Friends of Animals v. David Bernhardt; U.s. Fish and Wildlife Service

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
FRIENDS OF ANIMALS,
Plaintiff - Appellant,
v.
DAVID BERNHARDT; U.S. FISH AND
WILDLIFE SERVICE,
Defendants - Appellees.
No. 20-1182
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:19-CV-01443-MEH)
_________________________________
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
FILED
United States Court of Appeals
Tenth Circuit
October 13, 2021
Christopher M. Wolpert
Clerk of Court
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“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
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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).
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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.
1 Prior to granting summary judgment in favor of FWS, the district court
concluded that Secretary Bernhardt, secretary of the U.S. Department of the Interior,
was not a proper FOIA defendant, leaving FWS as the only remaining defendant.
(App. vol. 2 at 468 n.1.) Friends of Animals does not challenge this on appeal.
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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 (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. Given this purpose, FOIA is broadly
construed in favor of disclosure. Id. at 220.
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 (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 (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
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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,
2 Although FWS redacted more than just the submitters’ names, Friends of
Animals only challenges the withholding of those names. Accordingly, we, like the
district court, review only the propriety of withholding as to the names specifically,
as opposed to any other redacted information.
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(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.
App’x 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
3 For this reason, both the district court and the parties in their briefing focus
on Exemption 7(C). (See Aplt. Br. 20–21; Aple. Br. 11–12.)
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thus any minimal invasion of privacy resulting from disclosure is not unwarranted.
But we affirm the district court’s grant of summary judgment in favor of FWS as to
the Giraffe Request because the lack of a public interest in the context of giraffe
imports means that any invasion of privacy would be unwarranted.
(1) Elephant Request
For the reasons we address above, we first consider the applicability of
Exemption 7(C). Generally, the threshold inquiry under this exemption is whether
the agency compiled the withheld information for a law enforcement purpose.
Although the district court answered this question in the affirmative below, we
decline to address it in the context of the Elephant Request, assuming without
deciding that FWS collected the Form 3-177s for law enforcement purposes. In any
event, Exemption 7(C) cannot support withholding the submitters’ names in response
to the Elephant Request because the personal privacy interest at stake is outweighed
by the public interest in disclosure.
We reach that conclusion in three steps: First, we identify the existence of a
personal privacy interest at stake, concluding that that interest is supported primarily
by speculation and is weakened by the nature of the information. Second, we
identify the countervailing public interest in disclosure. Finally, we weigh the
private interest against the public one, concluding that the latter is weightier.
a. Privacy Interest
Application of Exemption 7(C) requires that there be a personal privacy
interest in the withheld information—here, the submitters’ names. Significantly,
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there is no inherent privacy interest in a list of names. Brown, 835 F.3d at 1235.
Instead, the existence of a privacy interest depends upon “the characteristic(s)
revealed by virtue of being on the particular list, and the consequences likely to
ensue.” Id. (quoting News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173,
1199 (11th Cir. 2007)); see also U.S. Dep’t of State v. Ray, 502 U.S. 164, 176 n.12
(1991). Here, the disclosure of the submitters’ names would connect those
individuals to the importation of elephant parts already revealed on the Form 3-177s.
See U.S. Dep’t of Just. v. Reps. Comm. for Freedom of Press, 489 U.S. 749, 762–63
(1989) (recognizing an “individual [privacy] interest in avoiding disclosure of
personal matters” and controlling “information concerning his or her person”). 4
As to the potential consequences of disclosure, FWS’s principal argument is
that the submitters could be subjected to harassment and public shaming or scorn for
their involvement in wildlife hunting and the importation of wildlife products and
sport trophies, highly controversial activities. See Brown, 835 F.3d at 1234 (stating
in the context of Exemption 6 that “[t]he primary purpose of this exemption is to
protect individuals from the injury and embarrassment that can result from the
unnecessary disclosure of personal information.” (quoting Prison Legal News v.
Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015))).
4 Friends of Animals seeks to limit the cognizable privacy interest under
Exemption 7(C) to the interest in not being associated with a criminal investigation,
but we decline to do so as contrary to precedent.
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We agree with Friends of Animals, however, that this harassment is primarily
speculative. And because FWS bears the burden of proving that an exemption
applies, Herrick, 298 F.3d at 1189, it must demonstrate more than a mere possibility
of harm. Rose, 425 U.S. at 380 n.19 (“Exemption 6 was directed at threats to privacy
interests more palpable than mere possibilities.”); see also Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 37 (D.C. Cir. 2002) (declining to find an
unwarranted invasion of privacy under Exemption 6 where the agency “established
only the speculative potential of a privacy invasion without any degree of
likelihood”).
In fact, FWS offers no evidence that the submitters themselves believe they
have a privacy interest in their names on the Form 3-177s, fear harassment, or wish
to keep their names private. See Brown, 835 F.3d at 1235 (in rejecting an agency’s
withholding of physician names and business addresses, observing that “the agency
has not provided any testimony from physicians . . . to support its assertion that
treating physicians have a privacy interest in their business addresses” (emphasis
added)). For example, FWS asserts in its briefing that “many of the individuals
involved with this practice [hunting and import of animal parts] would prefer that
fact not be widely publicized,” but it offers not a single piece of evidence from a
submitter to that effect. (Aple. Br. 24.) We cannot consider pure speculation.
FWS does, however, submit some evidence that it asserts proves a likelihood
of harassment if the submitters’ names are disclosed. First, FWS points to the fact
that Friends of Animals has previously published the names of those involved in
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wildlife trade on its website. (Aple. Br. 24 (citing App. vol. 1 at 189, 240–41; App.
vol. 2 at 474).) But this alone does nothing to demonstrate that those individuals
faced or will face harassment or other negative consequences as a result of that
publication.
To attempt to show that, FWS points to several online newspaper articles and
social media posts and comments criticizing big-game hunters. (Aple. Br. 24–25
(citing App. vol. 1 at 64 n.3) (local newspaper articles and NPR interview); id. at 25–
26 (citing App. vol. 1 at 43; vol. 2 at 452) (online criticism of a high-profile hunter);
id. at 26 n.4 (online comments).) These sources are insufficient to prove more than a
mere speculation of harassment. 5 The news articles reporting on big-game hunting
either did not mention the names of hunters and importers at all, mentioned only the
names of certain high-profile hunters, 6 or reported on local hunters in a somewhat
neutral manner, recognizing both sides of the debate. More concerning are the
comments on websites like Tumblr or Reddit, but these, although vulgar and
threatening, are not directed at any named individual. Further, if generally
intemperate or hostile comments on Tumblr or Reddit were the test, it would
probably negate the utility of this test in nearly every situation.
5 To the extent some of these online sources are not in the record, we take
judicial notice of their existence. See United States v. Burch, 169 F.3d 666, 671
(10th Cir. 1999) (“Judicial notice may be taken at any time, including on appeal.”).
