UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA F I L E D
) NOV 2 4 20?@
CHR[ST()PHER EARL STRUNK, ) C|ark, U.S. Dlsrrict & Bankruptcy
) Cuurts for the District of Columbia
Plaintiff )
)
v. ) Civil Action No. 10-0066 (RJL)
)
UNITED STATES DEPARTMENT )
OF THE INTERIOR, er al., )
)
Defendants. )
)

MEMORANDUM OPINION
Plaintiff brings this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C.
§ 552, against the United States Department of Agriculture ("USDA").l This matter is before the
Court on defendants’ motion to dismiss in part and for summary judgment. For the reasons

discussed below, the motion will be granted.

l "Exhaustion of administrative remedies is generally required before seeking

judicial review" under the FOIA. Wilbur v. Cenl. Intelligence Agency, 355 F.3d 675, 677 (D.C.
Cir, 2004) (per curiam). If a requester has not exhausted his administrative remedies, his FOIA
claim is subject to dismissal. See Hidalgo v. Fed. Bureau oflnvestigation, 344 F.3d 1256, 1258
(D.C. Cir. 2003).

The Court construed plaintiffs complaint as bringing a FOIA claim also against
the United States Department of the Interior ("DOI"). However, the DOI’s declarant stated that
the agency found no record of receipt of a FOIA request from plaintiff See Defs.’ Mem., Decl.
of Alexandra Mallus 1111 3, 5. For this reason, defendants moved to dismiss plaintiff’ s FOIA
claim against the DOI on the ground that plaintiff failed to exhaust his administrative remedies,
See Defs.’ Mem. at 7-9. Plaintiff did not oppose the motion, and, accordingly, the motion will be
granted as conceded.

 

l. BACKGROUND

In September 2009, plaintiff submitted a FOIA request to the USDA’s National

Agricultural Statistics Service ("NASS") for the following information:

[M]ailing addresses of all the current demographic of New York

Farmers enumerated in the current statistics for the state of New York

from 2007 thru the present; and furthermore all the addresses of the

prior demographic of New York’s Farmers/Farms enumerated in the

prior demographic and statistics from 1967 thru the present, however,

dropped from the current New York statistic enumeration for

whatever reason.
Defs.’ Mem. of P. & A. in Supp. ofthe Mot. to Dismiss ln Part and for Summ. J. ("Defs.’
Mem."), Decl. of Stasia M. Hutchison ("Hutchison Decl."), Ex. l ("Freedom of Information Law
Request for all the Addresses of New York’s Farmer/Farrn demographic used in Statistics" dated
September l5, 2009). NASS forwarded the request to the Research Education, and Economics
("REE") FOIA Office for processing, Hutchison Decl. ‘|] 5, and the request was assigned FOIA
Tracking No. 09-159, id., Ex. 2 (Letter to plaintiff from V. Herberger, Freedom of Inforrnation
Act and Privacy Act Officer, Agricultural Research Service, REE, USDA, dated September 30,
2009) at l.

The USDA construed plaintiffs request as one seeking "addresses of New York’s
farmers and farm demographics used in NASS statistics." Hutchison Decl. ‘|] 5. Because this
information is deemed confidential and exempt from disclosure under FOIA Exemption 3, the
request was denied in full. Ia’. 1[ 6; see id., Ex. 2 at l-2. Plaintiff administratively appealed this

determination to NASS’s Administrator, z`d., Ex. 3 ("APPEAL from the denial of the Request for

all the Addresses of New York’s Farmer/Farrn demographic used in statistics with F.O.I.A.

Tracking No. 09-l59" dated October 9, 2009), who "uph[e]ld the decision to withhold the

 

mailing addresses pursuant to 5 U.S.C. [§] 552(b)(3)," id., Ex. 4 (Letter to plaintiff from C.
Clark).

In this action, plaintiff asks the Court to "Order the [USDA] and or agencies under it’s’
[sic] control to immediately turn over the documents referred to above." Compl. at 23. He also
demands an award of attorney fees and costs. Id. jj 70.2

II. DISCUSSION
A. Summary judgment in a FOIA Case

The Court grants a motion for summary judgment if the pleadings, the discovery and
disclosure materials on file, together with any affidavits or declarations, show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(c). The moving party bears the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catretr, 477 U.S. 317, 322 (1986). "[A] material
fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could retum a verdict for the
nonmoving party" on an element of the claim. Ana'erson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Factual assertions in the moving party’s affidavits or declarations may be accepted
as true unless the opposing party submits his own affidavits, declarations or documentary
evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

In a FOIA case, the Court may grant summary judgment based solely on information

2 Under the FOIA, the Court "has jurisdiction to enjoin [an] agency from

withholding agency records and to order the production of any agency records improperly
withheld from the [requester]." 5 U.S.C. § 552(a)(4)(B); see Kz`ssinger v. Reporters Comm. for
Freedom of the Press, 445 U.S. 136, 139 (l980). The additional relief plaintiff demands, "a
declaratory judgment . . . as to F ederal Defendants collectivizing of the Farm Sector, and . . . a
special master to determine the facts associated with the oppression in the Farm Sector in the
event that the judgment defers to the USDA," Compl. at 23, is not available under the FOIA.

