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In Defense of Animals v. United States Dep't of Agriculture

September 18, 2009

IN DEFENSE OF ANIMALS, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION

Plaintiff In Defense of Animals ("IDA") brought this action against the United States Department of Agriculture ("USDA") seeking to compel the disclosure of records relating to the USDA's investigation of Huntingdon Life Sciences, Inc. ("HLS") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Life Sciences Research, Inc. ("LSR"), the parent company of HLS, later intervened as a defendant in this action. At trial, the defendants carried the burden to prove that information contained in the 1017 pages of agency records remaining in issue had been properly withheld under FOIA Exemption 4 exempting release of records that would cause substantial competitive harm to HLS. Because the defendants have not carried their burden to demonstrate that the records at issue were properly withheld under Exemption 4, with all reasonably segregable material disclosed, judgment will be entered for the plaintiff.

BACKGROUND FINDINGS OF FACT

IDA, an animal protection organization, brought this FOIA action against the USDA seeking the disclosure of records concerning the USDA's investigation of HLS, a contract research organization ("CRO") with a registered research facility located in New Jersey that is regulated by the USDA under the Animal Welfare Act ("AWA"). IDA submitted a FOIA request to the USDA requesting "all records relating to the agency's investigation of HLS." (Stip. Facts ¶ 17.) In response, the USDA released thirty-one pages to IDA, including a report of violation, the administrative complaint against HLS and the consent decision and order. (Id. ¶ 18.) IDA brought this action to compel the USDA to provide IDA with additional records responsive to their FOIA request. (Id. ¶ 19.) The USDA informed IDA that it had identified 2778 pages of responsive records, of which it released 228 pages in full; released 146 pages in part, with personal information withheld under FOIA Exemption 6; withheld 19 pages in full and one page in part under FOIA Exemption 5, and sent 2384 pages to HLS to obtain HLS' views as to whether such records were exempt from disclosure under FOIA Exemption 4. (Id. ¶ 21.)

During the course of litigation, the parties reduced the number of documents at issue and narrowed the scope of issues for trial. The USDA released additional documents to IDA. IDA "agreed to forgo test protocols and protocol amendments; animal tracking and assessment records; the identification of any compound or product; and the identity of any customer of HLS; and dosing charts."*fn1 (Id. ¶ 25.) The parties filed cross-motions for summary judgment which were denied without prejudice because the defendants failed to provide an adequate Vaughn index*fn2 or other evidence upon which the court could assess whether the information withheld was properly exempted. The defendants were ordered to prepare "a comprehensive Vaughn index describing the documents withheld (and to the extent necessary, portions thereof), the reasons for nondisclosure, and the reasons for nonsegregability." (Mem. Op. & Order at 2, 34 (Sept. 28, 2004).) The defendants provided a Vaughn index to IDA and the parties renewed their cross-motions for summary judgment.

After in camera review of a sampling of these documents at issue, Judge Oberdorfer denied the parties' renewed cross-motions for summary judgment, concluding that there was a disputed material fact as to whether disclosure of documents withheld under FOIA Exemption 4 would cause substantial competitive harm to HLS. In Def. of Animals v. USDA, 501 F. Supp. 2d 1, 8 (D.D.C. 2007). He advised the parties that "[a] trial on the merits would be greatly facilitated by expert testimony on the ability of competitors to reverse engineer proprietary information from the disputed documents, as well as the likelihood of effective advantage to a competitor from the redacted data." Id.

FOIA Exemption 4 prevents disclosure of "trade secrets and commercial or financial information obtained from a person and privileged or confidential[.]" 5 U.S.C. § 552(b)(4). Remaining at issue in this case are 1017 pages of agency records created before or during 1998 that relate to seven animal studies conducted at HLS. (Stip. Facts ¶¶ 39-40.) The USDA has withheld 503 pages in full and 514 pages in part under Exemption 4. (Id. ¶ 36.) The 1017 pages are grouped into the following eleven categories: (1) Institutional Animal Care and Use Committee ("IACUC") records (56 pages withheld in part); (2) HLS memoranda (33 pages withheld in full and 7 pages withheld in part); (3) USDA investigatory memoranda (27 pages withheld in part); (4) necropsy and post-mortem examination reports (23 pages withheld in full); (5) viability records (58 pages withheld in full and 397 pages withheld in part); (6) veterinary treatment requests and logs (94 pages withheld in full and 20 pages withheld in part); (7) observation sheets (28 pages withheld in full); (8) miscellaneous records pertaining to animal cages (7 pages withheld in part); (9) final test reports and related records (124 pages withheld in full); (10) clinical observation reports (121 pages withheld in full); and (11) interim test reports (22 pages withheld in full). (Id.)