6 Negative publicity about a small number of high-profile individuals does
little to demonstrate the possibility of harassment across the entire group of
submitters here. Not only do those instances appear relatively rare in comparison to
the hundreds of released names, those individuals likely reach the public spotlight in
ways other than through a FOIA disclosure.
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FWS is also missing the vital link connecting these news outlets and Internet
posts to resulting harassment or threats targeted directly at the big-game hunters.
FWS fails to connect its evidence of past publicity of the names to any evidence of,
say, members of the public contacting wildlife hunters or importers personally.
Indeed, all that is at issue is the submitters’ names—their addresses and contact
information would remain redacted.
Further, FWS asserts that members of Friends of Animals’ “community of
animal rights activists” would and do “engage in threats or harassment.” (Aple. Br.
25.) This contention is inappropriate for two reasons. First, it is again purely
speculation, because, for the reasons already discussed, FWS has not submitted any
evidence of harassment targeted at the submitters and arising from the disclosure of
their names via FOIA. And second, the identity of the person or entity requesting
information is not relevant to a FOIA analysis. Reps. Comm., 489 U.S. at 771.
There are a few additional factors that cause us to conclude the district court
overvalued the privacy interest in this case. First, the private individuals engaging in
elephant hunting and import—a highly regulated activity—are doing so voluntarily.
FWS is correct that individuals still possess a privacy interest in voluntary conduct,
but the examples it gives (Botox, erotic novels, strip clubs, hemorrhoid cream), do
not contain an analogous level of regulation to the import of elephant parts. See, e.g.,
50 C.F.R. §§ 10.1, 14.1. An individual is not required, for example, to apply for a
special federal permit to purchase an erotic novel, and does not need an import
declaration to ship that erotic novel across state or country lines. Obtaining a federal
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permit and complying with federal regulations is a known cost of receiving the
benefit of participating in international wildlife trade, and there is a known risk of
disclosure as a result of that voluntary but regulated participation. 7 See Agency
Information Collection Activities, 84 Fed. Reg. 36,616, 36,617 (July 29, 2019)
(“[T]he Service considers the information requested on [Form 3-177] to be voluntary,
in order to obtain or retain a benefit.”).
Finally, importing trophies from endangered species requires not only a Form
3-177 but also a special permit. Under the Endangered Species Act, FWS must
publish endangered species permit applications (Form 3-200-20, which requires
similar information as Form 3-177) in the Federal Register. 16 U.S.C. § 1539(c); see
also 50 C.F.R. § 17.22. FWS also publishes permit applications for the import of
7 Although we conclude that voluntary participation in a highly regulated
activity reduces the strength of the privacy interest at stake, we reject Friends of
Animals’ argument that by filling out the mandatory Form 3-177, the submitters
waived their privacy interest entirely. The FWS website does inform submitters that
the information on Form 3-177s “may be subject to disclosure under [FOIA],” but it
also states, “[W]e do not give, sell, or transfer any personal information to a third
party except as might be required by law.” (App. vol. 2 at 395–96.) FWS also
informs its website visitors that it will carefully handle collected information to
“ensure the greatest protection of personal privacy in the face of any required
disclosure.” (Id.) Submitters therefore had assurances of privacy when they filled
out the Form 3-177s. If the possibility of disclosure under FOIA alone was enough
to defeat that privacy interest, no information could ever be protected under this
exemption. (See App. vol. 2 at 488 (“The fact that the information could be
disclosed pursuant to FOIA is true of all information held by the government.”).)
Further, we also reject Friends of Animals’ argument that FWS’s prior
disclosure of the names on Form 3-177s must necessarily prevent withholding now.
Past disclosures are not determinative. See Mobil Oil Corp. v. E.P.A., 879 F.2d 698,
701 (9th Cir. 1989) (“[T]he circuits that have addressed this issue generally have
found that the release of certain documents waives FOIA exemptions only for those
documents released.”).
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African elephant trophies on its website, including the unredacted name and city of
residence of the applicants. (Aple. Br. 40 (citing Elephant Trophy Import Material,
FWS, https://www.fws.gov/irm/bpim/foiaelephant.html (last updated June 17,
2020)).) Thus, the names of the submitters regarding the Elephant Request
specifically are already public knowledge, and any disclosure via FOIA is unlikely to
be a significant further unwarranted invasion of privacy when the information
disclosed is already available. See Reps. Comm., 489 U.S. at 763 & n.15 (“The
common law recognized that one did not necessarily forfeit a privacy interest in
matters made part of the public record, albeit the privacy interest was
diminished . . . .”).
In sum, although individuals certainly have some privacy right in information
about their personal activities, we conclude that the submitters’ interest here is
weak. 8 FWS relies upon speculation, provides no evidence from the submitters
themselves, and fails to link its evidence of publicity to evidence that the submitters
will be personally targeted, contacted, or harassed. Further, the voluntary and highly
regulated nature of the activity and the fact that similar information is already public,
bolster our conclusion.
8 We accordingly reject FWS’s argument that the privacy interest here is at its
“apex” because the information sought is a compilation. (Aple. Br. 28–29 (quoting
Reps. Comm., 489 U.S. at 780).) FWS does not summarize or otherwise alter the
Form 3-177 information when it is entered into LEMIS, nor is this data assembled
from multiple sources. The Form 3-177s are therefore distinguishable from the rap
sheets in Reporters Committee, which were summaries compiled using information
from courthouse files, county archives, and local police stations throughout the
country. 489 U.S. at 764.
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b. Public Interest
The district court also undervalued the usefulness of disclosure of the
submitters’ names as part of the Elephant Request when it found that it “would not
likely advance a significant public interest.” (App. vol. 2 at 503.) So, there was
significant weight on the public interest side of the scale that the district court did not
adequately address in its balancing.
The relevant public interest is narrowly defined: it is “the public’s interest in
obtaining information likely to contribute to its understanding of an agency’s
performance of its duties.” Prison Legal News v. Exec. Office for U.S. Attorneys,
628 F.3d 1243, 1250 (10th Cir. 2011); Audubon Soc. v. Forest Serv., 104 F.3d 1201,
1203 (10th Cir. 1997) (FOIA only permits access to “information that sheds light
upon the government’s performance of its duties”).
In light of that narrow public interest, it is relevant that the information at
issue here involves private citizens. FOIA’s purpose “is not fostered by disclosure of
information about private citizens that is accumulated in various governmental files
but that reveals little or nothing about an agency’s own conduct.” Reps. Comm.,
489 U.S. at 773 (emphasis added); accord Trentadue, 501 F.3d at 1233 (“Obviously,
information regarding private citizens will contribute far less to public understanding
of the operations or activities of the government . . . than would information about
public employees.” (quotations omitted)).
That the withheld information concerns private individuals, however, does not
necessarily mean that a substantial public interest in that information cannot exist.
