Amicus Curiae Brief — Food Marketing Institute, Petitioner v. Argus Leader Media, dba Argus Leader

No. 18-481

In the

Supreme Court of the United States

Food Marketing Institute,

Petitioner,

v.

Argus Leader Media, dba Argus Leader,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Eighth Circuit

BRIEF OF AMICI CURIAE Alliance of

Marine Mammal Parks & Aquariums,

Animal Agriculture Alliance, Fur

Information Council of America,

Institute for Marine Mammal Studies,

National Association for Biomedical

Research, Protect the Harvest,

United States Association of Reptile

Keepers and Zoological Association

of America in support of petitioner

Ira T. K asdan

Counsel of Record

Bezalel A. Stern

Kelley Drye & Warren, LLP

3050 K Street N.W., Suite 400

Washington, D.C. 20007

ikasdan@kelleydrye.com

(202) 342-8864

Counsel for Amici Curiae

284403

i

QUESTION PRESENTED

Should the Court restore the word “confidential” in

Exemption 4 of the Freedom Information Act, 5 U.S.C.

§ 552(b)(4), to its plain meaning, or should it affirm the

atextual meanings provided to it by the D.C. Circuit in

National Parks & Conservation Association v. Morton,

498 F.2d 765 (D.C. Cir. 1974) and Public Citizen Health

Research Group v. Food & Drug Administration, 704

F.2d 1280 (D.C. Cir. 1983)?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

THE D.C. CIRCUIT’S “CONFIDENTIAL”

TEST F OR E X E M P TIO N 4 IS

FUNDAMENTALLY FLAWED . . . . . . . . . . . . 5

II. A M I C I ’ S DETRA C TORS USE

T H E ARTI F ICIA L STA N DARDS

CREATED BY THE D.C. CIRCUIT’S

“CONFIDENTIAL” TEST TO HARM

A MICI, T H EIR M EM BERS A N D

SIMILARLY SITUATED ENTITIES . . . . . . 11

III. T H E U N SETT L ED STATE O F

E X E M P TIO N 4 L EADS TO

P OTE N TIA L LY C O N F L IC TI N G

JURISPRUDENCE, RESULTING IN

THE POSSIBILITY OF GAMESMANSHIP . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

iii

TABLE OF CITED AUTHORITIES

Page

Cases

100Reporters LLC v. U.S. Dep’t of Justice,

248 F. Supp. 3d 115 (D.D.C. 2017) . . . . . . . . . . . . . . . . 9

AIDS Healthcare Found. v. U.S. Food & Drug

Admin.,

No. CV1107925MMMJEMX, 2014 WL 10983763

(C.D. Cal. Feb. 13, 2014) . . . . . . . . . . . . . . . . . . . . . . . . 9

Argus Leader Media v. U.S. Dep’t of Agric.,

224 F. Supp. 3d 827, 833 (D.S.D. 2016) . . . . . . . . . 5, 10

Bloomberg L.P. v. Bd. of Governors of Fed.

Reserve Sys.,

649 F. Supp. 2d 262 (S.D.N.Y. 2009) . . . . . . . . . . . 9, 10

Ctr. for Biological Diversity v.

U.S. Fish & Wildlife Serv.,

No. 18-15997 (9th Cir. June 14, 2018) . . . . . . . . . . . . 22

Ctr. for Biological Diversity v.

U.S. Fish & Wildlife Serv.,

No. 16-cv-00527 (D. Ariz. filed August 9, 2016) . . . . 21

Digital Realty Tr., Inc. v. Somers,

138 S. Ct. 767 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Edelman v. U.S. Sec. & Exch. Comm’n,

No. 315CV02750BENBGS, 2017 WL 4286939

(S.D. Cal. Sept. 27, 2017) . . . . . . . . . . . . . . . . . . . . . . . 9

iv

Cited Authorities

Page

FCC v. AT & T Inc.,

562 U.S. 397 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Gen. Elec. Co. v. U.S. Nuclear Regulatory

Comm’n,

750 F.2d 1394 (7th Cir. 1984) . . . . . . . . . . . . . . . . . . . 10

Humane Soc’y Int’l v. U.S. Fish & Wildlife Serv.,

No. 16-cv-00720 (D.D.C. filed

Apr. 18, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

In Defense of Animals v. U.S. Dept. of

Agriculture,

656 F. Supp. 2d 68 (D.D.C. 2009) . . . . . . . . . . . . . . . . 14

Jurewicz v. U.S. Department of Agriculture,

741 F.3d 1326 (D.C. Cir. 2014) . . . . . . . . . . . . . . . 12, 14

Kuehl v. Sellner,

887 F.3d 845 (8th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 19

Nadler v. F.D.I.C.,

92 F.3d 93 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . 10

National Parks & Conservation Association v.

