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Judicial Watch • APHIS Appeal w Exhibits

APHIS Appeal w Exhibits

APHIS Appeal w Exhibits

Page 1: APHIS Appeal w Exhibits


Number of Pages:27

Date Created:January 18, 2013

Date Uploaded to the Library:February 20, 2014

Tags:Judici, Watcli, Porter, Lisette, investigator, betances, waiver, USDA, Exemption, garcia, search, Freedom, watch, Obama, judicial, request, department, Washington, EPA, IRS, ICE, CIA

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Secretary Vilsack: 
This letter timely appeals January 2013 final determination2 from the U.S. Department Agriculture (USDA) Animal Plant Health Inspection Service (APHIS) respecting May 18, 2012 request for records3 submitted Judicial Watch, Inc. (Judicial Watch) pursuant the Freedom ofinformation Act (FOIA), U.S.C.  552. APHIS's production ofrecords responsive Judicial Watch's FOIA request was inexcusably tardy, umeasonably incomplete and improperly redacted, will explained below. Consequently, Judicial Watch asks that the Secretary compel this division USDA come into compliance with the law by: undertaking adequate search; delivering all responsive records without further delay expense the requester; and disclosing information improperly redacted the first instance. May 2012, federal workers complained Judicial Watch that they had been compelled undergo political indoctrination sessions conducted Samuel Betances Souder, Betances, Assoc. part USDA's ongoing "cultural transformation" campaign. Indeed, confumed that USDA had paid the firm least U.S.C. 552(a)(6)(A)(i) provides pertinent part FOlA requester's right "appeal the head the agency any adverse determination." PHIS' January 2013 letter here attached Exhibit 
425 Third St., SW, Suite 800, Washington, 20024 
Tel: (202) 646-5172 1-888-593-8442 FAX: (202) 646-5199  Email: 
$200,000 for "other training services" the last two years. Hence, learn more about 
any potential partisanship USDA was attempting foist its employees, well uncover how much such "training" was costing the American taxpayer, Judicial Watch May 18, 2012 filed request with the agency seeking all records regarding the same. 
Ms. Shirley Boyd acknowledged receipt the request via email June 2012.4 One month later, Ms. Carla Camp phoned Judicial Watch seeking extension time which fulfill the request issue, citing the President's Executive Order Classifying Information the Interests National Security. The bizarre phone call, which Judicial Watch declined APHIS's request for extension time because the irrelevant and illegitimate basis which was being asserted, was memorialized July 2012 email. addition asking for extension, Ms. Camp the July 2012 phone call committed producing initial release later than the close business Mon., July 2012. Despite her unsolic'ited pledge, APHIS issued responsive documents until August 30, 2012. That partial release consisted improperly redacted pages, further explained below. 
Then, nine months after the submission Judicial Watch's request, APHIS issued second and final release responsive records. This release consisted more pages well three discs containing video recordings. Besides being woefully tardy, this segment the release was incomplete and improperly redacted, will 
explained below. 
With only few minor caveats, FOIA 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. Judicial Watch's July 2012 email documenting that had declined APHLS's rrivolous request for extension time which fulfill the May 18, 2012 FOIA request here attached Exhibit APIDS's August 30, 2012 Jetter, signed "Celeste Camp" for FOIA Director Tonya Woods, here attached Exhibit See note supra. 

January 18, 2013 
LaCedra Exec. Office/or U.S. 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 ofFOIA, "the term 'search' means review, manuly 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 encourages agencies expend new efforts order comply with the electronic search requirements particular FOIA requests." Schladetsch US. 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 APHIS staffer have confirmed his herself that all that was found the first pass was all there was see. See 
Freeman US. 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 APHIS set goal for itself getting 
2300 employees trained the material issue, not logical -given the paper deluge 
bureaucracies are famous foi: creating -that the ratio paper projected attendees 
less than seven pages per 100 employees. explained greater detail below, APHIS this instance failed to: (1) 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) exercise any FOIA's minor caveats full disclosure accordance with the terms set forth law. Production Was Unti.mely and Request for Extension Was Baseless 
The requires agencies provide "prompt notice" their determinations. 
U.S.C.  555 (e). agency's failure act accordance with all relevant laws reviewable cowt following exhaustion any applicable administrative remedies. 
u.s.c.  704. 
Generally speaking, FOlA requires agencies disclose public records within days their request. U.S;C.  552 (a)(6)(i). Notwithstanding-this statutory mandate, FOIA also contains provision that "allows agency extend the applicable time 
January 18, 2013 

limits providing written notice the person making the request," long the notice "set[s] forth the reasons for such extension and the date which determination 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 duration the extensions themselves are extremely limited "[S]uch extensions only are 
permissible unusual circumstances and 

