Aldf v. Fda ( 2016 )


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  •                FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ANIMAL LEGAL DEFENSE FUND,               No. 13-17131
    Plaintiff-Appellant,
    D.C. No.
    v.                       3:12-cv-04376-
    EDL
    FOOD AND DRUG ADMINISTRATION,
    Defendant-Appellee.           OPINION
    Appeal from the United States District Court
    for the Northern District of California
    Elizabeth D. Laporte, Magistrate Judge, Presiding
    Argued and Submitted
    December 9, 2015—San Francisco, California
    Filed April 11, 2016
    Before: Susan P. Graber, Kim McLane Wardlaw,
    and Mary H. Murguia, Circuit Judges.
    Opinion by Judge Graber;
    Per Curiam Concurrence
    2                          ALDF V. FDA
    SUMMARY*
    Freedom of Information Act
    The panel affirmed the district court’s summary judgment
    in favor of the Food and Drug Administration (“FDA”), and
    its holding that under Freedom of Information Act (“FOIA”)
    Exemption 4, the FDA properly withheld categories of
    information requested by the Animal Legal Defense Fund
    regarding egg-production farms in Texas.
    FOIA Exemption 4 applies to “trade secrets and
    commercial or financial information obtained from a person
    and privileged or confidential.” 5 U.S.C. § 552(b)(4). The
    district court concluded that the FDA had established that the
    release of five categories of redacted information – total hen
    population, number of hen houses, number of floors per
    house, number of cage rows per house, and number of cage
    tiers per house – was likely to result in substantial
    competitive harm due to underbidding among egg producers;
    and the information was protected under Exemption 4.
    The panel held that the district court had an adequate
    factual basis to reach its decision. The panel also held that
    the district court did not clearly err in finding that disclosure
    of the redacted information was likely to cause substantial
    competitive harm to the affected egg producers and farmers.
    Finally, the panel held that the district court did not abuse its
    discretion by denying third-party discovery.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    ALDF V. FDA                          3
    In a concurring per curiam opinion, the panel wrote
    separately to explain why it thought that the court should
    reconsider en banc the standard of review that is applied to
    appellate review of summary judgments in FOIA cases.
    COUNSEL
    Monte M.F. Cooper (argued), Derek F. Knerr, and Scott
    Lindlaw, Orrick, Herrington & Sutcliffe LLP, Menlo Park,
    California, for Plaintiff-Appellant.
    Lindsey Powell (argued), Dara S. Smith, and Michael S.
    Raab, Civil Division, Stuart F. Delery, Assistant Attorney
    General, and Victoria R. Carradero, Assistant United States
    Attorney, United States Department of Justice, Washington,
    D.C., for Defendant-Appellee.
    OPINION
    GRABER, Circuit Judge:
    Plaintiff Animal Legal Defense Fund filed a Freedom of
    Information Act (“FOIA”) request with the Food and Drug
    Administration (“FDA”) regarding egg-production farms in
    Texas. The FDA released almost 400 pages of documents but
    redacted data regarding total hen population, number of hen
    houses, number of floors per house, number of cage rows per
    house, number of cage tiers per house, and number of birds
    per cage for each farm in question. Plaintiff filed this FOIA
    action seeking to compel the FDA to release the redacted
    data. The district court ordered the release of information
    regarding the number of birds per cage at each farm. But the
    4                      ALDF V. FDA
    court held on summary judgment that, under FOIA
    Exemption 4, the FDA properly withheld the other categories
