Animal Legal Defense Fund v. U.S. Dep't of Agric.

• Decision Date: 29 August 2019
• Docket Number: No. 17-16858,17-16858
• Citation: 935 F.3d 858
• Parties: ANIMAL LEGAL DEFENSE FUND; Stop Animal Exploitation Now; Companion Animal Protection Society ; Animal Folks, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE; Animal and Plant Health Inspection Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

935 F.3d 858

ANIMAL LEGAL DEFENSE FUND; Stop Animal Exploitation Now; Companion Animal Protection Society ; Animal Folks, Plaintiffs-Appellants,

v.UNITED STATES DEPARTMENT OF AGRICULTURE; Animal and Plant Health Inspection Service, Defendants-Appellees.

No. 17-16858

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 17, 2018 San Francisco, California

Filed August 29, 2019

N.R. Smith, Circuit Judge:

The Freedom of Information Act ("FOIA") requires federal agencies to make certain agency records "available for public inspection in an electronic format." 5 U.S.C. § 552(a)(2). FOIA's judicial-review provision authorizes district courts to enjoin violations of this "reading-room" provision. See id. § 552(a)(4)(B).

BACKGROUND

The Legal Landscape

Congress designed FOIA "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quoting Rose v. Dep't of Air Force , 495 F.2d 261, 263 (2d Cir. 1974) ). Corruption, government inefficiency, and mistrust of public institutions all flourish "unless the people are permitted to know what their government is up to. " See Dep't of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 772–73, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting EPA v. Mink , 410 U.S. 73, 105, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) (Douglas, J., dissenting)); see also id. at 772 n.20, 109 S.Ct. 1468. After all, public scrutiny and an informed citizenry are "vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."

NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978).

To implement these goals, FOIA creates three different mechanisms for making agency records available to the public. First, the law compels agencies to publish certain categories of documents in the Federal Register. 5 U.S.C. § 552(a)(1). Second, in the provision at issue in this case, FOIA requires agencies to make certain records "available for public inspection in an electronic format." Id. § 552(a)(2). Third, under FOIA's most-recognized provision, members of the public may request agency records, and the agency—subject to limited exemptions—must produce them. Id. § 552(a)(3). Agencies must provide the record "in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." Id. § 552(a)(3)(B).

Unlike FOIA's "reactive" mechanism in § 552(a)(3), § 552(a)(2) identifies certain categories of records the agency must make available on an ongoing basis, no request necessary. This affirmative obligation applies to:

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;

(C) administrative staff manuals and instructions to staff that affect a member of the public;

(D) copies of all records, regardless of form or format—

(i) that have been released to any person under paragraph (3) [ § 552(a)(3) ]; and

(ii)(I) that because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; or

(II) that have been requested 3 or more times; and

(E) a general index of the records referred to under subparagraph (D)[.]

Id. § 552(a)(2).

Section 552(a)(2) became known as the "reading-room" provision because, as the Department of Justice ("DOJ") explains, agencies historically met their § 552(a)(2) obligations by placing the appropriate records in a physical, public reading room. DOJ, Dep't of Justice Guide to the Freedom of Information Act: Proactive Disclosures ("DOJ 2014 Guide to FOIA "), 12–13 (July 23, 2014), https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/proactive-disclosures.pdf. However, Congress ushered FOIA into the electronic age in 1996, amending the statute to require proactively disclosed records created after November 1, 1996, to be available by "electronic means." See Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048 (1996). In 2016, Congress again amended § 552(a)(2), this time specifying that agencies shall make records available "for public inspection in an electronic format." FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 (2016). As a result, agencies today simply post records in electronic reading rooms on their websites rather than requiring citizens to visit an agency's physical reading room in person. See DOJ, Dep't of Justice Guide to the Freedom of Information Act: Introduction , 6 (April 11, 2019), https://www.justice.gov/oip/foia-guide/proactive_disclosures/download; DOJ 2014 Guide to FOIA at 12–13.