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See Forest Guardians v. DOI, 416 F.3d 1173, 1178 (10th Cir. 2005) (recognizing a
public interest in information about private transactions in a FOIA fee-waiver case
because the information had a direct connection to agency operations and shed light
on potential influence by private groups).
Our analysis of the public interest starts with the recognition that the import of
elephant trophies requires a permit. 50 C.F.R. § 17.40(e)(6)(i)(B). Although the
collection of Form 3-177s is separate from the permitting process, the public still has
an interest in knowing the identities of the submitters to ensure that FWS is fulfilling
its duty to oversee the import of elephant parts consistently with the law. For
example, knowing the submitters’ names would assist the public in ensuring that
FWS is not allowing individuals to import products besides what has been approved
on the permit, beyond the scope of the permit, or without a permit at all. This second
check is not superfluous, as it further contributes to the understanding of FWS
operations and decision-making. And for elephant trophies imported after April 11,
2016, FWS has a duty to ensure that no one individual imports more than two African
elephant trophies in a single year, as prohibited by 50 C.F.R. § 17.40(e)(6)(i)(E).
There are thus at least four potential uses for the submitters’ names in the
Elephant Request: (1) the names could address whether FWS officials have conflicts
of interest, such as if a form was submitted by an agent’s relative; (2) the names
could reveal consistent favoritism or bias towards or influence by industries or
individual persons; (3) the names could reveal inconsistent, arbitrary, or sloppy
decision-making regarding imports and whether the forms were carefully reviewed;
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and (4) as to forms dated after April 11, 2016, the names could inform the public if
FWS is enforcing 50 C.F.R. § 17.40(e)(6)(i)(E).
By any measure, Form 3-177s serve an important function in FWS’s mission
to “conserve, protect, and enhance fish, wildlife, and plants and their habitats” by
regulating the wild animal parts entering the country. (App. vol. 2 at 397.) Friends
of Animals and other members of the public can hold FWS accountable to serving
that purpose by using the requested disclosures to ensure that FWS is regulating the
import of elephant parts in accordance with the law. The public has a significant
interest in making sure that FWS performs its duties lawfully and fairly, and for the
reasons stated above, disclosure of the submitters’ names would further that interest.
We thus conclude that Friends of Animals’ request for disclosure of the
submitters’ names in the Elephant Request would enable the public to be “informed
about what their government is up to” and would serve FOIA’s purpose of
“shed[ding] light on an agency’s performance of its statutory duties.” Reps. Comm.,
489 U.S. at 773 (quotations omitted). The public’s ability to inform itself about
government activity is “vital to the functioning of a democratic society,” Trentadue,
501 F.3d at 1225, and “a structural necessity in a real democracy,” Nat’l Archives &
Recs. Admin. v. Favish, 541 U.S. 157, 172 (2004). It should not be taken lightly.
c. Balancing
Exemption 7(C) does not protect against all invasions of privacy, just those
disclosures that “could reasonably be expected to constitute an unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(7)(C) (emphasis added). “[W]hether
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disclosure of a private document under [this exemption] is warranted must turn on the
nature of the requested document and its relationship to ‘the basic purpose of
[FOIA],’” which is to “open agency action to the light of public scrutiny.” Reps.
Comm., 489 U.S. at 772 (quoting Rose, 425 U.S. at 372).
Disclosure of the submitters’ names would not constitute an unwarranted
invasion of privacy as to the Elephant Request. Balancing the important public
interest in ensuring the proper regulatory performance of FWS’s duties against the
weak personal privacy interest—based largely on mere speculation of harassment
without actual evidence—supports a conclusion that disclosure here is required. See
Forest Guardians, 410 F.3d at 1218 (“If there is an important public interest in the
disclosure of information and the invasion of privacy is not substantial, the private
interest in protecting the disclosure must yield to the superior public interest.”
(quotation omitted)).
Indeed, the required balance is not an even one. Because FOIA’s core purpose
is to shed light on the government’s performance of its duties, it is “to be broadly
construed in favor of disclosure.” Trentadue, 501 F.3d at 1226. We must therefore
start with a presumption of disclosure. If the private and public interest were
otherwise equal—which we have already determined is not the case here—the public
interest in disclosure must prevail.
For these reasons, we hold that disclosure of the submitters’ names in the
Elephant Request on this record could not be reasonably expected to constitute an
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unwarranted invasion of privacy and thus withholding was not proper under
Exemption 7(C).
As a result, we also reject FWS’s argument that withholding was justified
under Exemption 6. The Exemption 6 inquiry involves the same balancing of public
and private interests as under Exemption 7(C), just through the lens of a stricter
standard. Jud. Watch v. U.S. Dep’t of Just., 365 F.3d 1108, 1125 (D.C. Cir. 2004).
Because withholding as to the Elephant Request cannot be justified under the more
lenient Exemption 7(C) test, the more stringent Exemption 6 test is likewise
unsatisfied.
Accordingly, regarding the Elephant Request, we reverse the district court’s
grant of summary judgment in favor of FWS as to the withholdings under Exemption
6 as well as under Exemption 7(C). 9
(2) Giraffe Request
We again begin with the Exemption 7(C) analysis. Applying the same
framework as above, we reach a different result. Here, we conclude that there is no
public interest in disclosure, such that any invasion of privacy resulting from
disclosure would be unwarranted. Accordingly, we agree with FWS and the district
court that withholding was proper under Exemption 6 as to the Giraffe Request.
9 FWS requested in its briefing that should Exemption 7(C) not apply, “the
district court be permitted to consider the application of Exemption 6 on remand”
because its analysis was focused on Exemption 7(C). (Aple. Br. 21 n.3.) We reject
this request. Our above conclusions as to Exemption 7(C) foreclose any possibility
that Exemption 6 might justify the withholdings in this case.
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Because we uphold withholding under this exemption, we cannot simply
assume that the information was compiled for law enforcement purposes. We first
address that threshold inquiry, concluding that it is satisfied here.
a. Law Enforcement Purpose
For an agency whose primary function is law enforcement, this Court employs
a per se rule whereby all information compiled by such an agency is inherently
compiled for law enforcement purposes. Jordan v. U.S. Dep’t of Just., 668 F.3d
1188, 1193, 1195–97 (10th Cir. 2011). Both parties agree that the per se rule is
inapplicable here because FWS’s primary purpose is not law enforcement.
Nonetheless, FWS could still rely on Exemption 7(C) if it can meet its burden of
showing that it specifically compiled the Form 3-177s for law enforcement purposes.
Id. at 1197 n.5.
We have never identified the precise burden required for a mixed-function
agency to prove that certain information was compiled for a law enforcement
purpose. See id. In its brief, FWS relies on the plain text of Exemption 7(C),
articulating the test for “compiled for a law enforcement purpose” as whether “(1) the
information was collected by an office that enforces federal law, and (2) the office
uses that information to enforce the law.” (Aple. Br. 14.) 10 Because this test is
10 FWS seems to derive this test from the tests used by the Third, Ninth, and
D.C. Circuits, which use a rational nexus test. See Jordan, 668 F.3d at 1193–94.
