by John M. Simpson
The U.S. Court of Appeals for the District of Columbia Circuit recently affirmed a summary judgment in favor of the Department of Health and Human Services (HHS) which had denied a Freedom of Information Act (FOIA) request by People for the Ethical Treatment of Animals (PETA) for information about the importation of nonhuman primates. People for the Ethical Treatment of Animals v. U.S. Dep’t of Health and Human Serv., No. 16-5269 (D.C. Cir. August, 17, 2018). The appellate court agreed with the lower court that the release of such information would cause substantial competitive injury to the importers who had provided such information to HHS and therefore was properly withheld under FOIA Exemption 4, which exempts “trade secrets and commercial or financial information obtained from a person and privileged or confidential” from disclosure. 5 U.S.C. § 552(b)(4).
HHS had collected the information at issue from importers of nonhuman primates as part of its effort to prevent the transmission of communicable disease. PETA’s request had sought disclosure of information as to species type, number being imported, crate size, identity of the exporter and identity of the air carrier making the shipment. While species type was not exempt because the importers did not request confidential treatment for it, the rest of the information at issue on appeal — number of primates, crate size and air carrier identity — was exempt because HHS had demonstrated that its release would cause substantial competitive harm to the information submitters:
♦♦Shipment-by-shipment quantity information “would harm each importer by revealing its importation pattern and capacity to obtain nonhuman primates.” Slip op. at 10. This was so, ruled the court, even though animal lists were already publicly available through animal inventories posted online as part of the U.S. Department of Agriculture’s inspection process. There was “a material difference between inventory snapshots, posted periodically as part of inspection reports by the USDA, and the number of nonhuman primates obtained in various shipments.” Id. at 12.
♦♦Similarly, the court agreed with HHS that crate sizes would be “tantamount to quantity information and therefore confidential,” because such information would provide insight into the size or type of animal being imported. Id. at 14. “PETA’s insistence that crate sizes do not reveal the number of nonhuman primates in each shipment is unconvincing.” Id.
♦♦Finally, the number of airline carriers willing to transport nonhuman primates is scarce and is an integral aspect of each importer’s supply chain. Carrier identification therefore was properly withheld as confidential. “A competitor could easily use this information to target and disrupt, whether by outbidding or other means, a specific supply chain in an effort to drive an importer from the market or steal importation capacity.” Id. at 15.
Because the market for nonhuman primates is competitive and disclosure would likely cause substantial competitive injury, releasing shipment-by-shipment quantity, crate size, and airline carrier information would cause substantial harm to the competitive position of each importer. The information is therefore confidential and protected from disclosure by Exemption 4.
Id. at 16. The court also ruled that the district court had properly reconsidered its initial decision to release the information of two importers who had not objected to disclosure because the record indicated that they had not received notice of PETA’s request from HHS, and once they obtained such notice, did object. The district court therefore properly corrected its misassumption that the silence of these importers indicated no objection to disclosure. Id. at 17-19.
The D.C. Circuit is generally regarded as the main source of authority at the intermediate appellate level on the application of FOIA. This case is significant for those animal-related business which must make reports to, or seek permits and other agency authorizations from, federal agencies which require the submission of business-related information about the animals involved, sources, transportation and the like. The FOIA requester here, an animal rights organization, was not a competitor of any of the importers and was obviously not seeking the information in order to enter the nonhuman animal importation business. But like many such organizations, PETA was after this information for use in its various campaigns against the human consumption and/or use of animals or animal products. The D.C. Circuit’s application of Exemption 4 in these circumstances is likely to materially complicate such agendas.