Lion Raisins, Inc. v. United States Department of Agriculture (636 F. Supp. 2d 1081, 2009)

MEMORANDUM DECISION AND ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

Before the court are cross-motions for summary judgment filed by Defendant United States Department of Agriculture (“USDA”) and Plaintiff Lion Raisins, Inc. (“Lion”). The parties seek summary judgment on Lion’s claims asserted in its First Amended Complaint (“FAC”). Most of these claims arise under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq.

The following background facts are taken from the parties’ submissions in connection with the motion and other documents on file in this case.

II. BACKGROUND

A. Lion And The Investigation Into Its Purported Misconduct

Lion, a family-owned business since 1903, is the largest raisin packer and raisin exporter in California. Lion prides itself on its ability to guarantee exacting standards of quality and condition that are demanded by its overseas buyers.

Lion is governed by the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. §§ 601-627, and a federal marketing order, 7 C.F.R. §§ 989.1-989.801, that regulate the sale of raisins. See Lion Raisins Inc. v. U.S. Dep’t of Agric., 354 F.3d 1072, 1076 (9th Cir.2004). The marketing order requires that raisin handlers, like Lion, have their products inspected by the USDA when they are received from producers and again before they are shipped to buyers. 7 C.F.R. §§ 989.58-989.59.

USDA inspectors assess the quality of raisins in various categories such as weight, color, and size. USDA inspectors then document their observations on “line check sheets” and assign grades to the raisins. In turn, information from the line check sheets is summarized on USDA inspection certificates that Lion can send to purchasers as an assurance of quality.

In the past, when Lion requested an inspection certificate with respect to certain raisins, the USDA grader would prepare a draft version of the certificate called a certificate “worksheet.” The USDA grader prepared the worksheet based on inspection results previously recorded in the line check sheet. The USDA grader then gave the worksheet to Lion personnel. Based on information in the worksheet, Lion typed up the original inspection certificate and returned it and the worksheet to the USDA grader. The USDA grader then signed and returned the original certificate to Lion along with carbon copies (on blue tissue paper) of the certificate. Typically, the USDA would retain the worksheet and a copy (on blue tissue paper) of the certificate. (Trykowski Decl. ¶¶ 10-11.)

On February 20,1998, the.USDA’s Agricultural Marketing Service (“AMS”) received an anonymous tip that Lion was falsifying inspection certificates. After receiving the tip, G. Neil Blevins, then Chief Compliance Officer for the AMS, initiated an administrative investigation into Lion. At times, David Trykowski, then Senior Compliance Officer, and Maria EsguerraMartinez assisted in the investigation. The investigative team reported that Lion had falsified three inspection certificates between 1997 and 1998. Based on this, Blevins recommended a criminal investigation by the USDA Office of Inspector General (“OIG”). On May 27, 1999, the AMS Compliance Office forwarded to the OIG a request for a criminal investigation.

In October 2000, special agents with the USDA OIG executed a search warrant at Lion’s place of business in Selma, California. The agents seized Lion’s shipping records pertaining to export customers from approximately 1995 to October 2000. Ultimately, no criminal indictments or criminal charges were made against Lion. The USDA did, however, initiate three administrative enforcement proceedings against Lion.

B. Administrative Enforcement Proceedings

1. First Administrative Proceeding — I & G No. 01-0001

On January 12, 2001 the USDA filed the first administrative complaint (I & G No. 01-0001) against Lion alleging that Lion, and its principal officers, agents and affiliates, falsified and misrepresented USDA certificates. The potential punishment for such misconduct includes being debarred from receiving benefits provided for under the Agricultural Marketing Agreement of 1946. The original administrative complaint alleged the falsification of the same three certificates discovered in the administrative investigation. The complaint was later amended to allege that Lion misrepresented USDA inspection results on three (3) forged certificates, one (1) altered certificate, and two (2) Lion documents that stated “Source of Sample: Officially Drawn” and “U.S. Grade.”

Between January 28, 2002, and March 23, 2006, seventy-two days of hearings were held. Among other evidence, the USDA presented testimony of inspectors, Trykowski, and two former Lion employees. Colleen Carroll represented the USDA in the proceeding.

After the close of evidence, Lion petitioned to reopen the hearing apparently on the ground that the USDA allegedly suppressed, altered and/or destroyed evidence. On May 4, 2009 (after the parties filed their initial summary judgment briefing in this case), the Administrative Law Judge (“ALJ”) issued an initial decision adverse to Lion and also denied Lion’s petition to reopen the hearing. Lion has not stated whether it will appeal.

2. Second Administrative Proceeding — I & G No. 03-0001

On October 11, 2002, the USDA filed a second administrative complaint (I & G No. 03-0001) against Lion alleging additional violations in connection with USDA certificates (allegedly Lion altered one additional certificate by changing the moisture content). Carroll represented the USDA. After various procedural steps and motions, in January 2008, the proceeding was finally scheduled for hearing. In March 2008, the USDA provided witness and exhibit lists to Lion, and in June 2008, the hearing began. Trykowski and Blevins testified as USDA witnesses.

The hearing was temporarily suspended while certified questions were submitted to the USDA Judicial Officer (“JO”) concerning a legal dispute over the submission of exhibits. The hearing resumed, and on May 4, 2009, the ALJ issued an initial decision adverse to Lion. Lion has not stated whether it will appeal.

The ALJ decision of May 4, 2009, encompasses both of the administrative proceedings/complaints (I & G Nos. 01-0001 and 03-0001). According to the USDA, the ALJ found that Lion had falsified inspections results and ordered debarment. The debarment period is set to run concurrently with the five-year debarment period that was recently ordered as a result of the third and final administrative complaint discussed below.

3. Third Administrative Proceeding— I &G No. 01-0001

On November 20, 2003, the USDA filed a third administrative complaint against Lion (I & G No. 04-0001) alleging that Lion misrepresented inspection results. The ALJ dismissed a portion of the complaint on statute of limitations grounds. The remainder of the complaint alleged that Lion misrepresented inspection results on thirty-three (33) Lion “facsimile” certificates and altered the moisture percentage on one additional certificate. The hearing began on February 21, 2006, with Carroll representing the USDA once again. Trykowski and Blevins were USDA witnesses. The evidence closed on March 3, 2006.

In June 2006, the ALJ issued a decision and found that Lion had engaged in a pattern of misrepresentation, or deceptive or fraudulent practices in connection with the use of official inspection certificates and/or inspection results. The ALJ ordered debarment for five years. Lion appealed that decision on July 12, 2006. On April 17, 2009 (just a few weeks before Lion and the USDA filed their initial summary judgment briefing) the JO issued a decision and order which largely upheld the ALJ’s disposition. The JO’s order debarred Lion from receiving inspection services for five years.