Morton,

498 F.2d 765 (D.C. Cir. 1974) . . . . . . . . . . . . . . . passim

Public Citizen Health Research Group v. Food &

Drug Administration,

704 F.2d 1280 (D.C. Cir. 1983) . . . . . . . . . . . . . . passim

v

Cited Authorities

Page

Sandifer v. U.S. Steel Corp.,

571 U.S. 220 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Watkins v.

U.S. Bureau of Customs & Border Prot.,

643 F.3d 1189 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 9

Statutes and Regulations

5 U.S.C. § 552(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . passim

16 U.S.C. § 1374(c)(10)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 16

16 U.S.C. § 1374(c)(10)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 16

16 U.S.C. § 1374(c)(10)(H) . . . . . . . . . . . . . . . . . . . . . . . . 16

16 U.S.C. §§ 1361, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . 15

50 C.F.R. § 14.52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Other Authorities

Black’s Law Dictionary 361 (10th Ed. 2014) . . . . . . . . . . 4

Enhancing the Marine Mammal Protection

Act: Befo re the Subco mm . o n Oceans ,

Atmosphere, Fisheries, and Coast Guard of

the S. Comm. on Commerce, Science, and

Transportation, 115th Cong.

(April 25, 2018) . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17

vi

Cited Authorities

Page

Kathleen Vermazen Radez, The Freedom of

Information Act Exemption 4: Protecting

C o r p o r a t e R e p u t a t i o n i n t h e Po s t Cr a sh Regul at o r y Env ir o nm ent, 2 010

Colum. Bus. L. Rev. 632 (2010) . . . . . . . . . . . . . . . . 7-8

Mark Q. Connelly, Secrets and Smokescreens:

A L e g a l a n d Ec o n o m i c An a l ys i s o f

Government Disclosures of Business Data,

1981 Wis. L. Rev. 207 . . . . . . . . . . . . . . . . . . . . . passim

Thomas L. Patten and Kenneth W. Weinstein,

Disclosure of Business Secrets Under the Freedom

of Information Act: Suggested Limitations,

29 Admin. L. Rev. 193 (1977) . . . . . . . . . . . . . . . . . 8, 19

1

INTEREST OF AMICI CURIAE1

Amici are national associations and organizations

whose members and stakeholders work with and care

for animals in their respective vocations, businesses,

industries and fields. As such, amici and their members

and stakeholders regularly provide information, on both

a required and a voluntary basis, to various federal

agencies that regulate animal and wildlife use, care and

maintenance. This case is important to amici because

they and their members have been, and will continue

to be, subjected to negative financial and reputational

consequences as a result of the government’s release of

their confidential information due to the D.C. Circuit’s

atextual interpretation of the word “confidential” in

Exemption 4 of the Freedom of Information Act, which

courts around the country have adopted.

The Alliance of Marine Mammal Parks & Aquariums

(“A MMPA”) is a 501(c)(4) nonprof it international

association and accrediting body for marine parks,

aquariums, and zoos dedicated to the highest standards

of care for marine mammals and their conservation in the

wild. AMMPA’s 65 members, which include both for-profit

and nonprofit entities, advance the objectives of marine

mammal conservation through public display, education,

1. Pursuant to Supreme Court Rule 37.3(a), all parties have

consented to the filing of this brief.

Pursuant to Supreme Court Rule 37.6, amici affirm that no

counsel for any party authored this brief in whole or in part, and

that no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person other

than amici, their members, or their counsel made a monetary

contribution to this brief’s preparation or submission.

2

research, and the rescue and rehabilitation of injured,

orphaned, and distressed animals in the wild.

The Animal Agriculture Alliance is a 501(c)(3)

industry-united nonprofit organization that connects food

industry stakeholders; engages with food chain influencers;

promotes consumer choice by helping people better

understand modern animal agriculture; and protects the

future of animal agriculture. Its members include farmers,

ranchers, food companies, feed and animal nutrition

companies, veterinarians, animal scientists, agricultural

associations and other allied stakeholders.

The Fur Information Council of America (“FICA”) is a

not-for-profit organization that protects and promotes the

interests of the U.S. fur industry. While its more than 100

members include some of the nation’s largest fur retailers,

manufacturers, wholesalers, fashion designers, auction

houses, and other U.S. exporters of furbearing skins

and products, approximately 85% of FICA’s members

are small, family-run businesses. FICA provides the

public with information on the fur industry, wildlife

conservation and responsible animal care to which the

fur industry is committed. Part of FICA’s mission is to

protect the interests of the U.S. fur industry by providing

its membership with support to counter distortions and

misrepresentations made by anti-animal use groups.

The Institute for Marine Mammal Studies (“IMMS”)

is a 501(c)(3) nonprofit organization established in 1984

for the purposes of public education, conservation, and

research on marine mammals in the wild and under human

care. Located in Gulfport, Mississippi, IMMS has been

an active participant of the Department of Commerce’s

National Oceanic and Atmospheric Administration’s

3

National Stranding Network for decades, with the

capability and expertise to care for sick and injured

marine mammals and sea turtles. Through its programs

for conservation, education and research, IMMS serves

as a marine mammal educational outlet for the Mississippi

Gulf Coast.

The National Association for Biomedical Research

(“NABR”) is a 501(c)(6) nonprofit association dedicated

to sound public policy for the humane use of animals in

biomedical research, education and testing. NABR has

330 member organizations, including pharmaceutical

companies, biotechnology companies, universities, medical

schools, and other life science organizations engaged in or

having a stake in humane animal research.

Protect the Harvest is a nonprofit organization that

works with stakeholders to educate the general public

about agriculture and promote favorable food security

policies.

