Summary

  • The Freedom of Information Act (FOIA) – both the US and Australian version of the legislation – allows any citizen access to public records, regardless of why the information is sought and who seeks it.
  • Animal rights groups have used the FOIA to investigate animal mistreatment and other animal welfare issues, to expose mistreatment and violations of laws which prohibit animal cruelty, and to gather evidence for lawsuits.
  • The perceived threat of “animal rights extremism” has been used to justify restricting the public’s right to access records relating to animals when requested under the FOIA. This usually prevents individuals’ names, addresses, and locations from being released.

Take Home Message

The actions of animal rights “extremists” have led to restrictions of access to public records through the US Freedom of Information Act. Whilst understandable on the surface, such restrictions may be unnecessary and, at worst, counter-productive.

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Animal Status

No animals were harmed for this research.

“The right to know is the right to live” 

– Aruna Roy, Indian social activist [2014]

The United States Freedom of Information Act (FOIA, 1966) is a piece of legislation that allows the public to access information by imposing a disclosure obligation on every government “agency” to provide records and documents when requested. “Agency” includes government departments and government corporations, but not the legislature (politicians in their law-making capacity). As the article states, the FOIA was enacted with the goal of “ensuring [that] an informed citizenry, vital to the functioning of a democratic society, [was able to] to check against corruption and to hold the governors accountable to the governed.” We have a similarly-worded Freedom of Information Act here in Australia, but the article is US-based and so specifically refers to the US legislation.

In a nutshell, unless a specific exemption applies, each government agency must “make available to the public its records”, regardless of why the records are requested or who requests them.

Disclosure obligations have been used in the past to access records relating to many issues of public concern. For example, journalists were able to access FBI records of ‘feminist groups’ in the 1970s. A time when groups of women threatened the status quo by fighting for universal suffrage (the right to vote) and were considered dangerous by law officials of the time.

One of the few exceptions to having to provide these public records is any disclosure of medical or personnel files that would result in an unwarranted invasion of privacy. Where records are requested but access to them is denied, and the matter is taken to Court, the Court will do a balancing act and decided whether the public interest in having transparency and access to the records outweighs the interest in keeping an individual’s records private and safe from public scrutiny. However, the US Act (and I’m not sure whether this applies to the Australian equivalent too) has a clear presumption in favour of transparency: the Memorandum on the Act states that “In the face of doubt, openness prevails.”

So, at this point you might be asking: What does this have to do with veganism and animal rights?

In the past, animal rights groups have used the FOIA and state records laws in order to investigate animal mistreatment, generate public awareness of animal welfare issues, to expose mistreatment and violations of laws which prohibit animal cruelty, and to gather evidence for the purpose of instigating lawsuits. Much of this type of investigation has related to animals being used for research (medical, scientific etc) and who have been harmed in the process. It’s a fairly common request, too: in 2015 animal rights groups submitted 265 FOIA requests to the Animal and Plant Health Inspection Service, and 128 requests to the National Institute of Health.

On the surface it appears quite easy to do, because these institutions are often required to keep specific records anyway: for example, under the Animal Welfare Act, if a research facility purchases or transports live animals in commerce or obtains public funding for research involving animals, it has to submit annual reports providing details about their animal use. At a US state level, state-funded universities have similar disclosure obligations. Universities in particular are usually considered to be government ‘agencies’, because they’re government-funded and are performing a “function for the state”.

The paper takes a bit of a left-turn at this point to discuss what the authors call the “radical fringe element” of the animal rights movement. The authors do acknowledge that non-violence is ‘still at the core of today’s animal rights movements’, but point out that, beginning in the early 1970s, there have been small animal liberation movements (for example, the Animal Liberation Front in Britain) who have engaged in various illegal ‘direct action’ activities, which they feel is the only effective way to put an end to animal exploitation. This can involve acts such as damage to property, breaking and entering, theft (of animals, being deemed ‘property’), and economic sabotage (meaning intentionally causing financial loss to the company/institution) rather than any physical violence against another person. As the article states, “leaders within the animal rights movement have criticized such actions…and even critics of the movement have largely acknowledged animal liberationists as a “fringe elements” within the movement”.

However, it is taken seriously by law officials. Indeed, the FBI has called these groups one of today’s “most serious domestic [terrorism] threats”. The perceived threat of these minority groups has resulted in various criminal laws being enacted that target “animal extremists”: for example, the US Animal Enterprise Protection Act (AEPA) of 1992 created a crime of “animal enterprise terrorism”, a federal offence punishable by a fine or imprisonment for up to one year, for “any intentional physical disruption to the functioning of an animal enterprise by stealing, damaging, or causing the loss of, any property used by the animal enterprise resulting in damages over ten thousand dollars”. In 2006 the US Congress passed the Animal Enterprise Terrorism Act (AETA) which broadened the AEPA and strengthened its criminal penalties.