C. Lion’s FOIA requests

After the criminal investigation, and during the administrative enforcement proceedings, Lion submitted a number of FOIA requests to the USDA. Some of the FOIA requests precipitated earlier litigation and appeals to the Ninth Circuit. The FOIA requests that are the subject of this lawsuit, and that form the basis of the counts in Lion’s complaint, are set forth below with the USDA’s responses.

1. Count I — FOIA Request No. 97-07

On August 1, 2007, Lion submitted the following request to the USDA:

This is a request under the Freedom of Information Act for USDA/AMS policies and procedures for the storage, archiving, transferring, retrievability, access controls, retention, and disposal of records that were created from 1995 through 2000. Please include all revisions and amendments thereto, and any sections of the policy for defendants or respondents against whom the USDA filed a complaint.

(Doc. 43-8, Ex. 46.) The request was assigned FOIA No. 97-07. The USDA searched for records and on August 30, 2007, the USDA issued a written response (Doc. 43-8, Ex. 47), enclosing “two documents” responsive to the request. The two documents totaled 290 pages. The documents included the “USDA, AMS, FV, PPB File Code 175-B-20 Records Retention and Disposition instruction” with its “related Forms Retention Index and GRS handbook,” and “AMS Directive 270.1.” (Blazejak Deck ¶ 8) (emphasis added.)

On October 11, 2007, Lion submitted a written appeal to the Administrator of the AMS (Doc. 43-8, Ex. 49). Lion appealed on the grounds that the “FOIA Officer released a disposition plan for F & V forms” but did not release disposition plans for the “FR and RAC series” of forms. In its appeal letter, Lion cited federal regulations (36 C.F.R. § 1228.22) that address a federal agency’s responsibility to develop record schedules for its records, including retention and disposition instructions. Based on federal regulations, Lion stated that it believed “that the USDA must have created disposition plans not only for F & V forms but also [for the] FR and RAC forms.” To support its position, Lion cited specific statements from certain USDA agents.

In response to the appeal, the USDA conducted an additional search and issued a final written response on January 28, 2008 (Doc. 43-8, Ex. 50). The USDA decided to release an additional sixteen (16) pages of documents. None of the additional documents, however, appear to be disposition plans specifically for the “FR” and “RAC” forms. The USDA did not indicate that it was withholding any further documents.

In the first count of Lion’s FAC, Lion claims that the USDA “continues to withhold the disposition plans for the ‘FR’ and ‘RAC’ forms.”

2. Count II — FOIA Request No. 96-07

On July 31, 2007, Lion submitted the following request to the USDA (received on August 1, 2007):

This is a request under the Freedom of Information Act for records related to the disposition of inspection documents for Lion, including, but not limited to, what agency had custody of the documents, what documents were destroyed, who destroyed them, how were they destroyed, and where were they destroyed. For instance, in reply to Lion’s request for inspection documents (FOIA 60-07) the USDA stated on June 13, 2007, ‘Most documents responsive to those items were destroyed in accordance with Agency file disposition requirements.’

(Doc. 43-8, Ex. 45) (emphasis added.) In its submission, Lion defined “inspection documents” as “any records pertaining to incoming or outgoing inspections, including but not limited to” the following:

1) Incoming meeting lots ledger,

2) ledger record (meeting and failing) memorandum reports,

3) ledger record of meeting lots,

4) fumigation certificates (FR-12),

5) fumigation letters (FR-13),

6) line check sheets (FR-20 and FR-21),

7) microanalysis reports (FR-30),

8) weight check sheets (FK-31A and FR-31B),

9) report of meeting lots of processed raisins ledgers (FR-40),

10) processed failing raisins held ledgers (FR-41),

11) surveillance records (FR^43),

12) daily compliance check sheets (FR-51),

13) potential violation or complaints (FR-52),

14) reports of raisins to be charged on AMS-183 (FR-53),

15) worksheets for certificate (PK-146-10),

16) reconditioning worksheets,

17) requests for USDA certificate (FR-146-11),

18) report of inspection (FV-66),

19) certificates of quality and condition (FV-146),

20) memorandum reports of inspection for processed raisins (FV-489),

21) memorandum reports (FV-489) accountability ledgers,

22) condition inspection and failing lots ledgers,

23) memorandums (FV-490),

24) certificate accountability ledgers (for FV-44 and FV-146),

25) airstream sorter results,

26) power of attorneys,

27) pallet control cards,

28) daily pack-out reports (RAC-15),

29) buyer specifications,

30) correspondence relating to inspections,

31) investigations, and

32) any other records relating to inspection services at Lion from 1995 to the present.

(Doc. 43-8, Ex. 45.) The request was assigned FOIA No. 96-07.

The USDA searched for records and on August 30, 2007, the USDA issued a written no-records response. (Doc. 43-8, Ex. 47.) Specifically, in its response, the USDA asserted that “after the specified retention period for inspection documents ... the documents are destroyed. There are no records either created or maintained regarding the destruction of the documents in your letter. Therefore, we have no documents responsive to your request.” (Id.)

On October 11, 2007, Lion submitted a written appeal. (Doc. 43-8, Ex. 48.) In its appeal, Lion relied upon federal regulations to advance its argument that responsive records should exist:

Lion hereby appeals the FOIA Officers’ reply. The AMS has a federally-regulated records management program (36 C.F.R. § 1228.1 through 1228.282 and AMS Directive 270.1, attached as Exhibit ‘C’) .... Federal regulations state, ‘No Federal records shall be destroyed or otherwise alienated from the Government except in accordance with procedures described in this part 1228 (44 U.S.C. 3314).’ (See 36 C.F.R. § 1228.20.) For records that were properly destroyed, the regulations state, ‘Agencies must also create and maintain records that document the destruction of temporary records.’ 36 C.F.R. § 1220.36(b) For records improperly destroyed, the regulations state, ‘The willful and unlawful destruction, damage, or alienation of Federal records carries a maximum criminal penalty of a $2,000 fine, 3 years in prison, or both.’ 36 C.F.R. § 1228.102. Associate Administrator, Dr. Kenneth Clayton, has been delegated oversight and responsibility for the [pjrogram. (Exhibit ‘C’, Section VI. Responsibilities)

The basis of this appeal is that the requested disposition records were created and improperly withheld. Otherwise, under the watch of Dr. Clayton the disposition records were either not created or unlawfully destroyed.

