(202)

Appeal Seeking

Background

Judicial Watcli Because n.o on.e is above the law!

January 18, 2013

VIA CERTIFIED MAIL & FACSIMILE: 690-3561

Secretary Tom Vilsack1, U.S. Dep't of Agriculture

c/o Administrator Gregory Parham

Animal & Plant Health Inspection Service

1400 Independence Ave., S.W., Rm. 3428-S

Ag Box 3401

Washington, DC 20250-3401

Re: of Partial Denial of FOIA Cultural Transformation Records

Secretary Vilsack:

This letter timely appeals a January 9, 2013 final determination2 from the U.S.

Department of Agriculture (USDA) Animal Plant & Health Inspection Service (APHIS)

respecting a May 18, 2012 request for records3 submitted by Judicial Watch, Inc.

(Judicial Watch) pursuant to the Freedom ofinformation Act (FOIA), 5 U.S.C. § 552.

APHIS's production ofrecords responsive to Judicial Watch's FOIA request was

inexcusably tardy, umeasonably incomplete and improperly redacted, as will be

explained below. Consequently, Judicial Watch asks that the Secretary compel this

division of USDA to come into compliance with the law by: 1) undertaking an adequate

search; 2) delivering all responsive records without further delay or expense to the

requester; and 3) disclosing information improperly redacted in the first instance.

I.

In May 2012, federal workers complained to Judicial Watch that they had been

compelled to undergo political indoctrination sessions conducted by Samuel Betances of

Souder, Betances, & Assoc. as part of USDA's ongoing "cultural transformation"

campaign. Indeed, usaspending.gov confumed that USDA had paid the firm at least

1 5 U.S.C. 552(a)(6)(A)(i) provides in pertinent part a FOlA requester's right to "appeal to the head of the agency any adverse determination."

2 A PHIS' s January 9, 2013 letter is here attached as Exhibit A.

3 Judicial Watch's May 18, 2012 request for records is here attached as Exhibit B.

425 Third St., SW, Suite 800, Washington, DC 20024 Tel: (202) 646-5172 or 1-888-593-8442 FAX: (202) 646-5199 • Email: info@JudicialWatch.org www.JudicialWatch.org

Analysis

USDA-APHIS

January 18, 2013

$200,000 for "other training services" in the last two years. Hence, to learn more about

any potential partisanship USDA was attempting to foist on its employees, as well as to

uncover how much such "training" was costing the American taxpayer, Judicial Watch

on May 18, 2012 filed a request with the agency seeking all records regarding the same.

Ms. Shirley Boyd acknowledged receipt of the request via email on June 8, 2012.4

One month later, Ms. Carla Camp phoned Judicial Watch seeking an extension of time in

which to fulfill the request at issue, citing the President's Executive Order on Classifying

Information in the Interests of National Security. The bizarre phone call, in which

Judicial Watch declined APHIS's request for an extension of time because of the

irrelevant and illegitimate basis on which it was being asserted, was memorialized in a

July 6, 2012 email. 5

In addition to asking for an extension, Ms. Camp in the July 6, 2012 phone call

committed to producing an initial release no later than the close of business on Mon., July

9, 2012. Despite her unsolic'ited pledge, APHIS issued no responsive documents until

August 30, 2012. 6 That partial release consisted of l 04 improperly redacted pages, as

further explained below.

Then, nine months after the submission of Judicial Watch's request, APHIS

issued a second and final release of responsive records. 7 This release consisted of 54

more pages as well as three discs containing video recordings. Besides being woefully

tardy, this segment of the release was incomplete and improperly redacted, as will be

explained below.

II.

With only a few minor caveats, FOIA directs agencies to release all clearly

described records within twenty (20) days of a request for them. Courts in this

jurisdiction have repeatedly admonished agencies to construe FOIA requests liberally.

