The US Department of Agriculture provoked a storm of criticism in February when it removed an entire database documenting its enforcement of animal welfare laws from the web. On Friday, in response to a Freedom of Information Act request from BuzzFeed News, the agency released the first batch of documents related to its decision to hide the material from public view.
The contents: 1,771 completely blacked-out pages, redacted in their entirety.
"They've been the opposite of transparent regarding this whole issue,” Eric Kleiman, a researcher with the Animal Welfare Institute, an advocacy group based in Washington, DC, told BuzzFeed News. “There have been no explanations, no anything. And this just continues it."
On Feb. 7, facing a chorus of protest that had united animal welfare groups with scientists involved in experiments using animals, the USDA explained that the decision to remove the material was triggered by an ongoing lawsuit.
“While the agency is vigorously defending against this litigation, in an abundance of caution, the agency is taking additional measures to protect individual privacy,” the USDA said in a statement.
The agency provided no further information, but later reports pointed to a suit involving its regulation of the Tennessee walking horse industry — a sport in which horses are judged for their style in performing a high-kicking “running walk.”
To exaggerate this gait, some trainers apply caustic chemicals to the horses’ legs — a practice known as “soring.” The lawsuit, filed by Contender Farms, a horse breeder, and SHOW, a group that promotes the industry, claimed that the scientific tests used by USDA inspectors to look for evidence of soring could be triggered by natural substances. It also complained that alleged violators were being identified in documents posted on the USDA’s website without having the chance to present their case at a hearing.
Contender Farms and its backers in the Tennessee walking horse industry had got what they wanted, and on Feb. 23 — with the Humane Society of the United States (HSUS) poised to join the suit as an additional defendant — withdrew the lawsuit.
“Given the fact that we have achieved the primary objectives in the lawsuit and we still retain our ability to refile the case should the information be made public again, SHOW felt it was best to dismiss the complaint,” the industry group said in a statement.
The USDA’s decision to remove from public view all of the agency's information on its regulation of animal welfare laws, including all records about animal research laboratories, baffled and angered animal welfare groups.
“It seemed a very drastic reaction to a single lawsuit,” Kim Ockene, an attorney with the HSUS, told BuzzFeed News.
To find out more, BuzzFeed News filed a FOIA request on Feb. 7 asking for all emails and other records regarding the decision to remove the database and documents from the web. On Friday, the USDA’s Office of General Counsel said it had found 1,771 pages of records regarding the decision, for the period from Feb. 24 to Mar. 10 — after the material was removed.
By that time, animal welfare groups including People for the Ethical Treatment of Animals (PETA) and the Animal Legal Defense Fund had filed two separate lawsuits alleging that the USDA had illegally removed the documents from the web.
To justify completely redacting the documents provided to BuzzFeed News, USDA’s Office of General Counsel cited attorney-client privilege and attorney work product, presumably covering records responding to these lawsuits. It also cited a FOIA exemption for records that “precede the adoption of an agency policy and include the opinions, recommendations, or deliberations on a legal or policy matter.”
Nate Jones, director of the FOIA Project for the National Security Archive based at George Washington University in Washington, DC, told BuzzFeed News by email that a federal agency is supposed to use that exemption only if it “reasonably foresees that disclosure would harm an interest protected by an exemption.”
“It certainly does not appear that USDA actually took this requirement into consideration in this case,” he said. “It appears that the agency reviewed the documents already deciding that they wanted to block all information about why animal welfare data was removed from its public website.”
Meanwhile, the USDA has started to return some the censored documents online. It has posted inspection reports from January 2016 to March 24, 2017, and annual reports from labs detailing the numbers of animals used in different categories of experiments for the years 2013 to 2015.
But the searchable database remains offline, and no reports of enforcement actions against institutions violating the Animal Welfare Act have been posted since August 2016.
Compared to before the sudden February takedown, animal welfare groups say that it’s now much harder to hold the USDA to account in its prosecution of institutions that violate animal welfare laws.
“We really kept an eye on the enforcement actions, and they're still not up,” Kleiman said.
Inspection reports that have been reposted to the USDA's website mostly do include the inventories of animals held by the facility at the time USDA inspectors visited. An earlier version of this article stated incorrectly that they do not. They are missing only for the most recent batch of reports, posted online on April 21. The USDA has said it intends to make these inventories available in future.