ADMINISTRATIVE LAW - THE FOIA AND ONLINE PRIVACY: TENTH CIRCUIT PERMITS ORGANIZATION TO PUBLISH IDENTITIES OF PRIVATE CITIZENS ONLINE - FRIENDS OF ANIMALS V. BERNHARDT, 15 F.4TH 1254 (10TH CIR. 2021).

• Author: Duhamel, Spencer

Congress enacted the Freedom of Information Act (FOIA) to allow the public to access records and information held by federal administrative agencies. (1) Yet, the access granted through the FOIA is not unlimited because Congress provides exemptions in 5 U.S.C. [section] 552(b)(1)-(9) to prevent disclosure of certain information. (2) In Friends of Animals v. Bernhardt (3), the United States Court of Appeals for the Tenth Circuit decided whether the U.S. Fish & Wildlife Service (FWS) properly withheld the identities of giraffe and elephant importers under FOIA Exemptions 4, 6, or 7(C). (4) The Court, as a matter of first impression, held FWS's withholding of the identities of giraffe importers (Giraffe Requests) was proper, but the FWS's withholding of the identities of the elephant importers (Elephant Requests) and the business information FWS withheld under FOIA Exemption 4 was not proper. (5)

Friends of Animals (FoA) is a nonprofit animal rights organization. (6) To facilitate FoA's goal, FoA relies upon the FOIA and the Fish and Wildlife Service (FWS) to obtain information regarding the exotic wildlife trade. (7) In 2018, FoA made the Giraffe Requests and Elephant Requests, seeking information from FWS regarding the identification of American importers of giraffe and elephant parts. (8) As a response to these two requests, FWS sent FoA a combination of redacted and unredacted information; citing FOIA Exemption 6 and 7(C) as their basis for redacting. (9)

Upon receiving redacted information from the FWS, FoA appealed under the FOIA. (10) After FWS's denial of FoA's administrative appeal, FoA filed suit in the United States District Court for the District of Colorado "challenging FWS's redactions of importer names." (11) At the outset of the district court litigation, both parties moved for summary judgment and the district court "denied [FoA's] motion but granted FWS's, entering judgment for FWS on all claims." (12) FoA then appealed to the United States Tenth Circuit Court of Appeals. (13) The Tenth Circuit held, as a matter of first impression, the information in the elephant request material was improperly withheld because the "personal privacy interest at stake is outweighed by the public interest in disclosure[,]" and the information in the giraffe request material was properly withheld because there is no cognizable public interest in such information. (14)

Congress enacted the FOIA in 1966 for the purpose of allowing the public to access information pertaining to the myriad of governmental agencies. (15) The FOIA's purpose was to address the restrictive process for the public to access information through the Administrative Procedure Act. (16) When drafting of the exemptions to FOIA disclosure, however, Congress was cognizant of the need for a balancing of the privacy interests of individuals and protecting certain secret governmental information. (17)

FOIA Exemption 4 protects from disclosure of "trade secrets and commercial or financial information obtained from a person and privileged or confidential." (18) Additionally, FOIA Exemptions 6 and 7(C), largely protects the same type of material--personal information where disclosure carries risk of unwarranted invasion of personal privacy. (19) In analyzing whether Exemption 6 and 7(C) apply, courts balance the public interest in disclosure against the individual privacy interest. (20) The key difference between the two exemptions, however, is under Exemption 6, the disclosure must "clearly constitute an unwarranted invasion of privacy," while Exemption 7 only requires disclosure to be "reasonably expected to constitute an unwarranted invasion of privacy"--a much less burdensome standard. (21)

Courts employ a balancing test of privacy and disclosure interests to determine whether Exemptions 6 and 7(C) apply. (22) Courts have recently broadened what constitutes a privacy interest for the FOIA Exemption 7(C) by applying it to (i) families of the person whose privacy interest is at stake, (ii) situations where the release of information would damage an individual's reputation, and (iii) information relating to an individual's criminal past. (23) Specifically, both the Supreme Court and legal scholars recognize a legitimate privacy interest in preventing actors from posting an individual's personal information on the internet. (24)

