Animal activist group plaintiffs have filed Freedom of Information Act requests seeking an enormous amount of data from the U.S. Fish and Wildlife Service relating to the import and export of wildlife specimens, and have sued for release of the data in (at least) two ongoing federal cases.
Any business that imports or exports live animals, furs, skins, bones or specimens for purposes including retail, recreational, educational or scientific research should be aware that such data may be released to the public as part of these expansive FOIA requests, unless the business files a written objection in a timely manner.
The upcoming deadline to submit written comments objecting to the release of the information being sought is December 16, 2016.
The “LEMIS” Information Being Sought
The U.S. Fish and Wildlife Service’s Law Enforcement Management Information System (“LEMIS”) database maintains records on imports and exports of wildlife specimens, which helps the FWS’ Office of Law Enforcement combat illegal wildlife trafficking but also tracks legally imported animals and animal products.
In the cases of Humane Society International v. U.S. FWS, No. 16-720 (D.D.C., filed April 18, 2016) and Center for Biological Diversity v. U.S. FWS, No. 16-527 (D. Arizona, filed Aug. 8, 2016), plaintiffs have sought all electronic LEMIS records for the years 2002 through 2010, 2013 and 2014 (the HSI case) and 2005 to the present (the CBD case). The requested data sets total tens of thousands of entries relating to imports and exports of all animals of any taxonomic class, whether live, dead, parts or products.
Both HSI and CBD (as well as other anti-animal use activist groups such as PETA) file hundreds of FOIA requests annually in an effort to identify the businesses, zoos, scientists and other institutions that use animals or animal parts. Variables such as control number, species code, wildlife description, quantity, unit, country of origin, purpose, port code, value, U.S. importer/exporter and foreign importer/exporter specifically were identified in the requests by HSI. The broad request by the CBD covers similar LEMIS data, as well as information on USFWS Form 3-177, including date of import/export, port of clearance, customs document number, name of carrier, air waybill or bill of lading number, transportation code, U.S. permit numbers, quantity/unit, monetary value, and importer/exporter details.
Businesses should be aware that the public release of such sensitive information could cause significant competitive harm.
FOIA Exemption 4 and Substantial Competitive Harm
In response to HSI’s request, FWS withheld certain portions of the LEMIS data under FOIA Exemption 4, 5 U.S.C. 552(b)(4), which protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential” from disclosure; HSI later sued to challenge FWS’ decision to employ the exemption. In both cases, FWS published notice in the Federal Register that any submitters of import/export information aiming to prevent disclosure must convey to FWS why the records should be exempt. See 81 Fed. Reg. 75838; 81 Fed. Reg. 85255 (Nov. 25, 2016).
Businesses and individuals wishing to object to the release of the LEMIS data must make a compelling argument that public disclosure would cause substantial competitive harm to their business interests. The objections must illustrate how the release of information such as port codes, values and importer/exporter information would provide competitors with a detailed picture of the submitter’s business model as well as foreign vendor sources.
Additionally, private businesses are at risk of suffering competitive harm when “sensitive information” is released, as the information could reveal customer identities or transaction details. In this instance, certain LEMIS listings that identify specific importers, exporters, airline carriers, transport companies or other businesses should be viewed as “sensitive information” because the requesting organization may utilize the information to devise targeted strategies that impact business interests.
Preventing the Release of Your Business’ Information
If you believe that the LEMIS records include data pertaining to your business, you must decide whether to object to the notices posted by FWS in a “detailed written statement.” See 43 C.F.R. § 2.30. Although the time period for objections in the HSI case ended on November 22, 2016, the objection period in the CBD case remains open until December 16, 2016. If you fail to file an objection to the FWS’ release of this information, the FWS likely will presume that you are not contesting the disclosure.
Kelley Drye’s Animal Law Practice Group can assist you in drafting an objection letter that comprehensively details why such data should be viewed as confidential under FOIA Exemption 4 and barred from disclosure. If you choose to send a written objection to FWS on your own, you can send the letter by email to email@example.com; by fax to (703) 358-2271; or by U.S. mail or hand-delivery to U.S. Fish and Wildlife Service, Office of Law Enforcement (FOIA), 5275 Leesburg Pike (MS: OLE), Falls Church, Virginia, 20041.
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