(Id.) (emphasis in original.) In response to the appeal, the USDA conducted an additional search and issued a final written response on January 28, 2008. (Doc. 43-8, Ex. 50). The written response reasserted that no responsive documents existed:

The basis of your appeal of AMS FOIA number 96-07 is that the requested disposition records were either created and improperly withheld or destroyed; or that the disposition records were not created. In accordance with FOIA, AMS performed an additional search for responsive records and determined that there are no responsive records. Accordingly, we are upholding the agency’s previous determination as to AMS FOIA number 96-07.

In the second count of Lion’s FAC, Lion asserts a FOIA claim for the “refusal to produce” the “transfer and destruction” records it requested.

3. Count III — FOIA Request No. 181-01

In August 2001, Lion submitted a request to the USDA for “any and all USDA line check sheets performed by the USDA at Lion Raisins, Inc. and Lion enterprises from and including 1991 to 2000.” Lion also requested “any and all USDA ‘inspection certificates’ for the same time frame with respect to each line check sheet.” (Doc. 43-5, Ex. 1.) The request was assigned FOIA No. 184-01.

In September 2001, the USDA issued a written response to the request in which it informed Lion that the requested records “are being withheld at this time pursuant to 5 U.S.C. § 552b(7)(A). The requested records are currently under evaluation as evidence by the Office of Inspector General as part of an on-going criminal investigation and the production and release could reasonably be expected to interfere with a pending law enforcement proceeding.” (Doc. 43-5, Ex. 2.)

This FOIA request resulted in litigation between the parties and an appeal to the Ninth Circuit. Ultimately, the Ninth Circuit ordered AMS to release the line check sheets requested by Lion. See Lion Raisins, 354 F.3d at 1085.

Following the appeal, on April 14, 2004, the USDA sent correspondence to Lion stating it would release thousands of responsive records, and that older documents no longer existed:

In response to [your] request and [the Ninth Circuit] decision, we are forwarding to you separately 10,055 documents which represent the USDA retained copies of Line Check Sheets for outgoing raisins inspected at Lion Raisins, Inc., for the period August 1, 1995 to December 31, 2000. Your request had asked for Line Check Sheets from 1991, however, Line Check Sheets prior to August 1, 1995, no longer exist because of record management guidelines.

Also shipped to you separately are 1,270 documents representing USDA inspection certificates for the same period of time which were issued at Lion Raisins, Inc. Once again, due to record management guidelines, certificates issued prior to August 1995 no longer exist.

(Doc. 43-5, Ex. 3.) On April 14, 2004, AMS did release, in full, 10,055 responsive documents that consisted of USDA retained line check sheets along with associated forms FV-489 (Memorandum Reports of Inspection) which were attached to the line check sheets. The AMS also released I,270 pages of responsive inspection certificates.

Following this production, on November 27, 2006, Lion submitted a request for a “supplemental production.” (Doc. 43-5, Ex. 4.) Lion asked for responsive records pertaining to “Afgan [Sic] and Chilean Raisins.” According to Lion’s supplemental production request:

David Trykowski ... through Government’s Counsel Colleen Carroll, represented on the record during the hearing on I & G No. 01-0001 (before ALJ Clifton) that there were additional documents responsive to Lion’s original request, which had not been produced, pertaining to Afgan [Sic] and Chilean Raisins. Mr. Trykowski provided what he had available at the time, but stated there were more. Lion’s counsel immediately provided a list of documents it believed were ... missing from those provided by Mr. Trykowski.

(Id.) (emphasis in original.) In response to Lion’s supplemental production request, a search was performed. On December II, 2006, the USDA issued a written response and enclosed fifty-two (52) additional line checks sheets that documented the inspection of raisins imported from Afghanistan and Chile. (Trykowski Decl. ¶ 21.) In pertinent part the response states:

I have enclosed 52 pages of documentation, numbered S-001 to S-052, which represents the USDA Line Check Sheets that support the inspection certificates documenting the certification of product imported by Lion Raisins from Afghanistan. These line check sheets were not included in the original submission of April 14, 2004, [which was in response to the Ninth Circuit’s order] because these documents were filed separately from the line check sheets documenting the inspection of domestic product.

Line check sheets for 11 of the certificates that were on the list Mr. Green provided to Mr. Trykowski could not be located. However, line check sheets for 10 certificates that were not on Mr. Green’s list were located and have been enclosed. An extensive search of the records holding area maintained by the Fresno Inspection Office has been conducted and no further responsive documents could be located.

(Doc. 43-5, Ex. 5.) Subsequently, on April 23, 2007, Lion submitted a letter to the USDA requesting another round of supplemental production. (Doc. 43-5, Ex. 6.) This time, Lion asked for additional line check sheets and inspection memoranda. In its letter, Lion states:

After the close of evidence in ... (I & G Docket No. 01-0001), Lion discovered that the USDA withheld four Line Check Sheets for raisins that were successfully reconditioned after having failed the initial inspection. Attached hereto as Attachment ‘A’ are the four previously withheld Line Check Sheets that were exchanged with Lion, identified as Exhibit 38 by AMS Counsel, Colleen Carroll. While approximately 136 reconditioning Line Check Sheets were released through FOIA, Lion anticipates that there are many more than four that were withheld, perhaps in the custody and control of AMS Investigator Trykowski. As with the previously withheld Line Check Sheets for Afghan raisins, Lion hereby requests a supplemental disclosure of all Line Check Sheets for reconditioned raisins, regardless of the type of reconditioning, i.e., identity preserved, identity commingled or various commingled (USDA Manual § 11 at 11. 6, 11.7 and 11.8), and any other Line Check Sheets that were withheld for any reason, including those for raisins that were repackaged or blended, for example.

In addition, the USDA produced approximately 494 Memorandum Report of Inspections, 15 of which are dated from 1995 through approximately August 1996 and the remaining dated from approximately November 1999 through 2000. Such Memos were required to be issued and attached to the original Line Check Sheet when raisins were re-inspected, repackaged, reconditioned or blended with raisins that were returned or failed to ship within 90 days.... Lion observed evidence on Line Check Sheets that strongly suggests additional Memos were issued between August 1996 and November 1999. Lion hereby requests a supplemental disclosure of all such Memos that were withheld from 1995 through 2000 (‘FV-489’).

(Id.) In addition to this supplemental production request, Lion’s letter of April 23, 2007, contained a section that included new FOIA requests for documents. The USDA assigned FOIA No. 60-07 to the additional requests. The additional FOIA requests apparently deal with “in-coming” raisins.

