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People for Ethical Treatment of Animals v. United States Department of Health and Human Services

United States District Court, District of Columbia

August 18, 2016

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY United States District Judge

         Plaintiff People for the Ethical Treatment of Animals (“PETA”) submitted a Freedom of Information Act (“FOIA”) request to Defendant United States Department of Health and Human Services (“HHS”), Centers for Disease Control and Prevention (“CDC”), seeking records submitted by importers of nonhuman primates to CDC pursuant to certain agency regulations.

         Presently before the Court are Defendant [17] Motion for Summary Judgment and Plaintiff [24] Cross-Motion for Summary Judgment. Upon consideration of the parties’ submissions, [1] the relevant legal authorities, and the record as a whole, the Court shall GRANT-IN-PART and DENY- IN-PART both motions for summary judgment. Specifically, the Court finds that:

• CDC has met its obligations under FOIA to perform an adequate search for records responsive to Plaintiffs FOIA request.
• Four categories of information requested by PETA-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-qualify for protection pursuant to FOIA Exemption 4.
• One category of information requested by PETA-the names of the species of animals imported-does not qualify for protection pursuant to FOIA Exemption 4 . Three NHP importers-Central State Primate, Dallas Zoo Management, and SBNL USA-have chosen not to object to the disclosure of the records that they have submitted. Accordingly, Plaintiff is entitled to each of the five categories of information that it has requested in the records submitted by these three non-objecting companies.
• CDC has shown with “reasonable specificity” that it has segregated all non-exempt information in its productions to PETA.
• The Vaughn Index submitted by CDC contains errors and deficiencies that require correction.

         The Court notes that in preparing this Memorandum Opinion, the Court has reviewed copies of all 1, 575 records produced by Defendant to Plaintiff in response to its FOIA request. See Documents Produced to Plaintiff on 6/4/2015 and 7/8/2015, ECF Nos. [33-1] - [33-5].

         I. BACKGROUND

         On May 19, 2014, CDC received a FOIA request, dated May 16, 2014, from Lindsay Waskey on behalf of PETA. Def.’s Stmt. ¶ 1. PETA’s FOIA sought (1) “[a]ll records submitted to CDC pursuant to 42 C.F.R. § 71.53(n)(2) from May 1, 2013 to the date this request is processed” and (2) “[a]ll records submitted to the CDC pursuant to 42 C.F.R. § 71.53(g)(1)(i) and (g)(1)(ii) from May 1, 2013 to the date this request is processed.” Id. ¶ 2. The regulations cited in the request concern the “prevention of] the introduction, transmission, and spread of communicable diseases” “from nonhuman primates (NHPs) imported into the United States[.]” 42 C.F.R. § 71.53.[2]

         By letter dated May 19, 2014, the CDC FOIA Office sent an acknowledgement letter to PETA. Def.’s Stmt. ¶ 3. PETA was informed that the requested documents were maintained in areas of CDC outside of the CDC FOIA Office, and CDC would be unable to comply with the twenty-working day time limit or the ten additional days provided by the statute. Id.

         On May 19, 2014, the CDC FOIA Office sent the FOIA request and directions for processing the request to the Office of Infectious Diseases, National Center for Emerging and Zoonotic Infectious Diseases (NCEZID). Id. ¶ 4. The CDC FOIA Office chose NCEZID to conduct the search because that office handles the primate importation issues which fell within the scope of the regulations cited in the FOIA request, and the FOIA Office believed that NCEZID was the office most likely to collect and/or maintain responsive records. Id.; see also Norris Decl., ECF No. [18-1], ¶ 8.

         In August 2014, CDC informed PETA that because of the nature of the documents required by PETA, and in order to comply with Executive Order No. 12600-which requires Federal agencies to notify submitters when such requests are received and to provide submitters the opportunity to identify information within their records deemed to be confidential, commercial, or financial material-CDC’s estimated response time would be thirty-six months from August 2014. Def.’s Stmt. ¶ 15. On March 3, 2015, PETA filed the instant suit, seeking the documents requested in its initial FOIA request. See Pl.’s Complaint, ECF No. [1].

