November 29, 2016

Guidance for Responding to U.S. Fish and Wildlife Service Notice Concerning FOIA Disclosure in Response to Center for Biological Diversity Request

Dear SCI Member,

As explained in a blog and Crosshairs article (here), the U.S. Fish and Wildlife Service (FWS) is considering whether to release information to  the Center for Biological Diversity (CBD) about the import and export of wildlife into and from the United States.  The Federal Register Notice explaining the situation is located at 81 Fed. Reg. 85255 (Nov. 25, 2016), which relates to Center for Biological Diversity v. U.S. FWS, No. 16-00527.  This notice and comment opportunity is similar to, but different than, the Humane Society International (HSI) notice and comment opportunity that ended earlier this month.   

Among other things, CBD requested the names of the U.S. and foreign importers and exporters, and the declared value of wildlife specimens.  As part of that process, the FWS is notifying all those who might be identified in the response to CBD’s request to find out whether those individuals and/or entities object to the release of their information.  The years at issue are 2005-present.  SCI understands that the FWS received the information about imports/exports primarily from FWS Form 3-177 (Declaration for Importation or Exportation of Fish and Wildlife).  Information about this form can be found here

Even if you sent an objection to the FWS regarding the HSI request, you would need to send another objection regarding the CBD request.  You will have to change certain aspects of the objections, so do not simply send in the same letter (although much of the content can stay the same). 

Please forward this alert to any SCI member or any others in the hunting community who you think may be affected by the FWS’s possible disclosure of their information.  Keep in mind that this notice applies to both U.S. and non-U.S. members of the hunting community.

Whether you Should Object

If you believe that you are an individual or that you represent a business that is covered by CBD’s request, you must decide whether to respond to the FWS’s notice.  If you do not object to the FWS releasing this information about you or the business, the FWS has stated that you do not need to take any action.  However, it is important to understand that if you do not file a response objecting to the disclosure of your information, the FWS will presume that you do not object to the release of your information.

SCI is aware that the FWS has explained that it believes that the potential disclosure applies only to businesses and that it does not intend to release information about the identities of private individuals who import/export wildlife.  Until the FWS issues a formal statement to this effect, SCI remains concerned about potential disclosure of information to CBD and still believes that there may be good reason for individuals to object to the potential disclosure of their personal information, or at least to contact the FWS to question whether the FWS has any intention of releasing any information about their identity to CBD or others.  

Note that documents sent to the FWS that object to the disclosure of information become part of the FWS’s records and are themselves potentially subject to disclosure upon request.  For that reason, our sample language for individuals includes a demand that the FWS not disclose the information provided in objections.

Inquiring Whether the FWS Has Your Information and May Disclose It

The FWS has stated that: “[u]pon request, FWS will provide submitters the relevant submitter information that FWS found to be responsive to CBD’s requests.”  If you want to confirm that the FWS possesses information about you and/or your business that could be released to CBD, the FWS recommends that you contact Michael Jenkins at the FWS, 703-358-1949.  If Mr. Jenkins or someone else in the FWS confirms that they do not have information about you subject to disclosure under these FOIA requests, and you are satisfied with their response, you may not need to send any objections.

How to Object 

If you do object, you must do so in writing and must submit your written response to the FWS by December 16, 2016.  You may send your objection to the release of the information in one or more of three ways:

U.S. Fish and Wildlife Service
Office of Law Enforcement (FOIA)
5275 Leesburg Pike (MS: OLE)
Falls Church, VA  22041

Please send your response directly to the FWS.  Do not send your response to SCI as we cannot take responsibility for responding on your behalf.

We suggest that you send your response in a way that you can verify your sending and the FWS’s receipt of your response.  For example, by sending your objection via Certified Mail, you can create a record of delivery. 

Your response should clearly identify its purpose.  The FWS has stated that any communication must reference the following:  Center for Biological Diversity v. U.S. FWS, No. 16-00527.  To enable the FWS to contact you if necessary, we suggest that you provide them with your contact information. 