The United States Association of Reptile Keepers

(“USARK”) is a registered 501(c)(6) nonprofit membership

organization representing reptile breeders, hobbyists,

conservationists, academics, pet owners, scientists,

and businesses that provide the reptile community

with equipment, feed, transportation, and specialized

veterinary and other services. USARK is an education,

conservation and advocacy organization for herpetofauna

promoting awareness, responsible care, and professional

unity for all manners of reptile species. As part of this

mission, the organization supports responsible private

ownership of, and trade in, reptiles and amphibians, as

well as promulgates and endorses responsible caging

standards, sound husbandry, escape prevention protocols,

and an integrated approach to vital conservation issues.

4

The Zoological Association of America (“ZAA”) has

more than 60 accredited members, with accreditation

predicated on the promotion of the highest standards of

animal welfare as well as public and staff safety. ZAA’s

work includes animal ambassador programs, classroom

education and, with wildlife management professionals

around the globe, the conduct and support of research

in behavioral sciences and genetics and the exchange of

information and training on husbandry, nutrition, best

management practices and veterinary care.

SUMMARY OF THE ARGUMENT

The word “confidential,” as used in the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552(b)(4), to exempt

confidential information from disclosure, is not defined.

It need not be, as “confidential information” has a plain,

unambiguous meaning: “Knowledge or facts not in the

public domain but known to some . . . .” Black’s Law

Dictionary 361 (10th Ed. 2014).

Nonetheless, in National Parks & Conservation

Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974), the

D.C. Circuit created a test out of whole cloth to determine

what is protected “confidential” information, viz., whether

release of the information would likely cause substantial

competitive injury. In Public Citizen Health Research

Group v. Food & Drug Administration, 704 F.2d 1280

(D.C. Cir. 1983), the D.C. Circuit further minimized the

plain reading of the term by imposing further atextual

limitations.

Under Public Citizen, information is not considered

“confidential” for Exemption 4 purposes if the disclosure

of the information would cause reputational harm – even

5

if economic harm would flow from that reputational harm.

Also under Public Citizen, information is only considered

“confidential” if the party requesting it through FOIA

is a direct competitor of the entity who submitted the

confidential information to the government. These

requirements have no basis in the text of the statute, or in

its legislative history. Instead, they are based solely on two

citation-free sentences in a law review article published in

the University of Wisconsin Law Review in 1981. Public

Citizen, 704 F.2d at 1291 n. 30.

Notwithstanding its dubious origins, Public Citizen’s

law-review inspired precedent has been accepted by courts

throughout the country, including the district court below.

Argus Leader Media v. U.S. Dep’t of Agric., 224 F. Supp.

3d 827, 833 (D.S.D. 2016) (quoting Public Citizen, 704

F.2d 1291 n. 30). This widespread adoption wrongfully

has failed to protect many persons whose confidential

information is requested and then released through FOIA,

including amici.

The lower courts’ (mis)reading and misapplication of

the term “confidential” as framed by the National Parks

and Public Citizen’s tests is both atextual and inequitable.

This Court should return the word to its plain meaning.

ARGUMENT

I. THE D.C. CIRCUIT’S “CONFIDENTIAL” TEST

FOR EXEMPTION 4 IS FUNDAMENTALLY

FLAWED

In its Petition for a Writ of Certiorari, Petitioner

Food Marketing Institute (“Petitioner” or “FMI”)

makes a compelling case why the D.C. Circuit’s atextual

6

construction of the word “confidential” in the Freedom

of Information Act (“FOIA”)’s Exemption 4, 5 U.S.C.

§ 552(b)(4), should be reviewed and ultimately overruled

by this Court. Having been targets of FOIA requests for

information that a plain-language reading of Exemption

4 should have served to exempt from disclosure, amici

urge the Court to grant FMI’s Petition.

Petitioner correctly identifies National Parks &

Conservation Association v. Morton, 498 F.2d 765 (D.C.

Cir. 1974) as the source of the D.C. Circuit’s atextual

“confidential” test. Amici have been particularly harmed

by a later refinement of that test by the D.C. Circuit in

Public Citizen Health Research Group v. Food & Drug

Administration, 704 F.2d 1280 (D.C. Cir. 1983), which

further distanced the D.C. Circuit and other courts that

adopted the D.C. Circuit’s test from the plain meaning of

“confidential.”

In a footnote that has since taken on a life of its own,

the D.C. Circuit in Public Citizen

emphasize[d] that “[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 f low 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.”

7

704 F.2d at 1291 n. 30 (emphasis in original) (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 (hereinafter,

“Secrets and Smokescreens”)). Grounded only on the

conjecture of the article’s author for this “important point

for competitive harm in the FOIA context” which Public

Citizen embraced without any reference to case law,

legislative history or analysis, Secrets and Smokescreens

effectively established two new requirements for

information to qualify as “confidential” under Exemption

4.

First, Secrets and Smokescreens posited that for

information to be “confidential” under Exemption 4,

the harm must “flow[] from the affirmative use of [the]

proprietary information by competitors.” Secrets and

Smokescreens, 235 (emphasis in original) (citing nothing).

