simply stated we're here this morning to ascertain and and before i start i would like to reserve four minutes for a bottle thank you simply stated we're here this morning to ascertain whether on the without any proof of how in the competitive egg industry the bidding process for price actually occurs whether the government can under the freedom of information act nonetheless withhold under exemption for production information generated from statistical tests and environmental testing at thirteen and but still a tease in texas that it's done for salmonella testing this question encompassed the related question as to whether regardless of whether this court views production information as competitively sensitive information per se such that it can be ordinarily withheld under exemption for nonetheless in this case if the precise classes of information which include total hand populations at each of the farms in question the number of head houses at the farms in question the number of floors apartment house at the farms in question and the number of rows per house  farms in question has been publicly disclosed by the parties such that the exemption cannot apply since we are talking about the trade secret and confidentiality exemption of oil i want to ask you specifically there's there's evidence  in the declarations that even a one cent difference in the price of a dozen eggs can cause consumers to change their purchasing habits that is that it's highly competitive i did not see any contradictory evidence to that so with respect to the highly competitive nature of the business do you agree that that at least is undisputed on are and there's also are what i thought was undisputed evidence that as a matter of fact companies do keep this information close to the vast that is they lock their facilities and build fences around their facilities and things to keep others from you know prying eyes is that also went under speeded fact there is dispute as to the two the nature of the main confidentiality is not disputed that some elements of the information that we are talking about are subject to kinds of secrecy that you're referring to however for instance dr superman noted that much of the bases that are provided by the government witnesses for explaining for instance fencing electronic monitoring of the farms and that are actually done for purposes of ensuring that there is not salmonella contamination outside the farm but i can't something be done for more than one reason the fact that it's done for one reason doesn't negate that it's also done for another so again i'm not sure why that would be a dispute as opposed to an additional explanation there is no dispute that the farms function in the way that the government witnesses state as it relates to the secrecy protections there is a dispute as to the motivation for why the well that's what i'm trying to get at if he if i say well we're motivated by secrecy and you say well you're also motivated by safety concerns those why are those contradictory i mean mixed motive is a common thing in the law and mixed motives there are but as with all trade secret type cases the motivational it evaporates as soon as there's evidence that outside the context of the secrecy argument provided by the witnesses there's independent evidence that the very information  that is allegedly secret has been publicly does that's a completely different question that then the issue of whether or motivation can be mixed you're saying well it doesn't matter that i mean your your other argument is it doesn't matter what their first motive is because they've already told people so they might as well tell us but that seems to me a different argument your honor i would concede that there is always going to be a possibility that there can be mixed motives that some elements of secrecy could be related to health and some could be related to proprietary confidentiality so you know what form has this information been disclosed roughly in the excerpts of record at one forty four to seven twenty five there are extensive if you would if i could provide you a couple of particularly notable examples that will highlight why l d f contends that this information has been publicly disclosed for instance exhibit h to the underlying motion for summary judgment at e r two twenty one reflects a public press release issued by cow maimed and i would know cow maine is the largest producer of eggs and  also the source of one of the government's primary witnesses line bury the cow meanwhile own two a pilgrim's pride egg production facilities in pittsburgh texas the fill sillett easy told approximately or each hold about one point four million dollars laying eggs now that should pot cause this court to pause right away according to the government's primary witnesses mr ramirez mr very calming and made hard farms themselves produced declarations that said they do not disclose the ultimate production rate or number of egg laying hens and certainly don't do it on a regional basis here you have to pittsburgh texas the very regional market we're talking about disclosures of the number of eggs not only is this press release done for business relation purposes and given to the general public at large it begs the question if the if the government's position about how disclosure as correct why is may hard selling a farm in the very market that it can competitively compete by underbidding knowing full well what cal means production facilities at both farms will be after the sale there's nothing in the record to make but i don't understand exactly how that happens you're right was the l d s position below and on appeal that we also don't not know and that that is fatal to the government's position in this case and is why not only is a reversal necessary there is no if the court concludes that that position is conclusory under the court's precedent that if that is the end of the you could argue want to end as the court and certainly as aware we have pointed out that historically this court has applied a two part test in which the adequacy of the record is delineated to novo and then the court's findings on summary judgment are valuated for clear air the court has twice at least questioned whether that is a proper basis and to answer your question judge or law i don't believe it matters under whether you have a folding of a standard as we are advocating or even if this court applies a clear error standard to the factual inquiry because it is always the government's burden to show that the exemption applies and if the declarations are conclusory that collapses into  to the question of whether on de novo review there is an adequate record but you know that the other side the other side of the coin if if someone were to explain precisely and in detail how the information could result in substantial competitive harm wouldn't they be disclosing the substantial competitive harm in other words it would be somewhat potentially destroy the point of the exemption to have to explain it in detail so what is your response to that concern well first of all it's the government it's the government's burden to show that these records generated by the government not by the farms themselves that are also generated for america monumentally important health issue namely the introduction of a pathogen into the national food supply is in fact subject to competitive bidding so it's actually got to be the government's knowledge of the bidding process that substantiates the the exemption and that doesn't really answer my question because you earlier agree that it's a highly competitive industry everybody seems to agree that that's true that it's kind of a knife's edge in terms of the existence of the privilege or the