Thumbing nose at lawsuits, USDA-APHIS hides more info

Deletes documents posted in response to Freedom of Information Act requests

WASHINGTON D.C.––Hit with a second lawsuit,  draft legislation,  and letters from 119 members of Congress demanding that the U.S. Department of Agriculture restore web sites including Animal Welfare Act enforcement information,  the USDA Animal & Plant Health Inspection Service has instead thumbed its collective nose at demands for accountability and transparency by deleting even more material.

The first round of deletions,   coming a week after U.S. President Donald Trump took office,  purged the USDA-APHIS web sites of Animal Welfare Act inspection reports,  the annual compliance reports filed by more than 9,000 inspected entities,  regulatory correspondence,  enforcement records,  and lists of entities holding Animal Welfare Act permits.

Somewhat less than 1% of the deleted material was reposted two weeks later.

(See USDA-APHIS reposts less than 1% of deleted law enforcement info.)

“Wiped out” 860 info requests

“On February 24,  2017,”  Arizona information access advocate Russ Kick posted to his web site http://altgov2.org/other-aphis-documents/,  “they wiped out all documents having to do with around 860 Freedom of Information Act requests from 2010 and 2011 (other years were never posted).  For each request,  APHIS had posted the request letter and the response letter,  plus any documents that were released as a result,  which covered investigations of breeders and zoos,  a list of people fined for mistreating horses,  the practice of shooting wildlife from helicopters,  the safety of rabies vaccines,  and a database of every marine mammal in captivity in the U.S.

“For most of these requests,”  Kick said,  “there were APHIS documents released,  and in the majority of cases,  there were multiple documents.  My estimate is that well over 1,000 documents were pulled,  maybe even 2,000,  totaling over 10,000 pages. “

Monsanto info left up

However,  Kick noted,  USDA-APHIS “left up the documents related to one FOIA request,”  involving “their investigation into how Monsanto’s transgenic wheat showed up in an Oregon farmer’s field.”

The 2014 investigation exonerated Monsanto of allegations that it had somehow contaminated the U.S. wheat crop with a genetically modified strain of wheat,  including the commercial seed and grain supply.

The USDA report also concluded that the genetically modified wheat found in Oregon in May 2013 “was an isolated event on one farm,  one field,”  according to the Monsanto web site http://www.monsanto.com/gmwheat/pages/default.aspx.

Lost orders & litigation

Meanwhile,  summarized Tracy Loew of the Idaho Statesman-Journal,  “The discovery prompted Japan and South Korea to temporarily suspend some wheat orders,  and the European Union to call for more rigorous testing of U.S. shipments.”

Without admitting liability,  Monsanto agreed to settle related lawsuits by paying $100,000 to the National Wheat Foundation,  $50,000 each to the Washington Association of Wheat Growers, the Oregon Wheat Growers’ League, and the Idaho Grain Producers’ Association,  and by putting $2.125 million “into a settlement fund,  which will be designated to pay farmers in Washington,  Oregon,  and Idaho” who were harmed by the Japanese,  South Korean,  and European Union actions.

Kick reposted what he could

Not waiting for either pending litigation or Congressional action to win restoration of the deleted USDA-APHIS data,  Arizona information access advocate Russ Kick in mid-February 2017 began reposting as much of the information as he could gather at http://thememoryhole2.org/blog/aphis.

Kick did likewise with the information deleted on February 24.

“Retrieving each individual document was a multi-step process that involved going back and forth between the Internet Archive’s Wayback Machine and Google’s cache,”  Kick told readers.  “Because web pages and other documents usually disappear from Google’s cache days after they go off line,  the clock was ticking.  For the requests that led to documents being released,  which were still retrievable,  I grabbed what sounded like the most important ones.”

Source data used by ANIMALS 24-7

Kick “reposted the documents associated with 79 requests,”  he said,  admitting that much else was lost before he could retrieve the missing material.

Among the data that Kick reposted was source material cited in various ANIMALS 24-7 coverage which was originally obtained from USDA-APHIS by Big Cat Rescue directors Carole and Howard Baskin,  Dolphin Freedom Foundation founder Russ Rector,  Stop Animal Exploitation Now cofounder Michael Budkie,  and People for the Ethical Treatment of Animals.

Eight of the restored Freedom of Information Act data requests pertained to the walking horse exhibition and breeding industry and horse slaughter.

Walking horse industry info

USDA-APHIS attributed the original round of document deletions to litigation,  apparently a case filed in February 2016 by Texas attorneys and walking horse exhibitors Lee and Mike McGartland.

