1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7

NORTHERN DISTRICT OF CALIFORNIA

8

9

10 PUBLIC JUSTICE FOUNDATION;

ANIMAL LEGAL DEFENSE FUND;

11 CENTER FOR BIOLOGICAL No. C 20-01103 WHA

DIVERSITY; CENTER FOR FOOD

12 SAFETY; FOOD & WATER WATCH,

13 Plaintiffs,

ORDER GRANTING MOTION

CHALLENGING DEFICIENCIES IN

14 v.

FSA’S REVISED SEARCH AND

PRODUCTION

15 FARM SERVICE AGENCY, 16 Defendant.

17 18 INTRODUCTION 19 In this Freedom of Information Act case, plaintiff advocacy organizations challenge the 20 adequacy of a government agency’s search with regard to one FOIA request underlying this 21 case. To the extent stated herein, the motion is granted. 22 STATEMENT 23 Plaintiffs Public Justice Foundation, Animal Legal Defense Fund, Center for Biological 24 Diversity, Center for Food Safety, and Food & Water Watch are advocacy organizations 25 committed to building a more sustainable and ethical food system. To that end, plaintiffs use 26 information requests to monitor compliance with applicable laws, bring to public attention 27 issues within our food system, and advocate for policy change (Compl. ¶¶ 1–2). 1 Defendant Farm Service Agency, operating within the Department of Agriculture, is 2 responsible for administering direct farm loans to eligible agricultural producers and 3 landowners. These duties, plaintiffs contend, are subject to compliance with the National 4 Environmental Policy Act. Before providing financing for proposed agricultural operations, 5 such as the construction of concentrated animal feeding operations, FSA should then review 6 the proposed project, determine the potential environmental impacts, and conduct further 7 analysis as necessary (Compl. ¶¶ 1–2). 8 Plaintiffs have sought to monitor FSA’s administration of the farm loan program and 9 connected environmental review through FOIA requests. The requests have targeted agency 10 records regarding specific agricultural operations and geographical areas. The requests have 11 also been aimed at uncovering the true extent to which FSA considers environmental impacts 12 before awarding federal farm loans to an applicant and the extent to which FSA oversees the 13 use of the funds after distribution. And, at the heart of this case, plaintiffs collectively 14 submitted a FOIA request for records relating to “FSA’s directives and/or policies for 15 responding to and/or processing FOIA requests and appeals” (Compl. ¶¶ 1–2; Decl. 16 Buchan ¶ 7). 17 Plaintiffs filed this action in February 2020 challenging FSA’s alleged pattern and 18 practice of improperly withholding records responsive to plaintiffs’ FOIA requests. In 19 particular, the complaint alleges a pattern and practice of withholding responsive records under 20 FOIA Exemptions 3 and 6, demonstrated by eight FOIA requests plaintiffs submitted. The 21 pattern-and-practice claims make up three of plaintiffs’ six claims for relief. The other half 22 relate to plaintiffs’ collective April 2019 FOIA request regarding FSA’s FOIA practices, 23 including alleged failures to make a proper initial determination, conduct an adequate search, 24 and promptly release agency records. 25 26 27 1 At an initial case management conference, the government offered to re-perform its 2 search and production for the April 2019 request. An order then issued setting a schedule for 3 the government to do so and to file a declaration and Vaughn index attesting to the adequacy of 4 the search and the grounds for withholding any documents. The order also provided plaintiffs 5 an opportunity to challenge any remaining deficiencies. Plaintiffs now so move. 6 The motion is fully briefed. Finding the motion suitable for decision on the papers, no 7 oral argument is necessary. 8 * * * 9 Plaintiffs’ April 2019 FOIA request has now been subjected to two searches, each 10 apparently taking a different approach. Plaintiffs’ original request sought (Decl. Buchan ¶ 7):

