Meyer Glitzenstein & Crystal

FREEDOM OF INFORMATION

PENDING
Animal Abuse: We represent In Defense of Animals (IDA) in a Freedom of Information Act case against the US Department of Agriculture concerning its investigation of, and subsequent enforcement proceeding against, Huntingdon Laboratories, a New Jersey company engaged in animal research. As a result of an undercover investigation by People for the Ethical Treatment of Animals showing deplorable treatment of animals, in 1997-98 the USDA brought its own investigation and charged the company with twenty three violations of the Animal Welfare Act. The USDA and Huntingdon then settled the case with Huntingdon paying a modest penalty and promising to upgrade some of its facilities. The USDA has refused to provide IDA and the public with access to the results of its investigation or the negotiations leading to the settlement, claiming that such information is exempt from FOIA as confidential commercial information. The case went to trial in winter 2008 -- one of the few FOIA cases to go to trial -- and is awaiting a decision.

Animal to Human Transplant: We represented the Campaign For Responsible Transplantation in a challenge to the Food and Drug Administration's withholding of documents relating to clinical trials involving "xenotransplantation" - a new and risky form of biotechnology, in which live animal cells, tissue, and organs are transplanted into the human body to treat disease. This new biotechnology is virtually unregulated by existing laws, and poses many significant ethical, public health, and animal welfare issues. The Court ordered the Food and Drug Administration to justify its position that thousands of records concerning xenotransplantation clinical trials may be withheld from public view under the Freedom of Information Act, See Campaign for Responsible Transplantation v. FDA, 180 F. Supp.2d 29 (D.D.C. 2001), as a result of which many additional documents were released. The Court of Appeals for the D.C. Circuit upheld plaintiffs' eligibility for attorneys' fees, Campaign for Responsible Transplantation v. FDA, 511 F.3d 187 (D.C. Cir. 2007) and the district court agreed that plaintiffs' were entitled to attorneys' fees. See Campaign for Responsible Transplantation v. FDA, 593 F. Supp. 2d 236 (D.D.C. 2009).

Annual Reports on Research Animals: We represented The Humane Society of the United States in a Freedom of Information Act and Administrative Procedure Act case against the U.S. Department of Agriculture (USDA) for the agency's failure to release thousands of research facilities' annual reports to USDA regarding the facilities' use, breeding, and maintenance of live animals, and a list of all the facilities that utilize and maintain ape species. The lawsuit also challenged the USDA's decision to no longer make the research facilities' annual reports electronically available on the USDA's website under the E-FOIA. Following the filing of our complaint in federal court and a Court order to release records, the USDA released many, but not all, of the Annual Reports. Because of the missing Reports, substantial withholdings under Exemption 4 in released Reports, and the USDA's refusal to acknowledge its legal obligation to make the Annual Reports electronically available, we continued to pursue the case. See HSUS v. USDA, Civ. No. 05-197 (D.D.C.). We have recently reached a comprehensive settlement, with USDA argeeing to resume making the reports available to the public on a regular basis.

AIDS Research: On behalf of the Public Citizen Health Research Group and AIDS researcher Dr. Peter Lurie, we challenged the Department of the Army's refusal to release records concerning an internal investigation of whether federally funded research into a possible AIDS vaccine had been misrepresented to the public. The United States District Court for the District of Columbia agreed that there was an enormous public interest in release of the information and required that most of the internal report be disclosed. See Lurie v. Department of the Army, 970 F. Supp. 19 (D.D.C. 1997).

Camp Pendleton Section 7 Consultation: We represented the Center for Biological Diversity in a challenge under the Freedom of Information Act to the Marine Corps' decision to withhold a final Biological Assessment (BA) and other documents regarding the adverse environmental effects of the Marine Corps' military activities on endangered and threatened species located at Marine Corps Base Camp Pendleton. The district court ruled that the BA, and related documents, must be released. See Center for Biological Diversity v. U.S. Marine Corps, No. 00-2387, 2005 WL 3262901 (D.D.C. Sept. 19, 2005).

