[00:00:03] Speaker 00: Case number 16-5269, people for the ethical treatment of animals appellant versus United States Department of Health and Human Services. [00:00:12] Speaker 00: Mr. Sieberg for the appellant, Mr. Tafe for the appellee. [00:00:21] Speaker 05: May it please the court? [00:00:22] Speaker 03: Good morning. [00:00:23] Speaker 05: Good morning. [00:00:24] Speaker 05: I would like to reserve three minutes for rebuttal. [00:00:28] Speaker 05: After the United States Department of Agriculture found that airlines transporting primates into the United States were failing to provide these animals with minimal amounts of food, water, or ventilation, PETA submitted a FOIA request to the CDC for primate import notifications submitted to the agency around the same time period. [00:00:47] Speaker 05: For three primary reasons, the CDC was not entitled to withhold the crate descriptions, animal quantities, and carrier names appearing in those records as a matter of summary judgment. [00:00:58] Speaker 05: First, all of the vague harms offered by the government's seclarance were rebutted by a combination of the import documents themselves, the government's concessions, public records, and the importer's own advertisements. [00:01:12] Speaker 05: Second, the district court rightly recognized that there was a credibility issue with the government's only witnesses regarding crate and quantity information. [00:01:20] Speaker 05: The district court erred by resolving that issue, at least in part, against the non-movement at the summary judgment stage. [00:01:27] Speaker 05: And finally, on the government's motion for reconsideration, the district court erred by permitting the government to withhold primate import records for two additional importers solely because they wanted those records with help and not because disclosure would result in substantial competitive harm. [00:01:43] Speaker 01: One question at the outset said you don't have an issue with the fourth category. [00:01:47] Speaker 05: Exporters? [00:01:48] Speaker 05: No, while we obviously disagree with the court's holding, we're not challenging it, except with regard to SNBL, USA, and Central State primates, the two importers in the motion for reconsideration. [00:02:04] Speaker 03: Since you mentioned your [00:02:06] Speaker 03: I assume you're going to go through those issues in order, but since you mentioned the motion for reconsideration, so I want to take a look at your motion. [00:02:17] Speaker 03: You argued, you filed that motion under 60B1, which allows for relief from mistake, inadvertent surprise, or excusable neglect, right? [00:02:31] Speaker 03: And under B3, [00:02:35] Speaker 03: which is for fraud and misrepresentation. [00:02:39] Speaker 03: So for you to prevail here, you have to show that the district court abused its discretion on those standards. [00:02:45] Speaker 03: That is, you have to show that when the district court didn't find either fraud or misrepresentation or excusable neglect, that that was an abuse of discretion. [00:02:55] Speaker 03: I didn't see that argument anywhere in your brief. [00:02:57] Speaker 05: Oh, Your Honor, that's because we're not making it. [00:03:00] Speaker 05: You're not? [00:03:00] Speaker 05: We're not challenging the Rule 60B-3 ruling in our brief. [00:03:06] Speaker 05: The Rule 60B-1 argument, the court actually granted that motion in part. [00:03:11] Speaker 05: It ordered as a result that the information for- No, I'm not talking about the government's motion. [00:03:16] Speaker 03: I'm talking about your motion. [00:03:18] Speaker 05: Yes, the court did grant our motion in part. [00:03:20] Speaker 03: But didn't you file your motion under [00:03:28] Speaker 03: 60B1 and 3? [00:03:30] Speaker 05: Yes, Your Honor. [00:03:31] Speaker 05: There were competing motions. [00:03:33] Speaker 03: That was your motion, correct? [00:03:34] Speaker 05: Ours, yes. [00:03:35] Speaker 05: The motion I alluded to in my opening was the government's motion for reconsideration. [00:03:39] Speaker 03: Oh, OK. [00:03:39] Speaker 03: Well, what about this one? [00:03:40] Speaker 03: I got you. [00:03:41] Speaker 05: OK. [00:03:42] Speaker 03: Do you want to say something about this? [00:03:45] Speaker 05: Sure. [00:03:46] Speaker 03: Because you are challenging that here, too, correct? [00:03:49] Speaker 03: We're challenging the district court's failure to grant those two motions. [00:03:53] Speaker 05: We're not challenging the 60B3 motion. [00:03:56] Speaker 05: We're challenging, after the court granted our motion to reconsider under 60B1, which it did at Joint Appendix 394, we're challenging how it resolved the merits of the issues. [00:04:09] Speaker 05: Under the Dyson case and the Connors case that we cited in our brief, we believe it's a two-step process. [00:04:16] Speaker 05: So first, the court considers whether to reconsider. [00:04:19] Speaker 05: and it did that for the 6 to be one motion and then at that point the court has to look at the underlying merits as it would with