Lawyers line up to sue USDA-APHIS over law enforcement info deletions

HSUS is first to file notice

         WASHINGTON D.C.––The Humane Society of the U.S. appears to have been the first organization to file notice of a legal challenge to the February 3,  2017 purge of USDA Animal & Plant Health Inspection Service law enforcement data from the USDA-APHIS web site.

USDA-APHIS deleted without prior warning all Animal Welfare Act and Horse Protection Act “inspection reports,  regulatory correspondence,  research facility annual reports,  and enforcement records that have not received final adjudication,”  according to a notice posted to the web site on February 3.

USDA-APHIS also deleted “the lists of licensees and registrants under the AWA,  as well as lists of designated qualified persons licensed by USDA-certified horse industry organizations” to inspect walking horse shows.

But much and perhaps all of the deleted data turned out to have already been saved by someone to an offshore web site,  https://mega.nz/#F!0RQFCIhR!3QACg2IX2fvYuBi8SzG3Kg.

Deletions praised by walking horse industry advocates

The USDA-APHIS action was praised in messages to ANIMALS 24-7 by walking horse industry advocates Joy Smith of Mississippi  and Jan Rochester of Kentucky,  but was unanimously denounced in messages and public postings from news media professionals,  animal advocates,  and people involved in animal-related law enforcement.

Many individuals and organizations indicated that they would investigate possible legal action against the purge,  which became known to the public at about 11 a.m. on the Friday before Super Bowl Sunday––an apparent attempt by USDA-APHIS personnel to delay widespread awareness that the many thousands of pages of Animal Welfare Act and Horse Protection Act data had disappeared.

Warning letter

But while other potential plaintiffs were still mobilizing,  HSUS counsel Laura J. Fox and senior attorney for animal protection legislation Kimberly D. Ockene had a warning letter delivered bright and early on Monday morning,  February 6,  2017,  to U.S. Department of Justice Office of Information Policy chief Sean O’Neill.

“Pursuant to the Joint Stipulation of Dismissal of Civil Action No. 05-0197, The Humane Society of the United States v. United States Department of Agriculture,”  Fox and Ockene wrote,  referencing a 2009 court case,  “we are writing to notify you of USDA’s violations of the terms of that agreement,  and the Court’s accompanying order.

“If the violations,”  specifically delisting the Animal Welfare Act enforcement data from the USDA-APHIS web site,  “are not cured immediately,”  Fox and Ockene told O’Neill,  “we will move to enforce the Stipulation and Order, and/or reopen the lawsuit.”

Deleted info on precedent case

Ironically,  the information deleted from the USDA-APHIS web site appeared to include the “Joint Stipulation of Dismissal of Civil Action No. 05-0197” itself.  ANIMALS 24-7 found only one cryptic reference to it:

“As a result of the July 1, 2009, Settlement Agreement reached in Humane Society of the United States v. USDA, No. 05-0197 (D.D.C.),”  a memo dated September 9,  2016 advised organizations required to file Animal Welfare Act compliance reports,  “APHIS conducted a Freedom of Information Act review of and subsequently posted to its Animal Care website all AR Attachments for Fiscal Years 2009 through 2013.”

The memo went on to instruct persons filling out Animal Welfare Act compliance forms about how to do so.

Details of the 2009 settlement

But particulars of the July 1,  2009 settlement agreement were readily available from the blog archives posted by Humane Society of the U.S. president Wayne Pacelle.

Explained Pacelle soon after the agreement was reached,  “The tens of millions of animals used in biomedical research in the U.S. are kept behind closed doors,  with scientific studies—when published—providing only sanitized glimpses of what the animals experience.  One of the few ‘windows’ into a research facility’s animal laboratories have been the annual reports that these facilities file with the U.S. Department of Agriculture under the Animal Welfare Act.