3

provided in an agency’s affidavits or declarations if they are relatively detailed and 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 fait ."
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. l98l); see also Hertzberg v.
Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). Such affidavits or declarations are accorded "a
presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the
existence and discoverability of other documents."’ SafeCara’ Servs., Inc. v. Sec. & Exch.
Comm ’n, 926 F.2d ll97, l200 (D.C. Cir. l99l) (quoting Ground Saucer Watch, Inc. v. Cent.
Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).
B. T he Census of Agriculture and Data Security

NASS "conducts hundreds of surveys each year and uses information gathered to prepare
reports about all aspects of U.S. agriculture including production, pn`ces, farm labor and wages,
chemical use, farm financing, and demographics of agricultural producers." Defs.’ Mem., Decl.
of Joseph T. Reilly ("Reilly Decl.") 1| 4. NASS collects its data "by telephone, by mail, by
intemet through a secure server, and by in-person visits in which data is collected on paper." Ia'.
11 6. Data gathered from agricultural producers is released "ir1 statistical reports" on which "the
general public, . . . state and local governments, universities, agribusinesses, trade associations,
and the producers themselves" rely. Ia'. jj 4. Critical to NASS’s mission is the protection of "the
privacy and identity of individual farmers, ranchers, and other data providers." Id.

The information plaintiff requests "was primarily collected through mandatory programs

associated with the Census of Agriculture," taken every five years, which "is a complete count of

United States farms, ranches, and the individuals who operate them." Id. jj 6. Among other
items, this census "collects data on . . . land use and ownership, operator characteristics,
production practices, income, and expenditures." Id. NASS "safeguards this information by
maintaining it under strict security guidelines that limit access to approved individuals." Id. 1[ 7.
The data is maintained in secured buildings and access is granted only upon a person’s display of
proper identification. Ia'.

NASS publishes a Confidentiality Pledge regarding the Census of Agriculture, available
to the public on its website, which in relevant part states:

l. Names, addresses, and personal identifiers are fully protected
by NASS with the force of law.

After data collection, [NASS] processes the data independent of
names and addresses. Original paper questionnaires are kept in a
secure area, and then destroyed as prescribed by law. Names,
addresses, phone numbers, and other personal identifiers are held
securely by NASS and used only to conduct official business. Title
7, U.S. Code, Section 2276 and the Confidential information
Protection and Statistical Efficiency Act prohibit public disclosure of
individual inforrnation. Personal inforrnation, including reported
data, is protected from legal subpoena and Freedom of Inforrnation
Act requests.

Id., Ex. A O\IASS Confidentiality Pledge) 11 l (bold type in original). All persons working for or
in cooperation with NASS "sign[] a confidentiality form which states that no confidential
reported information will be compromised," and a violation of this provision is punishable by a
jail terrn, a fine, or both. Ia'. 11 2.

In addition, NASS publishes a Security Pledge which "explains that the NASS computer
network is password protected, monitored by a security officer and frequent virus scans, and

further enhanced by the implementation of security controls as recommended by intemal and

outside consultants." Reilly Decl. 11 9. All persons "working on a NASS program sign[] a
confidentiality certification each year stating that survey information must be protected." Id.
C. Exemption 3

Exemption 3 protects records that are "specifically exempted from disclosure by statute . .
. provided that such statute (A) [requires withholding] in such a manner as to leave no discretion
on the issue, or (B) establishes particular criteria for withholding or refers to particular types of
matters to be withheld." 5 U.S.C. § 552(b)(3). "Exemption 3 differs from other FOIA
exemptions in that its applicability depends less on the detailed factual contents of specific
documents; the sole issue for decision is the existence of a relevant statute and the inclusion of
withheld material within that statute’s coverage." Goland v. Cent. Intelligence Agency, 607 F.2d
339, 350 (D.C. Cir. 1978); Ass ’n ofRetired R.R. Workers v. U.S. R.R. Rer. Bd., 830 F.2d 33l, 336
(D.C. Cir. 1987).

As stated above, plaintiff "specifically requested the mailing addresses of individuals
enumerated in . . . statistics" collected by the USDA, Hutchison Decl. 11 l0, and "NASS
understood [the] request to seek addresses of New York’s farmers and farm demographics used
in NASS statistics." Reilly Decl. 11 5. The declarant explains that, under 7 U.S.C. § 2276, certain
categories of inforrnation, including information "collected as part of the Census on Agriculture
as well as the more general authority to collect statistical information regarding agriculture,"
cannot be released to plaintiff under the FOIA. Id. 1[ l0. The statute provides that:

[N]either the Secretary of Agriculture, any other officer or employee
of the [USDA] or agency thereof, nor any other person may . . .
disclose [certain] information to the public, unless such information

has been transformed into a statistical or aggregate form that does not
allow the identification of the person who supplied particular

information.

