Retreating on Affirmative Disclosure: The Case of APHIS’s Publicly-Available Enforcement Databases
Summary: This post chronicles a story of enforcement failure, shaming remedies, and replacement of proactive disclosure with reactive disclosure. In February 2017, the Animal and Plant Health Inspection Service (“APHIS”) “took down” publicly-available databases and re-populated them with significant redactions. The D.C. Circuit recently opined on APHIS’s action in PETA v. U.S. Department of Agriculture. Meanwhile a related challenge, ASPCA v. APHIS, remains pending in the Southern District of New York.
“The greatness of a nation can be judged by the way its animals are treated.” Mahatma Gandhi
The fear was palpable; the new Trump Administration would scrub agency websites of inconvenient material, like data on climate change. See, e.g., Coral Davenport, With Trump in Charge, Climate Change References Purged From Website, N.Y. TIMES (Jan 20, 2017); Danny Vinik, What Happened to Trump’s War on Data?, POLITICO (July 25, 2017). These fears have largely not materialized. Sunlight Foundation, Tracking U.S. Government Data Removed From the Internet During the Trump Administration. But there is at least one exception, enforcement records of the Department of Agriculture’s Animal and Plant Health Inspection Service (“APHIS”). Id. APHIS’s records do not seem politically controversial, having little to do with any major political controversies. Indeed, APHIS emphasized that consideration of its action began in the Obama Administration. This post explores APHIS’s removal of information, and the yet unfinished litigation it spawned.
The Regulatory Background and the Posting of Enforcement Data
Exhibiting concern for the humane treatment of animals, Congress enacted the Animal Welfare Act of 1966 (“the AWA”), and, a few years thereafter, the Horse Protection Act of 1970 (“the HPA”). APHIS administers both statutes and serves as their principal enforcer. The agency has found itself occupying a “no man’s land” between powerful opposing forces: the animal husbandry and horse training industries, on one side, and animal welfare groups one the other. 
APHIS’s decision to remove its enforcement webpages originated in a challenge to its overall HPA enforcement approach. That approach relied on inspections and penalty assessments by industry organizations combined with making records of violation accessible on APHIS’s website. To understand the challenge to APHIS’s enforcement approach, and thus APHIS’s reaction to it, the enforcement dilemma facing APHIS and the enforcement choices it made must be appreciated.
Under the HPA, Congress contemplated a dual public/private enforcement regime. Congress envisioned the coexistence of horse industry self-regulation, conducted by horse industry organizations (“HIOs”), and agency enforcement by imposition of civil penalties supplemented by potential criminal liability. APHIS could impose civil penalties under 15 U.S.C §1825(b). However, given Congress’ limited budget allocations to the agency, APHIS could conduct only a minimal number of inspections. For example, during the 2005 to 2008 seasons, APHIS inspectors attended 6% of the horse shows. Moreover, unsurprisingly, the civil penalty process proved to be “slow,” “cumbersome,” and “uncertain.” APHIS investigators would expend significant time gathering evidence to present a case to USDA’s Office of General Counsel (“OGC”), only to have OGC, in the exercise of prosecutorial discretion, decline to pursue all but a few cases.
HIOs could more swiftly find and penalize violations of their own rules. HPA regulations required HIOs to include in their rulebooks prohibitions on soring horses paralleling the HPA’s. 9 C.F.R. §11.25. Given the impracticalities of its own inspection and enforcement structure, most particularly the agency’s limited funding, APHIS relied on inspections by designated qualified persons (“DQPs”) appointed by HIO to uncover soring violations.
But, as the USDA’s Office of Inspector General (“OIG”) found, DQPs often failed to inspect horses in accordance with the applicable regulations. Moreover, when DQPs found soring they would sometimes merely give the violator a warning, rather than issuing a citation. And when DQPs did issue a citation, they avoided naming the responsible exhibitor, but instead cited an exhibitor’s stable hand, friend, or family member. This practice allowed the responsible exhibitor to escape penalty and potential disqualification.
OIG attributed these derelictions to DQPs obvious conflicts of interests. DQPs were generally participants in the industry whose status would change, from DQP to exhibitor and back, from one show to the next. The OIG found that even though APHIS personnel attended only 6% of the horse shows in the four year period it studied, 49% of the violations issued by DQP’s occurred at those shows.