Under that test, mixed-function agencies like FWS can benefit from Exemption 7(C)
only if the agency can “demonstrate that it had a purpose falling within its sphere of
enforcement authority in compiling the particular document.” Id. at 1194 (quotation
omitted).
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consistent with the exemption’s language and Friends of Animals does not challenge
it or offer a different articulation, we employ FWS’s suggestion here.
Friends of Animals makes a two-pronged argument that the information at
issue was not compiled for a law enforcement purpose. First, it notes that the Form
3-177s are not investigatory in nature. But Friends of Animals’ emphasis on
investigatory records is misplaced. Although Exemption 7(C) initially only applied
to “investigatory records” compiled for law enforcement purposes, later amendments
removed that phrase and replaced with the broader “records or information.” Tax
Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002) (explaining that the 1986 FOIA
amendments permitted wider application of Exemption 7 by deleting any requirement
that information be investigatory).
Second, Friends of Animals argues that FWS must show that the specific
records at issue were compiled for law enforcement purposes. It contends that
although some Form 3-177s might be compiled for law enforcement purposes, not all
of them are, nor is there any evidence addressing giraffe import forms specifically.
Because all importers are required to complete a Form 3-177, Friends of Animals
argues that many of the forms represent lawful activity and are used merely to track
imports, not to enforce the law. Indeed, Friends of Animals takes special issue with
the giraffe import records because at the time in question, the import of giraffe parts
was not prohibited or limited by federal law. (Aplt. Br. 22–25.)
Notwithstanding these arguments, one of FWS’s purposes, even if not its
primary one, is to enforce federal wildlife law and regulations. So the Form 3-177s
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were compiled for a law enforcement purpose if their collection related to or served
that purpose. This threshold requirement has been met here because FWS’s Office of
Law Enforcement (the name is not determinative, but it is somewhat illuminating)
collects Form 3-177s in part to prevent illegal wildlife trade. (App. vol. 2 at 469–
70.) Even if, as Friends of Animals points out, the import is legal, Form 3-177 is
what allows FWS to make that determination of legality in the first place. It also
allows OLE officials to be present at the time of import to perform inspections and
ensure that the shipment matches the import declaration. (Aple. Br. 16.)
Verifying compliance with the law and preventing illegal activity is as much a
part of law enforcement as is investigating violations of the law. And although
Friends of Animals can attempt to nitpick the purposes behind the collection of
specific Form 3-177s, we do not think such an individualized analysis is necessary or
helpful, given that FWS requires all wildlife importers to submit Form 3-177s as part
of FWS’s overall function of overseeing wildlife trade by monitoring imports,
verifying compliance, deterring smugglers, and allowing for physical inspections.
b. Privacy Interest
The privacy interest at stake here is largely the same as in the Elephant
Request—discounting only the additional factors relevant to elephants and the
heightened regulations that apply to them—and will not be repeated here. As before,
we recognize that the submitters have a privacy interest in their names and personal
activities, but that interest is relatively weak as based primarily on speculation
regarding the negative consequences of disclosure.
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c. Public Interest
The principal difference between the Elephant Request and the Giraffe
Request is in the strength of the public interest at stake. For the Elephant Request,
the public interest in disclosure is strong, as this disclosure will shed light on FWS’s
operations and decision-making—the purpose of FOIA and a bedrock of our
democracy. In contrast, because at the time the Form 3-177s were filed giraffe
imports were not regulated in the way that elephant imports were, we can identify no
similar, cognizable public interest that disclosure of the submitters’ names in the
Giraffe Request would serve.
The basis for our conclusion is the fact that, at the time period at issue in the
Giraffe Request, the import of giraffe parts, unlike elephant parts, was not regulated
by the Convention on International Trade in Endangered Species of Wild Fauna and
Flora ("CITES"), the Endangered Species Act, or any other federal law. (Aplt. Br. 24
(“For the time periods at issue in this case, giraffes were not protected by CITES, the
ESA, or other species-specific law, which impose restrictions on the imports of
certain species. Because giraffes were not listed under the ESA or other species-
specific laws, federal law did not prohibit or limit the import of giraffe parts.”).) As
such, Friends of Animals does not and cannot identify a federal law or regulation that
FWS was required to adhere to in its oversight of giraffe imports. FWS did not
engage in any decision-making regarding who was eligible to import giraffe parts or
how many parts any such individual could import, foreclosing the need to assess
FWS’s actions for influence, bias, arbitrariness, or conflict of interest.
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In other words, the only cognizable FOIA public interest—“the public’s
interest in obtaining information likely to contribute to its understanding of an
agency’s performance of its duties,” Prison Legal News, 628 F.3d at 1250—was not
implicated here because FWS had no duty to perform with respect to giraffe imports,
other than the duty to require import declarations. The performance of that
ministerial duty, however, can be adequately assessed through FWS’s response to the
Giraffe Request as redacted. Thus, because 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, disclosure of the names
would not aid the public’s understanding of FWS operations.
Friends of Animals claims several other putative public interests in the Giraffe
Request submitters’ names, but most are not cognizable under FOIA. See id. These
interests include the desire to be informed about who is importing wildlife due to the
public controversy surrounding wildlife trade and a public interest in knowing
importers’ demographics and wildlife criminal history. (Aplt. Br. 35–46.) This
information would no doubt be useful to Friends of Animals for various reasons, but
that is insufficient to require disclosure under FOIA when those interests are not
connected to information about the agency’s performance of its duties.
To be sure, Friends of Animals also points to some relevant FOIA interests:
the public interest in understanding how FWS makes policy decisions, uncovering
influences on FWS, and assessing how FWS oversees and regulates imports. (Id. at
34–35.) But Friends of Animals fails to explain how those interests would be
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furthered by learning the names of submitters importing parts from an unregulated
animal. Because the public would gain little understanding of FWS decision-making,
influence, or oversight from the giraffe-import submitters’ names where there are no
regulations for FWS to follow or enforce, we hold that there is minimal public
interest in the submitters’ names as to the Giraffe Request specifically. 11
d. Balancing
Because the public interest in the giraffe-import submitters’ names is
negligible, it cannot outweigh the submitters’ limited privacy interest in their names:
“If . . . the public interest in the information is ‘virtually nonexistent’ or ‘negligible,’
then even a ‘very slight privacy interest would suffice to outweigh the relevant public
interest.’” Forest Guardians, 410 F.3d at 1218 (quoting U.S. Dep’t of Def. v. FLRA,
510 U.S. 487, 497 (1994)). Thus, although we emphasize the important public
interest in obtaining information about our government and its operations, where no
such interest exists, the privacy interest—however small—must prevail.