    of information because its release was “likely to cause
    substantial competitive harm.” See 5 U.S.C. § 552(b)(4). We
    affirm.
    FACTUAL AND PROCEDURAL HISTORY
    In late 2011, Plaintiff submitted a FOIA request to the
    FDA that sought the following:
    •    All FDA documents since April 26, 2011, relating
    to egg safety in Texas, egg production in Texas,
    or egg-production facilities in Texas;
    •    All FDA communications with Texas state
    government agencies since April 26, 2011,
    relating to egg safety, egg production, or egg-
    production facilities; and
    •    All communications between the FDA and egg
    producers in Texas since April 26, 2011.
    The FDA released records related to inspections of eleven
    chicken egg-production facilities; one quail egg-production
    facility and food manufacturer; one food warehouse; and one
    food distribution center. But redactions appeared on 277 of
    the 398 pages that the FDA produced.
    Plaintiff filed a complaint for injunctive and declaratory
    relief under FOIA, 5 U.S.C. § 552, seeking to compel the
    production of the following information regarding inspected
    egg-production facilities: total hen population; number of
    hen houses; number of floors per house; number of cage rows
    ALDF V. FDA                           5
    per house; number of cage tiers per house; and number of
    birds per cage. The FDA moved for summary judgment on
    the ground that FOIA Exemption 4—which applies to “trade
    secrets and commercial or financial information obtained
    from a person and privileged or confidential,” 
    id. § 552(b)(4)—protected
    the redacted data. In support of its
    motion, the FDA submitted several declarations from experts
    who stated that releasing the requested information would
    enable competitors to learn a given egg producer’s production
    rate, which in turn would allow the competitors to undercut
    the egg producer’s prices and lure away customers. Plaintiff
    filed a cross-motion for summary judgment, supported by its
    own declarations from an economist and a food industry
    consultant. Those experts attested that releasing the withheld
    information would not facilitate competitive underbidding.
    Plaintiff also asked to suspend briefing of FDA’s
    summary judgment motion in order to permit discovery
    directed to whether the information sought was publicly
    available. The district court denied that request because,
    among other things, Plaintiff had not shown that the
    discovery it sought “is essential to litigating the motion for
    summary judgment.”
    After briefing and oral argument, the district court granted
    in part and denied in part both parties’ summary judgment
    motions. The district court held that the FDA had fallen short
    of showing how releasing the number of birds per cage would
    “threaten any competitive harm” and ordered disclosure of
    that information. But the court concluded that the FDA had
    established that the release of the other five categories of
    redacted information—total hen population, number of hen
    houses, number of floors per house, number of cage rows per
    6                       ALDF V. FDA
    house, and number of cage tiers per house—was likely to
    result in substantial competitive harm due to underbidding.
    Plaintiff timely appeals the court’s grant of summary
    judgment in favor of the FDA on the redaction of those five
    categories of information, as well as the denial of third-party
    discovery.
    STANDARDS OF REVIEW
    “Our review of a grant of summary judgment in a FOIA
    case . . . is slightly different than for other types of cases
    . . . .” Yonemoto v. Dep’t of Veterans Affairs, 
    686 F.3d 681
    ,
    688 (9th Cir. 2012). We first determine, de novo, whether an
    adequate factual basis supports the district court’s decision.
    
