Friends of Animals v. U.S. Department of Agriculture

MOTION for Summary Judgment

D.D.C.September 30, 2016

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRIENDS OF ANIMALS, ) ) Case No. 16-cv-01475-CRC Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF AGRICULTURE, ) an agency of the United States ) ) Defendant. ) MOTION FOR SUMMARY JUDGMENT Friends of Animals brings this Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 and LCvR7(h). As supported in further detail in the accompanying Memorandum of Points and Authorities, Statement of Undisputed Material Facts, and the Declaration of Michael R. Harris, the Court should grant this Motion because there is no material dispute of fact that the Defendant failed to make determinations on Plaintiff’s request for information under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, within the statutorily required time. Plaintiffs respectfully request that the Court grant this Motion for Summary Judgment, declare that Federal Defendants violated FOIA by failing to make timely determinations on Friends of Animals’ FOIA request, and grant injunctive relief directing Defendant to promptly provide Friends of Animals with legible copies of requested material free of cost. // // // Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 1 of 15 2 Dated: September 30, 2016 Respectfully Submitted, __/s/ Michael Harris_________________ Michael Ray Harris (DC Bar # CO0049) Director, Wildlife Law Program Friends of Animals Western Region Office 7500 E. Arapahoe Rd., Suite 385 Centennial, CO 80112 720-949-7797 michaelharris@friendsofanimals.org Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 2 of 15 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRIENDS OF ANIMALS, ) ) Case No. 16-cv-01475-CRC Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF AGRICULTURE, ) an agency of the United States ) ) Defendant. ) STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Friends of Animals submit that there is no genuine issue to the following material facts: GENERAL BACKGROUND 1. Plaintiff Friends of Animals (“FoA”) is a nonprofit international advocacy organization with nearly 200,000 members, incorporated in the state of New York since 1957. FoA seeks to free animals from cruelty and exploitation around the world, and to promote a respectful view of non-human, free-living and domestic animals. FoA engages in a variety of advocacy programs in support of these goals. FoA informs its members about animal advocacy issues as well as the organization’s progress in addressing these issues through its magazine called ActionLine, its website, and other reports. FoA has published articles and information advocating for the protection of wild species so that they can live unfettered in their natural habitats. Declaration of Michael R. Harris in Support of Motion for Summary Judgment (hereinafter, “Harris Decl.”) ¶ 3. 2. Defendant United States Department of Agriculture (USDA) is an agency within the meaning of the Freedom of Information Act, 5 U.S.C. § 552(f). Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 3 of 15 2 3. Friends of Animals submitted a request under the Freedom of Information Act to USDA on April 28, 2016. Def.’s Answer ¶ 15, Harris Decl. ¶ 5 and Exhibit A. 4. Friends of Animals received acknowledgement from USDA confirming that the agency received the Request on April 28, 2016. Def.’s Answer ¶ 16, Harris Decl. ¶ 6. 5. The 20-workday time limit for responding to Friends of Animals’ Request passed on May 26, 2016. Harris Decl. ¶ 7. 6. USDA did not respond to this Request by May 26, 2016. Def.’s Answer ¶ 18, Harris Decl. ¶ 8. 7. The 30-workday time limit for responding to Friends of Animals’ Request under “unusual circumstances” passed on June 9, 2016. Harris Decl. ¶ 9. 8. As of July 19, 2016, the date that Friends of Animals filed its Complaint, USDA had not produced any information responsive to Friends of Animals’ Request. Def.’s Answer ¶ 18, Harris Decl. ¶ 10. 9. On June 28, 2016, the Director of the Friends of Animals Wildlife Law Program, Mr. Harris, sent an email to USDA inquiring as to the status of Friends of Animals’ Request. Harris Decl. ¶ 11. 10. , Mr. Harris has received no response to his inquiry. Def.’s Answer ¶ 20, Harris Decl. ¶ 12. 11. On Monday, August 29, Mr. Harris received an email from USDA employee Brion McConville stating that USDA had an active records search request in regards to Friends of Animals’ FOIA request. Harris Decl. ¶ 13. 