any other standard the standard review it would have been applying its summary judgment and the review there is de novo as we pointed out in our brief so the point we raised in our 6 to be one motion it was a combination of [00:04:38] Speaker 05: the court's mistake and PETA's mistake, we pointed out that neither Primate Products nor Worldwide Primates, the two declarants, had actually asked for this information to be withheld, despite their false testimony that they did. [00:04:52] Speaker 05: And that was the sole evidence that the court relied on at the summary judgment stage. [00:04:59] Speaker 05: Court acknowledged that at Joint Appendix 394 and pointed out that despite their testimony regarding the importance of this information, both demonstrated that they are, in fact, not sufficiently concerned about this information for it to be withheld. [00:05:12] Speaker 05: Where the issue is for us, Your Honor, is that the Court nonetheless [00:05:18] Speaker 05: Citing and spawning that credibility issue still weighted that testimony in part as the basis for withholding the records submitted by the other importers, the other eight importers. [00:05:27] Speaker 05: And our argument is that under the Washington Post case we reference in our brief, the Sherwood case that we reference in our brief, the court had to stop there. [00:05:36] Speaker 05: It's the government's burden to prove that these documents were lawfully withheld. [00:05:40] Speaker 05: when the only two witnesses who could have carried that burden, there is a serious credibility issue with their testimony, a reasonable fact finder in the end could ultimately disregard all of that testimony, then the government couldn't have carried its burden as a matter of summary judgment. [00:05:56] Speaker 05: And I will just also clarify, the reason why it's so important it's a de novo review here, Your Honor, is because at least with regard to Crait information, PETA actually raised all the arguments at summary judgment. [00:06:09] Speaker 05: The court just missed them and didn't address them. [00:06:13] Speaker 05: So we believe that it should be a de novo standard review as to an abuse of discretion. [00:06:19] Speaker 05: If I can turn to the actual testimony itself, [00:06:23] Speaker 05: With regard to crate information, again, it was the government's burden to prove that disclosure was likely to result in a substantial competitive harm. [00:06:31] Speaker 05: The only evidence that was offered was one line in the primate products declaration speculating that crates can provide insight into the size or type of primate imported. [00:06:42] Speaker 05: But first, the district court already ordered the disclosure of type or species of primate. [00:06:49] Speaker 05: So the only thing that would be left there would be size. [00:06:52] Speaker 05: And there was no evidence in the record suggesting that size was valuable. [00:06:55] Speaker 05: And even if there had been, [00:06:58] Speaker 05: The import records themselves prove that these calculations were impossible. [00:07:02] Speaker 05: We went through in our brief cited how sometimes it's just a number of boxes or a reference to an international air transportation association requirement. [00:07:10] Speaker 05: And I think if we set all of those issues aside, finally, the testimony is merely what can or could happen. [00:07:17] Speaker 05: The government's burden here was to prove a likely and substantial injury. [00:07:21] Speaker 05: So as a matter of law, this could not have carried the government's burden. [00:07:25] Speaker 05: Turning to quantity information, the government fared no better. [00:07:29] Speaker 05: PETA established four uncontested facts that rebutted the harms alleged by primate products and worldwide primates. [00:07:35] Speaker 05: First, it's beyond dispute that importation is just a supplement to domestic breeding. [00:07:41] Speaker 05: This is critical because worldwide primates claims that you can actually calculate sales – actual sales data – on the basis of these import quantities alone. [00:07:49] Speaker 05: But that's simply not true. [00:07:50] Speaker 05: It's just a supplement to the overall picture of the overall capacity to provide these primates. [00:07:56] Speaker 05: And also in many cases, well, not necessarily in many cases, but at least in some cases, which we highlighted in our brief, the company submitting the import quantities to the CDC, the importer of record, is not the actual owner of the primates. [00:08:10] Speaker 05: So it's generally a quarantine. [00:08:13] Speaker 05: In some cases, it's a quarantine facility for at least four of the importers. [00:08:18] Speaker 05: The quarantine facility merely holds the primates for 31 days under the regulation at issue. [00:08:24] Speaker 05: And there's testimony Central State Primates is a quarantine facility at Joint Appendix 345. [00:08:29] Speaker 05: Primate Products is at Joint Appendix 343. [00:08:32] Speaker 05: Worldwide Primates is at Joint Appendix 81. [00:08:35] Speaker 05: And