“[T]he Court finds Defendant’s argument that releasing the names of individual submitters could reasonably lead to harassment more than speculative. Plaintiff acknowledges that it has previously published the names, cities, and states of individuals who were issued sport-hunted trophy permits,” Hegarty wrote in his decision.

But a majority of the appellate panel found that the magistrate judge “got the balance wrong” by deciding the risks of disclosure outweighed the public benefit to knowing the names of elephant importers.

During oral arguments, Hernick said his group was not alleging wrongdoing by Fish and Wildlife Service personnel. Instead, he believed it important for the public to know the circumstances surrounding government-sanctioned importation.

“Are these people who have been convicted of previous wildlife crimes? Are these people who are involved in conservation activities? Are the same individuals importing parts over and over and over again so that just a few individuals make up the vast majority of imports?” he asked.

FOIA, responded Ebel, is “strictly limited to an interest in how the agency operates….I assume what you’re saying is this information would be useful to receive if the agency has favoritism in the people they allow to do importing, or if the agency is not adequately checking on the backgrounds or the agency is allowing people to come in in a way that is somehow wrong.”

The discussion raised the case of Walter Palmer, a Minnesota dentist who reportedly paid tens of thousands of dollars to hunt and kill a well-known lion named Cecil in Zimbabwe in 2015. His actions prompted a worldwide backlash and threats to Palmer’s family.

“Couldn’t the fact that this is an activity that is scorned upon by a great deal of society itself subject the people to embarrassment?” asked Judge Robert E. Bacharach.

“Information can be disseminated so quickly and in such inflammatory ways through the Internet and social media,” added Chief Judge Timothy M. Tymkovich. “Is it legitimate for us to worry about what uses these data might be put to?” 

Marissa R. Miller, representing the Fish and Wildlife Service, told the judges that the redacted names in large part involved people working for an importing business, who may in fact simply be filling out paperwork.

“We have to draw the distinction between government records that shed light on what the government is doing versus government records that contain information about private citizens,” she said.

But Ebel, writing for himself and Bacharach, determined the government had failed to show that people submitting the forms believed they were entitled to privacy, feared harassment or otherwise wished to keep their names private. Although people import elephant parts and trophies by choice, Ebel rejected the Fish and Wildlife Service’s argument that animal importation was just as shielded from disclosure as other stigmatized activities that people engage in voluntarily.

“FWS is correct that individuals still possess a privacy interest in voluntary conduct, but the examples it gives (Botox, erotic novels, strip clubs, hemorrhoid cream), do not contain an analogous level of regulation,” he wrote. “An individual is not required, for example, to apply for a special federal permit to purchase an erotic novel, and does not need an import declaration to ship that erotic novel across state or country lines.”

Tymkovich dissented, believing the lower court was properly sensitive to the privacy of trophy importers, given the social media shaming or harassment that was “almost certain” to result from Friends of Animals’ records request.

“Importing elephant and giraffe parts is controversial, as evidenced by these articles and by Friends of Animals’s work – and Friends of Animals intends to spark outrage against these individuals and their conduct,” he wrote.

Hernick expressed surprise that Tymkovich characterized his organization’s motivation as wanting to gin up antipathy towards trophy importers.

“Friends of Animals does not engage in harassment and does not condone harassment. If people are worried about their import records sparking outrage, there is a simple solution: they should not import the parts of imperiled wildlife,” he said.

According to the Great Elephant Census project, the population of elephants on the African savanna decreased by 30% between 2007 and 2014, primarily due to poaching. During roughly that same period, American recreational hunters imported 126,000 animal trophies each year to the United States. The Fish and Wildlife Service developed regulations for importation permits in accordance with the Endangered Species Act and the 1975 Convention on International Trade in Endangered Species of Wild Fauna and Flora.

In the remaining portions of the appeal, the panel members agreed that the magistrate judge incorrectly relied on a hearsay statement in upholding the redaction of an exotic leather business’s identifying information. The panel also agreed that the Fish and Wildlife Service was justified in redacting names from a similar open records request about the importation of giraffe parts. Giraffe imports were not as heavily regulated as those involving elephants, and consequently the public interest in disclosure was not as great, the panel added.

The case is Friends of Animals v. Bernhardt et al.