Explained Science online news editor David Grimm,  “The McGartlands, who have had several horses disqualified from competition because of allegations of soring,  charged APHIS with violating their due process rights.  In particular, because the inspection reports were posted online and contained the names of the alleged violators,  the McGartlands said that the USDA violated the federal Privacy Act,  which regulates the dissemination of personal information by federal agencies.  The lawsuit,  filed in a federal district court in Fort Worth,  Texas,  asked the agency to remove any such documents from its website.”

Settled same day as deletions

The McGartland lawsuit,  reported Bartholomew D. Sullivan of the Idaho Stateman,  “was dismissed on February 24,  2017 ‘without prejudice,’  meaning the plaintiffs could decide to re-litigate if they aren’t satisfied with the department’s actions,  such as making the records public again.”

February 24 was the same day that the additional USDA-APHIS web site deletions occurred.

Animal exhibitors

Also taken down were documents pertaining to USDA-APHIS inspections of 19 animal exhibitors and exhibition facilities,  “photos,  visuals,  or laboratory records relating to citations at various laboratories,”  a list of Animal Welfare Act penalties paid in 2008-2009,  responses to four Freedom of Information Act requests for lists of puppy breeders,  and 15 requests for information specific to various activities of USDA Wildlife Services,  the U.S. government agency assigned to exterminating livestock predators,  birds potentially interfering with airport flight paths,  and “invasive species.”

Among the animal exhibitors targeted by Freedom of Information Act requests were the Ringling Bros. Barnum & Bailey Circus,  which announced in January 2017 that it will cease touring in May 2017;  the Carson & Barnes Circus,  the largest circus still featuring elephant acts;  Sea World (specifically “Documents relating to export of killer whales from Sea World to Loro Parque” in the Canary Islands);  the Miami Seaquarium;  several bear exhibitors in Pigeon Forge,  Tennessee;  the St. Louis,  San Francisco,  Topeka,  and Chattanooga zoos;  the Elephant Sanctuary in Hohenwald,  Tennessee;  Oklahoma exhibitor Joe Schreibvogel of GW Exotics and multiple other business names;  and the Cricket Hollow Zoo.

Animal Legal Defense Fund

The latter lost two lawsuits in 2016 brought by the Animal Legal Defense Fund on behalf of lemurs,  tigers,  and lions,  who in settlement agreements were eventually transferred to other facilities.

The Animal Legal Defense Fund heads a coalition also including Stop Animal Exploitation Now,  the Companion Animal Protection Society,  and Animal Folks,  who on February 22,  2017 filed a lawsuit against the February 3,  2017 USDA-APHIS web site deletions.

Delcianna Winders,  previously deputy general counsel for the PETA Foundation,  after a stint representing Farm Sanctuary,   on February 14,  2017 filed a similar lawsuit on behalf of herself,  PETA,  the Los Angeles-based Beagle Freedom Project,  Born Free USA, the Physicians Committee for Responsible Medicine,   and the Massachusetts SPCA.

How the ALDF & PETA cases differ

Explained Animal Legal Defense Fund publicist Natalie Lima,  “The ALDF lawsuit includes allegations under the Freedom of Information Act,  like PETA’s lawsuit,  but also adds a new allegation that the USDA’s actions violated the Administrative Procedure Act.  If the coalition is successful with the claim under the Administrative Procedures Act,  which prohibits agencies from taking actions that are ‘arbitrary,  capricious,  an abuse of discretion,  or otherwise not in accordance with law,’  the records will be required to be reposted on the USDA’s website immediately.”

“The lawsuit,  filed in the Northern District of California,”  Lima added in a prepared statement,  contends that “The USDA’s decision to stop posting records significantly burdens the [plaintiff] organizations because they must now manage voluminous FOIA requests to access the same records,  potentially pay large fees,  and wait for several months or even years to obtain records previously accessible immediately online at no cost.

“Chronically lackadaisical enforcement”

“Public access to these records is especially important,”  Lima said,  “in light of the USDA’s chronically lackadaisical enforcement” of the Animal Welfare Act and other federal animal welfare legislation.

“The Office of Inspector General,  an oversight division of the USDA, regularly finds,”  Lima said,  “that the USDA renders its enforcement of the AWA largely ineffective by not aggressively pursuing enforcement actions against substandard facilities,  and by significantly discounting penalties even when it does pursue enforcement action.”

Please help us continue speaking truth to power: 

http://www.animals24-7.org/donate/