Buckshire, another importer, is at Joint Appendix 53. [00:08:39] Speaker 05: We point out in some cases you can tell who the true owner is, in some cases you can't. [00:08:44] Speaker 05: And under the regulation, it doesn't appear that you're ever obligated to disclose the true owner. [00:08:49] Speaker 05: So it's not even clear who owns the primates and would go on to sell them. [00:08:54] Speaker 05: This doesn't actually reveal sales activity or overall capacity to provide an import of primate. [00:09:00] Speaker 05: And I want to add, even if it did, the evidence before the court shows that sales turn on nearly a dozen factors that just aren't an issue here and won't be revealed. [00:09:11] Speaker 05: It includes the age of the primate, the sex, sexual maturity, whether the primate's pregnant or not, if it's captive bred or wild-caught, if it's free of specific pathogens. [00:09:21] Speaker 05: This is all at joint appendix 48 to 52, where there's the actual sales listings. [00:09:26] Speaker 05: And I'll add, for a company that worldwide primates who's offering this testimony, they don't just sell live animals. [00:09:33] Speaker 05: It shows there they sell blood, serum, plasma, organs, antibodies. [00:09:38] Speaker 05: So this notion that you can calculate sales percentages, ultimate sales activity based on the imports alone, it's not found in the record. [00:09:45] Speaker 05: And the last point I would just like to make is that [00:09:48] Speaker 05: The USDA was already posting precise inventories that revealed by species the exact number of primates that each importer held during the time period. [00:09:58] Speaker 05: And this is critical because the sole harm alleged by primate products stems from what could happen if a competitor learned that currently or even a few years ago a company had a certain number of a particular primate in its inventory. [00:10:12] Speaker 05: So the fact that this information was already available completely undercuts that harm. [00:10:19] Speaker 05: I think it also creates a material question of fact for the other harms alleged by worldwide primates because [00:10:27] Speaker 05: the court's analysis in an Exemption 4 case, it has to take into account the information that's already publicly available. [00:10:34] Speaker 05: And you see this in the Niagara-Mohawk power case that we referenced in our brief, where what was at issue was the release of actual power consumption data. [00:10:44] Speaker 05: But the court noted that projected power consumption data was already available. [00:10:49] Speaker 05: It acknowledged while those two things are different, it's possible the disclosure of the actual data may reveal so little, may add so little to what's already out there that there won't be this substantial competitive entry that's required under the law. [00:11:04] Speaker 04: Turning to the airline information. [00:11:05] Speaker 04: Let me ask you a question. [00:11:08] Speaker 04: might be that you're missing the forest for the trees. [00:11:12] Speaker 04: I mean, all the government needs to show here under Exemption 4, as I understand it, is that if this information is released, a competitor can, and I think the phrase is reverse, I think the phrase reverse engineering was used, maybe that was just in my notes, but a competitor could reverse engineer the supply chain and other information to gain a competitive advantage in a [00:11:37] Speaker 04: small market that's highly competitive. [00:11:40] Speaker 04: Isn't that what we're supposed to be looking at? [00:11:44] Speaker 04: And that doesn't seem to me to be a very difficult burden to be able to carry off. [00:11:49] Speaker 05: Well, Your Honor, I think I have a legal response and a factual response. [00:11:53] Speaker 05: On the legal issue, I think there's an important distinction in the 2004 McConnell-Douglas case that the government cites [00:11:59] Speaker 05: But there's a distinction in that case. [00:12:01] Speaker 05: It was whether or not you could reverse engineer line item pricing. [00:12:05] Speaker 05: And the court explained there's a distinction between being able to calculate the profit margin through or by reverse engineering the line item price. [00:12:15] Speaker 05: And that's one thing, but what needs to be proved is that it will result in a substantial competitive injury. [00:12:21] Speaker 05: And on this record, we don't believe that it can be. [00:12:25] Speaker 04: There, the testimony that was regarding reverse engineering... So you don't think there's information that if there's a competitor out there, you don't think a competitor could take this information? [00:12:34] Speaker 04: and gain some advantage, gain information that they wouldn't otherwise have access to. [00:12:40] Speaker 04: It's not available freely on the market, but it's only available because of the government information being released. [00:12:48] Speaker 04: You don't think that exists? [00:12:50] Speaker 05: Judge Griffith, I don't. [00:12:51] Speaker 05: I think, so part of the issue is