12. The email from Mr. McConville failed to provide a determination on the Request. Harris Decl. ¶ 14. 13. The email from Mr. McConville failed to provide a date by which Friends of Animals could expect production of the requested documents. Harris Decl. ¶ 15. Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 4 of 15 3 14. Attached to the email was a letter from USDA FOIA officer/employee Tonya Woods, dated Monday, August 29, 2016, informing Mr. Harris that Friends of Animals’ request for a waiver of search fees would be granted under 5 U.S.C. §§ 552(a)(4)(A)(viii), 522(a)(4)(A)(iii). Harris Decl. ¶ 16. 15. As of the date of this Motion, USDA has still not provided Friends of Animals with a date by which it may expect to receive the results of its Request. Harris Decl. ¶ 17. 16. As of the date of this Motion, USDA has not made any claims of statutory exemption with regard to the requested documents. Harris Decl. ¶ 18. 17. As of the date of this Motion, USDA has still not produced any requested documents responsive to Friends of Animals’ Request. Harris Decl. ¶ 19. Dated: September 30, 2016 Respectfully Submitted, __/s/ Michael Harris_________________ Michael Ray Harris (DC Bar # CO0049) Director, Wildlife Law Program Friends of Animals Western Region Office 7500 E. Arapahoe Rd., Suite 385 Centennial, CO 80112 720-949-7797 michaelharris@friendsofanimals.org Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 5 of 15 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRIENDS OF ANIMALS, ) ) Case No. 16-cv-01475-CRC Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF AGRICULTURE, ) an agency of the United States ) ) Defendant. ) PLAINTIFF’S STATEMENT OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT INTRODUCTION Friends of Animals is a not-for-profit international advocacy organization. For nearly 60 years now, we have worked to directly improve the lives of animals. In addition, through our work we have become a significant, public source of information regarding animal welfare and policy. Friends of Animals distributes this information through its website, its quarterly magazine (ActionLine), email alerts, op-eds, press releases, and other means. While a vast amount of our work is paid through the generous support of our members and others, like other non-profit advocacy organizations, from time-to-time Friends of Animals utilizes the Freedom of Information Act (FOIA), 5 U.S.C. § 522 et seq., as a means of making government records available to its members and the public generally. In most instances in which we have used FOIA, documents are usually obtained from the agency—although not always in the timeliest fashion—without the need for litigation. Usually, we are able to work with the agency to establish a schedule or timeline for the release of the request information. Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 6 of 15 2 The case at bar, however, represents one of the most egregious failures by an agency to respond to, or for that matter, to even acknowledge, a FOIA request that Friends of Animals and its counsel have ever experienced. Nearly five months ago, Friends of Animals filed a request with the United States Department of Agriculture (USDA) seeking to obtain documents related to the possible death of one or more primates at a private, but government-regulated, facility known as Chimp Haven. To date, Friends of Animals has received from USDA neither a determination on its request nor an indication of when it may expect the requested documents to be produced. USDA ignored one request from Friends of Animals for an update, and has apparently even ignored on at least one occasion an inquiry from its own counsel at the United States Attorney’s office. Notably, USDA admits that it has not responded to Plaintiff’s FOIA Request. Statement of Undisputed Material Fact in Support of Motion for Summary Judgment (hereinafter, “Pl. SUMF”) ¶ 10. Accordingly, the Court should grant Plaintiff’s Motion for Summary Judgment, declare that Defendant violated FOIA, and grant injunctive relief directing Defendant to promptly render its determination and provide Friends of Animals with all appropriate outstanding material by a date certain. LEGAL BACKGROUND Congress enacted the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq., to better ensure public access to government records. The statute was designed “to ‘pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.’” Judicial Watch v. United States Dep't of State, 2016 U.S. Dist. LEXIS 62283, *8 (D.D.C. May 4, 2016) (citing Morley v. C.I.A., 508 F.3d 1008,1114 (D.C. Cir. 2007)); see also EPA v. Mink, 410 U.S. 73, 79–80 (1973) (explaining that FOIA “seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands”). Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 7 of 15 3 FOIA requires that upon written request for the production of government records, agencies of the United States government must disclose such records unless they fall under one of nine specific statutory exemptions. 5 U.S.C. §§ 552(a)(8), 552(b). After receiving a FOIA request, an agency is ordinarily allowed a maximum of 20 workdays to reach its determination of whether or not to comply with the request. Id. at § 552(a)(6)(A)(i). A determination requires that “within the relevant time period, the agency must at least inform the requester of the scope of the documents that the agency will produce, as well as the scope of the documents that the agency plans to withhold under any FOIA exemptions.” Citizens for Resp. and Ethics in Wash. v. FEC, 711 F.3d 180, 185 (D.C. Cir. 2013). If the agency reaches a positive determination to comply with the request, then FOIA requires that “the records shall be made promptly available” by the agency to the person making the request. Id. at § 552(a)(6)(C). In “unusual circumstances,” an agency may extend the time limits for up to ten working days by providing written notice to the person making the request of the reasons for the extension and the date on which the determination is expected to be dispatched.1 5 U.S.C. § 552(a)(6)(B). No extension for unusual circumstances is permissible without written notice to the requester. Id. Failure to comply with FOIA’s time limits is, by itself, a violation of FOIA, which requesters have a right to challenge in court. See Gilmore v. U.S. Dep’t of Energy, 33 F. Supp. 2d 1184, 1190 (N.D. Ca. 1998) (holding that an agency's failure to comply with FOIA's time 1 “Unusual circumstances” do not include workload issues or supervisor review of documents. As defined by FOIA, “unusual circumstances” entail: “(I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.” 5 U.S.C. § 552(a)(6)(B)(iii). Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 8 of 15 4 limits violated FOIA, and thus holding that plaintiff was permitted to conduct discovery of the agency's policies and practices for responding to FOIA requests); see also Oglesby v. United States Dep't of Army, 920 F.2d 57, 62 (1990) (explaining that when an agency fails to answer a FOIA request within the statutory time limit, the requester is entitled to seek a court order compelling the agency to respond). Generally, FOIA requires that requesting parties exhaust their administrative appeal remedies before seeking judicial redress. However, the requester is deemed to have constructively fulfilled the exhaustion requirement by statute if an agency fails to adhere to FOIA’s required timelines (of twenty workdays or thirty workdays in “unusual circumstances”). Id. at § 552(a)(6)(C)(i). In such instances, the requester may commence litigation immediately so long as the agency has not cured its violation by responding before the requester files suit. Id. STANDARD OF REVIEW Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Because FOIA cases frequently involve undisputed agency actions, “FOIA cases typically and appropriately are decided on motions for summary judgment.” Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Veterans Affairs, 828 F. Supp. 2d 325, 329-330 (D.D.C. 2011); see also S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., 2008 U.S. Dist. LEXIS 107177, at *11 (E.D. Cal. June 20, 2008) (“Summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved.”). Where there is no Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 9 of 15 5 question as to an agency’s failure to meet the statutory deadline for a nondiscretionary act, and the agency does not contest its liability, then it is appropriate for a court to enter summary judgment and fashion an appropriate equitable remedy ordering the agency to perform its required duties by a date certain. See