Animal Welfare Records Blackout

Some Records Restored to Database

The USDA restored certain records to the Animal Welfare Act reports database as directed by Congress. The Consolidated Appropriations Act of 2020 mandated the restoration of the searchable database and contents that were available on January 30, 2017 and all content generated since that date. The records include AWA inspection reports, animal inventories, “teachable moments,” and final enforcement records.

Ninth Circuit Court of Appeals Reinstates Lawsuit

In a significant victory for government transparency, the Ninth Circuit reversed the district court’s dismissal of the lawsuit’s FOIA claims, holding the statute does provide courts with the authority to order an agency to post certain public records in an online reading room. The panel’s majority wrote about the importance of an enforceable reading room requirement: “We can easily imagine the significant implications of rendering § 552(a)(2) [the reading room provision of FOIA] a dead letter; an agency would have no enforceable duty to post its important staff manuals, or its interpretation of the statute it’s charged with enforcing, or its final opinions in agency adjudication.” The majority also held that the APA claim was improper because FOIA already provides an adequate alternative remedy to enforce the reading room provision.

Dismissal Appealed

USDA Debuts New Limited Database

The USDA posts a limited database that allows users to search for inspection reports and research facility annual reports. However, the new database is significantly limited. For example, it does not contain enforcement action records (official warning letters, stipulations, pre-litigation settlements, and administrative complaints) and identifying information for many of the facilities is blacked out.

Lawsuit Dismissed, Coalition Pledges Appeal

U.S. District Judge William H. Orrick dismissed the lawsuit on the grounds that FOIA does not provide a remedy to enforce the government’s obligation to publish certain types of records. Specifically, the district court ruled that courts cannot issue injunctions to enforce FOIA’s reading room provision.  Originally, reading rooms were actual rooms where government agencies filed records that were available for public inspection and copying. Today, these rooms have been replaced by electronic reading rooms in the form of online databases, like the USDA database at the center of the lawsuit.

The district court additionally dismissed the APA claim on the basis that FOIA’s process for proactively requesting documents provides an adequate remedy – animal protection groups can submit a FOIA request to the USDA for any desired records. But as explained above, relying on proactive FOIA requests creates a significant burden on groups by consuming significant organizational resources and delaying access to the records by months or years.

Lawsuit Filed

The Animal Legal Defense Fund’s lawsuit contends that the USDA’s decision to remove public access to the databases violated FOIA, which requires agencies to make publicly available certain types of records including final opinions and orders, policy statements, and frequently requested records. The lawsuit also contended that the removal violated the APA, which prohibits agencies from taking actions that are “arbitrary, capricious, an abuse of discretion, or otherwise no in accordance with law[.]” The USDA itself has acknowledged that the records in question are “frequently requested” and that the database “has been a valuable resource for thousands of stakeholders searching for information about individuals and facilities regulated under the Animal Welfare Act.”

USDA Removes Animal Welfare Act reports database