that testimony was in part about what the collective disclosure of everything. [00:12:57] Speaker 05: We're not challenging exporters on appeal, so I think the court actually has to look at these discrete pieces of information and then these pieces collectively. [00:13:06] Speaker 05: It's a materially different question than what was below. [00:13:09] Speaker 05: I'd also point out with regard to kind of this notion that [00:13:15] Speaker 05: the sales and everything can be reverse engineered, all the information that's in the record about what's already available regarding quantities, showing that this is just one small picture of the overall business, I think that creates a material question of fact. [00:13:30] Speaker 05: And I think this kind of gets back to what I would argue is under the Niagara Mohawk power case, the Greenberg case we cite, there is an issue as to whether [00:13:45] Speaker 05: this can actually be done, right? [00:13:46] Speaker 05: So there's a reverse engineering of a supply chain. [00:13:51] Speaker 05: In the Trans-Pacific policing case, there was precise testimony identifying how specific information at issue could be paired with an already publicly available inward vessel manifest document. [00:14:04] Speaker 05: And that was laid out, and it was unrebutted. [00:14:06] Speaker 05: And I think in that type of case, then there is some sort of reverse engineering that can be found. [00:14:11] Speaker 05: Here on this record, the testimony doesn't suggest how that can be done. [00:14:15] Speaker 05: At most, there are vague harms alleged that it will provide competitive insight or reveal unique advantages. [00:14:22] Speaker 05: And those are precisely the types of harms that were rejected in the 1999 public citizen case that we cite in our brief. [00:14:28] Speaker 05: If I can just turn to the airline. [00:14:30] Speaker 03: Yeah, I was going to ask you about the airline question. [00:14:33] Speaker 03: Do we owe any deference to the agency's judgment about this? [00:14:36] Speaker 05: Your Honor, I don't believe that we do. [00:14:38] Speaker 05: I think the CNA financial case is kind of the first case where this occurs, where you're talking about a reverse FOIA case. [00:14:45] Speaker 05: And the Court's very clear that the deference is because it is filed pursuant to the Administrative Procedure Act. [00:14:50] Speaker 05: It's a different standard of review. [00:14:52] Speaker 05: And there's also a reference into the deferring agency expertise in that case. [00:14:56] Speaker 05: In the CNA financial case, the agency actually hired an outside consultant to provide an opinion on the results of disclosing that information. [00:15:04] Speaker 05: Here, the agency's declarants, in this case, they didn't even mention quantity or credit information in their declaration. [00:15:10] Speaker 05: So there's really no evidence that they were exercising any type of expertise. [00:15:14] Speaker 03: Okay, so why don't you go ahead and – you wanted to move on to airline information. [00:15:18] Speaker 03: Why don't you say something about that? [00:15:19] Speaker 05: Yes, sir. [00:15:19] Speaker 05: I see that I'm out of time. [00:15:20] Speaker 03: That's okay. [00:15:21] Speaker 03: I'd like to hear your answer to the airline. [00:15:23] Speaker 05: Yes. [00:15:24] Speaker 05: So the fundamental premise alleged by both world-wide primates and primate products was that it's difficult to locate the airlines willing to accept these shipments. [00:15:33] Speaker 03: Now, Peter proved that the names of airlines... Well, actually, they said, in the block affidavit, they said that it's the single most time-consuming logistical portion of the effort, getting the airlines right. [00:15:45] Speaker 05: Yes. [00:15:45] Speaker 05: That's what he says. [00:15:47] Speaker 05: And I think that the evidence that we presented created, at a minimum, a material question of fact about that, because we proved [00:15:54] Speaker 05: that the names of airlines are publicly available who transfer primates. [00:15:59] Speaker 05: They're highly publicized. [00:16:00] Speaker 05: And where the airline names were not redacted, it showed that the importers were already using the same ones. [00:16:05] Speaker 05: And I do want to point out the government conceded a Joint Appendix 106 Note 9 in its brief [00:16:11] Speaker 05: that the importers already know which airlines will accept their business. [00:16:15] Speaker 05: So that completely undercuts everything that PrimeAce products and World Wide PrimeAce alleged. [00:16:21] Speaker 05: I think the critical issue that's left that the government is trying to use to resuscitate this harm claim is it's saying there's a difference between shipment by shipment data [00:16:29] Speaker 05: and just these industry-wide lists. [00:16:32] Speaker 05: But I would argue that the testimony that's in these declarations goes to the contrary. [00:16:38] Speaker 05: The allegation is merely that locating the airlines is difficult. [00:16:41] Speaker 05: And I