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Feds fight suit over web takedown of animal abuse data

The Justice Department is mounting a legal defense of one of the most-publicized counter-transparency moves of the new Trump administration: the Agriculture Department's decision to take offline a massive set of records on enforcement of laws against animal abuse.

The Agriculture Department yanked the records from its website on Feb. 3, citing privacy concerns. The action prompted an outcry from several animal-advocacy groups, who filed a suit to restore the data.

Now, the Justice Department is insisting that the government has no legal obligation to place the data online in advance of formal Freedom of Information Act requests, even though Agriculture Department officials previously said they had a legal duty to do so.

"Plaintiffs’ interpretation is contrary to the plain language of the [FOIA] provision," Justice Department attorney Peter Bryce wrote in a motion seeking dismissal of the suit brought by People for the Ethical Treatment of Animals and other groups. "Perversely, plaintiffs seem to suggest that such routine, proactive posting of records should itself trigger a mandatory legal obligation...thereby making such proactive disclosures legally obligatory (and, according to plaintiffs, irrevocable) once the records are posted to the agency website."

The Justice Department said agencies must be free to revisit such decisions, or else they may simply opt for the most conservative approach and not post the data in the first place.

"If the mere act of posting records online could trigger a mandatory legal obligation under FOIA, thereby preventing the agency from ever revisiting the decision, agencies would likely become more circumspect and reluctant to engage in the proactive disclosures," Bryce wrote.

Much of the legal jockeying is over a provision added to FOIA in 1996 that requires agencies to post requested records online when they have been or are likely to be subject to additional future requests.

The Justice Department's motion acknowledges in a footnote that during President George W. Bush's time in office some Agriculture Department officials appear to have indicated they believed they were obliged to post the animal-welfare reports publicly regardless of whether they'd been requested under FOIA.

However, Bryce says those statements were mistaken and are legally irrelevant. "Whatever the agency’s past beliefs may have been about its obligations to make records available...those beliefs would not – and could not – have changed the scope of the agency’s actual legal obligations under the statutory provision," he wrote.

The government's legal filing says "many" of the records previously posted on the website have now been restored, but does not argue that they're all back up nor promise that they will all be put back online eventually.

The decision about whether to dismiss the pending lawsuit will be made by U.S. District Court Judge Chris Cooper, an appointee of former President Barack Obama.

The Humane Society of the United States filed suit for similar kids of records in 2005 and settled the case in 2009. That group has threatened to re-open that case to enforce the settlement, but there's no indication that has happened. Justice's new filing says the records covered by that that settlement "are now posted on the website," but doesn't explicitly say whether they were among those taken down in February.