Friends of Animals v. Bernhardt, No. 20-1182, 2021 WL 4771619 (10th Cir. Oct. 13, 2021) (Ebel, J.)

Friends of Animals v. Bernhardt, No. 20-1182, 2021 WL 4771619 (10th Cir. Oct. 13, 2021) (Ebel, J.)

Re:  Request to Fish and Wildlife Service ("FWS") for forms that wildlife hunters and traders submitted to import elephant and giraffe parts

Disposition:  Affirming in part and reversing in part district court's grant of government's motion for summary judgment; remanding case

• Exemption 7, Threshold; Exemption 6; Exemption 7(C):  The Court of Appeals for the Tenth Circuit first notes that "[i]n light of [the] framework [between Exemptions 6 and 7(C)], [the court] begin[s] by analyzing FWS's withholding of the submitters' names under Exemption 7(C)."  The court also "assum[es] without deciding that FWS collected the Form 3-177s[, the forms at issue,] for law enforcement purposes."  Next, "[the court] conclude[s] that the district court erred by overemphasizing the risks from disclosure and, as to the Elephant Request only, undervaluing the public interest in the submitters' names – in other words, it got the balance wrong."  Regarding the privacy interests, the court relates that "FWS's principal argument is that the submitters could be subjected to harassment and public shaming or scorn for their involvement in wildlife hunting and the importation of wildlife products and sport trophies, highly controversial activities."  "[The court] agree[s] with [the requester], however, that this harassment is primarily speculative."  "In fact, FWS offers no evidence that the submitters themselves believe they have a privacy interest in their names on the Form 3-177s, fear harassment, or wish to keep their names private."  The court finds that "private individuals engaging in elephant hunting and import – a highly regulated activity – are doing so voluntarily."  "Obtaining a federal permit and complying with federal regulations is a known cost of receiving the benefit of participating in international wildlife trade, and there is a known risk of disclosure as a result of that voluntary but regulated participation."  Regarding the public interest, the court finds that "it is relevant that the information at issue here involves private citizens."  "FOIA's purpose 'is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct.'"  "That the withheld information concerns private individuals, however, does not necessarily mean that a substantial public interest in that information cannot exist."  The court finds that "the public still has an interest in knowing the identities of the submitters to ensure that FWS is fulfilling its duty to oversee the import of elephant parts consistently with the law."  "For example, knowing the submitters' names would assist the public in ensuring that FWS is not allowing individuals to import products besides what has been approved on the permit, beyond the scope of the permit, or without a permit at all."  The court finds that "[t]here are thus at least four potential uses for the submitters' names in the Elephant Request:  (1) the names could address whether FWS officials have conflicts of interest, such as if a form was submitted by an agent's relative; (2) the names could reveal consistent favoritism or bias towards or influence by industries or individual persons; (3) the names could reveal inconsistent, arbitrary, or sloppy decision-making regarding imports and whether the forms were carefully reviewed; and (4) as to forms dated after April 11, 2016, the names could inform the public if FWS is enforcing 50 C.F.R. § 17.40(e)(6)(i)(E)."  Based on its analysis, the court finds that "[b]alancing the important public interest in ensuring the proper regulatory performance of FWS's duties against the weak personal privacy interest – based largely on mere speculation of harassment without actual evidence – supports a conclusion that disclosure here is required."  "As a result, [the court] reverse[s] the district court's grant of summary judgment in favor of FWS under Exemptions 6 and 7(C) as to the Elephant Request, because under either standard the public interest in disclosure outweighs the privacy interest at stake and thus any minimal invasion of privacy resulting from disclosure is not unwarranted."
  