think if you contrast the block declaration at paragraph 7 discussing airlines saying they're difficult to locate with the block declaration at paragraph 8, where he's saying it's the relationships with exporters, [00:16:52] Speaker 05: are actually – they should be considered trade secrets because they're developed at time, effort, and expense. [00:16:58] Speaker 05: I think you can actually see the contrast in that those relationships are not valuable. [00:17:18] Speaker 02: Good morning, Your Honor. [00:17:19] Speaker 02: May it please the court? [00:17:20] Speaker 02: Damon Tafe representing the appellees in this case. [00:17:24] Speaker 02: In the Trans-Pacific Policing case, the court looked at the precise nature and origin of the shipments at issue, and it held that information that could reveal those precise natures and origins was core supply chain information. [00:17:41] Speaker 02: And likewise, in the National Parks case, it looked at a district court's review, as is happening here, [00:17:48] Speaker 02: in which the district court found that substantial competitive harm would likely result. [00:17:53] Speaker 02: And it reasoned that substantial evidence supported that conclusion. [00:17:57] Speaker 02: And it said that the district court need only exercise its judgment in view of the nature of the material sought and the competitive circumstances in which the submitters do business. [00:18:06] Speaker 02: We submit that that's exactly what the district court did here with the information in front of it. [00:18:11] Speaker 02: And before I get into the specifics, [00:18:13] Speaker 02: I think it's worth pointing out that the information we're talking about here, airline information, quantity of imports, the crates used in imports, as well as the exporter information that we now understand is conceded in large part, these are core supply chain [00:18:32] Speaker 02: pieces of information. [00:18:33] Speaker 02: These are things that in any case in which an importer has as its first line of business, importing things from abroad, these are items that are core to the entire structure of the way that company does business. [00:18:48] Speaker 02: And the way that PETA proposes to examine this on kind of an atomistic level is revealing. [00:18:55] Speaker 02: Because what they say is that if we only ask for a particular type of crate or a particular type of quantity or airline information, then those items by themselves are not enough to reverse engineer, as Judge Griffith said, the entire supply chain itself. [00:19:13] Speaker 02: But it's still competitively valuable, and these cases don't exist in the abstract. [00:19:19] Speaker 02: In this case, a FOIA petitioner could request airline information and not exporters, as is now Peter's apparent position. [00:19:29] Speaker 02: In the next case, they could simply request exporters and say, well, we're not asking for airline information, so we don't have that necessary piece. [00:19:37] Speaker 02: But these are all pieces of an interrelated jigsaw. [00:19:40] Speaker 02: And the companies at issue here are extremely worried, not only about PETA and the effects that its protesting would have, but because these are finite sources of supply. [00:19:53] Speaker 02: And I would note parenthetically that we did argue below that PETA itself and the damage that its sort of social protesting could cause could inflict competitive harm. [00:20:05] Speaker 02: The district court rejected that based on this court's decision in public citizen versus federal versus FDA. [00:20:12] Speaker 02: where the court held that the competitive harm issue is only affirmative use by competitors in the industry. [00:20:19] Speaker 02: And based on that holding, we didn't brief that issue further here. [00:20:22] Speaker 02: I'm noting it only because in the event that we need to seek in bank reconsideration on that issue, simply pointing out that we're not conceding it. [00:20:30] Speaker 02: And in the views of the importers here, the notion that competitive harm would result is as surely true [00:20:38] Speaker 02: If one can imagine, for example, that there are 10 importers in this industry. [00:20:43] Speaker 02: And maybe one of those importers works with one specific airline. [00:20:48] Speaker 02: Now, if PETA learns the existence of that airline and uses social pressure to convince that airline no longer to participate in this industry, then that one specific importer that relied exclusively on that airline is effectively no longer able to compete on the same footing. [00:21:04] Speaker 03: Mr. Siebers, I thought I heard him say on the airline question that this airline information is already public. [00:21:12] Speaker 03: Is that not? [00:21:14] Speaker 03: It's not clear that that's true. [00:21:15] Speaker 03: But that's a pretty important question. [00:21:17] Speaker 03: I mean, if it's public, then, right? [00:21:20] Speaker 02: See, it's not clear to the extent to which that's correct. [00:21:25] Speaker 02: If you look at Joint Appendix 134 and 