Withholding of Egg Data Challenged in Rare FOIA Trial

SAN FRANCISCO (CN) – Revealing details about the living conditions of hens would give business rivals an edge and irreparably harm small egg producers in Texas, an egg company executive testified Thursday on the first day of a rare Freedom of Information Act bench trial.

“That information will give a competitor a pretty good indication of what our cost of production is and also¬†what our capacity is,” said David Elbel, president of Feather Crest Farms, based in Bryan, Texas.

Elbel was the first witness in a rare bench trial over whether the U.S. Food and Drug Administration can exclude details from Texas egg farm inspection reports on the number of hens and hen houses along with cage rows, tiers and floors per hen house.

The Animal Legal Defense Fund sued the FDA in 2012 for withholding that information from 2011 inspection reports. In October 2016, the Ninth Circuit reversed a ruling that disclosure was likely to cause competitive harm and sent the case back to district court for a bench trial.

It’s one of only a few dozen Freedom of Information Act lawsuits ever to make it to trial. Fewer than 86 FOIA cases have gone to trial since 1970, according to the Federal Judicial Center database.

The public has a strong interest in learning details about hen population density and living conditions, argues Christopher Berry, a staff attorney with the Animal Legal Defense Fund.

“Overcrowding hens has obvious detrimental effects on animal welfare, but those conditions also can cause diseases such as bird flu and salmonella to arise and fester as well,” Berry said in a phone interview earlier this week. “The public has a right to know what’s going on in these farms and what the FDA is doing to protect the public interest.”

Berry argued that the FDA recently revealed some of the data it claims is confidential when it announced a voluntary recall of more than 206 million eggs due to a salmonella outbreak last week.

In court Thursday, U.S. Justice Department attorney Michelle Lo said in her opening statement that the FDA has “never publicly disclosed” the specific numbers at issue in this case.

From the witness stand, Elbel warned U.S. Magistrate Judge Elizabeth Laporte that business rivals could use information on Feather Crest’s operating costs and production capacity to steal its customers.

“If it’s a larger competitor, they could convince a customer that we don’t have the capacity to meet the needs of that customer,” Elbel said.

On cross examination, plaintiff’s attorney Karen Johnson-McKewan asked Elbel why other details that can reveal an egg farm’s production costs are not also kept secret. Those details include the average retirement age of hens, hen breeds, use of conveyer belts for eggs, presence of on-site feed storage, and use of manure removal systems.

Elbel replied that some of that information should be confidential while other details are less important because most commercial egg producers use conveyer belts and have on-site or off-site feed storage.

Johnson-McKewan also showed Elbel Feather Crest’s 2013 filing for a state permit to increase capacity at a Shelby, Texas egg farm to 574,000 hens.

The lawyer asked Elbel if he was aware that the Texas Commission on Environmental Quality publishes those notices publicly.

“That doesn’t show what our capacity is there,” Elbel replied. “It just shows how many birds are permitted there.”

Johnson-McKewan then posed a hypothetical: If a competitor knew an egg farm had 1,000 cages and kept 4 to 5 hens in each cage, how precisely could a rival estimate the egg farm’s production?

Based on that information, one could calculate the egg farm has 4,000 to 5,000 hens, but that estimate could be off by up to 1,000 hens, or 20 percent, she said.

“That’s a pretty big variation for someone who’s trying to estimate your egg production capacity, right?” the lawyer asked.

Elbel acknowledged that is a “fairly big” variation.

In the coming days, both sides will present agricultural economists to testify on whether revealing hen population details will cause competitive harm to egg producers.

The FDA is citing an exemption under the Freedom of Information Act, which allows the government to withhold information from public documents that could reveal trade secrets or confidential business numbers.

Judge Laporte previously ruled in 2013 that disclosing the number of hens per cage was unlikely to cause substantial competitive harm.

The trial is expected to last three to four days, followed by post-trial briefs and closing arguments to be delivered at a later date.

Egg Producers United, an industry group that tried unsuccessfully to intervene in the case as a defendant, did not immediately return a phone call seeking comment Thursday.


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