exemption barring disclosing what should be disclosed in other words you can't you can't say well show me show me the documents and therefore we know that they are there that we shouldn't see them well that's my best my concern there's always measures are there that the court from the government i mean why does the government collect these documents anyway that the government collects these documents for testing procedures and largely to determine what testing equipment they need at the various chicken facilities because it's known that there is a natural level of salmonella contamination even in a general chicken population certainly the government has a right as an interest in ensuring that its own inspectors are killed by the process that they are and that they're ensuring doesn't occur in the u s the general population micro the court should in fact balance the interest of the public as a rule at large in the interest of a competitive harm that might occur and in this case that would mean a balance of public health versus the potential competitive  how does the redacted information in that you're seeking shed light on the government and its activities because that seems to be the whole point of and trying to figure out why this disputed information information gives you any sense of what the health risk that individual farms are the same information related to production capacity could be also viewed as statistical density information about chicken populations in each of the cl that is inherently where salmonella inspection occurs and it allows us to have a view into the into the the government's compliance with the egg safety rule and the essential health question and when you talk about density in other words if i have ten chickens to a kid one hundred chickens to a cage why do you care whether i have one cage or fifty cages i would like to answer that and then reserve the remainder my argument the answer your honor's because each of the information gives independent valuation of risk the total hand production is probably an even better a valuation of the risk of salmonella introduction and it's thank you mr cooper here from the government may it please the court when the power for the f d a there are at least two ways that are supported by the record in which disclosure of any of the types of the information redacted here if disclosed would cause us a fan since general competitive harm with respect to bids for x sales the first is production capacity how many eggs it's each of these farms producing over all and the second with is with respect to efficiency how efficiently are the farms producing to me i see my question how does the trade and production how does knowing that information result in underbidding so that you could come up in a number of different scenarios but i think an example is helpful so if if a customer needed an additional hundred thousand eggs per day because of the increased demand over the holidays and it puts out a bed for this extra hundred thousand if farm a knows that farm b who typically supplies this customer kit doesn't produce that many eggs can't fill that contract with eggs from its own farm that's valuable information to farm a farm b if it wants to bid on that contract will need to ship eggs from a different farm  to a clearing house purchase from a third party and any of those things cost money to do and so a farmer knows that farm b is in this position it knows that it has a competitive advantage and it may decide to bid on this contract when it wouldn't have in the absence of this information because it doesn't are eight thirty nine and he talks about the ways in which capacity information can cause competitive harms for the reasons i just said and another one that he talks about is the importance of location so that if you know again the production at a particular farm you also know where your farms are located and where your production is and you might see that you have a locational advantage so that you can get eggs to a customer more cheaply and you wouldn't be aware that you had that advantage if you didn't have this additional information about your competitor and because this information is so closely guarded that's not information that the farms currently have so disclosure would give would create information asymmetry of that don't currently exist and create competitive harms for the whose information is at issue here is there is there any evidence in the record that companies have used such this kind of information in the past to undercut the riaa the rifles there's nothing in the record on that either way but what is clear in the record is two things one consistent testimony not just from industry but also from f d a officials knowledgeable of the industry that these firms would occur and because that that certainly would destroy the exemption if the very information you were already disclosed in some form that negated the commercial secrecy of it so what spin what specifically is different about the things that have been disclosed from that distinguishes that information from  case yes your honor so most of the information that you know points to it's aggregated data so they look at all of these county and sources that look at total one population and capacity across a very large number of farms and that's simply very different data and can't be used in the same way as farm specific data for the reasons i just talked about you can you know look at back to those examples and aggregated data doesn't mean the same thing the example that council pointed to earlier appears to twenty one of the excerpts of record is a useful example it's there are there are a few outlier instances where farms the information is detailed in this is one but all we see in that pilgrim's pride acquisition notice is that there are one point four million  d at the two farms issue that's that's not remotely the same information that we're talking about whether it is because the total population is the first time that they asked for that's been rejected so if i'm not quite sure why tell him population is different than total one population well it's the numbers are different so the level of specificity in the e r is very different from that so it would be what we want one point four million is a fairly broad approximation it's not you know you can have a margin of forty nine thousand hens there that you don't know that you're talking about that's not it doesn't go to the fam level of detail as the population data in these reports that there are also fo categories of information that we're talking about that's right but that doesn't mean it's not an all or nothing thing as we know because the district court ordered the disclosure of the number of birds per cage and that hasn't been appealed so we know that just because one thing is disclosed everything it's not all or nothing so right and that's and that's true with respect to the particular farms too so we again one point four million it's not it's not the same number it's not the same information that's in the i r and that's that's important it's much more detailed and comes from a different point in time so it's not the same information even with respect to population but if the court to disagree and believe that disclosure in that document at two twenty one was sufficiently close with respect to population all that would follow is disclosure of that piece of information with respect to to that farm and again i should know that that particular farm that's at issue there is not one of the farms who's information of that issue here so i nothing follows from that document but if i had another question that relates to timing the request was for records that existed in i think two thousand and eleven