Sierra Club v. Johnson, 444 F. Supp. 2d 46, 52 (D.D.C. 2006) (granting plaintiff’s motion for summary judgment and ordering EPA to promulgate Clean Air Act standards by a date certain); see also Natural Resources Defense Council v. Train, 510 F. 2d 692, 705 (D.C. Cir. 1974) (“The authority to set enforceable deadlines both of an ultimate and intermediate nature is an appropriate procedure for the exercise of a court’s equity powers to vindicate the public interest.”); Amer. Lung Ass’n v. Browner, 884 F. Supp. 345, 349 (D. Ariz. 1994) (where liability is uncontested and “it remains only for the Court, acting in its discretion, to fashion an equitable remedy,” summary judgment is appropriate). Additionally, federal courts can render judgement against an agency for violating FOIA where an agency has (1) "improperly"; (2) "withheld"; (3) "agency records." Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980). When an agency withholds documents requested under FOIA, then the Court must review the matter de novo, and the burden is upon the government—not the public—to sustain its action. 5 U.S.C. §552(a)(4)(B). This de novo review may also be triggered constructively in cases where an agency “violate[s] FOIA by failing to comply with this this statutory deadline” because “this failure result[s] in an improper withholding under FOIA.” Info. Network for Responsible Mining v. BLM, 611 F. Supp. 2d 1178, 1183 (D. Colo. 2009); see also Oglesby v. United States Dep't of Army, 920 F.2d 57, 62 (1990) (explaining that when a plaintiff constructively exhausts his administrative appeals and brings suit on a agency’s failure to answer his request within the statutory time limit, “[t]he court may then order the agency to respond to the request . . . [o]r, the court may review the request itself under the de novo review provision.”); Hersh & Hersh v. HHS, No. 06-4234, 2007 WL 1411557, at *3 (N.D. Cal. Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 10 of 15 6 May 11, 2007) (“[T]he proper remedy for an agency’s failure to adhere to the statutory deadlines is for the court to order the agency to respond or to review the request itself.”). ARGUMENT A. Standing Plaintiff Friends of Animals has standing in this case to pursue its claims against Defendant. A plaintiff establishes standing by showing that: (1) it has suffered an “injury in fact;” (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely that a favorable judicial decision will prevent or redress the injury. Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). An organization can bring suit on behalf of itself where the organization independently meets these criteria. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). Here, Friends of Animals submitted a request under FOIA and suffered a concrete injury traceable to Defendant when Defendant failed to make a determination on the request within the time required by law. Pl. SUMF ¶¶ 1-17. See Gilmore v. United States DOE, 33 F. Supp. 2d 1184, 1189 (N.D. Cal. 1998) (“Failure to process [Plaintiff’s] FOIA request in a timely manner was itself an injury—an invasion of a legally protected interest, as defined in Defenders of Wildlife.”) This injury is sufficient for Article III standing in courts of the United States, and FOIA provides requesters with an immediate right of access to the courts to compel an agency’s response to a FOIA request when the agency has violated the statutory time limit. See 5 U.S.C. § 552(a)(6)(C). B. Defendant Violated FOIA by Failing to Respond to Plaintiff’s Request in the Required Time Defendant admits in its Answer that Friends of Animals submitted a FOIA request dated April 28, 2016 to USDA (hereinafter, “Request”). Pl. SUMF ¶ 3. Defendant also admits that Friends of Animals received acknowledgement from USDA the very same day, Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 11 of 15 7 confirming that the agency had received the Request. Pl. SUMF ¶ 4. The 20-workday deadline for USDA to reach a determination passed on May 26, 2016. See 5 U.S.C. § 552(a)(6)(A)(i). Defendant did not respond by May 26, 2016, and did not provide written notice to Friends of Animals at that time of a need for an extension, a rationale for the need, or a date on which the determination was expected to be dispatched. See 5 U.S.C. § 552(a)(6)(B); Pl. SUMF ¶ 6. The 30-workday “unusual circumstance” deadline