Discussion of Sample Language for Your Objection

SCI is making available sample language to consider including in your objection to the FWS.  We have included three different sets of sample language:

(1) language for use by individuals who have imported/exported trophies and who have no ongoing trade or business of any kind that could be affected by the disclosure of the individual’s identity to CBD and/or the general public;

(2) language for use by individuals who have imported/exported trophies and who have an ongoing trade or business (whether or not it is related to the import or export of wildlife) that could potentially be harmed by the release of the individual’s identity to CBD and/or the general public; and

(3) language for use by companies that are in the business of assisting others to import/export wildlife. 

Any person or business that might have their identity disclosed in a Form 3-177 should consider objecting.  Please select the sample language that applies to your situation and use only that sample to assist you in preparing your own objection.

The sample language does not necessarily provide all the information the FWS will need to consider your objection.  In the sample language, we attempt to explain what you must provide and offer some points you can make to support your objection.  You will, however, need to tailor your own letter to your particular situation and provide the needed details to make it specific to your circumstances.

The Need to Review the FWS’s Documents

Please review the FWS’s notification document and do not rely exclusively on this alert to decide if and how you should respond.  Before deciding whether and how to object to the release of your information, you should carefully review the FWS’s own document explaining the situation.  The notice is contained in a Federal Register notice published on November 25, 2016.  You can read the notice here.

Disclaimer 

SCI is providing this document for informational purposes only.  It is not intended as legal advice.  SCI and any recipient of this communication have not established an attorney-client relationship.  Any communication between you and SCI’s attorneys may not be confidential. 

SCI drafted the sample text below as templates of possible language for you to include in your own letter.  Some of the suggested language may not apply to your specific situation.  You will need to modify and change the sample language below to best fit your needs.  In addition, SCI cannot guarantee that using the sample language in your objection to the FWS will prevent the FWS from disclosing your information.

If you have questions about objecting to disclosure of your information, the FWS directs you to contact Michael Jenkins at the FWS, 703-358-1949.  Alternatively, SCI members and others who have concerns about potential harm from the disclosure of their identities to CBD or other concerns or questions should consult with qualified private attorneys to protect their interests. 

A Summary of the Information the FWS Seeks in an Objection

After receiving the FOIA request from CBD, the FWS concluded that certain information that it had collected and that it keeps in a database called the Law Enforcement Management Information System (LEMIS) may be exempt from disclosure under FOIA.  The FWS uses the LEMIS to track information about the import/export of wildlife into/from the United States.  The FWS believes that one or more of three FOIA exemptions to disclosure may apply to some of the information requested by CBD – Exemptions 4, 6, and 7(C). 

SCI can only offer limited suggestions for businesses affected by CBD’s FOIA requests.  If you represent a business that imports or exports wildlife and your information was included on a Form 3-177 for imports during years 2005-present, by you or someone else, your identity is likely in the LEMIS.  If so, your information would potentially be subject to disclosure under CBD’s request. 

The Federal Register notice sets out the information you must provide to show (1) that your identity in association with the import/export of wildlife and with the value of the wildlife qualifies as confidential commercial or financial information, and (2) that disclosure of that information to your competitors would harm your business’s ability to compete.  Because support for this claim requires details about your business practices and your relationship with your competitors, SCI cannot provide sample language sufficient to demonstrate all that is required for your individual business.  You will need to provide that information personally. 

Exemption 4 provides different standards for disclosure based on whether you gave the information to the FWS voluntarily or were required to provide it.  In the Nov. 25th Notice, the FWS has taken the position that the information was required.  If that is true, businesses (and possibly individuals) who submit their objections to the FWS may need to satisfy a tougher standard to protect their information.  The sample language provided by SCI argues that the information was given voluntarily.  Nonetheless, if you include arguments addressing both the voluntary and required standards (as described in the Federal Register notice) in your objection, you may improve your ability to persuade the FWS not to release your information. 

Note also that the sample language may not apply to every individual or business that is potentially affected by the FWS’s Federal Register notice.  If a sentence or paragraph does not apply to you or your business’s circumstances you should delete or modify the sentence or paragraph.  You should also modify the language in any way necessary to ensure it is accurate for your situation.

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