John Doe # 1 v. Veneman, 03-50288.

• Decision Date: 04 August 2004
• Docket Number: No. 03-50919.,No. 03-50288.,03-50288.,03-50919.
• Citation: 380 F.3d 807
• Parties: JOHN DOE # 1, for and on behalf of themselves and a Class of Others Similarly Situated; John Doe # 2, for and on behalf of themselves and a Class of Others Similarly Situated; Texas Farm Bureau; The American Farm Bureau Federation; John Doe # 3, Plaintiffs-Appellees, v. Ann M. VENEMAN, in her official capacity as Secretary of the United States Department of Agriculture; Wildlife Services; Animal and Plant Health Inspection Service; United States Department of Agriculture, Defendants-Appellants, v. Animal Protection Institute, Intervenor Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

380 F.3d 807

JOHN DOE # 1, for and on behalf of themselves and a Class of Others Similarly Situated; John Doe # 2, for and on behalf of themselves and a Class of Others Similarly Situated; Texas Farm Bureau; The American Farm Bureau Federation; John Doe # 3, Plaintiffs-Appellees, v. Ann M. VENEMAN, in her official capacity as Secretary of the United States Department of Agriculture; Wildlife Services; Animal and Plant Health Inspection Service; United States Department of Agriculture, Defendants-Appellants, v. Animal Protection Institute, Intervenor Defendant-Appellant.

No. 03-50288.

No. 03-50919.

United States Court of Appeals, Fifth Circuit.

August 4, 2004.

COPYRIGHT MATERIAL OMITTED

Timothy S. Bishop (argued), Richard F. Bulger, Mayer, Brown, Rowe & Maw, Chicago, IL, Justin Brett Busby, Charles Stephen Kelley, Mayer, Brown, Rowe & Maw, Houston, TX, for Plaintiffs-Appellees.

Robiin Leah Cooley (argued), Environmental Law Clinic of Denver College of

Law, Denver, CO, for Animal Protection Institute.

Wendy M. Keats (argued), Leonard Aaron Schaitman, man, U.S. Dept. of Justice, Civil Div., Appellate Staff, Washington, DC, for Defendants-Appellants.

Appeals from the United States District Court for the Western District of Texas.

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PRADO, Circuit Judge:

These appeals arose from a lawsuit in which a group of farmers and ranchers sought to prevent the United States Department of Agriculture (USDA) from releasing certain government records to the Animal Protection Institute (API) in response to API's Freedom of Information Act (FOIA) request. The district court entered an injunction preventing release of certain information, and the USDA and the API appealed.

History of the Lawsuit

The lawsuit underlying these appeals is a "reverse-FOIA" action. In a reverse-FOIA action, a plaintiff seeks to prevent a governmental agency from releasing information to a third party in response to the third party's request for information under FOIA.¹ In this lawsuit, a group of farmers and ranchers sought to prevent the release of information sought by API through a FOIA request.

In November 1997, the API, an animal advocacy group, submitted a FOIA request to the USDA for certain documents maintained by a USDA agency, the Animal and Plant Health Inspection Service (APHIS). The API sought copies of a form entitled "Application Data Report (Livestock Protection Collars)" from every state in which the Livestock Protection Collar (LPC) has been used.

Livestock owners use the LPC to protect sheep and goats in fenced pastures from coyotes who frequently attack by biting an animal's neck. The LPC consists of a bladder containing a toxic, restricted-use pesticide that is attached to an animal's neck with a velcro strap. If a coyote bites the animal's neck and punctures the bladder, the coyote will be poisoned.

Employees of a USDA agency, Wildlife Services (WS), apply LPCs to animals as a service to farmers and ranchers. Livestock owners using this service enter into Cooperative Agreements with WS under which they share the cost of the LPCs and allow WS to enter their properties to apply the collars. As a result, the participants in the LPC program are called "Cooperators." Cooperators may be individuals, businesses, or governmental entities.

A Cooperative Agreement contains the Cooperator's name, address, telephone number, ranch or farm name, the property owner's name and address, the land class and size, and a Cooperative Agreement number. The form sought by API contains only the name and location of the ranch or farm where the collars have been applied and the Cooperative Agreement number.

In response to API's request for these forms, APHIS released LPC records for the six states where the LPCs have been used, but redacted the names and locations of the ranches and farms where the collars have been applied, citing Exemption 6 of FOIA. Under Exemption 6, federal agencies may withhold from disclosure any "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."² Dissatisfied with the redacted records, API sought an administrative appeal on June 24, 1999. In August 1999, when the appeal was still unresolved, API filed a FOIA lawsuit against WS in federal court in the District of Columbia. In a FOIA lawsuit, a plaintiff who has unsuccessfully sought information through a FOIA request seeks to force the disclosure of the requested information. After API filed its lawsuit, the Office of General Counsel of the USDA determined the records could be released without redaction.