(emphasis added). the instant case, FOIA 2012-02657 triggered APHIS 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. While APHIS did timely acknowledge receipt Judicial Watch's request, this USDA component did not request extension time which fulfill before its June deadline, which inaction constituted violation FOIA well the APA. Even assuming APHIS had qualified for extension under the narrow "unusual circumstances" justification, the agency would only have been entitled delay until July 2012, which deadline also missed. Hence, APHIS's tardy notification was outside time altogether. Although the delay this point cannot cured, its illegality justifies compelling the agency disclose responsive documents immediately remedial measure. ExJension request/ailed/or lack written notice a11d date dispatch 
When APHIS, last, reached out Judicial Watch July 2012 seek extension time which fulfill the request issue, did phone and without proper justification -both violation FOIA's written notice procedures. Worse yet, APHIS not only failed comply with these procedural due process components FOIA's tardiness provisions, this division USDA also failed its substantive due process obligations refusing provide date final dispath -the sine qua non extensions under FOIA. 
The agency's pledge however hopeful, that was striving produce responsive records "as soon possible'-' 
hardly constituted date certain that would satisfy the letter the spirit the relevant statute. Marschner, 470 Supp. 198. Moreover, the extent APHIS blamed "the nature the records" for indefinitely continuing its delay disclosing responsive records, said "nature" should have given the relevant division some sense the consultation required and, extension, the projected wait involved. And, the preposterous claim APHIS made that was simply obeying executive order 

January 18, 2013 
Proper Classification National Security Information consulting diversity contractor for permission releasing nonsensitive records paid for taxpayers was evidently ludicrous, demanding further explanation. 
Now, putting aside its laughable assertion National Security privilege, APHIS 
can assumed simply have been waiting for less embarrassing more opportune time disseminate the information contained the docwnents 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 terms capricious, risking greater public scrutiny and disapproval. If, however, APHIS'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 o/236 days producing 150 pages cannot excused 
Even assuming APHIS had timely and properly effected notice its intended delay, provision FOIA -or any other law -would allow for 236-day delay processing such straightforward request. The delay constitutes unmitigfl.ted abuse the public trust Consequently, the Secretary should not allow any stalling irr APHIS's correction its search and production, which was deficient ways described below. Many responsive records were withheld without any explanation whatsoever 
Compounding APHIS's disregard for deadlines that has few docwnents show for its inordinate delay. The production itself replete with references other documents APHIS'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 Friends Blackwater U.S. Dep Interior, 
391 Supp. 115, 121 (D.D.C. 2005). 
While agency's failure locate responsive documents possession not always indication inadequate search, APHIS's total failure locate many hundreds responsive docwnents and all audio and video recordings the direct result ofAPHIS's half-hearted search, made evident numerous references within the production other APHIS-generated documents and videos not here produced. Obviously decision conduct half-hearted search tantamount crafting 

unreasonable search within the meaning ofFOIA because destined fail. See, e.g., 
Davis Dep ofJustice., 2007 U.S. Dist. LEXIS 88374 (D.D.C. Dec. 2007) 
(agency search was "unreasonably limited scope and destined fail'' where, even 
pursuing "three separate avenues inquiry, none them had any likelihood" 
success). extension, APHIS's election not pursue obvious clues within the 
production the existence additjonal records led unlawful withholding within 
the meaning ofFOIA that must reversed further explained below. 
For example, APHIS production contains video recording one training session. the session, the trainer alludes tape recordings the many other sessions 
provided APHIS under contract. Reinforcing the fact that there are other tape 
recordings other sessions are documents within the production( speaking about 
arranging camera and editing facilities. Reinforcing the fact that there were other 
sessions are documents within the production boasting that "almost 1,000 APHIS 
employees" attended the five sessions Riverdale and four each Raleigh, Fort Collins, and Minneapolis. Furthermore, Dr. Betances and his invoices refer 
additional sessions Plum Island and Ames, Iowa. Notwithstanding all these many 
representations, APHIS only. provided video recordings one session and, because 
edited, unclear when where the depicted session took place. Additionally, because 
the video edited for playback training audience, many parts that audiovisual 
record were excised, violation ofFOIA. Not one clip outside contractor's 
presentation roomful government employees can justifiably omitted under any 
exemption listed FOIA. addition the many audiovisual records withheld, there were many paper records APHIS failed identify and release this production. Among those not identified released were records costs associated with creating all videotapes Dr. Betances' presentations which were discussed the planning stages within the documents released and were alluded Dr. Betances himself camera. Hence, clear that such records exist. And, because they are responsive the request for all records stemming from the training, they must located and released once. 
Also withheld were all travel records associated with moving Dr. Betances and the class attendees and from the training locations. Since all transportation, per diem, and expense records were requested, these need produced well. Finally, all record book purchases alluded the surveys and throughout the feedback emails must also produced the extent they were funded APHIS whole part. 