11 From January 1, 2008 to the date that FSA conducts its search, all records mentioning or containing FSA’s directives and/or policies 12 for responding to and/or processing FOIA requests and appeals. 13 The FSA staff member who received the request had been puzzled at first. Given the public 14 availability of FSA’s policies, interpretations, and administrative staff manuals, as provided by 15 5 U.S.C. § 552(a)(2)(B)–(C), such documents would normally not need a FOIA request. As 16 such, FSA phoned plaintiffs to better understand what could be provided in response to the 17 request (Decl. Buchan ¶ 9–10). 18 Following the call, plaintiffs sent an email seeking to clarify the request, stating that “our 19 request seeks internal agency documents and/or communications relating to how FSA responds 20 to the requests it receives, including all FSA ‘directives and/or policies’ related to that process” 21 and that they believed the request went “beyond those three main sources of FOIA guidance.” 22 Plaintiffs later communicated that they were well aware of FSA handbooks and DOJ guidance, 23 which FSA interpreted as saying that plaintiffs did not request those documents (Decl. 24 Buchan ¶ 11). 25 A month later, on July 25, plaintiffs sent an email stating (Decl. Buchan ¶ 12):

26 We have clarified that we are requesting any internal guidance — formal or otherwise — including (but not limited to) any directives 27 or policies instructing FSA officers to look out for certain requests 1 FSA conducted its first search pertaining to the April 2019 FOIA request looking for records 2 responsive to the July 25 message. Although the agency provided no information about the 3 method or search terms used in this initial search, the results hewed to a literal reading of 4 plaintiffs’ email. “FSA identified one instance where guidance had been provided about a 5 certain kind of request from a certain category of requesters, as described in the requester’s 6 message.” In litigation pending between a class of corn producers and a corporation, farmers 7 had given permission to their attorneys to receive certain forms the farmers had filed with FSA 8 documenting information about their planting. Thousands of requests flooded in, creating the 9 need for the agency to provide guidance to ensure that the requests were processed 10 consistently. In July 2019, FSA located and produced in full two emails totaling seven pages 11 concerning the agency’s guidance and directives regarding the corn litigation. No more 12 documents were produced prior to the commencement of this action in February 2020 (Decl. 13 Buchan ¶¶ 13–15). 14 After the initial case management conference here, FSA conducted a supplemental 15 search. This time, FSA’s search hewed closely to the language of the original request, rather 16 than subsequent communications the agency had with plaintiffs. As described by FSA FOIA 17 Officer Buchan, the agency took a broad view of the FOIA request (Decl. Buchan ¶¶ 16–17):

18 FSA carefully considered how best to design an appropriate search. For this new search, the agency out of an abundance of caution took 19 a broad view of the request to ensure that the search would capture the agency’s actual directives and policies, which are available on 20 agency websites, including 2-INFO, and also e-mails that were most likely to be responsive because they specifically addressed the 21 subject of the agency’s directives and policies. 22 FSA executed the search in three steps. First, the agency searched its online laws and 23 regulations website, the routine repository for FSA policy and handbooks, for all FSA notices 24 concerning FOIA processing. This search identified 265 pages of responsive records, which 25 the agency turned over in full (Decl. Buchan ¶ 17). 26 Second, FSA searched its email system for any emails to or from an FSA employee with 27 the following terms in the subject line: “2-Info,” “App-70,” “FOIA Guidance,” “FOIA 1 “processing FOIA appeals.” Attempting to explain the search terms used and their targeting of 2 the subject line, the agency states (Decl. Buchan ¶ 18):