Cheney Energy Task Force: We were co-counsel with the Natural Resources Defense Council in a Freedom of Information Act case against the Departments of Energy and Interior for records related to the Cheney Energy Task Force. The district court ordered the Department of Energy to turn over responsive records on an expedited schedule, NRDC v. DOE, 191 F Supp. 2d 41 (D.D.C. 2002), and subsequently ordered the release of additional records. See Judicial Watch v. DOE, 310 F.Supp. 2d 271 (DDC 2003), rev'd in part, 412 F.3d 125 (DC Cir. 2005).

Chrysler minivan: We represented auto safety advocate Ralph Hoar & Associates in a successful Freedom of Information Act lawsuit against the National Highway Traffic Safety Administration, regarding videotapes of crash tests showing that the popular Chrysler minivan is unsafe. As a result of the lawsuit, NHTSA reluctantly released the videotapes, which then received enormous coverage in the national news media and demonstrated the serious safety risks posed to owners of the minivan. See Ralph Hoar & Associates v. NHTSA, 985 F. Supp. 1 (D.D.C. 1997) (awarding plaintiffs their attorneys' fees and costs because the lawsuit resulted in release of the videotapes).

Coulston Foundation: On behalf of In Defense of Animals, we challenged the National Institutes of Health's withholding of documents relating to NIH's funding of the Coulston Foundation and the Foundation's violations of the Animal Welfare Act with respect to its treatment of hundreds of chimpanzees used in medical research. Following the filing of our complaint in federal court, NIH agreed to release hundreds of pages of records, and the Court ordered the disclosure of an additional document that NIH sought to withhold.

PENDING
Department of the Interior's Prosecution of Lacey Act Violations:
On behalf of Showing Animals Respect and Kindness, we have challenged the Department of Interior's withholding of records under FOIA which served as the basis for two plea agreements stemming from felony violations of the Lacey Act. Country music singer Troy Gentry conspired to kill a black bear in an enclosed pen and then falsely tag it as killed in the wild. By way of his plea agreement, Gentry received only a fraction of the maximum penalty available. The FOIA lawsuit seeks the records underlying the plea agreements to ensure that the Interior Department zealously prosecuted this case notwithstanding Gentry's celebrity status and to ensure that the Lacey Act is being properly enforced. Showing Animals Respect and Kindness v. U.S. Department of the Interior, Civ. No. 09-877 (D.D.C. 2009).

Endangered Species Conservation Agreements: We represented the Biodiversity Legal Foundation in a lawsuit to compel the US Fish and Wildlife Service to release thousands of pages of agency records which describe how the Service uses voluntary "conservation agreements" to avoid politically controversial "listings" of species as threatened or endangered under the ESA. Plaintiffs moved for summary judgment, arguing that the Service's withholding of more than 200 records was unlawful under the Freedom of Information Act. The U.S. District Court for the District of Columbia ruled in favor of plaintiffs in all respects and ordered the Service to immediately release all withheld records. See DC "Jasper" Carlton v. Department of the Interior, Civ. No. 97-2105 (GK) (Sept. 3, 1998, Order Granting Summary Judgment).

Endangered Species Recordkeeping: On behalf of the Biodiversity Legal Foundation, we challenged the US Fish and Wildlife Service's management and public disclosure of records involving threatened and endangered species. We claimed that the Service was withholding records concerning the endangered Mountain Plover in violation of the FOIA, that important records were either lost or destroyed by the agency, and that the agency had failed to adhere to the recordkeeping requirements of the Federal Records Act. In response to the lawsuit, which was filed in the U.S. District Court in Washington, the Service issued a proposed rule to list the Mountain Plover as a threatened species under the ESA, and also committed to improve its endangered species recordkeeping practices.

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Grizzly Bear Reintroduction FOIA: On behalf of Alliance for the Wild Rockies, we filed a lawsuit in the United States District Court for the District of Columbia, challenging the Fish and Wildlife Service's refusal to release the identities of public commenters on the Service's proposal to reintroduce grizzly bears into the Bitterroot ecosystem in Idaho. The Court granted our motion for summary judgment, ruling that the public has a right to know the identities of public commenters. See Alliance for the Wild Rockies v. Department of the Interior, 53 F. Supp. 2d 32 (D.D.C. 1999).

