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Judicial Watch • App 2012 AMS 02647 F w Exh

App 2012 AMS 02647 F w Exh

App 2012 AMS 02647 F w Exh

Page 1: App 2012 AMS 02647 F w Exh


Number of Pages:18

Date Created:March 8, 2013

Date Uploaded to the Library:February 20, 2014

Tags:02647, AMS, App, Exh, 2012

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March 2013 

Secretary Tom Vilsack1, U.S. Dep't Agriculture c/o Administrator David Shipman 
Agricultural Marketing Service 
1400 Independence Ave., S.W. 
Rm. 3521-S, STOP 0202 
Washington, 20250-0202 
Re: Partial Denial FOIA 2012-AMS-02647-F 
Secretary Vilsack: 
This letter timely appeals February 2013 final determination2 from the U.S. 
Department Agriculture (USDA) Agricultmal Marketing Service (AMS) respecting May 18, 2012 request for records3 submitted Judicial Watch, Inc. (Judicial Watch) pursuant the Freedom Information Act (FOIA), .S.C.  552. AMS's production records responsive Judicial Watch's FOIA request was inexcusably tardy, unreasonably incomplete and improperly redacted, detailed below. Consequently, Judicial Watch asks that the Secretary compel this division USDA come into compliance with the law by: undertaking adequate search; and delivering all responsive records without further delay expense the requester. May 2012, federal workers complained Judicial Watch that they had been compelled undergo political indoctrination sessions conducted Samuel Betances Souder, Betances, Assoc. part ofUSDA's ongoing "cultural transformation" campaign. Indeed, confirmed that USDA has paid the Chicago-based Judicial Watch's May 18, 2012 request for records here attached Exhibit 
425 Thi.rd St., SW, Suite 800, Washington, 20024 Tel: (202) 646-5172 1-888-593-8442 FAX: (202) 646-5199 Email: 
USDA-AMS March 2013 
firm least $200,000 for "other training services" over the past two years. Hence, learn more about any potential partisanship USDA was attempting foist its employees. well uncover the entire sum such "training" was costing the American taxpayer, Judicial Watch May 18, 2012 filed request with the agency seeking all records regarding the same. May 21, AMS FOIA Officer Valerie Emmer-Scott'faxed Judicial Watch letter, chastising the requester for accidentally routing its FOIA request-intended for the USDA its entirety -through this pa1ticular division the agency.4 Notwithstanding AMS's early notice Judicial Watch's request for records relating Betances' diversity training, and AMS' confirmed participation such training, AMS did not begin fulfillment the May FOIA for another seven months. Under cover letter dated December 13, 2012, and signed Valerie Emmer-Scott, AMS released pages that termed Batch Then. under cover letter dated February 2013, also signed Valerie Emmer-Scott, AMS released another pages, stating that these represented the conclusion this division's intended search for and production responsive records 
6its possession.
Besides being woefully tardy, AMS's release was incomplete and improperly redacted, will explained below. 
With only few minor caveats, FOlA directs agencies release all clearly described records within twenty (20) days request for them. Courts this jurisdiction have repeatedly admonished agencies construe FOIA requests liberally. 
LaCedra Exec. Office 
for US. Attys., 317 F.3d 345, 348 (D.C. Cir. 2003)(further citation and internal quotation marks omitted). And, statute, federal agencies must "make reasonable efforts search for [requested] records." U.S.C.  552 (a)(3)(C). For purposes FOIA, "the term 'search' means review, manually automated means, agency records for the purpose locating those records which are responsive request." U.S.C.  552 (a)(3)(D). Thanks the Electronic Freedom oflnformation Act Amendments 1996, the law now "promotes electronic database searches and Ms. Emmer-Scott's December 13, 2012 letter here attached Exhibit See, nole supra. 