3 Lessons learned from the agency’s past FOIA search experience had taught that it needed to use search terms such as these and target the 4 subject line of emails in order to ensure that the search would capture records that actually addressed the subjects of the agency 5 directives and policy, as opposed to a more overwhelming mass of irrelevant and unresponsive material that could arise from a less- 6 focused search. In my experience, had the search not been focused on the subject line, but also extended to any other text it would likely 7 have hit upon a multitude of irrelevant material instead of records that actually addressed agency directives or policy. For instance, 8 references to 2-INFO could appear in emails about maintenance of computer servers; FOIA processing is a phrase that might appear in 9 the position description or performance plans of hundreds of FSA employees for whom FOIA processing is one of their 10 responsibilities, but have nothing to do with policy or guidance on processing requests. 11 The search still turned up 29,830 pages of records, “far more than the several hundred pages 12 that FSA originally anticipated that its new search would find concerning FSA’s FOIA 13 directives and procedures” (Decl. Buchan ¶ 18). Eventually, the agency turned over nearly all 14 of the records, but for partial redactions of 153 pages (Dkt. No. 27 Exh. C). 15 Third, FSA searched its “electronic files for FOIA documents,” which uncovered a 16 powerpoint training presentation that had been used to train FOIA processors for the agency at 17 the state level, totaling 109 pages, turned over in full (Decl. Buchan ¶ 19). 18 Six staff members over a combined one-hundred hours conducted an expedited review of 19 the 30,204 pages of responsive documents. FSA originally withheld nearly nine-thousand 20 pages in full pursuant to Exemption 5, released 153 pages in part pursuant to Exemption 6, and 21 released in full 21,085 pages, including all of FSA’s directives and policies: FSA’s FOIA 22 handbook, 2-INFO, numerous FOIA notices issued during the period covered by the request, 23 and the FOIA powerpoint training presentation. A month later, when FSA filed its Vaughn 24 index, the agency discretionally released the nine-thousand pages previously withheld under 25 Exemption 5, purportedly to avoid litigation over that exemption. The agency thus withheld 26 only the redacted information contained within the 153 pages discussed, pursuant to 27 Exemption 6 (Dkt. No. 27 Exh. C). 1 Plaintiffs did not challenge the adequacy of FSA’s Vaughn index “[s]o as to prevent 2 delay on issues not central to the case” — namely, plaintiffs’ pattern-and-practice claims (Mot. 3 at 5 n.1). 4 To vet the search results, plaintiffs attempted to locate documents it had previously 5 identified as responsive, including the seven pages of guidance emails that surfaced during the 6 original search and “discussions within FSA that concern[ed] requests for records” that FSA 7 had previously withheld in response to a June 2016 request submitted by plaintiff Food & 8 Water Watch. Neither the emails nor the discussions fell within the agency’s “broad” 9 supplemental search. 10 ANALYSIS 11 The Freedom of Information Act lets us see what our government is up to by 12 “provid[ing] public access to official information ‘shielded unnecessarily’ from public view 13 and establish[ing] a ‘judicially enforceable public right to secure such information from 14 possibly unwilling official hands.’” Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 973 (9th 15 Cir. 2009) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). It “mandates a 16 policy of broad disclosure of government documents.” Church of Scientology of California v. 17 U.S. Dep’t of Army, 611 F.2d 738, 741 (9th Cir. 1979), overruled on other grounds, Animal 18 Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016). Here, plaintiffs 19 challenge only the adequacy of FSA’s search. 20 Under the FOIA, an agency responding to a request must “demonstrate that it has 21 conducted a search reasonably calculated to uncover all relevant documents.” Lahr, 569 F.3d 22 at 986 (quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)). “This showing may be 23 made by ‘reasonably detailed, nonconclusory affidavits submitted in good faith.’” Ibid. “In 24 evaluating the sufficiency of an agency’s search, ‘the issue to be resolved is not whether there 25 might exist any other documents possibly responsive to the request, but rather whether the 26 search for those documents was adequate.’” Id. at 987. 27 The reasonableness of the search is dependent on the circumstances of the case. “An 1 revise its assessment of what is ‘reasonable’ in a particular case to account for leads that 2 emerge during its inquiry. Consequently, the court evaluates the reasonableness of an agency’s 3 search based on what the agency knew at its conclusion rather than what the agency speculated 4 at its inception.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (applied 5 by our court of appeals in Hamdan v. U.S. Dept. of Justice, 797 F.3d 759, 771 (9th Cir. 2015)). 6 Significantly, “if a review of the record raises substantial doubt, particularly in view of well- 7 defined requests and positive indications of overlooked materials, summary judgment is 8 inappropriate.” Hamdan, 797 F.3d at 771. 9 Here, there is no doubt that the agency’s supplemental search uncovered troves of at least 10 nominally relevant documents. But the relevant question is whether the search rated adequate, 11 not the results. Lahr, 569 F.3d at 987. This order finds that FSA’s search was not reasonably 12 calculated to uncover all relevant documents. The agency’s declaration attempting to 13 demonstrate the contrary instead raises substantial doubt, abandons the clarifying information 14 it requested of plaintiffs, and fails to account for positive indications of overlooked materials. 15 See Hamdan, 797 F.3d at 771. 16 First, the declaration’s conclusory reasons for searching the subject line of emails for the 17 chosen search terms only address the avoidance of irrelevant material, rather than demonstrate 18 that the search was reasonably calculated to uncover all relevant documents. The latter is what 19 the government must reasonably show. Lahr, 569 F.3d at 986. The declaration explained that 20 the agency had learned it needed to use “search terms such as these” and “target the subject 21 line” of emails to “ensure that the search would capture records that actually addressed the 22 subjects of agency directives and policy, as opposed to a more overwhelming mass of 23 irrelevant and unresponsive material that could arise from a less-focused search.” The only 24 possibly nonconclusory point made is that the agency designed the search to avoid capturing 25 irrelevant and unresponsive material, not that it would uncover all relevant emails. Again, the 26 latter is what the agency must prove. Ibid. 27 1 The only argument the agency makes in support of its search methods are just as 2 conclusory. After detailing the large number of documents the search uncovered, the agency 3 merely states (Opp. at 10):

