Hen Friends Lose Bid for Texas Egg Farm Data

(CN) - Competitive interests justify keeping animal-rights activists in the dark about hen populations at Texas egg farms, the Ninth Circuit ruled Monday.

Hen numbers were just one category of information the U.S. Food and Drug Administration withheld in its response to the 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 led Chief U.S. Magistrate Judge Elizabeth Laporte to find just one category of information withheld improperly: the number of birds per cage at each farm.

As for the other categories, the San Francisco court agreed that the possibility of competitive harm supported keeping such data under wraps.

The ALDF appealed but a three-judge panel of the Ninth Circuit affirmed Monday.

"Whether or not releasing the requested data would create a likelihood of substantial competitive harm was subject to dispute," Judge Susan Graber wrote for the court. "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 information at issue may not answer all of competitor's questions about entering a new market, but "knowing the production capacity of potential competitors could make the decision of whether [to compete] easier," Graber added.

Graber disagreed with the ALDF that piecemeal information could not help too much.

"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," the 12-page opinion states (emphasis in original). "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."

As to the ALDF's claim that more discovery would show that the sought-after information was already publicly available, the Ninth Circuit upheld Laporte's finding that this "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.'"

Monte Cooper, an attorney for the ALDF with Orrick Herrington & Sutcliffe in Menlo Park, Calif., did not immediately return a phone call seeking comment.

In addition to the lead opinion by Graber, the Ninth Circuit included an unsigned concurring opinion urging reconsideration of the standard of review that the Ninth Circuit applies to summary judgments in FOIA cases.

"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."

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