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People for Ethical Treatment of Animals, Inc. v. U.S. Department of Agriculture

United States District Court, District of Columbia

January 18, 2018

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. et al., Plaintiffs,
v.
U.S. DEPARTMENT OF AGRICULTURE et al., Defendants.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.

         A few weeks into the Trump Administration, the Department of Agriculture's Animal and Plant Health Inspection Service (“APHIS”) removed a slew of documents from its website concerning its inspection and licensing of animal research facilities. Crying foul, a coalition of animal rights' groups filed suit under the “reading room” provision of the Freedom of Information Act, which requires federal agencies to maintain copies of frequently requested records for public inspection in electronic format. The Department of Agriculture has moved to dismiss on various grounds. Finding that APHIS's reposting of most of the documents has mooted Plaintiffs' claims as to those records, and that the complaint does not adequately allege that the remaining removed records are subject to FOIA's reading room provision, the Court will grant the Department's motion. Dismissal of the non-mooted claims will be without prejudice.

         I. Background

         A. FOIA's Reading Room Provision

         The Freedom of Information Act (“FOIA”) places on federal agencies “both reactive and affirmative obligations to make information available to the public.” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (“CREW”), 846 F.3d 1235, 1240 (D.C. Cir. 2017). Under the more familiar-and more frequently-litigated-reactive provision, federal agencies must release records (with some exceptions) upon a valid and reasonably specific request by a member of the public. 5 U.S.C. § 552(a)(3)(A).

         In addition to this reactive disclosure obligation, FOIA also imposes an affirmative duty on agencies to “make available for public inspection in electronic format” five specific classes of records. Id. § 552(a)(2). They are: (1) “final opinions, . . . as well as orders, made in the adjudications of cases”; (2) “those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register”; (3) “administrative staff manuals and instructions to staff that affect a member of the public”; (4) “copies of all records, regardless of form or format, (i) that have been released to any person” pursuant to the reactive disclosure provision of FOIA and (ii) “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 “that have been requested 3 or more times”; and (5) “a general index of the records” posted. Id. § 552(a)(2)(A)-(E). This provision is known as FOIA's reading room provision. See, e.g., CREW, 846 F.3d at 1238.

         B. Factual and Procedural History[1]

         The Animal and Plant Inspection Service (“APHIS”) and the Department of Agriculture, of which APHIS is a component, are responsible for administering the Animal Welfare Act. Compl. ¶ 14. Congress passed the Animal Welfare Act in part to ensure that animals used in medical research are treated humanely. Id. ¶ 12. Under the Act, facilities that conduct medical research on animals must obtain a license from the Department; in order to do so, the facility must demonstrate that it is in compliance with the regulations issued by the Department concerning the humane treatment of animals. Id. ¶ 15.

         Historically, APHIS and the Department have posted a variety of records related to this licensing process on APHIS's public website. Id. ¶¶ 21-22, 30. Specifically, APHIS posted reports from facility inspections, regulatory correspondence with licensed facilities, reports submitted by licensed facilities, and enforcement records that had not yet received final adjudication. Id. ¶ 30. These records were posted with some redactions of information exempt from disclosure under FOIA, such as that implicating personal privacy. Id. ¶ 21. That changed on February 3, 2017, when APHIS announced that it was removing the Animal Welfare Act records from its website in order to “remove certain personal information” from the documents. Id. ¶ 30 (citation omitted).

         Shortly thereafter, People for the Ethical Treatment of Animals, Inc., Delcianna Winders, Physicians Committee for Responsible Medicine, Born Free USA, Massachusetts Society for the Prevention of Cruelty to Animals, and Beagle Freedom Project (collectively “PETA”) filed suit against APHIS and the Department of Agriculture under FOIA. PETA alleged that the Department's wholesale removal of the records violated the reading room provision of FOIA. The complaint focused on four specific categories of records: (1) research facility annual reports, (2) inspection reports, (3) lists of entities licensed under the Animal Welfare Act, and (4) regulatory correspondence and enforcement records. Id. ¶¶ 1, 30. With respect to these removed records, PETA sought declaratory and injunctive relief requiring the Department to make available to PETA all removed records and to continue making the records publically available in the future without requiring PETA to submit an individual FOIA request. Id. ¶¶ 36-37. PETA subsequently filed a motion seeking discovery.

         The Department moved to dismiss. It maintained that PETA failed to state a claim upon which relief could be granted because the complaint did not adequately allege that the relevant records fell within the scope of FOIA's reading room provision. Mem. Supp. Defs.' Mot. Dismiss (“Defs.' MTD”), at 10. Additionally, the Department argued that dismissal was proper because PETA had not filed an affirmative FOIA request for the relevant records and therefore had failed to exhaust administrative remedies. Id. Finally, the Department contended that PETA's claim was not prudentially ripe for judicial review because the Department had not yet finished its review of the removed records-which could result in the records being reposted. Id.[2]

         On September 11, 2017, after briefing on the motion to dismiss had finished, PETA filed a notice with the Court indicating that the Department had completed its review of the relevant records and, therefore, that the case was ripe. In response, the Court issued a Minute Order on November 27, 2017 directing the Department to file a report clarifying the “current posting status of the categories of records sought” by PETA. The Department filed the requested report on December 4, 2017. In it, the Department explained that: (1) it had reposted all previously posted research facility annual reports on the APHIS website, and intended to continue doing so consistent with its practice prior to February 3, 2017; (2) it had reposted all inspection reports for the most recent three-year period-consistent with its practice as of February 3, 2017- though it had not reposted the animal inventories that accompanied those reports and some reposted reports contained more redactions than before; (3) it had reposted a monthly list of active licensees on its website (though not a “real time” list); and (4) while it had not reposted the regulatory correspondence and enforcement records, many of those records were official records of the Department's Office of Administrative Law Judges and Office of the Judicial Officer and remained available to the public on those offices' respective websites, and it did not intend to repost records involving possible violations that are unadjudicated (though it maintains a statistical summary of such records). Defs.' Report Submitted Resp. Court's Minute Order of Nov. 27, 2017, at 2-4.

         II. Standard of Review

         In order to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). When analyzing such a motion, the Court “may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). In addition, the Court must “accept the plaintiff's factual allegations as true and construe the complaint ‘liberally, ' ‘grant[ing] ...


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