something like that a lot of hands of com that have any bearing on whether this information should be disclosed that isn't sort of ancient history by now why would it be a problem for current competitiveness when it's such old information so it's appropriate to review the record as it exists as of the time it was created and the record has not been updated to introduce anything to suggest that this information has become stale if plaintiff disagrees it's free  met a new request explaining the f d a on that basis that the information is no longer subject to withholding but but the court reviews the record as of the time that it was cool read it and that record does not reflect anything about stillness we also don't think a given market and offer to sell eggs at a reduced price so that there's no evidence that that's how bidding works in this industry and what the evidence does show is that by using th information by gaining access to this information that a competitor would gain an advantage because it would have informational asymmetries it would know things about its competitor that go to total production ability and also efficiency how efficiently the are being produced what the costs of production are and that that information can be used in putting forth a more competitive bid there's nothing in the record to suggest that that there's this dialogue with competitors with with customers excuse me that  value of this information and i think lion reason was incredibly am i i have i want to get this question out there so the plan is for the declaration by a professor of economics at the university of chicago which providing the information that the district court ordered withheld does not create a substantial which is your burden issue as to the content to that statement is that more information is necessary to get a complete picture of the competitive position of a farm but i don't know what i'm going with is why is seminary judgment appropriate here when it seems to me but there are no disputed issues and that's what the district court correctly found so when when dr de is saying that you need more information to have a perfect picture of what a firm is doing that's simply not what the f d a declarant are talking about because that's not what lying reasons requires a million reasons there your view on our standard of review let's just first argument's sake say that there is a genuine question material fact created by the declarations and evidence minted  t was the that the proper procedure that the that the district court undertook so in the micro online reasons the court did state that it was reviewing for clear error and  precisely this posture what the district court here found and what we think is i just want to when there is a genuine issue material facts how do you think the district courts are supposed proceed and how are we to review that typically in summary judgment if there is a very unusual way to proceed but here there are no disputed issues the very brief declaration submitted by the other side are talking over the f d a to clarence they're not engaging at the at the same level eggs what he says is you don't have perfect information about the industry just from these categories of redacted information and that's not what my own reasons requires line reason that's really on all fours with this ok variance i'm going to ask you had their factual question and gathers information but it's it's not the type of cooperative that you get dr superman suggest in his declaration by analogy to organic valley and he gives no reason to think that they're remotely the same type of  organizations it's not a co operative in the same sense it's just a entity that is establishing these guidelines and ensuring compliance with those who have chosen to comply but what the declaration say and they're not contradicted is that that information is protected and it's not to disclose with respect to the very few instances that plaintiff points to where there's been any type of disclosure with respect to a particular farm disclosure would only follow from those instances if it's the same farm and the same type of information and in each instance it's not i think what plaintiff wants you to do is to in far from those occasional instances of disclosure which again are present different data that this information is somehow not valued by industry and so you should infer broadly that it's not confidential and that's not the way in which public disclosure is relevant here if a particular piece of information had already been disclosed such that an additional disclosure would be redundant then of course disclosure wouldn't cause a competitive harm and exemption for wouldn't protect there any evidence it passed and you're getting the record here no but there is extensive discussion of the ways in which it could be done with this information historically has not been disclosed which is part of the reason why there history of what happens when it's disclosed because it hasn't been disclosed has it hasn't been disclosed i also want to briefly mention there are a number of other ways in which the record supports shows that competitive harms would follow one as was with respect to farm acquisitions sales of farms that's in the reserve declaration at the supplemental excerpts of record twenty six and he says that if you know information about another firms inventory which is all of this information how many hands that has barns the way it's productions and operations are configure that that's information that one farm trying to sell could use against another selling farm to try to underbid there are a lot of acquisitions in this industry bigger companies buying smaller farms and one farm that's trying to sell could compete with another by using this information to its advantage that's in the razor declaration and it's not contradicted the only mention of it in plaintiff's declarations is in the superman declaration and they're all he says that farmers may be motivated to sell for reasons other than what their inventory is but that's that's a completely separate point why you're motivated to sell doesn't speak to your competitive advantage in selling and you gain that advantage by knowing your competitors inventory when they don't know that about you thank you about the problem that you're facing which is the d c circuit court of appeals greenberg f d a case eight zero three f two d twelve thirteen there which in that case which is an exemption for case the government did as in this case introduce declarations to support a position that the disclosure of customer lists generated by the government of a particular manufacturer of cat scans of disclosed one of its other competitors would in fact be competitively sensitive and therefore it was exempt under and for unlike unlike the lion raisins unlike the sea micro unlike any other case you've heard discussed today but like this case the party seeking the foyer request introduced its own declarations to show that in the competitive market the information could either be reverse engineered much like our production information here that we cite is already in the public domain or that there were alternative bases that the information could be gleaned from the customers the court of appeals recognized that in that instance even if the government had satisfied its its foil exemption for analysis under summary judgment under classical summary judgment burden shifting once the defendant or i mean once the plaintiff much like it of the f introduced the information contravening that position as it relates to the competitive market the case had to be reminded for further proceedings because there was in fact a disputed issue of material fact whether the information was