UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HUMANE SOCIETY INTERNATIONAL,

Plaintiff,

v.

UNITED STATES FISH AND WILDLIFE SERVICE et al., Civil Action No. 16-720 (TJK) Defendants,

and

SAFARI CLUB INTERNATIONAL,

Defendant-Intervenor.

MEMORANDUM OPINION

Humane Society International, a nonprofit that promotes animal conservation and

welfare, requested records maintained by the Fish and Wildlife Service about the import and

export of wildlife under the Freedom of Information Act. The agency released the records but

redacted certain categories of information under exemptions for commercial, private personal,

and law enforcement information. Humane Society International sued to challenge those

redactions, and the Court allowed Safari Club International to intervene as a defendant. After the

parties cross moved for summary judgement, the Court entered partial summary judgment for

Defendants on the applicability of some exemptions but ordered further briefing on the effect of

the Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media,

(2019), on when the government may withhold commercial information under FOIA’s

Exemption 4. With the benefit of the parties’ renewed motions, the Court finds that the information at issue is not confidential under Exemption 4 and enters summary judgment for

Humane Society International on its claims related to that exemption.

Factual and Procedural Background

This dispute’s background was described in the Court’s prior opinion. See Humane Soc’y

Int’l v. U.S. Fish & Wildlife Serv.,

, 71–73 (D.D.C. 2019). In brief, Humane

Society International (HSI) requested certain information from the Fish and Wildlife Service

(“the Service”) stored in its Law Enforcement Management Information System (LEMIS). The

LEMIS database contains information that wildlife importers and exporters provide to the

Service when submitting Form 3-177, which is required to import or export wildlife or wildlife

products.

. The categories of information within the LEMIS database at issue include

the following: “Species Code; Genus; Species; Subspecies; Specific Name; Generic Name;

Wildlife Description; Quantity; Unit; Value; Country of Origin Code; Country if Import/Export;

Purpose; Source; Action; Disposition Code; Disposition Date; Ship Date; Import/Export; Port

Code; U.S. Importer/Exporter; and Foreign Importer/Exporter.” ECF No. 54 at 44–74 (“Pl.’s

SOF”) ¶ 47. The Service originally withheld this and other information under FOIA Exemptions

4, 6, and 7.

The parties’ only remaining dispute concerns the applicability of Exemption 4 to this

information as it pertains to the activities of corporate importers and exporters. The Court

previously entered partial summary judgment for the Service, the Department of the Interior, the

Secretary of the Interior, and Defendant-Intervenor Safari Club International (“Defendants”) and

held that the Service had appropriately invoked Exemption 7(c) to redact the names of individual

persons listed on Form 3-177. Humane Soc’y Int’l, 394 F. Supp. 3d at 78. That ruling also

disposed of the Service’s invocation of Exemption 6 relating to the same redactions, id. at 74, as

2 well as HSI’s claim under the Administrative Procedure Act, id. at 78–79.1 But following the

close of summary judgment briefing, the Supreme Court had issued its decision in Food

Marketing Institute, which addressed the legal test for withholding records under Exemption 4.

Thus, the Court ordered renewed briefing accounting for the intervening change of law. Humane

Soc’y Int’l, 394 F. Supp. 3d at 74. The parties then renewed their motions for summary

judgment on HSI’s claims relating to Exemption 4.

Besides addressing the effect of that case, Defendants have also supplemented the record.

The Service originally submitted objections to disclosure of the information at issue from

companies whose LEMIS data had been requested by HSI. See ECF No. 33 (“Hyde-Michaels

Decl. Exs.”). Following Food Marketing, the Service also contacted the firms whose data it still

contends it may withhold under Exemption 4. See ECF No. 50-2 (“Willis Decl. Exs.”). The

Service invited the companies to certify, echoing the test set out by the Court, that they

“customarily and actually” treat the requested information as private, they have “not disclosed

the information to the public,” “the information is not routinely available to the public from other

sources,” and “the information is therefore confidential.” Id. at 7; ECF No. 50-1 (“Willis Decl.”)

¶ 9. Twenty-four of those companies responded. Pl.’s SOF ¶ 52.

