Support for Reinstating Online Access to USDA Records

SUMMARY

The Animal Law Committee issued a report in support of the federal Animal Welfare Accountability and Transparency Act, which would require the Secretary of Agriculture to make publicly available certain inspection, enforcement and regulatory reports. Specifically, the Secretary would have to maintain on the Department of Agriculture website a public online searchable database of inspection and enforcement reports relating to the administration of the Animal Welfare Act (7 U.S.C. 2131-2159) and the Horse Protection Act (15 U.S.C. 1821-1831), in their entirety. Before February 2017, such records were available online. The proposed legislation would reinstate online access to these records, which would help the public monitor and stop animal abuse and which furthers basic principles of open government as reflected in the Freedom of Information Act and other laws.

BILL INFORMATION

H.R. 1368 (Rep. Blumenauer) / S.503 (Sen. Wyden) – Animal Welfare Accountability and Transparency Act

REPORT

REPORT ON LEGISLATION BY THE ANIMAL LAW COMMITTEE

H.R. 1368 (Rep. Blumenauer)

S.503 (Sen. Wyden)

AN ACT to require the Secretary of Agriculture to make publicly available certain regulatory records relating to the administration of the Animal Welfare Act and the Horse Protection Act, to amend the Internal Revenue Code of 1986 to provide for the use of an alternative depreciation system for taxpayers violating rules under the Animal Welfare Act and the Horse Protection Act, and for other purposes.

The Animal Welfare Accountability and Transparency Act

THIS LEGISLATION IS APPROVED

SUMMARY OF THE PROPOSED LEGISLATION

The proposed legislation[1] — the Animal Welfare Accountability and Transparency Act — would require the Secretary of Agriculture (the “Secretary”) to make publicly available certain inspection, enforcement, and regulatory reports. Specifically, the Secretary would have to maintain on the Department of Agriculture website a public online searchable database of inspection and enforcement reports[2] relating to the administration of the Animal Welfare Act (7 U.S.C. 2131-2159; the “AWA”) and the Horse Protection Act (15 U.S.C. 1821-1831; the “HPA”), in their entirety. The database would also house annual inspections reports submitted by a research facility under the AWA,[3] as well as the identifying information of any entity licensed by or registered with the Secretary under the AWA.[4] Likewise, the database would have to contain the name and address of any person licensed to make inspections under the HPA[5] and the name and address of any organization or association licensed by the Department of Agriculture to promote horses through specified means.[6]

The proposed legislation would further require that the depreciation deduction for any property placed in service by a taxpayer who has violated the AWA or HPA must be determined using an alternative depreciation system.[7]

BACKGROUND

In February 2017, the Animal and Plant Health Inspection Service (“APHIS”) of the United States Department of Agriculture (“USDA”) removed tens of thousands of records relating to the Horse Protection Act and the Animal Welfare Act from its website.[8] These records, which for years had been searchable on APHIS’s website,[9] included various regulatory documents: inspection reports, research facility annual reports, lists of persons licensed under the AWA and HPA, and other correspondence and enforcement information related to the Acts.[10] Without detailing why it removed the records, APHIS suggested that it was evaluating whether maintaining them online complied with the Privacy Act, Freedom of Information Act, and other laws, as interpreted by courts and the Department of Justice.[11]

In addition, APHIS also declared that “going forward” it would no longer make these types of records available online.[12] The agency instead directed people seeking records to submit Freedom of Information Act requests.[13]

APHIS’s removal of the records prompted widespread criticism,[14] with several groups filing lawsuits demanding that the agency restore the records to the site.[15] In August 2017, around six months after the records had been removed, APHIS reposted several records, along with an updated search tool.[16] Yet the agency had significantly narrowed the types of records on its site. In particular, where APHIS had once made available all AWA- and HPA-related decisions and orders issued by administrative law judges, it now simply posted a link to the USDA’s Office of Administrative Law Judge website.[17] Where APHIS had once made available unredacted warning letters, stipulations, pre-litigation settlement agreements, and administrative complaints, even where culpability had not been assessed, APHIS now simply posted quarterly statistical summaries that contained just some of this information.[18] And where APHIS had once made available all inspection reports (with limited redactions for privacy reasons), APHIS now posted just a subset of them.[19] APHIS also no longer discloses monthly logs of the Freedom of Information Act requests it receives.[20] (The various records that are no longer available on APHIS’s website are referred to as the “Records” below.)

In removing the Records, APHIS has taken numerous animal welfare documents out of the public’s hands. For instance, removing records where culpability has not been assessed dramatically reduces the site’s archives: because the USDA mainly enforces the AWA through warning letters, just a small percentage of the records in APHIS’s original database had been adjudicated.[21]

JUSTIFICATION

The proposed legislation helps the public monitor and stop animal abuse, which in turn promotes USDA’s and APHIS’s own missions.

