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Carolyn Jurewicz, et al v. United States Department of Agriculture

September 20, 2012

CAROLYN JUREWICZ, ET AL.,
PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANT,
AND
THE HUMANE SOCIETY OF THE UNITED STATES, DEFENDANT-INTERVENOR.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

In this "reverse-FOIA" case, Plaintiffs -- Missouri dog breeders and dealers -- seek to prevent the U.S. Department of Agriculture from releasing information requested by the Humane Society of the United States under the Freedom of Information Act. Specifically, Plaintiffs want to stop the USDA from disclosing the number of dogs that they buy and sell each year and their annual revenue from dog sales. Plaintiffs claim that two FOIA exemptions shield that information: Exemption 4, which protects confidential financial information, and Exemption 6, which protects private records whose release would constitute a clearly unwarranted invasion of personal privacy. Disagreeing with Plaintiffs, the USDA concluded that no FOIA exemption covers the information in dispute. Plaintiffs then filed suit in this Court, and all parties have now moved for summary judgment. Because the Court concludes that the USDA's conclusion was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the Court will grant the USDA's and the Humane Society's Motions and deny Plaintiffs'.

I.Background

A. Statutory and Regulatory Framework

The dispute in this case arises from requirements in the Animal Welfare Act. A brief discussion of that Act and the procedural underpinnings of reverse-FOIA actions is thus a helpful point of departure.

1. The Animal Welfare Act

The Animal Welfare Act requires "the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors." 7 U.S.C. § 2143(a)(1); see also 9 C.F.R. §§ 3.1-3.19 (setting standards for dogs and cats). To give those requirements teeth, Congress directs each "dealer" of "animals" to obtain a "license" from the USDA. 7 U.S.C. § 2134. An "animal" includes any dog that "is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet," or for "hunting, security, or breeding purposes." 7 U.S.C. § 2132(g). A "dealer" includes any entity (other than a retail pet store) earning more than $500 per year that "buys, or sells, or negotiates the purchase or sale" of domestic dogs for such purposes. 7 U.S.C. § 2132(f).

Congress directs the USDA to issue such a license "upon application therefor in such form and manner as [the USDA] may prescribe and upon payment of such fee established" pursuant to § 2153. 7 U.S.C. § 2133. Section 2153, in turn, directs the USDA to charge, assess, and collect a fee that is "reasonable" and "adjusted on an equitable basis taking into consideration the type and nature of the operations to be licensed." 7 U.S.C. § 2153. The USDA requires dealers to renew their licenses each year by paying a license fee and filing a report. See 9 C.F.R. § 2.5(b); see also 9 C.F.R. § 2.6 (fee); 9 C.F.R. § 2.7 (report).

The license-renewal fees range from $40 to $760. See 9 C.F.R. § 2.6(c) tbl.1. The fee depends on how much a dealer derived from regulated activities in the last year: for breeders, gross revenue from dog sales, see 9 C.F.R. § 2.6(b)(1); for brokers and auction operators, commissions from dog sales, see 9 C.F.R. § 2.6(b)(3); and for other dealers, the difference between the sale price and the purchase price of dogs sold. See 9 C.F.R. § 2.6(b)(2). The Animal and Plant Health Inspection Service (APHIS) within the USDA collects these fees.

The annual report that the USDA requires is called APHIS Form 7003. For the most part, the Form requests standard information from the dealer, such as name and address. But Block 8 (or sometimes Block 10) of the Form also requires each dealer to disclose more sensitive information: the number of dogs bought and sold in the last year; the gross revenue from dog sales in the last year; and, for nonbreeder dealers, the difference between the sale price and the purchase price of the dogs sold in the last year. See, e.g., Admin. Rec. (A.R.) 7, 21-23 (redacted Form 7003s). For convenience, the Court will call this information the "Block 8 information."

It is this information that Plaintiffs do not wish disclosed.

2. The Freedom of Information Act

FOIA provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . , shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). But FOIA exempts certain matters from that general disclosure requirement. Two FOIA exemptions are relevant here: Exemption 4, which covers matters that are "trade secrets and commercial or financial information obtained from a person and privileged or confidential," 5 U.S.C. § 552(b)(4); and Exemption 6, which covers "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Plaintiffs forfeited any challenge based on Exemption 3 by ignoring it in their Motion. See McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 6 (D.C. Cir. 2010).

The FOIA scales are weighted toward disclosure. The Supreme Court has "often noted the Act's goal of broad disclosure and insisted that the exemptions be given a narrow compass." Milner v. Dep't of the Navy, 131 S. Ct. 1259, 1265 (2011) (internal quotation marks omitted).

