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 D/B/A ARGUS LEADER,

Respondent.

On 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, AMERICAN FARM

BUREAU FEDERATION, ANIMAL AGRICULTURE

ALLIANCE, FUR INFORMATION COUNCIL OF

AMERICA, NATIONAL ASSOCIATION FOR BIOMEDICAL

RESEARCH, PET INDUSTRY JOINT ADVISORY

COUNCIL, PINNACLE PET, PROTECT THE HARVEST,

THE UNITED STATES ASSOCIATION OF REPTILE

KEEPERS, AND THE ZOOLOGICAL ASSOCIATION OF

AMERICA IN SUPPORT OF PETITIONER

Ira K asdan

Counsel of Record

Bezalel Stern

Kelley Drye & Warren LLP

Washington Harbour

3050 K Street, NW, Suite 400

Washington, DC 20007

(202) 342-8400

ikasdan@kelleydrye.com

Counsel for Amici Curiae

286533

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 . . . . . . . . . . . . . . . iv

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

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I.

THE WORD “CONFIDENTIAL” MEANS

“CONFIDENTIAL” . . . . . . . . . . . . . . . . . . . . . . . 7

II. T H E C OU RT SHOU L D ENSU R E

THAT THE LEGACY OF NATIONAL

PARKS IS OVERRULED . . . . . . . . . . . . . . . . . 9

A. The Cou r t Should O ver r ule the

D.C. Circuit’s Law Review-Inspired

Precedent of Public Citizen Health

Research Group . . . . . . . . . . . . . . . . . . . . . . . 9

B. Reputational Harm Causes Real

Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

III. THE CURRENT EXEMPTION 4 TEST

OF T EN LEA DS TO PROLONGED

LITIGATION AND ABSURD RESULTS . . . 16

iii

Table of Contents

Page

A. Anim al Legal Defense Fun d v.

U.S. Food & Drug Administration . . . . . . 17

B. Jurewicz v. U.S. Depar tment of

Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . 20

IV. WITH NO UNIFORM UNDERSTANDING

OF “ C ON F I DEN T I A L ,” M A N Y

L AW SU I T S A R E OF T EN FI LED

I N DI F F E R E N T C I R C U I T S I N

ORDER TO RETRIEVE THE SAME

CONFIDENTIAL INFORMATION . . . . . . . 22

V.

A RECENT REPORT SHOWS THE

PERVASIVE MISUSE OF FOIA BY

A MICI ’ S DET R AC T OR S I N T H E

A B S ENC E OF A M E A N I NGF U L

EXEMPTION 4 TEST . . . . . . . . . . . . . . . . . . . . 27

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iv

TABLE OF CITED AUTHORITIES

Page

CASES

AIDS Healthcare Found. v.

U.S. Food & Drug Admin.,

No. CV1107925MMMJEMX, 2014 WL 10983763

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

Animal Legal Defense Fund v.

U.S. Food & Drug Admin.,

Case No. 12-cv-04376-EDL

(N.D. Cal., filed August 20, 2012) . . . . . . 17, 18, 19, 20

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

224 F. Supp. 3d 827 (D.S.D. 2016) . . . . . . . . . . . . . . . 13

Ctr. for Biological Diversity v.

U.S. Fish & Wildlife Serv.,

No. CV-16-00527-TUC-BGM, 2018 WL 1586648

(D. Ariz. Mar. 30, 2018) . . . . . . . . . . . . . . . . . 13, 24, 25

Ctr. for Biological Diversity v.

U.S. Fish & Wildlife Serv.,

No. 18-15997 (9th Cir. Jan. 14, 2019) . . . . . . . . . . . . . 25

Ctr. for Biological Diversity v.

United States Fish & Wildlife Serv.,

No. 16-cv-00527 (D. Ariz. filed

August 9, 2016) . . . . . . . . . . . . . . . . . . . . . 23, 24, 25, 26

Digital Realty Tr., Inc. v. Somers,

138 S. Ct. 767 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

v

Cited Authorities

Page

Edelman v. U.S. Sec. & Exch. Comm’n,

No. 315CV02750BENBGS, 2017 WL 4286939

(S.D. Cal. Sept. 27, 2017) . . . . . . . . . . . . . . . . . . . . . . 13

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

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

Apr. 18, 2016) . . . . . . . . . . . . . . . . . . . . . . . 23, 24, 25, 26

Jurewicz v.