to respond to the Request passed on June 9, 2016. See 5 U.S.C. § 552(a)(6)(B). Defendant admits that at the time Plaintiff’s Complaint was filed on July 19, 2016, USDA had still failed to provide any information responsive to the Request. Pl. SUMF ¶ 6. As of the date of this Motion, Friends of Animals has not received any definitive statement from USDA of when it can expect production of the documents requested in its FOIA Request—submitted nearly five months ago. C. The Court Should Exercise Its Equitable Discretion to Order USDA to Respond to the FOIA Request Within 15 Days. To remedy the injury caused by USDA’s failure to comply with FOIA and meet statutory deadlines in responding to its request, Friends of Animals seeks equitable relief declaring that USDA has violated FIOA2 and compelling USDA to promptly respond to its FOIA request and produce all nonexempt requested documents by a date certain. Where, as here, an agency has not responded within FOIA’s required timelines and the requester bring suit under 5 U.S.C. § 552(a)(6)(C), it is proper for the court to compel the agency to respond to the request. See Oglesby v. United States Dep't of Army, 920 F.2d 57, 62 (1990) (“The purpose of the [statutory time] limit for an agency response is to allow a FOIA requester, who has not yet received a response from the agency, to seek a court order 2 In addition to the practical relief of compelling an agency response, “[a] court declaration delineates important rights and responsibilities and can be a message not only to the parties but also to the public and has significant educational and lasting importance.” Natural Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1299 (9th Cir. 1992). Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 12 of 15 8 compelling the release of the requested documents. The court may then order the agency to respond to the request.”); see also Cleaver v. Kelley, 427 F. Supp. 80, 82 (D.D.C. 1976) (ordering the agency to process the plaintiff's request and produce the requested documents or provide sufficient justification for withholding them); Hersh & Hersh v. HHS, No. 06-4234, 2007 WL 1411557, at *3 (N.D. Cal. May 11, 2007) (“[T]he proper remedy for an agency’s failure to adhere to the statutory deadlines is for the court to order the agency to respond or to review the request itself.”). As the D.C. Circuit Court of Appeals long ago made clear, “FOIA imposes no limits on courts’ equitable powers in enforcing its terms . . . . [U]nreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent these abuses.” Payne Enters., Inc. v. United States, 837 F. 2d 486, 494-95 (1988) (ruling that the District Court’s failure to issue declaratory relief for the plaintiff was a clear abuse of discretion and recommending that the District Court supply the plaintiff with injunctive relief where the Air Force repeatedly delayed in granting the plaintiff’s FOIA requests). It is therefore proper that the Court exercise its discretionary authority here to: (1) declare that USDA has violated the statutory timeline for responding to Friends of Animals’ FOIA request, and (2) order USDA to issue its response and produce all nonexempt documents in 15 days. /// /// /// Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 13 of 15 9 CONCLUSION For the foregoing reasons, Friends of Animals respectfully requests that the Court grant its Motion for Summary Judgment. Dated: September 30, 2016 Respectfully Submitted, __/s/ Michael Harris_________________ Michael Ray Harris (DC Bar # CO0049) Director, Wildlife Law Program Friends of Animals Western Region Office 7500 E. Arapahoe Rd., Suite 385 Centennial, CO 80112 720-949-7797 michaelharris@friendsofanimals.org Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 14 of 15 1 CERTIFICATE OF SERVICE I certify that on September 30, 2016, the foregoing will be electronically filed with the Court’s electronic filing system, which will generate automatic service upon on all Parties enrolled to receive such notice. Dated: September 30, 2016 Respectfully submitted, s/Michael Ray Harris Case 1:16-cv-01475-CRC Document 10 Filed 09/30/16 Page 15 of 15 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRIENDS OF ANIMALS, ) ) Case No. 16-cv-01475-CRC Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF AGRICULTURE, ) an agency of the United States ) ) Defendant. ) DECLARATION OF MICHAEL R. HARRIS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT I, Michael R. Harris, declare as follows: 1. The facts set forth in this declaration are based upon my personal knowledge. If called as a witness, I could and would testify to these facts. As to those matters that reflect an opinion, they reflect my personal opinion and judgment on the matter. 