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Judge rules FDA can’t withhold information about egg production facilities

A federal judge on Friday ruled in favor of an animal advocacy group that sought to obtain unredacted government reports about egg producers in Texas.

(CN) — A federal judge on Friday ruled in favor of an animal advocacy group that sought to obtain unredacted government reports about egg producers in Texas.

In 2011, the Animal Legal Defense Fund requested inspection reports covering egg safety and production in Texas from the Food and Drug Administration. The government agency produced the reports but redacted information such as total hen population per facility and number of birds per cage. 

The FDA said the information fell under Exemption 4 in the Freedom of Information Act that protects “trade secrets and commercial or financial information.”

In a 13-page opinion, U.S. Magistrate Judge Kandis Westmore disagreed, finding that the FDA “has not met its burden of showing that the Hen Housing Information falls within Exemption 4” and ordered the government to provide the advocacy group the unredacted documents within 30 days.

Westmore said the egg producers did not take steps to keep such information private.

“Again, the undisputed facts show that workers and, in particular, suppliers and servicers were able to freely disclose the Hen Housing (Information),” she wrote.

The ruling marks a win for the advocacy group in the long-standing litigation. In 2019, a trial judge ruled that the total number of hens was covered by the exemption, but “ordered the disclosure of the number of hen houses, number of floors per hen house, number of cage rows per hen house, and number of cage tiers per hen house.”

The government appealed that ruling to the Ninth Circuit. While on appeal, the Supreme Court ruled in Food Marketing Institute v. Argus Leader Media that “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 information is ‘confidential’ within the meaning of Exemption 4.”

The Ninth Circuit subsequently remanded the case in January 2020, with instructions to apply the Food Marketing Institute ruling. It was that standard that Judge Westmore used to approve the Animal Legal Defense Fund’s motion for summary judgment, taking into question the government’s argument that the egg-producing facilities used security measures to keep such information private.

“Thus, the Court finds there is a question of fact as to whether these security measures were done for the purpose of maintaining confidentiality, rather than for biosecurity purposes only,” she wrote.  

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