Before a release occurred, the appellees, three John Doe plaintiffs and two associations representing farmers and ranchers (the Doe plaintiffs), sued the USDA, APHIS and WS (collectively, the government), on November 1, 1999, in the Western District of Texas. The Doe plaintiffs sought to prevent the release of information that could identify them as participants in the LPC program. The district court immediately granted a temporary restraining order (TRO) enjoining APHIS from releasing the personal information of individuals, entities, and applicators³ using LPCs or enrolled in the Livestock Protection Program. The TRO was converted to a preliminary injunction on November 15, 1999.

The government moved to transfer the Doe case to the D.C. district court where API's lawsuit was pending, or alternatively to stay the Doe action. The district court denied the motion in January 2000, but the D.C. district court stayed API's lawsuit in June 2000 pending disposition of the Doe lawsuit. API then moved to intervene in the Doe lawsuit.

Before the Doe plaintiffs filed their lawsuit, a third litigation began that served as the basis for an amendment to the Doe complaint. In January 1999, an environmental group called Forest Guardians submitted a FOIA request to APHIS for a computer diskette copy of the management information system (MIS) database used as the basis for all WS annual reports for 16 states. The MIS database contains information about the LPC program and similar agreements for participants of other USDA wildlife control programs, including Cooperator names and addresses, agreement numbers, and county and acreage information about Cooperator property. Because of the prohibitive cost and the disruption the requested download would cause, APHIS attempted to persuade Forest Guardians to narrow its request. Dissatisfied with this response, Forest Guardians sued APHIS in March 1999 in the District of New Mexico. APHIS and Forest Guardians quickly began settlement negotiations.

In the process of reaching a settlement, APHIS began to release partial sets of reports generated from the MIS database. In the first two releases, in October 1999 before the Doe suit was filed, APHIS redacted the names and addresses of private Cooperators, citing Exemption 6. APHIS made a third release in November 1999. That release consisted of reports using data from states that did not participate in the LPC program. The names and farm or ranch addresses of private Cooperators were not redacted. APHIS's third release was based on guidance from USDA's Office of General Counsel that the names and addresses of persons or entities dealing with the government in a business capacity should generally not be withheld under Exemption 6.

In December 1999, Forest Guardians agreed to settle its lawsuit and to forgo MIS reports from states participating in the LPC program. In exchange, APHIS agreed not to withhold information from remaining records under Exemption 6. When the Doe plaintiffs learned of the pending settlement, they amended their complaint. Through the amendment, filed on January 11, 2000, the Doe plaintiffs sought to prevent release of personal Cooperator information in response to Forest Guardians' FOIA request, and any other FOIA requests seeking personal Cooperator information. Because the amendment sought to prevent disclosure of all personal Cooperator information, not just the information in LPC application records, the amendment considerably broadened the relief API originally sought.

In response to the amendment and a second request for a TRO, the district court in the Doe case issued a new TRO on January 11, 2000 and expanded the previous preliminary injunction on February 9, 2000. The expanded injunction prohibited the government from disclosing any information that would allow the recipient to obtain or deduce the identity of Cooperators. On August 8, 2000, the district court certified a plaintiff class consisting of all individuals or entities who have been Cooperators⁴ since January 1, 1990.

Forest Guardians also finalized its settlement negotiations with APHIS in August 2000. To settle on terms that would not violate the expanded preliminary injunction, Forest Guardians agreed to settle for release of only one type of report from the MIS database — county summary reports — with Cooperator identifying information redacted. Under the settlement, the government agreed to cooperate in the release of further non-exempt information in the county summary reports if and when the expanded preliminary injunction in the Doe case was lifted. On February 27, 2001, Forest Guardians' claims in the New Mexico lawsuit were dismissed with prejudice under the settlement.

On September 30, 2002, the district court granted the government's motion to dismiss the Doe plaintiffs' constitutional claims and the claims based on other pending FOIA requests. The district court then granted the Doe plaintiffs' motion for summary judgment, holding that personal identifying information about Cooperators was exempted from disclosure under Exemptions 3⁵ and 6 of FOIA, and protected from disclosure by the Privacy Act.⁶

The district court entered a permanent injunction on February 14, 2003. The injunction enjoins the government

from releasing Personal Information [of...