United States Department of Agriculture,

741 F.3d 1326 (D.C. Cir. 2014) . . . . . . . . . . . . . . . 20, 21

Kuehl v. Sellner,

887 F.3d 845 (8th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 22

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

Watkins v.

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

643 F.3d 1189 (9th Cir. 2011) . . . . . . . . . . 12, 13, 19, 24

vi

Cited Authorities

Page

STATUTES AND OTHER AUTHORITIES

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

7 U.S.C. § 2134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

16 U.S.C. § 1361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

16 U.S.C. § 1374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

9 C.F.R. § 2.5(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A Review of Animal Rights FOIA Requests

Fiscal Year 2017, National A ssociation

for Biomedical Research (Dec. 19, 2018) . . . . . . 27, 28

Black’s Law Dictionary 361 (10th Ed. 2014) . . . . . . . . 4, 8

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. (April 25, 2018) . . . . . . . . . . . . . . 14, 15, 16

vii

Cited Authorities

Page

FY 15: Animal Rights FOIA Requests, National

A s s o c i at ion for Biome d ic a l R e s e a r c h

(May 19, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Kathleen Vermazen Radez, The Freedom of

Information Act Exemption 4: Protecting

Corporate Reputation in the Post-Crash

Regulatory Environment, 2010 Colum. Bus. L.

Rev. 632, 658 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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) . . . . 12, 21

1

INTEREST OF AMICI CURIAE1

Amici are national businesses, associations and

organizations whose members and stakeholders work

with and care for animals in their respective businesses,

vocations, 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

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

mammal conservation through public display, education,

research, and the rescue and rehabilitation of injured,

orphaned, and distressed animals in the wild.

The American Farm Bureau Federation (“AFBF”),

headquartered in Washington, D.C., was formed in 1919

and is the largest nonprofit general farm organization in

the United States. Representing about six million member

families in all fifty states and Puerto Rico, AFBF’s

members grow and raise every type of agricultural

crop and commodity produced in the United States. Its

mission is to protect, promote, and represent the business,

economic, social, and educational interests of American

farmers and ranchers. To that end, the AFBF regularly

participates in litigation, including as amicus curiae in

this and other courts, to represent its members.

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

3

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 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.

The Pet Industry Joint Advisory Council is a 501(c)

(6) nonprofit dedicated to promoting responsible pet

ownership and animal welfare, fostering environmental

stewardship and ensuring the availability of pets.

Pinnacle Pet is a national pet supplier. Dedicated to

pet wellness, Pinnacle Pet provides customized care of its

animals from breeder to pet store.

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,

4

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.

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

“Confidential information” has a plain meaning:

“Knowledge or facts not in the public domain but known

to some . . . .” Black’s Law Dictionary 361 (10th Ed. 2014).

That is what the term means wherever it is not defined

otherwise, including in the Freedom of Information Act

(“FOIA”)’s Exemption 4, 5 U.S.C. § 552(b)(4). Exemption 4

exempts from mandatory FOIA disclosure materials that

are “trade secrets and commercial or financial information

5

obtained from a person and privileged or confidential.”

Pursuant to the plain meaning of “confidential,” application

of Exemption 4 to “confidential” material of a “commercial

or financial” nature should be determined simply by the

declaration of the party whose confidential information is

at issue that the information has been kept confidential and

not released by that party into the public domain. Such

information should then be disclosed only if the requester

can demonstrate otherwise.

Yet, despite the plain language of the statute and the

clear meaning of the word, the D.C. Circuit, in National

Parks & Conservation Association v. Morton, 498 F.2d

765 (D.C. Cir. 1974), created an atextual “substantial

competitive harm” test out of whole cloth that heightened

the standard by which commercial and financial materials

would be considered confidential for purposes of applying

Exemption 4. Later, in Public Citizen Health Research

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

(D.C. Cir. 1983), the D.C. Circuit added one caveat to

its test that disallowed reputational harm as a basis to

establish competitive harm, and another that further

limited application of Exemption 4 only to harm flowing

from the affirmative use of proprietary information

specifically by “competitors.” These heightened Public

Citizen standards had no basis in the text of FOIA or in

its legislative history. Instead, the D.C. Circuit’s source

for this new interpretation of Exemption 4 was a citationfree paragraph in a University of Wisconsin Law Review

article.

