Demand for Hen Numbers Squawks in En Banc Court

     SAN FRANCISCO (CN) — The en banc Ninth Circuit left little room Friday for animal-rights activists to battle federal regulators about the number of hens roosting in Texas egg farms.
     Hen numbers were just one category of information the U.S. Food and Drug Administration withheld in its response to a 2011 request by the Animal Legal Defense Fund under the Freedom of Information Act.
     Though the FDA supplied 398 pages of records about egg production in Texas, 297 of those pages included redactions.
     In addition to omitting total hen population, the FDA redacted the 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.
     A lawsuit by the ALDF in San Francisco led a federal judge to find just one category of information withheld improperly: the number of birds per cage at each farm.
     As for the other categories, Chief U.S. Magistrate Judge Elizabeth Laporte agreed that the possibility of competitive harm supported keeping such data under wraps.
     Though a three-judge panel of the Ninth Circuit affirmed this past April, the federal appeals court later vacated that decision in favor of en banc consideration.
     The April ruling in this case had included an unsigned concurring opinion that urged reconsideration of the standard of review.
     “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,” the opinion states. “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.”
     Taking up the panel’s call, the court focused on what standard of review the case merits and said Friday that the three-judge panel got it right.
     The controversy stems from the application of de novo review for cases resolved by summary judgment, in contrast to FOIA summary judgments containing genuine disputes of material fact. In the latter cases, the circuit would use a “clearly erroneous” standard that treats the district court’s ruling like a bench trial and determine whether its conclusions of fact contained clear error.
     Application of the de novo standard here is in keeping with its sister circuits and the spirit of the FOIA, the court found.
     “Consistent with our usual procedure, if there are genuine issues of material fact in a FOIA case, the district court should proceed to a bench trial or adversary hearing,” the unsigned opinion states. “Resolution of factual disputes should be through the usual crucible of bench trial or hearing, with evidence subject to scrutiny and witnesses subject to cross-examination.”
     The court returned the matter to the panel for a merits ruling. Since the court said the panel applied the right standard, a ruling similar to that issued in April is expected.
     Monte Cooper from Orrick, Herrington & Sutcliffe in Menlo Park, Calif., represents the ALDF.
     Justice Department attorney Dara Smith represents the FDA.
     The Center for Food Safety in San Francisco submitted an amicus brief in the case.
     Discussing the development in an interview, that group’s attorney Caitlin Zittkowski noted that FOIA is an indispensible tool for food-safety advocates.
     “Having the appropriate standard of judicial review ensures advocates have access to this information through FOIA,” Zittkowski said. “We wouldn’t be able to do the work we do without it.”
     The Department of Justice declined to comment, and attorney Cooper has not returned a request for comment.

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