The parties conducted a two-day trial. LSR called as witnesses Michael Caulfield, the General Manager of HLS, and Dr. Robert Szot, an expert in the fields of toxicology, early-stage drug development, and the relationship between the pharmaceutical industry and CROs.

LEGAL FRAMEWORK

FOIA requires each federal agency to make available for public perusal government records unless the requested documents fall under one of nine categories of exemptions. 5 U.S.C. §§ 552(a)-(b). FOIA exemptions "must be narrowly construed" and "the burden is on the agency to sustain its action." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (internal quotation marks omitted); 5 U.S.C. § 552(a)(4)(B).

A. Exemption 4

FOIA Exemption 4 prevents disclosure of "trade secrets and commercial or financial information obtained from a person and privileged or confidential[.]" 5 U.S.C. § 552(b)(4). The parties have previously agreed that trade secret protection does not apply in this case and that the information withheld under Exemption 4 is "commercial" and "obtained from a person." In Def. of Animals, 501 F. Supp. 2d at 6. The remaining question, then, is whether the withheld commercial information is "confidential."*fn3

In the District of Columbia Circuit, commercial information is "confidential" under Exemption 4 if "disclosure would either '(1) . . . impair the Government's ability to obtain necessary information in the future; or (2) . . . cause substantial harm to the competitive position of the person from whom it was obtained.'" Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290-91 (D.C. Cir. 1983) (alteration in original) (quoting Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (footnote omitted)). Where the government obtains information involuntarily, disclosure does not impair the government's ability to obtain similar information in the future. See Nat'l Parks, 498 F.2d at 770. In this case, the defendants, conceding that the documents at issue were obtained involuntarily, allege that the records are properly withheld under the second prong of the National Parks test because disclosure of the information withheld would cause substantial harm to HLS's competitive position.*fn4

The type of competitive injury covered under Exemption 4 is limited to "that which may flow from competitors' use of the released information[.]" Ctr. to Prevent Handgun Violence v. U.S. Dep't of the Treasury, 981 F. Supp. 20, 23 (D.D.C. 1997) (emphasis in original) (rejecting the Bureau of Alcohol, Tobacco, and Firearms' argument that releasing reports would subject licensed gun dealers to "unwarranted criticism and harassment" as irrelevant to the competitive harm analysis); see Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 51-52 (D.C. Cir. 1981) (inquiring "whether release of the requested information, given its commercial value to competitors and the cost of acquiring it through other means," will create a "windfall for competitors" that puts the disclosing entity at a commercial disadvantage). As the court of appeals has explained:

"[t]he important point for competitive harm in the FOIA context . . . is that it be limited to harm flowing from the affirmative use of proprietary information by competitors. Competitive harm should not be taken to mean simply any injury to competitive position, as might flow from customer or employee disgruntlement or from the embarrassing publicity attendant upon public revelations concerning, for example, illegal or unethical payments to government officials or violations of civil rights, environmental or safety laws."

Pub. Citizen Health Research Group, 704 F.2d at 1291 n.30 (quoting Mark Q. Connelly, Secrets and Smokescreens: A Legal and Economic Analysis of Government Disclosures of Business Data, 1981 Wis. L. Rev. 207, 235-36 (emphasis and alteration in original)).

To satisfy Exemption 4, an agency need not prove "actual competitive harm" but must show (1) actual competition and (2) the "likelihood of substantial competitive injury." Id. at 1291 (internal citation omitted). While "the court need not conduct a sophisticated economic analysis of the likely effects of disclosure, [c]onclusory and generalized allegations of substantial competitive harm . . . cannot support an agency's decision to withhold requested documents." Id. (internal citation omitted); see Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 830 (D.C. Cir. 1979) (finding an agency's "conclusory and generalized allegations of exemptions" insufficient to support summary judgment for the agency (internal quotation marks omitted)). "The defendant must ...


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