The enforcement of laws and public transparency seemingly are at odds at every turn. It’s certainly another chapter in the endless battle to eliminate the heinous act of soring.
After posting information such as inspection and enforcement reports on its website for more than a decade, the United States Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) changed its practice. Citing privacy and other laws, APHIS removed the records from its website Feb. 3.
“APHIS, during the past year, has conducted a comprehensive review of the information it posts on its website for the general public to view,” according to a message on APHIS’ website. ”As a result of the comprehensive review, APHIS has implemented actions to remove certain personal information from documents it posts on APHIS’ website involving the Horse Protection Act [HPA] and the Animal Welfare Act.”
Although the records were removed, the information is available upon submission of a Freedom of Information Act (FOIA) request.
“Courts are continuously issuing decisions that provide agencies with guidance on interpreting and applying laws applicable to the release of information to the public by the federal government, including the Privacy Act and Freedom of Information Act,” according to a statement from APHIS. “In addition, the U.S. Department of Justice maintains comprehensive guidance involving the Privacy Act, Freedom of Information Act, and other laws, and updates such guidance based on legal developments.”
Four days after removing the records, a clearer picture behind its decision began to emerge.
“In 2016, well before the change of administration, APHIS decided to make adjustments to the posting of regulatory records,” according to APHIS. “In addition, APHIS is currently involved in litigation concerning, among other issues, information posted on the agency’s website. While the agency is vigorously defending against this litigation, in an abundance of caution, the agency is taking additional measures to protect individual privacy. These decisions are not final. Adjustments may be made regarding information appropriate for release and posting.”
The litigation to which APHIS is referring could be a lawsuit brought by Lee and Mike McGartland, The Washington Post reports. The McGartlands, who are accused of soring their show horse, have been on the receiving end of several official warnings that designated them as “violators” on the APHIS website. The couple sued on the grounds that the “enforcement program denies due process to those accused of violations and breaks privacy laws by publishing personal information,” according to the Post.
Due process long has been made an issue in the enforcement of the HPA. Time and litigation will tell whether there is merit to the McGartland’s claim that they have been denied due process. To date, no challenges on these grounds have survived court scrutiny.
Privacy concerns, on the other hand, have a tendency to be trickier due to the subjective nature of interpretation. Yet, government transparency is vital. As the Dalai Lama once said, “A lack of transparency results in distrust and a deep sense of insecurity.”
In the cacophony of politically charged rhetoric that followed the USDA’s decision, the American Veterinary Medical Association (AVMA) perhaps summed it up best.
“We are concerned that this information will no longer be as readily available to us,” according to its statement. “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.”
With transparency comes deep responsibility. While transparency of these records is important, it’s equally important as it relates to the government’s actions. Those who are accused of wrongdoing in this country are presumed innocent until proven guilty beyond a reasonable doubt in a court of law. As we’ve seen in the Blake Primm case, the USDA has employed questionable tactics in its enforcement of the HPA.
While the information is available via FOIA requests, government at all levels are notoriously slow in fulfilling them. As the USDA continues to review its policies, the AVMA has called for that process to be hastened.
“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,” according to its statement. “The AVMA understands 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.”