January 18, 2013 
So, APHIS proceeds with actual search, reminded that "an agency obliged pursue any clear and certain lead cannot good faith ignore." Cooper U.S. Dep Justice, 2004 U.S. App. LEXIS 8135 (D.C. Cir. Apr. 23, 2004)(further citation and internal quotation marks omitted). that end, while "the agency generally 
need not search every record system .... agency cannot limit its search only one 

record system there are others that are likely tum the information requested." 
Campbell U.S. Dep't ofJustice, 164 F.3d 20, (D.C. Cir. 199S)(citing Oglesby 
US. Dep the Army, 920 F.2d (D.C. Cir. 1990))(intemal quotation marks omitted). 
Ultimately, the adequacy APHIS's search for documents responsive Judicial 
Watch's request will judged "based what the agency knew .at its conclusion rather 
than what the agency speculated its inception." Campbell, 164 F.3d 28. 

Failure identify and release any the above-referenced docwnents and recordings without any express justification egregious violation ofFOIA which the Secretary should not pennit stand unabated. Conclusory redactions were improperly applied, requiring reversal 

The last issue requiring the Secretary's correction the abusive application (b)(6) conceal the identity purchasing officers obligating upwards:of$120,000 taxpayer funds. APHIS consistently blocked out signatures all contract approving officers that appeared throughout the production. 
Judicial Watch does not challenge the redaction signatures where the name the contracting officer clearly identified alternate means (typewritten the box above). However, the extent purchasing officer failed follow the instructions the form and omitted his her printed name from the appropriate box, i's paramount public interest the American people know who authorized the tens thousands dollars paid Dr. Betances and his crew. Unfortunately for the purchasing officer who failed follow the form's instructions, the public interest government expenditures has been heightened the wake the recent GSA and Secret Service scandals, causing the interest pW'chasing officer's identity override any privacy interest the official's signature. 
Importantly, (b)( does not protect all privacy, only clearly unwarranted invasions therefrom. This disclosure demanded here not only warranted but vital the very oversight function which FOIA's central pwpose. For this reas1;m, Judicial Watch demands that the Secretary cause the pertinent information restored once, giving face the spending choices reflected the production. 

Hence, APHIS' search and production fell far short what FOIA requires withholding public records and justifying the decision so,8 Judicial Watch hereby requests that the Secretary compel APHIS once to: 	Craft search likely locate all responsive records; 	Promptly execute that search reasonable manner, including pursuit any logical leads; 	Conduct segregability analysis order redact only those portions responsive documents shown exempt from compulsory disclosure; 	Redact responsive records manner that indicates the amount material withheld the site the redaction, citing the precise basis for withholding; 	Release all responsive documents or, narrow instances, supply particularized justification for continuing withhold whatever specific portions the bureau can establish are exempt from APHIS's overarching duty disclose. 
Additionally, Judicial Watch anticipates receipt the renewed production further expense itself accordance with U.S.C.  552 (a)(6)(A)(i) and (a)(4)(A)(viii).9 Thank you advance for your thoughtful consideration this appeal. agency claiming have performed adequate search must establish that fact beyond all material doubt. Valencia-Lucena U.S. Coast Guard, 180 F.3d 321, 325-326 (D.C. Cir. 1999)(citing Truitt Dep ofState, 897 F.2d 540, 542 (D.C. Cir. 1990) and Weisberg US. Dep't o,f.Justice, 705 F.2d 1344, 1351 
(D.C. Cir. 1983)). U.S.C.  552 (a)(6)(A)(i) provides for determination ofa FOIA request within days and U.S.C.  552 (a)( 4)(A)(viii) provides for the waiver all fees the requested documents are not timely produced. Judicial Watch's May 18, 2012 request for records here attached Exhibit Ms. Boyd's June 2012 email, and its attachments, are here included Exhibit 