In response to Lion’s April 23, 2007, supplemental production request, another search was conducted that took “forty man-hours.” (Trykowski Decl. ¶ 26.) The search yielded 575 Memorandum Reports of Inspection and 140 line check sheets. These documents were then forwarded to Washington D.C. where they were analyzed by a Program Analyst to determine whether and to what extent they had been previously released in April 2004 (in response to the Ninth Circuit’s order). The Program Analyst determined that it appeared four line check sheets and twenty-four (24) Memorandum Reports of Inspection (FV-489) were not previously released.

On June 13, 2007, the USDA issued a written response enclosing these documents, which were responsive to FOIA No. 184-01. (Doc. 43-5, Ex. 7.) In its written response, the USDA stated that “[biased on the Agency’s review the only Line Check Sheets for reconditioned raisins that were not released were the four Line Check Sheets from June 25, 1998, you had attached to your letter of April 23, 2007. Those four Line Check Sheets are again released in this supplemental production ...” (Id.) In addition to these four line check sheets, the USDA provided twenty-four (24) Memorandum Reports of Inspection (Form FV-489) “that did not appear to have been released in April 2004.” (Trykowski Deck ¶ 26.)

A few weeks later, Lion submitted a written appeal to the AMS Administrator. (Doc. 43-5, Ex. 8.) In its appeal, Lion claimed that there should be more Memorandum Reports of Inspection and pointed to “accountability reports” which “suggest” there may be additional line check sheets as well.

With respect to potential, additional Memorandum Reports of Inspection, Lion advanced three arguments:

1) There should be responsive Memos from 1997-1999: ... [T]he USDA previously released 15 Memos from 1995 to December 19, 1996 and additional Memos from December 1999 through 2000.... The Memos were attached to Line Check Sheets, together numbering 10,055 pages. It is unreasonable to believe that no Memos were prepared from 1997 to December 1999. That time-frame coincides with the majority of the allegations in the three administrative complaints filed against Lion ....

2) There should be additional responsive Memos from 1999-2000: Pursuant to FOIA No. 184-001, the USDA released 24 Memos on June 13, 2007. Each Memo was from 2000 and all but one had been previously released. Obviously, Lion is concerned that the FOIA Officer failed to determine that 23 of 24 Memos had previously been released among the 10,055 documents disclosed after the Ninth Circuit Order. Lion is also concerned because the FOIA Officer failed to identify approximately 30 Memos that should have been released. As summarized below, at least ten of those Memo numbers are recorded on a Line Check Sheet. Lion contends that these Memos are possibly being withheld because they are exculpatory. [The summary Lion provided included a list of thirty (30) Memos by their date and Memo number.]

3) Line Check Sheet Remarks suggest there are additional responsive Memos: ... [T]here are at least three Line Check Sheets with Remarks indicating that a Memo should have been prepared for raisins that were repackaged or transferred to another container. As with the other responsive Memos, Lion asserts that they are possibly being withheld because of exculpatory evidence.

(Id) With respect to potential, additional line check sheets, Lion advanced one argument:

4) Accountability Report indicates additional responsive Line Cheek Sheets: It is our understanding that when raisins failed the initial inspection, the results were noted on a failing lots ledger. Upon successful re-inspection, the results were prepared on a separate Line Check Sheet and then transferred to the report of meeting lots ledger, which was previously disclosed. There are at least two references in the report of meeting lots to raisins that were transferred from the failing lots ledger but the separate LCS was not released. Lion contends that there are additional Line Check Sheets being withheld that evidence re-inspection results that likely support Lion’s defense in the administrative proceedings, as explained above.

(Id.) (emphasis in original.) At the end of its written appeal letter, Lion stated it was requesting “full-disclosure of every Line Check Sheet and Memo as previously ordered by the Ninth Circuit Court of Appeals.” (Id.)

In response to the appeal, another search was conducted. On September 4, 2007, the USDA issued a final written response, stating:

The appeal provided three bases to support the contention that additional Memorandum Reports of Inspection for Processed Raisins (Forms FV-489) were possibly being withheld ‘because they are exculpatory.’ Agency files have been searched again and no documents responsive to the original request in FOIA 184-01 have been withheld, including any Forms FV-489.

Additionally, it appears that you misunderstand the process for recording inspection results. The Freedom of Information Act does not require us to respond to your allegations of misconduct or to correct your misunderstanding regarding the inspection process. Accordingly, we simply reiterate that Agency records have been searched and that no additional responsive records were located.

(Doc. 43-5, Ex. 9.)

In count three of its FAC, Lion asserts a FOIA claim for the “refusal to produce [the] line cheek sheets and memorandum reports of inspection” it requested.

4. Count IV — FOIA Request No. 85-01

On May 13, 2004, Lion submitted a request for USDA certificate “Worksheets” for the period of January 1995 through December 2000. (Doc. 43-6, Ex. 27.) The request was assigned FOIA No. 85-04.

On June 23, 2004, the USDA issued a written response stating that the requested records were in the custody of the AMS Compliance Office and were being withheld pursuant to Exemption 7(A) of the FOIA, 5 U.S.C. § 552(b)(7)(A). (Doc. 43-6, Ex. 28.) The USDA noted the three, then-pending enforcement proceedings and stated that the “production and release of [the requested] records at this time could reasonably be expected to interfere with the Agency’s pending administrative enforcement proceedings.” (Id.)

On July 12, 2004, Lion appealed. In its appeal, Lion argued:

The USDA voluntarily gave each and every one of those worksheets to a Lion employee to type up the USDA’s FV-146, Certificate of Quality and Condition .... USDA recently lost an extremely similar, if not identical, issue in the Ninth Circuit Court of Appeals regarding USDA Line Check Sheets and USDA Certificates. What the Ninth Circuit said in that matter is equally applicable here.

(Doc. 43-6, Ex. 29.) On January 3, 2005, the USDA responded to the FOIA appeal and upheld the decision to withhold the worksheets in full pursuant to Exemption 7(A). (Doc. 43-6, Ex. 30.) The USDA again noted the ongoing administrative proceedings and stressed the “prominent” role the documents played in the third administrative proceeding:

The Agricultural Marketing Service (AMS) has filed three administrative complaints before the Department in an effort to debar Lion Raisins, Inc., from receiving all benefits of the Agricultural Marketing Act of 1946. The first complaint (I & G Docket No. 01-0001) is currently the subject of a hearing before an administrative law judge. The second administrative complaint (I & G Docket No. 03-0001) is pending review by the U.S. District Court.

