Wallick v. Agricultural Marketing Service
Civil Action No. 2016-2063
| D.D.C. | Nov 20, 2017Background
- Plaintiff Richard Wallick filed a FOIA request (Jan 1, 2007–Feb 25, 2016) seeking OMRI’s application and all USDA/AMS records and communications concerning OMRI’s ISO 65 (MRO) application and follow-up actions. AMS acknowledged receipt and exchanged clarifying emails with plaintiff’s counsel.
- AMS conducted two electronic searches: (1) AMS networked shared drives/workstations (lopez) and (2) NOP cloud email network (Schurkamp). AMS produced responsive records in May and December 2016, largely releasing materials but redacting personal data and one sentence under Exemption 5 (deliberative process privilege).
- Plaintiff sued after delays, challenging adequacy/scope of AMS’s searches (search terms, search locations, failure to follow leads) and contesting the single-sentence redaction under FOIA Exemption 5.
- The court analyzed the proper scope of the FOIA request (whether it encompassed only OMRI’s initial application or also recertification/audit materials) and then the adequacy of AMS’s searches and the propriety of the Exemption 5 redaction.
- The court concluded the request reasonably covered OMRI’s initial application and related follow-up actions (not later recertifications/audits), found AMS’s search methodology partially deficient (failure to justify limiting searches to email systems and insufficient follow-up when attachments/stand-alone application parts were missing), and held the Exemption 5 redaction improper for the withheld sentence.
- Remedy: summary judgment granted in part and denied in part for both parties; court ordered AMS to produce the unredacted sentence and allowed plaintiff to file a new FOIA request for recertification/audit materials if desired.
Issues
| Issue | Wallick's Argument | AMS's Argument | Held |
|---|---|---|---|
| Proper scope of FOIA request (initial application vs. recertification/audits) | Request covered all records ‘related to OMRI’s ISO certification’ and follow-up actions — includes recertifications and audits | Request sought only the single initial application and follow-up actions tied to that application; recertifications/audits are separate processes | Court: scope limited to initial application and related follow-up actions; recertification/audit materials not encompassed; plaintiff may submit new FOIA request for those records |
| Adequacy of search terms | Search terms were too narrow (allegedly treated conjunctively) and missed records | Keywords were not treated as strict phrases; terms were reasonably calculated to find responsive documents | Court: search terms themselves were adequate (plaintiff failed to rebut); no defect found in terms |
| Adequacy of search locations and follow-up | AMS failed to search relevant offices/systems (e.g., Fredericksburg/ARC, paper files) and did not follow leads to missing application materials | AMS searched AMS network drives, workstations, NOP cloud; believed paper files unnecessary; some non-responsive materials were provided gratuitously | Court: AMS did not sufficiently justify limiting searches to email systems and failed to follow leads when produced documents suggested missing standalone parts of the original application — search inadequate in part; summary judgment denied on adequacy |
| Withholding of a sentence under FOIA Exemption 5 (deliberative process) | Redaction unjustified because sentence described OMRI’s decision (non-agency) and not deliberative agency communications | Sentence reflected pre-decisional, intra-agency deliberation and could be withheld under the deliberative process privilege | Court: redaction improper — sentence was not part of deliberative process or agency decisionmaking; agency must disclose the line (agency had previously labeled document responsive, so exemptions must justify redaction) |
Key Cases Cited
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011) (agency must show search reasonably calculated to uncover relevant documents)
- Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) (standards for relying on agency affidavits to establish adequacy of search)
- Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (search must be reasonably calculated to uncover relevant documents)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (purpose and limits of deliberative process privilege under Exemption 5)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (Exemption 5 protects memoranda and deliberative communications)
- Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667 (D.C. Cir. 2016) (once government deems a record responsive, it may redact only pursuant to FOIA exemptions)
- Larson v. U.S. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) (agency affidavits must describe nondisclosure justifications with reasonably specific detail)