Bid By Humane Society International To Get Information On Sport Hunters Fails

by John M.  Simpson.

On August 15, 2019, the U.S. District Court for the District of Columbia entered a partial summary judgment upholding a decision by the U.S. Fish and Wildlife Service (FWS) to withhold certain information pertaining to sport hunters from records produced pursuant to a  Freedom of Information Act (FOIA) request by Humane Society International (HSI).  Humane Soc’y Internat’l v. U.S. Fish & Wildlife Serv., et al., No. 16-720 (TJK) (D.D.C. Aug. 15, 2019).    HSI is an organization related to the animal rights organization Humane Society of the United States (HSUS).  HSUS has long been known for its opposition to sport hunting.

HSI had sought records concerning the import and export of wildlife maintained in FWS’ Law Enforcement Management Information System (LEMIS) database.  LEMIS is a portal for gathering and sharing information between law enforcement agencies.  LEMIS contains the information derived from Form 3-177, an FWS form that, generally, anyone importing or exporting wildlife products must complete before doing so.  HSI’s FOIA request covered all Form 3-177’s completed over an eleven-year period.

FWS produced much of the information requested.  However, invoking FOIA Exemption 4, FWS withheld the value of the wildlife, and, invoking FOIA Exemptions 6 and 7(C), FWS withheld the names of the U.S. and foreign importers or exporters.

FWS had withheld the value of the wildlife under FOIA Exemption 4 which covers “trade secrets and commercial or financial information obtained from a person [that] is privileged or confidential.  ”  5 U.S.C. § 552(b)(4).  However, the withholding had been based on the standard in National Parks & Conserv. Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974), which requires proof that the disclosure would either impair the government’s ability to obtain necessary information in the future or would “cause substantial harm to the competitive position” of the information submitter.  That latter standard was rejected by the Supreme Court in Food Marketing Institute v. Argus Leader Media, 139 S.Ct. 2356 (2019), a case we have reported on previously.  Under Food Marketing, the test is now whether the entity sharing the information typically kept it private.  Since Food Marketing came down after the parties had submitted summary judgment briefs, the district court denied the summary judgment motions without prejudice on the Exemption 4 issue and directed the parties to rebrief it.

As to the names of U.S. and foreign importers, the court granted FWS’ motion for summary judgment.  The court concluded that the information had properly been withheld under Exemption 7(C) because it was “compiled for law enforcement purposes” and it “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”  5 U.S.C. § 552(b)(7)(C).  It did not matter that the information did not arise in the context of a specific investigation.  The information was contained in LEMIS and had “a ‘rational nexus’ to FWS’s duty to enforce laws governing the import and export of wildlife products.”  Slip. op. at 9.

The “unwarranted invasion of privacy” element was also satisfied:

These individuals have an interest in keeping their names from being disclosed to the public alongside the details of their private activity importing or exporting wildlife.  And that interest is “at its apex” here, where the government has compiled information about private citizens.

Slip op. at 10-11 (citation omitted).  In this regard, the Court agreed with the position of the intervenor Safari Club International that the importers and exporters had a privacy interest in preventing the public from connecting their names with the other information already disclosed.  In its summary judgment motion ( which the court also granted in part), Safari Club described the risk that disclosure of the personal identifying details posed:

HSI/HSUS have publicized and attacked sport hunters in the media for importing animal parts.  They have identified importers, including Safari Club members, by name.  They have announced their places of residence.  They have identified their businesses.  They have preserved comments on their website that call for bodily injury to hunters and harm to their businesses.  While Safari Club and its members are proud of their hunting activities and the conservation benefits they bring, they do not want to be subjected to unwanted harassment, impacts to their businesses, and threats of bodily injury.

Safari Club Mtn. for Summary Judgment at 4-5.  The court’s decision on Exemption 7(C)  should be welcome news for sport hunters and others who are required to complete FWS Form 3-177.