135, which is their evidence on this point, they list in the printout there five airlines, United British, Amerijet, Air China, and South African. [00:21:40] Speaker 02: Sort of in the caption to that field, it suggests that they're listing one of airlines 105 of 9, and I don't know what the remaining four airlines are. [00:21:49] Speaker 02: Actually, in preparation for oral argument, I went to this very search tool and I tried to recreate what they've done here, and this search functionality no longer exists. [00:21:58] Speaker 02: I conferred with PDIS counsel on this, and I believe we agree. [00:22:02] Speaker 02: But the reason that's important is because in the information that the court reviewed in camera at the reconsideration stage, which is when it was trying to figure out what worldwide primates and PPI actually requested to be withheld, I went through there, and there are airlines listed there that are not among these five. [00:22:23] Speaker 02: So it's not entirely clear, actually, to what extent this is a categorical list. [00:22:29] Speaker 02: And in any event, it certainly doesn't cover all of the potential charter airlines out there. [00:22:34] Speaker 01: I thought the distinction that was drawn on the publicly available information wasn't what you're saying now, if I'm understanding what you're saying now, but was that there's a meaningful distinction between aggregate industry-wide data and shipment-by-shipment data. [00:22:46] Speaker 02: It's both, Your Honor. [00:22:49] Speaker 02: The answer to Judge Tatel's question, he asked me whether these airlines are public, and I said it's not quite clear. [00:22:55] Speaker 02: But you're also correct in answering and asking the question. [00:22:59] Speaker 02: You do, I think, because that states our position. [00:23:02] Speaker 02: Even if it's true that there's a finite universe of airlines and that universe is known, that is still not the same thing as knowing to what extent and how frequently each member of this industry makes use of an individual airline. [00:23:19] Speaker 02: These airlines don't have infinite capacity. [00:23:23] Speaker 02: They don't have an innumerable number of routes that they fly. [00:23:28] Speaker 02: And indeed, revealing what airline is used may in fact give insight into what the origin and the destination, because not all airlines fly all conceivable routes. [00:23:39] Speaker 02: And so that's another way of getting insight into what exporters these folks might be using in certain theaters. [00:23:48] Speaker 02: And on that note, it's important to understand that when the district court looked at this, as Your Honor said, it didn't look at it as just a question of what is the nature of the industry as a whole and what information is public. [00:24:04] Speaker 02: It thought that that was too broad a line to draw. [00:24:08] Speaker 02: The question, of course, is, objectively speaking, would competitive harm result from the release of the information at issue here? [00:24:15] Speaker 02: And the information at issue here is not simply which airlines are in this business, which airlines are licensed to do this and which are willing to do it. [00:24:25] Speaker 02: The information here is which airlines are working with which specific importers, and from a competitive point of view, maybe it's best to look at it the other way. [00:24:33] Speaker 02: Which importers are looking at which specific airlines? [00:24:37] Speaker 02: Because in the worlds of finite capacity and a small competitive market, which PETA conceded exists here, [00:24:44] Speaker 02: small margins are important. [00:24:47] Speaker 02: And one reason to caution deference from a judicial perspective in this instance is it's not always clear to what extent one piece of this jigsaw can be used not only in that case, but in future cases to recreate the entire nature of the industry. [00:25:04] Speaker 02: I mean, what the importers are doing here is not [00:25:07] Speaker 02: It's not rocket science. [00:25:09] Speaker 02: It's not high technology. [00:25:11] Speaker 02: All they're doing is they're importing specific animals from specific places and they're selling them for specific purposes. [00:25:18] Speaker 02: So if you know, which we now do because the court ordered it to be so, if we now know the species of the animals that are being imported, [00:25:27] Speaker 02: and we know the way that they're getting into the United States, that is from which airlines, and we know the quantity in which it's happening, and PETA suggests that the inventories themselves are fully available at all times, then one begins to wonder what's left aside from just the prices that they're charging. [00:25:46] Speaker 04: I had been thinking about this case maybe a little differently than you had, so help me understand. [00:25:52] Speaker 04: When I was thinking about exemption four and competitive advantage, I had in mind a competitor who was trying to maybe start a new business and wanted to glean information from, confidential information from