         “These reports have been available to the public under the Freedom of Information Act,”   Pacelle wrote.  “However, this process has been frustratingly slow, with months—sometimes years—passing before the requested reports are provided.  And to make matters worse,  the USDA often redacted key portions of the reports or failed to locate reports altogether.  The agency briefly experimented with putting the reports online—making them readily available to the public—but this was short-lived,”  until HSUS won the referenced settlement after four years of litigation.

Settlement required online postings

Announced Pacelle,  “research facility reports must now be made publicly available online,  and in a timely manner.  Additionally, less information will be redacted from the reports.  The USDA will also have to indicate on its website which facilities did not submit annual reports,  and thereby violated Animal Welfare Act requirements.

“The annual reports at issue describe the numbers and species of animals used in experiments,  as well as whether or not the animals experienced unrelieved pain and distress,”  Pacelle continued.

“If so,  an explanation of the procedure and scientific justification must be included).  The reports must also contain an explanation of any cases in which research protocols did not comply with the Animal Welfare Act—such as by restraining a nonhuman primate for more than 12 hours—owing to alleged scientific necessity.

“While these reports don’t contain all of the information we’d like to have,”  Pacelle acknowledged,  “they are our main,  and virtually only,  source for getting a glimpse of the level of animal research occurring in any given facility.”

Forrest Lucas vs. Tom Vilsack

Pacelle concluded by thanking then-U.S. Agriculture Secretary Tom Vilsack “for ensuring public access to this animal research information.”

The almost incidental thank-you appears in hindsight significant,  in view of Protect the Harvest founder Forrest Lucas’ longtime public antipathy toward Vilsack,  expressed in a 2012 web posting entitled “Family Ties:  HSUS and the Vilsacks.”

Lucas and Protect the Harvest executive director Brian Klippenstein have since the inauguration of U.S. President Donald Trump appeared to be directing USDA-APHIS animal welfare policy from behind the scenes.

Klippenstein,  observed the online “inside politics” magazine Politico, was for weeks “the sole [Trump] transition team representative preparing USDA for a new administration.”

(See also Is Protect the Harvest behind USDA purge of Animal Welfare Act data?)

“Clear violation”

HSUS attorneys Fox and Ockene warned O’Neill that the USDA-APHIS web site purge “is a clear violation” of the 2009 agreement and order,  “and also contrary to sound public policy and the letter and purpose of the Freedom of Information Act Amendments of 2016 and 1996.

“In particular,”  Fox and Ockene wrote,  “USDA agreed and the Court ordered the agency to electronically post all annual reports.

“Additionally,”  reminded Fox and Ockene,  “with respect to 2009-2013 reports,  the Stipulation and Order provides:

All annual reports will be electronically posted by USDA in a manner that allows any website viewer to determine which institutions that were required to submit a report for a given fiscal year did not do so.  USDA’s website will also allow any viewer to determine which institutions that were required to submit a report for the previous fiscal year are no longer registered and therefore not required to submit a report for the given fiscal year.

“Scrubbed” reports

“In clear violation of these provisions,”  Fox and Ockene specified,  “USDA scrubbed every single one of the above-referenced annual reports from its website without seeking leave of the court or providing any advance notice to HSUS.

“The precipitous removal of these records was also apparently done without any consideration of the detrimental impact it will have on state and local law enforcement,”  Fox and Ockene charged,  “including the administration of several current state laws that are entirely dependent on both business owners and consumers having ready access to the online database that housed inspection reports for roadside zoos,  circuses, puppy mills,  and research laboratories.

         “Without real-time public access to the records and databases previously available on USDA’s website,”  Fox and Ockene noted,  “many of the state, local, and industry efforts taken to improve animal welfare over the last decade are now unworkable.  Moreover,  future efforts to improve state and local enforcement and industry self-policing of Animal Welfare compliance will be severely compromised.

May violate 1996 and 2016 info access laws,  too

“It also appears,”  Fox and Ockene added,  “that the agency’s decision violates the Freedom of Information Act Improvement Act of 2016 and the Electronic Freedom of Information Act Amendments of 1996,  which provide that federal agencies ‘shall make available for public inspection and copying’  by ‘electronic means…copies of all records’ that have ‘been released to any person… [and which] the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records.’”

