Animal Legal Defense Fund v. U.S. Food & Drug Admin.

ANIMAL LEGAL DEFENSE FUND, Plaintiff, v. UNITED STATES FOOD AND DRUG ADMINISTRATION, Defendant.

No. C -12-04376 EDL

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dated: August 22, 2013

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

AND GRANTING IN PART AND

DENYING IN PART PLAINTIFF'S

CROSS-MOTION FOR SUMMARY

JUDGMENT

The parties filed cross-motions for summary judgment in this suit brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, et seq. On August 13, 2013, the Court held a hearing on the parties' motions. For the reasons stated at the hearing and in this Order, both motions are granted in part and denied in part.

Facts¹

On December 19, 2011, the Division of Freedom of Information, Office of the Executive Secretariat, United States Food and Drug Administration ("FDA") received a FOIA request from Plaintiff seeking records concerning egg production farms in Texas. Sadler Decl. Ex. A; Kaelin Decl. ¶¶ 7, 8. In particular, Plaintiff sought the following documents:

1. All FDA documents since April 26, 2011 relating to egg safety in Texas, egg production in Texas, or egg production facilities in Texas; 2. All FDA communications between FDA and Texas state government agencies since April 26, 2011 relating to egg safety, egg production or egg production facilities;

3. All FDA communications between FDA and egg producers in Texas since April 26, 2011.

Sadler Decl. ¶ 8; Ex. A. Plaintiff's FOIA request was forwarded to the Dallas District Office, which handles information requests regarding FDA's activities in Texas, Arkansas and Oklahoma. Sadler Decl. ¶ 10; Kaelin Decl. ¶¶ 1, 7.

The staff in the Dallas office searched for all potentially responsive records in all of the locations where such information was reasonably likely to exist, including two FDA databases and the Dallas District Office file room. Kaelin Decl. ¶ 9. The staff first searched the Online Reporting Analysis Decision Support System ("ORADSS"), a data system that generates reports by compiling data about firms, inspections, and other regulatory activities from FDA's Field Accomplishment and Compliance Tracking System ("FACTS") according to user-provided criteria such as time frame, location or commodity. Kaelin Decl. ¶ 9. The staff searched for responsive records in FACTS for information about the firms identified in the ORADSS reports as possibly having responsive information. Id. Then, the staff searched the Dallas District Office's file room for records associated with the records identified by ORADSS and FACTS as potentially responsive. Id. The staff searched the ORADSS and FACTS databases and the file room broadly for any records relating to egg production facilities and egg safety in Texas since April 26, 2011, and did not confine the search to facilities dealing only with chicken egg production. Id.

The Dallas office's search revealed numerous records regarding egg production facilities and egg safety, including Lists of Establishment Inspection Reports ("EIRs"), which are investigators' narrative reports of their inspection findings at FDA-regulated facilities; Inspectional Observations, which are issued to firms at the close of inspections when violations are observed; correspondence between FDA and facilities; and results from salmonella enteritidis sampling conducted at the facilities. Kaelin Decl. ¶ 10. The search found records regarding chicken egg producers, quail egg producers, food manufacturers, food warehouses and food distribution centers. Id. The search did not reveal any communications since April 26, 2011 between the FDA and Texas state governmentagencies that pertained to item two of the FOIA request. Id.

After identifying the responsive records, the Dallas District Office conducted a line-by-line review of each record to determine whether any information was exempt from disclosure under the FOIA and to ascertain what information was reasonably segregable from exempt information. Kaelin Decl. ¶ 12. Virtually all of the redactions of the responsive information were made pursuant to exemption 4, which exempts confidential commercial information from public disclosure. Id. Among the information that was redacted was the information at issue in this case:

(1) total hen population;

(2) number of hen houses;

(3) number of floors per house;

(4) number of cage rows per house;

(5) number of cage tiers per house; and

(6) the number of birds per cage.

Id.