Legal Standards

“Summary judgment is appropriately granted when, viewing the evidence in the light

most favorable to the non-movants and drawing all reasonable inferences accordingly, no

1 HSI also asserts a claim that the Service failed to adhere to FOIA’s statutory deadlines, but as the parties have implicitly recognized by failing to address that claim in their motions, “the FOIA does not create a cause of action for an agency’s untimely response to a FOIA request. The statute clearly provides a requester a remedy for an agency’s non-compliance with its time limit provisions: a direct avenue to the district courts to ‘enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.’

(a)(4)(B).” Ocasio v. U.S. Dep’t of Justice,

, 476–77 (D.D.C. 2014) (quoting Bangoura v. Dep’t of Army,

, 142 n.6 (D.D.C. 2009)).

3 reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.–Islamic Rels.

Action Network, Inc.,

(D.C. Cir. 2016). “The evidence presented must show

‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.’”

(quoting Fed. R. Civ. P. 56(a)). The “majority of FOIA cases can be

resolved on summary judgment.” Brayton v. Off. of U.S. Trade Rep.,

(D.C.

Cir. 2011).

Under FOIA, a federal agency must “disclose information to the public upon reasonable

request unless the records at issue fall within specifically delineated exemptions.” Judicial

Watch, Inc. v. FBI,

(D.C. Cir. 2008). FOIA creates a “strong presumption in

favor of disclosure,” which “places the burden on the agency to justify the withholding of any

requested documents.” U.S. Dep’t of State v. Ray,

(1991); Citizens for Resp.

& Ethics in Wash. v. U.S. Dep’t of Justice,

(D.C. Cir. 2014). An agency

can meet its burden “through affidavits or declarations that ‘describe the justifications for

nondisclosure with reasonably specific detail, demonstrate that the information withheld

logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.’” PETA v. U.S. Dep’t of Health &

Hum. Servs.,

(D.C. Cir. 2018) (quoting Larson v. Dep’t of State,

(D.C. Cir. 2009)). Affidavits that are “conclusory, merely reciting statutory standards,”

cannot support summary judgment. Campbell v. U.S. Dep’t of Justice,

(D.C.

Cir. 1998) (citation omitted). This standard also applies to third-party affidavits or declarations.

See Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy,

(D.C. Cir. 1999)

(rejecting government and private party affidavits containing “conclusory and generalized

assertions”).

4 Analysis

A. Legal Framework

FOIA’s Exemption 4 permits federal agencies to withhold “trade secrets and commercial

or financial information obtained from a person [that is] privileged or confidential.”

(b)(4). To show that this exemption shelters the information withheld, the Service must

show that it is “(1) commercial or financial, (2) obtained from a person, and (3) privileged or

confidential.” Pub. Citizen Health Research Grp. v. FDA,

(D.C. Cir. 1983).

The parties focus their arguments on the second and third prong, but because the Court finds that

the information is not confidential under the third prong, it need not address the others.

As noted, Food Marketing addressed the test for when information is confidential under

Exemption 4.

(2019). In that case, the Court discussed two potential conditions

for information communicated to another to be found “confidential”: that (1) the information is

“customarily kept private, or at least closely held, by the person imparting it”; and (2) the party

receiving the information “provides some assurance that it will remain secret.”

. The

Court held that the first condition must be met but left open whether the second also had to be—

in other words, whether privately held information could “lose its confidential character for

purposes of Exemption 4 if it’s communicated to the government without assurances that the

government will keep it private.”

Thus, regardless of the status of the second prong, the

government must show that the commercial or financial information is “both customarily and

actually treated as private” to withhold it.

.

Food Marketing abrogated the D.C. Circuit’s decision in National Parks & Conservation

Association v. Morton,

(D.C. Cir. 1974). National Parks had established a two-

part test to determine whether information submitted to the government was “confidential” under

Exemption 4. Under that test, information was confidential if disclosing it would either “(1)

5 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 the information was

obtained.” National Parks,

. In a later case, Critical Mass Energy Project v.

NRC,

(D.C. Cir. 1992) (en banc), the Circuit limited that test to information parties

submit to the government involuntarily, and established a different test for information provided

voluntarily: whether it is “of a kind that would customarily not be released to the public by the

person from whom it was obtained.”

