UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 19-2372 (TJK)

TELEMATCH, INC.,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF 

AGRICULTURE,

Defendant.

MEMORANDUM OPINION

Telematch, Inc. (d/b/a Farm Market iD) (“FMID”), collects, maintains, and analyzes 

agricultural data from various sources, including the federal government. It has regularly 

submitted FOIA requests for USDA records for over a decade. From December 2018 to March 

2019, FMID submitted seven FOIA requests to USDA for specific records. These seven requests 

sought records that include what USDA calls “Farm Numbers,” “Tract Numbers,” and 

“Customer Numbers.” USDA’s FOIA office denied those requests either in part or in full. Not 

satisfied with the documents USDA did provide, FMID administratively appealed, but that 

process blew past FOIA’s statutory deadlines. So FMID sued in this Court. FMID seeks release 

of the remaining records they requested, as well as relief from USDA’s alleged policy of 

delaying its processing of FOIA requests. FMID also alleges that a now-superseded USDA 

FOIA regulation contradicts the FOIA statute and is arbitrary and capricious under the 

Administrative Procedure Act. The parties have cross-moved for summary judgment. For the 

reasons explained below, including that the records at issue are exempt from disclosure, the 

Court will grant USDA’s motion and deny FMID’s.
2

Background

A. The Records at Issue

Although FMID’s requests, detailed below, encompass various types of files maintained 

by the Department of Agriculture (USDA), the dispute between the parties—at least as to the 

question of whether USDA has improperly withheld any records—boils down to its treatment of 

Farm Numbers, Tract Numbers, and Customer Numbers. USDA creates Farm Numbers and 

Tract Numbers and assigns them to land enrolled in USDA programs. ECF No. 9-2 (“Pl.’s Stmt. 

Facts”) ¶ 5; ECF No. 13-2 (“Def.’s Stmt. Facts”) ¶ 22. As part of its internal operations, USDA 

creates a map of enrolled land that outlines farm or ranch boundaries with acreage figures. 

Def.’s Stmt. Facts ¶ 23. USDA then creates digitally drawn polygons on aerial photos or maps 

to depict these boundaries. Id. Farm and Tract Numbers correspond to these polygons. Id. The 

Farm Number refers to the entire farm, and Tract numbers refer to the tract units of contiguous 

land within that farm. Id. 

USDA uses Farm and Tract Numbers in various ways. USDA may use the numbers, for 

example, to identify the number of acres planted with a particular crop in a farm program. Id. 

¶ 24. For other programs, USDA may use the numbers to identify the location of conservation 

practices or geographical features. Id.

Customer Numbers are unique identifiers USDA assigns to individuals or entities in 

USDA databases. Id. ¶ 37; Pl.’s Stmt. Facts ¶ 5. USDA uses the numbers to identify program 

participants and to help provide and administer farm loans, crop insurance, and disaster 

assistance compensation. Pl.’s Stmt. Facts ¶ 5. A Customer Number, like Farm and Tract 

Numbers, can be used to connect other USDA data. Id. ¶¶ 5–6; Def.’s Stmt. Facts ¶¶ 27, 34.
3

B. Plaintiff’s FOIA Requests

1. Request 2019-FSA-01467-F

FMID submitted FOIA request 2019-01467-F in December 2018 for two Farm 

Reconstitution data files consisting of Farm Numbers and Customer Numbers, as well as state 

and county codes. Def.’s Stmt. Facts ¶¶ 1–3; ECF No. 13-3 (“Buchan Decl.”), Ex. 4. A 

reconstitution occurs when a farm or tract is either divided or combined with another farm or 

tract. Def.’s Stmt. Facts ¶ 2. Farm Reconstitution data files show which farms or tracts 

underwent reconstitution and provide information on the newly constituted farms or tracts. Id.; 

Pl.’s Stmt. Facts ¶ 16.

In March 2019, USDA provided the statistical version of the file that contained the State 

Code, County Code, Reconstitution Date, and Reconstitution Type. Def.’s Stmt. Facts ¶ 3. But 

USDA withheld the Parent Farm Number, Resulting Farm Number, Customer Number, and 

Resulting Customer Number as exempt under FOIA Exemptions 3 and 6. Id.

2. Request 2019-FSA-01492-F

FMID submitted FOIA request 2019-FSA-01492-F in December 2018. Def.’s Stmt. 

Facts ¶ 4. The request sought the 2018 Conservation Reserve Program (CRP) Active Contract 

Names and Addresses file. Id.; Buchan Decl., Exs. 6, 7. In March 2019, citing FOIA 

Exemptions 3 and 6, USDA provided a statistical file with no matching name and address 

information. Def.’s Stmt. Facts ¶ 5. USDA also provided Name, Address, and actual CRP 

Payment amount information. Id. ¶ 6; Buchan Decl., Exs. 6. 

3. Request 2019-FSA-01497-F

FMID submitted FOIA request 2019-FSA-01497-F in December 2018 for the Business 

Party Share File. Def.’s Stmt. Facts ¶ 7. The Business Party Share File shows all business 
4

relationships within a farming operation by linking Parent and Member Tax-ID or Core 

Customer ID, which are distinct from Customer Numbers. Id. ¶¶ 8, 37–38.

In March 2019, USDA instead provided the Business Party Statistical Share File. Id. ¶ 9. 

The Statistical file does not include Parent Customer Number and Member Customer Numbers. 

Pl.’s Stmt. Facts ¶ 43. USDA did not explain its decision to provide the statistical file rather than 

the requested file. Id. ¶ 45. 

4. Request 2019-FSA-01539-F

FMID submitted FOIA request 2019-FSA-01539-F for the 2018 Direct and 

Countercyclical Payment Program (DCP) Tract Crop File in December 2018. Id. ¶ 46. The DCP 

Tract Crop File, which USDA now calls the Farm Tract File, contains records that include Farm 

Numbers and Tract Numbers. Id. ¶ 47–48; Def.’s Stmt. Facts ¶ 11. In April 2019, citing 7 

U.S.C. § 8791 (“Section 8791”), USDA instead provided the Farm Tract Crop Statistical File, 

which does not include Farm and Tract Numbers. Def.’s Stmt. Facts ¶ 12; Buchan Decl., Ex. 11.

5. Request 2019-FSA-01562-F

FMID submitted FOIA request 2019-FSA-01562-F for the 2018 Agricultural Risk 

Coverage (ARC) and Price Loss Coverage (PLC) Program Election files, including all 

constituent data elements, in December 2018. Pl.’s Stmt. Facts ¶ 56. This file contains State 

Code, County Code, Customer Number, Farm Number, Crop Name and Program Election data. 

Def.’s Stmt. Facts ¶ 14. The file shows how each producer elected to enroll their land in specific 

programs. Id.

In March 2019, USDA responded by noting that it identified two responsive records, the 

“Name and Address” and “Crop Election” Files. Buchan Decl., Ex. 13. The Name and Address 

File contains the State Code, County Code, and Customer Number fields. Buchan Decl. Ex. 13. 