After reviewing and redacting the records, the office released 357 pages of responsive records to Plaintiff on March 2, 2012. Sadler Decl. ¶ 11; Kaelin Decl. ¶ 14. The responsive records related to inspections of the following facilities: eleven chicken egg production facilities; one quail egg production facility and food manufacturer; one food warehouse; and one food distribution center. Kaelin Decl. ¶ 14. The records included twelve EIRs from the same number of Texas egg production facilities; Inspectional Observations issued to nine of the twelve facilities; correspondence between the FDA and the twelve facilities; and the results from salmonella enteritidis sampling conducted at two of the twelve facilities. Kaelin Decl. ¶ 14. Of the twelve egg production facilities to which the FDA issued EIRs, seven were owned by Cal-Maine Foods, two were owned by Feather Crest Farms, one was owned by Mahard Egg Farm, one was owned by Kieke Egg Farm and one was owned by Ruby's Quail Farm. Id.

By letter dated March 30, 2012, Plaintiff appealed the FDA's redactions. Sadler Decl. ¶ 12; Ex. B. The United States Department of Health and Human Services' Program Support Center ("PSC") acknowledged Plaintiff's appeal by letter on April 6, 2012. Sadler Decl. ¶ 12; Ex. C. PSCwas still processing the appeal when Plaintiff filed this lawsuit, so the PSC subsequently sent a letter to Plaintiff stating that in light of the action against the FDA, the appeal was being closed. Sadler Decl. ¶¶ 13, 14; Ex. D.

On September 25, 2012, the Dallas District Office became aware of one additional EIR from a July 2011 inspection at an egg production facility that was owned at the time by Pilgrim's Pride Corporation that had inadvertently not produced to Plaintiff. Kaelin Decl. ¶ 15. Kaelin personally redacted the EIR, along with an Inspectional Observation form and correspondence between the FDA and the facility. Id. The records totaled 41 pages, and were produced on October 1, 2012. Sadler Decl. ¶ 11; Kaelin Decl. ¶ 15.

The Dallas District Office produced a total of 398 pages of records to Plaintiff responsive to items one and three of the FOIA request, and there were redactions on 277 pages produced. Kaelin Decl. ¶ 16. The Dallas office did not have any documents responsive to item two on the FOIA request. Kaelin Decl. ¶ 10.

Legal standards

"Summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved." National Resources Defense Council v. U.S. Dep't of Defense, 388 F.Supp.2d 1086, 1094 (C.D.Cal.2005) (quoting Mace v. EEOC, 37 F.Supp.2d 1144, 1146 (E.D. Mo.1999)) (internal quotations omitted). The underlying facts and possible inferences are construed in favor of the FOIA requester. National Resources Defense Council, 388 F.Supp.2d at 1095 (citing Weisberg v. U.S. Dept' of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). Because the facts are rarely in dispute in a FOIA case, the court need not ask whether there is a genuine issue of material fact. Minier v. Central Intelligence Agency, 88 F.3d 796, 800 (9th Cir.1996). The standard for summary judgment in a FOIA case generally requires a two-stage inquiry.

First, the Court must determine whether the agency has met its burden of proving that it fully discharged its obligations under FOIA. Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350-1351 (D.C. Cir.1983)). The agency can establish this by demonstrating that it has conducted a search that was reasonably calculated to uncover all relevant documents. Id. Here, Plaintiff does not dispute that the agency has fullydischarged its search obligations under FOIA (see Pl.'s Reply to Def.'s Opp. to Mot. for Disc. at 6), and the Kaelin declaration demonstrates that the agency conducted a search that was reasonably calculated to uncover all relevant documents.

Second, the Court must examine whether the agency has proven that the information that it withheld falls within one of the nine FOIA exemptions. 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ("The burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document."); Dobronski v. FCC, 17 F.3d 275, 277 (9th Cir. 1994). The issue in this case is whether Defendant properly withheld the redacted information pursuant to exemption 4.

Discussion

FOIA's "core purpose" is to inform citizens about "what their government is up to." Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 775 (1989) (citation omitted). This purpose is accomplished by "permit[ting] access to official information long shielded unnecessarily from public view and attempting] to create a judicially enforceable public right to secure such information from possibly unwilling official hands." EPA v. Mink, 410 U.S. 73, 80 (1973). Such access will "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted).

At the same time, FOIA contemplates that some information can legitimately be kept from the public through the invocation of nine exemptions to disclosure. See 5 U.S.C. § 552(b)(1)-(9). Use of the exemptions is within the agency's discretion, see Chrysler Corp. v. Brown, ...