Editor’s Note: Ani B. Satz is a professor of law at Emory University who teaches animal law. She served as 2016 chair of the section on animal law of the Association of American Law Schools. The opinions expressed in this commentary are her own.
Ani B. Satz: Government inspection reports were removed from the USDA site
Inspection reports, some of which have been restored, are used in a variety of contexts to further animal well-being, she writes
The first few weeks of the Trump administration force us to reassess our vulnerability in the face of executive actions adversely affecting policies on immigration, trade, global alliances, natural resources and the fundamental composition and operation of our government.
It is in this climate of change that the US Department of Agriculture (USDA) recently removed all government inspection reports of animal facilities from its website, abolishing transparency of businesses and universities using animals and severely undermining the ability to prevent even the most extreme animal abuse.
Inspection reports, which were public until the department removed them February 3, are issued through the USDA and its sub-agency, the Animal and Plant Health Inspection Service (APHIS), pursuant to the Animal Welfare Act (AWA) and the Horse Protection Act (outlawing chemical burning of horses’ feet to produce an elevated gait, or soring). According to APHIS, the change was planned before the start of the Trump administration.
Following intense opposition from concerned individuals and organizations, USDA restored a very small number of these records on February 17, namely, limited records for eight states.
The AWA requires entities that exhibit, breed, transport for commercial sale and experiment on certain warm-blooded animals to be licensed. Government enforcement is vital for animal protection, consumer protection and governmental accountability.
Inspection reports are used in a variety of contexts to further animal well-being. Journalists use them to publicize animal abuses, and individuals and animal charities use them to bring lawsuits against entities violating federal requirements and to monitor government inspections.
Consumers, as well as pet dealers and retailers, use USDA’s resources to research dog breeders to avoid obtaining animals from puppy mills, with legal obligations to do so in seven states.
Even some inspected entities, such as the Association of Zoos & Aquariums, are troubled by the removal of the inspection reports, since facilities that have nothing to hide build public trust and patronage through disclosure. Notably, Petland stores and pro-animal research group Speaking of Research also are against the shift.
As seen in the factory farming context, when there is no transparency in operations (farms are not subject to USDA inspection), violations of animal protection laws abound. Piglets are kicked and smashed to death. Baby male chicks of no economic value because they cannot lay eggs are ground up alive in wood chippers. Ill cows are dragged with bulldozers and chains, becoming dismembered. Farm animals are transported to slaughter without adequate hydration, food or rest, many perishing before reaching the slaughterhouse.
One of dozens of examples from last year alone of the use of USDA inspection reports in litigation to prevent animal abuse is Kuehl v. Sellner, a case decided in the Northern District of Iowa.
After informal negotiations with an Iowa zoo failed, the Animal Legal Defense Fund and other charities used inspection reports documenting extensive, ongoing violations to bring suit and to prevail.
The photos and reports are almost unbearable – an emaciated, vomiting and dying lion, and tiny cages for large animals like tigers and pumas with feces piled so high it appears as if a foul blizzard blanketed the cages. Primates, who are extremely social and in the wild cover tens of miles a day, were kept in isolated, small cages and demonstrated severe psychological distress.
According to Wayne Pacelle, CEO of the Humane Society of the United States, the USDA’s removal of inspection reports also violates a court order reflecting a settlement between the parties that requires the agency to publish certain laboratory data on its website. If so, the administration may be held in contempt of court. (These records were not restored on February 17th).
To be sure, it remains possible to file Freedom of Information Act requests to uncover information in a much less efficient fashion. These requests take months to years, and in the meantime, future defendants may disappear.
At the end of fiscal year 2015, APHIS had more backlogged FOIA requests than any other USDA subagency. And the backlog is likely to increase dramatically, since prior to making the inspection reports available online, APHIS acknowledged they were the most frequently requested records.
Why might the USDA remove these reports?
The agency gave this explanation on Feb. 7: “The review of APHIS’ website has been ongoing, and the agency is striving to balance the need for transparency with rules protecting individual privacy. In 2016, well before the change of Administration, APHIS decided to make adjustments to the posting of regulatory records. In addition, APHIS is currently involved in litigation concerning, among other issues, information posted on the agency’s website. While the agency is vigorously defending against this litigation, in an abundance of caution, the agency is taking additional measures to protect individual privacy. These decisions are not final. Adjustments may be made regarding information appropriate for release and posting.”
And on Feb. 17, when the agency announced the reposting of some records, it stated it would “continue to review records and determine which information is appropriate for reposting.”
Undoubtedly, the decision to remove documents will greatly reduce transparency of animal operations and diminish government accountability.
The USDA’s action may be to frustrate private enforcement actions by making them more costly and lengthy to pursue. It possibly is a misguided attempt to save operating costs, though inspection reports still need to be maintained, FOIA requests will consume agency resources as well, and a decrease in private litigation may make the USDA’s enforcement obligations more onerous.
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As reported by the Washington Post, the removal of the documents came two days after Rep. Ken Calvert (R-CA) introduced a bill requiring further transparency by, and a reduction of animals used in, laboratories receiving federal funds to guard against taxpayer waste (taxpayers spend about $14 billion annually on animal research).
While the USDA cites individuals’ privacy concerns in its announcements about the document removal, the agency has always had, and continues to have, the power to redact all reports.
The USDA oversees more than three quarters of a million animals under the AWA who are more vulnerable than most humans are to human abuse, as they cannot speak for themselves. Whether in a laboratory, a breeding operation, or a zoo, their bodies are often subject to closed-door human exploitation, with USDA inspections as the only sliver of protection and exposure. Reducing public access to inspection reports undermines government accountability and animal protection.