The results of the D.C. Circuit’s atextual and

unsupported precedents have been incredibly damaging

to amici, their members and similarly situated entities.

6

Activist groups opposed to amici rely on National

Parks and Public Citizen to obtain amici’s confidential

information from the government. They then go on

to misuse and publicly disseminate that confidential

information in attempts to drive amici and their members

out of business, by causing them reputational and economic

harm.

Additionally, the misinterpretation of Exemption 4 by

National Parks and Public Citizen – and other Circuits

following their precedent – has fostered costly and

prolonged FOIA lawsuits, often leading to patently unjust

outcomes, with the disclosures of plainly confidential

commercial information. The misinterpretation has also

promoted the multiplicity of parallel lawsuits in different

jurisdictions to obtain the same confidential information

of private parties pursuant to FOIA.

The exploitation of FOIA in this manner, and the

resulting explosion of FOIA requests by activist groups,

can and should be remedied by this Court. The Court

should take this opportunity to overrule National Parks

and Public Citizen once and for all. The government

and the lower courts should be instructed to apply the

plain meaning of confidential in Exemption 4. Such a

move would ensure that FOIA will no longer be used as a

weapon in the hands of those who wish to cause harm by

wrongfully receiving confidential commercial and financial

information of private persons.

7

ARGUMENT

I.

T H E WOR D “ C ON F I DE N T I A L” M E A N S

“CONFIDENTIAL”

5 U.S.C. § 552(b)(4) (“Exemption 4”) exempts from

mandatory disclosure under the Freedom of Information

Act (“FOIA”) materials that are “trade secrets and

commercial or financial information obtained from

a person and privileged or confidential.” The word

“confidential” in this sentence is not defined. It need not

be. “Confidential” means “confidential.”

Despite the plain language of Exemption 4, the D.C.

Circuit in National Parks & Conservation Association v.

Morton, 498 F.2d 765 (D.C. Cir. 1974) chose to create an

atextual test, defining the term “confidential” as requiring

the government to prove that providing the information

under FOIA likely would result in “substantial competitive

harm.” See Pet. Brief, at 3. 2 Notwithstanding National

Parks and its widespread adoption by other Circuit Courts,

the word “confidential” does not mean “confidential but

only if disclosure likely results in substantial competitive

harm” – not in Exemption 4, nor anywhere else.

National Parks creates an entirely atextual burden

on private parties who seek nothing more than to protect

their own confidential information. It similarly burdens

the government agencies usually tasked with trying to

2. The D.C. Circuit’s Exemption 4 test applies only

sometimes, i.e., when the material was compulsorily provided to

the government, as opposed to when it was voluntarily provided.

See Pet. Brief, at 14.

8

protect this third-party information. In rejecting the

lower courts’ National Park precedent, this Court need

not look beyond the statute’s plain text.

Should this Court agree w ith Petitioner Food

Marketing Institute (“Petitioner” or “FMI”) and amici

that the word “confidential” means what it says, the

inevitable question for the Court to decide will likely

become: post-National Parks, how will the government, or

a party whose confidential information is being requested

pursuant to FOIA, demonstrate that confidential material

is, in fact, confidential?

Amici submit that the answer is straightforward.

Confidential materials are those that a party treats as

confidential in its regular course of business and does not

release to the public – for whatever reason. “Confidential

information” has a plain, unambig uous meaning:

“Knowledge or facts not in the public domain but known

to some . . . .” Black’s Law Dictionary 361 (10th Ed. 2014).

Thus, if the material is treated by the submitting party

as private, and has not been disclosed by the party to the

public, it should be considered “confidential” for Exemption

4 purposes. Proof of the confidential nature of the material

at issue should be established by way of declaration(s) from

the party who provided the commercial information to the

government, whether voluntarily or through government

mandate, or from whom the information was obtained by

the government in the course of its own inspections of

a party’s facility or by way of communications between

the private party and the government. The burden then

should shift to the party requesting the information under

FOIA to prove that the confidential information is not, in

fact, confidential.

9

This proposed test is simple and straightforward.