existing market players. [00:26:07] Speaker 04: When you talked about social pressure, however, that made me think that maybe there's another way to think about this. [00:26:14] Speaker 04: Do you think exemption four applies to information that, if released, would be able to be used by PETA to embarrass or protest against one market player? [00:26:31] Speaker 02: I'd like to say yes, but under this court's precedence, I have to say no. [00:26:35] Speaker 02: The court has ruled that that's not the case, although I note that the Second Circuit has gone the other way. [00:26:40] Speaker 04: I was wondering why you were talking about social pressure. [00:26:43] Speaker 02: I was merely noting that we're not abandoning that issue because this court can't abandon its own precedence, but if we went in bank, I just wanted to preserve that issue explicitly as we did in the district court. [00:26:55] Speaker 04: So I was thinking about it the right way then, right? [00:26:58] Speaker 02: From our perspective, yes, but perhaps from the same course perspective, not quite yet. [00:27:06] Speaker 02: With respect to the question of [00:27:13] Speaker 02: credibility. [00:27:14] Speaker 02: I just want to explain, because I think it might not be clear, exactly what approach HHS took to this issue. [00:27:23] Speaker 02: HHS took an objective, industry-wide approach. [00:27:26] Speaker 02: It got all of the responses to the predisclosure notice. [00:27:30] Speaker 02: And it looked at the justifications that were offered in those PDN responses, as well as the redactions that accompanied those responses. [00:27:39] Speaker 02: Based on the representations made in that universe of redactions and justifications, it came to an understanding of the nature of the industry and how valuable the importers believed each piece of information was. [00:27:55] Speaker 02: And its approach was, it will apply those standards, if found to be reasonable, which it did find them to be reasonable, it will apply those standards industry-wide. [00:28:06] Speaker 02: But, in acknowledgement of the notion that FOIA prefers disclosure over withholding, it said that if an importer responded to the predisclosure notice, [00:28:19] Speaker 02: and in some affirmative way suggested that in its case, that particular importer did not object to a particular release, then HHS wouldn't withhold things that the importer itself made no suggestion that it wanted withheld. [00:28:35] Speaker 02: So that's why, as the district court observed, there is some arguable inconsistency between withholdings from one importer to the next. [00:28:44] Speaker 02: But that inconsistency is not a doctrinal inconsistency, it's not a legal inconsistency, and it doesn't reflect HHS's or the importer's views of the industry as a whole. [00:28:56] Speaker 02: Instead, HHS applied an industry-wide approach [00:28:59] Speaker 02: as evidenced by the fact that it applied those standards to central state primates, SMBL, and Dallas Zoo management, despite the fact that they didn't respond to the PDN. [00:29:11] Speaker 02: It applied it industry-wide, and unless a particular importer affirmatively suggested that in its case it wasn't going to apply a withholding that maybe in HHS's view it was entitled to. [00:29:22] Speaker 02: So we think that HHS actually was quite faithful to the way that FOIA has been interpreted and should be interpreted, which is as wide a release as can be justified without causing harms to the regulated entities at issue here. [00:29:40] Speaker 02: So with respect to the credibility issue that opposing counsel has noted, that is the role and the block affidavits, the district court handled this appropriately in our view. [00:29:55] Speaker 02: Notably, the district court, upon realizing it in the first round, [00:30:00] Speaker 02: a briefing on this issue, a summary judgment. [00:30:03] Speaker 02: PETA noted that PPI itself did not order that quantity or create information be withheld, but it didn't make the same argument with respect to WWP. [00:30:13] Speaker 02: So in the district court's view on summary judgment, the WWP declaration justified withholding on an industry-wide basis. [00:30:23] Speaker 02: On reconsideration, PETA pointed out that the same [00:30:28] Speaker 02: The thing that happened with WWP is with PPI. [00:30:30] Speaker 02: That is, the declaration said that those entities requested withholding of these two fields of information, but in the manually highlighted redaction requests, that did not turn out to be correct. [00:30:45] Speaker 02: So in our view, the district court did what it should have done. [00:30:48] Speaker 02: It returned to first principles and said, OK, as to these two entities, in fact, they did not request this information be withheld, even though the arguments that were made would have justified it if they did. [00:31:03] Speaker 02: But then the district court was faced with a second question that was more difficult, which is, we have these seven other companies at issue here. [00:31:11] Speaker 