HSUS,  Fox and Ockene finished,  “intends to take further action unless USDA agrees to reconsider this bizarre reversal of the agency’s longstanding policy concerning Animal Welfare Act enforcement documentation.”

Zoos don’t like deletion either

Most organizations representing animal use industries have been quiet about the USDA-APHIS online file deletions,  but late on February 7,  2017 the Association of Zoos and Aquariums (AZA),  accrediting 232 of the most visited zoos and aquariums in the U.S.  issued a media statement saying that it “disagrees with USDA’s decision,  which makes this important information harder,  not easier,  for the public to obtain.”

Said AZA chief executive Dan Ashe,  who previously headed the U.S. Fish & Wildlife Service,  “When the Department of Agriculture decided to take all animal welfare inspection reports offline, there is no doubt some APHIS licensees were very happy:  those who have no desire for the public to know about their animal welfare record.”

The AZA from formation in 1960 has sought to establish a gulf in public perception between accredited member zoos and aquariums,  which are almost all nonprofit institutions,  and “roadside zoos,”  either under private for-profit ownership or operating as quasi-sanctuaries open to paid visitors.

Ashe,  as director of the Fish & Wildlife Service,  had oversight over inspections and in many instances prosecutions of “roadside zoos” that kept wildlife in negligent conditions.

Foundation for Biomedical Research

Said Foundation for Biomedical Research president Matthew R. Bailey,  in a statement to the magazine Nature,  “I would certainly agree that protection of personal information,”  the rationale stated by USDA-APHIS,  “is of utmost importance,  especially given the rich history of [militant animal advocates] targeting the individuals involved in animal research.

“However,”  Bailey added,  “this change also makes it more time consuming,  although not impossible,  for organizations like FBR to analyze trends in animal use in research.”

“Affront to democracy”

“Scrubbing Animal Welfare Act inspection reports from the internet is an affront to the transparency vital to our democracy,”  said Animal Legal Defense Fund executive director Stephen Wells.

“The Animal Legal Defense Fund is already at work to restore access to these critical documents,”  Wells promised.  “We will not allow illegal behavior to continue unexamined and unchallenged.  The Animal Legal Defense Fund has already begun evaluating all legal options,  including suing the USDA.”

Stop Animal Exploitation Now cofounders Michael and Karen Budke told ANIMALS 24-7 that they were also looking into possible legal responses,  perhaps in coalition with other animal advocacy organizations.

“More access,  not less”

Assessed Citizens for Alternatives to Animal Research & Experimentation,  “Several media reports on the removal of the database seemed to indicate that the takedown wasn’t sudden,  claiming [as the USDA-APHIS statement on the removal says] it was in review for the past year.  While that may be true,  all prior activity was moving in the direction of more access,  not less.

“Indeed,  in August 2016, USDA APHIS issued an email to all stakeholders indicating that the database was soon to be updated,  referring to it as ‘the advent of the new USDA Animal Care Search Tool,’”  now deactivated.

“In the coming weeks,”  CAARE pledged,  “CAARE will be speaking against this action by the new USDA administration,  as well as exploring possible legal remedies to oppose this outrageous shuttering of disclosure on animal industries that need more exposure,  not less.”

PETA “legal team is on it now”

People for the Ethical Treatment of Animals in a posted statement disagreed with the CAARE view of recent USDA-APHIS law enforcement disclosure history.

“For months,”  said PETA,  “long before President Donald Trump took charge,  the USDA has been quietly planning to remove all inspection and annual reports of facilities that confine animals.  The agency stopped reporting its serious enforcement actions last fall,  and PETA was on it then,  questioning officials about this lack of transparency.

“Our legal team is on it now,”  PETA promised.

“Coordinating with experts”

Said the Physicians Committee for Responsible Medicine  “The Physicians Committee’s program and legal teams are coordinating with experts outside the organization to devise an effective response to the USDA’s new policy.”

But,  having served notice first,  HSUS is likely to have the first court date.

 

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