In Friends of Animals v. Bernhardt, the Tenth Circuit Court of Appeals considered whether FWS properly responded to FoA's FOIA request for the names of elephant and giraffe importers under Exemptions 6 and 7(C), and properly withheld information on a Form 3-177 submitted by an exotic leather business under Exemption 4. (25) The Tenth Circuit Court of Appeals held, as a matter of first impression, FWC's withholding of the Giraffe Requests information was proper, but withholding information regarding both the Elephant Requests and business information was not proper. (26) In arriving at its conclusion, the Court employed a three-part test to determine whether the withheld information was protected by Exemption 7(C): "(1) the information must have been gathered for a law enforcement purpose; (2) there must be a personal privacy interest at stake; and, if so, (3) the privacy interest must outweigh the public interest in disclosure." (27) In employing the three-part Exemption 7(C) test, the Court held there was no reasonable expectation that disclosure would constitute of an unwarranted invasion of privacy with respect to the Elephant request information. (28)

However, the Court concurrently held there was a reasonable expectation that disclosure would constitute an unwarranted invasion of privacy with respect to the Giraffe Requests because giraffe trading is not federally regulated, whereas elephant trading is federally regulated. (29)

Though Chief Judge Tymkovich concurred in finding there was no "cognizable interest" regarding the Giraffe Requests, he dissented with respect to finding disclosure of the Elephant request information was proper. (30) According to the Chief Judge, the Court misapplied the precedent by not taking into account the "likely consequences" of disclosure, such as the publication on social media identifying exotic animal importers. (31) The Chief Judge's concurrence also took issue with the majority's finding that FWS adequately pleaded facts sufficiently to evidence likely consequences of disclosure. (32) The concurrence further argued the disclosure of such personal information sheds little to no light on FWS's duties as a government agency, which is one of the main purposes of the FOIA. (33) The majority found the public interest in disclosure with respect to the Elephant Requests outweighed the privacy interest in withholding disclosure, chiefly justified by purporting to use the information to hold the FWS service accountable in regulating the elephant trade. (34)

Though the primary purpose of the FOIA is to hold governmental agencies accountable and to ensure transparency in complex and bureaucratic processes, the Tenth Circuit Court of Appeals erred in finding substantial public interest in disclosure with respect to the FWS Elephant Requests, effectively opening the door to invasions of personal privacy by means of the FOIA, especially in the internet age. (35) As the dissent highlights, the purpose of the FOIA Exemptions is to prohibit disclosure of personal information when there is de minimis public interest in disclosure. (36) In Friends of Animals, there was minimal public interest in disclosure because the information concerned the actions of individual citizens, not FWS as a regulatory agency. (37)

The Court also blurs the line between the tests under FOIA Exemptions 6 and 7(C). (38) The Court purports to employ the Exemption 7(C) "reasonable expectation" test since it is more "protective of individual privacy interests" than the narrower Exemption 6, "clearly constitute" test. (39) In applying the Exemption 7(C) "reasonable expectation" test, the Court uses a line of reasoning consistent with the Exemption 6, "clearly constitute" test by implying FWS would need to plead more than "mere speculation" of harm to withhold the identity of the individual importers, which demands far beyond the reasonable expectation test under Exemption 7(C). (40) By applying the Exemption 7(C) test, the Court should have only required a showing of reasonable expectation that disclosure of the names to FoA, in particular, would constitute an unwarranted invasion of individual privacy interest--a burden FWS met in their pleading. (41)

Lastly, the Tenth Circuit's majority opinion did not adequately consider the individual privacy interests implicated in online publication of personal information. (42) Since the advent of the internet age, courts have suggested further protection of individual privacy interest in the Exemption 7(C) balancing test is necessary when there is foreseeable risk of online harassment. (43) In Friends, FoA intended to use the information it received from FWS to publish the identities of the importers on their popular online blog in a retributive manner as they have previously; this effectively opens the door to other third parties using the FOIA as a guise to collect and electronically publish information about private citizens. (44)

In Friends of Animals v. Bernhardt, the Tenth Circuit Court of Appeals decided whether FWS's withholding of information concerning the identities of giraffe and elephant importers was proper under FOIA Exemptions 6 and 7(C). Though the trade and sale of elephant parts is federally regulated and disclosed to the public in other contexts, the Court failed to enforce both the congressional purpose and the Court's precedent in exempting personal information from disclosure when there is de minimis public interest in disclosure. While trafficking of exotic animals is a highly contentious activity, the Court should not use the sensitive subject matter...