d please the court morning good morning i would like preserve three minutes for a bottle after the united states is part of the agriculture found that airlines transporting primates in the united states were failing to provide these animals with minimal amounts of food water or ventilation peterson in the foyer request to the c d c for primate important occasions submitted to the agency around the same time period for three primary reasons the c d c was not entitled to withhold the crate descriptions animal quantities in carrier names appearing in those records as a matter of summary judgment first all of the big harms offered by the government to clarence were rebutted by a combination of the import documents themselves government's concessions public records and the importers on advertisements second the district court rightly recognized that there was a credibility issue with the government's only witnesses regarding crate and quantity information the district court erred by resolving that issue at least in part against the nonmoving f a summary judgment stage and finally on the government's motion for reconsideration the district court erred by permitting the government withhold primate import records for two additional which which is for a fraud misrepresentation so if you prevail here you have to show that the district court of these its discretion on those standards that is you have to show that when the district court didn't find in our break the rule sixty b one argument the court actually granted that motion in part order as a result that the information for now on i'm talking about the government's motion will tell you that your motion that yes that the court  challenging the district court's failure to grant those two motions we're not challenging the sixty three motion you know we're challenging after the court a group of grants that our motion to reconsider under sixty one which it did join hands three ninety four you know we're regarding the importance of this information both demonstrated that they are in fact not sufficiently concerned about this information for it to be withheld or where they were that the issue is for us your honor is that the court nonetheless cited spotting that credibility the court had to stop there it's the government's burden to prove that these these documents were lawfully withheld when the only two witnesses who could have carried that burden there is a serious credibility issue with their testimony it couldn't there are no reasonable fact finder in ultimately disregard all of that testimony then the government could of carrots burn as a matter summary judgment and i will this also clarify the the reason why it's so important to do novo review here garners because at least with regard to create and if i can turn to the actual testimony itself from the with regard to create information again it was the government's burden to prove that disclosure was likely to result in a substantial competitive harm the only evidence that was offered was one line in the primate products declaration speculating backtrace can provide insight into the size or type of primate important but well first the district court already ordered the disclosure of type or species of prim the only thing that would be left there would be size and there was no evidence in the record suggesting that size was valuable and even if there had been the import records themselves prove that these calculations were impossible we went through in our br sighted how sometimes just the number of boxes are a reference to an international air transportation association requirement and i think if we set all of those issues aside finally the set of the testimony is merely what can or could happen the government's burden here was and worldwide primates first it's beyond dispute that importation is just a supplement to domestic breeding this is critical because primate worldwide primates claims they can actually calculate sales actual sales data on the basis of these import submitting the important quantities to the c d c the importer of record is not the actual owner of the primates so it's generally a quarantine in some cases it's a quarantine facility at least or for at least four of the importers the party facility merely holds of primates for thirty one days under the regulation it issued and there's testimony central state primates is a quarantine facility a joy to appendix three forty five primate products is at joint appendix three forty three if it did the evidence before the court shows that sales turn on nearly a dozen factors that just aren't an issue here and won't be revealed that includes the age of the primate the sex sexual maturity whether the primates are pregnant or not if it's captive bred or wild caught if it's free of specific pathogens this is all a joint appendix forty to fifty two where there's the actual sales listings and i'll add in for a company that well why primates is offering this testimony that they don't just sel live animals that shows there they sell blood serum class no organs anti bodies so this notion that you can calculate sales percentages of ms sales activity based on the imports alone and it's not found in the record and the last point i would just like to make i products stems from what could happen if a competitor learned that currently or even a few years ago a company had a certain number of a particular primate in its inventory so this completely the fact that this information was already available completely undercuts that harm i think it also creates a material question of fact or the other harms alleged by worldwide primates because the court's analysis in an exemption for case it has to take into account the information that's already publicly available and you see this in the niagara mohawk power case that we referenced in our brief where there's the what is it issue is the release of actual power consumption data but the court noted that projected power consumption data was already available it acknowledged while those two things are different it's possible that the disclosure of the actual data may reveal so little may add so little to what's already out there that there won't be of his substantial competitive injury that's required under the  understand it is that if this information is released that competitor can and i think the freeze is reversed and i think to freeze reverse engineering was used maybe that was used in my notes but a competitor could reverse engineer the supply chain and other information to gain a competitive advantage in a small market it's highly competitive isn't that what we're supposed to be looking at well not doesn't seem to need to be very difficult burden to be able could take this information and gain some advantage information that they wouldn't otherwise have access to it's not available freely on the market and it's only available because of the government information being released you don't think that exists well judge griffith i don't i think so part of the issue is that testimony was in part about what the