Indeed, it is similar to a standard used to protect

confidential information in trial courts by way of a

protective order. In both instances, the parties are

expected to mark materials as confidential only when

they truly are so. If a document marked confidential was

previously disseminated within the public domain, the

opposing party has the ability to challenge the designation

by demonstrating that the information was not kept

private. 3

Most importantly, amici’s proposed test does not

ignore the plain language of Exemption 4. This alone

makes it more palatable to an appropriate application of

FOIA than the current “substantial competitive harm”

test prevalent among the lower courts.

II. THE COURT SHOULD ENSURE THAT THE

LEGACY OF NATIONAL PARKS IS OVERRULED

A.

The Court Should Overrule the D.C. Circuit’s

Law Review-Inspired Precedent of Public

Citizen Health Research Group

Amici urge the Court not only to overrule National

Parks but to ensure that its progeny, including Public

Citizen Health Research Group v. Food & Dr ug

3. For the purpose of this test, any materials previously

released under FOIA pursuant to the old National Parks test

should not be considered in the public domain. For example, if

a category of information was released pursuant to National

Parks in the past and is now in the public domain, any update to

that information should not be released under a post-National

Parks test.

10

Administration, 704 F.2d 1280 (D.C. Cir. 1983), is laid to

rest. In a footnote near the end of its opinion in Public

Citizen, the D.C. Circuit

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.”

704 F.2d at 1291 n. 30 (emphasis in original). The quoted

language comes from a University of Wisconsin Law Review

article by Mark Q. Connelly, Secrets and Smokescreens: A

Legal and Economic Analysis of Government Disclosures

of Business Data. See 1981 Wis. L. Rev. 207, 235-36

(hereinafter, “Secrets and Smokescreens”). Grounded on

nothing more than 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]

11

proprietary information by competitors.” Secrets and

Smokescreens at 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 at 235 (citing nothing).4

Nothing in the legislative history of FOIA – even in

any of the attenuated legislative history relied on by the

D.C. Circuit – required or implied that the limitations

imposed by the author of Secrets and Smokescreens should

be applied to Exemption 4.5 Yet, Public Citizen, relying on

4. 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:

Protecting Corporate Reputation in the Post-Crash Regulatory

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

omitted).

5. 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

12

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 Pet. Brief, at 24-26. 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.6

Since Public Citizen, even courts outside the D.C.

Circuit have applied the “law” of Secrets and Smokescreens

without analyzing from where or how that “law” came to

be. 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

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)

(citations to House and Senate Reports omitted) (hereinafter,

“Patten and Weinstein”).

6. 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 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.

13

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).

Since Watkins, courts throughout the Ninth Circuit have

referenced and relied on Secrets and Smokescreens in

granting overbroad FOIA requests that a plain reading

of Exemption 4 would have rejected. See, e.g., Ctr. for

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

CV-16-00527-TUC-BGM, 2018 WL 1586648, at *4 n. 2

(D. Ariz. Mar. 30, 2018); Edelman v. U.S. Sec. & Exch.

Comm’n, No. 315CV02750BENBGS, 2017 WL 4286939, at

*6 (S.D. Cal. Sept. 27, 2017); AIDS Healthcare Found. v.

U.S. Food & Drug Admin., No. CV1107925MMMJEMX,

2014 WL 10983763, at *6 (C.D. Cal. Feb. 13, 2014).

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

the definition of “competitive harm” invented by Secrets

and Smokescreens. The district court held: “Competitive

harm is limited to ‘harm f lowing 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 at 1291

n. 30). This case, therefore, presents a prime opportunity

not only to overrule the Exemption 4 test of National

Parks, but also to do away with the reputational harm

test contained in Public Citizen.

14

B. Reputational Harm Causes Real Damage

Under the current National Parks and Public

Citizen tests, Exemption 4 provides amici’s confidential

information with scarce protection. Amici’s detractors7

often proudly and loudly announce that the goal of

their receipt of the confidential materials of amici is to

reputationally embarrass and economically harm them

and their suppliers and vendors. 8 Nevertheless, applying

National Parks and Public Citizen, lower courts regularly

find that amici’s confidential materials may be publicly

disclosed, either because amici’s detractors are not

“competitors” of amici, or because reputational harm is

not protected by Exemption 4.