March 2013 
encourages agencies expend new effo11s order comply with the electronic search requirements particular FOIA requests." Schladetsch Dep Housing Urban Developm 't, 2000 U.S. Dist. LEXIS 22895 (D.D.C. Apr. 2000)(internal citation omitted). Ultimately, doubts about the adequacy search are resolved favor 
requester. Negley FBI, 658 Supp. 50, (D.D.C. 2009). the instant case, does not suffice for AMS staffer have confirmed his herself that all that was found the first pass was all there was see. See Freeman U.S. Dep't Justice, 1991 U.S. Dist. LEXIS 19214 (D.D.C. Oct. 16, 1991) (failure find documents known exist deemed unreasonable where search was abandoned after few phone calls). Given that AMS arranged June 28, 2011 training session the Jefferson Building for untold number employees, does not follow that the 
production responsive documents related "cultural transformation" training did not 
contain one single registration form, one single taxi voucher, single email letting 
security the Jefferson Building know prepared for off-site visitor. Given the 
paper deluge bureaucracies are infamous for creating, the ratio paper compared 
the scope the project does not seem logical. explained greater detail below, AMS this instance failed to: (l) meet its statutory deadline, (2) release all responsive records could have been reasonably expected locate within the time did take respond Judicial Watch's request, and 
(3) assert any ofFOIA's minor caveats full disclosure accordance with the terms set forth law. Production Was Untimely and Notice Delay Was Inadequate 
The APA requires agencies provide "prompt notice" their determinations. 
U.S.C.  555 (e). agency's failure act accordance with all relevant laws reviewable court following exhaustion any applicable administrative remedies. 
u.s.c.  704. 
Generally speaking, FOIA requires agencies disclose public records within days corresponding request. U.S.C.  552 (a)(6)(i). Notwithstanding this statutory mandate, FOIA also contains provision that "allows agency extend the applicable time limits providing written notice the person making the request," long the notice "set[s] forth the reasons for such extension and the date which detennination expected dispatched." Marschner Department State, 470 Supp. 196, 198 
(D. Conn. 1979)(citing U.S.C.  552(a)(6)(B)(i)). Moreover, the availability and 

USDA-AMS March 2013 
duration the extensions themselves are extremely limited. "[S]uch extensions only are 
permissible unusual circumstances and (emphasis added). the instant case, FOIA 2012-AMS-02647-F triggered AMS obligation June 18, 2012 produce all records relating Samuel Betances, his firm Souder, Betances Associates, and communications respecting the "cultural transformation" was paid bring about. AMS's May complaint that received Judicial Watch's 
agency-wide request the first instance served (however unintentionally) timely 
acknowledgment the division's receipt the request. However, despite its timely acknowledgment receipt, AMS did not any point request extension fulfillment past its June deadline, which failure through silence constituted violation FOIA well the Even assuming AMS had qualified for extension under the narrow "unusual circumstances" justification outlined statute, this division the agency would only have been entitled delay until July 2012, which deadline also missed. Hence, AMS's tardy fulfilhnent the request was outside time altogether. Although 
the delay this point cannot cured, its illegality justifies compelling the agency 
disclose responsive documents immediately remedial measme. Extension request failed for lack written notice and date dispatch 
When AMS, last; reached out Judicial Watch December 13, 2012, conceded that fulfillment the pending FOTA was. that time, incomplete. And, promising futw-e installment responsive documents, AMS's notification implied that would need further extension time which conclude its fulfillment Judicial Watch's records request. While our organization was gratified obtain some response from AMS, AMS did not act until long after its statutory deadline and, everi then, offered justification for its delay --both missteps representing direct violations FOIA's written notice procedures. Worse yet, AMS not only failed comply with these procedural due process components FOIA's tardiness provisions, this division USDA also faHed its substantive due process obligations refusing provide date final dispatch -the sine qua. non extension notifications under FOIA. 
The agency's pledge, however hopeful, that would strive produce all remaining responsive records soon possible hardly constituted date certain that would satisfy the letter the spirit the relevant statute. Marschner, 470 Supp. 
198. Moreover, the extent AMS blamed "the nature the records" for indefinitely continuing its delay disclosing responsive records, said "nature" should have given the 

March 2013 

relevant division some sense the consultation required and, extension, the projected wait involved. And, the preposterous claim AMS made that was simply obeying executive order consulting diversity contractor for permission releasing nonsensitive records paid for taxpayers was ludicrous, demanding further argumentation here. 