The third complaint (I & G Docket No. 04-0001) has not been scheduled for hearing yet. The type of documents which you seek in this appeal (Work Sheets for Certificate of Quality and Condition for Raisins) play a prominent role in this third administrative complaint. The production and release of those records at this time could reasonably be expected to interfere with the Agency’s pending administrative enforcement action.

(Doc. 43-6, Ex. 30.) On January 11, 2005, Lion filed a complaint under FOIA in the United States District Court for the Eastern District of California seeking release of the worksheets. In October 2005, the district court upheld the USDA’s decision to withhold the worksheets on the basis of Exemption 7(A) and granted summary judgment in favor of the USDA. See Lion Raisins, Inc. v. U.S. Dep’t of Agric., No. CVF050062RECSMS, 2005 WL 2704879, at *4-10 (E.D.Cal. Oct. 19, 2005). Lion appealed and the Ninth Circuit affirmed the district court’s ruling. Lion Raisins Inc. v. U.S. Dep’t of Agric., 231 Fed.Appx. 563 (9th Cir.2007). In its opinion, the Ninth Circuit rejected arguments made by Lion:

Despite Lion’s arguments, it is apparent from the record that the Worksheets are not identical to any items that Lion already has in its possession, and they are therefore distinguishable from the Line Check Sheets at issue in Lion Raisins I; their disclosure would provide Lion with additional information about the ongoing proceedings, and interfere therewith. ‘[E]ven without intimidation or harassment[,] a suspected violator with advance access to the [agency’s] case could construct defenses which would permit violations to go unremedied.’ NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 241, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) (internal quotation marks and citation omitted).

Id. at 565 n. 2 (alterations in original).

Subsequently, on September 20, 2007, Lion submitted a “renewed request” for the worksheets the Ninth Circuit previously determined were properly withheld on the basis of Exemption 7(A). (Doc. 43-7, Ex. 31.) In Lion’s submission, Lion stated that the “evidence closed” in the first and third administrative hearing and that the “only” worksheet relevant to the second administrative proceeding had been released during the first administrative proceeding. “As such, please release the ... Certificate Worksheets; otherwise, please release them as soon as the administrative investigations and proceedings have been completed.” (Id.) Lion acknowledged that, at the time, a hearing in connection with the second administrative proceeding had not been held, and that Lion had filed pending motions to reopen the first and third administrative proceedings. (Id.)

Four days later, on September 24, 2007, Lion filed, in this court, a motion for relief from Judge Coyle’s summary judgment order entered on October 20, 2005. The motion was ultimately denied. See Lion Raisins, Inc. v. U.S. Dep’t of Agric., No. 1:05-CV-00062 OWW-SMS, 2008 WL 3834271 (E.D.Cal. Aug. 14, 2008).

Meanwhile, on October 19, 2007, the USDA responded to Lion’s supplemental request and continued to withhold the certificate worksheets on the basis of Exemption 7(A). (Doc. 43-7, Ex. 32.) In its written response, the USDA discussed the status of the administrative proceedings:

Your renewed request for the Certificate Worksheets is denied.... In the matter of Inspection and Grading (I & G) Docket No. 01-0001 [the first administrative proceeding], on February 26, 2007, you made a motion to the Administrative Law Judge (ALJ) to reopen the hearing and supplemented it with three additional filings dated April 24, 2007, and September 6, 2007. The ALJ has not issued a decision yet and if the ALJ grants the motion to reopen the hearing then that proceeding would be reopened and the release of the requested information could reasonably interfere.

In I & G 03-0001 [the second administrative proceeding], that matter was remanded to the ALJ for further proceedings. However, the assigned ALJ was a reserve Army officer who is now on a tour to Iraq and the case is to be assigned to another ALJ.

In I & G 04-0001 [the third administrative proceeding], a significant number of the counts in the complaint were dismissed by the ALJ. The remaining counts were litigated and the ALJ issued a decision and order finding that on 33 occasions Lion had engaged in a ‘pattern of misrepresentation or deceptive or fraudulent practices in connection with the use of official inspection certificates [and/or] inspection results.’ You appealed that decision to the USDA’s Judicial Officer (JO). AMS in the response to the appeal asked the JO to review the ALJ’s decision to dismiss the counts contained in the original complaint. If the JO determines the ALJ erred in dismissing those counts then it is likely that the previously dismissed counts could be remanded for additional proceedings.

While the USDA administrative proceedings have progressed since May 13, 2004, they have not yet concluded, and the requested documents will continue to be withheld pursuant to 5 U.S.C. § 552(b)(7)(A) as their release could reasonably be expected to interfere with the Agency’s pending administrative enforcement proceedings.

(Id.) A few weeks later, Lion appealed. Lion covered the status of the administrative proceedings and argued why it believed that Exemption 7(A) could not be properly invoked:

In I & G Docket Nos. 01-0001 and 04-0001 [the first and third proceeding], the AMS has already presented its case-in-chief and rebuttal evidence in an effort to prove the Respondents’ misrepresented USDA inspection results that were initially recorded on Certificate Worksheets. As the [USDA] FOIA Officer pointed out, the Respondents have since filed motions to reopen the hearings. If reopened, the limited purpose of the hearings would be for the Respondents to prove that the AMS misused, suppressed, destroyed and/or altered evidence that the Respondents accurately represented reinspection results. As such, disclosure of the Worksheets could not reasonably interfere with the administrative proceeding unless proving innocence is proper basis of withholding public records (and of course it is not). It is true that the ALJ dismissed several counts of the complaint in I & G Docket No. 04-0001. However, the AMS had already exchanged exhibits (including Worksheets) for the dismissed counts. In addition, those counts were dismissed as untimely because they were filed after the five-year statute of limitations established by federal law. In the unlikely event that the case is remanded for additional proceedings, the Respondents would immediately seek relief in federal court and would likely prevail. Again, it is unreasonable to expect that disclosure of the Worksheets could interfere with the administrative proceedings.

Finally, on October 11, 2002, a complaint was filed against the Respondents in I & G Docket No. 03-0001. The AMS alleged that the Respondents misrepresented an inspection result related to a single shipment of raisins. It is undisputed that the Worksheet was disclosed by AMS in its rebuttal case in I & G 01-0001.

In conclusion, the AMS has disclosed every Worksheet with the initial inspection results that the Respondents allegedly misrepresented from 1995 through 2000. It is unreasonable to continue to withhold the remaining Worksheets about which there is no allegation that the Respondents misrepresented the inspection results. Interfering with the Respondents’ post-hearing efforts to provide innocent explanations is not a legally recognized justification for withholding the documents.