Accordingly, we hold that disclosure of the giraffe-import submitters’ names was
reasonably expected to constitute an unwarranted invasion of privacy and thus
withholding was proper under Exemption 7(C). 12
11 Our conclusion is limited to the period of time when giraffe imports were
not subject to special regulations. Since then, giraffe imports have in fact become
subject to regulation. CITES, Summary Record of the Eleventh Session of
Committee I, CoP18 Com. I Rec. 11 (Rev. 1) (2019), https://cites.org/sites/default
/files/eng/cop/18/Com_I/SR/E-CoP18-Com-I-Rec-11-R1.pdf.
12 Because Exemption 7(C) justifies withholding, we need not address the
applicability of Exemption 6.
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* * *
For these reasons, we affirm the district court’s grant of summary judgment in
favor of FWS as to the Giraffe Request but reverse as to the Elephant Request.
B. Exemption 4
Friends of Animals lastly challenges FWS’s withholding of information under
Exemption 4 on one Form 3-177 submitted by an exotic leather business. Because
we conclude that FWS’s evidence to satisfy Exemption 4’s confidentiality
requirement consisted almost entirely of hearsay that we cannot consider, we reverse.
Exemption 4 protects from disclosure “trade secrets and commercial or
financial information obtained from a person and privileged or confidential.”
5 U.S.C. § 552(b)(4). To receive protection under Exemption 4, information, if not a
trade secret, must be: “(a) commercial or financial, (b) obtained from a person, and
(c) privileged or confidential.” Anderson, 907 F.2d at 944 (quotation omitted). On
appeal, Friends of Animals argues only that FWS failed to establish confidentiality.
The Supreme Court has identified two factors for testing whether information
is “confidential”: (1) whether it “is customarily kept private, or at least closely held,
by the person imparting it”; and (2) whether “the party receiving it provides some
assurance that it will remain secret.” Food Mktg. Inst. v. Argus Leader Media,
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139 S. Ct. 2356, 2363 (2019). 13 Id. Because we conclude that FWS does not have
evidence to satisfy the first factor for confidentiality, we need not address the second.
Addressing the first factor, Friends of Animals argues that the primary
evidence FWS provided to prove confidentiality came from inadmissible hearsay in
an affidavit erroneously considered by the district court. We agree. Tenth Circuit
precedent dictates that hearsay contained within an affidavit remains inadmissible
hearsay beyond judicial consideration at summary judgment. And because the
hearsay was FWS’s primary evidence that the withheld information “is customarily
kept private, or at least closely held, by the person imparting it,” Food Mktg. Inst.,
139 S. Ct. at 2363, the error was not harmless.
(1) The Hearsay Problem
In its attempt to demonstrate the confidential nature of the redacted material,
FWS provided an affidavit from FWS’s FOIA Officer, Cathy Willis (the “Willis
Affidavit”). (App. vol. 1 at 214–46.) In the affidavit, Willis declared that OLE
contacted the submitter, who explained that:
 The information at issue “was not public information, and that release of this
information would cause it substantial competitive harm.” (Id. at 232.)
 The submitter “‘actually and customarily’ treat[ed] the withheld information as
private.” (Id.)
13 This Court had previously applied the confidentiality test set forth in
National Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974).
See Anderson, 907 F.2d at 946 & n.14 (adopting that test). The Supreme Court
recently abrogated that test and announced its new two-factor test. Food Mktg. Inst.,
139 S. Ct. at 2364–66. The Supreme Court held that the first factor must be met but
did not resolve whether the second is also required. Id. at 2363.
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 The submitter was a business in the exotic leather market that filed the Form
3-177 to declare a shipment purchased in the course of its business operations,
that “as a matter of actual and customary practice,” it keeps the information at
issue private, and that the information is not displayed on its website or
communicated to the public. (Id. at 232–33.)
 A “representative of the company would be willing to testify to this same
information in camera before the Court.” (Id. at 232.)
Willis also declared that she visited the submitter’s website to confirm its business
type and verify that the information at issue was not accessible therein. (Id. at 233.)
On appeal, Friends of Animals argues that because Willis relayed what the
submitter-business told her, her affidavit constitutes inadmissible hearsay that cannot
be considered in the summary-judgment determination. 14 Friends of Animals admits
that an affidavit, which would normally be considered hearsay, can generally be
considered on summary judgment. Argo v. Blue Cross & Blue Shield of Kan., Inc.,
452 F.3d 1193, 1199 (10th Cir. 2006). Nonetheless, it maintains that the hearsay
testimony within the affidavit—i.e., the content of the affidavit—remains off limits.
See Fed. R. Civ. P. 56(c)(4) (allowing for use of an affidavit to support or oppose a
motion for summary judgement so long as it is “made on personal knowledge, set[s]
out facts that would be admissible in evidence, and show[s] that the affiant or
declarant is competent to testify on the matters stated”).
To support its argument that hearsay within an affidavit cannot be considered
by the court, even at the summary judgment stage, Friends of Animals relies upon
14 FWS does not dispute that the submitter’s statements are hearsay to which
no exception or exclusion applies.
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Johnson v. Weld County, 594 F.3d 1202 (10th Cir. 2010). In Johnson, we considered
a plaintiff’s attempt to defeat summary judgment via testimony that third parties told
her certain information establishing a sex discrimination claim. Id. at 1208. After
concluding that no hearsay exclusion applied, we rejected the plaintiff’s argument
that the hearsay could be considered at summary judgment because it could later be
replaced at trial by admissible live testimony. Id. at 1208–10. We observed that the
plaintiff’s argument misconstrued Supreme Court precedent, drawing an important
distinction between form and content:
[W]hile Celotex[ Corp. v. Catrett, 477 U.S. 317 (1986),]
indicates that the form of evidence produced by a
nonmoving party at summary judgment may not need to be
admissible at trial, the content or substance of the evidence
must be admissible. That is, Rule 56 permits parties at
summary judgment to produce their evidence by means of
affidavit, a form of evidence that is usually inadmissible at
trial given our adversarial system’s preference for live
testimony. Yet, at the same time, Rule 56 does not suggest
we enjoy a license to relax the content or substance of the
Federal Rules of Evidence when viewing a summary
judgment affidavit: the Rule does nothing to intimate
hearsay testimony that would be inadmissible at trial
somehow becomes admissible simply by being included in
an affidavit to defeat summary judgment.
Id. at 1210 (citations and quotations omitted); accord Adams v. Am. Guarantee &
Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (“Hearsay testimony that would
be inadmissible at trial cannot be used to defeat a motion for summary judgment
because ‘a third party’s description of a witness’ supposed testimony is ‘not suitable
grist for the summary judgment mill.’”); Argo, 452 F.3d at 1199 (“[A]t summary
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judgment courts should disregard inadmissible hearsay statements contained in
affidavits, as those statements could not be presented at trial in any form.”).