The Crop Election File contains the State Code, County Code, Customer Number, Farm Number, 
5

Crop Code, and Program Election fields. Id. USDA withheld both files, citing FOIA 

Exemptions 3 and 6, but asked whether it could meet FMID’s needs by providing the statistical 

version of the Crop Election File, which does not include Customer Numbers or Farm Numbers. 

Id. USDA instructed FMID to contact it immediately should the Statistical file meet FMID’s 

needs and committed to reopen the FOIA request and process it. Id. There is no Statistical 

version of the Name and Address File. Id.

6. Request 2019-FPAC-BC-03020-F

FMID submitted FOIA request 2019-FPAC-BC-03020-F for the 2018 Farm Producer 

File including the State and County Codes, Status Code, FSA Customer Number, Farm Number, 

and the Reconstitution Pending Indicator in March 2019. Def.’s Stmt. Facts ¶ 16. On March 28, 

2019, USDA noted that FMID had already requested the 2018 Farm Producer File and that the 

agency had provided the 2018 Farm Producer Statistical File, which included the State and 

County Codes, Status Code, and the Reconstitution Pending Indicator. Buchan Decl., Ex. 15. 

USDA continued to withhold the FSA Customer Numbers and Farm Numbers in full, citing 

FOIA Exemptions 3 and 6. Id. 

7. Request 2019-FPAC-BC-03064-F

FMID submitted FOIA request 2019-FPAC-BC-03064-F in March 2019 for 2018 

Compliance Data, including State and County Codes, Status Code, Farm Number, Tract Number, 

Field Number, Subfield Number, Planting Period Code, Crop Field Determined Quantity, 

Determined Acreage Indicator, Official Measurement Code, Certification Date, Plant Pattern 

Type Code, Concurrent Planting Code, Disapprove Acre Indicator, Perennial Crop Year Expired, 

NAP Unit number, Creation Date, and Last Changed Date information. Def.’s Stmt. Facts ¶ 19. 
6

In April 2019, USDA provided the 2018 Compliance Data Statistical File which did not 

include the Farm Number, Tract Number, or Subfield Number, citing Exemption 6 and 

Section 8791. Id. ¶ 21.

C. Procedural History

FMID administratively appealed all seven FOIA requests in May 2019. Pl.’s Stmt. Facts

¶ 100. Throughout the summer, FMID sought status updates on its pending appeals. Id. ¶¶ 106–

110. Unsatisfied with USDA’s response to FMID’s inquiries, and because USDA had not 

adjudicated FMID’s appeal, FMID sued in August 2019. Id. ¶ 112.

FMID alleges three counts. In Count I, FMID alleges USDA violated FOIA by 

unlawfully withholding Customer Numbers, Farm Numbers, Tract Numbers, and all 

associational data between those data figures. ECF No. 1 (“Compl.”) ¶¶ 64–69. In Count II, 

FMID alleges USDA is violating FOIA by following an unlawful policy or practice of 

systematically failing to adhere to FOIA deadlines. Id. ¶¶ 70–75. In Count III, FMID alleges 

USDA violated the Administrative Procedure Act (APA) by promulgating an earlier version of 7 

C.F.R. § 1.14(a). Id. ¶¶ 76–84.

Pending before the Court are cross-motions for summary judgment. ECF No. 9-1 (“Pl.’s 

MSJ Br.”); ECF No. 13 (“Def.’s MSJ Br.”); ECF No. 14 (“Def.’s Opp’n”); ECF No. 15 (“Pl.’s 

Reply”); ECF No. 16 (“Pl.’s Opp’n”); ECF No. 20 (“Def.’s Reply”). FMID argues that USDA 

improperly invoked Exemptions 3 and 6 to withhold the information at issue. In FMID’s view, 

Section 8791, the statute USDA cites to invoke Exemption 3, does not apply because USDA—

not agricultural producers or owners—creates the Customer, Farm, and Tract Numbers. Pl.’s 

MSJ Br. at 12–14. Moreover, according to FMID, Section 8791 does not apply because the 

requested data are not “geospatial information” precluded from disclosure by law. Id. at 14–20. 

As for Exemption 6, FMID contends that the requested records are not covered under the 
7

exemption because they are not “similar” files to medical or personnel files, there is no 

substantial privacy interest at stake, and the public interest in obtaining the requested information 

outweighs any purported privacy concerns. Id. at 20–29. FMID also alleges that USDA delays 

responding to FOIA requests and in adjudicating FOIA appeals, and that this shows that the 

agency has a policy or practice of disregarding FOIA deadlines. Id. at 32. And as for FMID’s 

APA challenge, the parties now agree that FMID has suffered no injury from the regulation

because USDA is not asserting failure to exhaust administrative remedies as a defense to this 

lawsuit. Pl.’s Opp’n at 25; Def.’s Reply at 8. In response to FMID’s exemption and policy or 

practice arguments, USDA asserts that it properly invoked Exemptions 3 and 6 and that it has no 

policy or practice of violating FOIA’s timeliness requirements. Def.’s MSJ Br. at 5–14.

Legal Standard

“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. 

Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). “Summary judgment is 

appropriately granted when, viewing the evidence in the light most favorable to the non-movants 

and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in 

their favor.” Lopez v. Council on Am.–Islamic Relations Action Network, Inc., 826 F.3d 492, 

496 (D.C. Cir. 2016). “The evidence presented must show ‘that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. 

R. Civ. P. 56(a)).

In this district, a party opposing summary judgment must accompany its opposition with 

“a separate concise statement of genuine issues.” LCvR 7(h)(1). “In determining a motion for 

summary judgment, the Court may assume that facts identified by the moving party in its 

statement of material facts are admitted, unless such a fact is controverted in the statement of 

genuine issues filed in opposition to the motion.” Id. “Requiring strict compliance with the local 
8

rule is justified both by the nature of summary judgment and by the rule’s purposes.” Jackson v. 

Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150–51 (D.C. Cir. 1996) 

(citation omitted). FMID did not attach a separate statement of genuine issues to its opposition 

to USDA’s motion for summary judgment. The Court therefore assumes FMID admits the facts 

as stated in USDA’s statement of material facts.

Analysis

A. USDA’s Withholding of Farm and Tract Numbers under FOIA Exemption 3 

and Customer Numbers under Exemption 6 (Count I)

Congress enacted FOIA “to facilitate public access to Government documents.” U.S. 

Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). The statute was “designed to ‘pierce the veil of 

administrative secrecy and to open agency action to the light of public scrutiny.’” Id. (quoting 

Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). “FOIA ‘mandates that an agency 

disclose records on request, unless they fall within one of nine exemptions.’” Elec. Privacy Info. 

Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (quoting Milner v. 