    Id. “Whether a
    particular set of documents gives the court an
    adequate factual basis for its decision is a question of law that
    the court reviews de novo.” Lion Raisins, Inc. v. U.S. Dep’t
    of Agric., 
    354 F.3d 1072
    , 1078 (9th Cir. 2004). If no
    adequate factual basis exists, the case must be remanded for
    further development of the record. 
    Yonemoto, 686 F.3d at 688
    .
    If such a factual basis exists, we next treat the judgment
    as “if it were a bench trial,” so that “the district court’s
    conclusions of fact are reviewed for clear error.” 
    Id. (internal quotation
    marks omitted). On the other hand, “legal rulings,
    including [the district court’s] decision that a particular
    exemption applies, are reviewed de novo.” 
    Id. As we
    noted
    in Lion Raisins, whether withheld information could be used
    by a food producer to undercut competitors is a determination
    that is “grounded in . . . findings of 
    fact.” 354 F.3d at 1078
    .
    Therefore, if we determine that the district court had an
    adequate factual basis for reaching its decision, we must
    ALDF V. FDA                           7
    review for clear error the district court’s conclusion that
    releasing the redacted information likely would cause
    substantial competitive harm. 
    Id. We review
    for abuse of discretion a district court’s denial
    of discovery before ruling on summary judgment. U.S.
    Cellular Inv. Co. of L.A., Inc. v. GTE Mobilnet, Inc., 
    281 F.3d 929
    , 934 (9th Cir. 2002).
    DISCUSSION
    A. Disclosure Under FOIA
    “Disclosure, not secrecy, is the dominant objective of
    FOIA.” Shannahan v. IRS, 
    672 F.3d 1142
    , 1148 (9th Cir.
    2012) (internal quotation marks and brackets omitted). “We
    construe narrowly FOIA’s nine exemptions.” 
    Id. The FDA
    relies on Exemption 4, 5 U.S.C. § 552(b)(4), “which is
    available to prevent disclosure of (1) commercial and
    financial information, (2) obtained from a person or by the
    government, (3) that is privileged or confidential.”1 GC
    Micro Corp. v. Def. Logistics Agency, 
    33 F.3d 1109
    , 1112
    (9th Cir. 1994). Commercial information qualifies as
    “confidential” when disclosure is “likely . . . to cause
    1
    Title 5 U.S.C. § 552(b)(4) specifically provides:
    This section [requiring disclosure of information]
    does not apply to matters that are—
    ....
    (4) trade secrets and commercial or financial
    information obtained from a person and privileged or
    confidential[.]
    8                     ALDF V. FDA
    substantial harm to the competitive position of the person
    from whom the information was obtained.” 
    Id. 1112–13 (citing
    Nat’l Parks & Conservation Ass’n v. Morton, 
    498 F.2d 765
    , 770 (D.C. Cir. 1974)).
    B. Adequate Factual Basis
    As noted above, we first must determine whether the
    district court had an adequate factual basis to reach its
    decision. Lion 
    Raisins, 354 F.3d at 1079
    . “In making this
    determination, we may rely solely on government affidavits
    so long as the affiants are knowledgeable about the
    information sought and the affidavits are detailed enough to
    allow the court to make an independent assessment of the
    government’s claim.” Kowack v. U.S. Forest Serv., 
    766 F.3d 1130
    , 1132 (9th Cir. 2014) (internal quotation marks
    omitted). That threshold is met here.
    Several of the declarations by the FDA’s experts stated
    that the egg-production industry was “highly” or “extremely
    competitive.” One emphasized that “anything that changes
    costs by even a penny can make a huge difference.”
    According to the experts, the redacted information was likely
    to cause substantial competitive harm because the
    competitors of the egg producers in question could use the
    information to form accurate estimates of each farm’s or
    producer’s rate of production and use those estimates to
    underbid. For example, one declarant stated that, once a
    competitor knows the production rate at an egg farm, the
    competitor is able to “enter the farm’s regional market and
    offer to produce the same number of eggs per day for a lower
    price or a greater number of eggs per day for the same price
    and thereby lure away the farm’s customers.” As in Lion
    