4 The agency’s search method thus was reasonably calculated to uncover records responsive to Plaintiff’s request, as the Buchan 5 declaration illustrates. See Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 770–72 (9th Cir. 2015) (affirming summary judgment for 6 Government on “adequacy of the searches” where searching was “reasonably calculated to locate responsive records” and “a 7 reasonable search is what [the plaintiffs] got”). Accordingly, FSA has demonstrated that it conducted a reasonable search for 8 responsive records. 9 The agency’s reliance on Hamdan falls short. In Hamdan, our court of appeals found that the 10 agency’s decision to search multiple “databases, using many variations of the terms suggested 11 by [p]laintiffs to account for spelling or other inconsistencies, was a ‘diligent search for . . . 12 documents in the places in which they might be expected to be found.’” Hamdan, 797 F.3d 13 at 771–72. The agency here presents no such evidence, apparently resting simply on the 14 number of documents produced. It is the adequacy of the search, however, with which we are 15 mainly concerned, not the results. 16 Second, after spending more than a year clarifying plaintiffs’ request, the agency’s 17 decision to ignore the clarifying information it sought out and instead to perform the search 18 based on a plain reading of the original request ranked as unreasonable. Campbell, 164 F.3d 19 at 28. True, plaintiffs made a general request originally. And plaintiffs’ “clarification” of their 20 original request raised as many questions as it answered (Opp. at 3):