The Records have long been an important tool for animal welfare organizations and journalists in their efforts to uncover animal abuse,[22] particularly in locations otherwise hidden from public view. Exposing such practices is an important step in drawing public attention to instances of animal abuse and, hopefully, leading to the amelioration of such conditions. For instance, a 2017 Rolling Stone investigatory article exposed various abuses at puppy mills.[23] Similarly, a much-publicized New York Times article uncovered farm animal abuses at a USDA research facility in Nebraska.[24] And inspection reports have been used to report on animal mistreatment at research facilities and other places.[25]

Access to the Records is essential, not only to further the work of animal welfare groups and journalists, but also to help pet stores and consumers, including those seeking companion animals, identify and avoid breeders with previous violations.[26] This is particularly important for pet stores, as seven states prohibit selling puppies from places with a history of AWA violations.[27] In addition, the New York City Bar Association Animal Law Committee has cited to inspection records from the USDA website in its reports on legislation — records no longer publicly available on the USDA website.[28]

By helping the public monitor and stop animal abuse, making the Records available would in turn advance the missions of USDA and APHIS. The USDA counts among its missions, for instance, to ensure the “health and care of animals.”[29] APHIS similarly aims to “administer[] the Animal Welfare Act” and regulate “animal welfare.”[30]

The proposed legislation furthers basic principles of open government, as reflected in the Freedom of Information Act and other laws.

The Freedom of Information Act, or “FOIA,” is a federal law that requires each government agency to generally make its records publicly available.[31] Under FOIA, government records are presumptively available for disclosure,[32] and the government “encourage[s] agencies to make discretionary disclosures of information” beyond what is technically required.[33] FOIA also requires agencies to proactively post online certain categories of information, including certain frequently requested records or records that the agency determines are likely to be the subject of future requests.[34]

The Committee does not address here whether APHIS must make the Records available on the APHIS website — though we understand that several organizations have asserted as much.[35] Still, keeping the Records on the website would certainly further the open government principles that FOIA reflects — principles that APHIS itself has touted. Indeed, APHIS has publicly stressed the importance of affirmatively making these very Records available online. In a 2010 presentation, for instance, APHIS noted its duty to “[a]nticipate interest in Agency records” and “[p]roactively post information online” (emphasis in original) including in databases and on the agency’s website[36]; the presentation also demonstrated how the public could access AWA inspection reports online.[37] In that same presentation APHIS also praised the “benefits of transparency,” among them creating informed citizens, increasing stakeholder engagement, collaboration, and furthering the public’s understanding of APHIS.[38]

On other occasions too, APHIS has highlighted its making of “facility inspection reports available to the public on the APHIS Web site,” noting that “[t]hese were the most frequently requested APHIS records under the FOIA and making them available on our Web site will go a long way toward informing the public of our commitment to animal welfare, while also supporting our FOIA backlog reduction efforts.”[39] APHIS further encouraged programs within the agency to make inspection reports and other records available online “even before we receive a single FOIA request for them.”[40]

APHIS’s recent about-face threatens to undermine the transparency on which APHIS has long prided itself. For one, removing the Records makes it harder to access information on violators: rather than simply accessing this information directly online, the public will now have to make specific FOIA requests from APHIS — a process that can take months, sometimes years.[41] In fact, APHIS’s earlier disclosure of the Records on its website was aimed at reducing this very FOIA “backlog,”[42] so that the “[p]ublic does not have to make a FOIA request.”[43] Not surprisingly, APHIS’s monthly FOIA requests significantly increased in the months following the Records’ removal, and the agency’s FOIA backlog nearly doubled.[44]

Further, by reducing public oversight of APHIS’s actions, removing the Records also threatens the agency’s accountability and compromises public trust. Notably, APHIS’s own Office of Inspector General has in several audits already found the agency’s AWA enforcement process to be “ineffective.”[45]

Not surprisingly, several groups have echoed these transparency and accountability concerns. For instance, the head of the Association of Zoos and Aquariums (“AZA”) noted that “when people see something like that, they’re inclined, rightfully, to think that the government is trying to shield something from their view.”[46] And the AZA, which issued a press release criticizing APHIS’s actions,[47] represents over 200 zoos and aquariums — the very entities that are the subjects of APHIS’s inspection reports. Similarly, the Animal Welfare Institute has called APHIS’s actions “the opposite of transparency, it takes us back to the Stone Age.”[48] Politicians, too, have spoken out against the records purge. After APHIS removed the records, for instance, 18 Senators sent a letter to the Acting Deputy Secretary of Agriculture demanding that the Records be restored.[49] And shortly after that, around 100 Representatives signed onto a similar letter.[50]

While the Committee appreciates APHIS’s concerns about “maintaining the privacy rights of individuals,”[51] it is unclear how such concerns warrant removing records that APHIS has already disclosed to the public and that APHIS has indicated may still be available through FOIA requests.[52] Further, to the extent that APHIS believes certain information on inspection reports might be sensitive, APHIS could simply redact that information — a solution that FOIA expressly contemplates and that APHIS has previously employed.[53]

CONCLUSION

For the reasons above, the Committee approves the proposed legislation.

Animal Law Committee
Lori Barrett-Peterson, Chair

February 2018