The OIG urged APHIS to abandon its reliance on HIOs, and seek greater budgetary resources from Congress or reallocation of resources within USDA. Rather than abandon the DQP system on the hope of securing additional enforcement resources, APHIS used its authority over HIOs to require them to impose at least minimum penalties for each violation. These penalties could be assessed by HIOs through their own processes. Some members of the horse industry objected to the use of the currently-available methods for detecting soring, namely digital palpation, thermography, or x-ray analysis, because such methods were subject to inconsistent application and interpretation. They argued that mandatory penalties should be imposed only once “objective scientific” means for detecting soring were developed. APHIS rejected their entreaties, finding each of the detection methods sufficiently reliable. Most importantly for our purposes, APHIS undertook to publish information regarding enforcement actions on its publicly-available enforcement database.
Even before adopting the minimum penalty rule, APHIS had posted information concerning its administration of the AWA and the HPA to its website. This information included inspection reports, research facility annual reports, lists of persons licensed and registered under the AWA, and lists of DQPs. To these reports and listings, APHIS added “regulatory correspondence and enforcement-related information” regarding AWA and HPA violations.
Apparently some animal welfare groups, and quite possibly some state enforcement agencies, relied heavily on those records to focus their efforts both on encouraging enforcement against violators and in monitoring the quality of APHIS’s enforcement efforts.
In a sense APHIS had constructed a “shaming penalty” or “targeted transparency” regime. Such regimes deter by publicizing misconduct to the relevant audience, instead of (or in conjunction with) employing more conventional enforcement methods. In this blog, Professor Sharon Yadin has recently discussed such an approach in the context of pharmaceutical companies, and outlined five requisites for a successful shaming regime. Shaming Big Pharma, by Sharon Yadin, 36 YALE J. ON REG.: NOTICE & COMMENT (Feb. 12, 2019). In 2005, a team lead by Archon Fung, published a study of 18 “targeted transparency” regimes. ARCHON FUNG, ET AL. FULL DISCLOSURE: THE PERILS AND PROMISE OF TRANSPARENCY (2007). I will not analyze APHIS approach in terms of the shaming penalty/targeted transparency literature; however, APHIS’s approach seems at least to have spawned reliance both by those seeking to protect animal welfare and by a few states.
The Contender Farm Litigation and the “Take Down” of APHIS Enforcement Website
Contender Farms, a limited partnership that owns Tennessee walking horses, challenged the processes by which APHIS found violations of the HPA. Complaint, Contender Farms v. USDA, Dkt. No. 16 Civ. 163 (N.D. Tex. Feb. 29, 2916). In the course of doing so, it criticized APHIS’s listing of violators as misleading given the deficiencies in the tests for soring process for finding violations. Id. ¶¶34-38, 45-54, 55-56, 64, 66, 117,179.
As a result of this challenge, APHIS apparently “conduct[ed] a comprehensive review of the information [APHIS] posts” online. That review led to its February 2017 removal of information from the agency’s website. APHIS posted the following enigmatic explanation:
APHIS has implemented actions to remove certain personal information from documents it posts on APHIS’ website involving the Horse Protection Act and the Animal Welfare Act. Going forward, APHIS will remove from its website inspection reports, regulatory correspondence, research facility annual reports, and enforcement records that have not received final adjudication. APHIS will also review and redact, as necessary, the lists of licensees and registrants under the AWA, as well as lists of designated qualified persons (DQPs) licensed by USDA-certified horse industry organizations.
Those seeking information from APHIS regarding inspection reports, regulatory correspondence, and enforcement records should submit Freedom of Information Act (FOIA) requests for that information.
The action was, in one sense, ingenious. APHIS’s approach minimized the agency’s exposure to the type of complaint Contender Farms had launched. Instead of publicizing information without a judicial determination regarding whether the information’s release was mandated, or at least permissible, APHIS could now assert privacy interests and secure a judgment upholding or rejecting the privacy claims. But by doing so, APHIS contravened an emerging transparency trend, namely moving from reactive disclosure of government information to proactive disclosure. APHIS’s move also undermined the efficacy of its initial “shaming”/targeted transparency strategy.