collective disclosure of everything we're not challenging exporters on appeal so i think the court actually has to look at the reverse engineered all the information that's in the record about what's already available regarding quantities showing that this is just one small picture of the overall of the overall business i think that creates material question of fact and i think this kind there's the reverse engineering of the supply chain in the transpacific policing case there was precise testimony identifying how specific information at issue could be paired with an already publicly available in were vessel manifest document that was and that was laid out and it was under budget and i think in that type of case then there is some sort of reverse engineering that can be found here on this record that testimony doesn't suggest how that can be done and at most ther and and i think that the evidence that we presented created a minimum material question of fact about that because we we proved that the names of airlines are publicly available who transfer primates are highly publicized and where the airline names were not redacted it showed that the importers were already using the same ones and i do want to point out the government conceded that joint appendix one of six no nine in its brief that the importers already know which airlines will accept their business so that completely undercuts everything that crime is products and well by primates alleged i think the critical issue that's left that the government is trying to use to resuscitate this harm claim is it saying there's a difference between shipment by shipment data and just these industry wide lists but i would argue that the testimony that's in these declarations goes to the contrary the allegation is merely that locating the airlines is difficult and i think if you contrast the block declaration of paragraph seven discussing airlines saying difficult to locate with a block declaration f paragraph eight where he's saying it's there are relationships with x foreigners are actually they should be considered trade secrets because they're developed it at the time effort and expense i think you can actually see the contrast in that those case that the court looked at the precise nature and origin of the shipments of issue and they held that information it could reveal those precise natures in origins wise core supply chain information and likewise the national parks case it looked at a district court review as is happening here in which the district court found that substantial competitive harm would likely result and it reason that substantial evidence supported back conclusion and it said that the district court need only exercises judgment in view of the nature of the material sought i mean competitive circumstances in which the submitters do business we submit that that's exactly what the district court did here with the information in front of it and before i get into the specifics i think it's worth pointing out that the information we're talking about here airline information quantity of the imports that the crates used in imports as well as the exporter information that we now understand has conceded in large part these are core supply chain pieces of information these are are things that in any case in which an importer has as its first line of business importing what they say is that if we only ask for a person for a particular type of crate or a particular type of quantity or airline information then those items by themselves are not enough to reverse engineer is judge said the entire supply chain itself but it's still competitively valuable in these cases don't exist in the abstract in this case an import petitioner could request airline information and not exporters as it is now here's a parent position in the next case they can simply request exporters and say well we're not asking for airline information so we don't have that necessary piece but these are all pieces and the companies it here and the issue here are extremely worried not only about peta and the effects of this protesting what have but because these are finite sources of supply and i would no parent that we did or here below that peta itself and the damage that this sort of social protesting could cause could inflict competitive harm the district court rejected that based on this court's decision in public citizen versus  federal versus f d a where the court held that the competitive harmony issue is only affirmative use by competitors in the industry and based on that holding we didn't brief that issue further here i'm noting it only because in the event that we need to seek an imagine for example that there are ten importers in this industry and it may be one of those importers works with one specific airline now if peta learns the existence of that airline and uses social pressure to convince that airline no longer to participate in this industry then that one specific importer that rely exclusively on that airline is effectively no longer able to compete mistress and putting mr secret i thought i heard him say on the air on question that now sort of the caption to that field it suggests there listing one of the airlines one of five of nine and i don't know what the remaining four airlines are actually in preparation for argument i went to this very search tool and i tried to reconsideration stage which is what i was trying to figure out what why primates and p p i actually requested to be withheld i was through there and there are airlines listed there that are not among  it's not entirely clear actually to what extent this is a categorical list and in any event it certainly doesn't cover all of the potential charter airlines al hayat the decision that was wrong when you publicly available information wasn't what you're are public and i said it's not quite clear but you're also correct in answering and asking the question you do i think because that states are who's ition even if it's true that there's a finite here a verse of airlines  known that is still not the same thing as knowing to what extent and how frequently each member of this industry makes use of an individual airline these airlines don't have infinite  conceivable routes and so that's another way of getting insight into what actually orders these folks might be using in certain theaters and on that note it's important to understand that when the district court looked at this as your honor said it didn't look at it as just a question of what is the nature of the industry as a whole and what information is it taught that that was too broad a line to draw the question of course is objective we speaking with competitive harm result from the release of the information at issue here and the information issue here is not simply which airlines are in this business which airlines are licensed to do this and which are willing to do it the information here is which airlines are working with which specific importers and from a competitive point of view maybe it's best to look at it the other way which you mourners