. But in abrogating National Parks, the

Supreme Court also made clear that the test for confidentiality under Exemption 4 does not differ

based on whether the government has compelled its submission. Food Marketing,

.

B. Whether the Companies Customarily and Actually Treat the Information at Issue as Private

The “heart of the [confidentiality] test” asks whether the Defendants can show the third-

party objectors customarily and actually treat the information at issue as private. Renewable

Fuels Ass’n & Growth Energy v. EPA, -- F. Supp. 3d --,

, at *6 (D.D.C. Feb.

16, 2021). And when assessing a third-party’s claim of confidentiality under Exemption 4, “the

court will consider how the particular party customarily treats the information, not how the

industry as a whole treats the information.” Ctr. for Auto Safety v. Nat’l Highway Traffic Safety

Admin.,

(D.C. Cir. 2001).

1. The Companies’ Declarations

In support of their decision to withhold the LEMIS data, Defendants submitted over a

hundred separate objections from third parties claiming that their information is exempt under

Exemption 4. See Hyde-Michaels Decl. Exs. 33-1–33-6; Willis Decl. Exs. at 10–115.

6 Defendants submitted two groups of objections, both before and after Food Marketing was

decided. ECF No. 60 at 5–6.

The problem for Defendants is that almost all of these declarations do not help them meet

their burden of showing that the companies customarily and actually treat the information as

private. For starters, many of the declarations are inadmissible hearsay. “Rule 56 clearly

contemplates the submission of declarations in support of summary judgment.” Brooks v. Kerry,

(D.D.C. 2014). But such declarations “must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Notarized

sworn affidavits are the gold standard, but federal law allows “[u]nsworn declarations,

subscribed by the declarant as true under penalty of perjury, [to] be substituted for affidavits.”

Jarvik v. C.I.A.,

, 110 n.3 (D.D.C. 2010) (citing

); see also

Weber v. U.S. Dep’t of State,

, 50 n.3 (D.D.C. 2012) (unnotarized affidavit

“not a proper affidavit”). In contrast, courts cannot consider unsworn submissions lacking the

required perjury statement at summary judgment because they amount to inadmissible hearsay.

And “statements that are impermissible hearsay . . . are precluded from consideration by the

Court.” Brooks,

(citation omitted); see also Fed. R. Civ. P. 56(c)(4).

Moreover, while it is true that courts may consider hearsay to decide certain FOIA-related

disputes, “it is a different matter to rely on out-of-court statements from private third-parties to

justify an agency’s withholding.” Humane Soc’y of U.S. v. Animal & Plant Health Inspection

Serv.,

(D.D.C. 2019) (declining to consider government affidavit relying

on third-party submissions); see also Pub. Citizen Health Research Grp. v. Nat’l Inst. of Health,

7

, 48 n.7 (D.D.C. 2002) (refusing to rely on third-party letters in Exemption 4

case “due to hearsay concerns”).

Nearly all the objections the Service submitted were not notarized and were not made

under the penalty of perjury, thereby constituting inadmissible hearsay. Defendants make no

argument explaining why the Court should consider their content, nor have Defendants requested

time to cure them, despite knowing about this issue for over a year since HSI first raised the

issue in its first motion for summary judgment. ECF No. 36 at 20–22 (June 22, 2018). Rather

than explain why the Court should consider their content, Defendants pivot by “offer[ing] [the

declarations] for the fact that the submission exists, i.e., the submitter objected to the public

release of potentially confidential information by answering the Agency’s request.” ECF No. 60

at 7–8 n.9. But just because a company has objected says nothing about whether it customarily

and actually treats the information as private.

Second, most of the remaining objections are substantively deficient. Take the more

recent objections submitted by Defendants. Of the fourteen that are not inadmissible hearsay,

twelve are conclusory; in other words, they do not attest to specific facts indicating how each

objector treats the relevant data.2 See Pub. Citizen Health Research Grp. v. FDA,

(D.C. Cir. 1999) (Exemption 4 withholding was inappropriate because corporate affidavit

contained “only conclusory assertions that disclosure would cause substantial competitive

harm”); Niagara Mohawk,

(“conclusory and generalized assertions” in corporate

2 Like many of the post-Food Marketing objections, the majority of pre-Food Marketing objections are inadmissible hearsay. Only four meet the Rule 56 criteria and one happens to be from BioIVT, LLC, a company that submitted a post-Food Marketing objection the Court considers below. See ECF No. 33-2 at 84–85. As for the remaining three, the Service only submitted redacted copies, and so the Court has no way to review their contents. See ECF No. 33-4 at 25–27, 87–92; ECF No. 33-5 at 11–14, 18–20.