The 1996 amendments also added a new category of records to the reading-room provision: frequently requested records. See Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231. Legislative reports, the DOJ, and the DOJ's Office of Information Policy ("OIP") justify the availability of frequently requested records in terms of reducing requests for copies, streamlining processing, and trimming bloated agency backlogs.¹ The 2016 amendments retained an agency's ability to determine which records deserved § 552(a)(2) treatment based on the likelihood of "becom[ing] the subject of subsequent requests[,]" but also codified the "Rule of 3," requiring automatic reading-room treatment for records previously released under § 552(a)(3) and requested three or more times. 5 U.S.C. § 552(a)(2)(D).

In addition to the three key disclosure provisions, FOIA vests jurisdiction in federal courts "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Id. § 552(a)(4)(B). This provision provides for de novo review and places the burden on the agency "to sustain its action," except that courts must defer to an agency's affidavit concerning technical feasibility for purposes of the reading-room requirement to post manuals and instructions that affect a member of the public. Id .²

The Records

The Animal Welfare Act ("AWA") sets minimum standards for the humane treatment of animals and regulates several categories of commercial animal enterprises. See 7 U.S.C. §§ 2131 – 59. The Animal and Plant Health Inspection Service ("APHIS") enforces the AWA on behalf of the U.S. Department of Agriculture ("USDA"). See id. ; 9 C.F.R. §§ 1–12. These enforcement activities generate the five categories of agency records at issue in this case: annual reports;³ inspection reports; ⁴ official warning letters;⁵ pre-litigation settlement agreements;⁶ and administrative complaints.⁷

For roughly the last decade, APHIS housed these records in databases in the FOIA reading-room portion of its website.⁸ In its responses to particular record requests and internal guidance documents, APHIS has described the records as frequently requested. See USDA APHIS, Letter from Kevin Shea, Acting APHIS Administrator, and Bill Clay, Acting APHIS Associate Administrator, to APHIS Management Team and Program Leaders Group ("APHIS Letter "), 1 (June 19, 2009), https://www.aphis.usda.gov/foia/downloads/APHIS%20Committment%20to%20Transparency.pdf. If already-posted information was responsive to a later FOIA request, APHIS would generally refer requesters to the APHIS online reading room.

Although APHIS reviewed the documents before posting and redacted them to protect personal privacy, APHIS grew concerned that its system for reviewing and redacting records was insufficient. In February 2017, APHIS removed the various compliance and enforcement records from its website. APHIS represents that it has devoted substantial resources to reviewing and re-posting the records. While it has made progress in re-posting some reports, APHIS has represented on appeal that it will no longer post official warning letters, stipulations, pre-litigation settlement agreements, and administrative complaints. See USDA APHIS, Animal Care Information System Website Review Chart (Aug. 18, 2017), https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/SA_AWA/acis-table. Instead, it "will post statistical summaries each calendar quarter." Id.

The Dispute

Plaintiffs include the Animal Legal Defense Fund ("ALDF"), a national nonprofit headquartered in California that seeks to advance the interests of animals through the legal system; Stop Animal Exploitation Now ("SAEN"), an Ohio nonprofit geared at ending animal abuse in laboratories; Companion Animal Protection Society ("CAPS"), a national nonprofit dedicated to preventing animal abuse in pet shops and puppy mills; and Animal Folks, a Minnesota nonprofit that uses research and collaboration with local authorities to improve enforcement of animal protection laws.

Plaintiffs allege that FOIA's reading-room provision requires APHIS to post all of the documents at issue, because they are "frequently requested." See 5 U.S.C. § 552(a)(2)(D) ; APHIS Letter . Plaintiffs further allege that APHIS must affirmatively disclose inspection reports, Letters of Information, official warning letters, and pre-litigation settlement agreements for the additional reason that these records constitute final agency orders. See 5 U.S.C. § 552(a)(2)(A).

Plaintiffs allege that (1) they frequently used APHIS databases to access these records, (2) without access to the databases, they have been forced to issue individual FOIA requests for categories of information previously available in the APHIS databases, (3) they will continue to submit requests as long as the databases remain offline, (4) individual FOIA requests will consume more staff time and resources than using the free APHIS...