People for the Ethical Treatment of Animals v. HHS, No. 15-309, 2017 WL 59079 (D.D.C. Jan. 5, 2017) (Kollar-Kotelly, J.)

People for the Ethical Treatment of Animals v. HHS, No. 15-309, 2017 WL 59079 (D.D.C. Jan. 5, 2017) (Kollar-Kotelly, J.)

Re: Request for records submitted by importers of nonhuman primates to CDC pursuant to public health regulations

Disposition: Granting defendant's motion for relief from judgment; granting in part and denying in part plaintiff's motion for relief from judgment

Exemption 4: "The Court grants Defendant's motion under Rule 60(b)(6) and now holds that the four categories of information the Court previously held qualified for protection pursuant to FOIA Exemption 4 with respect to the records of the seven objecting importers also qualify for such protection with respect to [additional importer] records." "In addition, the Court grants Plaintiff’s motion under Rule 60(b)(1) in that it now holds that two categories of information – animal quantity information and crate information – are not exempt with respect to the records of two importers[.]" "The Court denies Plaintiff's motion under Rule 60(b)(1) with respect to all other importers' records[.]" The court first finds that, "[a]s an initial matter, Plaintiff consents to Defendant's motion as it relates to the records of [one company]." "Accordingly, Defendant's motion is granted with regard to [that company]." Regarding three other importers, "the Court has become aware of . . . a 'previously undisclosed fact,' . . . and to ignore it would render its original opinion inherently unfair to the third parties whose business information is at risk." The court relates that "[d]efendant has now provided declarations from representatives of these three importers which state that the companies at issue did not fail to object because they did not believe disclosure would cause them harm." "Instead, the Rule 60(b) Declarations indicate that they failed to object because they were not aware that their information had been requested and was subject to disclosure." The court notes that "[t]hese facts . . . only became known to Defendant, and then the Court, after the Court's August 18, 2016 decision[.]" The court finds that "[t]here is no longer any just reason to treat the records of the previously non-objecting importers differently than the other importers at issue." In response to plaintiff's arguments, the court finds that "[d]efendant complied with the procedures for notifying the importers of Plaintiff's FOIA requests that is laid out in 45 C.F.R. § 5.65(d)(1) by sending pre-disclosure notices[.]" "Defendant accordingly acted reasonably and was required to do nothing more." "Plaintiff argues that Defendant did not exercise reasonable diligence because it did not actively seek declarations from [certain importers] regarding their objections to, and the competitive harm that would result from, the disclosure of their records before filing its motion for summary judgment." "But Defendant presumably assumed, as did this Court, that [those importers] silence meant that they had received the pre-disclosure notices and simply did not object to the release of their records." However, the court does "grant-in-part and deny-in-part Plaintiff’s motion under Rule 60(b)(1)." "[T]he Court will revise its August 18, 2016 Memorandum Opinion and Order by now ordering that animal quantity and crate information on [two importers'] records is not exempt from disclosure under Exemption 4[.]" "The Court agrees that neither importer in fact requested such information be withheld, and that this diminishes the probative value of their declarations." "However, having reviewed all of the evidence currently in the record, the Court finds that, regardless of [the two importers'] failure in this regard, there is still sufficient evidence to support the application of Exemption 4 to these categories of information for the remaining importers." Finally, in response to "[p]laintiff['s] alleg[ations] that the NHP importers committed 'fraud' in this case . . . because '[i]n the course of researching the primate import industry, PETA has learned that the importers who offered declarations' cooperate with each other and transfer primates between themselves[,]" and "this cooperation shows, contrary to the declarations of the importers, that the industry is not competitive, and that the information sought is not confidential[,]" the court finds that, "[f]irst, as a factual matter, the Court is not persuaded that the various examples of alleged 'cooperation' Plaintiff has pointed to in fact show that NHP importers freely share information, work as some sort of 'cooperative network,' . . . or are otherwise not competitive with each other." "Second, even if these instances of cooperation did tend to indicate a lack of competition and confidentiality for the purposes of Exemption 4, the importer declarations are still not the type of 'fraud,' 'misrepresentation' or 'misconduct' envisioned by Rule 60(b)(3)." "Beyond speculative assertions as to the importers' bad faith, Plaintiff offers no proof that declarants lied by arguing that their industry was sufficiently competitive to warrant protection under Exemption 4." Third, "[p]laintiff's motion fails because Plaintiff has not demonstrated that the alleged 'fraud' or 'misrepresentations' prejudiced Plaintiff."