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
The Freedom of Information Act ("FOIA") places on federal agencies "both reactive and affirmative obligations to make information available to the public."
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.
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.
Historically, APHIS and the Department have posted a variety of records related to this licensing process on APHIS's public website.
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.
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.
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
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.'"
In light of intervening events since the complaint was filed — namely, the Department's completion of its review of documents and reposting of most of the records that PETA has requested — the Court will first address PETA's claims as to the reposted documents before moving to those documents that remain unavailable for public inspection. As to the documents that have been reposted, because PETA has been accorded the full relief requested in the complaint, the Court concludes PETA's claims as to those documents are now moot and should be dismissed. As for the remaining documents, the Court will dismiss PETA's claims without prejudice under Rule 12(b)(6) because the complaint does not adequately plead that the documents are reading room documents.
Article III of the Constitution requires that a case remain live throughout the pendency of the action.
Here, PETA seeks two specific forms of relief: a declaratory judgment that the removal of website records violated FOIA and injunctive relief ordering the removed records be made available to PETA by electronic means. Compl. Claim for Relief. While no party has argued that the reposting of documents has mooted either of PETA's claims for relief, the Court is "obliged to address the issue sua sponte because mootness goes to [its] jurisdiction."
The Court will start with PETA's request for injunctive relief. Based on the reports filed by the parties, it appears that for three of the four categories of records that PETA seeks, the Department has reposted the relevant records: the Department has reposted all previously-posted inspection facility annual reports (with the exception of the animal inventories that accompany the reports), inspection reports, and the list of entities regulated under the Animal Welfare Act.
This leaves PETA's declaratory relief request. The D.C. Circuit has recognized that when a plaintiff "merely attacks an isolated agency action, then the mooting of the specific claim moots any claim for a declaratory judgment that the specific action was unlawful."
That said, PETA's claims would not be moot if they met one of the two recognized exceptions for mootness: (1) capable of repetition yet evading review or (2) voluntary cessation.
These requirements are met here. PETA's access to the records erases the effects of the alleged violation. Additionally, there is no reasonable expectation the Department will remove the records again: from the beginning, the Department has indicated — and both parties have recognized — that the removal was a temporary measure intended to review the records and remove certain personal information.
In sum, because PETA has been accorded the full relief it sought with respect to the reposted records, the Court concludes that PETA's claims with respect to these records are now moot.
As discussed above, three of the four categories of documents that PETA requested — annual facility reports, inspection reports (absent inventories), and the list of regulated entities — have been reposted and PETA's claims as to those documents are now moot. This leaves the Court to address only those documents that have not been reposted: the animal inventories (which the Department avers it is in the process of auditing and intends to repost) and regulatory compliance documents related to unadjudicated claims of violations of the Animal Welfare Act.
Under the statute, the FOIA reading-room provision encompasses five categories of documents: (1) final opinions and orders rendered in the adjudication of cases, (2) statements of policy and interpretations which are not published in the Federal Register, (3) administrative staff manuals and instructions, (4) frequently requested documents, and (5) indices of posted records. 5 U.S.C. § 552(a)(2)(A)-(E). If a document does not fall within one of these categories, then the agency has no affirmative obligation to post the document — it would only have a reactive obligation to release the document pursuant to a valid FOIA request,
PETA argues that the records at issue here fall in the first or fourth category. As to the first category, PETA's complaint does not contain plausible allegations that the records at issue represent final opinions made in the adjudication of cases. Indeed, the challenged regulatory compliance records specifically involved cases "that have not reached final adjudication." Compl. ¶ 30 (citation omitted). Such records, therefore, are not plausibly final opinions. Nor could "warnings, settlements, and stipulations" plausibly be final opinions, particularly since records must have "precedential value" or "constitute working law of the agency" to qualify as final opinions,
This leaves the fourth category, frequently requested records. According to FOIA, such records are those that (1) "have been released to any person" pursuant to a valid FOIA request and (2) that the agency has "determine[d] 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." 5 U.S.C. § 552(a)(2)(D). As an initial matter, PETA nowhere alleges in its complaint that the animal inventories and regulatory compliance records have ever been released to any person pursuant to a valid FOIA request.
In opposition to the Department's motion to dismiss, PETA primarily argues that because the records were previously posted on APHIS's website, they must be records within the scope of the reading room provision. Pls.' Opp'n Defs.' Mot. Dismiss at 16. But that is not necessarily so. An agency could clearly decide to post a wider swath of records than obligated to under FOIA: for instance, an agency could preemptively post a record that has never been requested (and thus is not a frequently requested record under the statute) but that it anticipates will be requested repeatedly. The Court therefore does not agree that merely because a record has been posted on an agency's website, the agency was required to post that record under FOIA.
In sum, PETA does not allege in its complaint that it has requested these documents pursuant to a valid FOIA request. And the record's prior-posted status is insufficient by itself to show it is a frequently-requested record. PETA has therefore failed to adequately allege that these records are reading room records and, accordingly, that the Department has improperly withheld records under FOIA.
In light of the Department's reposting of the vast majority of the records at issue in this case, there is not much left for the Court to resolve. The Department's reposting of the records provides PETA with the injunctive relief it seeks, and therefore moots PETA's claim as to those records. With respect to the records that have not been reposted, PETA has not adequately alleged that they fall within the scope of FOIA's reading-room provision. The Court will therefore dismiss the case for mootness and for failure to state a claim on which relief can be granted. For the non-mooted claims, this dismissal is without prejudice. A separate Order shall accompany this Memorandum Opinion.