One case in point of reputational harm causing real

damage is demonstrated by the testimony presented

in 2018 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)

7. These detractors include organizations such as People

for the Ethical Treatment of Animals (“PETA”), the Center for

Biological Diversity (“CBD”), the Animal Legal Defense Fund

(“ALDF”), the Humane Society of the United States (“HSUS”)

and like-minded groups.

8. See, e.g., Stop Air France From Shipping Monkeys

to Their Deaths!, https://headlines.peta.org/air-france-stopshipping-monkeys/ (“Air France even canceled an individual

shipment of monkeys after a public outcry by PETA and its

supporters.”).

15

(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.

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 these threats, 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

16

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,

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).

III. THE CURRENT EXEMPTION 4 TEST OFTEN

LEADS TO PROLONGED LITIGATION AND

ABSURD RESULTS

The confidential information amici’s detractors

seek often includes: (1) the numbers and locations of

animals and animal products kept in the regular course

of business,9 (2) the total number of animals purchased

and sold, and the gross revenues of those sales,10 and (3)

9. See infra, Section III.A.

10. See infra, Section III.B.

17

information regarding the import and export of animals.11

All the above categories of confidential materials have

been publicly disclosed pursuant to National Parks and

Public Citizen, despite their being of a “commercial or

financial” nature, and thus covered by a plain language

reading of Exemption 4.

What is more, the government, and/or private persons

(such as amici) who wish to protect this information from

disclosure, must spend time and money in protracted FOIA

litigation that under the current prevalent precedents,

amici and the government regularly lose despite the

confidentiality of the documents and materials at issue.

The following are but two examples of years-long cases

in which amici, their members and similarly situated

entities were harmed – and continue to be harmed – by

the current Exemption 4 test which failed to protect their

private, confidential commercial information against

public dissemination.

A.

Animal Legal Defense Fund v. U.S. Food &

Drug Administration

In 2012, the Animal Legal Defense Fund (“ALDF”)

filed suit against the U.S. Food & Drug Administration

(the “FDA”). ALDF argued that the FDA wrongly relied

on Exemption 4 to prevent the release of confidential

materials “related to egg production in Texas.” See

Animal Legal Defense Fund v. U.S. Food & Drug Admin.,

Case No. 12-cv-04376-EDL (N.D. Cal., filed August 20,

2012) (the “ALDF Case”), Complaint, ECF No. 1, p. 1.

Those confidential materials were provided to the FDA by

persons and companies who worked in the egg industry. Id.

11. See infra, Section IV.

18

Basing their protection under Exemption 4, the

FDA refused to release the following five categories of

information: “(1) total hen population; (2) total number

of hen houses; (3) total number of floors per hen house;

(4) total number of cage rows per hen house; and (5)

total number of cage tiers per hen house.” ALDF Case,

Magistrate Judge’s Findings of Fact & Conclusions of Law,

ECF No. 169, p. 1 (“ALDF Opinion”). All this information

was received by the FDA from private parties. Id. And,

there was “no dispute that the information that the FDA

redacted . . . is ‘commercial or financial information’

that may be protected from disclosure if Exemption 4

otherwise applies.” Id. at 13.

Nevertheless, the FDA was forced to spend nearly

eight years litigating what should have been – pursuant

to a plain reading of Exemption 4 – a very simple case,

and which, under a plain reading of the statute, would

almost certainly have resulted in summary dismissal.

As it was, after years of motion practice, and multiple

pre-trial appeals and remands, the magistrate assigned

to the case held a four-day bench trial in April 2018 on

the issue whether the confidential commercial materials

ALDF requested should be considered “confidential”

under Exemption 4.

On January 23, 2019, the magistrate issued its Findings

of Fact and Conclusions of Law. See ALDF Opinion. In

its findings, the magistrate concluded that Exemption 4

did not apply to the majority of the withheld information,

despite the fact that the private parties that provided the

commercial information to the FDA themselves treated

the information as confidential – similar to the case at bar.