January 2013 
Lisette Garcia, J.D. Senior Investigator 425 Third St., SW, Ste. 800 Washington, 20024 
Dear Ms. Garcia: 
This our final response your May 18, 2012, Freedom Information Act (FOIA) request (enclosed). Your request was received this office June 2012, and assigned case number FOIA 2012-02657. apologize for the delay this response. 
Agency employees conducted thorough search their files and located pages documents and three video DVDs which are responsive your request. However, information has been withheld under FOIA Exemption U.S.C.  552(b)(6).  This exemption protects information from disclosure when its release would cause clearly unwarranted invasion personal privacy and where such privacy interest outweigh any public interest which would advanced the disclosure any signatures contained within the records.  From the responsive documents, have withheld all signatures. threshold matter, Exemption (b)(6) protects not only personnel files and medical files, but similar files, which are interpreted courts cover personal information pertaining individuals. this case, the information protected pertains third party individual and contained similar file. order determine whether document may withheld under Exemption agency must undertake three-step analysis.  First, the agency must determine whether significant privacy interest would compromised the disclosure the record.  Second, the agency must determine whether the release the document would further the public interest shedding light the operations and activities the Government.  Third, the agency must balance the identified privacy interests against the public interest disclosure. Therefore, have determined that the privacy interests the individuals identified, outweighs any minimal public interest their identities, and the information has been withheld.  
You may appeal our partial denial determination. you choose appeal, your appeal must writing and must received within days the date this letter.  Please send to: 
 Animal and Plant Health Inspection Service Box 3401 
Washington, D.C.  20250-3401 
FOIA 02657 you choose appeal, please refer FOIA 12-02657 your appeal letter and add the words FOIA Appeal the front the envelope. assist the Administrator reviewing your appeal, please provide specific reasons why you believe modification the determination warranted. 
Because the cost process your request less than $25.00, the fee has been waived. you have any questions, please contact Ms. Sophie Lau-Lopez staff (301) 851-4083. 
RSheppard signed for 
Tonya Woods Director Freedom Information Privacy Act Legislative and Public Affairs 
05/17/2012 23:58 2026466190 


.l~ecau.~e one abm1e tile lcwJ! 

May 18~ 2012 
VIA CER1' MAlL FAX: (20.2) 690~3767 
FOTA ChiefTxina Porter 
U.S. Department Agriculture 
355 St.j S.W., 10111 rtoor 
Washington, D.C. 20024 

Re: FOIA Seel 
Deal' Ms'"Porter: 
Pursuant the Freedom ofinfonnati.on Act (FOIA), S.C. SS2, Judicial Watch, Inc., (Judicial Watch) hereby xequest..o;; that the U.S. Departmbnt o Ag~:ieulture (USDA) produce the following tecords within twenty (20) business dtys: 	All contracts and expense reco1ds related tl'aining servic~s provided Sarmlel Betan.ccs his finn, Souder, Betances As~oci.ates, Chicago~ Tll.; 	All comm1.mications related training and services Jrovided Samuel Beta.nces his firm, Souderj Betances Associates, ofChica m.; 	All records and email ftom the offices Sect'etru:y om~s V~lsack, Under Secretary Edward Avalos, AdministTator Greg Parhatn, and Deputy Admh,istrator Joanne Munno regarding the above-referenced trainifg and se~vices. 
For purposes this request, the term "reco:rds" lticlubcs any ~ideo and/or audio recordins training P.!.~entations provided cUitated! ~ances his firm. The time f1amc for this reqt'iest January 2Q1 O,i through the 
present. placing this request, Judici~;~.l Watch calls your attenti( Pre~ideut Barack Obama's January 21,2009 Metnorandum concemittg the edom ortTnformation. Act 
which states: 	 agencies should adopt presum.ptton i11 vor disclosure; 11 orcter renew tbeit commitme the pr.iJ1ciples embodied FOIA. The presumption disclosure should applied all decisions involving FOTA. 
425 Third St., SW, S1he 800, Wa~hingtcm, 20024 rei: (202) 6~6-S1.7~ 1-HH8593-8442 f"AX; {202) 646"5199 limail: { 
05/17/2012 23:58 2026460190 