APHIS’s move drew swift congressional condemnation, See H. Rept. 115-232 to H.R. 3268. It also resulted in at least two lawsuits: PETA v. USDA (D.D.C. filed Feb. 13, 2017) and ASPCA v. APHIS, 18 Civ. 4559 (S.D.N.Y. filed May 23, 2018). The lawsuits reflect divergent legal strategies.
PETA filed suit almost immediately in D.C. federal court asserting that APHIS’s action violated FOIA’s reading room provisions. PETA v. USDA. PETA targeted APHIS’s removal of four types of records: (1) research facility annual reports; (2) inspection reports; (3) lists AWA licensees; and (4) regulatory correspondence and enforcement records that had not been finally adjudicated. See, PETA v. USDA, 285 F. Supp. 3d 307, 310–11 (D.D.C. 2018); Complaint, ¶¶ 1, 30. As set out below, the district court granted APHIS’s motion to dismiss the case, and the D.C. Circuit vacated the judgment in part and remanded the case for further proceedings.
Tacking a different tack, the ASPCA took APHIS up on its suggestion that those seeking the removed information submitting FOIA requests seeking the records. Complaint, ASPCA v. APHIS, at ¶¶ 48-53. Only after encountering frustrations in a series of FOIA requests did the ASPCA proceed to court, id. at ¶¶54-70, filing suit in May 2018.
The ASPCA alleged that APHIS’s decision to substitute a reactive disclosure approach for a proactive one had produced a backlog of thousands of outstanding FOIA requests. Id. at ¶46. Moreover, even when APHIS ultimately responded to its requests, the agency had refused to provide documents, citing FOIA’s privacy exemption and law enforcement records exemptions. Id at ¶62-64 (citing exemptions 6, 7(A), and 7(C)). The ASPCA also identified inconsistencies in APHISs’ redactions; the redactions in the materials produced pursuant to FOIA requests differed from those in the documents posted in APHIS’s “reading room” as frequently requested documents. Id at ¶81-82. The ASPCA filed a conventional FOIA suit seeking a court order requiring provision of the information requested and seeking an injunction that such material needed to be provided in the future. Id., Prayer for Relief.
The ASPCA’s case has yet to be resolved.
PETA v. USDA: The District Court and D.C. Circuit Decisions
In PETA v. USDA, the District Court concluded that the agency had reposted the first three categories of removed materials: (1) research facility annual reports. (2) inspection reports, and (3) lists AWA licensees. PETA v. USDA, 285 F. Supp. 3d at 311. The one exception was the animal inventories, a subset of the inspection reports. The District Court found PETA’s claim regarding the reposted materials moot, rejecting PETA’s contention that the “voluntary cessation” doctrine negated USDA’s mootness defense. Id. at 313. Plaintiffs sought to litigate the validity of the redactions made to the documents APHIS had reposted. The District Court refused plaintiffs the opportunity to do so, declaring such claims beyond the scope of PETA’s initial Complaint. Id. at 313 n.3.
The D.C. Circuit remanded the case to the District Court. PETA v. USDA, 918 F.3d 151 (D.C. Cir. 2019). It concluded that plaintiffs were entitled to challenge the permissibility of the redactions in the reposted documents. The appellate panel viewed the Complaint as sufficiently broad to encompass not merely complete removal of documents, but partial removal accomplished by redaction. Id. at 516. It noted that PETA’s Complaint had focused on the accessibility of information, not documents; redactions certainly limited the accessibility of some information that had previously been publicly available. Id. at 516. The Court also noted that plaintiff could not have specifically noted the deficiency of the reposting with redactions in its Complaint, given that APHIS had posted redacted versions of the withdrawn documents only after the Complaint had been filed. Id. at 156.
The Court of Appeals also differed with the District Court on APHIS’s claim that any matters reposted without redaction were moot due to voluntary cessation. Id. at 156-59. The Court agreed the voluntary cessation test had been met with regard to one category of documents, but not with regard to two others. Before engaging in its detailed analysis, the panel made three observations. First, USDA’s desire to enhance privacy protections was “unproblematic,” and “new administrations are entitled to reevaluate and modify agency practices, even longstanding ones.” Id. at 158. Second, the USDA had vindicated the District Court’s understanding of the temporary nature of the documents’ withdrawal, by reposting the documents. Id. Third, USDA had neither shifted its rationale after PETA filed suit nor engaged in “transitory litigation postur[ing].” Id.
