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Friends of Animals v. Bernhardt.

No. 20-1182.  D.Colo. Judge Ebel. Freedom of Information Act Exemptions 4, 6, and 7(C)—US Fish and Wildlife Service Declaration for Importation or Exportation of Fish and Wildlife—Inadmissible Hearsay—Summary Judgment Affidavit.

October 11, 2021

Plaintiff is a nonprofit organization that endeavors to protect endangered or threatened wildlife in Africa. It relies on the Freedom of Information Act (FOIA) to obtain information about wildlife trade. The US Fish and Wildlife Service (FWS) is charged with conserving wildlife and wildlife habitats. As relevant here, importers of elephant and giraffe parts must submit a Declaration for Importation or Exportation of Fish and Wildlife (Form 3-177) to the FWS. In 2018, plaintiff made two FOIA requests for information from FWS. The first requested information regarding importation of African elephant skins and products from 2012 to 2018, including all Form 3-177s (Elephant Request). The second request was for all records, including Form 3-177s, of private citizens importing African giraffe parts or products through certain US ports from 2014 to 2018 (Giraffe Request).

FWS sent plaintiff 847 pages of records in response to the Elephant Request, but it redacted information on 496 pages on grounds that it was protected by FOIA Exemptions 6 and 7(C). The withheld information included the names of the individual US importers. FWS also redacted portions of a Form 3-177 submitted by an exotic leather business under Exemption 4, alleging the information was commercial and confidential. In response to the Giraffe Request, FWS sent a spreadsheet of information but redacted the names of 373 individual importers under FOIA Exemptions 6 and 7(C). Previously, FWS had released Form 3-177 data to plaintiff without redacting the submitters’ names.

Plaintiff filed administrative appeals in response to the redactions and exhausted its administrative remedies. When FWS did not change its position, plaintiff filed suit, challenging FWS’s redactions of importer names. In response to cross-motions for summary judgment, the district court entered judgment for FWS on all claims.

On appeal, plaintiff challenged the district court’s grant of summary judgment to FWS as to the names of the individual submitters withheld under Exemptions 6 and 7(C). FOIA is broadly construed in favor of disclosure. The statute contains nine exemptions under which agencies may withhold requested information when disclosure would harm legitimate government or individual interests, but FOIA exemptions are construed narrowly, so they do not displace FOIA’s dominant disclosure objective. Exemption 6 protects from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Form 3-177s are considered “similar files.” To determine if a disclosure qualifies as a “clearly unwarranted invasion of personal privacy,” and thus whether Exemption 6 applies, courts balance the public interest in disclosure against the individual privacy interest. Similarly, Exemption 7(C) protects records or information compiled for law enforcement purposes, but only to the extent that the production could reasonably be expected to constitute an unwarranted invasion of personal privacy. For information to be covered by Exemption 7(C), (1) it must have been gathered for a law enforcement purpose; (2) there must be a personal privacy interest at stake; and (3) if such interest is at stake, it must outweigh the public interest in disclosure. If the threshold law enforcement inquiry is satisfied, the analysis under Exemptions 6 and 7(C) is largely the same.

As to Exemption 7(C)’s applicability to the Elephant Request, the Tenth Circuit assumed without deciding that FWS collected the Form 3-177s for law enforcement purposes. It determined that though the individuals have some privacy right in information about their personal activities, the interest here is weak; FWS relied on speculation, provided no evidence from the submitters themselves, and failed to link its evidence of publicity to evidence that the submitters would be personally targeted, contacted, or harassed. Further, the voluntary and highly regulated nature of the submitters’ activity and the fact that similar information is already public support this conclusion. The district court also undervalued the disclosure’s usefulness, under-weighing the significant public interest side of the equation. Accordingly, the exemption does not support redaction of the submitters’ names because the personal privacy interest was outweighed by the public interest in disclosure, and the district court erred. The Tenth Circuit rejected FWS’s argument that withholding was justified under Exemption 6 for the same reasons.

As to the Exemption 7(C) balancing framework on the Giraffe Request, the privacy interest was similarly weak to the Elephant Request. But as to the public interest prong, though one of FWS’s purposes is to enforce federal wildlife law and regulations, at the time the Form 3-177s here were filed, the import of giraffe parts, unlike elephant parts, was not regulated by the Convention on International Trade in Endangered Species of Wild Fauna or federal law. Thus, the giraffe-import submitters’ names cannot be linked to permits or permitting decisions, nor to FWS’s duties to allow only a certain number of imports, as in the elephant context. Accordingly, disclosure of the names would not aid the public’s understanding of FWS operations and does not warrant any invasion of privacy resulting from disclosure, and the withholding was justified.

Plaintiff also challenged FWS’s withholding of information under Exemption 4 on one Form 3-177 submitted by an exotic leather business, arguing that FWS failed to establish confidentiality. To receive protection under Exemption 4, information that is not a trade secret must be commercial or financial, obtained from a person, and privileged or confidential. Information is confidential when (1) it is customarily kept private or closely held by the person imparting it, and (2) the party receiving it assures that it will remain secret. Here, FWS’s only evidence supporting the withholding of information under Exemption 4 was an affidavit consisting almost entirely of hearsay. Because hearsay contained within an affidavit remains inadmissible hearsay beyond judicial consideration for summary judgment purposes, the district court erred, and the error was not harmless.

The summary judgment in favor of FWS as to the withholdings in the Giraffe Request was affirmed. The summary judgment in favor of FWS as to the withholdings in the Elephant Request was reversed and the case was remanded for further proceedings.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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