Animal Legal Defense Fund v. Food & Drug Administration

Opinion by Judge GRABER; per curiam Concurrence.

OPINION

Plaintiff Animal Legal Defense Fund filed a Freedom of Information Act (“FOIA”) request with the Food and Drug Administration (“FDA”) regarding egg-production farms in Texas. The FDA released almost 400 pages of documents but redacted data regarding total hen population, 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 for each farm in question.- Plaintiff filed this FOIA action seeking to compel the FDA to release the redacted data. The district court ordered the release of information regarding the number of birds per cage at each farm. But the court held on summary judgment that, under FOIA Exemption 4, the FDA properly withheld the other categories of information because its release was “likely to cause substantial competitive harm.” See 5 U.S.C. § 552 (b)(4). • We affirm.

FACTUAL AND PROCEDURAL HISTORY

In late 2011, Plaintiff submitted a FOIA request to the FDA that sought the following:

The FDA released records related to inspections of eleven chicken egg-production facilities; one quail egg-production facility and food…

concurring:

We write separately to explain why we think that our circuit should reconsider the standard of review that we apply to summary judgments in FOIA cases.

We generally review de novo a district court’s grant of summary judgment. “Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, there are no genuine questions of material fact and the district court correctly applied the underlying substantive law.” Campbell v. *1110 PricewaterhouseCoopers, LLP, 642 F.3d 820, 824-25 (9th Cir.2011). Typically, of course, the district court does not make factual findings at summary judgment. Rand v. Rowland, 154 F.3d 952 , 957 n. 4 (9th Cir.1998) (en banc).

In FOIA cases, by contrast, we allow the district court to make factual findings, and we review those findings for clear error; Schiffer v. FBI, 78 F.3d 1405, 1409 (9th Cir.1996). That peculiar standard means that a dispute of material fact does not. necessarily defeat summary judgment. See Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 681 , 688 n. 5 (9th Cir.2012) (“Our cases do not explain why [we review for clear error], and one can question whether it should be. By…