Johnson thus establishes that although affidavits are permissible in form, “the
content or substance of the affidavit must be otherwise admissible, and any hearsay
contained in a summary judgment affidavit remains hearsay, beyond the bounds of
the court’s consideration.” 594 F.3d at 1210 (emphasis added). 15
In an effort to overcome Johnson, FWS points to dicta in Brown v. Perez,
835 F.3d 1223 (10th Cir. 2016), arguing that it supports consideration of the hearsay
within the Willis Affidavit at the summary judgment stage. In Brown, a FOIA
defendant sought at summary judgment to use a letter written by a third-party
business to prove the confidentiality of withheld information. 835 F.3d at 1232.
This Court deemed the letter hearsay that could not be considered because the
defendant failed to show that the letter could be presented in an admissible form at
trial. Id. We suggested in dicta, however, that had a representative of the business
filed its own affidavit or, more significantly, had “the agency’s affidavit . . .
suggest[ed] that a representative of [the business] would testify . . . at trial,” the
result would have been different. Id.
15 To be sure, there are differences between this case and Johnson. For
instance, Johnson involved a double hearsay problem, 594 F.3d at 1208, whereas
here, the affiant (Willis) heard the hearsay statements directly from the declarant.
And unlike in Johnson, the affiant here swore that the hearsay declarants told her
they were willing to testify. But Johnson’s clear holding—that hearsay within an
affidavit cannot be considered when making a summary-judgment determination—
controls here nonetheless.
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FWS contends that Brown thus stands for the proposition that hearsay can be
considered at summary judgment if contained within an affidavit stating that the
hearsay declarant would testify at trial. And here, the Willis Affidavit indeed stated
that “a representative of the company would be willing to testify to this same
information in camera before the Court.” (App. vol. 1 at 232.) But Brown does not
support FWS’s position because there, the letter that the defendant sought to submit
came directly from the business, in its own words, whereas here the submitter’s
statements were relayed by a third party within an affidavit. 16 And in any event, the
Brown dictum FWS relies upon is not precedential and, regardless, the clear rule
established previously in Johnson must prevail. See Haynes v. Williams, 88 F.3d
898, 900 n.4 (10th Cir. 1996) (“[A] panel should follow earlier, settled precedent
over a subsequent deviation therefrom.”). Brown could not and did not intend to
conflict with this controlling prior precedent and did not hold that a court can
16 FWS’s position would, troublingly, create a rule where parties moving for
summary judgment could succeed by submitting affidavits containing favorable, but
unsworn, hearsay statements or even multiple levels of hearsay, all of which would
be acceptable as long as the affidavit also stated (through more inadmissible,
unsworn hearsay) that each hearsay declarant would be willing to testify. Avoiding
such a result is simple: parties need only obtain an affidavit directly from the hearsay
declarant. The added expense of doing so is minimal when the declarants have
already expressed a willingness to testify and would actually have to do so if
summary judgment was not granted. And although requiring an affidavit directly
from the declarant might be less protective of privacy, the affidavit could be redacted
or viewed in camera as needed.
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consider hearsay within an affidavit. We remain bound by Johnson’s holding that
hearsay within an affidavit cannot be considered. 17
We therefore hold that it was error for the district court to consider the hearsay
in the Willis Affidavit when evaluating FWS’s redactions under Exemption 4.
(2) Harmless-Error Analysis
Finally, we address FWS’s argument that even if it was error to consider the
hearsay in the Willis Affidavit, that error was harmless because there was enough
additional evidence to conclude that the withheld information was confidential. We
disagree. The only other evidence of confidentiality FWS identifies are inferences it
asks this Court to make based on the fact that the submitter is a distributer, as well as
Willis’s verification that the submitter’s website did not display the withheld
information. The former fails to speak to the specific business and confidentiality
practices of the submitter, and the latter, although certainly probative of
17 FWS additionally cites several out-of-circuit cases to support its contrary
position. Only one is on point. In Fraternal Order of Police, Lodge 1 v. City of
Camden, 842 F.3d 231 (3d Cir. 2016), the Third Circuit reversed a district court’s
refusal to consider hearsay within an affidavit at summary judgment, holding that
statements by plaintiffs regarding what officers told them could be considered where
the plaintiffs identified the declarants and said they would be willing to testify. Id. at
238–39. We acknowledge this circuit split but are bound by Johnson. We also think
policy considerations favor our rule, as explained below.
FWS also borrows from other circuits to argue that hearsay within an affidavit
is allowed in FOIA cases specifically. See DiBacco v. U.S. Dep’t of the Army,
926 F.3d 827, 833 (D.C. Cir. 2019); Carney v. U.S. Dep’t of Just., 19 F.3d 807, 814
(2d Cir. 1994); Russell v. U.S. Dep’t of State, 651 F. App’x 667, 668 (9th Cir. 2016)
(unpublished). These FOIA cases, however, involve hearsay from subordinates
within the agency rather than from an unrelated third party. We decline to decide if
an exception to the Johnson rule exists in such cases; at the very least, no such
exception applies where the hearsay declarant is a party outside the agency.
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confidentiality, does not foreclose the possibility that the submitter could have
revealed the information to the public in other ways or at other times.
FWS suggests that “it is difficult to imagine any business that discloses th[e]
information” at issue, i.e., details of a shipment including date, port, exporter, and
contents. (Aple. Br. 57.) But this Court cannot base a confidentiality determination
upon its imagination. Because FWS is the party moving for summary judgment, we
make inferences in Friends of Animals’ favor, not FWS’s. Brown, 835 F.3d at 1230.
And as the district court below noted elsewhere, “[t]he fact that the submitter is a
business, without more, provides no insight into whether this particular submitter
actually and customarily keeps the withheld information confidential.” (App. vol. 2
at 487.)
FWS also asserts that the hearsay statements were superfluous because the
district court cited them only once. This ignores the four additional “id.” citations
that followed the one full citation. (App. vol. 2 at 486–87.) Indeed, the district court
relied heavily on the Willis Affidavit in assessing confidentiality: it was the only
evidence the court cited in determining that the submitter customarily and actually
treated the withheld information as private. (Id. at 485–87.)
Accordingly, without the hearsay statements, FWS’s confidentiality evidence
was clearly insufficient. We thus conclude that the error was not harmless and we
reverse the district court’s grant of summary judgment in favor of FWS as to the
material withheld under Exemption 4.
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IV. CONCLUSION
For these reasons, we conclude that the district court erred in granting
summary judgment in favor of FWS as to the withholdings in the Elephant Request
under Exemptions 6 and 7(C) and as to the withholdings under Exemption 4. We
REVERSE on those issues but AFFIRM the district court’s grant of summary
judgment in favor of FWS as to the withholdings in the Giraffe Request. We remand
to the district court for further proceedings.