Dep’t of Navy, 562 U.S. 562, 565 (2011)). A court applying FOIA “must bear in mind that 

FOIA mandates a ‘strong presumption in favor of disclosure.’” Nat’l Ass’n of Home Builders v. 

Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Ray, 502 U.S. at 173). Thus, the FOIA 

exemptions must be “narrowly construed.” Rose, 425 U.S. at 361.

The agency has the burden to justify its withholding of any documents. Ray, 502 U.S. at

173. “The agency may carry that burden by submitting affidavits that ‘describe the justifications 

for nondisclosure with reasonably specific detail, demonstrate that the information withheld 

logically falls within the claimed exemption, and are not controverted by either contrary 

evidence in the record nor by evidence of agency bad faith.’” Citizens for Responsibility & 
9

Ethics in Washington (CREW) v. U.S. Dep’t of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014) 

(quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). 

1. Farm and Tract Numbers – Exemption 3

FOIA’s Exemption 3 exempts records that are “specifically exempted from disclosure by 

statute” if, relevant here, the statute “requires that the matters be withheld from the public in such 

a manner as to leave no discretion on the issue.” 5 U.S.C. § 552(b)(3)(A)(i). In applying 

Exemption 3, a court first determines whether the statute is a “statute of exemption as 

contemplated by exemption 3” and, second, whether “the withheld material satisf[ies] the criteria 

of the exemption statute.” Fitzgibbon v. C.I.A., 911 F.2d 755, 761 (D.C. Cir. 1990) (citing C.I.A. 

v. Sims, 471 U.S. 159, 167 (1985)).

USDA points to Section 8791 as an applicable withholding statute. That provision states 

that “the Secretary, any officer or employee of the Department of Agriculture, or any contractor 

or cooperator of the Department, shall not disclose (A) information provided by an agricultural 

producer or owner of agricultural land concerning the agricultural operation, farming or 

conservation practices, or the land itself, in order to participate in programs of the Department; 

or (B) geospatial information otherwise maintained by the Secretary about agricultural land or 

operations for which information described in subparagraph (A) is provided.” 7 U.S.C. 

§ 8791(b)(2)(A), (B). The Court agrees that, based on “the language of the statute on its face,”

Section 8791 is a withholding statute, a point FMID does not contest. Zanoni v. U.S. Dep’t of 

Agric., 605 F. Supp. 2d 230, 236 (D.D.C. 2009); Pl.’s MSJ Br. at 10. See also Central Platte 

Nat. Res. Dist. v. U.S. Dep’t of Agric., 643 F.3d 1142, 1147–48 (8th Cir. 2011) (holding same). 

The remaining issue under Exemption 3 is whether the requested information falls within the 

scope of either Subparagraph (A) or (B).
10

As explained below, the Court holds that Farm and Tract Numbers constitute “geospatial 

information otherwise maintained by the Secretary about agricultural land or operations” and that 

therefore, under Subparagraph (B), they are prohibited from disclosure.1 7 U.S.C. 

§ 8791(b)(2)(B). 

Section 8791 does not define “geospatial information.” “In the absence of an express 

definition, [a court] must give a term its ordinary meaning.” Petit v. U.S. Dep’t of Educ., 675 

F.3d 769, 781 (D.C. Cir. 2012). And courts look to the ordinary meaning of a statute “at the time 

Congress enacted the statute.” Wisc. Cent. Ltd. v. U.S., 138 S. Ct. 2067, 2070 (2018) (quoting 

Perrin v. United States, 444 U.S. 37, 42 (1979)). While general-usage dictionaries “cannot 

invariably control [ ] consideration of statutory language,” they are a good place to start. Am. 

Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 796 F.3d 18, 25 (D.C. Cir. 2015); see 

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566–67 (2012) (looking first to dictionaries to 

determine ordinary meaning). Congress included Section 8791 in the Food, Conservation, and 

Energy Act of 2008, Pub. L. 110-234, 122 Stat. 923 (2008), so the Court looks to dictionaries 

from around that time. One defines “geospatial” as “relating to or denoting data that is

associated with a particular location.” New Oxford American Dictionary 727 (3d ed. 2010). 

Another defines the term as “[o]f or relating to analysis of geographical data from multiple 

sources and technologies, using statistical methods and often resulting in computer visualization 

of locations under study.” New American Dictionary 736 (5th ed. 2011).

 

1 Thus, the Court need not reach the question of whether Subparagraph (A) provides a 

justification for withholding the Farm and Tract Numbers. The Court is skeptical that it does. 

As FMID points out, Farm and Tract Numbers are not information provided by agricultural 

producers or owners of agricultural land, as required by the statute. Pl.’s Opp’n at 6.
11

FMID suggests other definitions, as well. It identifies 2008 supplemental guidance to 

OMB Circular A-16 (2002) that defines “geospatial information” as “[i]nformation concerning 

phenomena implicitly or explicitly associated with a location relative to the Earth’s surface.” 

Pl.’s MSJ Br. at 18–19 (citing Federal Enterprise Architecture Geospatial Profile, ver. 2, 

appendix B (Glossary of terms) (2008)); see also Federal Geographic Data Committee, Lexicon 

of Geospatial Terminology, fgdc.gov/policyandplanning/a-16/lexicon-of-geospatial-terminology 

(last visited Oct. 22, 2020) (citing same). The same document defines “geospatial data” as 

“[d]ata with implicit or explicit reference to a location relative to the Earth’s surface; Spatial data 

are geographically referenced features that are described by geographic positions and attributes 

in an analog or computer-readable (digital) form.” Pl.’s MSJ Br. at 18–19 (citing Federal 

Enterprise Architecture Geospatial Profile, ver. 2, appendix B (Glossary of terms) (2008)); see 

also Federal Geographic Data Committee, Lexicon of Geospatial Terminology, 

fgdc.gov/policyandplanning/a-16/lexicon-of-geospatial-terminology (last visited Oct. 22, 2020) 

(citing same).

FMID also argues that a 2008 USDA memorandum restricted the definition of 

“geospatial information” to “photographs when they contain, or are associated with, other data 

depicting or identifying attributes of the land, such as common land unit boundaries, but it does 

not include aerial photographs themselves.” Pl.’s MSJ Br. at 17–18. But FMID failed to quote 

the first part of the sentence at issue, which specifies that geospatial information only “includes” 

the above-described information. See Mem. from Boyd K. Rutherford, Ass’t Sec’y for Admin., 

USDA, to Agency FOIA Officers (July 30, 2008), available at 

https://www.dm.usda.gov/foia/2008FCEA_Section1619.pdf. Thus, the 2008 memorandum only 
12

shows that the agency interpreted “geospatial information” to exclude aerial photographs, 

standing alone.

2

In the end, the contemporary dictionary definitions and OMB supplemental guidance all 

teach that “geospatial information” is a broad term that includes information referring to a 

specific physical location on Earth. Indeed, the parties do not propose definitions to the contrary. 