2. I am employed as the Director of Friends of Animals’ Wildlife Law Program. 3. Friends of Animals (“FoA”) is a nonprofit international advocacy organization with nearly 200,000 members, incorporated in the state of New York since 1957. FoA seeks to free animals from cruelty and exploitation around the world, and to promote a respectful view of non-human, free-living and domestic animals. FoA engages in a variety of advocacy programs in support of these goals. FoA informs its members about animal advocacy issues as well as the organization’s progress in addressing these issues through its magazine called ActionLine, its website, and other reports. FoA has published articles and information advocating for the protection of wild species so that they can live unfettered in their natural habitats. Case 1:16-cv-01475-CRC Document 10-1 Filed 09/30/16 Page 1 of 11 2 4. FoA is experienced in preparing requests under the Freedom of Information Act (FOIA) to federal agencies, including the U.S. Department of Agriculture (USDA). 5. On April 28, 2016, I submitted a FOIA request to USDA on behalf of FoA requesting information pertaining to Primarily Primates Sanctuary in San Antonio, Texas, and Chimp Haven Sanctuary in Keithville, Louisiana (hereinafter “Request”). See Exhibit A. 6. I received an acknowledgement that USDA received the Request on April 28, 2016. See Exhibit B. 7. The 20-workday time limit for responding to Friends of Animals’ Request passed on May 26, 2016. 8. USDA did not respond to this Request by May 26, 2016. 9. The 30-workday time limit for responding to Friends of Animals’ Request under “unusual circumstances” passed on June 9, 2016. 10. As of July 19, 2016, the date that Friends of Animals filed its Complaint, USDA had not produced any information responsive to Friends of Animals’ Request. 11. On April 22, 2014, I sent an email on behalf of Friends of Animals to USDA inquiring as to the status of Friends of Animals’ Request. See Exhibit C 12. To date, I have received no response to my inquiry. 13. On Monday, August 29, I received an email from USDA employee Brion McConville stating that USDA had an active records search request in regards to Friends of Animals’ FOIA request. 14. The email from Mr. McConville failed to provide a determination on the Request. 15. The email from Mr. McConville failed to provide a date by which Friends of Animals could expect production of the requested documents. 16. A letter addressed to me from USDA FOIA officer/employee Tonya Woods was attached to the email. This letter was dated Monday, August 29, 2016, and it said that Case 1:16-cv-01475-CRC Document 10-1 Filed 09/30/16 Page 2 of 11 3 Friends of Animals’ request for a waiver of search fees would be granted under 5 U.S.C. §§ 552(a)(4)(A)(viii), 522(a)(4)(A)(iii). 17. As of the date of this Declaration, USDA has still not provided Friends of Animals with a date by which it may expect to receive the results of its Request. 18. As of the date of this Declaration, USDA has not made any claims of statutory exemption with regard to the requested documents. 19. As of the date of this Declaration, USDA has still not produced any requested documents responsive to Friends of Animals’ Request. 20. FoA requests information under FOIA in order to further its mission to free animals from cruelty and exploitation around the world, and to inform its members about animal advocacy issues. When information is not released within the statutorily required timelines, it significantly frustrates FoA’s ability to pursue its goals and to inform its members about animal advocacy issues. FoA will continue to make FOIA requests to APHIS, and depends on the release of information in compliance with the statutory deadlines. 