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20-1182, Friends of Animals v. Bernhardt
TYMKOVICH, Chief Judge, concurring in part and dissenting in part
I agree with the majority that Friends of Animals does not have a cognizable FOIA
interest in the Form 3-177s with respect to giraffe imports. And I agree that we cannot
rely on the hearsay statements in the Willis Affidavit to support the district court’s
decision to apply Exemption 4 to one Form 3-177. Finally, I also agree FOIA is crucial in
ensuring accountability and fostering governmental candor. But Congress did not intend
FOIA to be used as a tool of public exposure, ridicule, and harassment—under the
pretense of government transparency—against private individuals whose information is
collected by agencies. Because the Form 3-177 submitters for elephant imports have a
privacy interest that is not outweighed by the public interest in disclosure, I dissent in
part.
Exemption 7(C) of FOIA “requires us to protect, in the proper degree, the personal
privacy of citizens against the uncontrolled release of information compiled through the
power of the State.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172
(2004). Thus, the second and third prongs of our test for Exemption 7(C) oblige us to
“determine whether there is a personal privacy interest at stake[,] and if there is[, . . .]
balance the privacy interest against the public interest in disclosure.” World Pub. Co. v.
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U.S. Dep’t of Just., 672 F.3d 825, 827 (10th Cir. 2012). In my view, the majority both
undervalues the submitters’ privacy interest and overvalues the theory of the public
interest in disclosure advanced by Friends of Animals.1
For the privacy interest prong, privacy “encompass[es] the individual’s control of
information concerning his or her person.” U.S. Dep’t of Just. v. Reporters Comm. For
Freedom of Press, 489 U.S. 749, 763 (1989). This is the case even when compiled
information is otherwise publicly available. In Reporters Committee, for example, the
Supreme Court held although criminal “rap sheets” contain a great deal of information
that is a matter of public record, an individual still has a privacy interest in a rap sheet
because “compilation of otherwise hard-to-obtain information alters the privacy interest
implicated by disclosure of that information.” Reporters Comm., 489 U.S. at 764.
Indeed, compilation itself imputes additional value onto such information. See id.
(“Plainly there is a vast difference between the public records that might be found after a
diligent search of courthouse files, county archives, and local police stations throughout
the country and a computerized summary located in a single clearinghouse of
1 Before Exemption 7(C) applies, we have said as a threshold matter that the
agency compiled the withheld information for a law enforcement purpose. See World
Pub. Co., 672 F.3d at 827. I believe this requirement is easily met here. The majority
assumes without deciding that FWS collected the Form 3-177s regarding elephant imports
for such a purpose. See Maj. Op. at 8. By contrast, the majority addresses this threshold
inquiry for giraffe imports and concludes the forms do serve a law enforcement purpose.
See id. at 20–22. All of the majority’s reasons for finding that Form 3-177s for giraffe
imports serve a law enforcement purpose would be precisely the same for elephant
imports.
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information.”). Consequently, the Court held as a “categorical matter that a third party’s
request for law enforcement records or information about a private citizen can reasonably
be expected to invade that citizen’s privacy, and that when the request seeks no official
information about a Government agency, but merely records that the Government
happens to be storing, the invasion of privacy is unwarranted.” Id. at 780 (internal
quotation marks omitted).
It is true that “the release of a list of names and other identifying information does
not inherently and always constitute a clearly unwarranted invasion of personal privacy.”
Brown v. Perez, 835 F.3d 1223, 1235 (10th Cir. 2016), as amended on reh’g (Nov. 8,
2016) (internal quotation marks omitted). But the analysis cannot stop there. Rather,
“whether disclosure of a list of names is a significant or a de minimis threat [to privacy]
depends upon the characteristics revealed by virtue of being on the particular list, and the
consequences likely to ensue.” Id. (internal quotation marks omitted; alterations
incorporated). In other words, the foreseeable repercussions of disclosure are proper
considerations for the privacy interest.
The third prong requires us to “balance the privacy interest against the public
interest in disclosure.” World Pub. Co., 672 F.3d at 827; see also Reporters Comm., 489
U.S. at 776; Prison Legal News v. Exec. Office for U.S. Att’ys, 628 F.3d 1243, 1248 (10th
Cir. 2011). Thus, “[w]here the privacy concerns addressed by Exemption 7(C) are
present, the exemption requires the person requesting the information to establish a
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sufficient reason for the disclosure.”2 Favish, 541 U.S. at 172. First, the requester must
demonstrate “that the public interest sought to be advanced is a significant one, an interest
more specific than having the information for its own sake.” Id. Second, the requester
must also “show the information is likely to advance that interest. Otherwise, the
invasion of privacy is unwarranted.” Id.
In this inquiry, we must focus on precisely what information is sought and what it
reveals about the agency and its function. This is because the balance between the
privacy interest and the interest in disclosure “turn[s] on the nature of the requested
document and its relationship to the basic purpose of the Freedom of Information Act to
open agency action to the light of public scrutiny[,] . . . rather than on the particular
purpose for which the document is being requested.” Reporters Comm., 489 U.S. at 772
(internal quotation marks and citation omitted). Information that reveals how an agency
is performing its duties “falls squarely within [FOIA’s] statutory purpose” of “the
citizens’ right to be informed about what their government is up to.” Id. at 773 (internal
quotation marks omitted). But this purpose “is not fostered by disclosure of information
about private citizens that is accumulated in various governmental files but that reveals
2 When an agency declines to release information sought through a FOIA request,
the burden is on the agency to justify its withholding of the information pursuant to an
exemption. 5 U.S.C. § 552(a)(4)(B); see also Jordan v. U.S. Dep’t of Just., 668 F.3d
1188, 1197 (10th Cir. 2011). But—as the Supreme Court in Favish makes clear, in the
context of Exemption 7(C), the requester bears the burden of establishing the existence of
the public interest in disclosure.
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little or nothing about an agency’s own conduct.” Id. As a result, the public interest
advanced by the requester must be in the agency’s conduct—not in the conduct of private
individuals whose information has been collected.
The majority agrees with Friends of Animals that submitters have a de minimis
privacy interest in their names, addresses, and contact information on the Form 3-177s.
But in failing to consider the likely consequences of disclosure for submitters, the
majority misapplies our precedent. That the redacted information would be used to
personally identify individuals seeking to import animal products is all but certain.
Indeed, Friends of Animals openly relies on the disclosure of personal information—and
the predictable reaction by the public—for some of its advocacy work. The affidavit of
Friends of Animals’s president, attached as Exhibit A to the organization’s motion for
summary judgment, states as much:
[S]ince the killing of Cecil the Lion by Walter Palmer of
Minnesota in 2015, and then the killing of a rare black rhino by
Texas hunter Corey Knowlton in 2018, the public has been
fascinated by, as well as appalled at, America’s continued role
in the hunting of these animals for sport and pleasure.