         On March 26, 2015, CDC’s FOIA Office received NCEZID’s response to Plaintiff’s FOIA request. Def.’s Stmt. ¶ 15. NCEZID indicated that it had performed an electronic search in its central repository for all documents related to the importation of nonhuman primates and that NCEZID had identified 1, 575 responsive records. Id. ¶¶ 15-17. NCEZID provided the 1, 575 responsive records to CDC’s FOIA Office. Id. ¶ 18.

         On April 7, 2015, pre-disclosure notifications were sent to ten entities which had provided the responsive records to CDC during the relevant time perirod. Id. ¶ 19.[3] As part of their businesses, each of these entities participates in the importation of non-human primates into the United States. Id. ¶ 22. Seven of the ten entities provided responses to the predisclosure notifications: (1) Bartons West End Farms, Inc., (2) Buckshire Corporation, (3) Charles River, (4) Covance Research Products, (5) PTLC/Primate Products, (6) Valley Biosystems, and (7) Worldwide Primates, Inc. Norris Decl., ECF No. [18-1], ¶ 22. Three entities did not provide responses: (8) Central State Primate, (9) Dallas Zoo Management, and (10) SBNL USA. See id.; Vaughn Index, ECF No. [17-15], at 2.

         On June 4, 2015, CDC released to Plaintiff 669 pages of responsive records. Def.’s Stmt. ¶ 22. On July 8, 2015, CDC released to Plaintiff 906 pages of responsive records. Id. ¶ 23. In total, CDC released 1575 pages of responsive records. CDC withheld approximately 144 pages in full and many other pages in part, citing FOIA Exemptions 4 and 6. See id.

         The records produced by CDC contain several dozen categories of information relating to the importation of shipments of nonhuman primates, or “NHPs.” Plaintiff, however, seeks only five categories of information provided to CDC: (1) the species of animals imported, (2) the quantity of animals imported, (3) the descriptions of crates used in shipments, (4) the names of the companies that export the animals, and (5) the names of the airline carriers that transport the animals. See Pl.’s Opp’n and Cross-Motion, ECF No. [23], at 1. As to those five categories of information, Plaintiff contends that CDC has wrongfully withheld information under FOIA. PETA does not seek any other categories of information. Id. at 1, n.1.

         On October 13, 2015, Defendant filed its Motion for Summary Judgment, and on November 25, 2015, Plaintiff filed its Cross-Motion for Summary Judgment. The motions are now ripe for resolution.

         II. LEGAL STANDARD

         Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that “legitimate governmental and private interests could be harmed by release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621 (1982). To that end, FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions.” Milner v. Dep't of Navy, 562 U.S. 562, 562 (2011). Ultimately, “disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). For this reason, the “exemptions are explicitly made exclusive, and must be narrowly construed.” Milner, 562 U.S. at 565 (citations omitted).

         When presented with a motion for summary judgment in this context, the district court must conduct a “de novo” review of the record, which requires the court to “ascertain whether the agency has sustained its burden of demonstrating the documents requested . . . are exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep't of Agriculture, 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its response to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Multi Ag. Media, 515 F.3d at 1227 (citation omitted). “If an agency’s affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). “Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations “show[ ] 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).

         An agency also has the burden of detailing “what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document.” Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any nonexempt information that is reasonably segregable from the requested records must be disclosed. Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996).

         III. DISCUSSION

         The Freedom of Information Act requires federal agencies, in responding to a request for information, to: (1) conduct an adequate search for that information through reasonable efforts; (2) provide the information to the requester, unless it falls within a FOIA exemption; and (3) provide to a requester any information that can reasonably be segregated from the exempt information. 5 U.S.C. § 552(a)(3); 5 U.S.C. § 552(b). In response to Plaintiff’s FOIA request, CDC has withheld portions of documents pursuant to Exemptions 4 and 6 of the FOIA, 5 U.S.C. §§ 552(b)(4), 552(b)(6).

