Public Citizen represents the Animal Legal Defense Fund (ALDF) on appeal in a longstanding Freedom of Information Act case against the Food and Drug Administration (FDA).
Under its authority to protect the public from consuming adulterated foods, the FDA conducts inspections of egg production establishments to, among other things, prevent the contamination of eggs with Salmonella. In 2011, Animal Legal Defense Fund—concerned about both animal welfare and public safety—submitted FOIA requests to the FDA seeking information to enable it to assess the agency’s effectiveness in preventing and identifying unsanitary conditions associated with diseases like Salmonella and bird flu. When the FDA withheld some of the requested information, Animal Legal Defense Fund filed a lawsuit. The district court held a trial concerning whether withheld information falling into five categories—the total hen population, the number of hen houses, the number of floors per house, the number of cage rows per house, and the number of cage tiers per house—was exempt from disclosure under FOIA exemption 4 as “confidential” commercial information. Following trial, the district court ruled that only the total hen population was exempt and ordered the FDA to disclose the withheld information in the other four categories.
The FDA appealed the district court’s ruling to the Ninth Circuit. While the FDA’s appeal was pending, the Supreme Court issued its decision in Food Marketing Institute v. Argus Leader, rejecting the longstanding substantial competitive harm test for “confidential” information applied by every federal court of appeals to have considered the question and holding that information is “confidential” within the meaning of exemption 4, where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy. The Supreme Court left open, however, the question whether information can fall within exemption 4 without a government assurance of confidentiality. That open question is the focus of the FDA’s appeal in this case.