19

Following the reasoning of National Parks and

Public Citizen, the magistrate held that “no likelihood

of substantial competitive harm arises from the release

of the total number of hen houses, total number of floors

per hen house, total number of cage rows per hen house,

and the total number of cage tiers per hen house.” ALDF

Opinion, p. 2. In so doing, the magistrate specifically relied

on Public Citizen, 704 F.2d at 1291 n. 30, as adopted by

the Ninth Circuit in Watkins, 643 F.3d at 1195, for the

proposition that “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.” ALDF Opinion at 13 (emphasis in ALDF

Opinion). Forty years of misguided D.C. Circuit precedent

should not blind this Court to the absurdity of this result.12

The sheer length of the ALDF Case, which has

been ongoing since 2012 and may continue for some

time longer, is by no means uncommon in a FOIA

litigation. Such undue burden in time and expense to

the government in attempting to prove “substantial

competitive harm” provides the Court with another

consideration for returning “confidential” to its plain

meaning. The government should not be forced to focus

its resources in order to prove whether an admittedly

confidential item would cause “substantial competitive

harm” if publicly released. Instead, if the test was based

on a plain language reading of the term confidential, the

12. As of the date of this filing, the judgment in the ALDF

Case is stayed pending FDA’s receipt of approval from the Solicitor

General to appeal the case to the Ninth Circuit. See ALDF Case,

ECF No. 172.

20

government would easily be able to discern whether the

commercial or financial material at issue was truly treated

by the submitting party as confidential. All that would

be necessary would be the submission of declarations to

that effect.

B. Jurewicz v. U.S. Department of Agriculture

In the ALDF Case, the magistrate held that the

“use of disclosed information by an individual who is not

a competitor does not implicate Exemption 4.” ALDF

Opinion at 13. In doing so, the magistrate relied on

Jurewicz v. United States Department of Agriculture, 741

F.3d 1326 (D.C. Cir. 2014). Jurewicz stemmed from FOIA

requests made by an animal activist group, the Humane

Society of the United States (“HSUS”) in 2009. Id. at

1330. HSUS was looking to obtain confidential information

“relating to the[] gross revenue and business volume”

of certain dog breeders and dealers in Missouri. Id. at

1329. Particularly, HSUS wanted “copies of Form 7003s”

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

and Plant Inspection Service (“APHIS”). Id. “Form 7003

asks for (1) the total number of animals purchased and

sold in the last year; (2) the gross revenue from regulated

activities; and (3) for dealers that are not breeders, the

difference between the purchase price and sale price of the

animals sold.” Id. This confidential information is provided

by dog breeders and dealers to APHIS on a yearly basis,

pursuant to 7 U.S.C. § 2134 and 9 C.F.R. § 2.5(b).13

13. APHIS’s Form 7003 is found at the following link:

https://w w w.aphis.usda.gov/aphis/ourfocus/animalwelfare/

SA_Regulated_Businesses/SA_Request_License_Registration_

Application_Kit.

21

A group of the breeders and dealers whose records

were set to be released challenged the release in federal

court in this reverse-FOIA case. They alleged, among

other things, that their commercial information found

on Form 7003 should be protected from disclosure

under Exemption 4. The D.C. Circuit rejected the

challenge. Following National Parks and Public Citizen,

the D.C. Circuit held that the challengers needed to

“show[] both actual competition and a likelihood of

substantial competitive injury.” Id. at 1331. “Exemption

4,” the Jurewicz court held, “does not guard against mere

embarrassment in the marketplace or reputational injury”

and “must flow from the affirmative use of proprietary

information by competitors.” Id. (quotations omitted).

It is inconceivable that a small business’s total sales

and gross revenues would not be considered confidential

commercial and financial information. Yet, to the Jurewicz

court’s mind, these facts were of no moment. Instead, the

only thing that mattered was whether the law reviewinspired test of Secrets and Smokescreens was met.

Because it was not, the information was released after five

years of litigation.14 This illogical and inequitable result

14. 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 by them. 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

22

is inconsistent with the text of Exemption 4 and should

not be allowed to be repeated in the future by continued

application of the National Parks and Public Citizen tests.

IV. WITH NO UNIFORM UNDERSTANDING OF

“CONFIDENTIAL,” MANY LAWSUITS ARE

OFTEN FILED IN DIFFERENT CIRCUITS

I N OR DER T O R ET R I EV E T H E S A M E

CONFIDENTIAL INFORMATION

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

the same information will have potentially conflicting

outcomes. Gamesmanship is the primary likely reason

multiple lawsuits are filed by closely aligned and related

activist groups in different Circuits in order to retrieve

the same confidential information of the same private

parties. Plaintiffs using FOIA to obtain documents of

private parties know that at least some district courts and

Circuits will likely follow the D.C. Circuit’s wide-ranging

precedent in National Parks and Public Citizen – and

will thereby ignore the actual confidential nature of the

materials being FOIA’d.