4 Ms. Boyd's June 8, 2012 email, and its attachments, are here included as Exhibit C.

5 Judicial Watch's July 6, 2012 email documenting that it had declined APHLS's rrivolous request for an extension of time in which to fulfill the May 18, 2012 FOIA request is here attached as Exhibit D.

6 APIDS's August 30, 2012 Jetter, signed by "Celeste Camp" for FOIA Director Tonya G. Woods, is here attached as Exhibit E.

7 See note 2, supra.

Page 2of8

USDA-APHIS

January 18, 2013

LaCedra v. Exec. Office/or U.S. Attys., 317 F.3d 345, 348 (D.C. Cir. 2003)(further

citation and internal quotation marks omitted). And, by statute, federal agencies must

"make reasonable efforts to search for [requested] records." 5 u.s..c. § 552 (a)(3)(C).

For purposes ofFOIA, "the term 'search' means to review, manu ly or by automated

means, agency records for the purpose of locating those records which are responsive to a

request." 5 U.S.C. § 552 (a)(3)(D). Thanks to the Electronic Freedom oflnformation Act

Amendments of 1996, the law now "promotes electronic database searches and

encourages agencies to expend new efforts in order to comply with the electronic search

requirements of particular FOIA requests." Schladetsch v. US. Dep 't of Housing &

Urban Developm 't, 2000 U.S. Dist. LEXIS 22895 (D.D.C. Apr. 4, 2000)(internal citation

omitted). Ultimately, doubts about the adequacy of a search are resolved in favor of a

requester. Negley v. FBI, 658 F. Supp. 2d 50, 59 (D.D.C. 2009).

In the instant case, it does not suffice for an APHIS staffer to have confirmed to

his or herself that all that was found on the first pass was all there was to see. See

Freeman v. US. Dep't of Justice, 1991 U.S. Dist. LEXIS 19214 (D.D.C. Oct. 16, 1991)

(failure to find documents known to exist deemed unreasonable where search was

abandoned after a few phone calls). Given that APHIS set a goal for itself of getting

2300 employees trained in the material at issue, it is not logical - given the paper deluge

bureaucracies are famous foi: creating - that the ratio of paper to projected attendees is

less than seven pages per 100 employees.

As explained in greater detail below, APHIS in this instance failed to: (1) meet its

statutory deadline, (2) release all responsive records it could have been reasonably

expected to locate within the time it did take to respond to Judicial Watch's request, and

(3) exercise any of FOIA's minor caveats to full disclosure in accordance with the terms

set forth by law.

A. Production Was Unti.mely and Request for Extension Was Baseless

The AP A requires agencies to provide "prompt notice" of their determinations. 5

U.S.C. § 555 (e). An agency's failure to act in accordance with all relevant laws is

reviewable in cowt following exhaustion of any applicable administrative remedies. 5

u.s.c. § 704.

Generally speaking, FOlA requires agencies to disclose public records within 20

days of their request. 5 U.S;C. § 552 (a)(6)(i). Notwithstanding-this statutory mandate,

FOIA also contains a provision that "allows an agency to extend the applicable time

Page 3 of 8

(or working days."

USDA-APIDS

January 18, 2013

limits by providing written notice to the person making the request," so long as the notice "set[s] forth the reasons for such extension and the date on which a determination is expected to be dispatched." Marschner v. Department of State, 470 F. Supp. 196, 198 (D. Conn. 1979)(citing 5 U.S.C. § 552(a)(6)(B)(i)). Moreover, the availability and duration of the extensions themselves are extremely limited "[S]uch extensions only are permissible in unusual circumstances and not more than ·1en Id.

(emphasis added).

In the instant case, FOIA 2012-02657 triggered in APHIS an obligation by June 18, 2012 to produce all records relating to Samuel Betances, his firm Souder, Betances &

Associates, and communications respecting the "cultural transformation" he was paid to bring about. While APHIS did timely acknowledge receipt of Judicial Watch's request, this USDA component did not request an extension of time in which to fulfill on or before its June 18 deadline, which inaction constituted a violation of FOIA as well as the APA. Even assuming APHIS had qualified for an extension under the narrow "unusual circumstances" justification, the agency would only have been entitled to delay until July 2, 2012, which deadline it also missed. Hence, APHIS's tardy notification was outside of time altogether. Although the delay at this point cannot be cured, its illegality justifies compelling the agency to disclose responsive documents immediately as a remedial measure.