21. In accordance with 28 U.S.C. § 1746 and under penalty of perjury, I swear that the foregoing is true and correct. Executed on September 30, 2016 in Centennial, Colorado. Dated: September 30, 2016 __s/Michael Ray Harris Michael Ray Harris Case 1:16-cv-01475-CRC Document 10-1 Filed 09/30/16 Page 3 of 11 1 Exhibit A Case 1:16-cv-01475-CRC Document 10-1 Filed 09/30/16 Page 4 of 11 ☐ NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ● T 203 656 1522 ● F 203 656 0267 ☐ NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 ☐ WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG April 28, 2016 VIA ELECTRONIC MAIL (FOIA.Officer@aphis.usda.gov) Tonya Woods FOIA/PA Officer 4700 River Road, Unit 50 Riverdale, MD 20737-1232 Tel. 301-851-4076 Fax 301-734-5941 Email: FOIA.Officer@aphis.usda.gov Re: Freedom of Information Act Request Dear Ms. Woods, This is a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for the release and production of records. Friends of Animals ("FoA") request copies of all documents1 held by the U.S. Department of Agriculture, including the Animals Plant and Health Inspection Service from 2014 to the present relating to Primarily Primates Sanctuary in San Antonio, Texas, including: 1. All documents related to inspections, reviews, reports, or correspondence regarding Chimp Haven (primate sanctuary), 13600 Chimpanzee Place Keithville, LA 71047. While we are interested in all documents in your possession regarding this facility, we are particularly interested in any documents relating to the deaths of, or injury to, any 1 “Document(s)” is used in the broadest sense to include written, transcribed, recorded or graphic matters, however produced or reproduced. This definition includes, but is not limited to, any and all originals copies or drafts of any and all of the following: records; reports; notes; memoranda; schedules; contracts; binders; work papers; logs; diaries; work sheets; files; letters; correspondence; summaries of memoranda; reports or memoranda of telephone conversations or record of personal conversations or interviews; handwritten notes; telephone logs; facsimiles; summaries; invoices; promissory notes; contracts; loan agreements; vouchers; billing statements; tape recordings or transcripts of tape recordings; photographs; videotapes; computerized output or data bases; electronic files; computer disks; computer CDs’ electronic mail transmittals; data and all other writings; calculations; and figures or symbols of any kind which, in any manner mentioned, relate to the subjects of the specific requests contained below. Case 1:16-cv-01475-CRC Document 10-1 Filed 09/30/16 Page 5 of 11 Page 2 of 3 ☐ NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ● T 203 656 1522 ● F 203 656 0267 ☐ NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 ☐ WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG primates in the care of this facility since 2014. In the event that access to any of the requested records is denied, please note that FOIA provides that if only portions of a requested file are exempted from release, the remainder must still be released. FoA therefore requests that we be provided with all non- exempt portions, which are reasonably segregable. We further request that you describe the deleted material in detail and specify the statutory basis for the denial as well as your reasons for believing that the alleged statutory justification applies in this instance. Please separately state your reasons for not invoking your discretionary powers to release the requested documents in the public interest. Such statements will be helpful in deciding whether to appeal an adverse determination, and in formulating arguments in case an appeal is taken. A written justification might also help to avoid unnecessary litigation. FoA has the right to appeal the withholding or deletion of any information and expects that you will list the office and address where such an appeal can be sent. Fee Waiver Request FOIA provides that, “documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii). The legislative history of FOIA, as well as case law interpreting FOIA, indicates that the statute’s fee waiver provision is to be liberally construed favoring the public interest. McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987) (quoting 132 Cong. Rec. S14298 (Sept. 30, 1986) (Sen. Leahy)). Friends of Animals’ current request for information qualifies for a fee waiver under this standard and, accordingly, we request that all fees be waived. Friends of Animals seeks information to understand the operations of the federal government in