See Pl.’s MSJ Br. at 20 (term “must include data or information that is linked with or mapped to 

a specific geographic location”); Def.’s MSJ Br. at 10–11 (reciting Geospatial Data Act of 2018 

definition). And the handful of cases to interpret the term in the context of Section 8791 are in 

accord. See, e.g., Ctr. For Biological Diversity v. U.S. Dep’t of Agric., 626 F.3d 1113, 1116 (9th 

Cir. 2010) (term includes GPS coordinates); Audubon Soc. Of Portland v. U.S. Natural Res. 

Conservation Serv., 841 F. Supp. 2d 1182, 1187–88 (D. Or. 2012) (term includes GPS 

coordinates, annotated maps, and aerial photographs). 

 

2 FMID also cites two other statutes that define “geospatial information.” The organic act for the 

National Geospatial-Intelligence Agency—also cited by USDA—defines the term as 

“[i]nformation that identifies the geographic location and characteristics of natural or constructed 

features and boundaries on the earth and includes (A) statistical data and information derived 

from, among other things, remote sensing, mapping, and surveying technologies; and (B) 

mapping, charting, geodetic data, and related products.” 10 U.S.C. § 467(4). The second statute, 

the Geospatial Data Act of 2018, 43 U.S.C. § 2801 et seq., defines “geospatial data” as (A) 

“information that is tied to a location on the Earth, including by identifying the geographic 

location and characteristics of natural or constructed features and boundaries on the Earth, and 

that is generally represented in vector datasets by points, lines, polygons, or other complex 

geographic features or phenomena; (B) may be derived from, among other things, remote 

sensing, mapping, and surveying technologies; (C) includes images and raster datasets, aerial 

photographs, and other forms of geospatial data or datasets in digitized or non-digitized form; 

and (D) does not include [certain Indian tribe and national security data].” 43 U.S.C. § 2801. 

While those definitions define the term for the purposes of their respective chapters, see id.

(limiting definition to Tit. 43 ch. 46); 10 U.S.C. § 467 (limiting definition to Tit. 10 ch. 22), they 

are not authoritative definitions for the term as used in Section 8791. See United States v. EGold, Ltd., 550 F. Supp. 2d 82, 92 (D.D.C. 2008) (“[I]f a word is defined to mean something 

particular ‘in this section,’ then it will be given that definition only in that section.”) (cleaned up)

(quoting Linda D. Jellum & David Charles Hricik, Modern Statutory Interpretation: Problems, 

Theories, and Lawyering Strategies 137 (2006)).
13

Applying this definition, Farm and Tract Numbers are geospatial information. Like GPS 

coordinates, they refer to specific physical locations; in this case, they refer to polygons

representing physical boundaries of plots of land on Earth. FMID argues that, because the 

numbers are “simply alpha-numerical codes that the USDA creates and assigns,” they are not 

geospatial information. Pl.’s MSJ Br. at 17. But any system of identifying specific geographic 

locations—including, for example, GPS coordinates—must ultimately be designed and 

implemented by someone. The Court holds that USDA properly invoked Exemption 3 to 

withhold the Farm and Tract Numbers.

2. Customer Numbers – Exemption 6

Exemption 6 provides that agencies may withhold “personnel and medical files and 

similar files the disclosure of which would constitute a clearly unwarranted invasion of personal 

privacy.” 5 U.S.C. § 552(b)(6). Courts follow a two-step process when considering 

withholdings or redactions under Exemption 6. First, they “determine whether the [records] are 

personnel, medical, or ‘similar’ files covered by Exemption 6.” Multi AG Media LLC v. Dep't of 

Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008). The phrase “similar files” includes all information 

that “applies to a particular individual.” U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 

599–602 (1982). If the records are medical, personnel, or similar files, courts “determine 

whether their disclosure ‘would constitute a clearly unwarranted invasion of personal privacy.’”

Multi AG Media, 515 F.3d at 1228 (quoting 5 U.S.C. § 552(b)(6)).

In making the latter determination, courts must “balance the public interest in disclosure 

against the interest Congress intended [Exemption 6] to protect.” Dep’t of Def. v. Fed. Labor 

Relations Auth., 510 U.S. 487, 495 (1994) (quoting Dep’t of Justice v. Reporters Comm. for 

Freedom of Press, 489 U.S. 749, 776 (1989)). This involves a second two-step process. Courts 

first determine whether disclosure “would compromise a substantial, as opposed to a de minimis, 
14

privacy interest.” Norton, 309 F.3d at 33 (quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 

879 F.2d 873, 874 (D.C. Cir. 1989)). If the interest is substantial, they “weigh that interest 

against the public interest in the release of the records.” Id. (internal quotation marks omitted) 

(quoting Horner, 879 F.2d at 874). 

As the requester, FMID “bears the burden of identifying an overriding public interest and 

demonstrating that disclosure would further that interest.” Stein v. C.I.A., 454 F. Supp. 3d 1, 19 

(D.D.C. 2020) (citation omitted). The “only relevant ‘public interest in disclosure’ to be 

weighed in this balance is the extent to which disclosure would serve the ‘core purpose of the 

FOIA,’ which is ‘contribut[ing] significantly to public understanding of the operations or 

activities of the government.’” Fed. Labor Relations Auth., 510 U.S. at 495 (alteration and 

emphasis in original) (quoting Reporters Comm., 489 U.S. at 775). 

The requester “must show that the public interest sought to be advanced is a significant 

one” and “the information is likely to advance that interest.” Nat’l Archives & Records Admin. 

v. Favish, 541 U.S. 157, 172 (2004) (describing Exemption 7 public interest balancing test); see 

also Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (Exemption 7 test “is 

applicable in the case of Exemption 6”). Courts must “focus not on the general public interest in 

the subject matter of the FOIA request, but rather on the incremental value of the specific 

information being withheld.” Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 

2003). In the D.C. Circuit, when engaging in Exemption 6 balancing, the court “takes derivative 

uses into account in evaluating the impact of disclosure on the public interest” and does the same 

“in evaluating the impact of disclosure on personal privacy.” Am. Civil Liberties Union v. U.S. 

Dep’t of Justice, 655 F.3d 1, 15 (D.C. Cir. 2011).
15

Thus, the Court proceeds to the first step, determining whether Customer Numbers are 

“similar files” under the statute. Exemption 6 was “intended to cover detailed Government 

records on an individual which can be identified as applying to that individual.” Dep’t of State, 

456 U.S. at 602 (quoting H.R. Rep. No. 1497, 89th Cong., 2d Sess., 11 (1966), U.S. Code Cong. 

& Admin. News 1966, pp. 2418, 2428). There is no dispute that Customer Numbers apply to 

individuals or entities that have a record in USDA databases. Pl.’s Stmt. Facts ¶ 5. Moreover, 

USDA has shown that, with the aid of publicly-available information, the public can connect 

Customer Numbers to those individuals or entities and reveal their personal information. Def.’s 

Stmt. Facts ¶¶ 27, 28, 30, 34, 37. USDA explains that each Customer Number functions as “a 

key that connects a particular individual to other data in the public domain.” Id. ¶ 34. That data 

may contain a farm’s “address, legal description, or [its] latitude and longitude.” Id. ¶ 28. These 

records also include “USDA-sourced maps marked with farm and tract numbers and other 

official documents identifying acreage of the agricultural operation, crop types, legal 

descriptions and other identifying information.” Id. The D.C. Circuit has noted that, “in the 

absence of any conflicting evidence, we give some credence to the agency’s familiarity with 

whether a disclosure would lead to identification of the individuals in question.” Canning v. U.S. 