With regard to research facility annual reports “the agency has adequately expressed its forward-looking plans.” Id. APHIS had stated that it “intends to continue posting annual reports going forward consistent with its practice prior to February 3, 2017.” Id.
With respect to the two other categories of documents, APHIS’s statements that it was posting those materials on an ongoing basis were insufficient. In particular, USDA had merely stated that it “is now posting all inspection reports for the most recent three-year period,” and would “post new inspection reports on a rolling basis . . . limited to the most recent three-year period,” Id. USDA’s statement regarding lists AWA licensees was similar. When compared with statements in other cases involving voluntary cessation these statement were insufficient. Id. at 158-59.
In America Cargo Transport v. U.S., 625 F.3d 1176, 1180 (9th Cir. 2010), government counsel had committed the agency to a “new permanent policy” that “agreed with” plaintiff’s position. In Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009), the Court had relied upon “formally announced changes to official governmental policy” in finding voluntary cessation. In Committee in Solidarity With People of El Salvador v. Sessions, 929 F.2d 742, 744 (D.C. Cir. 1991), the Government had provided “exactly the ‘relief plaintiffs requested.’”
The panel remanded for a clearer statement about the government’s future plans regarding posting inspection reports and lists of AWA licensees. Id. at 159.
The Court concluded:
In light of USDA’s seemingly unproblematic rationale for removing the records; the one-time nature of the takedown; the absence of any signs of bad faith in litigation; and a presumption of regularity when government officials express a clear intention to do as the complaint requests, we conclude that a declaration by (or on behalf of) USDA officials that the agency intends to post documents in the inspection reports and entity lists categories on an ongoing basis will moot PETA’s claims. This is so, we emphasize, even though USDA continues to assert that posting the records is a matter of discretion, rather than a FOIA-imposed duty.
 The AWA, Pub. L. 89-544, 80 Stat. 350 is codified at 7 U.S.C. §§2131-2159). The HPA, Pub. L. 91-540, 84 Stat. 1404 is codified at 7 U.S.C. §§1821-1831. The AWA and its origins are chronicled in Emily Malhiot, Finding Transparency in a “Blackout”: The USDA’s Removal of Animal Welfare Records from Its Public Database, 50 U. PACIFIC L. REV. 103 (2018).
 Moreover, the USDA OIG has issued a number of reports criticizing APHIS’s enforcement activities. See, e.g., USDA OIG, APHIS: Animal Welfare Act – Marine Mammals (Cetaceans) (May 2017); USDA OIG, Controls Over APHIS Licensing of Animal Exhibitors (June 2010); USDA OIG, APHIS Animal Care Program Inspections of Problematic Dealers (May 2010) ; USDA OIG, APHIS Animal Care Program Inspection and Enforcement Activities (Sept. 2005). See Complaint, ASPCA v. APHIS, Dkt. No. 18-4559, ¶21 (S.D.N.Y.).
 APHIS, Notice of Final Rule, Horse Protection Act: Requiring Horse Industry Organizations to Asses and Enforce Minimum Penalties for Violations, 77 FED. REG. 33607, 33610 (June 7, 2012) ; USDA Office of Inspector General, Animal and Plant Health Inspection Service Administration of the Horse Protection Program and the Slaughter Horse Transport Program 6-8, 10-11 (September 30, 2010) (“APHIS Administration of HPA”).
 The alleged violator was entitled to a hearing and to challenge and adverse decision in the appropriate U.S. court of appeals.
 APHIS Administration of HPA, supra, at 11.
 Id. at 15.
 Id. at 1, 10, 14.
 Id. at 12-14.
 Id. at 10. A person acting as a DQP at one show, may be an exhibitor at another show at which his horse must undergo DQP inspection. Moreover, the inspector could be the owner of the horse the DQP inspected at the prior show. Id. at 10.
 Id. at 11.
 Id. at 1, 3, 4, 17.
 APHIS cited the Audit report’s conclusions about the failure of its enforcement system. Minimum Penalties for Violations, 77 FED. REG. at 33509.
 However, these processes, too, had to provide for a hearing and an internal appeals process. And, as APHIS noted, owners aggrieved by an HIO’s decision could bring suit against the HIO itself. Id. at 33610.