reviewing and assessing an animal sanctuary. FoA has the ability to distribute information to its members and other interested members of the public through its website, its quarterly journal ActionLine, and through outreach to other media outlets. Friends of Animals does not have a commercial, trade, or profit interest in the requested records. Friends of Animals is a not-for-profit, international animal advocacy organization, incorporated in the state of New York since 1957. It serves the public interest by increasing the general public awareness of animal advocacy issues and how to end animal cruelty and exploitation around the world. FoA seeks to promote a respectful view of non-human, free-living and domestic animals. The Internal Revenue Service recognizes FoA as a 501(c)(3) tax-exempt organization (IRS Employer Identification #: 13-6018549). Given FoA’s well-orchestrated and demonstrably successful efforts at educating the public on animal advocacy issues, and the fact that FoA’s education program has significantly contributed to an understanding of government operations and activities, Case 1:16-cv-01475-CRC Document 10-1 Filed 09/30/16 Page 6 of 11 Page 3 of 3 ☐ NATIONAL HEADQUARTERS ● 777 POST ROAD SUITE 205 ● DARIEN, CT 06820 ● T 203 656 1522 ● F 203 656 0267 ☐ NEW YORK OFFICE ● 1841 BROADWAY SUITE 350 ● NEW YORK, NY 10023 ● T 212 247 8120 ● F 212 582 4482 ☐ WILDLIFE LAW PROGRAM ● 7500 E. ARAPAHOE ROAD SUITE 385 ● CENTENNIAL, CO 80112 ● T 720 949 7791 FRIENDSOFANIMALS.ORG FoA is entitled to a fee waiver. Please produce the records regarding this FOIA request by electronic mail to michaelharris@friendsofanimals.org or the physical address listed below: Friends of Animals Wildlife Law Program 7500 E. Arapahoe Rd., Suite 385 Centennial, CO 80112 Please produce the records as soon as possible, and on a rolling basis; at no point should the search for – or the deliberation concerning – certain records delay the production of others that BLM has already retrieved and elected to produce. Thank you for your attention to this request. If you have any questions about the requested documents or the requested fee waiver, please do not hesitate to contact me at 720-949-7791 or jenniferbarnes@friendsofanimals.org. I look forward to hearing from you within twenty days (excepting Saturdays, Sundays, and public holidays), as required by FOIA. Sincerely, Michael Harris Michael Harris Director Wildlife Law Program Friends of Animals Western Region Office 7500 E. Arapahoe Rd., Suite 385 Centennial, CO 80112 michaelharris@friendsofanimals.org 720-949-7791 Case 1:16-cv-01475-CRC Document 10-1 Filed 09/30/16 Page 7 of 11 1 Exhibit B Case 1:16-cv-01475-CRC Document 10-1 Filed 09/30/16 Page 8 of 11 April 29, 2016 Dear Michael Harris: This is an acknowledge receipt of your Freedom of Information Act (FOIA) request dated April 28, 2016. Your request was received in the APHIS FOIA Office on April 28, 2016, and assigned tracking number # 2016-APHIS-03610-F. The target response date for your request is May 26, 2016. A copy of your request is attached. We are currently processing your request for information. You may contact Mr. Brion McConville on 851-4079, if you have questions concerning your request. You may also contact this office at 301-851-4102 or FOIA.Officer@aphis.usda.gov. Please refer to your tracking number in all future communications with us regarding your request. If you prefer, you can check the status of your request online through the USDA Public Access Link (PAL), at https://efoia-pal.usda.gov/palMain.aspx. Sincerely, Tonya G Woods Director Freedom of Information and Privacy Act Legislative and Public Affair Enclosure(s) Case 1:16-cv-01475-CRC Document 10-1 Filed 09/30/16 Page 9 of 11 1 Exhibit C Case 1:16-cv-01475-CRC Document 10-1 Filed 09/30/16 Page 10 of 11 From: Michael Harris To: Jennifer Best; WLP Subject: FW: Acknowledgement Date: Monday, July 18, 2016 11:28:00 AM Attachments: Acknowledgement.docx 16-03610-F.pdf From: Michael Harris Sent: Tuesday, June 28, 2016 12:40 PM To: 'Boyd, Shirley' Subject: FW: Acknowledgement Ms. Boyd, Any further information on the status of this request? Michael Harris From: Boyd, Shirley [mailto:Shirley.A.Boyd@aphis.usda.gov] Sent: Friday, April 29, 2016 11:48 AM To: Michael Harris Subject: Acknowledgement Case 1:16-cv-01475-CRC Document 10-1 Filed 09/30/16 Page 11 of 11