(Doc. 43-7, Ex. 33) (emphasis in original.) On May 28, 2008, the USDA responded to the FOIA appeal and continued to withhold the records on the basis of Exemption 7(A). (Doc. 43-7, Ex. 35.) In its response, the USDA discussed the status of the pending administrative proceedings and upheld the prior determination:

On September 20, 2007, you submitted a ‘Renewed Request for Worksheets’ wherein you requested that AMS ‘release the .... Certificate Worksheets; otherwise, please release them as soon as the administrative investigations and proceedings have been completed.’ In a letter dated October 19, 2007 ... [an] AMS FOIA Officer [] denied your renewed request for the Certificate Worksheets and provided the basis for the Agency’s denial of those records.

As explained in the letter of October 19, 2007, AMS determined that the release of the records at this time could reasonably be expected to interfere with the Agency’s pending administrative enforcement proceedings against Lion Raisins, Inc. You chose to make a motion to reopen the hearing of I & G Docket No. 01-0001 and to appeal the decision of I & G Docket No. 04-0001 to the Judicial Officer. In addition. I & G Docket No. 03-0001 was remanded to the Administrative Law Judge for further proceedings. After reviewing your request, your appeal, and the file, I concur with the agency’s determination. Accordingly, the requested Certificate Worksheets will continue to be withheld pursuant to 5 U.S.C. § 552(b)(7)(A).

(Id.)

In the fourth count of Lion’s FAC, Lion asserts a FOIA claim for the worksheets. After Lion filed its FAC, significant progress occurred in the administrative proceedings. Lion has recently submitted a new FOIA request for the worksheets, and, according to the USDA’s reply brief, the USDA will release the worksheets upon payment of the estimated costs and the USDA “no longer asserts Exemption 7(A).”

5. Count V — Request For Disposition Records

On September 20, 2007, after the Ninth Circuit affirmed Judge Coyle’s grant of summary judgment, Lion submitted a “new request for worksheet disposition records.” (Doc. 43-7, Ex. 31.) This request states: “please release the disposition schedule for the Worksheets, possibly identified as Standard Form 115, as well as all records, requests, concurrences, instructions, and other documents related to destruction and/or transfer of the Worksheets between the Fresno Field Office, the U.S. Attorney, AMS and any other agencies.” (Id.)

On October 19, 2007, in a written correspondence to Lion, the USDA briefly addressed this request stating “[yjour request pertaining to the disposition records for the Worksheets is being answered in a separate response.” (Doc. 43-7, Ex. 32.) The remainder of the correspondence addresses a separate FOIA request Lion submitted (No. 85-04, the subject of the fourth count).

On December 11, 2007, Lion appealed the USDA’s “non-reply” to its request for disposition records. (Doc. 43-7, Ex. 34.) Lion stated that the USDA “FOIA Officer never assigned a FOIA number or replied to [Lion’s] request” for disposition records. Lion reasserted its request to “release all non-exempt disposition records for the Worksheets requested. At a minimum, the request covers the disposition schedule, Standard Form 115, as well as all records, requests, concurrences, instructions, and other documents related to the destruction and/or any transfer of the Worksheets.” (Id.)

On May 28, 2008, the USDA issued a written response to Lion’s appeal and stated that the request was duplicative of other FOIA requests:

Your September 20, 2007 request also included a new, separate FOIA request for ‘the disposition schedule, Standard Form 115, as well as all records, requests, concurrences, instructions, and other documents related to the destruction and/or any transfer of the Worksheets.’ This request is duplicative of other FOIA requests you have submitted to AMS, including FOIA No. 113— 07. AMS responded to your request for disposition schedules and other documents relating to destruction and/or transfer of the Worksheets by letter dated November 5, 2007 in response to your FOIA request No. 113-07. You were given appeal rights at that time. In addition, your FOIA Requests No. 96-07 and No. 97-07 were duplicative of this new, separate request. AMS responded to these 96-07 and 97-07 by letter dated August 30, 2007 and provided you with appeal rights at that time.

(Doc. 43-7, Ex. 35.)

In the fifth count of Lion’s FAC, Lion asserts a FOIA claim for an alleged “failure to respond to [its] request for disposition records for worksheets.”

6. Count VI — FOIA No. 61-01

On February 8, 2002, Lion submitted a request for certain investigation and compliance-related records:

The Raisin Administrative Committee, through its manager is required to report to USDA any alleged violations of the Raisin Marketing Order by raisin packers in the industry. While you can redact the name of the packer if it is not Lion, please provide any and all compliance and investigation files, compliance and audit programs and policies, referral letters or referral reports communicated to USDA, AMS from the RAC to USDA regarding alleged wrongdoing or noncompliance by any raisin packer. If it involves Lion, please do not redact the name. If it involves other packers, you can redact the name, but not the allegation with respect to what the packer allegedly did wrong. This is all for the time frame [of January 1, 1995 to the date of this request],

(Doc. 43-5, Ex. 10.) The request was assigned FOIA No. 61-02.

In response to the request, a search was conducted and on March 28, 2002, the USDA issued a written response stating it had responsive documents, some of which it would release:

Documents responsive to your request are estimated to include: 1) warning letters and related documents, 2) 6 compliance plans, and 3) 12 compliance cases. Releasable information consists of about 1000 pages, which includes the first two items and part of the third (7 closed or completed compliance cases). Material that we would withhold consists of about 500 pages, which includes part of the third item (5 ongoing compliance cases). The information is being withheld pursuant to § 552(b)(7) of FOIA (5 U.S.C. 552) that exempts from disclosure ‘information compiled for law enforcement purposes.’ Also, information is being withheld under § 552(b)(4) of FOIA that exempts from disclosure ‘commercial information’ that is obtained from a person and is privileged or confidential. Additionally, telephone numbers are being withheld pursuant to § 552(b)(6), because release of that information would constitute a clearly unwarranted invasion of personal privacy.

(Doc. 43-5, Ex. 11.) The USDA provided an estimation of the fees for supplying the releasable, responsive records.

In response, on April 11, 2002, Lion requested ten (10) “examples” of the identified “compliance plans” in order to determine whether “compliance plans” were responsive to Lion’s request:

Lion is seeking Federal California raisin marketing order compliance documents. You stated in your response that you have approximately 1,000 documents responsive to said request. In order for Lion to determine that the documents you state are responsive and do not consist of USDA compliance manuals, or RAC compliance manuals etc., it would be appreciated if you could provide to this office, via facsimile, at least 10 examples of the documents that you state are ‘compliance plans’ documents.