J. ExJension request/ailed/or lack of written notice a11d date of dispatch

When APHIS, at last, reached out to Judicial Watch on July 6, 2012 to seek an extension of time in which to fulfill the request at issue, it did so by phone and without proper justification - both in violation of FOIA's written notice procedures. Worse yet, APHIS not only failed to comply with these procedural due process components of FOIA's tardiness provisions, this division of USDA also failed its substantive due process obligations by refusing to provide a date of final dispat h - the sine qua non of extensions under FOIA.

The agency's pledge however hopeful, that it was striving to produce responsive records "as soon as possible'-' hardly constituted a date certain that would satisfy the letter or the spirit of the relevant statute. Marschner, 470 F. Supp. at 198. Moreover, to the extent APHIS blamed "the nature of the records" for indefinitely continuing its delay in disclosing responsive records, said "nature" should have given the relevant division some sense of the consultation required and, by extension, the projected wait involved. And, the preposterous claim APHIS made that it was simply obeying an executive order on

Page 4of8

USDA-APHIS

January 18, 2013

Proper Classification of National Security Information by consulting a diversity contractor for permission on releasing non sensitive records paid for by taxpayers was evidently ludicrous, demanding no further explanation.

Now, putting aside its laughable assertion of a National Security privilege, APHIS can be assumed to simply have been waiting for a less embarrassing or more opportune time to disseminate the information contained in the docwnents requested when it supplied no set schedule for delivery. If this was indeed the case, such a course of action was ill-advised as bad news never improves with age. Moreover, such behavior would fall squarely within what the AP A terms capricious, risking greater public scrutiny and disapproval. If, however, APHIS's oversight in providing a planned production date was reckless rather than sinister, such an omission could be characterized as arbitrary, conduct also barred by the fairness principles codified within the APA.

2. Delay o/236 days in producing 150 pages cannot be excused

Even assuming APHIS had timely and properly effected notice of its intended delay, no provision in FOIA - or any other law - would allow for a 236-day delay in processing such a straightforward request. The delay constitutes an unmitigfl.ted abuse of the public trust Consequently, the Secretary should not allow any stalling irr APHIS's correction of its search and production, which was deficient in ways to be described below.

B. Many responsive records were withheld without any explanation whatsoever

Compounding APHIS's disregard for deadlines is that it has so few docwnents to show for its inordinate delay. The production itself is replete with references to other documents in APHIS's possession that were neither released nor even identified in this

production as having been consciously withheld. Hence, to the extent that evidence suggests the existence of many documents not produced, the agency is liable to have conducted a legally deficient search. See Friends of Blackwater v. U.S. Dep 't of Interior,

391 F. Supp. 2d 115, 121 (D.D.C. 2005).

While an agency's failure to locate responsive documents in it possession is not always an indication of an inadequate search, APHIS's total failure to locate many hundreds of responsive docwnents and all audio and video recordings is the direct result ofAPHIS's half-hearted search, as made evident by numerous references within the

production to other APHIS-generated documents and videos not here produced. Obviously a decision to conduct a half-hearted search is tantamount to crafting an

Page 5of8

·,,

USDA-APHIS

January 18, 2013

unreasonable search within the meaning ofFOIA because it is destined to fail. See, e.g.,

Davis v. US Dep 't ofJustice., 2007 U.S. Dist. LEXIS 88374 (D.D.C. Dec. 3, 2007) (agency search was "unreasonably limited in scope and destined to fail'' where, even in pursuing "three separate avenues of inquiry, none of them had any likelihood" of success). By extension, APHIS's election not to pursue obvious clues within the production as to the existence of additjonal records led to an unlawful withholding within the meaning ofFOIA that must be reversed as further explained below.

