APHIS Changes Bode Well

Carlotta Cooper

On Friday, February 3, 2017, USDA-APHIS released a flurry of announcements about their web site that set animal rights activists twittering. Here’s part of one announcement:

“APHIS, during the past year, has conducted a comprehensive review of the information it posts on its website for the general public to view. As a result of the comprehensive review, APHIS has implemented actions to remove certain personal information from documents it posts on APHIS’ website involving the Horse Protection Act and the Animal Welfare Act. Going forward, APHIS will remove from its website inspection reports, regulatory correspondence, research facility annual reports, and enforcement records that have not received final adjudication. APHIS will also review and redact, as necessary, the lists of licensees and registrants under the Animal Welfare Act, as well as lists of designated qualified persons (DQPs) licensed by USDA-certified horse industry organizations.

“We can still publicly post a list of our licensees/registrants that we regulate under the Animal Welfare Act…

“Those seeking information from APHIS regarding inspection reports, research facility annual reports, regulatory correspondence, lists of regulated entities, and enforcement related matters may submit Freedom of Information Act (FOIA) requests for that information….”

Other announcements explained that the Animal Care Search Tool on the site has been deactivated – the tool so beloved by animal rights groups and individual activists (i.e., trolls) to look up breeders and target them for harassment. Yet another announcement explained that APHIS was taking these actions in response to litigation concerning information and the privacy of those regulated. The agency said it is trying to balance the need for transparency with rules protecting individual privacy.

What does all of this mean for dog breeders regulated by USDA-APHIS? Despite suggestions from animal rightists claiming that the removal of this information is a nefarious plot against animals by the Trump administration, all indications suggest that the USDA is reacting to several lawsuits filed against them and other agencies by stakeholder groups that had been harmed by the release of personal information to activists. Not only did APHIS state this in several announcements, but federal agencies have not fared well recently in court when it comes to how they have handled the personal information of licensees.

 On September 9, 2016, in the case of American Farm Bureau Federation et al. v. Environmental Protection Agency et al., Case No. 13-cv-1751, in the U.S. Court of Appeals for the Eighth Circuit, the federal appellate court revived a bid by two farm groups to stop the United States Environmental Protection Agency from releasing addresses and other information about large scale animal farms under the Freedom of Information Act. The ruling found that, excluding what is required in the Freedom of Information Act (FOIA), providing this kind of personal information to environmental groups was a serious privacy violation. The lawsuit dates back to 2013 when the EPA released the names, addresses, and GPS locations (as well as other personal information in some cases) of roughly 100,000 agricultural operations to environmental groups. This ruling over the EPA should have ramifications for many federal agencies. In addition, Tennessee Walking Horse groups have sued USDA – and won – and they continue to raise funds for an industry-wide effort to sue the agency again over privacy concerns and disagreements with the agency. Finally, PETA did not come out well in a lawsuit against the department of Health and Human Services when they tried to argue that the Centers for Disease Control and Prevention had withheld information sought by the group in FOIA requests concerning importers of nonhuman primates – People for the Ethical Treatment of Animals v. United States Department of Health and Human Services, No. 15-cv-309, slip op. (D.D.C. January 5, 2017).

 

When USDA states that it has been monitoring legal developments and taking advice from counsel, I think we should believe them. People regulated by government agencies have the same civil rights as anyone else. We should all have a reasonable expectation that government agencies will handle our personal information with some discretion instead of making it openly available online.

Whatever may have motivated USDA-APHIS, the removal of personal information for easy public viewing should be welcomed by most dog breeders. At least one large group of USDA-licensed breeders viewed the news favorably. Many of them have been harassed by animal rights activists online or in person – people who had dredged up their personal information and inspection reports on the USDA-APHIS web site, sometimes making false reports about the breeders. Doing away with the harassment breeders have experienced from animal rights groups and from individuals simply trolling the APHIS site for personal information about breeders seems to far outweigh any potential problems according to people who have been the victims of animal rights groups.

Dog breeders are not the only ones who have suffered from the release of too much personal information by federal agencies. At least one cattle operation – Harris Farms in California, also the birthplace of racehorse California Chrome – was the target of arson totaling over $2 million in damages by the animal rights terrorist organization ALF in 2012 due to information released by the EPA. Scientists and researchers who work with animals have also been victimized by animal rights activists. Their laboratories are inspected by USDA-APHIS under the Animal Welfare Act. In fact, the Animal Welfare Act was initially created by Congress in the 1960s specifically to oversee laboratory animals. Activists have increasingly targeted individual researchers according to a 2014 report by the Federation of American Societies for Experimental Biology (FASEB), the largest coalition of biomedical research associations in the United States. In 2004 ALF (the Animal Liberation Front) broke into psychology labs at the University of Iowa. They removed hundreds of animals, smashed equipment, and spray-painted walls, resulting in more than $400,000 in damages. By 2009, after APHIS began posting more detailed information on their web site, activists were making the attacks more personal. They set fire to the car of a UCLA neuro-scientist who worked with rats and monkeys in the driveway of his residence. Other researchers have reported that activists have shown up at their homes in the middle of the night where they have made threats against their families.

 

Some animal welfare advocates have expressed concerns about the changes because they may lead to problems for breeders that sell puppies to pet stores and are required to provide inspection reports, or the pet store has to have access to the breeder’s most recent inspection report. According to the Washington Post, only seven states currently have laws that require pet stores to show USDA inspection reports from breeders, though there may be some states considering similar laws. Laws in those seven states may need to be changed in response to USDA-APHIS’s new policy. If individual puppy buyers insist on an inspection report from a USDA-licensed breeder, they can either make a Freedom of Information Act request which is, admittedly, slow. Or they can directly ask a breeder for a copy of a recent final inspection report.

APHIS notes that final inspection reports will still be posted on their site, minus the kind of personal data to which those regulated by USDA and other agencies have objected. What won’t be as easy to obtain are incomplete or initial reports from inspectors. For example, if an inspector comes to your kennel and notes that you have some rust on a crate and a cobweb in the corner, telling you to fix the problems before they return, that report will not be posted. You will, presumably, fix the rust on the crate and get rid of the cobweb. When the inspector returns and makes a final report, that report will be posted on the APHIS site, noting that the problems have been addressed. This can make a big difference when it comes to being called out by animal rights groups. Such groups will no longer be able to cherry pick an incomplete report claiming that a breeder has violations that are not being addressed. (Naturally, if you do NOT address violations noted, that will also be noted and you will still be subject to USDA fines and penalties.)

Some information regarding inspection reports, research facility annual reports, regulatory correspondence, and enforcement records will be made available through Freedom of Information Act (FOIA) requests. Some enforcement records (such as initial decision and orders, default decisions, and consent decisions) will be available on the USDA’s Office of Administrative Law Judge’s website. APHIS has noted that they are still making decisions and adjustments about what they will be posting.

As you might expect, animal rights groups such as the Humane Society of the United States are livid about the changes announced by USDA-APHIS. HSUS is honking mad and already vowing to file a notice of “violation” over what they contend to be their agreement with the USDA about public access to information. We’ll see how USDA-APHIS responds to the threats from HSUS. While this change at APHIS has been in the works for several months – pre-dating the Trump administration – it’s worth noting that President Trump and various cabinet members have not been friendly to HSUS and animal rights groups in the past. The agricultural advisory group put together by Mr. Trump before his election was noticeably anti-animal rights in philosophy. HSUS was virulently opposed to Mr. Trump’s election as well. HSUS may continue to have some support at USDA-APHIS, but they probably won’t have much support in the new administration.