Ninth Circuit: FOIA’s “reading room” provision is judicially enforceable

The Ninth Circuit today issued its decision in Animal Legal Defense Fund v. USDA. Here's the court's summary of the decision:

The panel reversed in part and affirmed in part the district court’s dismissal for lack of subject matter jurisdiction of plaintiffs’ action against the U.S. Department of Agriculture, alleging claims under the Freedom of Information Act (“FOIA”) and the Administrative Procedure Act (“APA”).

FOIA requires federal agencies to make certain agency records “available for public inspection in an electronic format.” 5 U.S.C. § 552(a)(2). FOIA’s judicial-review provision authorizes district courts to enjoin violations of this “reading room” provision. The Animal and Plant Health Inspection Service (“APHIS”) enforces the Animal Welfare Act on behalf of the U.S. Department of Agriculture. In February 2017, APHIS removed various compliance and enforcement records from its website, and has represented that it will no longer post certain records.

Plaintiffs are animal rights organizations, and they alleged that defendants violated FOIA’s reading-room provision. Plaintiffs requested that the district court enjoin the agency from withholding the records and order the agency to make the records publicly available in an electronic format on an ongoing basis.

The panel held that plaintiffs have standing because their inability to inspect documents in virtual reading rooms harmed them in real-world ways, their injuries were different from the injuries sustained by other Americans who never regularly visited the online reading rooms, and their alleged injuries were “fairly traceable” to the agency’s action, and likely to be redressed by their requested relief.

The panel held that 5 U.S.C. § 552(a)(4)(B) provided district courts with authority to order an agency to post records in an online reading room, and reversed the dismissal of the FOIA claims. The panel rejected APHIS’s challenges to this holding. In addition to the text and structure of FOIA, several lines of Supreme Court and Ninth Circuit precedent support interpreting FOIA’s judicial-review provision as authorizing district courts to order agencies to comply with their § 552(a)(2) obligations. The panel noted its disagreement with the D.C. Circuit’s analysis in Citizens for Responsibility & Ethics in Washington v. DOJ (“CREW I”), 846 F.3d 1235, 1238–44 (D.C. Cir. 2017) (holding that FOIA constrains judicial enforcement of the reading-room provision).

The panel left it to the district court on remand to decide in the first instance whether plaintiffs have exhausted their reading room claim, or whether such exhaustion would be futile.

The panel affirmed the district court’s dismissal of plaintiffs’ Administrative Procedure Act claims because the potential for meaningful relief under FOIA displaced these claims.

Judge Callahan dissented in part. For the reasons set forth in CREW I, Judge Callahan would hold that FOIA provided an adequate alternative remedy, and courts lacked authority under FOIA to order agencies to make records available for public inspection. She would affirm the dismissal of plaintiffs’ FOIA claim for lack of subject matter jurisdiction.

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