are looking at which pacific airlines because in the worlds of finite capacity and a small competitive market which peter conceded exists here small margins are important it is one reason to caution deference from a judicial perspective in this instance is it's not always clear to what we stand one piece of this jigsaw can be used not only in that case but in future cases to recreate the entire nature of the industry in what the importers are doing here is not it's not rocket science it's not high technology all they're doing is they're importing specific animals from specific places and they're selling them first pacific purposes so if you know which we now do because the court ordered it to be so if we now know the species of the animals that are being imported and we know the way that they're getting into the united states that is from which airlines and we know the quantity in which it's happening and peter suggests that the inventor themselves are fully available at arsenal at all times then one begins to wonder what's left aside from just the prices that they're charging i have been thinking about this this this case maybe a little differently than then you have so help me understand wh t i was thinking about exemption for and competitive advantage i had in mind a competitor who was trying to maybe start a new business and one of the glean information from confidential information from existing market players when you talk about social pressure her power that made me think that maybe there's another way to think about this he's do you think exemption for applies to information that if it's released would be would be able to be used by by by p to embarrass or or protest against against one market player i'd like to say yes but under this court's precedents i have to say no but the court has ruled that that's not the case although i know that the second circuit has gone the other way in terms of those wondered why why you were talking about social pressure and i was merely noting that we're not abandoning that issue because this court can't abandon its own precedents but if we want them very just wanted to preserve that issue explicitly as we get in the district court so i was thinking about the right way then right from our perspective yes we have perhaps from this one course perspective far not quite yet this issue h h s took an objective industrywide approach it got all of the responses to the previous closure notice and it looks at the justifications that were offered him a speedy enter sponsors as well as the redactions that accompanied those responses based on the representations made in that universe of redactions and justifications it came to an understanding of the nature of the industry and how suggested that in its case that particular importer did not object to a particular obese then it h h s wouldn't tell women what whole thing is that the importer itself made no suggestion that it wanted without so that's to the regulated entities and issues here so with respect to the credibility issue that opposing counsel is noted that it is the role and the block affidavits the district court handle this appropriately in our view notably the district court upon realizing it in the first round of briefing on this issue in summary judgment peter noted that p p i justified withholding on an industry wide basis on reconsideration peter pointed out that the same thing that happened with w w p is with p p i that is the declaration said that we had that those entities requested withholding of these two fields of information but in the end it manually highlighted redaction requests that entire term not turn out to be correct so in our view the district court did what it should have done i return to first principles and said ok as to these two entities in fact they did not request that isn't their information be withheld even though the arguments that were made would have justified it if they did but then the district court was faced with a second question that was more difficult which is we have these seven other companies issued here and those seven other companies knew the w w p n p p i were submitting decorations of summary judgment they knew what those decorations said those companies however had no way of knowing what information w w i i themselves had requested be withheld and so the other seven companies did request that create information and quantity but it would be withheld and they did so on the grounds in these declarations and that's true by the way not only on the face of the decorations but the p d n responses themselves which the court considered  what is objectionable throughout this industry the district court looked at all we haven't seen the record and said you know what if these two hundred didn't request their stuff be withheld we won't withheld it but this is an industry wide question it goes to the nature of these businesses as a whole and based on transpacific policing and watkins and kill the industries this is core supply chain information that goes to the heart of the regulated entities businesses and they've made the necessary showing so they are allowed to withhold it to the extent they requested to do that that information is no longer available to private carriers we we this website that used to post the list it's unclear if they're still going to be posted there but that's irrelevant for our purposes whether they're available under a simple foyer request or posted on this website is that's that's not an important difference it doesn't matter here they're still publicly available and i also want to point out the government conceded that the importers already knew the airlines who would accept their business before paedophile that list that was on the government website so the government should still be down to its concession the government tries to inject a lot of new evidence into the record talking about what a cold vance document said these these these it that's not before the court and i hope that the court will find that yes likely to result in a substantial competitive injury and the subjective requests by importers are completely irrelevant here because it's judge griffith acknowledged they wanted permission withheld that's not legally appropriate they want i that the court dealt with this in the journal which case we saw in our brief it seven forty one after thirteen thirty one where there was information being released the humane society dog breeders are saying they're on a crusade to destroy our business you have to take that into account  court said we're bound by the law of this circuit under the law of the circuit we're limited to the affirmative use of proprietary information by competitors so what we have here is a and the court the district court acknowledged that they were making these requests objection  requests for a good reasons that were improper so to rely on subjective requests here that would that would it would not comport with the objective standard that this court is required to apply ok thank you thank you cases submitted thank you both