It should be pointed out here that many US politicians, in their debates over such laws, and even those who support such laws, always appear careful to stress that this is just a subset of animal or environmental activism, and that lawful advocacy is the norm and should not be punished.

Despite this, the perceived threat of “animal rights extremism” has been used to justify restricting the public’s right to access records relating to animals, when requested under the FOIA.

The argument is that, if information is provided to animal rights groups/organisations, this may result in harassment, property damage and other illegal activity perpetrated against those organisations and individuals named in the public records. Individuals will be exposed, addresses will be provided, and animal rights activists and groups may circulate this information around and encourage illegal activity among their peers. In one example of this argument being used to restrict access, the state of Oregon introduced a law in 2003 which exempted “the name, home address, professional address or location of a person that is engaged in medical research at Oregon Health and Science University that is conducted using animals other than rodents.” from being released. The impetus for this was that the University had come under criticism for their use of animals in their medical research, and they claimed that, as a result, there had already been “over 50 separate incidents of home harassment targeted at these researchers.” Despite the fact that Oregon already had an exemption protecting individuals’ home addresses, personal telephone numbers, and email addresses from being released in these circumstances, the law was passed

Even where there are no such statutory exemptions expressly dealing with animal research facilities, as the paper points out, “the threat of animal terrorism is still often used to restrict or deny access to animal-related records, particularly in the research context”. In addition, there is little information or testing of how valid these claims of threat are, because individuals who are denied an open records request may simply leave the denial unchallenged. For reasons of cost, time or other personal reasons, they may decide against going to Court to challenge the refusal. This is despite the fact that, when such denials are actually challenged in Court, the courts usually reject the idea that there’s a threat that outweighs the public’s interest in having the information, and are usually willing to order disclosure of information (other than individuals’ names). This may be due to the presumption in the Act that I mentioned before, in favour of transparency.

What does it mean?

Firstly, this may be considered an example of how the actions of a minority can (unintentionally) damage a cause or movement. We can argue that it’s not fair to punish the majority based on the actions of a few, but it does happen, as we can see by the above examples of denying activists access to information based on certain minority groups within the movement.

However, when we restrict access to public records in this way, it denies access to the public in general, not just the “radical fringe element”. It therefore affects the entire public, including academics and journalists and the majority of activists who are seeking the records in the interests of transparency. Individuals who are collecting this information in order to expose animal abuse, mistreatment, and perhaps bring legal action against certain institutions will be denied access to crucial information that is needed in order for that to happen. It should also be kept in mind that there are already civil and criminal laws in place (both in the US and in Australia) which prohibit acts of harassment, property damage, breaking and entering etc. These laws can be easily enforced in order to penalise those few who decide to utilise the information they get in order to engage in those activities.

Denying access to personal information such as an individual’s home address or telephone number is – as I see it – understandable. This information is not necessary in order to expose acts of animal cruelty or mistreatment, and would therefore be an unwarranted invasion of privacy. However, the refusal to release individual’s names is a murkier issue, especially when considering the act of information-gathering to prepare for legal action. Depending on the lawsuit – whether it’s a criminal versus a civil matter, whether damages or an injunction is sought – the name of individuals involved in the wrongdoing can be vital information when attempting to pursue legal action. Actions may be bought against an institution in general, or they may need to be brought against specific individuals who are responsible. Denying access to this information restricts the ability of journalists, activists and citizens alike to be fully informed about the activities of various organisations and individuals.

Lastly, I would argue that removing or restricting a lawful method of gathering information may be counter-productive. Many animal enterprises have ‘ag-gag laws’ which criminalize the undercover filming of their facilities (a whole other issue in itself). As the article states, “open records laws provide one of the few ways for the public to get insight into animal treatment in labs, as research laboratories are often located in windowless rooms or basements, and kept locked. Individuals who are passionate about exposing animal rights violations may therefore feel powerless in their efforts when denied access to public records, and as a result may feel compelled to turn to alternative (ie. illegal) methods to gain information which they see as the only other viable way of exposing such violations.

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Vanessa


I’m a post-graduate student, tutor and avid lover of coffee, 90s music and scary movies. My background and training is in psychology and law, but I am interested in most areas of research, social justice, and, of course, veganism and animal rights.

Title: Animal Rights Extremism As Justification For Rrestricting Access To Government Records

Authors: Christopher Wlach

Journal: Syracuse Law Review

Date Published: 2017

URL: https://goo.gl/ujRg1q 

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