Now, putting aside the laughable assertion third-party privilege public records, AMS can assumed simply have been waiting for less embarrassing more opportune time disseminate the information contained the documents requested when supplied set schedule for delivery. this was indeed the case, such course action was ill-advised bad news never improves with age. Moreover, such behavior would fall squarely within what the APA terms capricious, risking greater public scrutiny and disapproval. If, however, AMS's oversight providing planned production date was reckless rather than sinister, such omission could characterized arbitrary, conduct also barred the fairness principles codified within the APA. Delay 276 days producing 132 pages cannot excused 
Even assuming AMS had timely and properly effected notice .of its intended delay, provision FOIA -or any other law -would allow for 276-day delay processing such straightforward request. The delay constitutes unmitigated abuse the public trust. Consequently, the Secretary should not allow any stalling AMS's correction 
its search and production, which was deficient ways described below. Many responsive records were withheld without any explanation whatsoever 
Compounding AMS' disregard for deadlines that has few documents show for its inordinate delay. The production itself replete with references other documents AMS's possession that were neither released nor even identified this production having been consciously withheld. Hence, the extent that evidence suggests the existence many documents not produced, the agency liable have 
conducted legally deficient search. See Friend Judicial Watch>s website, and/or newslcUcr, among other outlets. also will make the records availahle. other 1l'iemhers the media rcearchers upon Judicial Watch has proven ability disseminate informatfon obtained through FOIA th.e public. de,tuonstrated its long-standing and confonting p11hlic outreach e.fforts. 
Given these circumstances, Judjcial Walch t!Utitled public interest fee waiver both search costs and duplication costs. Nonetheless; the event our request for waiver search and/or dupllcation costs denied, Judicial Watch willing pay $350.00 search and/or duplication costs. Judicial Watch requests that contacted before any s.uch cots are incurred order to. prioritize search and duplication efforts. effort fa.cilitatc record production within the statutory time limit, Judicial Watch willing accept documents electronic format (e.g. e-mail, .pdfs). \ several document-; responsive this request which include records provided your company. The FOIA rec1uires government agencies, including the USDA, release the public Agcncymaintained documents upon request Wlless the documents are specifically exempt from disclosure the terms the FOIA. 
Lisette Garcia, Judicial Watch has requested the following information from USOA: 	All contracts and expense account records related training services provided 
Samuel Betances his firm, Souder, Betances Associates Chicago, Illinois; 

All communications related training and services provided Samuel Betances his firm, Souder, Betances Associates, Chicago, lllinojs; and 	
All records and email from the offices Secretary Thomas Vilsack, Under Secretary Edward Avalos, Administrator Greg Parham, and Deputy Administrator Joanne Munro regarding the above-referenced training and services. 

AMS records relevant this request include documents partially responsive items and 
Executive Order 12600 and USDA regulations CFR 1.12) provide that whenever Agency 
cannot readily determine whether the information obtained from business privileged 
confidential business information, the Agency obtain and consider the views the 
submitter the information and provide the submitter opportunity ojcct the 
disclosure the infonnation. 


Samuel Betances, Ph.D. 
Souder, Betances and Associates, Jnc. 

Before make final decision the request, would like consider your views regarding pages records subject this request, copies which arc enclosed herewith. Please advise you believe that the release this material could cause substantial competitive harm 
your firm. Please send your response this office within days after the date this letter. 

Please describe how release this information would reveal jeopardize such factors your competitive position market share. you not object the release Lhis information, 
would appreciate knowing this also. 
Your response should sent Legislative and Regulatory Review Staff, Agricultural 
Marketing Service, Room 3521-S, USDA, 1400 Independence Avenue, SW, Washington, 
2025-0202, fax (202) 690-3767, email AMS.FOIA@USDA.GOV. you object the release this information, USDA will consider your response making its final decision. Additionally, should USDA decide release the subject information because determines that release will not cause competitive hann, will advise you mail prior the release the information. 
Valerie Emmer-Scott AMS Freedom Information Act Officer