21 We have clarified that we are requesting any internal guidance — formal or otherwise — including (but not limited to) any directives 22 or policies instructing FSA officers to look out for certain requests from certain groups [who?] and/or use select exemptions [which?] 23 under certain circumstances [again, which?]. 24 But before FSA offered to re-perform its search and production, plaintiffs answered all three 25 questions: The “groups” included plaintiffs or other similar advocacy organizations, FOIA 26 Exemptions 3 and 6 counted as the “exemptions,” and the “circumstances” concerned records 27 of FSA’s farm loan programs and resulting environmental review. It was in this context, 1 notably, that FSA offered to re-perform its search “in an effort to reach an agreed-upon 2 approach to resolving this litigation” (Opp. at 4). 3 The agency’s renewed search, however, did not factor in any of the clarifying 4 information it then had. For example, it did not search its records for hits on the plaintiffs’ 5 names (“Public Justice Foundation,” “Animal Legal Defense Fund,” “Center for Biological 6 Diversity,” “Center for Food Safety,” or “Food & Water Watch”), the two exemptions at issue 7 (“Exemption 3” or “Exemption 6”), or the subject matter (“farm loan program,” “NEPA,” or 8 “environmental assessment”). Given that plaintiffs sought records pertaining to how the 9 agency responds to plaintiffs’ FOIA requests specifically, a reasonable search should have at 10 least searched using plaintiffs’ names. Instead, the agency unreasonably designed its search to 11 capture only generally applicable policies. 12 In response, the agency merely points out that the original request did not include the 13 clarifying information and states plaintiffs should have either drafted their request differently 14 or submitted a new FOIA request. The agency provides no authority explaining why 15 subsequent explanatory information from plaintiffs should not be factored into the scope of the 16 agency’s search, no less one the agency itself volunteered to perform anew. 17 Finally, when plaintiffs brought to the agency’s attention “positive indications of 18 overlooked materials” in the “re-performed” search, the agency took no steps to address the 19 errors. Those overlooked materials included the only relevant documents the original search 20 uncovered — the emails providing guidance to FSA state and local offices in responding to the 21 flood of FOIA requests related to the corn-producer litigation. These emails better track 22 plaintiffs’ flushed-out request for “internal guidance” looking out for “certain requests” from 23 “certain groups” under “certain circumstances.” Although the agency could find the emails 24 regarding the corn litigation in its more narrow search, it proffers no reason why it could not do 25 so in the re-performed search. Nor does the agency provide any information regarding the 26 search method or terms used in the initial search. The agency replies simply that it carried out 27 the two searches differently. “[I]f an agency can so easily avoid adversary scrutiny of its 1 search techniques, the Act will inevitably become nugatory.” Founding Church of Scientology 2 of Washington, D.C., Inc. v. National Security Agency, 610 F.2d 824, 837 (D.C. Cir. 1979). 3 It bears stating that the agency’s obfuscation illustrates the necessity of the FOIA’s basic 4 purpose. Government agencies enjoy an unusually powerful position in FOIA cases, where the 5 facts, the documents, and the reasons for withholding begin (and often stay) completely within 6 the agency’s control. “This lack of knowledge by the party seeking disclosure seriously 7 distorts the traditional adversary nature of our legal system[].” See Wiener v. F.B.I., 943 F.2d 8 972, 977 (9th Cir. 1991) (citing Vaughn v. Rosen, 484 F.2d 820, 824 (D.C. Cir. 1973)). Recall, 9 among other things, the FOIA affords private citizens the ability to hold the government fo its 10 own rules. See Oregon Nat’l Desert Ass’n v. Locke, 572 F.3d 610, 614 (9th Cir. 2009). 1] CONCLUSION 12 To the following extent, plaintiffs’ motion is granted. The agency shall please conduct g 13 an adequate search and provide a declaration and Vaughn Index demonstrating the adequacy of 14 the search and justifying any withholdings, by November 5. For the parties’ guidance, an 8 15 adequate search should be reasonably calculated to uncover all internal FOIA guidance a 16 applicable to plaintiffs, environmental reviews undertaken in connection with FSA’s farm loan 3 17 program, and/or the use of FOIA Exemptions 3 or 6. Plaintiffs are warned, however, that a 18 search within these parameters will not be viewed as unreasonably narrow. The Court trusts 19 the parties will work together to ensure any issues are promptly resolved. A further case 20 management conference is hereby set for November 19. The parties shall please file the usual 21 joint case management conference by November 12 at noon. 22 23 IT ISSO ORDERED. 24 25 Dated: October 5, 2020. 26 27 f f 7 f x laene

WI ALSU

28 UNITED STATES DISTRICT JUDGE