8 affidavits were “not enough to establish” Exemption 4 applied). To take one example, the

declaration from Bushmaster Reptiles merely parrots the language requested by the Service by

stating that the company “considers its LEMIS data . . . to be private,” “treats the [information]

as both customarily and actually private,” “has not disclosed such information . . . to the public,”

and “believes that the information . . . is not routinely available to the public from other sources.”

Willis Decl. Ex. at 47–49. Such a certification does not provide the Court with facts against

which to apply the Food Marketing test. The declaration does assert that, “if released, [the

information] would disclose Bushmaster’s pricing guidelines, financial algorithms and strategic

business information to competitors.”

. But these representations echo the old National

Parks standard and have little, if any, relevance now. Perhaps they circumstantially suggest that

the company should keep the information private, but they hardly shed light on whether the

company does so.

In contrast, two of the objectors—BioIVT, LLC and Oregon Health & Science

University—provided declarations that describe how they customarily and actually treat the

relevant data that support the notion that they keep it private. The Senior Director of Biologic

Operations at BioIVT represents that the company protects the information by executing

confidentiality agreements with its employees and contractors, as well as non-disclosure

agreements with its customers, auditors, investors and prospective investors. Willis Decl. Ex. at

43–44. BioIVT limits access to the information on a “need-to-know basis” and maintains a

company-wide confidentiality policy and program for training employees on the confidentiality

of the information, how to guard it, and how to report suspected and actual breaches.

.

To that end, BioIVT has created the position of a privacy officer responsible for overseeing the

protection of confidential information.

BioIVT also physically safeguards hard-copy

9 materials, password-protects electronic materials, and maintains industry standard network

security.

Finally, BioIVT prohibits its partners and customers from publishing information

that they derive from BioIVT services or products until BioIVT completes a pre-publication

review for the information.

While Oregon Health & Science University’s representations are

not quite as complete, its in-house counsel represents that it keeps its U.S. Importer/Exporter and

Foreign Importer/Exporter information private by “limiting access to the information, storing the

information in secure folders, removing as much identifying information as possible and

avoiding public access and/or publication of the information.” Willis Decl. Ex. at 66.3 At least

as for these two objectors, then, there is competent evidence in the record in the form of their

declarations that suggests they customarily and actually keep the data private. But these

declarations are not the end of the story.

2. Additional Considerations, Including Whether the Government Must Provide an Assurance of Confidentiality

The parties spill much ink on whether, after Food Marketing, the government must

provide an assurance of confidentiality for the information to be confidential under Exemption 4.

ECF No. 52 at 4–5; ECF No. 54 at 26–27, 29–30; ECF No. 60 at 8–9; ECF No. 64 at 17–20. The

Court can dispose of this dispute quickly by agreeing with the finding of one court that, because

the extensive D.C. Circuit precedent interpreting Exemption 4 says nothing about such a

3 HSI also argues that Oregon Health & Science University’s declaration does not meet the Rule 56 requirement that it be made “on personal knowledge” because the declarant and in-house legal counsel, D. Raghav Shan, relied on “OHSU personnel who have assisted me in gathering this information from our institution.” Willis Decl. Ex. at 64; ECF No. 55 at 20. But the Society fails to mention that Shan also compiled the information “through personal knowledge” and “on the basis of the documents that have been provided to and/or reviewed by me.” Willis Decl. Ex. at 64. The Court is satisfied that Shan’s declaration meets the requirement that a declaration “be made on personal knowledge.” Fed. R. Civ. P. 56(c)(4); see also Leopold v. U.S. Dep’t of Justice, No. 19-3192 (RC),

, at *5 (D.D.C. Jan. 13, 2021) (finding declarations met personal knowledge requirement on similar facts).

10 requirement, imposing one “would essentially be overruling” or “at least declining to faithfully

apply” that precedent. Renewable Fuels,

, at *7.