Second, the article summarily concluded that reputational

harm of the party whose information would be disclosed

does not count in the Exemption 4 “confidential” analysis,

stating that competitive harm cannot “flow from customer

or employee disgruntlement or from the embarrassing

publicity attendant upon public revelations . . . .” Secrets

and Smokescreens, 235 (citing nothing). 2

2. As to Secrets and Smokescreens’ unilateral exclusion of

reputational harm from the Exemption 4 analysis, one critic has

noted: “The author cites no cases or authority for this statement,

nor does he provide any data or reference to social-science

research on reputational effects. There is no other context given

to his assertion of what competitive harm does or does not include.

And yet it is this quote to which the D.C. Circuit [in Public Citizen]

refers two years later in what has become a widely-cited – if

purely dicta – comment regarding reputational harm.” Kathleen

Vermazen Radez, The Freedom of Information Act Exemption 4:

8

Nothing in the legislative history of FOIA – even in the

attenuated legislative history relied on by the National

Parks court – required or implied that the limitations

imposed by the author of Secrets and Smokescreens should

be applied to Exemption 4.3 Yet, Public Citizen, depending

on nothing other than Secrets and Smokescreens, imposed

those restrictions. National Parks at least purported

to rely on legislative history in expanding the statutory

language. See Petition, pp. 12-13. Public Citizen did no

such thing. Instead, in Public Citizen the D.C. Circuit

radically expanded its already atextual definition of

“confidential” based on a single academic’s assumptions.4

Protecting Corporate Reputation in the Post-Crash Regulatory

Environment, 2010 Colum. Bus. L. Rev. 632, 658 (2010) (citations

omitted).

3. Indeed, “[b]oth the House and Senate reports on the

FOIA bills provide that [Exemption 4] is intended to protect

information which customarily would not be released to the

public by the person from whom it was maintained. It seems

clear that Congress intended Exemption 4 to maintain the status

quo: business information which industry customarily held in

confidence would continue to be exempt from mandatory disclosure

under FOIA.” Thomas L. Patten and Kenneth W. Weinstein,

Disclosure of Business Secrets Under the Freedom of Information

Act: Suggested Limitations, 29 Admin. L. Rev. 193, 197 (1977)

(hereinafter, “Patten and Weinstein”) (citations to House and

Senate Reports omitted).

4. Amici recognize that members of the Court have

expressed differences of opinion as to the utility of legislative

history in the subsequent interpretation of a statute. Compare

Digital Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 782 (J. Sotomayor,

concurring) (2018) (“Legislative history is of course not the law,

but that does not mean it cannot aid us in our understanding of

a law.”), with id. at 783-84 (J. Thomas, concurring in part and

in the judgment) (“I join the Court’s opinion only to the extent

it relies on the text of the Dodd–Frank Wall Street Reform and

9

Since Public Citizen, aside from courts within the

D.C. Circuit, courts outside the Circuit also have applied

the “law” of Secrets and Smokescreens without second

thought. 5 For example, in Watkins v. U.S. Bureau of

Customs & Border Prot., 643 F.3d 1189 (9th Cir. 2011),

the Ninth Circuit took Secrets and Smokescreens, quoted

without reservation by Public Citizen, as settled law. See

643 F.3d at 1195 (“Competitive harm analysis ‘is . . . 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

. . . .’”) (quoting Public Citizen, 704 F.2d 1280, 1291 n. 30).

Similarly, the district court in Bloomberg L.P. v. Bd.

of Governors of Fed. Reserve Sys., 649 F. Supp. 2d 262

(S.D.N.Y. 2009), which was affirmed by the Second Circuit,

601 F.3d 143 (2d Cir. 2010), concluded that Exemption 4

did not apply because “the specific evidence must show

that the competitive harm will result from the affirmative

use of the information by competitors of the person from

whom the information was obtained, not merely injuries

to that person’s competitive position in the marketplace

Consumer Protection Act . . . I am unable to join the portions of

the Court’s opinion that venture beyond the statutory text.”). In

this case, where both the statute itself and its legislative history

were ignored in the D.C. Circuit’s interpretation of Exemption

4, all of the Court’s members should be comfortable overruling

Public Citizen’s law-review inspired precedent.

5. See, e.g., 100Reporters LLC v. U.S. Dep’t of Justice,

248 F. Supp. 3d 115, 138 (D.D.C. 2017) (applying Secrets and

Smokescreens test); Edelman v. U.S. Sec. & Exch. Comm’n, No.

315CV02750BENBGS, 2017 WL 4286939, at *6 (S.D. Cal. Sept.

27, 2017) (same); AIDS Healthcare Found. v. U.S. Food & Drug

Admin., No. CV1107925MMMJEMX, 2014 WL 10983763, at *6

(C.D. Cal. Feb. 13, 2014) (same).

10

or ‘embarrassing publicity attendant upon public

revelations.’” Id. at 279 (quoting Public Citizen, 704 F.2d

at 1291 n. 30). And, relying on Public Citizen, the Seventh

Circuit expounded that “the competitive harm that attends

any embarrassing disclosure is not the sort of thing that

triggers exemption 4.” Gen. Elec. Co. v. U.S. Nuclear

Regulatory Comm’n, 750 F.2d 1394, 1402 (7th Cir. 1984).6

In fact, the district court in this case relied on the

definition of “competitive harm” invented by Secrets

and Smokescreens. The district court held, as a matter

of law: “Competitive harm is limited to ‘harm flowing

from the 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.’” Argus

Leader Media v. U.S. Dep’t of Agric., 224 F. Supp. 3d

827, 833 (D.S.D. 2016) (quoting Public Citizen, 704 F.2d

1291 n. 30).