         Plaintiff challenges the reasonableness of CDC’s search and contends that CDC has failed to remedy deficiencies that are present in CDC’s Vaughn Index. See Pl.’s Cross-Motion, ECF No. [23-1], at 32-37; Pl.’s Reply, ECF No. [31], at 23-25. Plaintiff also challenges CDC’s withholding of portions of records under Exemption 4. See Pl.’s Opp’n and Cross-Motion, ECF No. [23-1], at 8. CDC’s withholding of portions of records under Exemption 6 is not in dispute, as none of the information withheld pursuant to Exemption 6 falls within the five categories of information now sought by Plaintiff. See Def’s Opp’n and Reply, ECF No. [28], at 2-3; Pl.’s Reply, ECF No. [31], at 1 n.1.

         A. Adequacy of Search

         In its Opposition and Cross-Motion for Summary Judgment, Plaintiff contends that CDC failed to perform an adequate search in response to Plaintiff’s FOIA request. See Pl.’s Opp’n and Cross-Motion, ECF No. [23-1], at 35-37.

         Specifically, Plaintiff points to the fact that its FOIA request included “[a]ll records submitted to CDC pursuant to 42 C.F.R. § 71.53(g)(1)(i) and (g)(1)(ii) from May 1, 2013 to the date this request is processed.” Pl.’s Complaint, ECF [1], at ¶ 9. Under this regulation, “[b]efore importing any live [primate] into the United States, . . . an importer must register with and receive written approval from the Director.” 42 C.F.R. § 71.53(g). To register or renew registration, the importer “must submit the following documents to HHS/CDC: (i) a completed registration/application form; (ii) a completed statement of intent that describes the number and types of [primates] intended for import during the registration period, the intended permitted purposes for which the NHPs will be imported . . . .” Id. at § 71.53(g)(1).

         Plaintiff argues that CDC failed to perform an adequate search because CDC “has not produced a single registration form or statement of intent.” Pl.’s Opp’n and Cross-Motion, ECF No. [23-1], at 36. Plaintiff contends that CDC “should have located multiple registration forms and statements of intent in the course of a reasonable search, ” citing the fact that “at least ten companies imported primates during the relevant time period.” Id. Plaintiff further contends that CDC “never even looked for these documents” and instead focused “only on documents relating to individual shipments.” See Id. at 37 (citing FOIA Response Sheet, Exhibit K to Norris Declaration, ECF No. [17-12], at 6) (emphasis added).

         In response, CDC points out that the regulation at issue addresses only new NHP importers or those NHP importers that are renewing their registration.” Def.’s Opp’n and Reply, ECF No. [28], at 30; see also 42 C.F.R. § 71.53(g) (titled “Registration or renewal of importers, ” quoted in footnote 2, supra). Defendant has also produced a supplemental declaration from CDC’s FOIA Officer, Katherine Norris, which indicates that on July 15, 2014, CDC’s Medical Officer, Dr. Robert J. Mullan, conducted a search of CDC’s electronic “QARS” database for records submitted to CDC pursuant to 42 C.F.R. § 71.53(g)(1)(i) and (ii). See Supp. Norris Decl., ECF No. [28-5], at ¶ 20.[4]According to the declaration submitted by CDC, Dr. Mullan conducted the search by “utilizing a line listing of all nonhuman primate shipments arriving during the period requested.” Id. Dr. Mullan first used the term “Date of Arrival”, of NHP shipments, which then produced a list of all the QARS numbers for shipments arriving during the request period. Id. Dr. Mullan then located and reviewed each QARS record to which the importers’ shipment notifications were attached. Id. No responsive records were located. Id.

         In addition, in response to PETA’s assertion that CDC did not perform an adequate search for records responsive to PETA’s FOIA request, Dr. Mullan conducted a subsequent search by reviewing agency documents that indicated what companies were registered at any given time, for the purpose of determining whether any NHP importers registered or reregistered in the time period between May 1, 2013 and May 19, 2014. Id. ¶ 21. According to the declaration submitted by CDC, no responsive records were located, as there were no new or renewing applicants for non-human primate importation registrations during this time period. Id. ¶ 22. The declaration also states that “each step in the handling of Plaintiff’s request has been entirely consistent with the CDC’s procedures adopted to insure an equitable response to all persons seeking access to records under the FOIA.” Id. ¶ 21.