For example, APHIS 's production contains a video recording of one training session. In the session, the trainer alludes to tape recordings of the many other sessions he provided to APHIS under contract. Reinforcing the fact that there are other tape recordings of 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 traip.ing in five sessions at Riverdale and four each in Raleigh,

Fort Collins, and Minneapolis. Furthermore, Dr. Betances and his invoices refer to additional sessions at Plum Island and in Ames, Iowa. Notwithstanding all of these many representations, APHIS only. provided video recordings of one session and, because it is edited, it is unclear when or where the depicted session took place. Additionally, because the video is edited for playback to a training audience, many parts of that audiovisual record were excised, in violation ofFOIA. Not one clip of an outside contractor's presentation to a roomful of government employees can justifiably be omitted under any exemption listed in FOIA.

In addition to the many audiovisual records withheld, there were many paper records APHIS failed to identify and release in this production. Among those not identified or released were records of costs associated with creating all videotapes of Dr. Betances' presentations which were discussed at the planning stages within the documents released and were alluded to by Dr. Betances himself on camera. Hence, it is clear that such records exist. And, because ·they are responsive to the request for all records stemming from the training, they must be located and released at once.

Also withheld were all travel records associated with moving Dr. Betances and the class attendees to and from the training locations. Since all transportation, per diem, and expense records were requested, these need to be produced as well. Finally, all record of book purchases alluded to in the surveys and throughout the feedback emails must also be produced to the extent they were funded by APHIS in whole or in part.

Page6 of8

USDA-APHIS

January 18, 2013

So, as APHIS proceeds with an actual search, it is reminded that "an agency is obliged to pursue any clear and certain lead it cannot in good faith ignore." Cooper v.

U.S. Dep 't of Justice, 2004 U.S. App. LEXIS 8135 (D.C. Cir. Apr. 23, 2004)(further citation and internal quotation marks omitted). To that end, while "the agency generally need not search every record system .... an agency cannot limit its search to only one record system if there are others that are likely to tum up the information requested." Campbell v. U.S. Dep't ofJustice, 164 F.3d 20, 28 (D.C. Cir. 199S)(citing Oglesby v.

US. Dep 't of the Army, 9 20 F.2d 57 (D.C. Cir. 1990))(intemal quotation marks omitted). Ultimately, the adequacy of APHIS's search for documents responsive to Judicial Watch's request will be judged "based on what the agency knew .at its conclusion rather than what the agency speculated at its inception." Campbell, 164 F.3d at 28.

Failure to identify and release any of the above-referenced docwnents and recordings without any express justification is an egregious violation ofFOIA which the Secretary should not pennit to stand unabated.

C. Conclusory redactions were improperly applied, requiring reversal

The last issue requiring the Secretary's correction is the abusive application of (b)(6) to conceal the identity of purchasing officers obligating upwards:of$120,000 of taxpayer funds. APHIS consistently blocked out signatures of all contract approving officers that appeared throughout the production.

Judicial Watch does not challenge the redaction of signatures where the name of the contracting officer is clearly identified by alternate means (typewritten in the box above). However, to the extent a purchasing officer failed to follow the instructions on the form and omitted his or her printed name from the appropriate box, it i's of paramount public interest to the American people to know who authorized the tens of thousands of dollars paid to Dr. Betances and his crew. Unfortunately for the purchasing officer who failed to follow the form's instructions, the public interest in government expenditures has been heightened in the wake of the recent GSA and Secret Service scandals, causing the interest in a pW'chasing officer's identity to override any privacy interest in the official's signature.

Importantly, (b)( 6) does not protect all privacy, only clearly unwarranted invasions therefrom. This disclosure demanded here is not only warranted but vital to the very

oversight function which is FOIA's central pwpose. For this reas1;m, Judicial Watch demands that the Secretary cause the pertinent information to be restored at once, giving

Page 7of8

Request

USDA-APHIS

January 18, 2013

a face to the spending choices reflected in the production.

