The Animal Legal Defense Fund and three other groups sued the Department of Agriculture in February, claiming its Feb. 3 decision to abruptly pull the data offline has obstructed their missions to fight animal cruelty and monitor government enforcement.
“Animal lives hang in the balance,” plaintiffs’ attorney Margaret Kwoka said during a preliminary injunction hearing Wednesday.
Kwoka said the animal rights groups have had to divert scarce resources to file Freedom of Information Act requests and wait for months, possibly years, to see inspection reports and enforcement actions that once were available instantaneously.
The Animal and Plant Health Inspection Service, a branch of the USDA, says it removed the data “as a precautionary measure” to protect individuals’ privacy.
In its opposition to the injunction, the USDA cited a declaration by E. James Pollak, director of an animal research center in Nebraska, who said he received death threats after The New York Times published a 2015 article falsely accusing his facility of animal cruelty.
Kwoka said that those threats were the result of The New York Times investigation and had nothing to do with USDA data posted online.
The reading room provision of the Freedom of Information Act requires that the government make frequently requested records publicly available in electronic form, without waiting for a request, the animal rights groups say.
But Department of Justice attorney Peter Bryce said the plaintiffs are misinterpreting that statute.
“It is expressly confined to specific records previously requested and released,” Bryce said. “It doesn’t apply to an entire category.”
Also representing the Justice Department, attorney Anjali Motgi said the agency has republished 25,000 of the documents online after they were reviewed for private information.
She said the plaintiffs are “trying to force the agency to speed up an action it’s already working on.”
Motgi said that because the agency was not required to publish the records online in the first place, it can take them down whenever it chooses.
Kwoka disagreed, saying that the “voluntary nature” of the agency’s initial public disclosure does not change its obligation to restore access to the records.
She said lack of access to data has undermined animal cruelty investigations and irreparably harmed her clients by forcing them to spend more time filing FOIA requests, hiring new staff, and revisiting work that depends on that access. The dearth of data has also interfered with state and local laws that require pet stores to check federal inspection reports online, she said.
Motgi, however, said that economic damages must be “considerable” to support a claim of irreparable harm. She said the plaintiffs have not demonstrated that the removal of data has caused them to expend a considerably higher percentage of their resources.
“FOIA request filing takes about an hour, and they say they file one per week,” Motgi said. “That’s one hour per week.”
Before the hearing began, U.S. District Judge William Orrick indicated he was leaning toward denying the injunction.
However, he indicated in his questions that the USDA might be obligated to make the data available under previously issued directives by the Obama administration and Justice Department.
“I believe those policies are still in effect,” Bryce told Orrick when asked if directives to proactively post data were still in place.
Orrick ended the hearing after nearly 90 minutes of debate and took the arguments under submission.
The other plaintiffs are Stop Animal Cruelty Now, Companion Animal Protection Society, and Animal Folks. Kwoka is with the University of Denver Sturm College of Law.
Lead plaintiff People for the Ethical Treatment of Animals filed a similar federal FOIA complaint against the USDA in the District of Columbia in February.