HSUS Gets Mixed Result in D.C. FOIA Case

by John M. Simpson.

On June 3, 2019, the U.S. District Court for the District of Columbia granted in part and denied in part cross-motions for summary judgment in a Freedom of Information Act (FOIA) case that the Humane Society of the United States (HSUS) had brought against the U.S Department of Agriculture’s Animal and Plant Health Inspection Service, et al. (APHIS).  Humane Soc’y of the U.S. v. Animal and Plant Health Insp. Serv., et al., No. 1:18-cv-00646 (TNM) (D.D.C. June 3, 2019).  HSUS’s FOIA request was for site-inspection reports and other inspection records for specific animal dealers and exhibitors who are subject to regulation by APHIS under the Animal Welfare Act (AWA).

APHIS had redacted certain of the personal identifying and other details from the documents, withholding that information under Exemption (b)(6) (“personnel and similar files”) and had redacted other portions of the documents under Exemption (b)(7) (“information compiled for law enforcement purposes”).  The Court did not agree with the agency’s invocation of Exemption (b)(7) but did agree that Exemption (b)(6) was properly invoked for licensees addresses and contact information as well as the names, images and personally identifying information of third-party veterinarians who were referred to in the documents.

The court found that the licensees’ and third-parties had privacy interests in the information, particularly as it concerned “homestead businesses” — licensees who combine their businesses with their homes.   As the court observed:

The licensees and third-parties, however, have more than a de minimis privacy interest in their names, addresses, and contact information.  The licensees here are homestead businesses, meaning that their business is co-located with their personal residence. See Woods Decl. 2 ¶ 16; Tr. at 43–44. “[T]he privacy interest of an individual in avoiding the unlimited disclosure of his or her name and [home] address is significant.”  NARFE, 879 F.2d at 875; see also Am. Farm Bureau Fed’n, 836 F.3d at 971 (“The disclosure of names, addresses, telephone numbers, GPS coordinates, and financial statuses can implicate substantial privacy interests.”).  The D.C. Circuit “has been particularly concerned when the information may be used for solicitation purposes” or “invite[] unwanted intrusions.” Lepelletier v. FDIC, 164 F.3d 37, 47 (D.C. Cir. 1999); NARFE, 879 F.2d at 878.  So courts have upheld withholding individuals’ home addresses and contact information. See, e.g., NARFE, 879 F.2d at 879; Am. Farm Bureau Fed’n, 836 F.3d at 971.

Slip op. at 11.  The Court also found that HSUS had not demonstrated why releasing this information was in the public interest:

The Humane Society … has not articulated how releasing licensees’ addresses or third-parties’ names would serve that public interest.  The Humane Society argues that to effectively monitor the Service’s implementation of the AWA, “it is important to tie an individual facility to an individual inspection report,” and “an address is one way to identify a particular facility.” Cross-Mot. at 37.   Perhaps.  But the Humane Society has all it needs to tie these records to particular facilities.  The Service released the licensees’ names and customer ID numbers.  Indeed, the Humane Society made targeted requests using the licensees’ certificate numbers, so there is no need for licensees’ addresses to further tie the records to a particular facility.  See U.S. Dep’t of State v. Ray, 502 U.S. 164, 178 (1991) (finding that the public interest in disclosure was satisfied by redacted documents that the agency had already released).

Slip op. at 13.

This issue is more than one of passing interest among those in businesses that utilize animals.  In recent months, animal rights activists have increased the intensity of their activities by carrying out their demonstrations on or near the actual premises of the businesses that they are attacking.  As we reported earlier, an animal rights group in Australia actually created an interactive map with the locations of a wide variety of farms and other animal businesses in order to facilitate on-site protesting activity.  So, for animal businesses subject to AWA regulation who may be concerned about attacks by animal rights groups, it is a good thing that the court in this case upheld the agency’s invocation of Exemption (b)(6).