Dep’t of State, 134 F. Supp. 3d 490, 515 (D.D.C. 2015) (quoting Carter v. U.S. Dep’t of 

Commerce, 830 F.2d 388, 391–92 (D.C. Cir. 1987) (internal quotation marks omitted)). And 

FMID has neither disputed USDA’s representations or “presented evidence suggesting that 

[disclosing Customer Numbers] would not identify those individuals.” Id. (quoting Carter, 830 

F.2d at 391–92) (internal quotation marks omitted). Thus, because tying Customer Numbers to 

these public records can reveal the above information, including “at least a portion of the [farm] 

owner’s personal finances,” the Court finds that they are “similar files” for the purposes of 
16

Exemption 6. Multi AG Media, 515 F.3d at 1229 (quoting Nat’l Parks & Conservation Ass’n v. 

Kleppe, 547 F.2d 673, 685 (D.C. Cir. 1976)).

3

The second step is determining whether the Customer Numbers implicate a greater than 

de minimis privacy interest. For reasons largely already explained, they do. USDA represents 

that Customer Numbers can be connected to publicly available data to form a “comprehensive 

picture” of the associated businesses. Def.’s Stmt. Facts ¶ 30. And in Multi AG Media, the D.C. 

Circuit recognized that disclosing the data requested in that case could “allow for an inference to 

be drawn about the financial situation of an individual farmer” which implicated a greater than 

de minimis privacy interest. 515 F.3d at 1230. True, the Customer Numbers by themselves—

unlike the information at issue in Multi AG Media—disclose nothing about an individual farmer

to the public, including the farmer’s identity. Nor do the numbers contain information that 

allows for a direct inference about different farmers’ finances. But the disclosure of the 

numbers, when combined with other public data, could lead to identification of individual 

farmers and reveal information about their farms and financial status. Def.’s Stmt. Facts ¶¶ 27, 

28, 30, 34, 37. For this reason, Customer Numbers implicate a privacy interest under Exemption 

6. See Multi AG Media, 515 F.3d at 1230; see also Horner, 879 F.2d at 878 (“Where there is a 

substantial probability that disclosure will cause an interference with personal privacy, it matters 

not that there may be two or three links in the causal chain.”).

Under the third step, the Court must balance the asserted privacy interest against the 

public’s interest in disclosure of the information. FMID maintains that disclosing Customer 

 

3 The Customer Numbers are “similar files” even when they apply to entities, as opposed to 

individuals, because “most farming operations are closely held family businesses,” Buchan Decl. 

¶ 19, and revealing information about an entity would disclose information about the entity’s

owner or owners. See Multi AG Media, 515 F.3d at 1228–29 (holding same).
17

Numbers, Farm Numbers, and Tract Numbers would allow the public to monitor how USDA is 

administering its farm programs in two ways. Pl.’s MSJ Br. at 26. First, disclosing the 

information would let the public determine whether USDA is overpaying program participants, 

and help root out possible fraud. FMID claims that some farmers are collecting extra payments 

through a “scheme of dividing their lands and transferring them to family members, family 

corporate entities, or other third parties.” Id. Obtaining this data, FMID asserts, would help the 

public determine whether USDA administers its payment caps properly. Id. Second, FMID 

argues that disclosing the information allows the public to determine whether farmers are 

complying with USDA program requirements. Id. at 27. In other words, its first argument 

focuses on the public benefit from learning if USDA is inadvertently paying farmers more than 

subsidy programs allow, thus revealing how well USDA is administering its programs; its second 

argument relates to the public benefit in learning whether the farmers themselves are adhering to 

program requirements. Neither succeeds in outweighing USDA’s asserted privacy interest.

FMID’s first public interest justification fails for two reasons. First, FMID asserts that,

“[w]ithout [the Farm, Tract, and Customer Numbers], the USDA (or the public) has no ability to 

determine how well the USDA is administering any farm programs.” Id. at 26. But the Court 

has already held that Farm and Tract Numbers are excepted from disclosure under Exemption 3 

because they are geospatial information. FMID does not explain how releasing only Customer 

Numbers could inform the public about USDA’s program administration; all its examples rely on 

the release of all three numbers together.

4

 Pl.’s MSJ Br. at 27–28.

 

4 The record sheds no light on this issue either. For example, USDA represents, and FMID 

concedes, that the Customer Number “has nothing to do” with and “is not used” in the records 

FMID requested in Request 1467. Def.’s Stmt. Facts ¶ 2. And the business relationship 

information sought by Request 1497 is not revealed “by linking Parent and Member Customer 
18

Second, there is no evidence in the record to support FMID’s allegations of fraud in 

USDA programs. And baseless allegations of fraud do not support finding a public interest for 

purposes of Exemption 6 disclosure. Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. 

Dep’t of Health & Human Servs., 554 F.3d 1046, 1054 (D.C. Cir. 2009). In Consumers’ 

Checkbook, the requester sought Medicare claims data linked to individual physicians that, in its 

view, would reveal information about the Department of Health and Human Services’ “ability to 

root out Medicare fraud and waste.” Id. at 1050–51. The D.C. Circuit rejected the requester’s 

argument because its claims of fraud were unsupported by any evidence, observing that “if an 

unsupported suggestion that an agency may be distributing federal funds to a fraudulent claimant 

justifies disclosure of private information, the agency would have no defense against FOIA 

requests for release of private information.” Id. at 1054. FMID makes the same ill-fated 

argument here. FMID claims the public interest supports disclosure because the information 

FMID seeks would reveal “whether the USDA is administering [] payment caps properly.” Pl.’s 

MSJ Br. at 26. Like its failure to provide an explanation of how the public may use Customer 

Numbers alone to uncover this fraud, FMID fails to provide “a scintilla of evidence” to support 

its claim that USDA is overpaying program participants in the ways it suggests. Consumers’ 

Checkbook, 554 F.3d at 1054 (quoting Ray, 502 U.S. at 179).

 

Numbers, but by linking Parent and Member Tax-ID numbers or Parent and Member CCIDs.” 