(Doc. 43-5, Ex. 12.) Lion apparently misread the USDA’s written response which stated that only six compliance plans (not ten) existed. In Lion’s correspondence of April 11, 2002, Lion also sought to clarify its request:

In order to clarify what the request is seeking I offer the following: Lion is only interested in internal documentation between the RAC, AMS and/or USDA regarding any alleged violations of the California Raisin Marketing Order by any raisin packer. If the alleged violation involves Lion, please do not redact the name. If it involves any other packer besides Lion, Lion understands that there are privacy concerns and therefore the packer name may be redacted.

(Id.) On April 30, 2002, the USDA responded to Lion’s request for examples of compliance plan documents by providing “one sample for the period 2001-2002, as developed by the RAC, which consists of 25 pages.” The USDA stated that the “rest of the estimated RAC ‘compliance plan’ documents are similar except that they apply to previous crop years.” (Doc. 43-5, Ex. 13.)

After Lion received the sample, Lion submitted a revised request to the USDA on May 14, 2002. Lion wrote:

After review of said document [the compliance plan], it would be appreciated if you could provide me with a revised estimate of the cost to obtain copies of: 1) warning letters; and 3) compliance cases as outlined in [previous correspondence]. I am omitting the item number “2) compliance plans” as these documents Lion does not wish to receive.

(Doc. 43-5, Ex. 14.) On June 7, 2002, the USDA supplied Lion with a revised fee estimate of $1,171.00. (Doc. 43-5, Ex. 15.).

After the USDA received partial payment from Lion, the USDA began to process documents responsive to Lion’s revised request. In a correspondence dated August 13, 2002, the USDA informed Lion that documents responsive to the request consisted of approximately 700 pages and that, to expedite Lion’s receipt of the documents, the USDA intended to release the documents in periodic batches:

We are currently processing the documents that are responsive to your request, which consist of approximately 700 pages. Because of the voluminous nature of the request and the fact that the documents were obtained from our field office, it will take time to process the documents. To expedite your receipt of these documents, we intend to release batches of documents to you approximately every two weeks.

(Doc. 43-6, Ex. 16.) Ultimately, the USDA released the documents in six batches.

In a correspondence dated August 22, 2006, the USDA enclosed the first batch of documents totaling 169 pages. (Doc. 43-6, Ex. 17.) The first batch consisted of warning letters and related documents. The USDA explained that it was redacting/withholding information pursuant to various exemptions:

Pursuant to 5 U.S.C. 552(b)(4) of FOIA, which covers trade secrets, I am withholding the following: 1) Names of shippers or growers who do business with allegedly noncompliant industry members under the California raisin marketing order; 2) certificate numbers; 3) production information such as acreage and shipment amounts; and 4) names of Department of Agriculture inspectors that are closely associated with certain raisin plants. Pursuant to 5 U.S.C. 552(b)(6) any information that would constitute a clearly unwarranted invasion of personal privacy (e.g. social security numbers) was redacted. Also, pursuant to 5 U.S.C. 552(b)(7)(C), information has been withheld that was compiled for law enforcement purposes and could reasonably be expected to constitute an unwarranted invasion of personal privacy, which could include the names of alleged noncompliant industry members, or others associated with such information. Pursuant to 5 U.S.C. 552(b)(7)(E), information was withheld that would disclose techniques and procedures for law enforcement purposes.

(Id.) In a correspondence dated September 24, 2006, the USDA enclosed the second batch of documents totaling 138 pages. (Doc. 43-6, Ex. 20.) The USDA explained that the released pages in the second batch consisted of two “closed” compliance cases, that further pages would be released from five other “closed” compliance cases, and that with respect to five active compliance cases, the USDA was withholding those records pursuant to Exemption 7(A). The USDA also noted that, in connection with this second batch, it redacted/withheld information pursuant to various exemptions:

Enclosed is the second batch of responsive documents (138 pages), which contains information from two closed cases. There are five remaining closed cases that will be forwarded. Pursuant to 5 U.S.C. 552(b)(4) of FOIA, which covers trade secrets, I am withholding the following: 1) Names of shippers or growers who do business with allegedly non-compliant industry members under the California raisin marketing order; 2) certificate numbers; 3) production information such as acreage and shipment amounts; and 4) names of Department of Agriculture inspectors that are closely associated with certain raisin plants. Pursuant to 5 U.S.C. 552(b)(6) any information that would constitute a clearly unwarranted invasion of personal privacy (e.g. social security numbers) has been redacted. Also, pursuant to 5 U.S.C. 552(b)(7)(C), information has been withheld that was compiled for law enforcement purposes and could reasonably be expected to constitute an unwarranted invasion of personal privacy, which could include the names of alleged noncompliant industry members, or others associated with such information. Pursuant to 5 U.S.C. 552(b)(7)(E), information was withheld that would disclose techniques and procedures for law enforcement purposes.

(Id.)

In a correspondence dated October 10, 2002, the USDA enclosed the third batch of responsive documents totaling 172 pages. (Doc. 43-6, Ex. 21.) The third batch contained the contents of three closed compliance cases. (Id.) As to the third batch, the USDA explained that it redacted/withheld information pursuant to various exemptions (which were the same exemptions noted in the USDA’s second batch correspondence). (Id.)

In a correspondence dated November 18, 2002, the USDA enclosed the fourth batch of responsive documents totaling 252 pages. (Doc. 43-6, Ex. 22.) The fourth batch contained half of the case information on a specific packer, Custom Raisin Packing, Inc. The USDA noted that it was releasing information that would otherwise be confidential because the information was made public, but some information was redacted/withheld pursuant to various exemptions:

Enclosed is the fourth batch of responsive documents (252 pages), which contains half of our case information concerning Mr. John Bowersox and Custom Raisin Packing, Inc. (Custom). There are two remaining batches, one consists of the other half of the Custom case and another batch from another case.

Unlike previous batches, we are releasing some information that would normally be considered confidential. Because Custom is no longer in existence, much of the information that would normally be withheld under 5 U.S.C. 552(b)(4), trade and financial secrets is releasable to the public. This includes items such as production figures, sales prices, shipment information, and the taxpayer identification number. Much of Custom’s and Mr. Bowersox’ information was deemed public as it was already released in bankruptcy court.

