In a move against transparency and accountability the USDA recently announced it was removing large swaths of information that APHIS collects regarding the Horse Protection Act and the Animal Welfare Act claiming that the “privacy rights” of individuals mandated action.

The Humane Society and the Animal Legal Defense fund see the justification as facetious – bordering on completely disingenuous – and the NGOs and other organizations looking to hold those who deal with animals accountable are sounding the alarm.  The journal Science explains the problem with the lack of transparency and the fight that went into obtaining transparency on these reports about the treatment of animals.  The issue, best expressed by Speaking of Research, poignantly addressed the USDA’s removal:

When information is hidden, particularly where it was once available, the public will naturally wonder why many stakeholders have cause for concern: the public wonders what is being hidden and why, and researchers must devote even more resources to combatting the public perception that they are not transparent.

The USDA’s February 24 online statement cited both FOIA and Privacy Act concerns.  But the two actually work in concert, so claiming that the Privacy Act might influence FOIA disclosures doesn’t compute unless someone was determined to go back through FOIA disclosures and “reinterpret” already categorized information as FOIA exempt.  The Privacy Act complements FOIA and a disclosure compelled under FOIA cannot be stifled by the Privacy Act, unless the information is exempt under FOIA – in which case, the Privacy Act compels disclosure:

“The net effect of the interaction between the two statutes is that where the FOIA requires disclosure, the Privacy Act will not stand in its way, but where the FOIA would permit withholding under an exemption, the Privacy Act makes such withholding mandatory upon the agency.”

News-Press v. DHS, 489 F.3d 1173, 1189 (11th Cir. 2007)

The Animal Legal Defense Fund recently brought suit against the USDA to emplace the removed information and shine some light on the process that – apart from the February 24 statement – hasn’t been explained by the government.

Given that the 1974 Privacy Act covers personally identifiable information about individuals, not companies, not animals, and certainly not practices, it would seem that once this newly found ‘personal’ information is redacted, these reports should be put back up.

Coherent and accurate information about government action has become a fundamental precept of an open democracy.  Informed consent means “information must flow” and is the essence of FOIA.  As the Science article points out, it was the very fact that routine requests were made for this information that mandated it be posted.  Now the USDA apparently wants to dial that aspect of open government back a notch:

Those seeking information from APHIS regarding inspection reports, research facility annual reports, regulatory correspondence, and enforcement records should submit Freedom of Information Act requests for that information.

Floyd Abrams originally opposed FOIA – he considered it unseemly that a reporter would have to ask the government for information.  A sage he was not.  In reflecting on FOIA’s history anniversary, he admitted that he was mistaken and that FOIA had been a vast benefit to the goals of transparency and accountability. “The Freedom of Information Act is an American treasure … it’s an American original.”

The posting of routinely requested information is necessary and lessens the burdens of all those involved who are interested in the information.  Simply taking it down until “someone requests it” which is what the new “policy” from the USDA on this issues shows a contemptuous disregard for the public, their right to access, and only fosters the implication that there’s something to hide.

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