III. for Relief

Hence, as APHIS' s search and production fell far short of what FOIA requires in

withholding public records and in justifying the decision to do so,8 Judicial Watch hereby requests that the Secretary compel APHIS at once to:

A. Craft a search likely to locate all responsive records; B. Promptly execute that search in a reasonable manner, including pursuit

of any logical leads; C. Conduct a segregability analysis in order to redact only those portions

of responsive documents shown to be exempt from compulsory

disclosure; D. Redact responsive records in a manner that indicates the amount of

material withheld at the site of the redaction, citing the precise basis

for withholding;

E. Release all responsive documents or, in narrow instances, supply

particularized justification for continuing to withhold whatever

specific portions the bureau can establish are exempt from APHIS's

overarching duty to disclose.

Additionally, Judicial Watch anticipates receipt of the renewed production at no

further expense to itself in accordance with 5 U.S.C. §§ 552 (a)(6)(A)(i) and (a)(4)(A)(viii).9 Thank you 1n advance for your thoughtful consideration of this appeal.

Respectfully,

Senior Investigator

8 An agency claiming to have performed an adequate search must establish that fact beyond all material doubt. Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325-326 (D.C. Cir. 1999)(citing Truitt v. Dep 't ofState, 897 F.2d 540, 542 (D.C. Cir. 1990) and Weisberg v. US. Dep't o,f.Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)).

9 5 U.S.C. § 552 (a)(6)(A)(i) provides for determination ofa FOIA request within 20 days and 5 U.S.C. § 552 (a)( 4)(A)(viii) provides for the waiver of all fees if the requested documents are not timely produced.

Page 8of8

Exhibit A

United States Department ofAgriculture

Animal and Plant Health Inspection Service

Legislative and Public Affairs

Freedom of Information

4700 River Road Unit 50 Riverdale, MD 20737-1232

January 9, 2013

Lisette Garcia, J.D. Senior Investigator 425 Third St., SW, Ste. 800 Washington, DC 20024

Dear Ms. Garcia:

This is our final response to your May 18, 2012, Freedom of Information Act (FOIA) request (enclosed). Your request was received in this office on June 7, 2012, and assigned case number FOIA 2012-02657. We apologize for the delay of this response.

Agency employees conducted a thorough search of their files and located 54 pages of documents and three video DVDs which are responsive to your request. However, information has been withheld under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). This exemption protects information from disclosure when its release would cause a clearly unwarranted invasion of personal privacy and where such privacy interest outweigh any public interest which would be advanced by the disclosure of any signatures contained within the records. From the responsive documents, we have withheld all signatures.

As a threshold matter, Exemption (b)(6) protects not only personnel files and medical files, but “similar” files, which are interpreted by courts to cover personal information pertaining to individuals. In this case, the information protected pertains to a third party individual and is contained in a “similar” file. In order to determine whether a document may be withheld under Exemption 6, an agency must undertake a three-step analysis. First, the agency must determine whether a significant privacy interest would be compromised by the disclosure of the record. Second, the agency must determine whether the release of the document would further the public interest by shedding light on the operations and activities of the Government. Third, the agency must balance the identified privacy interests against the public interest in disclosure. Therefore, we have determined that the privacy interests of the individuals identified, outweighs any minimal public interest in their identities, and the information has been withheld.

You may appeal our partial denial determination. If you choose to appeal, your appeal must be in writing and must be received within 45 days of the date of this letter. Please send to:

Administrator Animal and Plant Health Inspection Service

Ag Box 3401 Washington, D.C. 20250-3401

Safeguarding American Agriculture APHIS is an agency of USDA’s Marketing and Regulatory Programs

An Equal Opportunity Provider and Employer

Lisette Garcia, J.D 2 FOIA 02657

Exhibit A

If you choose to appeal, please refer to FOIA 12-02657 in your appeal letter and add the words “FOIA Appeal” to the front of the envelope. To assist the Administrator in reviewing your appeal, please provide specific reasons why you believe modification of the determination is warranted.

