SAN FRANCISCO (CN) – The Ninth Circuit on Monday signaled it will likely revive a public-records lawsuit against the U.S. Department of Agriculture which seeks to restore online access to animal welfare compliance records which was removed two years ago over privacy concerns.
During a hearing in San Francisco, the court's three-judge panel seemed to agree animal-rights groups can't win back online access to the records under the Freedom of Information Act. But two judges suggested the plaintiffs can sue under a separate statute that allows for judicial review of decisions made by federal agencies.
The proposition affords the USDA little wiggle room to win the appeal.
"If we adopt your argument, which is that they have no way to do this under FOIA, then I don't know why they wouldn't have a way to do this under the APA," Senior U.S. Circuit Judge N. Randy Smith told Justice Department attorney Daniel Tenny, using the acronym for the Administrative Procedure Act.
The George W. Bush appointee added: "That seems to be exactly where they ought to go because the APA is relief where there is no remedy under FOIA.”
In February 2017, the Animal Legal Defense Fund and three other groups sued for a preliminary injunction ordering the USDA to put the records back into its FOIA-mandated online reading rooms, after the agency abruptly pulled them over concerns people had been targeted for harassment and death threats after names and business addresses were disclosed in connection with eventually discredited accounts of animal abuse.
FOIA's reading room provision requires the government to make publicly available in an "electronic format" frequently requested records, including final opinions, orders and policy statements.
The plaintiffs claim they can't effectively monitor animal abuse at roadside zoos, puppy mills and research facilities – or government enforcement of animal-cruelty laws – without instant online access to records, which they say they now wait months or years for.
In June 2017, U.S. District Judge William Orrick III in San Francisco denied the injunction and later threw the case out of court,reasoning FOIA is limited to individual requestors, not the general public.
He also ruled the plaintiffs couldn't sue under the APA, which allows for agency decisions deemed "arbitrary and capricious" to be vacated.
Animal Legal Defense Fund attorney Margaret Kwoka challenged Orrick's reasoning Monday. She pointed to the USDA's stated rationale that it removed the records in part to fulfill its "commitment to transparency."
"There is something somewhat a bit farcical about saying a commitment to transparency requires us to remove documents from a website," said Kwoka, who is with the University of Denver Sturm College of Law.
U.S. Circuit Judge Consuelo Callahan chimed in.
“That doesn’t sound arbitrary and capricious,” she said, noting USDA officials had also explained their decision to remove the documents over "increasing concern" for privacy.
Callahan, who oversaw Monday's proceedings, is also a George W. Bush appointee.
Drawing out this line of inquiry, Smith said the plaintiffs probably don't have standing to sue under FOIA. But he hinted he believes they do under the APA, and reiterated it more directly while questioning Tenny.
Tenny argued the plaintiffs couldn't yet sue under FOIA either because they hadn't exhausted their administrative options for obtaining the records, such as filing a records request. And he maintained that though FOIA mandates the production of records to individual requestors, it does not mandate production for the general public.
"Congress determined not to provide that remedy," Tenny said, "and then you turn around and say, 'Never mind, because we can just go to the APA –”
Smith cut in. "Not 'never mind,'" he said."Never mind that it isn't under FOIA, and therefore if there is no remedy under FOIA, why not a remedy under the APA?"
Tenny countered there is in fact a remedy under FOIA – filing a records request. "They just don't like it," he said, referring to the plaintiffs.
U.S. District Judge Fernando Olguin seemed doubtful. Sitting by designation from the Central District of California, he wanted to know how FOIA's reading room provision is enforced.
"Isn't the purpose of the reading room provision to provide access...without requiring individuals to make FOIA requests?" he said. "The way I see your argument, it almost makes it unenforceable."
Tenny explained the provision was added to the statute to streamline requests for frequently requested documents. But it "wasn't a remedy that Congress wanted."
"You do not have to create a remedy for that in order to accomplish that purpose, and Congress did not create such a remedy, and it would be extraordinary to say that when Congress set out an administrative review scheme with exhaustive requirements for how you specify the records with agency review and judicial review, that you could just turn around and go to the APA and say, 'Well, even though Congress didn't give it to me in the FOIA, I want it in the APA,'" he said.
The panel took the case under submission and did not indicate when it will rule.
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