Friends of Animals v. Bernhardt

• Citation: 15 F.4th 1254
• Decision Date: 13 October 2021
• Docket Number: No. 20-1182,20-1182
• Parties: FRIENDS OF ANIMALS, Plaintiff - Appellant, v. David BERNHARDT ; U.S. Fish and Wildlife Service, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

15 F.4th 1254

FRIENDS OF ANIMALS, Plaintiff - Appellant,

v.David BERNHARDT ; U.S. Fish and Wildlife Service, Defendants - Appellees.

No. 20-1182

United States Court of Appeals, Tenth Circuit.

FILED October 13, 2021

Stephen Russel Hernick (Michael R. Harris, Andreia Marcuccio, with him on the briefs), Friends of Animals, Centennial, Colorado, for Plaintiff-Appellant.

Marissa Rose Miller, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with her on the brief), Denver, Colorado, for Defendants-Appellees.

Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.

EBEL, Circuit Judge.

Under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, animal rights organization Friends of Animals requested the disclosure of Form 3-177s submitted to the U.S. Fish and Wildlife Service (FWS) by wildlife hunters and traders (the "submitters") seeking to import elephant and giraffe parts. FWS disclosed the forms with redactions. Most relevant here, it withheld the names of the individual submitters under FOIA Exemptions 6 and 7(C), which prevent disclosure of information when a privacy interest in withholding outweighs the public interest in disclosure, as well as information on one Form 3-177 under Exemption 4, which prevents the disclosure of material that is commercial and confidential. Friends of Animals challenged these redactions in the district court, which granted summary judgment in favor of FWS, upholding the redactions. Exercising jurisdiction under 28 U.S.C. §§ 636(c)(3) and 1291, we AFFIRM in part and REVERSE in part.

I. BACKGROUND

Friends of Animals is a nonprofit organization that advocates for animal rights. It endeavors to protect endangered or threatened wildlife in Africa, such as by tracking the amount of trophy hunting occurring each year. To that end, the organization relies upon FOIA to obtain information from FWS about wildlife trade. FWS, an agency within the Department of the Interior, is charged with the conservation of wildlife and wildlife habitats.

In order to import elephant and giraffe parts into the United States, whether the importation is for commercial, educational, personal, scientific, or zoological purposes, importers must fill out a Declaration for Importation or Exportation of Fish and Wildlife, or Form 3-177, to submit to FWS. Information requested on Form 3-177 includes the date of shipment, port of clearance, names of the importer and exporter, species, quantity, monetary value, and permit numbers. FWS's Office of Law Enforcement (OLE) collects this information and enters it unaltered into FWS's Law Enforcement Management Information System (LEMIS). FOIA is the only means through which Friends of Animals can access LEMIS information.

In 2018, Friends of Animals made two requests for information from FWS under FOIA. The first was a request for information regarding the import of African elephant skins and products from 2012 to 2018, including all Form 3-177s (the "Elephant Request"). The second request was for all records, including Form 3-177s, of private citizens importing African giraffe parts or products through certain U.S. ports between January 2014 and November 2018 (the "Giraffe Request"). FWS compiled the requested information and notified the submitters, asking them to identify any confidential information.

FWS then sent Friends of Animals 847 pages of records in response to the Elephant Request. FWS redacted information on 496 of those pages, on the grounds that it was protected by FOIA Exemptions 6 and 7(C). Withheld information included, among other things, the names of the individual U.S. importers. In addition, FWS redacted part of one three-page Form 3-177, including the name of the U.S. importer, under Exemption 4. This form was submitted by an exotic-leather business which informed FWS that the redacted information was commercial and confidential.

FWS also sent Friends of Animals a spreadsheet containing the information sought in the Giraffe Request. FWS redacted the names of 373 individual importers, again because it believed they were protected under FOIA Exemptions 6 and 7(C). Previously, FWS had released Form 3-177 data to Friends of Animals without redacting the submitters’ names.

In response to the redactions, Friends of Animals filed administrative FOIA appeals regarding both requests. FWS did not respond to the former and denied the latter. Friends of Animals has therefore exhausted its administrative remedies as to both requests.

Friends of Animals then brought the instant lawsuit, challenging FWS's redactions of importer names. Both parties moved for summary judgment. The district court denied Friends of Animals’ motion but granted FWS's, entering judgment for FWS on all claims.¹ Friends of Animals timely appealed.