Because the cost to process your request is less than $25.00, the fee has been waived. If you have any questions, please contact Ms. Sophie Lau-Lopez of my staff at (301) 851-4083.

Sincerely,

RSheppard signed for

Tonya G. Woods Director Freedom of Information & Privacy Act Legislative and Public Affairs

Enclosures

PAGE 02/0405/17/2012 23:58 2026466190

Exhibit B

Judicial 12-026·5;7Watcli IP .l~ecau.~e no one is abm1e tile lcwJ!

May 18~ 2012

VIA CER1' MAlL & FAX: (20.2) 690~3767

FOTA ChiefTxina Porter U.S. Department of Agriculture 355 E St.j S.W., 10111 rtoor ·Washington, D.C. 20024

Re: FOIA Seel .

Deal' Ms'"Porter:

Pursuant to the Freedom ofinfonnati.on Act (FOIA), 5 U 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: ,

1) All contracts and expense reco1·ds related to tl'aining r servic~s provided by Sarmlel Betan.ccs or his finn, Souder, Betances & As~oci.ates, pf Chicago~ Tll.;

2) All comm1.mications related to training and services Jrovided by Samuel Beta.nces or his firm, Souderj Betances & Associates, ofChica 0} m.; I

3) All records and email ftom the offices of 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 or this request, the term "reco:rds" lticlubcs any ~ideo and/or audio recordin&s of training or P.!.~entations provided or f1 cUitated! ~ances or his firm. The time f1·amc for this reqt'iest is January 1, 2Q1 O,i through the present.

1n placing this request, Judici~;~.l Watch calls your attenti( n to Pre~ideut Barack Obama's January 21,2009 Metnorandum concemittg the Fr edom ortTnformation. Act

which states: · l AU agencies should adopt a presum.ptton i11 f: vor of disclosure; \11 orcter to renew tbeit· commitme t to the pr.iJ1ciples embodied in FOIA. .. The presumption of . disclosure should be applied to all decisions involving FOTA. .

-~----------~·---------~~.......1-425 Third St., SW, S\1he 800, Wa~hingtcm, DC 20024 ·rei: (202) 6~6-S1.7~ or 1-HH8·593-8442

f"AX; {202) 646"5199 limail: info@JudicialWatch.org {vww.JudiqialWatch.org

05/17/2012 23:58 2026460190 PAGE 03/04 Exhibit B

USDA May 18, 2012

Freedom of!nformatim1 Act. Pres. Me1n. of January 21, 20oc, 74 Fed.: Reg. 4683.

The men1o fi.u-ther provides that "The Freedom of lnf1rmation 1Act should be administered with a clear presumption: In the case of doubt, ~pennessiprevails.),

Nevertheless, jf any responsive record or portion thertof is cla~med to be exempt fi:om production under FOIA, please provide sufficient ide11ffying iu(ormatio11 with

·respect to each allegedly exempt .record or portion thereof to allow us 'to as$ess the propriety oftlte claimed exemption. Vmtghn v. Roser1! 484 F 2d 820 (D.C. Cir. 1973), cert; denied, 415 U.S. 977 (1974). In addition, any reasonah y segregable porti.Ott ofa t-espon.sive record must be provided, after redaction of ~m.y allegedly ~xempt 111aterial. 5 u.s.c. § 552(b). '