    Raisins, 354 F.3d at 1079
    –80, the declarations in this case
    ALDF V. FDA                           9
    established an adequate factual basis. The declarations
    provided the district court with the identity of the information
    sought and the claimed exemption, and provided the
    necessary detail about the specific competitive harm that
    could arise from the release of the redacted information. See
    also Bowen v. FDA, 
    925 F.2d 1225
    , 1227–28 (9th Cir. 1991)
    (holding that government affidavits that described the
    documents withheld, the statutory exemptions claimed, and
    the specific reasons for the agency’s withholding provided an
    adequate factual basis for application of Exemption 4).
    C. Review of District Court’s Analysis for Clear Error
    We next must decide whether the district court clearly
    erred in determining that the redacted information fell within
    Exemption 4’s protection. “[The clear error] standard is
    significantly deferential, and we will accept the lower court’s
    findings of fact unless we are left with the definite and firm
    conviction that a mistake has been committed.” Lentini v.
    Cal. Ctr. for the Arts, 
    370 F.3d 837
    , 848–49 (9th Cir. 2004)
    (internal quotation marks omitted).
    “An agency seeking to withhold information under an
    exemption to FOIA has the burden of proving that the
    information falls under the claimed exemption.” GC Micro
    
    Corp., 33 F.3d at 1113
    . “While conclusory and generalized
    allegations of competitive harm are insufficient to show that
    requested information is ‘confidential,’” the government need
    not show that releasing the documents would cause “actual
    competitive harm.” 
    Id. “Rather, the
    government need only
    show that there is (1) actual competition in the relevant
    market, and (2) a likelihood of substantial competitive injury
    if the information were released.” Lion 
    Raisins, 354 F.3d at 1079
    .
    10                      ALDF V. FDA
    Plaintiff does not contest that there is actual competition
    in the egg-production market, and it also concedes that the
    redacted information could be used to estimate an egg farm’s
    production capacity. The parties disagree, however, as to
    whether releasing the redacted information would likely
    cause “substantial competitive harm” to the affected egg
    producers and farmers.
    Whether or not releasing the requested data would create
    a likelihood of substantial competitive harm was subject to
    dispute. But, on this record, the district court did not clearly
    err in finding that disclosure of the information was likely to
    cause commercial undercutting.            The FDA provided
    declarations that explained how the information would
    facilitate accurate estimates of a farm’s egg-production
    capacities and how those estimates could facilitate
    undercutting. For example, one declarant explained that the
    egg-production industry has a “tight profit margin”; industry
    experts estimate that an average profit is approximately 6.7
    cents per dozen eggs sold. If a national egg producer were
    able to determine the production rates of its smaller
    competitors, it could direct its resources toward that market;
    and if the national producer were able to offer lower prices,
    “even a penny can make a huge difference” in the local
    company’s ability to keep its customers.
    Although the information sought may not provide a
    national egg producer with every piece of information that it
    would consider before entering a new market, knowing the
    production capacity of potential competitors could make the
    decision of whether or not to enter a competitor’s market
    easier. By becoming aware of potential limitations in its
    competitors’ production capabilities, a national producer
    could decide to focus all its resources on egg markets in
    ALDF V. FDA                                  11
    which it could out-produce local competitors—whether in
    terms of efficiency, price, or total quantity. See Lion 
    Raisins, 354 F.3d at 1081
    (holding that releasing information that
    allows a raisin farmer to “infer the volume of its competitors’
    raisin sales” could facilitate undercutting and, therefore,
    create a likelihood of substantial competitive harm).
    Plaintiff submitted its own declarations, which asserted
    that the production information it seeks is insufficient to
    affect the market. Nevertheless, under our special standard
    of review for FOIA cases, and in view of the extensive FDA
    affidavits, we see no clear error. The incomplete data could
    allow egg producers to make more accurate—if
    imperfect—estimates of their competitors’ production
    capabilities and sales than they could without the redacted
    information. Due to the competitiveness of the egg-
    production industry, where “even a penny can make a huge
    difference,” even a slight upgrade in the accuracy of
    projections might have a large effect on competition.
    Although the information may not afford egg producers their
    competitors’ exact profit-per-egg statistics, the FDA need
    only establish, as the district court correctly noted, “a
    likelihood of substantial competitive harm, not a certainty.”2
    2
    We are likewise unpersuaded by Plaintiff’s argument that the redacted
    information is already publicly available and, therefore, cannot be
    considered likely to cause substantial competitive harm. The sought-after
    data is more detailed and more specific than anything currently available
