VICTORY: FOIA Council sides with Animal Partisan in public records dispute with Virginia Department of Agriculture
MARCH 1, 2024
In early 2023, Animal Partisan sought public records from the Virginia Department of Agriculture (VDACS) regarding the mass-killing of turkeys at a commercial turkey factory farm. VDACS provided some records, but redacted significant portions, claiming that release of certain information to Animal Partisan could lead to the “harassment” of individuals involved in the killing. Animal Partisan challenged these redactions, and now, a government agency established by the Virginia Legislature has issued an opinion that not only sides with Animal Partisan, but also creates important legal authority that will help narrow the reasons that agencies across the Commonwealth can use to deny public records requests.
In January 2023, as avian influenza swept the country, a commercial poultry producer killed 25,000 turkeys in Rockingham County, a scenic area in the northern Shenandoah Valley of Virginia. At the time, VDACS claimed that the birds “were quickly and humanely killed.”
Animal Partisan subsequently submitted a public records request to VDACS under Virginia’s Freedom of Information Act seeking information regarding the killing of the animals. In response, VDACS provided a series of incident reports approved by the VDACS Office of Veterinary Services Program Manager. These reports detail how the birds were killed by suffocating them in foam, a method described by a leading poultry scientist as “a horribly inhumane way to kill birds.” Other birds who survived the foam were killed with a “Koechner Euthanizing Device,” a plier-like instrument used to rupture the spinal cord of birds. While documenting these horrific methods of killing, VDACS adorned its incident reports with tasteless cartoon images of turkeys pleading for help as depicted below.
The records VDACS provided to Animal Partisan contained extensive redactions, including the removal of identifying information for individuals involved in the mass-killing. In withholding this information, VDACS relied on conversations it had with the United States Department of Agriculture. VDACS asserted that releasing this information could be used to “make unwanted contact and harassment” and stated that it was withholding the material based on exemptions found in the federal Freedom of Information Act.
But there was one problem—Animal Partisan’s request was made to a Virginia agency under Virginia’s Freedom of Information Act, not under federal law. Therefore, federal law should not apply. VDACS insisted that federal law applied and could be invoked by a Virginia state agency as a reason to withhold records. They were wrong.
A worker sanitizes a truck at a Rockingham County, Virginia poultry farm where 25,000 turkeys were suffocated with foam or had their necks broken by pliers designed to rupture their spinal cords. VDACS withheld detailed information regarding this event in violation of Virginia public records law.
Animal Partisan filed a complaint with the Virginia Freedom of Information Act Council (the Council) seeking an advisory opinion on whether VDACS was allowed to use federal law to withhold information related to a request made under state law. The Council is a state agency created by the Virginia Legislature to facilitate compliance with VFOIA. The Council issues advisory opinions that are intended to “resolve disputes by clarifying what the law requires and to guide future practices.” The Council’s advisory opinions provide important legal authority and are often cited by Virginia courts when resolving litigation involving public records disputes.
On February 28, 2024, the Council issued a 14-page advisory opinion in response to Animal Partisan’s complaint. In part, the opinion finds that VDACS improperly applied federal law to a request made under Virginia law:
"Therefore, Exception 6 under 5 U.S.C. § 552(b)(6), which was cited by VDACS in its response to withhold certain information from disclosure would appear not to apply to state agencies. In light of the provided case law above, federal FOIA would authorize the USDA to withhold the requested information from release; however, this authorization would likely not extend to state agencies or bodies, such as VDACS, or allow them to utilize the exemptions provided by federal law."
— Virginia Freedom of Information Act Advisory Council (Feb. 28, 2024)
In addition to finding that VDACS unlawfully redacted information, the Council’s opinion establishes important authority that will help promote open government in Virginia and assist other individuals who request records from state agencies. Based on the opinion, other agencies are now on notice that they cannot rely on exemptions found in the federal FOIA to deny requests for records made under Virginia law.
In response to the Council’s opinion , Animal Partisan has renewed its request to VDACS for the full, unredacted records. In the event VDACS fails to comply, Animal Partisan will explore all legal remedies, including litigation.
View the full Council opinion HERE.
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