People for the Ethical Treatment of Animals v. HHS, No. 15-309, 2016 WL 4401979 (D.D.C. Aug. 18, 2016) (Kollar-Kotelly, J.)
Re: Request for records submitted by importers of nonhuman primates to CDC pursuant to certain agency regulations
Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment
- Litigation Considerations, Adequacy of Search: "[T]he Court finds that CDC has met its obligations under FOIA to perform an adequate search for records responsive to Plaintiff's FOIA request." The court finds that "the declarations submitted by CDC explain 'in reasonable detail the scope and method of the search conducted by the agency [sufficient] to demonstrate compliance with the obligations imposed by the FOIA.'" "Furthermore, the record evidence demonstrates that in addition to its initial search for documents, [defendant] conducted a subsequent search in response to [plaintiff's] assertion that CDC had not performed an adequate search for records."
- Exemption 4: The court finds that some of defendant's withholdings were appropriate and others were not. "At the outset, the Court notes that [plaintiff] does not dispute that the information at issue was obtained from a 'person' and is 'commercial.'" "Accordingly, the Court's analysis shall focus on the sole issue of whether the information at issue is 'privileged or confidential' for the purposes of Exemption 4." The court then finds that "[h]ere, it is undisputed that in connection with the importation of primates into the United States, an importer 'must notify HHS/CDC' of the shipment and provide nineteen discrete categories of information[.]" "Accordingly, the submission of the information at issue is 'unquestionably required.'" The court next finds that "[h]ere, it is undisputed that the . . . importers submitting the information in question 'actually face competition.'" The court explains that "extensive disclosure" of this information by the importers, combined with "[p]laintiff's production of evidence demonstrating that in many instances, the names of species imported by NHP are publically available[,]" "undercuts CDC's argument." However, "the Court finds that CDC has not met its burden of showing that the . . . importers in question would be substantially harmed by the disclosure of the names of the species imported." "However, CDC has met its burden of showing that the NHP importers in question would be substantially harmed if CDC were to disclose the remaining four categories of information – the quantity of animals imported, the descriptions of crates used in shipments, the names of the companies that export the animals, and the names of the airline carriers that transport the animals." "The Court finds that these four categories of information constitute valuable confidential information, which, if disclosed, would cause substantial harm to the . . . importers submitting this information." "The record evidence indicates that in the particular market at issue . . . there are a 'limited number of licensed importers . . . and they operate in a very competitive environment.'" Additionally, responding to one of plaintiff's arguments, "the Court finds that the information requested by [plaintiff] has not become 'stale,' and that the commercial value of the requested information remains significant."
Additionally, "the Court finds that . . . three companies that chose not to object to the disclosure of their information . . . have not proffered that disclosure would harm their companies." "In other words, because these three companies have elected not to object to the disclosure of the requested information – despite having the opportunity to do so – there is a reasonable assumption that these three companies would not face substantial harm by the disclosure of the requested information." "Accordingly, the Court finds that in this case, Plaintiff is entitled to each of the five categories of information that it requests in the records specifically submitted by the three non-objecting companies."
Also, "[t]he Court finds unavailing [plaintiff's] argument that even if the disclosed information includes 'confidential commercial information,' the individual . . . importers in question would not face any competitive disadvantages by the disclosure of the requested information on the grounds that each individual importer would be 'symmetrically' disclosing the same types of information." "In other words, [plaintiff] argues that because all . . . importers would face the same disadvantage when disclosing the confidential information, no single . . . importer would face a competitive disadvantage." The court particularly notes that "CDC has produced evidence indicating that while licensed . . . importers 'may submit the same type of information, the particular information each submits is different based upon the volume of business.'"
The court "also consider[s] whether the requested information can be considered 'confidential' on the alternative grounds that disclosure of the requested information would 'impair the Government's ability to obtain necessary information in the future.'" "The court agrees with [plaintiff] and finds CDC's arguments unavailing and conclusory." "CDC has not produced any evidence – or pointed to any factual or legal authorities – suggesting that the Government's ability to obtain information in the future would be harmed by the release of the requested information." The court finds that "an impairment claim 'is inherently weak where, as here, the agency has secured the information under compulsion.'"
- Litigation Considerations, "Reasonably Segregable" Requirements: "[T]he Court finds that CDC has shown with 'reasonable specificity' that it has segregated all non-exempt information in its productions to [plaintiff]." Specifically, the court finds that defendant "has provided a reasonable and plausible explanation for the variances in redactions ["among similar documents"]."
- Litigation Considerations, Vaughn Index/Declaration: "The Court shall require CDC to correct [certain] errors and inaccuracies [in its Vaughn Index] and shall require CDC to provide a newly corrected
- Index to [plaintiff]."