         Upon review of the parties’ submissions, the Court finds that CDC has performed an adequate search for records responsive to Plaintiff’s FOIA request. See DiBacco v. U.S. Army, 795 F.3d 178, 194-95 (D.C. Cir. 2015). A FOIA search is sufficient if the agency makes “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995)). Here, 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.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Furthermore, the record evidence demonstrates that in addition to its initial search for documents, PETA conducted a subsequent search in response to PETA’s assertion that CDC had not performed an adequate search for records. See Supp. Norris Decl., ECF No. [28-5]. The Court notes that the adequacy of that subsequent search has not been disputed by PETA in its Reply brief. See Pl.’s Reply, ECF No. [31].

         In light of the foregoing, the Court finds that CDC has met its obligations under FOIA to perform an adequate search for records responsive to Plaintiff’s FOIA request. See DiBacco, 795 F.3d at 194-955, quoting Meeroopol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) (“[A]dequacy is measured by the reasonableness of the effort in light of the specific request.”).

         B. FOIA Exemption 4

         CDC relies upon Exemption 4 of FOIA as a basis for withholding each of the five categories of information sought by Plaintiff: (1) the species of animals imported, (2) the quantity of animals imported, (3) the descriptions of crates used in shipments, (4) the names of the companies that export the animals, and (5) the names of the airline carriers that transport the animals. Exemption 4 protects “commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4).[5] To invoke the exemption, an agency must show that “the information is: (1) commercial or financial; (2) obtained from a person, and (3) privileged or confidential.” Canadian Commercial Corp. v. Dep't of Air Force, 442 F.Supp.2d 15, 30 (D.D.C.2006), aff'd, 514 F.3d 37 (D.C. Cir. 2008).

         At the outset, the Court notes that PETA does not dispute that the information at issue was obtained from a “person” and is “commercial.” See Pl.’s Cross-Motion, ECF No. [23-1], at 8. 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. To determine whether information is “privileged or confidential, ” a court “must first determine whether the requested information was submitted voluntarily or whether its submission was required.” Pub. Citizen Health Research Grp. v. Nat’l Institutes of Health, 209 F.Supp.2d 37, 45 (D.D.C. 2002) (citing McDonnell Douglas Corp. v. NASA, 180 F.3d 303, 304 (D.C. Cir. 1999)). Here, 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, including the “[n]umber and species of NHPs being imported, ” a “[d]escription of crates” used in the shipment, “the exporter, ” and “the name of the airline.” 42 C.F.R. § 71.53(n)(2). Accordingly, the submission of the information at issue is “unquestionably required.” Pl.’s Cross-Motion, ECF No. [23-1], at 8; see also Def.’s Opp’n and Reply, ECF No. [28], at 6.

         Where, as here, information was submitted to the Government involuntarily, such information is considered “privileged or confidential” if disclosing it would either (1) “cause substantial harm to the competitive position of the person from whom the information was obtained” or (2) “impair the Government’s ability to obtain necessary information in the future.” Nat’l Parks and Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (“Nat’l Parks I”); see also Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 878 (D.C. Cir. 1992). The United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) has cautioned that “conclusory statements” are insufficient to meet the Government’s burden on these issues. See Multi Ag. Media, 515 F.3d at 1227.

         1. Substantial Competitive Injury

         To prove a likelihood of substantial competitive harm, HHS must prove that (1) the submitters of the information “actually face competition” and that (2) “substantial competitive injury [to the submitters] would likely result from disclosure.” Nat’l Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673, 679 (D.C. Cir. 1976) (“Nat'l Parks II”). Here, it is undisputed that the NHP importers submitting the information in question “actually face competition.” Id. Accordingly, the Court’s analysis shall focus on the second element-whether “substantial competitive injury” to the NHP importers submitting the information would likely result from disclosure. Id.

         a. Proof of Substantial Harm

         i. Legal Framework

         In FOIA cases involving the commercial importation industry, courts have found that a commercial importer faces substantial competitive harm where disclosure of the requested information would compromise valuable business data, such as the importer’s “intentions, profit margin, and other plans, ”[6] the quantity and specific description of the exact product imported by the importer, [7] the importer’s “sources of supply, product lines, supply chains and customers, ”[8] and the ...


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