Undoubtedly, over the past five years, our work to end this type
of sport hunting has gained Friends of Animals a significant
amount of attention by both the national press as well as with the
local press in locations where these hunters reside. Friends of
Animals relies on, among other information, the information
obtained from FWS under FOIA regarding issuance of import
permits when assisting on these news reports.
Aplt. App., Vol. I at 64. In a footnote, the affidavit cites multiple news articles, including
an article from the Santa Cruz Sentinel titled “Former Pleasure Point Homeowner Sought
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Permit to Import African Lion Parts” and another from The Salt Lake Tribune titled “Utah
Man Denies Plans to Hunt Elephant, Claims He Sought Permit to Import African
Trophies for a Filmmaking Project.” Id. at 64–65. Both articles provide the names,
professions, and information about the private residences of these individuals.
The release of such information to the press purportedly furthers Friends of
Animals’s advocacy goals. But the resulting articles demonstrate that disclosure of this
type of information is almost certain to result in social media shaming, disapproval, and
harassment.3 Importing elephant and giraffe parts is controversial, as evidenced by these
3 Online harassment and the weaponization of social media have been on the rise
in recent years. See Kurt Thomas et al., SoK: Hate, Harassment, and the Changing
Landscape of Online Abuse, in Proceedings of the IEEE Symposium on Security and
Privacy 8 (2021) (finding a marked increase in online harassment in all 12 countries
surveyed from 2016 to 2018); Winhkong Hua, Cybermobs, Civil Conspiracy, and Tort
Liability, 44 Fordham Urb. L.J. 1217, 1227 (2017) (“Social networking sites also provide
a ready-made audience for harassment campaigns. The Internet in general and social
networks in particular give cyber harassment campaigns the ability to go viral, because
they allow for near instantaneous, widespread dissemination.” (internal citations and
quotation marks omitted)). Doxxing, or the “use of the Internet to search for and publish
identifying information about a particular individual, typically with malicious intent,” is
no exception. Jeffrey Pittman, Privacy in the Age of Doxxing, 10 S. J. of Bus. & Ethics
53, 54 (2018); see also Nellie Bowles, How ‘Doxxing’ Became a Mainstream Tool in the
Culture Wars, N.Y. Times (Aug. 30, 2017), https://www.nytimes.com/2017/08/30/
technology/doxxing-protests.html. Indeed, as Justice Thomas wrote in a case in which a
state law required identifying information of referenda signers, “the state of technology
today creates at least some probability that signers of every referendum will be subjected
to threats, harassment, or reprisals if their personal information is disclosed. ‘The advent
of the Internet’ enables rapid dissemination of ‘the information needed’ to threaten or
harass every referendum signer.” John Doe No. 1 v. Reed, 561 U.S. 186, 242–43 (2010)
(Thomas, J., dissenting) (quoting Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
370 (2010)).
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articles and by Friends of Animals’s work—and Friends of Animals intends to spark
outrage against these individuals and their conduct. It is not “mere speculation that a
submitter could conceivably be subjected to harassment” upon disclosure of this
information, as Friends of Animals contends. Aplt. Br. at 29. Rather, it is the
organization’s intended objective—as well as the natural result of the disclosure.
Whatever the efficacy or propriety of such tactics, I think it clear that FOIA is not
designed to advance this type of battle.
And the public interest in disclosure does not outweigh this privacy interest. The
way in which Friends of Animals describes the public interest is telling: the organization
claims that the public interest is “in knowing who is importing elephant and giraffe
parts.” Aplt. Br. at 34. But this interest is aimed at the conduct of the submitters, not the
agency. As our precedent dictates, FOIA is meant to shed light on agency conduct, not on
the actions of individuals whose information is collected by the government. Friends of
Animals claims “it is undeniable that it is in the public’s interest to know details about the
imports of the remains of imperiled wildlife such as African elephants and giraffes and
how FWS is overseeing and regulating their import.” Aplt. Br. at 35. But FWS released
the other information from the Form 3-177s, including the names of companies who have
imported wildlife, descriptions and volumes of the parts, and the number of permits and
forms submitted. The personal identifiers shed no additional light on FWS’s conduct.
Friends of Animals also asserts that disclosure of the submitters’ names is important
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because (1) the “public has an interest in knowing how many different individuals are
responsible for the imports” and (2) the “names would help the public understand whether
importers represent a wide cross-section of Americans or whether certain classes or
demographics dominate these imports.” Aplt. Br. at 35–36. As interesting as this
information might be, it is still about the conduct of the submitters—not FWS.4 And
finally, Friends of Animals contends that “the public has an interest in knowing whether
wildlife traffickers are importing these wildlife parts” and knowing “whether FWS and
U.S. law are permitting individuals who have been convicted of wildlife crimes to import
these wildlife parts.” Aplt. Br. at 36. But this, too, is aimed at knowledge of the
submitters’ conduct—and lawful conduct (i.e., submitting a Form 3-177) at that.
Moreover, a number of these forms have been filled out and submitted by an
individual employee who works for a company importing these wildlife parts. Employee
4 The same is true of the purported public interest in the submitters’ political
affiliations and membership in private clubs, an interest Friends of Animals advanced
before the district court. See Order at 35. Friends of Animals does not expressly offer
this interest on appeal but still claims that “[d]isclosure of the names would reveal
whether FWS is favoring certain categories of people when it grants permits, and whether
permit decisions are subject to undue influence of any outside groups such as prominent
trophy hunting organizations.” Aplt. Br. at 36. But it is not clear why such
information—not disclosed on the forms—would influence FWS’s permitting decisions,
which is precisely why it does not shed light on the agency’s conduct. It is simply
directed at collecting information about individuals who submit these forms. As the
district court held, “[Friends of Animals] can request and possesses permitting
information from the division of FWS that issues permits in its pursuit of insight into
FWS’s permitting process, rather than seek such insight through enforcement data
properly withheld under Exemption 7(C).” Order at 35.
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X at Christie’s, see, e.g., Aplt. App., Vol. I at 96–97, and Employee Y at Montana
Silversmiths, see, e.g., Aplt. App., Vol. I at 86, for example, have a high privacy interest
because their work duties may simply include filling out these forms. These employees
may have no influence or control whatsoever about the decision to import wildlife parts.
That they, as individuals, have completed these forms bears little on the theories of public
interest in their personal information advanced by Friends of Animals. Their privacy
interest will always outweigh any claimed public interest in the existence of their names
on these forms. For these reasons, Friends of Animals does not meet its burden of
establishing why the names and addresses of the form submitters have anything to do with
FWS’s conduct.
As the Supreme Court has held, “disclosure of records regarding private citizens,
identifiable by name, is not what the framers of the FOIA had in mind.” Reporters
Comm., 489 U.S. at 765. Even if a public interest in this information does exist, it is still
outweighed by the likelihood of extensive and potentially ruinous harassment. When the
objective of the requester is to expose individuals—not agencies—through FOIA-
obtained information, the balance should tilt toward privacy. I therefore respectfully
dissent.
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