Military Sonar: We represented Natural Resources Defense Council in a challenge to the National Marine Fisheries Service's (NMFS) refusal to release critical records concerning the Navy's use of mid-frequency active sonar, and its impacts on marine mammals and other marine life. After the agency released some material to NRDC, the parties briefed whether NMFS conducted an adequate search for records and whether it had properly withheld one critical document under Exemption 5. In January 2006, the court ordered NMFS to release the withheld document, and NMFS agreed to conduct a greatly expanded supplemental search for records. As a consequence, NMFS has released many additional documents highlighting the adverse impacts of sonar on many species of marine mammals.

Nutritional Guidelines: We assisted the Physicians' Committee for Responsible Medicine in a challenge to the federal advisory committee responsible for drafting the national nutritional guidelines. The lawsuit, which was brought in the US District Court for the District of Columbia, charged that the committee was dominated by corporate interests and failed to apprise the public of its activities, in violation of the Federal Advisory Committee Act, and the Freedom of Information Act. The district court agreed that, in withholding information about the committee's operations, and members' conflicts, the government had violated FACA and FOIA, and the government elected not to appeal this decision. See Physicians' Committee for Responsible Medicine v. Glickman, 117 F.Supp. 2d 1 (D.D.C. 2000).

Puppy Mill FOIA: We represented People for the Ethical Treatment of Animals in a case challenging the US Department of Agriculture's failure to release information under the Freedom of Information Act pertaining to its decision to guarantee a loan to the Hunte Corporation - a large puppy breeding and distributing facility in Missouri. The Court ruled that the USDA had not adequately justified certain entries in its Vaughn index and had not sustained all of its withholdings under Exemption 4, and ordered the agency to release additional information. See People for the Ethical Treatment of Animals v. USDA, Civ. No. 03-195, 2005 WL 1241141 (D.D.C. May 25, 2005).

Ringling Brothers FOIA: We represented the ASPCA, Fund for Animals, and Animal Welfare Institute in a case challenging the US Department of Agriculture's failure to release records concerning numerous incidents of elephant abuse by Ringling Brothers and Barnum & Bailey circus. As a result of the lawsuit, hundreds of pages of records were released documenting Ringling Bros.' consistent, routine use of a bullhook or "ankus" to force the animals to perform on cue, as well as a clear pattern of agency willingness to look the other way. In September 2006, the court ruled that the agency had not justified the withholding of numerous records, and ordered the agency to come forth with better justifications or additional releases of records. See ASPCA v. US Department of Agriculture, Civ. No. 01-02628 (D.D.C.).

Ross Perot Covert Operations: On behalf of The Nation magazine, we won a precedent-setting ruling from the United States Court of Appeals for the D.C. Circuit regarding the extent to which the government may refuse to identify the existence of documents concerning individuals. The case involved records on the ways in which Ross Perot has participated in U.S. covert foreign policy initiatives. The court held that the government may not, on privacy grounds, refuse in all cases to process FOIA requests for investigatory records concerning individuals. See The Nation v. Department of State, 71 F.3d 885 (D.C. Cir. 1995).

PENDING
Rural Utilities Service's Financing of Coal-Fired Power:
On behalf of the Sierra Club, we have challenged the withholding of numerous records under FOIA regarding federal financing of coal-fired power plants that are in the custody of the Department of Agriculture and its sub-agency, the Rural Utilities Service. Through these agencies, the federal government is effectively subsidizing coal-fired power plants by routinely financing and providing loan guarantees to such facilities with American tax dollars. The records sought detail the nature and depth of the federal government's involvement in subsidizing this industry, which is of particular concern in light of the vast environmental impacts of coal as an energy source. Sierra Club v. U.S. Department of Agriculture, Civ. No. 08-4248 (N.D. Cal. 2008).

USDA Investigatory Records FOIA: We represented People for the Ethical Treatment of Animals in a FOIA suit against the U.S. Department of Agriculture, challenging the agency's withholding of information concerning several of the agency's investigations of Animal Welfare Act violations. We also challenged the agency's pattern and practice of withholding witness statements under the FOIA's privacy exemptions. The court dismissed the pattern and practice claim as moot after the USDA released all of the witness statements shortly after we filed suit. However, the court also ordered the USDA to release to PETA critical information concerning one of the potential violations, which involved a bullet-distributor's testing of its ammunition by shooting live animals. See People for Ethical Treatment of Animals v. U.S. Dep't. of Agriculture., No. 06-930, 2007 WL 1720136 (D.D.C. June 11, 2007).

