Ninth Circuit: Courts Can Force Feds to Put Records Online

(AP Photo/Matt York)

SAN FRANCISCO (CN) – In a decision that will expand the power of courts to make government agencies post information online, the Ninth Circuit this week reversed the dismissal of a lawsuit challenging the removal of animal welfare compliance data from a U.S. Department of Agriculture website.

“The decision from the Ninth Circuit is a major victory for public advocates using the Freedom of Information Act,” said Christopher Berry, senior staff attorney for plaintiff Animal Legal Defense Fund (ALDF).

ALDF and three other groups sued the USDA in 2017 after it abruptly pulled animal welfare compliance data offline, a move the plaintiffs say frustrates their missions to fight animal cruelty and monitor government enforcement.

U.S. District Judge William Orrick III dismissed the suit in August 2017, finding courts lack power to force government agencies to make documents available to the public at large, as opposed to individual requesters, under the Freedom of Information Act.

A three-judge Ninth Circuit panel overruled Orrick’s decision Thursday, finding the law authorizes courts to make agencies stop holding back records which they have a duty to make available in “virtual reading rooms” online.

“If an agency shrugs that congressional command, the statute forces plaintiffs right back into the requests and backlogs Congress sought to avoid in the first place,” Senior U.S. Circuit Judge N. Randy Smith, a George W. Bush appointee, wrote for the majority.

FOIA’s reading room provision requires agencies make certain records available on government websites, including agency policies, interpretations of law and frequently requested documents, pursuant to FOIA amendments passed by Congress in 1996 and 2016.

The animal rights groups say they’ve had to divert scarce resources to file FOIA requests and wait months or years to see inspection reports and enforcement actions that were once available instantaneously. They say access to that information is crucial to monitor abuses at roadside zoos, puppy mills and research facilities, and to ensure that USDA inspectors enforce animal abuse laws.

The USDA said it removed the records to ensure they did not reveal private information about entities regulated by the USDA’s Animal and Plant Health Inspection Service.

In finding that plaintiffs can sue to make government agencies post certain public records online, the Ninth Circuit split with the D.C. Circuit, which held in the 2017 ruling Citizens for Responsibility & Ethics in Washington v. DOJ, or CREW I, that courts can only compel the government to disclose records to a requester, not the public at large.

Adopting the D.C. Circuit’s reasoning would render FOIA’s reading room provision “dead letter” law, the Ninth Circuit panel’s majority concluded.

“An agency would have no enforceable duty to post its important staff manuals, or its interpretation of the statute it’s charged with enforcing, or its final opinions in agency adjudication,” Smith wrote.

U.S. District Judge Fernando Olguin, a Barack Obama appointee sitting by designation from the Central District of California, joined Smith.

Disagreeing with her colleagues, U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee, wrote that FOIA only empowers courts to make agencies release records “improperly withheld from the complainant,” not from the public at large.

“Ordering the publication of documents to the individual plaintiffs is not the same as ordering the publication of documents to the public at large,” Callahan wrote.

Berry, of ALDF, said the plaintiffs are pleased with the decision and “look forward to going back to district court and proving that the records that were taken offline ought to be reposted.”

Other plaintiffs in the lawsuit include Stop Animal Cruelty Now, Companion Animal Protection Society, and Animal Folks.

A Department of Justice spokeswoman declined to comment. The USDA did not immediately respond to an email seeking comment Friday morning.

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