Lawsuit aims to force USDA to repost scrubbed animal welfare records

Put the records back on the internet. That’s the demand made in a lawsuit filed today against the U.S. Department of Agriculture (USDA) by an animal law expert at Harvard University, together with the People for the Ethical Treatment of Animals (PETA) and several other animal welfare groups. The plaintiffs allege that USDA violated the federal Freedom of Information Act (FOIA) earlier this month when it removed thousands of animal welfare inspection reports and other records from a publicly accessible website.

“Our lawsuit seeks to compel the USDA to reinstate the records, which it had no right to remove from its website in the first place,” said Delcianna Winders, currently the Academic Fellow of the Harvard Animal Law & Policy Program, in a statement. “The government should not be in the business of hiding animal abusers and lawbreakers from public scrutiny."

USDA’s Animal and Plant Health Inspection Service (APHIS) generated the records, which document animal facility inspections, enforcement actions, animal censuses, and other information collected by the agency in the course of enforcing the federal Animal Welfare Act. The law covers animals in more than 7800 facilities, including zoos, roadside circuses, and research laboratories at government agencies and academic medical centers. (It exempts mice, rats, and birds used in research from regulation.)

APHIS’s 3 February decision to take down the records was apparently a response to a lawsuit involving another law, the Horse Protection Act, ScienceInsider has reported. The plaintiffs in a 2016 Texas lawsuit accused USDA of violating their rights under the 1974 Privacy Act by posting inspection documents required by the horse law. A resulting USDA review of all its public postings led the agency to scrub from its website documents generated under both the Horse Protection Act and the Animal Welfare Act. In the future, the agency announced, people who want access to those records will need to file a FOIA request. The agency’s most recent FOIA report states that it takes an average of 94 days for the agency to respond to a simple FOIA request and 234 days on average for more complicated requests.

In today’s lawsuit, the plaintiffs invoke a section of FOIA that requires agencies to make publicly available electronically all records that it has released under FOIA which “because of the nature of the subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records.”

The plaintiffs, who sued in the U.S. District Court for the District of Columbia, include Winders; PETA in Washington, D.C.; Physicians Committee for Responsible Medicine in Washington, D.C.; the Massachusetts Society for the Prevention of Cruelty to Animals in Boston; Born Free USA in Washington, D.C.; and the Beagle Freedom Project in Valley Village, California.

USDA and the Department of Justice, which represents government agencies that are sued, both declined to comment on pending litigation.

The groups are the first among many vocal critics of USDA’s action to file suit; on 7 February, the Humane Society of the United States (HSUS) threatened to reopen an older lawsuit against the agency. HSUS invoked both the requirements of the Freedom of Information Act and a settlement of the earlier suit that it reached with the agency in 2009, under which USDA agreed to promptly and publicly post a number of the reports that it has now removed from the website.