May 18, 2012 
Freedom of!nformatim1 Act. Pres. Me1n. January 21, 20oc, Fed.: Reg. 4683. 
The men1o fi.u-ther provides that "The Freedom lnf1rmation 1Act should administered with clear presumption: the case doubt, ~pennessiprevails.), 
Nevertheless, jfany responsive record portion thertof cla~med exempt fi:om production under FOIA, please provide sufficient ide11ffying iu(ormatio11 with 
respect each allegedly exempt .record portion thereof allow 'to as$ess the propriety oftlte claimed exemption. Vmtghn Roser1! 484 820 (D.C. Cir. 1973), cert; denied, 415 U.S. 977 (1974). addition, any reasonah segregable porti.Ott ofa t-espon.sive record must provided, after redaction ~m.y allegedly ~xempt111aterial. 
u.s.c.  552(b). 
Judicial Watch also hereby requests waiver both seruch and duplication fees pursuant U.S.C.  552(a)(4)(A)(ii)(II) and (a)(4)(A)(iii Judicial Watch et'ltitled waiver search fees un~er U.S.C.  552(a)(4)(A)(ii)(. because member the news media. Cj. National Security Archive Departmen~ ofDafehse, 880 F.2d 1381, 1387 (D.C. Cir. 1989)(defining news media within FOIA cobtext). Judicial Watch has also been recognized member the news m.edia oth~t FOIA litigation. See, e.g., Judicial Watch, Inc. U.S. Department of.Justice, 133 Supp.2d (D.D.C. 2000); and, Judfcial Watch, Inc. Department o.f'DejeJ'ISfJ) 2006 U.S. Dist. I,EXIS 44003, (D.D;c. June 28, 2006). Judicial Watch regularly obtains i~uormatio* about the ope1'ations and activities government thtol.Igh FOIA and ther means~ uses its editorial skills tum this informatio11 into di.stlnct works, and publisl and disseminates these works the public. intends likewise with the recordh 1'ecei,;,es response this request.  
Judicial Watch also entitled complete waiver fbotb s~arch fees and duplication fees pursuant U.S.C.  552(a)(4)(A)(iii). U1~det this provision, records: 
 	shall furnished without atiY charge or. hhar~e 
reduced below the fees established under claJse (H) 
disclosure ofthe infonn.alion the publiclnterest 
because likely contribute significantly public. 
understanding ofthe operations activities government 
and not primarily the commercial intere, ofthe 
requester. U.S.C.  552(a)(4)(A)(lii). addition, ifrecmds are not p1'oduced within twent (20) bu~iness days, Judicial Watch entitled complet~ waiver search a.tld duplication. fees: unde1' Section 6(b) the OPEN Govel'.nment Act of2007, which amended :FOIA u.s.c.  552 (a)(4)(A)(viii). 
Pngc of3 
05/17/2012 23:58 2026460190 

May 18,2012 
Judicial Watch 50l(c)(3)~ notfm~protit, educatio organization, and) definition, has 110 commercial purpose. Judicial Watc.h exi~ts edu~te the public about the opemtions attd activities ofgovernment> well increa* public understanding about the importance ethics and the rule of1 govemment. The particular records requested herein are sought pal't Judicial Watcli's ongoing efforts document the operations attd activities ofthe federal goverhme'pt at~~ edttcate the public about these operations and activities. Once Judicial W~ch'obtains the tequested records, intends analyze thern and disseminate the 1'esult its an~.lysis, well the recotds themselves, special written report. Jndicia[ atch Willi also educate the public via radio programs, Judicial Watch's website1 attd/or wslette1;~ among other 	outlets. also will make the records av~Hable other mem~ers ofthci: media researchets~pon request. Judicial Watch has ptovcn abillt dissethinate h'formation obta5Jied through FOIA the public, demonstrated its ngstrui~ing and contitming public outreach efforts.  
Given these circun1stances, Judicial Watch entitled public interest fee waiver both search costs and duplication costs. Nonethelek the event our reqnest for waiver. search and/or duplication costs denied, Juditial Watd.h willing pay $350.00 search and/or dupH.cation costs. Judici~.l W~~chrequests that contacted before any such costs ate incurred, order priontize sear9h and duplication 
efforts. : effo1t facilitate record production within the tu~ory dme limit, Judicial Watch wUUng accept doc1.tments electronic format (e.~. e~mail.' .pdfs). When necessary, Judicial Watch wUl also accept the "rolling produdtion" ofdocuments. Judicial Watch anticipates prompt receipt the requested uments *nd waiver both search and duplicatiolJ costs within twent-y (20) business. days. Thank you fot yow: timely compliance wit.h all applicable laws. 
Lisette Garcja., J.D. 
Seniol' Investigator