“It is a fundamental canon of statutory construction

that, unless otherwise defined, words will be interpreted

as taking their ordinary, contemporary, common

meaning.” Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227

(2014) (quotation omitted). It should go without saying that

the pronouncement of an academic in a law-review article

6. But see Nadler v. F.D.I.C.., 92 F.3d 93, 97 (2d Cir. 1996)

(finding that ‘‘[s]ensitive financial information’’ falls within the

class of materials that should be viewed as confidential and noting

that ‘‘[t]he fact that this harm would result from active hindrance

by the Plaintiffs rather than directly by potential competitors does

not affect the fairness considerations that underlie Exemption

Four.’’).

11

should not be enough to modify the fundamental canons

of statutory construction. Unfortunately, in the case of

Exemption 4, a single University of Wisconsin Law Review

article has managed to trump the statutory language and

skew the fundamental canons of statutory construction.

Exemption 4 has evaded this Court’s review for

far too long. As Petitioner has explained, and as amici

further demonstrate, it is past time for this Court to

remedy the lower courts’ errors, to revive the statutory

language of Exemption 4, and to discard the convoluted

and contradictory tests developed by the Circuit Courts

in response to the D.C. Circuit’s opinions in National

Parks and Public Citizen. The historically suspect and

practically harmful precedent of the D.C. Circuit should

be relegated to the annals of history, and to the legacy

of a time when statutory construction was more fluid and

less attached to the text than today.7

II. AMICI’S DETRACTORS USE THE ARTIFICIAL

STANDARDS CREATED BY THE D.C. CIRCUIT’S

“CONFIDENTIAL” TEST TO HARM AMICI,

THEIR MEMBERS AND SIMILARLY SITUATED

ENTITIES

The D.C. Circuit’s neutering of FOIA’s Exemption

4 in National Parks and Public Citizen has not been

7. FOIA Exemptions 6 and 7 protect against the release

of information that could cause a non-governmental party

reputational harm. This Court has ruled that those exemptions

do not apply to corporations. FCC v. AT & T Inc., 562 U.S. 397

(2011). The Court should not allow a law review article to write

out reputational harm from Exemption 4, which “clearly applies

to corporations.” Id. at 408-09.

12

without consequences. Indeed, the evisceration of the plain

language of Exemption 4 has caused amici and similarly

situated entities to have their confidential commercial

information released under FOIA to their economic and

reputational detriment.

In Jurewicz v. U.S. Department of Agriculture, 741

F.3d 1326 (D.C. Cir. 2014), the D.C. Circuit, adhering to

its precedent originating in National Parks and Public

Citizen, allowed confidential information of private

entities similarly situated to amici to be released to the

Humane Society of the United States (“HSUS”). In that

case, “dog breeders and dealers in Missouri challenge[d]

the Department of Agriculture’s decision to release

information in their annual reports relating to their

gross revenue and business volume.” Id. at 1329. This

information clearly was confidential financial information

of a non-governmental entity, and would squarely have

been covered by a plain language reading of Exemption 4.

Nevertheless, finding that it was “bound by the law

of the circuit,” the D.C. Circuit in Jurewicz summarily

rejected appellants’ Exemption 4 challenge to the release

of their confidential information, disregarding appellants’

argument that “the Humane Society’s intended use” of

the FOIA’d information was “‘to destroy [appellants’]

businesses.’” Id. at 1331 (quoting Appellants’ Br. 53).

Amici, who face the same sorts of opponents as the

Jurewicz appellants, have been and will continue to be

similarly harmed unless this Court steps in.

More specifically, detractors of amici – including

organizations such as People for the Ethical Treatment

of Animals (“PETA”), HSUS and like-minded groups –

13

are not direct competitors of amici, in that they do not

operate similar businesses. But, among their primary

goals is to harm the interests of amici by, among other

tactics, promoting negative campaigns and publicity

against them and their members on social media, and, in

certain instances, by harassing them and attempting to

put them out of business. Amici’s detractors receive under

FOIA confidential documents and information from the

government that the government, in turn, obtained from

amici and their members. Those opposition groups then

use the confidential materials and information in their

campaigns against amici and their members.

Under a plain language reading of Exemption 4,

such confidential commercial or financial information

would not be released. Yet, because amici’s detractors

are not amici’s “direct competitors,” and because the

harm the activists intend to cause is, more often than

not, reputational in nature (with adverse economic

repercussions stemming from the reputational harm), the

D.C. Circuit’s interpretation of Exemption 4 improperly

allows the publication and dissemination of amici and

their members’ confidential and proprietary information.

One amicus, the National Association for Biomedical

Research, compiled an analysis of FOIA requests

submitted to the U.S. Department of Agriculture’s

Animal and Plant Inspection Service (“APHIS”) in 2015.