II. STANDARD OF REVIEW

In a FOIA-suit appeal in which, as here, the district court has entered summary judgment in favor of a government agency, this Court reviews "de novo the district court's legal conclusions that the requested materials are covered by the relevant FOIA exemption." Herrick v. Garvey, 298 F.3d 1184, 1190 (10th Cir. 2002) (quoting Anderson v. Dep't of Health & Hum. Servs., 907 F.2d 936, 942 (10th Cir. 1990) ). In doing so, we view the facts in the light most favorable to Friends of Animals, the nonmoving party, and we draw all reasonable inferences in its favor. Brown v. Perez, 835 F.3d 1223, 1230 (10th Cir. 2016). It is FWS's burden to justify the nondisclosure. Herrick, 298 F.3d at 1189.

III. DISCUSSION

Congress enacted FOIA to promote public access to federal agency records and information upon request. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). Its purpose is "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." Id. at 242, 98 S.Ct. 2311. Given this purpose, FOIA is broadly construed in favor of disclosure. Id. at 220, 98 S.Ct. 2311.

FOIA contains nine exemptions under which agencies may withhold requested information when disclosure would harm legitimate government or individual interests. Trentadue v. Integrity Comm., 501 F.3d 1215, 1225–26 (10th Cir. 2007) ; 5 U.S.C. § 552(b). These exemptions are exclusive and we construe them narrowly. Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). As such, they do not displace FOIA's dominant objective of disclosure. Id. Nonetheless, we recognize that the FOIA exemptions serve important interests. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989).

Turning to the merits, we address (A) whether FWS's withholding of the submitters’ names in response to the Elephant Request and the Giraffe Request was proper under Exemptions 6 and 7(C); and (B) whether FWS's withholding of information on one business's Form 3-177 was proper under Exemption 4. We conclude that withholding was proper as to the Giraffe Request, but not proper as to the Elephant Request generally or as to the one form under Exemption 4.

A. Exemptions 6 and 7(C)

Friends of Animals first challenges the district court's grant of summary judgment in favor of FWS as to the names of the individual submitters withheld under Exemptions 6 and 7(C).²

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." 5 U.S.C. § 552(b)(6). Here, Form 3-177s are considered "similar files." See Forest Guardians v. FEMA, 410 F.3d 1214, 1217 (10th Cir. 2005). To determine if a disclosure qualifies as a "clearly unwarranted invasion of personal privacy," and thus whether Exemption 6 applies, we must balance the public interest in disclosure against the individual privacy interest. Trentadue, 501 F.3d at 1233.

Exemption 7(C) is highly similar. It 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." 5 U.S.C. § 552(b)(7)(C). We apply a three-part test to determine if information is covered by Exemption 7(C): (1) the information must have been gathered for a law enforcement purpose; (2) there must be a personal privacy interest at stake; and, if so, (3) the privacy interest must outweigh the public interest in disclosure. World Pub. Co. v. U.S. Dep't of Just., 672 F.3d 825, 827 (10th Cir. 2012).

If the threshold law-enforcement inquiry is satisfied, the analysis under Exemptions 6 and 7(C) is largely the same. See Watters v. Dep't of Just., 576 F. Appx. 718, 724 (10th Cir. 2014) (unpublished). Yet Exemption 7(C) is slightly more protective of privacy than Exemption 6, because under Exemption 7(C) a disclosure need only be "reasonably expected" to constitute an unwarranted invasion of privacy, whereas under Exemption 6 the invasion of privacy must be "clearly unwarranted."³ But withheld information must meet Exemption 7(C)’s additional law-enforcement-purpose requirement to benefit from that stronger protection.

In light of this framework, we begin by analyzing FWS's withholding of the submitters’ names under Exemption 7(C). If the disclosure cannot be said to be "reasonably expected" to result in an unwarranted invasion of privacy, it necessarily cannot meet the stricter "clearly unwarranted" standard, either.

Ultimately, we conclude that the district court erred by overemphasizing the risks from disclosure and, as to the Elephant Request only, undervaluing the public interest in the submitters’ names—in other words, it got the balance wrong. As a result, we reverse the district court's grant of summary judgment in favor of FWS under Exemptions 6 and 7(C) as to the Elephant Request, because under either standard the public interest in disclosure outweighs the privacy interest at stake and thus any minimal invasion of...