Id. ¶ 8. The Farm Producer File at issue in Request 3020 illustrates the extent of this problem for 

FMID. That file “links the producer’s Customer Number to Farm Numbers, and that 

combination forms the basis for program payments.” Pl.’s Stmt. Facts ¶ 71. But without the 

Farm Numbers, the Customer Numbers cannot provide that information. Therefore, no 

incremental public interest exists in adding the Customer Numbers to the Farm Producer 

Statistical File USDA already produced. Def.’s Stmt. Facts ¶ 18.
19

FMID’s repeated invocation of Multi AG Media does not save its argument. In that case, 

there was a public interest in “look[ing] at the information the agency had before it when 

determining whether a particular farm is eligible to participate in the benefit programs in the first 

place so that the public can monitor whether the agency is correctly doing its job.” Consumers’ 

Checkbook, 554 F.3d at 1055 (quoting Multi AG Media, 515 F.3d at 1231) (alterations omitted). 

Apart from misciting the plaintiff’s argument in that case as the court’s holding, see Pl.’s MSJ 

Br. at 25 (quoting Multi AG Media, 515 F.3d at 1231), FMID does not argue that the information 

revealed by disclosing only the Customer Numbers—without the Farm and Tract Numbers—

says anything about how USDA determines “whether a particular farm is eligible to participate 

in the benefit programs in the first place.” Multi AG Media, 515 F.3d at 1231. Nor does FMID 

argue that disclosing the Customer Numbers will reveal how USDA uses them. See id. at 1231–

32 (recognizing public interest in learning how USDA used requested information); see also 

Norton, 309 F.3d at 36 (recognizing public interest in how “the Secretary and the FWS are using 

[program] information.”). At bottom, FMID has not demonstrated a similar benefit to the public 

in disclosing only Customer Numbers as the plaintiff did for the records at issue in Multi AG 

Media.

FMID’s second argument is that there is a public interest in disclosure of Customer 

Numbers to assist the public in determining whether farmers are complying with program 

requirements. This argument fares no better than its first. The purpose of FOIA is to shed light 

on what the government is up to. Reporters Comm., 489 U.S. at 773. That purpose is distinct 

from this asserted public interest in disclosure, which is to shed light on what USDA program 

participants are up to. The D.C. Circuit rejected a similar argument in Painting & Drywall Work 

Preservation Fund, Inc. v. Dep’t of Housing & Urban Development, 936 F.2d 1300 (D.C. Cir. 
20

1991). There, a nonprofit requested certified payroll records from the Department of Housing 

and Urban Development to monitor federal contractors’ compliance with federal labor laws. Id.

at 1301. The records contained names, social security numbers, and addresses of individual 

employees. Id. The court held that, because “information that might reveal the failure of 

contractors to comply with relevant laws does not in itself cast light on what [the agency] is up 

to, [there is] no obvious public interest in its disclosure that is relevant to [the Exemption 6] 

analysis.” Id. at 1303 (citing Reporters Comm., 489 U.S. at 774–75). The same principle applies 

here. “[U]nless the public would learn something directly about the workings of the Government

by knowing [Customer Numbers], their disclosure is not affected with the public interest.” 

Horner, 879 F.2d at 879. Knowing how “farmers are using their land,” Pl.’s MSJ Br. at 28, or 

whether they are “accurately reporting data to qualify” for benefits, id., does not directly shed 

light on USDA’s operations or activities. And even if there is a general public interest in 

revealing USDA program participant conduct, “that interest falls outside the ambit of the public 

interest that the FOIA was enacted to serve.” Reporters Comm., 489 U.S. at 774–75.

It is possible that Customer Numbers could benefit the public by revealing information 

about program participants combined with already publicly available information. See Ray, 502 

U.S. at 181 (Scalia, J. concurring in part) (derivative use analysis must apply equally when 

weighing personal-privacy and public-benefits of disclosure). FMID, however, makes no 

argument that such retroactive matching would serve the public interest. And when analyzing an 

agency’s invocation of Exemption 6, a court “need not linger over the balance; something, even 

a modest privacy interest, outweighs nothing every time.” Horner, 879 F.2d at 879.
21

For all these reasons, disclosure of the Customer Numbers “‘would constitute a clearly 

unwarranted invasion of personal privacy.’” Multi AG Media, 515 F.3d at 1228 (quoting 5 

U.S.C. § 552(b)(6)). Thus, USDA may withhold them under Exemption 6.

B. FMID’s Policy or Practice Claim (Count II)

FMID also seeks declaratory and injunctive relief to remedy what it identifies as USDA’s 

“policy and practice of failing to substantially comply with the FOIA’s mandatory deadline 

requirements.” Pl.’s MSJ Br. at 32. In seeking this relief, FMID requests that the court enter a 

nationwide injunction requiring USDA to substantially comply with FOIA deadlines nationwide. 

Id. To support its request, FMID points to USDA’s failure to adhere to FOIA’s twenty workingday response timeline, id. at 30–31; 5 U.S.C. § 552(a)(6)(A)(i), and USDA’s failure to adjudicate 

FMID’s administrative appeal within the time specified by USDA regulations and FOIA. Pl.’s 

MSJ Br. at 31. FMID also cites USDA’s total FOIA and administrative appeal backlog as 

justification for entering a nationwide injunction. Id. at 31–32. For the reasons explained below, 

FMID does not have standing to pursue its policy or practice claim.

Federal courts have an “independent obligation to assure themselves of jurisdiction, even 

where the parties fail to challenge it.” Mendoza v. Perez, 754 F.3d 1002, 1018 (D.C. Cir. 2014). 

And it “is equally well established that Article III standing is a prerequisite to federal court 

jurisdiction.” Am. Library Ass’n v. F.C.C., 401 F.3d 489, 492 (D.C. Cir. 2005). The standing 

requirement, “rooted in the traditional understanding of a case or controversy” as described in 

Article III of the Constitution, “serves to prevent the judicial process from being used to usurp 

the powers of the political branches and confines the federal courts to a properly judicial role.” 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (cleaned up). “That the merits of a 

particular claim may be clear is no reason to avoid the constitutionally required inquiry into this 

limit on . . . jurisdiction.” Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012). 
22

To establish Article III standing, a “plaintiff must have (1) suffered an injury in fact, (2) 

that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be 

redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547. “Having documents 

improperly withheld in response to a FOIA request is a well-established cognizable injury. But 

because a plaintiff must have standing for each remedy sought, a plaintiff seeking prospective 

relief like an injunction or declaration striking down an agency’s FOIA policy must be able to 

point to an imminent future injury—one that is certainly impending or has a substantial risk of 

occurring.” Frank LLP v. C.F.P.B., 288 F. Supp. 3d 46, 58 (D.D.C. 2017) (cleaned up).

FMID’s primary problem establishing standing on its policy or practice claim is quite

basic: it has not established the existence of an unlawful policy or practice. A plaintiff seeking 

prospective relief from an alleged government policy must first establish “the existence of the 

challenged policy.” Haase v. Sessions, 835 F.2d 902, 910 (D.C. Cir. 1987). And “more than a 

nebulous assertion of the existence of a ‘policy’ is required to establish standing.” Id. at 911. 