    in the public domain. For that reason, Plaintiff’s argument fails. See Wolf
    v. CIA, 
    473 F.3d 370
    , 378 (D.C. Cir. 2007) (“Prior disclosure of similar
    information does not suffice; instead, the specific information sought by
    the plaintiff must already be in the public domain by official disclosure.”);
    Fitzgibbon v. CIA, 
    911 F.2d 755
    , 765 (D.C. Cir. 1990) (“[T]he information
    requested must be as specific as the information previously released.”).
    12                      ALDF V. FDA
    D. Third-Party Discovery
    The district court did not abuse its discretion by denying
    third-party discovery. In response to a summary judgment
    motion, a non-moving party may obtain relief pursuant to
    Federal Rule of Civil Procedure 56(d) if it “shows by
    affidavit or declaration that, for specified reasons, it cannot
    present facts essential to justify its opposition.” A party
    seeking further discovery must show that there is “some basis
    for believing that the information sought actually exists.”
    Blough v. Holland Realty, Inc., 
    574 F.3d 1084
    , 1091 n.5 (9th
    Cir. 2009) (internal quotation marks omitted). Further, a
    party seeking discovery must show that it lacks the “essential
    facts” to resist the summary judgment motion. Cal. Union
    Ins. Co. v. Am. Diversified Sav. Bank, 
    914 F.2d 1271
    , 1278
    (9th Cir. 1990).
    Plaintiff here sought additional discovery to show that the
    sought-after information was already publicly available. The
    district court ruled that the evidence Plaintiff sought was not
    sufficiently similar to the information requested through
    discovery; Plaintiff’s request was grounded in speculation;
    and allowing discovery of “an individual farm’s egg
    production could improperly give Plaintiff information that
    it could not obtain through its FOIA request.” That ruling fell
    within the district court’s range of discretion.
    AFFIRMED.
    ALDF V. FDA                         13
    PER CURIAM, concurring:
    We write separately to explain why we think that our
    circuit should reconsider the standard of review that we apply
    to summary judgments in FOIA cases.
    We generally review de novo a district court’s grant of
    summary judgment. “Summary judgment is appropriate
    when, viewing the evidence in the light most favorable to the
    nonmoving party, there are no genuine questions of material
    fact and the district court correctly applied the underlying
    substantive law.” Campbell v. PricewaterhouseCoopers,
    LLP, 
    642 F.3d 820
    , 824–25 (9th Cir. 2011). Typically, of
    course, the district court does not make factual findings at
    summary judgment. Rand v. Rowland, 
    154 F.3d 952
    , 957 n.4
    (9th Cir. 1998) (en banc).
    In FOIA cases, by contrast, we allow the district court to
    make factual findings, and we review those findings for clear
    error. Schiffer v. FBI, 
    78 F.3d 1405
    , 1409 (9th Cir. 1996).
    That peculiar standard means that a dispute of material fact
    does not necessarily defeat summary judgment. See
    Yonemoto v. Dep’t of Veterans Affairs, 
    686 F.3d 681
    , 688 n.5
    (9th Cir. 2012) (“Our cases do not explain why [we review
    for clear error], and one can question whether it should be.
    By definition, summary judgment may be granted only when
    there are no disputed issues of material fact, and thus no
    factfinding by the district court.”). But we see no good
    reason to depart from our traditional standard of review in
    FOIA cases. See generally Rebecca Silver, Comment,
    Standard of Review in FOIA Appeals and the Misuse of
    Summary Judgment, 73 U. Chi. L. Rev. 731 (2006) (arguing
    that de novo review should apply in FOIA appeals).
    14                      ALDF V. FDA
    As a threshold matter, “[s]ummary judgment is the
    procedural vehicle by which nearly all FOIA cases are
    resolved.” Office of Information Policy, U.S. Dep’t of
    Justice, Guide to Freedom of Information Act: Litigation
    Considerations 104 (2013). In this case, though, the parties
    presented contradictory declarations as to the likelihood of
    substantial competitive harm, making summary judgment an
    inappropriate vehicle for resolving that issue. See In Def. of
    Animals v. U.S. Dep’t of Agric., 
    501 F. Supp. 2d 1
    , 8 (D.D.C.
    2007) (stating that summary judgment in a FOIA case is
    “improper” when a “dispute is genuine and factual,” even
    though the contention on which it is based may be “doubtful
    on the basis of the evidence before the court”); Pub. Citizen
    Health Research Grp. v. FDA, 
    953 F. Supp. 400
    , 403 (D.D.C.
    1996) (concluding that “contradictory” claims by the parties
    made summary judgment “an inappropriate vehicle” for
    resolution of a FOIA case and scheduling a bench trial).
    Our past cases reasoned that we owe substantial deference
    to the district court in FOIA cases because of their unique
    nature. See, e.g., Assembly of Cal. v. U.S. Dep’t of
    Commerce, 
    968 F.2d 916
    , 919 (9th Cir. 1992). “Because
    there will rarely be any genuine issues of material fact—the
    document says whatever it says—the case may usually be
    decided on summary judgment.” 
    Id. To make
    its decision,
    the district court often reviews sensitive documents in
    camera, a process that we have described as “a trial on a
    hidden record.” 
    Id. The district
    court’s characterization of
    the document in this context “more closely resembles a
    finding of fact than a conclusion of law.” 
    Id. Therefore, we
    grant substantial deference to the district court. Id.; see also
    
