Animal Legal Def. Fund v. FDA, No. 19-15528, 2020 WL 243408 (9th Cir. Jan. 16, 2020) (per curiam)

Animal Legal Def. Fund v. FDA, No. 19-15528, 2020 WL 243408 (9th Cir. Jan. 16, 2020) (per curiam)

Re:  Request for records concerning certain egg production farms

Disposition:  Vacating district court's judgment in part and remanding for further proceedings

• Exemption 4:  The Court of Appeals for the Ninth Circuit "vacate[s] the judgment in relevant part and remand[s] for further proceedings."  "The district court did not have the benefit of [Food Marketing Institute v. Argus Leader Media, ––– U.S. ––––, 139 S. Ct. 2356, 204 L.Ed.2d 742 (2019)], and [the court] decline[s] to apply the new legal standard in the first instance."  "[The court] find[s] remand particularly appropriate here because the record is underdeveloped as to whether each egg producer customarily and actually kept each category of information at issue confidential."  "For example, although representatives from [three companies] testified that they would not let the public see the information that is subject to FDA inspection, there is insufficient evidence as to what specific steps each producer took to keep its information confidential."  "Moreover, it appears that some (but not necessarily all) producers voluntarily publically disclosed certain categories of information in ways that undermine confidentiality."  "On remand, the district court shall determine whether one or more egg producers 'customarily and actually treated' the relevant information 'as private.'"  "If necessary, the court shall decide whether the term 'confidential' requires a governmental 'assurance of privacy' and, if so, whether the FDA provided the necessary assurance."