Why I Sued the USDA

Delcianna J. Winders, Academic Fellow, Animal Law & Policy Program, Harvard Law School

 
This piece originally appeared in The Hill.

 

As a longtime animal law practitioner, I’ve represented various parties in lawsuits against the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS). But I’d never sued the agency—or anyone else—myself. Until this past Monday.

Like many, I was stunned when the USDA deleted thousands of Animal Welfare Act-related records from its website. The same day that the blackout occurred, law reviews opened up their submission season and I was gearing up to submit two pieces scrutinizing the USDA’s implementation of the Animal Welfare Act through close analysis of the now-deleted records. If the agency’s goal had been to stymie my work, it couldn’t have timed things better.

Of course, the records weren’t wiped from the website because of me. But why were they? According to the USDA, they were deleted “[b]ased on [its] commitment to being transparent, remaining responsive to our stakeholders’ informational needs, and maintaining the privacy rights of individuals.” The first two proffered bases are beyond Orwellian. The third is specious at best. Thousands of the records that the agency deleted have nothing to do with individuals with privacy rights but, corporations and universities that have no such rights. Moreover, the USDA already redacted information before posting records.

There has been much speculation about what might lie behind the agency’s decision to shield its practices from scrutiny. We won’t know the real impetus until the agency produces records about that decision. But the bottom line is that the blackout is unlawful regardless of the motivation. It violates the Freedom of Information Act’s (FOIA) mandate that agencies post records online, including frequently requested records. Before the USDA began posting Animal Welfare Act inspection reports online years ago, it acknowledged that they “were the most frequently requested APHIS records under FOIA.”

As the Supreme Court has recognized repeatedly, the core purpose of the Freedom of Information Act is “to open agency action to the light of public scrutiny” and to facilitate “the citizens’ right to be informed about what their government is up to.” Central to this purpose is ensuring that “information that sheds light on an agency’s performance of its statutory duties” is publicly available.

Public scrutiny of the USDA’s performance of its duties under the Animal Welfare Act is especially important given its utter failure to fulfill the purposes of the Act. As the USDA’s own Office of Inspector General has repeatedly and consistently found, the agency has implemented the law ineffectively, leaving countless animals to suffer. The most recent Inspector General audit found that the USDA “did not make the best use of its limited resources” in enforcing the Animal Welfare Act; failed to follow its own criteria in closing dozens of cases involving grave violations like animal deaths; grossly reduced penalties, rendering them a mere cost of doing business; and failed to adequately monitor animal experiments, reducing assurances that animals receive “basic humane care and treatment.” Time and time again the Office of the Inspector General has made similarly damning findings. Indeed, the most recent audit notes that three prior audits had found that “enforcement of AWA was ineffective” and that the miniscule penalties being assessed “did not deter violators.” My research confirm that these problems persist.

The USDA’s egregious and longstanding disregard of its statutory duties screams out for more—not less—oversight.

This is especially true given the deep public interest in animal welfare, made clear yet again by the overwhelming outcry in the days following the blackout. When the Animal Welfare Act was passed in the mid-1960s, Congress had received more mail about animal welfare than civil rights and the Vietnam War combined.  As the U.S. Court of Appeals for the District of Columbia has recognized, “Congress acted with the public’s interests in mind” in passing and amending the Animal Welfare Act. Animal welfare is also deeply bipartisan, as a letter to President Trump from nearly 100 hundred House members on both sides of the aisle demanding that the records be restored online makes clear.

When Sen. Robert Dole (R-Kan.) led the charge in passing important amendments to the Animal Welfare Act in 1985, he emphasized the “need to ensure the public that adequate safeguards are in place to prevent unnecessary abuses to animals, and that everything possible is being done to decrease the pain of animals during experimentation and testing.” The new administration should be working hard to fulfill this still unmet need—not to aggravate the situation. That’s why I’ve sued the USDA.