Vehicle Safety: We represented Consumers Union in a Freedom of Information Act suit against the National Highway Traffic Safety Administration concerning the safety of several popular sport utility vehicles manufactured by Suzuki and Isuzu. After filing the case and pursuing discovery, we obtained hundreds of pages of documents that the agency had previously refused to release.

Wild Horses: On behalf of the Fund for Animals, we sued the Bureau of Land Management (BLM) to obtain records concerning whether horses titled under BLM's adopt-a-horse program are being slaughtered shortly after adopters get title, and what BLM is doing about this ongoing program. We resolved the case with a commitment by BLM to provide this slaughterhouse information to The Fund on a periodic basis.

Wind power: We represented the Friends of Blackwater Canyon in a lawsuit against the Fish and Wildlife Service pursuant to the Freedom of Information Act. Friends of Blackwater had sought under the FOIA all documents in the possession of the Fish and Wildlife Service concerning bird, bat, and other wildlife deaths or injuries caused by industrial wind power turbines, as well as all documents concerning the agency's enforcement or application of environmental laws - such as the Migratory Bird Treaty Act or the Endangered Species Act -- to wind power companies. When the agency withheld numerous documents from Friends of Blackwater, we sued to force the agency to release the documents. In September 2005, the district court ruled in our favor and ordered the agency to release additional records. As a result of the lawsuit, the agency released thousands of pages of previously withheld documents, which reveal that each year thousands of birds are killed by wind turbines, and also reveal an ongoing pattern of refusal by the Fish and Wildlife Service to prosecute any such killings under the MIgratory Bird Treaty Act or other applicable environmental laws. See Friends of Blackwater v. U.S. Dept. of Interior, 391 F.Supp.2d 115 (D.D.C. 2005)

FEDERAL ADVISORY COMMITTEE ACT

Atrazine Committee: We represented NRDC in a challenge to an EPA advisory committee that provided key recommendations concerning environmental monitoring for atrazine, a dangerous yet common pesticide. NRDC alleged that the advisory committee, which met entirely in secret, was subject to FACA's open access requirements. The district court dismissed the case, but the Court of Appeals reinstated it. NRDC v. EPA, No . 05-340 (RMU). Subsequently the plaintiffs settled the suit.

DOE National Ignition Facility: On behalf of the Natural Resources Defense Council, we obtained a preliminary injunction based upon the Department of Energy's failure to comply with the Federal Advisory Committee Act (FACA) when it received advice from a National Academy of Sciences committee regarding the National Ignition Facility. The injunction, which prohibited DOE's use of the NAS report, was the first such "use injunction" ever issued in the DC Circuit. After the court of appeals reversed the district court's final judgment and remanded on the grounds that plaintiffs had been denied the opportunity to take discovery, the parties settled the case with an agreement requiring DOE and NAS to notify recipients of the NAS report that it had been prepared in violation of FACA.

DOE National Ignition Facility II: We represented NRDC and Tri-Valley CARES in a challenge to the Department of Energy's (DOE) use of advisory committees to validate its plans for a multi-billion dollar laser facility -- the National Ignition Facility (NIF) - under construction in Livermore, CA. The court ruled that DOE has an illegal policy of forming these committees, and ordered DOE to release documents from past committees, See NRDC v. Abraham, 223 F. Supp. 2d 162 (D.D.C. 2002).

National Academy of Sciences: On behalf of the Animal Legal Defense Fund, we won a sweeping ruling in the United States Court of Appeals for the DC Circuit, which held that committees of the National Academy of Sciences are not exempt from the requirements of the Federal Advisory Committee Act. In response to the ruling, Congress adopted a special provision of FACA which, for the first time, compelled NAS committees to avoid conflicts of interests and to provide for public review of some NAS committee meetings and documents. See Animal Legal Defense Fund v. Shalala, 104 F.3d 424 (D.C. Cir. 1997).

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