02: And those seven other companies, [00:31:13] Speaker 02: knew that WWP and PPI were submitting declarations of summary judgment. [00:31:18] Speaker 02: They knew what those declarations said. [00:31:20] Speaker 02: Those companies, however, had no way of knowing when information WWP and PPI themselves had requested be withheld. [00:31:29] Speaker 02: And so, [00:31:30] Speaker 02: the other seven companies did request that trade information and quantity be withheld, and they did so on the grounds in these declarations. [00:31:39] Speaker 02: And that's true, by the way, not only on the face of the declarations, but the PDN responses themselves, which the court considered at reconsideration, had content. [00:31:50] Speaker 02: The covance [00:31:52] Speaker 02: was very much along the same lines and made the same arguments, and that's ECF number 58, Exhibit D, I think. [00:32:01] Speaker 02: made the same sort of representations and characterized the industry in the same way as the block and the PPI declarations did. [00:32:09] Speaker 02: And under an objective standard where it's not what does HHS believe, what do the entities believe, but rather what is objectively true about this industry, the district court looked at all the evidence in the record and said, you know what, if these two entities didn't request their stuff be withheld, we won't withheld it. [00:32:27] Speaker 02: But this is an industry-wide question. [00:32:29] Speaker 02: It goes to the nature of these businesses as a whole. [00:32:32] Speaker 02: And based on Trans-Pacific Policing and Watkins and Gilda Industries, this is core supply chain information that goes to the heart of the regulated entities' businesses. [00:32:41] Speaker 02: And they've made the necessary showing, so they're allowed to withhold it to the extent they're requested to do so. [00:32:48] Speaker 02: OK. [00:32:48] Speaker 02: Thank you. [00:32:49] Speaker 02: We have requested the court affirm. [00:32:50] Speaker 03: Any question? [00:32:50] Speaker 03: Yeah. [00:32:50] Speaker 03: OK. [00:32:51] Speaker 03: Thank you. [00:32:52] Speaker 03: Mr. Seeger, I think you were out of time, but you can have a minute if you'd like it. [00:32:59] Speaker 05: Thank you. [00:32:59] Speaker 05: I'd like to address three things real quickly, Your Honor. [00:33:01] Speaker 05: First, the Council for the Government is actually incorrect when he says that the information is no longer available to primate carriers. [00:33:10] Speaker 05: This website that used to post the list, it's unclear if they're still going to be posted there, but that's irrelevant for our purposes. [00:33:17] Speaker 05: Whether they're available under a simple FOIA request or posted on this website, that's not an important difference. [00:33:23] Speaker 05: It doesn't matter here. [00:33:24] Speaker 05: They're still publicly available. [00:33:26] Speaker 05: And I also want to point out the government conceded that the importers already knew the airlines who would accept their business. [00:33:32] Speaker 05: before PETA filed that list that was on the government website. [00:33:36] Speaker 05: So the government should still be bound to its concession. [00:33:39] Speaker 05: The government tries to inject a lot of new evidence into the record, talking about what a co-vanced document said. [00:33:45] Speaker 05: It's not before the court, and I hope that the court will find that's forfeit. [00:33:52] Speaker 05: And the last point I want to make is the government had to carry its burden, and it was an objective burden. [00:33:57] Speaker 05: It had to prove objectively that disclosure would result in a competitive injury. [00:34:01] Speaker 05: the subjective requests made by the importers likely result yes yes likely to result in a substantial competitive injury and the subjective requests by importers are completely irrelevant here because as judge griffith acknowledged [00:34:16] Speaker 05: They want information withheld that's not legally appropriate. [00:34:20] Speaker 05: The court dealt with this in the Gerowitz case we cite in our brief at 741 F3rd at 1331, where it was information being released to the Humane Society. [00:34:31] Speaker 05: Dog breeders are saying they're on a crusade to destroy our business. [00:34:34] Speaker 05: You have to take that into account. [00:34:35] Speaker 05: And the court said, we're bound by the law of the circuit. [00:34:37] Speaker 05: Under the law of the circuit, we're limited to the affirmative [00:34:41] Speaker 05: Use of proprietary information by competitors So what we had here is a and the court the district court acknowledged that they were making these requests of action Redaction requests for reasons that were improper. [00:34:53] Speaker 05: So to rely on subjective requests here that would that would It would not comport with the objective standard that this court is required to apply. [00:35:01] Speaker 05: Okay. [00:35:02] Speaker 05: Thank you. [00:35:02] Speaker 03: Thank you cases submitted. [00:35:05] Speaker 03: Thank you both and