People for the Ethical Treatment of Animals v. HHS, No. 16-5269, 2018 WL 4000478 (D.C. Cir. Aug. 17, 2018) (Griffith, J.)
Re: Request for records about the importation of nonhuman primates
Disposition: Affirming the judgment of the district court granting in part and denying in part the party's motions for summary judgment
- Exemption 4: The Court notes that, "[a]s [the importer] explained, revealing the number of each species of animal in its shipments would 'allow [its] competition to determine [its] volume of business and possibly interfere with [its] supply of such species.'" "PETA responds that USDA 'already posts detailed inventories of the exact number of species and quantities that each importer possesses." "If these inventory snapshots are already public, PETA reasons, disclosure cannot cause competitive injury." The Court finds that, "PETA is correct that information already available to the public cannot cause competitive injury and is not protected from disclosure by Exemption 4." "That said, to prevail on this argument, the requesting party 'has the burden of showing that there is a permanent public record of the exact portions he wishes' to obtain." "We see a material difference between inventory snapshots, posted periodically as part of inspection reports by the USDA, and the number of nonhuman primates obtained in various shipments."
"PETA argues that airlines willing to carry nonhuman primates are commonly known and so disclosing their identities would not cause substantial competitive injury." The Court finds that, "PETA overlooks the essential distinction between general industry data and particular business relationships or shipment-by-shipment supply chain information." "Knowing in the abstract which airlines transport nonhuman primates is very different than knowing which importers have relationships with which airline carriers, and which airline carriers are willing to transport which species of nonhuman primate along which routes and from which countries." Finally, the Court notes that, "the likelihood of substantial competitive injury can increase disproportionately as more information is released." "Requiring disclosure of multiple types of information provides a more comprehensive picture of each importer's supply chains, importation patterns and capacity, and business relationships." "Because the market for nonhuman primates is competitive and disclosure would likely cause substantial competitive injury, releasing shipment-by-shipment quantity, crate size, and airline carrier information would cause substantial harm to the competitive position of each importer." "The information is therefore confidential and protected from disclosure by Exemption 4."