In People for the Ethical Treatment of Animals v. U.S. Department of Health and Human Services, Case No. 16-5269, released on Friday, August 17th, the D.C. Circuit rejected an appeal by PETA and upheld a lower district court opinion that certain information relating to the importation of primates is confidential and protected from disclosure under Freedom of Information Act Exemption 4. This D.C. Circuit ruling is a significant victory for any business that imports or exports live animals, furs, skins, bones or specimens for purposes including commercial, recreational, educational or scientific research. Those businesses have found their data in the crosshairs as animal activist groups have escalated their Freedom of Information Act requests to government agencies responsible for collecting such records, and have followed up with court action when their FOIA requests have been denied.

As discussed below, the potential still exists for a circuit split on the issue of whether similar records should be exempt from public release as confidential under FOIA Exemption 4. However, the D.C. Circuit’s holding that the market “is competitive and disclosure would likely cause substantial competitive injury” underscores the argument that such businesses – and the government agencies which collect their data – have been making for years in response to animal activist group’s all-encompassing requests.

Background

In several ongoing federal cases, animal activist group plaintiffs such as PETA, the Humane Society, the Center for Biological Diversity and others, have filed FOIA requests seeking data from various government agencies relating to the import and export of wildlife specimens. Because these records are in the possession of a federal agency, the data contained within the records is subject to FOIA and can be released to the public unless an exemption exists that bars disclosure.

FOIA Exemption 4, 5 U.S.C. 552(b)(4), is one such exemption: it protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential” from disclosure. However, in instances where the government agencies have relied on the exemption to limit the amount of data released in response to such FOIA requests, the animal activist groups have filed lawsuits and sought court orders mandating the release of such information. In its decision, the D.C. Circuit ruled that certain categories of requested information – such as the number of primates imported in each shipment, the size of the primates’ crates and the identity of the airline used to transport the animal – served as confidential information relating to importers’ businesses and thus could be protected from disclosure under FOIA Exemption 4. Thus, the Court found that HHS correctly applied redactions to such information when it turned over more than 1,500 pages of documents to PETA in response to its FOIA request.

As support for its redactions, HHS contended that disclosure of shipment-by-shipment quantity, crate size and airline carrier information would cause substantial harm to the competitive position of the importers, as the disclosure would reveal each business’ importation pattern and the percentage of business by volume each importer devotes to a particular species. Relating to the potential disclosure of airline carriers willing to transport non-human primates, HHS asserted that such carriers are scare and constitute an integral aspect of each importer’s supply chain.

The D.C. federal appellate court agreed and found that “PETA overlooks the essential distinction between general industry data and particular business relationships or shipment-by-shipment supply chain information.” Because “the likelihood of substantial competitive injury can increase disproportionately as more information is released,” the court held that shipment-by-shipment quantity, crate size and airline carrier information is confidential and protected from disclosure by Exemption 4.

Notably, the district court initially found that HHS could only redact information for importers that had specifically objected to the disclosure of the information. The district court ruled that there was a “reasonable assumption” that non-objectors’ silence meant that such a disclosure would not cause substantial competitive harm. Following the district court’s decision, three “non-responding” importers asserted that they had not received any notices that their information was at issue. These importers contended that they would also suffer competitive harm if the information was publically disclosed.

After HHS moved for reconsideration of the judgment regarding these three importers, the district court held that HHS could lawfully redact information for these importers, as well. The D.C. Circuit agreed with this reversal, finding that the information was not considered to be confidential “just because the importers say so” but because the district court had already determined that shipment-by-shipment quantity, crate size and airline carrier information were “objectively confidential in this case.” The D.C. Circuit’s decision could substantially impact at least two other cases relating to whether import and export data should be considered confidential and exempt from disclosure under Exemption 4. Animal activist plaintiffs have filed Freedom of Information Act requests seeking a vast amount of data from the U.S. Fish and Wildlife Service relating to the import and export of wildlife specimens, and have filed suit for release of the data in (at least) two ongoing federal cases. While these cases focus on the import and/or export of animal parts and products – rather than solely centering on the import of primates – the issues pertaining to confidentiality and competitive harm, as well as courts’ application of Exemption 4, are indistinguishable.

In the U.S. District Court for the District of Columbia, Humane Society International (HSI) filed a FOIA request seeking records from the U.S. Fish and Wildlife Service maintained in FWS’ Law Enforcement Management Information System (LEMIS) database pertaining to all imports or exports of animal parts and products from the years 2002 through 2010, 2013 and 2014. See Humane Society International v. FWS, Case No. 1:16-cv-00720-TJK (D.D.C.) (lawsuit filed on April 18, 2016). The requested data sought by HSI totals tens of thousands of entries in the LEMIS database relating to imports and exports of all animals of any taxonomic class, whether live, dead, parts or products. FWS determined that some of the categories of requested information should be withheld under FOIA Exemption 4 as confidential, but HSI challenged that determination. The parties currently are exchanging summary judgment briefs, with the HSI’s summary judgment reply brief due in October 2018.

However, in a March 2018 decision, a federal district court judge in Arizona granted summary judgment to animal activist plaintiff Center for Biological Diversity (CBD) and ordered FWS to release similar import and export data to the records requested in the HSI case described above. See Center for Biological Diversity v. FWS, Case No. 4:16-cv-00527-BGM (D. Ariz (Doc. No. 66)). Although FWS initially reasoned that much of the import and export data sought in CBD’s request should be withheld under FOIA Exemption 4, CBD filed suit to obtain all of the requested information.

The district court agreed with CBD that the requested information was not exempt from disclosure under Exemption 4, and held that CBD is entitled to receive all LEMIS data for the years requested relating to exports and imports of animal parts and products. In reasoning that deviates from the D.C. Circuit’s in the PETA case just handed down, the Arizona district court found that FWS failed to meet “its burden of showing a potential of substantial competitive harm” because it did not demonstrate past “actual instances” of competitive harm.

FWS appealed the CBD case to the Ninth Circuit. In May of this year, the Ninth Circuit stayed the district court’s order requiring FWS to release the documents pending its decision on appeal. The D.C. Circuit has concluded that HHS can withhold certain information about the importation of primates based on the fact that such a disclosure “would cause substantial competitive injury . . . to the competitive position of each importer.” Presumably, FWS will now bring the D.C. Circuit’s PETA ruling to the attention of the Ninth Circuit. If the Ninth Circuit disagrees with the D.C. Circuit’s line of reasoning and rules against FWS in its appeal, it would lead to a circuit split on the application of Exemption 4. That in turn, possibly could lead the government to seek certiorari review by the Supreme Court. Were that to occur and if the Supreme Court were to turn down the case, animal activist groups likely would attempt to forum shop in filing future lawsuits relating to unfulfilled FOIA requests – with the Ninth Circuit serving as a preferred alternative to the D.C. Circuit.