Judicial Watch also hereby requests a waiver of both seru·ch and duplication fees pursuant to 5 U.S.C. §§ 552(a)(4)(A)(ii)(II) and (a)(4)(A)(iii . Judicial Watch is et'ltitled to a waiver of search fees un~er 5 U.S.C. § 552(a)(4)(A)(ii)(. I) because it is a member of the news media. Cj. National Security Archive v. Departmen~ ofDafehse, 880 F.2d 1381, 1387 (D.C. Cir. 1989)(defining news media within FOIA cobtext). Judicial Watch has also been recognized as a member of the news m.edia in oth~t FOIA litigation. See, e.g., Judicial Watch, Inc. v. U.S. Department of.Justice, 133 F. Supp.2d 52 (D.D.C. 2000); and, Judfcial Watch, Inc. v. Department o.f'DejeJ'ISfJ) 2006 U.S. Dist. I,EXIS 44003, *1 (D.D;c. June 28, 2006). Judicial Watch regularly obtains i~uormatio* about the ope1'ations and activities of government tht·ol.Igh FOIA and ther means~ uses its editorial skills to tum this informatio11 into di.stlnct works, and publisl es and disseminates these works to the public. It intends to do likewise with the recordh it 1'ecei,;,es in response to this request. 1 ' ·

Judicial Watch also is entitled to a complete waiver fbotb s~arch fees and duplication fees pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). U1~det· this provision, records:

· shall be furnished without atiY charge or. at a hhar~e ; reduced below the fees established under claJse (H) if disclosure ofthe infonn.alion is in the publiclnterest because it is likely to contribute significantly to public. understanding ofthe operations Qr activities f government and is not primarily in the commercial intere, t ofthe requester.

5 U.S.C. § 552(a)(4)(A)(lii).

[n addition, ifrecm·ds are not p1'oduced within twent (20) bu~iness days, Judicial Watch is entitled to a complet~ waiver of search a.tld duplication. fees: unde1' Section 6(b) of the OPEN Govel'.nment Act of2007, which amended :FOIA at S u.s.c. § 552 (a)(4)(A)(viii).

Pngc 2 of3

05/17/2012 23:58 2026460190 JUDICIAL ..,.L PAGE 04/84 Exhibit B

USDA

May 18,2012 i

I

I I !

Judicial Watch is a 50l(c)(3)~ not·fm·~protit, educatio l organization, and) by definition, it has 110 commercial purpose. Judicial Watc.h exi~ts to edu~te the public about the opemtions attd activities ofgovernment> as well as . increa* public understanding about the importance of ethics and the rule of1 w in govemment. The particular records requested herein are sought as pal't of Judicial Watcli's ongoing efforts to document the operations attd activities ofthe federal goverhme'pt at~~ to edttcate the public about these operations and activities. Once Judicial W~ch'obtains the t·equested records, it intends to analyze thern and disseminate the 1'esult of its an~.lysis, as well as the recot·ds themselves, as a special written report. Jndicia[ atch Willi also educate the public via radio programs, Judicial Watch's website1 attd/or n wslette1;~ among other

, outlets. It also will make the records av~Hable to other mem~ers ofthci: media or researchets~pon request. Judicial Watch has a pt·ovcn abillt to dissethinate h'formation obta5Jied through FOIA to the public, as demonstrated by its l ng·strui~ing and contitming public outreach efforts. j ·

Given these circun1stances, Judicial Watch is entitled o a public interest fee waiver of both search costs and duplication costs. Nonethelek in the event our reqnest for a waiver. of search and/or duplication costs is denied, Juditial Watd.h is willing to pay up to $350.00 in search and/or dupH.cation costs. Judici~.l W~~ch requests that it be contacted before any such costs ate incurred, in order to priontize sear9h and duplication efforts. l :· ;

In an effo1·t to facilitate record production within the s tu~ory dme limit, Judicial Watch is wUUng to accept doc1.tments in electronic format (e.~. e~mail.' .pdfs). When necessary, Judicial Watch wUl also accept the "rolling produdtion" ofdocuments. Judicial Watch anticipates prompt receipt of the requested do uments *nd a waiver of 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

Page 3 of3

Exhibit C

Exhibit C

Exhibit C

Exhibit C

Exhibit C

Exhibit C

Exhibit C

Exhibit C

Exhibit C

Exhibit C

Exhibit D

Exhibit D

Exhibit E

Exhibit E