UPDATE – February 18, 2017:
On February 17, 2017, USDA-APHIS announced it had reposted the first batch of Animal Welfare Act compliance information on its website. According to the agency, “…the reports posted are part of a comprehensive review of the documents the agency removed from its website in early February and are in the same redacted form as before.”
AVMA has heard from a number of our members since the agency removed compliance information from its website on February 3. Some have voiced concern about reduced transparency and worry about its impacts on animal welfare; some have expressed their support for ensuring the accuracy of compliance reports and the protection of privacy; and others have simply expressed surprise at what appeared to be a sudden decision on the part of the agency.
The AVMA regularly communicates with USDA-APHIS in our capacity as an advocate for veterinary medicine and animals’ health and welfare. Accordingly, we have and will continue to share our members’ concerns with them, seek more information as to why the agency took this action and what may impact their decisions going forward, and encourage an expedited and careful review process to ensure timely reposting of accurate compliance information. With respect to the latter, we were pleased to see that first steps were taken toward responsible transparency by reposting annual reports of research institutions and inspection reports for certain federal research facilities. Recognizing that legal requirements may ultimately place limitations on what USDA-APHIS may post online, we have also asked USDA-APHIS to adopt process improvements in its responses to Freedom of Information Act (FOIA) requests. The latter is critical if stakeholders will need to rely on such requests to obtain publicly accessible information.
Balancing transparency, accuracy, and privacy
February 8, 2017 – On February 3, 2017, USDA-APHIS announced that it would be making changes to the amount of Animal Welfare Act and Horse Protection Act compliance information provided via its website. Yesterday (February 7, 2017) the agency clarified that it would be “…implementing actions to remove documents it posts on APHIS’ website involving the Horse Protection Act (HPA) and the Animal Welfare Act (AWA) that contain personal information covered by the Privacy and Freedom of Information Acts or guidance from the U.S. Department of Justice regarding them. These documents include inspection reports, research facility annual reports, regulatory correspondence (such as official warnings), lists of regulated entities, and enforcement records (such as pre-litigation settlement agreements and administrative complaints) that have not received final adjudication.”
AVMA has received requests from both our members and the public asking for our perspective on USDA-APHIS’ actions, and inquiring as to this decision’s impact on our advocacy efforts. AVMA has utilized USDA-APHIS online records to obtain information and also to evaluate information shared with us by others related to the welfare of animals used in activities covered under these acts. As such, we are concerned that this information will no longer be as readily available to us. However, , the AVMA also recognizes that the release of information obtained through regulatory activity is subject to requirements established under applicable laws; in this case the applicable laws include both those intended to protect animal welfare and those intended to protect human privacy. Achieving the intents of these laws means a balance must be struck among transparency, accuracy, and privacy when sharing information related to regulatory activity. Furthermore, laws are subject to statutory interpretation, so final decisions are often reached as a result of long and complicated court proceedings. Thus, the AVMA appreciates the challenges that USDA-APHIS faces when determining how to best share the information that it collects in association with its enforcement of the AWA and HPA.
It is good news that USDA has indicated that inspection reports, research facility annual reports, regulatory correspondence, and enforcement records may still be obtained by submitting a Freedom of Information Act (FOIA) request. However, the AVMA is concerned that the amount of time required to process FOIA requests may be at odds with timely access to information that is needed to support good animal welfare. The AVMA understands (from the most recent information provided by USDA-APHIS) that what and how information ultimately will be provided is still under discussion. Should it be determined that privacy concerns prevent USDA-APHIS from sharing this valuable information online, we encourage USDA-APHIS to institute processes that assure that FOIA requests are processed expeditiously, while still affording appropriate attention to accuracy and privacy.
In addition, USDA-APHIS has advised that some enforcement records (such as initial decisions and orders, default decisions, and consent decisions) are available on the USDA’s Office of Administrative Law Judge’s website.
The AVMA will continue to monitor this situation and actively advocate for responsible transparency in the release of data. . In addition, we recognize and extend our appreciation to our colleagues whose work places them in the midst of such difficult discussions and decisions virtually every day. Their commitment to protecting animals’ welfare extends beyond, and is not affected by, whether information is posted online.