However, where necessary, we are reserving the right to withhold certain information in the Custom case. Pursuant to Section 5 U.S.C. 552(b)(4) of FOIA, trade secrets and commercial or financial information obtained that is personal or confidential, I am withholding information such as bank account numbers and names of businesses that did business with Custom raisin. Pursuant to 5 U.S.C. 552(b)(6) any information that would constitute a clearly unwarranted invasion of personal privacy (e.g. social security numbers or phone numbers of those other than Custom) have been redacted. Also, pursuant to 5 U.S.C. 552(b)(7)(C), information has been withheld that was compiled for law enforcement purposes and could reasonably be expected to constitute an unwarranted invasion of personal privacy, which could include the names of alleged noncompliant industry members, or others associated with such information. Pursuant to 5 U.S.C. 552(b)(7)(E), information was withheld that would disclose techniques and procedures for law enforcement purposes.

(Id.)

In a correspondence dated December 11, 2002, the USDA enclosed the fifth batch of responsive document totaling 247 pages. (Doc. 43-6, Ex. 23.) The fifth batch contained the second half of the Custom compliance case. (Id.) As to the fifth batch, the USDA noted that information was redacted/withheld pursuant to various exemptions (which were the same exemptions noted in the USDA’s fourth batch correspondence).

Finally, in a correspondence dated January 7, 2003, the USDA released the sixth batch of responsive documents totaling 122 pages. (Doc. 43-6, Ex. 24.) The sixth batch contained the contents of the last closed compliance case. The USDA noted that some information was redacted/withheld pursuant to various exemptions:

As with previous batches, we are withholding certain information. Pursuant to 5 U.S.C. 552(b)(4) of FOIA, which covers trade and financial secrets, I am withholding certain bank account information. Pursuant to 5 U.S.C. 552(b)(6) any information that would constitute a clearly unwarranted invasion of personal privacy (e.g., personal social security numbers or phone numbers) have been redacted. Also, pursuant to 5 U.S.C. 552(b)(7)(C), information has been withheld that was compiled for law enforcement purposes and could reasonably be expected to constitute an unwarranted invasion of personal privacy, which could include the names of alleged noncompliant industry members, or others associated with such information.

(Id.)

After receiving the six batches of documents, Lion appealed on February 21, 2003. Lion objected to the deletion/redaction of information pursuant to an exemption without any notation as to the kind of information being withheld:

I hereby file this FOIA APPEAL ... on the grounds that the Freedom of Information Officer failed to comply with the pertinent provisions of FOIA. There is absolutely no indication that the exemption stated pursuant to 552(b)(4) of FOIA governing trade and financial secrets, are evident and where she simply deletes information and information and writes (b)(4) that fails to comply with the Freedom of Information Act since it does not indicate what the information was in order to properly address whether or not the exemption is properly applied. The same is true with respect to the FOIA Officer’s (b)(6) exemption and (b)(7)(C) exemption listed in all of the documents where deletions had occurred.

When something is redacted, there must be some notation or indication as to why it is redacted, indicating the type of information (not just code sections of exemptions) being redacted.

I believe that the FOIA Officer must indicate with respect to each redaction claimed, sufficient information addressing what was redacted, and not simply designate an exemption code section.

(Doe. 43-6, Ex. 25.) At the time Lion filed its FAC on August 26, 2008, the USDA had not issued a written response to this appeal. Accordingly, the sixth count in Lion’s FAC alleges that the USDA failed to respond to Lion’s appeal. After the filing of the FAC, however, the USDA responded to Lion’s appeal.

The USDA issued a written, detailed response to the appeal dated March 9, 2009. (Doc. 43-6, Ex. 26.) The USDA’s response addressed Lion’s arguments, explained what information was being redaeted/withheld and why, and released additional documents. After the USDA issued this detailed response to Lion’s appeal, Lion has not since amended its FAC.

7. Count VII — Refusal To Provide Access To Original Records

In four separate written submissions, all dated October 26, 2005, Lion requested physical access to original USDA records.

The first request, assigned FOIA No. 22-06, sought “physical access” to documents that contained the “Original (in living color) signatures” of fourteen different USDA inspectors who inspected raisins at Lion. (Doc. 43-7, Ex. 37.) The second request, assigned FOIA No. 23-06, sought “physical access” to “Original Blue Tissue Copy (in living color) USDA Certificates for product inspected at Lion Raisins during the years of 1995 through 2005 as stored by the USDA.” (Doc. 43-7, Ex. 38.) The third request, assigned FOIA No. 25-06, sought “physical access” to “Original (in living color) USDA Line Check Sheets for product inspected at Lion Raisins during the years of 1995 through 2005 as stored by the USDA.” (Doc. 43-7, Ex. 39.) Finally, the fourth request, assigned FOIA No. 26-06, sought “physical access” to “Original (in living color) Voided USDA Certificates for product inspected at Lion Raisins during the years of 1995 through 2005 as stored by the USDA.” (Doc. 43-7, Ex. 40.) With respect to each request, Lion stated that “before granting this FOIA request please inform us of the costs that may be involved with such a request.”

On January 9, 2006, the USDA informed Lion, in an “interim” response, that it would need an additional ten days to respond. (Doc. 43-7, Ex. 41.) On February 10, 2006, in another “interim” response, the USDA explained that it identified approximately 15,000 documents in two different locations and provided an estimate of the cost:

We have identified approximately 15,000 documents responsive to your request. The records you have requested are normally maintained by the Fruit and Vegetable Programs. However, due to an ongoing investigation, a large portion of the requested records are currently in the possession of the Compliance and Analysis Programs. Since you have requested physical access to the records for your inspection, each program area will need to be contacted to arrange a mutually convenient time for such inspection.

Under the FOIA [5 U.S.C. § 552(a)(4)(A) ], fees may be charged for the search and review of requested documents. The USDA fee schedule for FOIA requests can be found in 7 C.F.R. Part 1, Subpart A, Appendix A. Since the requested records are in the possession of two separate programs, a separate search and review will need to be performed by each.

(Doc. 43-7, Ex. 42.) For the two separate searches, the USDA broke down the fee estimation as follows:

Search time: 20 hours x $36.16/hr = $ 723.20

Professional review time: 40 hours x $60.97/hour = $2,438.80

Search time: 143 hours x $14.00/hour = $2,002.00

Professional review time: 40 hours x $41.47/hour = $1,658.80

Total = $6,822.80

(Id.) The USDA requested that Lion pay the estimated fee within thirty (30) days. The USDA asked for the payment in full “before the [USDA] continues to process this request.” (Id.)

On March 27, 2006, Lion appealed and argued that the costs were excessive. (Doc. 43-7, Ex. 43.) Lion stated that the documents were previously produced and that searching for them again should not be burdensome:

On Ma