7 U.S.C. § 2276(a)(2) (emphasis added). The information to which this subsection applies
includes information acquired by the Secretary of Agriculture "conceming agriculture, rural
development, aquaculture, and human nutrition . . . obtain[ed] by means of books and
correspondence, and by practical and scientific experiments, . . . by the collection of statistics,
and by any other appropriate means within his power," 7 U.S.C. § 2204(3); see 7 U.S.C. §
2276(d)(5), and information concerning the Census of Agriculture, 7 U.S.C. § 2204g; see 7
U.S.C. § 2276(d)(l l). "This information is aggregated for use by the [USDA] in its mission."
Hutchison Decl. jj 8. However, "unaggregated information (e.g. individual farmers’ names,
addresses, and crop yields) is kept strictly confidential, with very limited exceptions." Id.

The USDA’s declarant avers that release of the mailing addresses of individuals who
supplied information to NASS "would reveal the identities of the farmers because addresses are
typically publicly available through the telephone directory or through public records." Reilly
Decl. jj ll. The language of the exempting statute, he states, "leaves NASS no discretion to
release any portion of this data in unaggregated for1n." Id. jj l0; Hutchison Decl. jj 9.

Plaintiff "understands that the law exists to protect any farmer offering production data

that if known would undermine proprietary annual yields and planning as to future production."

Strunk’s Resp. in Opp’n to the Def.’s Mot. to Dismiss In Part and in the Alternative for Summ. J.

("Pl.’s Opp’n") jj 6. However, because he requests addresses, not individuals’ names, id. jjjj 3, 5,
and because he requests information "going back 50 years," z'd. jj 4, he considers the USDA’s
interpretation of § 2276 "overly broad," id. In his view, the agency’s argument that "release of

an address or zip-code would ‘allow the identification of the person who supplied particular

information’ especially from 50 years earlier is phony baloney." Id. jj l0. He claims a "right to
know the addresses and or zip codes" and suggests that he might "seek out the existence of
individual(s)" who might permit the disclosure of data to him. Id. jj 8.

The USDA reasonably construed plaintiff’ s FOIA request for farmers’ mailing addresses
as one for "data in unaggregated form." Hutchison Decl. jj l0. The exempting statute bars the
release of such information "unless [it] has been transformed into a statistical or aggregate form
that does not allow the identification of the person who supplied particular infor1nation." 7
U.S.C. § 2276(a)(2). The USDA demonstrates that the information plaintiff requests falls within
the scope of Exemption 3, as 7 U.S.C. § 2276(a)(2) requires the withholding unaggregated data
pertaining to individual farmers, ranchers, and other providers of data for USDA statistical
reports "in such a manner as to leave no discretion on the issue." 5 U.S.C. § 552(b)(3).

D. Plaz`nti/jfls Not Entitled to an Award of Attorney Fees and Costs

The FOIA authorizes a district court to "assess against the United States . . . other
litigation costs reasonably incurred in any case . . . in which the [requester] has substantially
prevailed." 5 U.S.C. § 552(a)(4)(E)(i). A party substantially prevails if he "has obtained relief
through either . . . a judicial order, or an enforceable written agreement or consent decree[,] or . .
. a voluntary or unilateral change in position by the agency, if the complainant’s claim is not
insubstantial." 5 U.S.C. § 552(a)(4)(E)(ii). The latter provision "essentially codifies the so-
called ‘catalyst theory’ for determining a fee request against the United States, under which a
plaintiff is deemed to have ‘substantially prevailed’ for purposes of § 552(a)(4)(E) if the
‘litigation substantially caused the requested records to be released."’ N. Y. C. Apparel F.Z.E. v.

U.S. Customs and Border Protection Bureau, 563 F. Supp. 2d 2l7, 221 (D.D.C. 2008) (quoting

Chesapeake Bay Found. v. Dep ’l ofAgric., ll F.3d 211, 216 (D.C. Cir. 1993)); see Zarcon, Inc.
v. Nat ’l Labor Relatz`ons Bd., No. 06-3161-CV-S-RED, 2008 WL 4960224, at *2 (W.D. Mo.
Mar. 25, 2008), aff’d, 578 F.3d 892 (8th Cir. 2009).

Plaintiff"s request for an award of attomey’s fees must be denied. A pro se plaintiff who

is not an attorney is not eligible for an award of fees under 5 U.S.C. § 552(a)(4)(E). Benavides v.

Bureau of Prisons, 993 F.2d 257, 259 (D.C. Cir. 1993). More importantly, plaintiff has not
prevailed, substantially or otherwise, in this action. The lawsuit does not result in the release of
the records plaintiff has requested from the USDA, and, therefore, plaintiff is entitled to neither
attomey’s fees nor costs of this action.
Ill. CONCLUSION

The Court concludes that the USDA has demonstrated its compliance with the FOIA and
that it is entitled to judgment as a matter of law. Plaintiff does not oppose the DOI’s motion to
dismiss for failure to exhaust administrative remedies, and the Court treats the motion as
conceded. Accordingly, the Court will grant defendants’ motion to dismiss in part and for
summary judgment. Plaintiff has not substantially prevailed in this action and his demand for an
award of attorney’s fees and costs will be denied. An Order consistent with this Memorandum

Opinion will be issued separately.

,Qt'a.¢kz\»x~/

RICHARD J. Lg))N
United States Uistrict Judge
DATEZ

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