Here, FMID bases its policy or practice claim on “missed deadlines alone.” Am. Ctr. for Law & 

Justice v. FBI, No. 19-cv-2643, 2020 WL 3605624, at *5 (D.D.C. July 2, 2020) (rejecting similar 

claim). It alleges that USDA has “systemically and repeatedly failed—in this case and others—

to make a good faith effort to comply with the Congressional deadlines mandated by the FOIA.” 

Compl. ¶ 73. In its briefing, it claims that USDA disregarded FOIA deadlines in its initial 

responses to FMID’s requests and that its administrative appeal is long past the deadline set by 

USDA regulations and FOIA itself. Pl.’s MSJ Br. at 30–31. But as explained below, there is 

very little here to “signal the agency has a policy or practice of ignoring FOIA’s requirements.” 

Judicial Watch, Inc. v. United States Dep’t of Homeland Sec., 895 F.3d 770, 780 (D.C. Cir. 

2018).
23

To begin with, there is scant evidence that USDA ignored FOIA’s deadlines in this case, 

at least as far as its responses to FMID’s FOIA requests go. In fact, the record tells the opposite 

story. USDA met FOIA’s deadlines in processing at least five out of the seven requests FMID 

submitted to the agency, and FMID’s claims to the contrary overlook its own obligations under 

FOIA. Under the FOIA statute and then-existing USDA regulations, FMID’s requests were not 

“perfected” until USDA received 50% prepayment for requests that would incur over $250 in 

search costs or, in cases where the costs were less than $250, until FMID affirmed it would pay 

search fees on the back end. 5 U.S.C. § 552(a)(3)(A); 7 C.F.R. § 1.15(c), App’x A § 8(c) (2019); 

CREW v. Fed. Election Comm’n, 711 F.3d 180, 185 n.3 (D.C. Cir. 2013) (FOIA deadlines “apply 

only once an agency has received a proper FOIA request” that complies with “the agency’s 

schedule of fees.”). FMID perfected two of its five December requests in late January 2019. 

ECF No. 9-3 (“Horst Decl.”), Ex. 4; Buchan Decl., Ex. 9. USDA gave notice that it required a 

time extension to complete processing those requests and issued its responses within FOIA’s 

extended thirty-day deadline. Horst Decl., Ex. 4; Buchan Decl., Ex. 9.; see also 5 U.S.C. 

§ 552(a)(6)(B)(i), (iii)(II); CREW, 711 F.3d at 184 (“[A]n agency may extend the time limit to up 

to 30 working days by written notice to the requester.”). FMID perfected two other December 

2018 requests in March 2019. Buchan Decl. Exs., 4, 11. USDA responded to those requests 

within the typical twenty-day deadline. Buchan Decl. Exs., 4, 11. The record does not reveal 

when FMID perfected the fifth request, but USDA’s response to that request is contemporaneous 

with its responses to the other requests FMID perfected around that time. Horst Decl., Ex. 10; 

Buchan Decl., Ex. 13. Finally, the record also does not show when FMID perfected its March 

2019 requests. Buchan Decl. Exs., 15, 17. Though USDA was certainly timely in responding to 

FMID’s first request—doing so within a week—it was potentially a few days late in responding 
24

to FMID’s second request, assuming FMID perfected the request immediately. Buchan Decl. 

Exs., 15, 17. Thus, taken as a whole, USDA’s responsiveness “undermines the contention that 

[USDA] is engaged in a persistent practice” of unlawful delay, Am. Ctr., 2020 WL 3605624, at 

*5, and belies any claim that it has a policy or practice of systematically ignoring FOIA’s 

requirements.

FMID relies on Judicial Watch, Inc. v. United States Dep’t of Homeland Security, 895 

F.3d 770 (D.C. Cir. 2018) to support its policy-or-practice claim, but the record here is quite 

different than the one before the D.C. Circuit in that case. There, the D.C. Circuit concluded that 

the Secret Service had adopted a practice of delay because it “repeatedly [stood] mute over a 

prolonged period of time and us[ed] Judicial Watch’s filing of a lawsuit as an organizing tool for 

setting its response priorities.” 895 F.3d at 780–81. USDA has not engaged in similar conduct 

here. Unlike the Secret Service in Judicial Watch, USDA responded to FMID’s requests before

it filed suit, as opposed to waiting until afterward. 895 F.3d at 779. And there is no indication 

that USDA is using the “filing of a lawsuit as an organizing tool for setting its response 

priorities.” Id. at 781. Indeed, USDA’s organizing principle processing FOIA requests and 

appeals is to do so on a “first-in, first-out basis.” See, e.g., Buchan Decl. Ex. 4; Horst Decl., Ex. 

22; see also 7 C.F.R. § 1.8 (2019) (“[P]rocessing within each track shall be based on a first-in, 

first-out concept, and rank-ordered by the date of receipt of the request.”).

USDA’s handling of FMID’s Request 1467 exemplifies its responsiveness and good faith 

efforts. During the relevant time period, when USDA received a request implicating more than 

$250 in search costs, USDA gave the requester twenty days to affirm they would prepay 50% of 

the agency’s search fees. See, e.g., Buchan Decl. Ex. 4. If the requester did not respond within 

those twenty days, USDA closed their request. Id. Here, USDA transmitted its fee request to 
25

FMID on December 19, 2018, FMID did not respond to the fee request and so USDA closed the 

request. Id. But in early February 2019, FMID inquired about the request’s status, and USDA 

responded within the hour. Id. FMID—asserting that it had never received the fee request—

asked USDA if it would reopen the FOIA request, and less than fifteen minutes later, USDA 

agreed and sent a new fee request. Id. And the next month, USDA issued its timely response to 

Request 1467. Id. USDA even refunded FMID its fee payment for Request 1467 and two other 

“complex” requests “due to the delay from the recent lapse in Federal funding and substantial 

changes in the way [the agency] process[es] FOIA requests.” Buchan Decl., Exs. 3, 11, 13. This 

is hardly the behavior of an agency dodging its duties under FOIA.

To be sure, USDA missed the statutory deadline to process FMID’s administrative 

appeals. FOIA requires that agencies adjudicate an appeal within twenty working days. 5 

U.S.C. § 552(a)(6)(A)(ii). USDA received FMID’s appeals on May 12, 2019, and was required 

to issue its determinations by June 10, 2019. By the time FMID filed suit on August 6, 2019, 

sixty working days had passed since USDA received the appeals. USDA offers no justification 

for this delay. But even so, USDA actively responded to FMID’s inquiries after FMID filed the

appeal. Horst Decl., Exs. 22–24. And USDA FOIA agents corresponded with FMID by email 

and by telephone on multiple occasions. Horst Decl., Exs. 22–24. When the FOIA agent 

assigned to FMID’s appeal was out of the office for two weeks, another agent stepped in to assist

in responding to FMID’s inquiries. Horst Decl., Ex. 23. Again, USDA’s behavior is a far cry 

from the “virtually complete passivity” alleged in Judicial Watch, 895 F.3d at 785 (Pillard, J. 

concurring).

