It's now been a year since the #USDAblackout—the sudden deletion of thousands of animal welfare-related records from the U.S. Department of Agriculture's (USDA) website with no warning and virtually no explanation. Despite swift and massive outcry from all corners—including Congress, the media, the public, animal protection organizations, and even industry—we're still in the dark about how the USDA is enforcing our nation's most important animal protection law—or if it even is enforcing that law. This must change.
More than a quarter of a century ago the USDA's own Office of Inspector General (OIG) raised questions about the agency's ability to ensure compliance with minimum welfare standards through discounted penalties. In 2014, the OIG concluded that even in for egregious violations—cases involving animal deaths for instance—penalties were reduced by an average of 86 percent from the statutory maximum. That means that for every dollar in potential fines faced by an egregious violator, they paid just 14 cents on average.
This doesn't even account for the fact that most violators don't face any fines. Instead, the USDA's primary means of "enforcing" the AWA is through warnings that have no repercussions whatsoever. In 2017 more than 90 percent of all AWA "enforcement actions" were mere warnings. Unsurprisingly, violators continue to break the law—all too often with impunity.
When an agency is falling down on the job assigned to it by Congress, it must be held accountable. As Sen. Bob Dole stressed in leading the charge on important updates to the AWA, "we need to ensure the public that adequate safeguards are in place to prevent unnecessary abuses to animals, and that everything possible is being done to decrease the pain of animals during experimentation and testing."
For years, the public was able to monitor how the USDA was—and was not—enforcing the AWA. Each month, the USDA would post its AWA enforcement actions online. If the USDA wasn't willing to take meaningful enforcement action, at least the public could keep an eye on which businesses had faced scrutiny and had been warned by the agency and could decide who to support with their pocketbooks. The public could also monitor the extent to which the USDA was continuing to severely discount penalties in the rare cases it did assess fines—such as in the 2016 case of a commercial breeder who faced $100,000 in fines for a host of violations, including failing to provide veterinary care to nine suffering dogs, but was let off with a total penalty of $2,400—less than two-and-a-half cents on the dollar.
But then, in February, 2017, the USDA did a complete 180 and deleted all of the enforcement actions that it had been posting for nearly a decade. Six-and-a-half months later, with great fanfare, the agency announced that it was resuming public access for certain records (even those records are more often than not so severely redacted so as to render them largely useless—a topic for another day)—but quietly acknowledged that it had no intention of ever again reposting the enforcement records.
The agency assures us, we can still obtain those records by submitting a FOIA request. I did submit a FOIA request—a year ago. And I've yet to receive anything. When I periodically check in on the status of my USDA FOIA requests—some of which have now been languishing for years—I'm told that, since the removal of information from the website, the agency has "been overwhelmed with hundreds of requests and record reviews."
The thing is, there's a long standing way to address that: by making records available online. That is precisely why Congress began requiring agencies to do so more than two decades ago, noting that online posting "would tackle the mother of all complaints lodged against the Freedom of Information Act: that is, the often ludicrous amount of time it take some agencies to respond, if they respond at all, to freedom of information requests. By the time freedom of information requests are fulfilled, the information is often useless to the requester, if the requester has not died of old age."
To mark the one year anniversary of the beginning of the ongoing #USDAblackout, I've demanded that the USDA restore full access to these records, as they are legally required to do. If the agency continues to refuse, I'll see them in court. I don't plan to die of old age before I get those records and see what the agency is up to.
Delcianna Winders is PETA's vice president and deputy general counsel for captive animal law enforcement.