That analysis found that, in 2015, APHIS received 889

requests for information under FOIA. “Approximately

30 percent (265) of the FOIA requests, which is a 23%

increase from [2014], could be identified as submitted by

animal rights/animal interest organizations, or individuals

that appeared to be associated with such groups.” FY 15:

14

Animal Rights FOIA Requests, National Association for

Biomedical Research (May 19, 2016), https://www.nabr.

org/wp-content/uploads/2016/05/FY2015-FOIA-ReportFinal.pdf (the “NABR Report”), p. 2. 8 The NABR Report

found that the information “most frequently requested”

by the animal rights groups was “about exhibitors, actions

related to horses and wildlife, dealers and research

facilities.” Id.

The NABR Report also found that approximately

10% (128) of the 1,273 FOIA requests received by the

National Institutes of Health in 2015 came from animal

rights/animal interest organizations. Id. at p. 5. “Almost

all of the 123 requests filed by animal rights groups

sought information related to research and research

organizations.” Id. at p. 6.9

A plain reading of FOIA’s Exemption 4 would

protect this information from being disseminated where

it is commercial or financial in nature and confidential.

Nonetheless, National Parks and Public Citizen have

gutted the plain reading of Exemption 4, as detractors

of amici explicitly rely on the tests enunciated in those

cases in order to thwart a correct application of Exemption

4. See, e.g., Jurewicz, supra; In Defense of Animals v.

U.S. Dept. of Agriculture, 656 F. Supp. 2d 68, 80 (D.D.C.

2009) (animal rights activist group allowed to obtain

commercial confidential information, rejecting application

of Exemption 4 because “the competitive harm that

matters is a competitor’s affirmative use of proprietary

8. The estimated cost to APHIS of handling the FOIA

requests it received in 2015 was $1,836,896.28. NABR Report, p. 4.

9. The estimated cost to the NIH of handling its FOIA

requests in 2015 was $3,621,518.15. NABR Report, p. 6.

15

information that could reap a commercial windfall for the

competitor, rather than the harm caused by a customer

or other third party’s negative reaction to disclosure”);

Humane Soc’y Int’l v. U.S. Fish & Wildlife Serv., No.

16-cv-00720 (D.D.C. filed Apr. 18, 2016), Humane Society

International Motion for Summary Judgment, ECF

No. 36 (filed June 22, 2018) pp. 28-29 (“[T]he majority

of submitter declarants also argue that they would face

competitive harm if their data were released, because

animal protection organizations would harass them or

otherwise interfere with their business. But this type of

argument is entirely outside the realm of what Exemption

4 concerns.” (Footnote omitted) (collecting cases)).

Once activists obtain through FOIA confidential

commercial or financial information submitted to the

government, they use it to the submitter’s detriment. One

case in point is demonstrated by the testimony presented

earlier this year by Dr. Rae Stone, who testified on behalf

of amicus AMMPA before the Senate Subcommittee on

Oceans, Atmosphere, Fisheries, and Coast Guard. See

Enhancing the Marine Mammal Protection Act: Before

the Subcomm. on Oceans, Atmosphere, Fisheries, and

Coast Guard of the S. Comm. on Commerce, Science,

and Transportation, 115th Cong., p. 6 (April 25, 2018)

(statement of Rae Stone, President & Partner, Dolphin

Quest), https://www.commerce.senate.gov/public/index.

cfm/2018/4/enhancing-the-marine-mammal-protectionact (“Stone Testimony”). Dr. Stone testified about

confidential information required to be submitted by

AMMPA members to the National Marine Fisheries

Service (“NMFS”) for its marine mammal inventory

maintained pursuant to the Marine Mammal Protection

Act (“MMPA”), 16 U.S.C. §§ 1361, et seq.

16

The MMPA requires that NMFS maintain in the

inventory, among other things, “[t]he name of the marine

mammal or other identification . . . [t]he estimated or

actual birth date of the marine mammal . . . [and the]

date of death of the marine mammal and the cause of

death when determined.” 16 U.S.C. § 1374(c)(10)(A),

(B), (H). This confidential commercial information is

routinely sought by activists under FOIA. The activists

use the FOIA information in order to promote and often

exaggerate the deaths of animals in zoos, marine mammal

parks and similar facilities and “unambiguously say their

goal is to end the use of animals in zoological facilities,

agriculture, and other sectors.” See Stone Testimony,

p. 6. Notwithstanding, the D.C. Circuit’s “competitors”

test means this confidential information that amici are

required to turn over to the government is provided no

protection under Public Citizen’s Exemption 4 standard.

Further, the NMFS inventory “information” the

activists obtain often is inaccurate, and is used by them

to promote further inaccuracies and to cause amici

reputational (and, thereby, economic) harm. For example,

detractors of marine mammal park Dolphin Quest used

FOIA to receive confidential information about Dolphin

Quest, and then misused that confidential information

to make false claims about the facility. As Dr. Stone

observed:

A committee [in the Hawaii legislature] was

considering legislation that sought to ban

the transfer of cetaceans in human care “for

breeding or entertainment purposes.” Not

only did animal extremists supporting this

bill say they used “research” gleaned from the

NMFS inventory to support this legislation,

17

the bill sponsors included inaccuracies from

the NMFS inventory in the actual bill text.

