American Society for the Prevention of Cruelty to Animals v. The Animal and…

Background

The American Society for the Prevention of Cruelty to Animals (ASPCA) sued the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) under the Freedom of Information Act (FOIA). The ASPCA had submitted 76 FOIA requests between February 2016 and January 2019 concerning the agencies’ administration and enforcement of the Animal Welfare Act.

The case involved three issues. First, the ASPCA challenged redactions under FOIA Exemption 4, which protects certain confidential business and financial information. The redactions covered animal dealers’ revenue, sales volume, and annual license fees on Form 7003 applications, as well as written animal-care instructions shown in an inspection photograph. Second, the ASPCA challenged redactions under Exemption 5, which protects certain privileged agency communications, including attorney-client communications and deliberative agency discussions. Those records concerned the agencies’ inspection and enforcement actions involving Ruby Fur Farm. Third, the ASPCA alleged that the agencies had a continuing policy or practice of violating FOIA’s response, production, and disclosure requirements.

The parties cross-moved for summary judgment on the Exemption 4 and Exemption 5 issues. The agencies moved for judgment on the pleadings on the policy-and-practice claim, and the parties also cross-moved for summary judgment on that claim.

Exemption 4

For the Form 7003 revenue and sales-volume information, the court held that the agencies established that dealers customarily and actually treated the information as private. But the agencies did not show that they had given dealers assurances of confidentiality. The court did not decide whether such assurances are always required because the USDA had publicly taken the position in an earlier related proceeding that it would release the information. The court concluded that dealers who submitted the information while that position was in effect had no reasonable expectation that the agencies would keep it confidential. Exemption 4 therefore did not justify withholding the Block 10 information.

The court reached the same result for the annual license-fee information. The fee was calculated from the Block 10 information, and the USDA had also represented that it routinely released fee amounts in response to FOIA requests. The agencies could not withhold that information under Exemption 4.

The court also held that the agencies failed to justify redacting written animal-care instructions shown in an inspection photograph. Unlike the Form 7003 information, the agencies offered no evidence that the particular licensee actually and customarily treated those instructions as private. The agencies’ conclusory assertion that the instructions were confidential was not enough.

Exemption 5 and the Ruby Fur Farm records

The court upheld some attorney-client privilege redactions. It found that an email update chain contained communications expressly discussing legal advice from the USDA’s Office of General Counsel. It also held that the first two paragraphs of another email from an APHIS official to staff relayed legal advice and discussed draft legal documents prepared with help from agency counsel. The court found that disclosure of this information would harm the interests protected by the attorney-client privilege.

The court rejected attorney-client protection for the remaining redactions in that staff email because they did not contain attorney-client privileged information.

The court upheld some deliberative-process redactions, meaning redactions protecting agency discussions and recommendations made before a decision. It held that the final portions of a draft memorandum described possible future courses of action and therefore reflected contingent, changeable agency thinking. It also upheld redaction of an APHIS administrator’s email explaining how officials weighed factors before deciding how to proceed with Ruby Fur Farm.

The court rejected deliberative-process protection for most of the inspection notes and draft memorandum because they primarily contained factual information and did not reveal the agencies’ decision-making process. It also rejected protection for an email merely expressing agreement with a decision already made, for portions of an email sent after the agencies’ decision that summarized that decision and encouraged staff, and for a July 27 email sent after the effective rescission of the confiscation order. Those portions did not reveal pre-decision deliberations. The court found that the agencies had established foreseeable harm only for the limited information that was properly covered by the privilege.

Policy-and-practice claim

The ASPCA alleged that the agencies had adopted a continuing practice of delaying FOIA responses, failing to produce records promptly, and withholding information that had previously been available through public databases. The court held that this type of FOIA policy-and-practice claim is legally recognizable, even though the Second Circuit had not established a specific test for such claims.

The court concluded that the ASPCA’s allegations plausibly described a serious breakdown after the agencies decommissioned two public databases on February 3, 2017. According to the allegations, the decision caused a large increase in FOIA requests, contributed to missed deadlines and delayed production, and was followed by redactions of information previously made public.

However, Congress later required the agencies to restore the searchable database and its contents and to make specified Animal Welfare Act records available, generally without redactions except signatures, subject to a stated exception for confidential business information in certain annual reports. The court held that Congress had addressed the policies underlying the ASPCA’s claim, leaving no continuing agency practice that required equitable relief. It therefore granted the agencies’ motion for judgment on the pleadings. The court also denied as moot the parties’ cross-motions for summary judgment on the policy-and-practice claim.

Disposition

The court granted in part and denied in part the agencies’ motion for summary judgment, granted in part and denied in part the ASPCA’s motion for summary judgment, and granted the agencies’ motion for judgment on the pleadings. The parties’ cross-motions for summary judgment on the policy-and-practice claim were denied as moot. The court directed the parties to submit a proposed order consistent with the opinion within 21 days.