    Schiffer, 78 F.3d at 1409
    (“[W]e endorsed the [clear error]
    standard because in FOIA cases the district court’s findings
    ALDF V. FDA                                  15
    of fact effectively determine our legal conclusions.” (internal
    quotation marks omitted)).
    Although the FOIA statute requires that district courts
    “determine the matter de novo,” it is silent as to the
    appropriate standard of review for appellate courts. 5 U.S.C.
    § 552(a)(4)(B).1 We originally adopted our deferential
    standard of review in reliance on a D.C. Circuit Court’s
    footnote, without explanation. See Church of Scientology of
    Cal. v. U.S. Dep’t of Army, 
    611 F.2d 738
    , 743 (9th Cir. 1980)
    (citing Mead Data Cent., Inc. v. U.S. Dep’t of Air Force,
    
    566 F.2d 242
    , 251 n.13 (D.C. Cir. 1977)). The D.C. Circuit
    has since abandoned the FOIA-specific standard of review,
    and it now applies ordinary summary judgment principles in
    FOIA cases. See Petroleum Info. Corp. v. U.S. Dep’t of
    Interior, 
    976 F.2d 1429
    , 1433 & n.3 (D.C. Cir. 1992) (noting
    that the D.C. Circuit “applies in FOIA cases the same
    standard of appellate review applicable generally to summary
    judgments” but that, in contrast, the Ninth Circuit applies “a
    clearly erroneous standard”). Likewise, the Second, Sixth,2
    1
    The relevant portion of the statute reads: “On complaint, the district
    court . . . has jurisdiction to enjoin the agency from withholding agency
    records and to order the production of any agency records improperly
    withheld from the complainant. In such a case the court shall determine
    the matter de novo, and may examine the contents of such agency records
    in camera . . . .” 5 U.S.C. § 552(a)(4)(B).
    2
    Like the D.C. Circuit, the Sixth Circuit originally had a deferential
    standard of review similar to our own but has since done away with it.
    Compare Ingle v. Dep’t of Justice, 
    698 F.2d 259
    , 267 (6th Cir. 1983)
    (“Initially, the reviewing court must establish that the district court had an
    adequate factual basis for its decision. Secondly, the court on appeal must
    ascertain upon the factual foundation developed below if the conclusion
    of the trial court is clearly erroneous.”), with Jones v. FBI, 
    41 F.3d 238
    ,
    242 (6th Cir. 1994) (reviewing de novo the district court’s grant of
    16                          ALDF V. FDA
    Eighth, and Tenth Circuits also apply de novo review when
    evaluating FOIA summary judgment decisions. See TPS, Inc.
    v. U.S. Dep’t of Def., 
    330 F.3d 1191
    , 1194 n.5 (9th Cir. 2003)
    (collecting cases).
    We acknowledge that some other circuits appear to use a
    deferential standard of review similar to our own. See Silver,
    73 U. Chi. L. Rev. at 740–43. But those circuits all appear to
    have adopted the standard without explanation or analysis,
    and at least one has questioned whether a deferential standard
    of review is appropriate. See Stephenson v. IRS, 
    629 F.2d 1140
    , 1144 (5th Cir. 1980); Chilivis v. SEC, 
    673 F.2d 1205
    ,
    1210 (11th Cir. 1982); Antonelli v. DEA, 
    739 F.2d 302
    , 303
    (7th Cir. 1984) (per curiam); Lame v. U.S. Dep’t of Justice,
    