The information about Dolphin Quest from the

inventory that was the basis of this “research”

was grossly inaccurate and referenced animals

that were never at Dolphin Quest and died

before Dolphin Quest was even founded.

Stone Testimony, p. 6. (emphasis added).

PETA, Humane Society International (“HSI”) and

the Center for Biological Diversity (“CBD”) also use

FOIA to seek other types of commercial information such

as the identities of shippers who transport animals to

amici, their members and similarly situated entities. For

example, in the pending case Humane Soc’y Int’l v. U.S.

Fish & Wildlife Serv., supra, HSI is seeking confidential

commercial information required to be provided to the

U.S. Department of Fish & Wildlife Services (“FWS”)

pursuant to 50 C.F.R. § 14.52. This information is housed

in the Law Enforcement Management Information System

(“LEMIS”).

There is real concern that HSI or others will use the

LEMIS information in order to harass transport carriers

and to disrupt supply chains. As Nick Pologeorgis, whose

company is a member of amicus FICA, declared in the

pending Humane Society case:

[D]isclosure of LEMIS data would greatly

increase the risk of supply chain disruption by

animal activist groups. For example, an animal

activist group could review the information

contained in the importer/exporter LEMIS field

to identify the company’s preferred vendors

18

and suppliers and then use that information –

along with carrier, source country, port code

and date – to learn the company’s shipping

routes. Armed with this information, animal

activist organizations could then target

preferred vendors and transport carriers with

harassment . . . [thereby] increasing costs, and/

or leading to a more limited pool of vendors/

suppliers.

Humane Soc’y Int’l v. U.S. Fish & Wildlife Serv.,

D.D.C. Case No. 16-cv-00720, ECF No. 33-6, p. 22, ¶ 10,

Declaration of Nick Pologeorgis (filed May 8, 2018).

In the same case, another declarant, Ira Block,

averred:

Organizations like the Humane Society

International (“HSI”) seek to damage companies

that conduct federally required research on

animals. One of their primary strategies is

to disrupt supply chains. To do this, these

organizations frequently request import/

export information from government agencies

and use that information to identify research

animal suppliers and transporters. They then

target those suppliers and transporters with

harassment for the purpose of halting or

delaying animal research.

Id. at p. 71, ¶ 22, Declaration of Ira Block. It can take

years for companies to develop and maintain reliable

supply sources and transporters of animals. The names

of suppliers and transporters are closely-held, confidential

19

business information, and should not be made accessible

under FOIA – especially to groups, even if they are “noncompetitors,” that will use this information for disruptive

purposes.10

Indeed, Messrs. Pologeorgis and Block’s fears in this

regard are not theoretical. PETA has made FOIA requests

to the U.S. Department of Agriculture (“USDA”) in order

to obtain information regarding airlines transferring

animals into the United States. See https://www.aphis.

usda.gov/foia/foia_logs/2013/April.xlsx (“Request the

full USDA APHIS files on the following air carriers with

dateline going back as far as USDA APHIS’ records go for

these air carriers: 1. Air France Cargo (Certificate 57-T0109) . . . .”). After obtaining such confidential information,

PETA uses it to attempt to prevent those airlines from

carrying animals, to the detriment of amici and similarly

situated entities. See, e.g., Stop Air France From

Shipping Monkeys to Their Deaths!, https://headlines.

10. Another consideration for returning “confidential” to

its plain meaning in Exemption 4, is the undue burden in time

and expense to submitters in attempting to prove “substantial

competitive harm” versus being able to make a simple showing

that their confidential information is not normally made publicly

available. See Patten and Weinstein at 200 (proof of competitive

harm “obviously would be difficult and costly to present”). Activist

groups are, on the whole, much better-funded than the many

small business members of amici. The latter do not have the same

resources to protect their confidential information from disclosure,

as compared to their detractors who seek such information under

FOIA. Cf. Kuehl v. Sellner, 887 F.3d 845, 856 (8th Cir. 2018)

(expressing concern about “plaintiffs’ attempt, assisted as it is

by at least five of such [animal rights] organizations, as evidenced

by their corporate-level-counsel amici briefs . . . to close small,

privately owned zoos.”).

20

peta.org/air-france-stop-shipping-monkeys/ (“Air France

even canceled an individual shipment of monkeys after

a public outcry by PETA and its supporters.”).

As demonstrated by the above examples, the activists’

receipt and use of the “confidential” information they

currently can and do obtain pursuant to FOIA, can and

does cause amici and their constituents both reputational

and economic harm. In short, amici are being penalized

by their compliance with laws requiring government

disclosure of their confidential information, and by their

voluntary willingness to provide the government with

confidential information.

The word “confidential” in Exemption 4 should be

construed to mean that whatever information a party

designates and treats as “confidential” and does not

normally share with the public for whatever reason should

be protected from disclosure – including for reasons to

safeguard against reputational harm or harassment.

FMI is right in urging this Court to restore the word

“confidential” to its plain meaning. By doing so, the Court

will afford amici the Exemption 4 coverage to which they

rightfully are entitled under FOIA.