  "But [the court] affirm[s] the district court's grant of summary judgment in favor of FWS as to the Giraffe Request because the lack of a public interest in the context of giraffe imports means that any invasion of privacy would be unwarranted."  Regarding the threshold, the court finds that "[v]erifying compliance with the law and preventing illegal activity is as much a part of law enforcement as is investigating violations of the law."  "And although [the requester] can attempt to nitpick the purposes behind the collection of specific Form 3-177s, [the court] do[es] not think such an individualized analysis is necessary or helpful, given that FWS requires all wildlife importers to submit Form 3-177s as part of FWS's overall function of overseeing wildlife trade by monitoring imports, verifying compliance, deterring smugglers, and allowing for physical inspections."  Regarding the privacy interests, the court finds that "[t]he privacy interest at stake here is largely the same as in the Elephant Request – discounting only the additional factors relevant to elephants and the heightened regulations that apply to them . . . ."  "As before, [the court] recognize[s] that the submitters have a privacy interest in their names and personal activities, but that interest is relatively weak as based primarily on speculation regarding the negative consequences of disclosure."  Regarding the public interest, the court finds that "[t]he principal difference between the Elephant Request and the Giraffe Request is in the strength of the public interest at stake."  "For the Elephant Request, the public interest in disclosure is strong, as this disclosure will shed light on FWS's operations and decision-making – the purpose of FOIA and a bedrock of our democracy."  "In contrast, because at the time the Form 3-177s were filed giraffe imports were not regulated in the way that elephant imports were, [the court] can identify no similar, cognizable public interest that disclosure of the submitters' names in the Giraffe Request would serve."  "The basis for our conclusion is the fact that, at the time period at issue in the Giraffe Request, the import of giraffe parts, unlike elephant parts, was not regulated by the Convention on International Trade in Endangered Species of Wild Fauna and Flora . . . , the Endangered Species Act, or any other federal law."  Finally, the court holds that "[b]ecause the public interest in the giraffe-import submitters’ names is negligible, it cannot outweigh the submitters’ limited privacy interest in their names . . . ."
  
  Chief Judge Tymkovich writes separately to concur in part and dissent in part, and specifically states that "the Form 3-177 submitters for elephant imports have a privacy interest that is not outweighed by the public interest in disclosure."  Judge Tymkovich states that "the resulting articles demonstrate that disclosure of this type of information is almost certain to result in social media shaming, disapproval, and harassment."  "Importing elephant and giraffe parts is controversial, as evidenced by these articles and by [the requester's] work – and [the requester] intends to spark outrage against these individuals and their conduct."  "It is not 'mere speculation that a submitter could conceivably be subjected to harassment' upon disclosure of this information, as [the requester] contends."  "Rather, it is the organization's intended objective – as well as the natural result of the disclosure."  "Whatever the efficacy or propriety of such tactics, [Judge Tymkovich] think[s] it clear that FOIA is not designed to advance this type of battle."  Judge Tymkovich also states that "the public interest in disclosure does not outweigh this privacy interest."  "The way in which [the requester] describes the public interest is telling:  the organization claims that the public interest is 'in knowing who is importing elephant and giraffe parts.'"  "But this interest is aimed at the conduct of the submitters, not the agency."
   
• Exemption 4:  "[The Court of Appeals for the Tenth Circuit] . . . holds that it was error for the district court to consider the hearsay in [the government's] Affidavit when evaluating FWS's redactions under Exemption 4."  The court relates that "[o]n appeal, [the requester] argues that because [the government's declarant] relayed what the submitter-business told her, her affidavit constitutes inadmissible hearsay that cannot be considered in the summary-judgment determination."  "[The requester] admits that an affidavit, which would normally be considered hearsay, can generally be considered on summary judgment."  "Nonetheless, it maintains that the hearsay testimony within the affidavit – i.e., the content of the affidavit – remains off limits."  The court holds that, in a different case which defendant points to to support its practice, "the letter that the defendant sought to submit came directly from the business, in its own words, whereas here the submitter's statements were relayed by a third party within an affidavit."  The court holds that "hearsay within an affidavit cannot be considered."
  
  "Finally, [the court] address[es] FWS's argument that even if it was error to consider the hearsay in [the government's] Affidavit, that error was harmless because there was enough additional evidence to conclude that the withheld information was confidential."  "[The court] disagree[s]."  "The only other evidence of confidentiality FWS identifies are inferences it asks this Court to make based on the fact that the submitter is a distributer, as well as [the government's] verification that the submitter's website did not display the withheld information."  "The former fails to speak to the specific business and confidentiality practices of the submitter, and the latter, although certainly probative of confidentiality, does not foreclose the possibility that the submitter could have revealed the information to the public in other ways or at other times."