 Id. at 33622.
 Id. at 33614.
 APHIS, Updates to APHIS’ Website Involving Animal Welfare Act and Horse Protection Act Compliance Information (revised Feb. 7, 2017).
 Complaint, ASPCA v. APHIS, 18 Civ. 4559 ¶84 (S.D.N.Y. filed May 23, 2018); Malhiot, supra note 1, at 124, 125; Natasha Daly and Rachael Bale, We Asked the Government Why Animal Welfare Records Disappeared. They Sent 1,700 Blacked-Out Pages, NAT’L GEOGRAPHIC (May 1, 2017). See, e.g., 225 ILCS 605/3.8(a)(2), OH. ST. § 956.19(B)(2); NJ. ST. 56:8-95.1(a)(4)-(6); MD. BUS. REG. § 19-702.1(b)(2) (repealed effective Jan. 1, 2020).
 From her research, Prof. Yadin distilled the following five principles for designing successful shaming remedies. First, the agency must choose a topic that captures third parties’ (the shaming community’s) interest. Second, it must identify a shaming group that can and will influence regulated entities’ behavior. Third, it must take a non-controversial regulatory moral stand shared by the shaming community. Fourth, it must properly shape the shaming message to appeal to the chosen shaming group. Fifth, it must disseminate the shaming message through suitable channels.
 Of course, such false information would arguably not give rise to a due process claim because it does not appear to be paired with any other adverse action by the federal government, Paul v. Davis, 424 U.S. 693, 710-12 (1976), unless the HIOs are considered governmental actors due to their government-mandated obligation to impose penalties.
 Updates to APHIS Website, supra note 17. APHIS did not specifically reference the Contender Farms case in explaining its action, but the connection was discussed by others. Letter from the Honorable Ken Calvert to Michael Young, Acting Secretary of the USDA dated February 16, 2017; Karin Brulliard, USDA Removed Animal Welfare Reports From Its Site. A Showhorse Lawsuit May Be Why., WASH. POST (Feb. 9, 2017),
 APHIS, Updates to APHIS’ Website, supra note 17.
 See, e.g., Memorandum from the Attorney General to the Heads of Executive Departments And Agencies Re The Freedom of Information Act 3 (March 19, 2019), reprinted, 74 FED. REG. at 51879 (“agencies should readily and systematically post information online in advance of any public request. Providing more information online reduces the need for individualized requests and may help reduce existing backlogs”); David E. Pozen, Freedom of Information Beyond the Freedom of Information Act, 165 U. PA. L. REV. 1097, 1107 (2017); Margaret B. Kwoka, FOIA, Inc., 65 DUKE L.J. 1361, 1439-46 (2016); Michael Herz, Law Lags Behind: FOIA And Affirmative Disclosure Of Information, 7 CARDOZO PUB. L. POL’Y & ETHICS J. 577 (2009); Helen Darbishire, Proactive Transparency, The Future of the Right Information (World Bank Institute).
 The Committee opined:
While the Committee recognizes the need to strike a balance between the privacy rights and personal identifiable information of regulated entities and the public’s need to know if regulated parties or institutions are complying with federal law, USDA must utilize the resources provided in this bill to promptly finish reviewing the information on its website, restore all legally permissible records previously removed, and resume posting on the USDA website.
Id. at 28, Ultimately a different version of the appropriations bill was enacted. See, H.R.1625, The Consolidated Appropriations Act, 2018.
 National Geographic pursued yet a third strategy, making a FOIA request for “records relating to the decision to take the database offline.” Natasha Daly and Rachael Bale, We Asked the Government Why Animal Welfare Records Disappeared. They Sent 1,700 Blacked-Out Pages, NAT’L GEOGRAPHIC (May 1, 2017). All 1771 pages were redacted because they related to on-going litigation. While exemption 5 protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a [non-governmental] in litigation with the agency,” there is no blanket FOIA exemption for documents related to ongoing litigation.
 Plaintiffs’ lay out their argument that the exemptions do not justify withholding the requested records. ASPCA Complaint, supra note 18, at ¶¶71-79, 85-90.
 2016 FOIA Act required documents requested three or more times to be posted on the agency’s website. 5 U.S.C. §552(a)(2)(d)(II).