III. THE UNSETTLED STATE OF EXEMPTION

4 LEADS TO POTENTIALLY CONFLICTING

J U RISPRUDENCE , RESULTI NG I N TH E

POSSIBILITY OF GAMESMANSHIP

Because the interpretation of the word “confidential”

in Exemption 4 has not been definitively ruled on by this

Court, parallel – indeed, often virtually identical – court

proceedings involving FOIA requests for substantially

21

the same information will have potentially conflicting

outcomes.

For example, currently there are two pending lawsuits

in two different jurisdictions, filed months apart, both

involving requests from the same government agency

pursuant to FOIA for substantially the same information.

One is pending before a district court in the District of

Columbia. Humane Soc’y Int’l v. U.S. Fish & Wildlife

Serv., No. 16-cv-00720 (D.D.C. filed Apr. 18, 2016) (the

“HSI Case”). The second was filed in Arizona district

court. Ctr. for Biological Diversity v. United States Fish

& Wildlife Serv., No. 16-cv-00527, (D. Ariz. filed August

9, 2016) (the “CBD Case”).

Plaintiffs in the two cases had sought, by way of a

FOIA request to the FWS, electronic LEMIS records for

the years 2002 through 2010, 2013 and 2014 (the HSI Case),

and 2005 to the present (the CBD Case). The requested

data sets total tens of thousands of confidential entries

relating to imports and exports of animals by private

persons and entities of any taxonomic class, whether live,

dead, parts or products. In both cases, in response to the

activists’ requests, FWS withheld certain portions of the

LEMIS data under FOIA Exemption 4. HSI and CBD

sued – albeit in different jurisdictions.

On March 30, 2018, the district court in the CBD Case

granted summary judgment to CBD. 2018 WL 1586648.

In articulating the Exemption 4 “confidential” test, the

district court explicitly relied on the standard of Secrets

and Smokescreens, as quoted in Public Citizen. Id., at *4

n. 2. And, in granting CBD’s summary judgment motion

and directing FWS to provide documents responsive to

22

CBD’s FOIA request, the district court relied on National

Park’s atextual definition of the term “confidential,”

concluding: “Based on the circumstances of this case,

the corporate speculations are insufficient to support

exemption . . . CBD is entitled to a dataset including the

Exemption 4 information at issue.” The Ninth Circuit has

stayed the district court’s ruling in part. Order, Ctr. for

Biological Diversity v. U.S. Fish & Wildlife Serv., No.

18-15997 (9th Cir. June 14, 2018), ECF No. 18.11 As of the

date of this filing, the CBD Case remains pending.

Meanwhile, in the HSI Case in the District of

Columbia, cross-motions for summary judgment are

pending. In its motion for summary judgment, HSI

explicitly relied on the district court’s ruling in the CBD

Case (and failed to mention that the ruling had been stayed

by the Ninth Circuit). See, e.g., HSI Motion for Summary

Judgment, HSI Case, ECF No. 36, p. 23 (“the Court in

CBD analyzed these exact allegations of harm from many

of the exact same companies, and held that FWS did not

meet its burden to justify nondisclosure, holding that

‘the corporate speculations are insufficient to support

exemption.’”) (quoting CBD Case, 2018 WL 1586648 at

*4-7). The HSI case remains pending.

Unless this Court returns the term “confidential” to its

proper, textual meaning, there is a strong possibility that

both HSI and CBD will prevail. However, because of the

unsettled nature of the term “confidential” in Exemption

4, there also is a possibility that one of the two cases will

11. The Ninth Circuit stayed the release of the documents at

issue and remanded to the district court to consider the question

of whether a third-party could intervene.

23

be resolved in favor of the activist group which made the

FOIA request, and the other in favor of FWS. If such a

scenario occurs, FWS’s victory will be pyrrhic. Once the

prevailing activist obtains the FOIA’d documents, those

confidential documents will be made public.

As this Court recognized when it issued the stay in

Petitioner’s favor, there is no going back. If the defendant

loses somewhere, the defendant loses everywhere.

The detractors of amici know this, and use it to their

advantage, filing similar cases in multiple jurisdictions.

They don’t need to win every case. Under the current

Exemption 4 jurisprudence, one positive ruling is enough

to cause amici, their members and similarly situated

entities irrecoverable harm. By accepting FMI’s Petition,

the Court has the ability to rectify this.

CONCLUSION

Words mean what they say. In the absence of an

obvious statutory reason to change the plain language

meaning of the word “confidential” – which the D.C.

Circuit has never provided – the plain language meaning

should be retained. Allowing the word “confidential” to

stray from its plain meaning has caused harm to amici,

to similarly situated entities and to many other persons

who provide confidential information to the government. If

Congress wishes to codify the D.C. Circuit’s interpretation

of FOIA, it has the power to do so. The D.C. Circuit,

however, does not have the right to modify the statute as

it has in National Parks and Public Citizen.

24

The Court should grant FMI’s Petition in order

to overrule the D.C. Circuit’s antiquated, atextual

precedent limiting the scope of FOIA Exemption 4, and

to reinvigorate the statute with its plain meaning.

Respectfully submitted,

Ira T. K asdan

Counsel of Record

Bezalel A. Stern

Kelley Drye & Warren, LLP

3050 K Street N.W., Suite 400

Washington, D.C. 20007

ikasdan@kelleydrye.com

(202) 342-8864

Counsel for Amici Curiae