    767 F.2d 66
    , 70 (3d Cir. 1985); Willard v. IRS, 
    776 F.2d 100
    ,
    104 (4th Cir. 1985). But see Flightsafety Servs. Corp v. Dep’t
    of Labor, 
    326 F.3d 607
    , 611 n.2 (5th Cir. 2003) (per curiam)
    (noting the circuit split and choosing not to take a firm stand
    because the case’s outcome remained “the same whether the
    district court’s judgment [was] reviewed de novo or for clear
    error”).
    De novo review would be consistent with our usual
    summary judgment standards. As the Second Circuit has
    explained, de novo review also is consistent with FOIA’s
    history and purpose:
    In striking a balance between the incompatible
    notions of disclosure and privacy when it
    summary judgment in a FOIA case), and ACLU of Mich. v. FBI, 
    734 F.3d 460
    , 465 (6th Cir. 2013) (holding, in a FOIA case, that “[t]he propriety of
    the district court’s grant of summary judgment is likewise reviewed de
    novo on appeal”).
    ALDF V. FDA                         17
    enacted FOIA in 1966, Congress
    established—in the absence of one of that
    law’s clearly delineated exemptions—a
    general, firm philosophy of full agency
    disclosure, and provided de novo review by
    federal courts so that citizens and the press
    could obtain agency information wrongfully
    withheld. De novo review was deemed
    essential to prevent courts reviewing agency
    action from issuing a meaningless judicial
    imprimatur on agency discretion. We are not
    unmindful of the institutional pressures that
    might make a more deferential standard of
    review seem appealing. Yet . . . the de novo
    standard is more faithful to the text, purpose,
    and history of FOIA . . . .
    Halpern v. FBI, 
    181 F.3d 279
    , 288 (2d Cir. 1999) (citations,
    internal quotation marks, and paragraph break omitted).
    Even if we assume that the sensitive nature of documents
    withheld under a FOIA exemption calls for deference in some
    contexts, why we defer to the district court in cases such as
    this one—where the factual inquiry on which the summary
    judgment turns is one that does not depend on a review of
    withheld information—remains unclear. Here, the district
    court found that the release of the egg-production data was
    likely to cause substantial competitive harm by reviewing
    declarations and testimony that went well beyond, and
    depended little on, the redacted information. That review
    process did not concern what the documents said; rather, it
    centered on what effect their release would have because of
    the kind of data involved. The district court ultimately
    decided that the FDA’s declarations were more persuasive
    18                      ALDF V. FDA
    than those submitted by Plaintiff. But the district court was
    in no better position to make that determination at summary
    judgment than we are on appeal. See Grand Cent. P’ship,
    Inc. v. Cuomo, 
    166 F.3d 473
    , 478 n.2 (2d Cir. 1999) (holding
    that, in a FOIA case where “no witnesses were heard and no
    credibility findings were made,” “the district court was in no
    better position to evaluate the record than” the circuit court).
    In sum, if ordinary principles applied, summary judgment
    would not be appropriate because the record contains a
    disputed issue of material fact, and we would reverse and
    remand for further proceedings. Under our current FOIA
    standard, however, we must affirm. We urge our court to
    take up, en banc, the appropriate standard of review in FOIA
    cases.
    

Document Info

Docket Number: 13-17131

Filed Date: 4/11/2016

Precedential Status: Precedential

Modified Date: 4/12/2016

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