Still, that does not mean that representations the government makes in connection with

obtaining information cannot inform the court’s determination about how the companies

customarily and actually treat it, or whether it is confidential, for purposes of Exemption 4. In

fact, in Food Marketing, the Court cited with approval Circuit precedent suggesting just that.

(citing Sterling Drug, Inc. v. FTC,

(D.C. Cir. 1971) (noting that

since the third parties “sought to prevent public disclosure of these documents, and the

Commission ha[d] agreed to treat them as confidential,” the information remained the type

“which would customarily not be released to the public by the person from whom it was

obtained”)). And even after Food Marketing, courts in this District have continued to recognize

that the circumstances under which a company submits information to the government bears on

whether that information remains confidential.4 Similarly, after Food Marketing, whether the

government has disclosed the same type of information on prior occasions remains a

consideration when weighing whether the information is confidential. See Renewable Fuels,

, at *8 (“history of releasing the information at issue” informs expectation of

confidentiality).

4 See, e.g., Renewable Fuels,

, at *8 (proposing that “privately held information is generally confidential absent an express statement by the agency that it would not keep information private, or a clear implication to that effect.”); Stotter v. U.S. Agency for Int’l Dev., No. 14-cv-2156 (KBJ),

, at *5 (D.D.C. Oct. 3, 2020) (it is “clear beyond cavil [that assurance of privacy] is relevant to determining whether financial information is” confidential); Shapiro v. Dep’t of Justice, No. 12-cv-313 (BAH),

, at *26 (D.D.C. July 2, 2020) (whether agency “provided an ‘assurance of privacy’ is undoubtedly relevant” to determining confidentiality); Gellman v. Dep’t of Homeland Sec., -- F. Supp. 3d --,

, at *11 n.12 (D.D.C. Mar. 20, 2020) (treating assurance of confidentiality “as one factor to consider”).

11 These factors strongly weigh against finding that the information in the LEMIS database

provided by BioIVT and Oregon Health & Science University—and by the other companies,

even if their objections did not pass evidentiary muster—is confidential. First, as HSI points out,

the Privacy Act Notice on Form 3-177 during the relevant years informed them that the

information they submitted “may be subject to disclosure under provisions of the Freedom of

Information Act.” Pl.’s SOF ¶¶ 35–37; ECF No. 54-1 ¶¶ 5–10;

at 5–53. Thus, this notice

warned these companies that the government would not keep the information at issue

confidential and might disclose it pursuant to a FOIA request. In effect, then, the notice

disclaimed confidentiality, rather than provided an assurance of it. Cf. WP Co. v. U.S. Small Bus.

Admin., -- F. Supp. 3d --,

, at *9 (D.D.C. Nov. 5, 2020) (determining that

Exemption 4 was inapplicable because loan application expressly warned that applicants’

“names and loan amounts would be ‘automatically released’ upon a FOIA request”). And given

what Defendants actually told these companies through the Privacy Act Notice, their

representations about what they would have told them if given a do-over are simply of no

moment. ECF No. 60 at 9.

Second, HSI emphasizes, for over a decade before its FOIA request in this case, the

Service did not “redact[] any LEMIS data pursuant to FOIA exemptions in response to a FOIA

requests [sic] by [the Society] or its affiliate.” Pl.’s SOF ¶ 39; ECF No. 36-1 ¶¶ 25–28.

Defendants’ historical release of the information at issue again suggests that the information is

not confidential. And critically, neither Oregon Health & Science University nor BioIVT

objected when this same data from different years was disclosed to a plaintiff in a previous FOIA

12 case.5 Pl.’s SOF ¶¶ 62–65. Simply put, that failure is inconsistent with the notion that these

companies customarily and actually treat the information as private such that it is confidential

under Exemption 4.

For all these reasons, the Court will grant HSI’s motion for summary judgment, and deny

Defendants’ and Defendant-Intervenor’s, as to the application of Exemption 4 to the LEMIS data

at issue. A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: March 29, 2021

5 In addition, HSI points out, the Service has published some of Oregon Health & Science University’s import-export permit applications that contain some of the data at issue, as required by law. ECF No. 54 at 24; Pl.’s SOF ¶¶ 8, 18.

13