Looking at USDA’s record of meeting its FOIA obligations more broadly, its record is 

far from perfect, and this case illustrates the potential “difficulty that FOIA requests pose for 
26

executive and independent agencies.” CREW, 711 F.3d at 189. Philip Buchan, a USDA 

Government Information Specialist who oversees the USDA Farm Services Agency (FSA) FOIA 

branch that responded to FMID’s requests, asserts that the FSA branch processes “simple 

requests on average in 4.25 days, with a median response time of one day.” ECF No. 13-4 

(“Second Buchan Decl.”) ¶ 15. The branch processes “complex requests on average in 28.57 

days, with a median of eleven days.” Id. The branch processed 263 complex requests in Fiscal 

Year 2019, of which 218 were processed within forty working days. Id. Buchan explains that 

FOIA litigation cases, personnel departures, and resource constraints limit his branch’s ability to 

cure its FOIA backlog but that the branch has made substantial progress in the past few years. 

Id. ¶¶ 10–36.5 But “if the speed of replying to requests in any agency is not satisfactory to 

Congress [or FOIA requesters], and the obvious cause is a lack of available resources . . . the 

equally obvious remedy is for Congress to supply the necessary resources and to designate their 

use for FOIA purposes.” Open Am. v. Watergate Special Prosecution Force, 547 F.2d 605, 615 

n.17 (D.C. Cir. 1976). This is not meant to “endorse or excuse . . . alleged noncompliance,” Am. 

Ctr., 2020 WL 3605624, at *5, but in the Court’s view, without a policy or practice to frame 

FMID’s future risk of injury, exercising jurisdiction over this claim would turn the judiciallycreated FOIA policy-or-practice claim—intended to bypass mootness—into a mechanism to 

micromanage agency FOIA offices.

In sum, the record does not “evidence[] a policy or practice of delayed disclosure” by 

USDA. Payne Enters., Inc. v. U.S., 837 F.2d 486, 491 (D.C. Cir. 1988). USDA appears to have 

 

5

In addition, consistent with its delay in this case, USDA’s record with processing 

administrative appeals leaves much to be desired. Buchan admits that, in fiscal year 2019, it 

took his branch an average of 342 days to process an appeal and it only processed three appeals. 

Second Buchan Decl. ¶¶ 25–26.
27

substantially complied with FOIA’s deadlines in this case, with the exception of FMID’s 

administrative appeal, which, as explained below, in any event cannot be a source of injury for 

FMID because the Court has held that the Farm, Tract, and Customer Numbers are exempt from 

disclosure. And merely that USDA has an administrative appeal backlog is not enough to show 

a policy or practice of unlawful delay. Thus, FMID identifies no policy or practice that threatens 

it with future injury.

In addition, even assuming that FMID could establish a policy or practice of unlawful 

delay on this record, it has not shown that it will likely suffer an injury in the future as a result of 

that policy, as Article III standing requires, Tipograph v. Dep’t of Justice, 146 F. Supp. 3d 169, 

174–77 (D.D.C. 2015) (discussing policy or practice standing requirements). For starters, FMID 

cannot base any injury on USDA’s failure to timely respond to its requests relating to the Farm, 

Tract, and Customer Numbers, or to adjudicate its administrative appeal about those records. 

“D.C. Circuit cases considering FOIA policy or practice claims have all involved an agency 

practice that impaired or frustrated the plaintiff’s prompt access to nonexempt agency records. 

The injury that each injunction or order sought to remedy was an agency’s failure to release 

nonexempt records in a timely manner.” NRDC v. U.S. E.P.A., 383 F. Supp. 3d 1, 13 (D.D.C. 

2019) (emphasis added). But the Court has held that FMID is not entitled to the Farm, Tract, and 

Customer Numbers because they need not be disclosed under Exemptions 3 and 6. In other 

words, as far those records are concerned, FMID “has not demonstrated that the agency has been 

withholding information that it should be disclosing.” Cause of Action Inst. v. U.S. Dep’t of 

Justice, 453 F. Supp. 3d 368, 379 (D.D.C. 2020). Thus, they cannot be the basis for any 

purported future injury. Id. (no standing to bring policy or practice claim where “defendant 

appropriately withheld information as non-responsive records”).
28

Moreover, “where a plaintiff ‘seeks prospective declaratory and injunctive relief, he must 

establish an ongoing or future injury that is ‘certainly impending’; he may not rest on past 

injury.’” Williams v. Lew, 819 F.3d 466, 472 (D.C. Cir. 2016) (quoting Arpaio v. Obama, 797 

F.3d 11, 19 (D.C. Cir. 2015)). And as far as the non-exempt records without Farm, Tract, and 

Customer Numbers that FMID requested and received are concerned, Pl.’s MSJ Br. at 30–31, 

FMID has failed to assert that it will continue to request them in the future. To be sure, FMID 

represents that it, “among other things, collects, maintains, and analyzes agricultural data from a 

number of sources, including the federal government,” Pl.’s Stmt. Facts ¶ 1; that “[a]s part of its 

core research, [it] has for over a decade regularly submitted requests for USDA records pursuant 

to the FOIA,” id. ¶ 2; and that it “has submitted annual requests for records containing Customer 

Numbers, Farm Numbers, and Tract Numbers since before 2009,” id. ¶ 9. But FMID never 

alleges that it will continue requesting the records it was provided or asserts that it will suffer 

future injury from a delay in USDA’s response to those hypothetical requests. See Compl. ¶¶ 1–

69, 70–75; Pl.’s MSJ Br. at 29–32; Pl.’s Opp’n at 18–23.

C. APA Claim (Count III)

As to Count III, FMID originally sought a declaratory judgment holding the applicable 

administrative appeal deadline contrary to FOIA. Pl.’s MSJ Br. at 33–35. But FMID noted that, 

if USDA did not raise the regulation as an affirmative defense, its claim would be moot for lack 

of threatened injury. Pl.’s Opp’n at 25. USDA is not using the regulation as an affirmative 

defense and agrees that FMID’s claim is therefore moot. Def.’s Reply at 8. Whether the claim is 

more appropriately described as moot or deficient for lack of injury is of little consequence 

because FMID submits that the “Court need not issue a merits decision on the APA claim.” Pl.’s 

Opp’n at 25. The Court will therefore dismiss Count III for lack of subject matter jurisdiction.
29

Conclusion

For all these reasons, Defendant’s Motion for Summary Judgment, ECF No. 13, will be

granted in part as to Count I, and Plaintiff’s Motion, ECF No. 9, will be denied. The Court will 

dismiss Counts II and III for lack of subject matter jurisdiction because FMID does not have 

standing to pursue them. A separate order will issue.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: November 27, 2020