When an agency decides that no FOIA exemption applies, "[a] person whose information is about to be disclosed pursuant to a FOIA request may file a 'reverse-FOIA action' and seek to enjoin the Government from disclosing it." Canadian Commercial Corp. v. Dep't of the Air Force, 514 F.3d 37, 39 (D.C. Cir. 2008). Decisions to disclose information pursuant to FOIA "are in the nature of informal adjudications, and as such are reviewable under the generally applicable standards of [5 U.S.C.] § 706." Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 337 (D.C. Cir. 1989) (citation and internal quotation marks omitted); see also United Techs. Corp. v. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) ("When an agency determines, pursuant to a FOIA request, to disclose information gathered from a non-governmental source, the source may contest the disclosure as arbitrary and capricious or not in accordance with law under the Administrative Procedure Act, 5 U.S.C. §§ 702, 706(2)."). Thus, a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706.

B. Factual and Procedural History

In 2009, the Humane Society submitted multiple FOIA requests to the USDA. It asked for recent Forms filed by certain dog dealers, particularly dealers in Missouri. See Letter from Tracie Letterman, Humane Soc'y, to Tonya Woods, USDA (Aug. 20, 2009), A.R. 1; Letter from Katie Smith, Humane Soc'y, to Woods (Oct. 5, 2009), A.R. 24; Letter from Bettina Camcigil, Humane Soc'y, to Woods (Dec. 15, 2009), A.R. 164. The requests included the Forms of the three individual Plaintiffs -- Carolyn Jurewicz, Sharon Lavy, and the Hunte Corporation -- and the Forms of some members of the associational Plaintiff -- the Missouri Pet Breeders Association. Those FOIA requests have since wound along a twisting track.

At first, the USDA concluded that Exemptions 4 and 6 covered the Block 8 information and redacted Block 8 before releasing the Forms. See Letter from Celeste Camp, USDA, to Letterman (Apr. 8, 2010), A.R. 5; Letter from Camp to Letterman (Apr. 12, 2010), A.R. 19; Letter from Camp to Smith (Jan. 8, 2010), A.R. 28; Letter from Camp to Smith (Apr. 7, 2010), A.R. 96; Letter from Camp to Camcigil (Mar. 2, 2010), A.R. 167; Letter from Camp to Camcigil (Apr. 8, 2010), A.R. 702; Letter from Camp to Camcigil (Apr. 20, 2010), A.R. 369. The USDA also withheld Social Security numbers, third-party names, and signatures. No one has challenged those withholdings. See Letter from Woods to Breeder or Dealer 2 n.1 (Feb. 17, 2012) [hereinafter "Final USDA Letter"], A.R. 5526 n.1. Believing the Block 8 redactions improper, the Humane Society brought a FOIA suit in this Court, case number 10-cv-1683.

While that suit was pending, however, the USDA revisited its stance. It first sought comments from each dealer whose Forms were requested, asking whether the dealer believed that releasing the Block 8 information would cause the dealer substantial competitive harm and, if so, how. See, e.g., Letter from Woods to Breeder or Dealer (Nov. 22, 2010), A.R. 1006. After reviewing those comments, the USDA reversed its decision and concluded that neither Exemption applied. The USDA then sent letters to the dealers explaining its new decision and warning that it would release the Block 8 information unless the dealers filed suit. See Letter from Woods to Dealer or Breeder (Mar. 17, 2011), A.R. 4550. Plaintiffs then filed their reverse-FOIA suit, case number 11-cv-707. The Court has since consolidated the two actions. See Minute Order, Aug. 1, 2011.

The matter was still not yet ripe for decision. Instead, the USDA opted once again to re-examine its decision instead of litigating in court -- this time after discovering an apparent inaccuracy in its most recent decision letter. The USDA thus moved for a voluntary remand, and the Court granted the motion. See Minute Order, Dec. 9, 2011. Through Plaintiffs, the USDA then sent another round of letters to the dealers, seeking further comment on the release of the Block 8 information. See Letter from Woods to Breeder/Dealer Licensee (Dec. 19, 2011), A.R. 5075. But this time, after receiving comments, the USDA held firm that no FOIA exemption covers the Block 8 information. See Final USDA Letter, A.R. 5525. Plaintiffs then renewed their reverse-FOIA action, claiming that multiple FOIA exemptions cover that information. All parties have now filed Motions for Summary Judgment.

II.Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is "genuine" if the evidence is such that a reasonable jury could ...


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