Even if those parties lose in one Circuit, if they win in

another the first loss will not matter. If even one Circuit

retains the D.C. Circuit’s expansive tests as to what

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.”).

23

“confidential” information is, the defendants will lose, as

the materials being sought will simply be FOIA’d from

that jurisdiction. This Court has the power to remedy this

injustice, and to stop once and for all this gamesmanship.

Only a uniform test of what the term “confidential” means

and how it is applied in Exemption 4 can prevent such

abuse.

Such gamesmanship is not merely theoretical. In

fact, it is real, and ongoing. To cite one current example:

There are now two pending lawsuits in two different

jurisdictions, filed months apart, both involving requests

to the same government agency pursuant to FOIA for

substantially the same information. The clear intent of

both of the requestors is to use the confidential information

they hope to receive to harm amici, their members and

others similarly situated. Amici’s detractors have, at this

time, prevailed in district court in one of the two cases,

although the case is currently stayed pending appeal. In

the other, summary judgment is pending.

The f i rst case was f iled by Humane Society

International on April 18, 2016, in the District Court for

the District of Columbia. See 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 less than

three months later by another detractor of amici, the

Center for Biological Diversity, in federal court in Arizona.

Ctr. for Biological Diversity v. United States Fish &

Wildlife Serv., No. 16-cv-00527, (D. Ariz. filed August 9,

2016) (the “CBD Case”).15

15. It is unsurprising that the plaintiffs in these two cases

chose to file suit in the D.C. Circuit and the Ninth Circuit. Those

24

The plaintiffs in the two cases had sought, by way

of a FOIA request to the Fish and Wildlife Service

(“FWS”), records in FWS’s electronic Law Enforcement

Management Information System (“LEMIS”) 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

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

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

two Circuits have the most generous, consistently pro-plaintiff

readings of FOIA’s Exemption 4. Both the D.C. Circuit and the

Ninth Circuit have held that for FOIA’s Exemption 4 to apply, there

must be a showing of likely “substantial competitive harm,” and

that the private party whose confidential materials are threatened

to be disclosed must affirmatively show that the plaintiff is a

“competitor” (based on the law-review inspired Secrets and

Smokescreens test). See Public Citizen, 704 F.2d at 1291 n. 30;

Watkins, 643 F.3d at 1195. That plaintiffs chose to file in these

two jurisdictions underscores their gamesmanship of the judicial

system in order to ensure receipt of confidential materials.

25

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.” Id.

On November 15, 2018, the district court granted

amicus NABR’s Motion to Intervene in that case for the

purpose of appealing the district court’s judgment to

the Ninth Circuit. CBD Case, ECF 91. CBD has filed a

Motion for Reconsideration of that Order, which Motion

remains pending as of the date of this filing. See id., ECF

Nos. 92, 94, 95. In the meantime, the appeal of the CBD

Case has been stayed by the Ninth Circuit. Order, Ctr.

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

18-15997 (9th Cir. Jan. 14, 2019), ECF No. 22.

Meanwhile, in the HSI Case filed in the District of

Columbia, which was brought to obtain virtually the same

information to use against amici as was sought by the

plaintiffs in the CBD Case, cross-motions for summary

judgment are pending. See HSI Case, ECF Nos. 32-36.

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 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, like the CBD Case, remains pending.

Unless this Court returns the term “confidential” to its

proper, textual meaning, there is a strong possibility that

26

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

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

earlier in the procedural history of this case in Petitioner’s

favor, once a private party’s “confidential” information

is provided to another private party by way of a FOIA

request, there is no going back. If the defendant loses

somewhere, the defendant loses everywhere.

