Animal Legal Defense Fund v. United States Food & Drug Administration

Background

Animal Legal Defense Fund sued the United States Food & Drug Administration under the Freedom of Information Act (FOIA), seeking inspection records concerning egg safety and production in Texas. The FDA produced Establishment Inspection Reports (EIRs) but withheld several categories of information under FOIA Exemption 4, which protects trade secrets and confidential commercial or financial information obtained from a person.

By the time of the motions addressed in this order, the FDA had released the number of hen houses. The remaining disputed information—the “Hen Housing Information”—was the number of floors, cage rows, and cage tiers per hen house in reports concerning facilities operated by Cal-Maine Foods, Inc., Feather Crest Farms, Inc., Mahard Egg Farm, Inc., and Pilgrim’s Pride Commercial Layer.

Earlier proceedings applied a standard requiring a likelihood of substantial competitive harm. After the Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media, the relevant question became whether the information was both customarily and actually treated as private by its owner. The Ninth Circuit sent the case back for that inquiry, including examination of the specific steps each producer took to keep the information confidential.

Arguments and Evidence

The FDA pointed to gates, locked doors, security procedures, visitor restrictions, and other measures at some facilities. The court found, however, that the record raised questions about whether those measures were intended to protect confidentiality or instead served biosecurity purposes. The record also did not show what specific steps Pilgrim’s Pride took to protect the information before its acquisition by Cal-Maine. Evidence concerning how MPS Egg Farms protected information after acquiring Feather Crest likewise did not establish what Feather Crest did in 2011.

The court further found that the producers did not adequately prevent employees, suppliers, or service providers from disclosing the Hen Housing Information. Mahard employees had no nondisclosure or noncompete agreements. Feather Crest employees were not contractually bound to keep operational information confidential, and suppliers and service providers were not required to sign nondisclosure agreements. The court also found that the information could be viewed by people who visited the hen houses and that suppliers were expected to know about cage systems, including those of competitors.

Ruling

The court held that the FDA did not meet its burden of showing that the Hen Housing Information was customarily and actually kept private. Because Exemption 4 therefore did not apply, the court did not decide whether a government assurance of secrecy was also required.

The court denied the FDA’s motion for summary judgment and granted Animal Legal Defense Fund’s cross-motion for summary judgment. It ordered the FDA to produce the EIRs without redactions to the Hen Housing Information within 30 days of the order.