the Agencies directed members of the public to request the records under the FOIA instead. (Id. ¶ 46.) As a result, the Agencies experienced a significant increase in FOIA requests and were unable to process incoming requests at the same rate. (See id. ¶¶ 47-48.) By the end of 2018, the Agencies had a backlog of over 1,000 FOIA requests that they had not yet processed within the FOIA's statutory window. (Id. ¶ 48.)

In addition to these processing failures, the Agencies also began redacting information from the records that had previously been publicly available on the databases. (See id. ¶ 45.)

LEGAL STANDARDS

A. Summary Judgment

Summary judgment is the preferred vehicle for resolving disputes over an agency's application of a FOIA exemption. See Seife v. U.S. Dep't of State, 298 F. Supp. 3d 592, 604 (S.D.N.Y. 2018) (citation omitted). As with all motions for summary judgment, courts will not grant the requested relief unless the parties' submissions, viewed together, establish that "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).

Courts review de novo whether a FOIA exemption applies, 5 U.S.C. § 552(a)(4)(B), and resolve "all doubts as to the applicability of the exemption . . . in favor of disclosure." N.Y. Times Co. v. U.S. Dep't of Justice, 756 F.3d 100, 112 (2d Cir. 2014) (citation omitted). This means that "the agency's decision that the information is exempt from disclosure receives no deference." Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143, 147 (2d Cir. 2010) (citations omitted). Instead, the FOIA places the burden on the defending agency to justify its decision to withhold information under a FOIA exemption. 5 U.S.C. § 552(a)(4)(B).

For an agency to carry this burden, it must demonstrate "that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [the FOIA's] inspection requirements." Ruotolo v. Dep't of Justice, Tax Div., 53 F.3d 4, 9 (2d Cir. 1995) (citation omitted). An agency may fulfill this requirement by submitting declarations that "describe 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 [or] by evidence of agency bad faith." Wilner v. Nat'l Sec. Agency, 592 F.3d 60,73 (2d Cir. 2009) (citation omitted). These agency submissions are "accorded a presumption of good faith," and thus "an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Id. at 69, 73 (citations omitted).

On the other hand, "[s]ummary judgment in favor of the FOIA plaintiff is appropriate when an agency seeks to protect material which, even on...