As Petitioner notes, stare decisis has bound the lower

courts from remedying the defects inherent in National

Parks and Public Citizen. Pet. Brief, 14. This Court,

having never considered (until now) the appropriateness

of the D.C. Circuit’s antiquated, atextual tests virtually

defining the word “confidential” out of the FOIA statute

(but only as to Exemption 4), is not similarly bound. By

overturning the lower courts’ prior precedents, this

Court will return the term “confidential” to its plain

meaning. That is reason enough to reverse. However, by

replacing the lower courts’ wrong-headed precedent with

a simple test of confidentiality based on the submission

of a declaration as to confidentiality, the Court will also

prevent gamesmanship by those who wish to wrongly use

the flexible National Parks and Public Citizen tests to

their advantage, as the plaintiffs in the CBD Case and

HSI Case are currently doing.

27

V. A RECENT REPORT SHOWS THE PERVASIVE

MISUSE OF FOIA BY AMICI’S DETRACTORS

I N T H E A BSENCE OF A M EA N I NGFU L

EXEMPTION 4 TEST

In its amicus brief in support of Petitioner’s Petition

for Certiorari, amici referenced an analysis, conducted by

amicus NABR, of FOIA requests submitted to 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:

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 “2015 NABR Report”), p. 2.16 The NABR

Report also found that approximately 10% (128) of the

1,273 FOIA requests received by the National Institutes

of Health (“NIH”) 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. 6.17

NABR recently published a similar report for fiscal

year 2017. See A Review of Animal Rights FOIA Requests

Fiscal Year 2017, National Association for Biomedical

16. The estimated cost to APHIS of handling the FOIA

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

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

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

28

Research (Dec. 19, 2018), https://www.nabr.org/wpcontent/uploads/2018/12/The-FY2017-FOIA-ReportFinal.pdf (the “2017 NABR Report”). The 2017 NABR

Report confirms that both FOIA requests in general, and

FOIA requests by amici’s detractors, have been steadily

increasing since 2015.

For FY 2017, there were 1,647 requests posted

to the APHIS FOIA logs; 350 (21%) of those

were from animal rights groups or appeared to

be from people associated with animal rights

groups and 69 (20%) of those requests involved

research facilities. This is [a] 51% increase in

total requests with a 50% increase in requests

made by animal rights groups.

2017 NABR Report, p. 2 (emphasis added). The costs to

APHIS for processing and handling FOIA requests in

fiscal year 2017 was $2,753,299. Id. at p. 4. Of those costs,

the government recouped $0. Id. at p. 5.

As with APHIS, the total number of FOIA requests

and the total number of animal rights-related FOIA

requests to NIH also increased in fiscal year 2017. “During

FY 2017, the National Institutes of Health (NIH) received

a total of 1,363 FOIA requests. Approximately 12% (165)

of the requests were submitted by animal rights/animal

interest organizations, or individuals identified as being

associated with such groups.” Id. at p. 5. The costs to

NIH for processing and handling FOIA requests in fiscal

year 2017 was $3,163,391. Id. at p. 6. Of this amount, the

government recouped 1.7%. Id.

29

Under a plain reading of the statute’s text, where a

FOIA request is seeking material that is confidential and

commercial or financial in nature, the request would and

should be summarily rejected. Nonetheless, in light of

National Parks and Public Citizen, detractors of amici

boldly and unabashedly make hundreds of FOIA requests

a year in order to obtain the confidential commercial or

financial information of amici, their members and similarly

situated entities. A plain language reading of Exemption

4 undoubtedly would help remedy this situation.

The word “confidential” in Exemption 4 should be

construed to mean that whatever information a party

designates and treats as “confidential” and does not, for

whatever reason, normally share with the public 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.

30

VI. CONCLUSION

Words mean what they say. In the absence of an

obvious statutory basis to change the plain language

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

Circuit has never provided, and which does not exist – the

plain language meaning of the word should be retained. If

Congress wishes to change the language of Exemption 4 to

make it more in line with the D.C. Circuit’s interpretation,

it has the power to do so. The D.C. Circuit does not. This

Court should overrule the atextual precedent of National

Parks and Public Citizen, thereby reinvigorating the

statute with its plain meaning.

Respectfully submitted,

Ira K asdan

Counsel of Record

Bezalel Stern

Kelley Drye & Warren LLP

Washington Harbour

3050 K Street, NW, Suite 400

Washington, DC 20007

(202) 342-8400

ikasdan@kelleydrye.com

Counsel for Amici Curiae