FAST continues to protect privacy of industry participants
Monday, February 3, 2020

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On behalf of the Tennessee Walking Horse industry, FAST is working with several other organizations to address concerns related to Section 788, a proposal that would require information removed from the federal Animal and Plant Health Inspection Service database be reinstated to the APHIS website later this month.

The information, related to figures surrounding horses and trainers allegedly in violation — not convicted — of the Horse Protection Act, was ordered to be removed from the APHIS website in August 2016 because those listed had not necessarily been adjudicated, meaning some of those named in the database had only been accused — but not convicted. 

The decision to remove the information came by way of a lawsuit funded by FAST and settled outside of court four years ago known by the walking horse industry as Contender II.

“The information perceived by many as unconstitutional was removed from the APHIS searchable database because much of it was based on citations or violations that were not tied to a conviction,” said Sadie Fowler, director of advancement for FAST. “The only information on the website as of now are the adjudicated cases with their guilty verdict.”

The decision over Contender II spilled over into the Animal Welfare Act, which oversees other organizations like dog kennels in the way the Horse Protection Act oversees horses. As a result, Section 788 would also affect these groups, requiring information about them, taken down following the Contender suit, be reposted as well. 

Since the Contender II lawsuit was settled outside of court, leaders within the horse industry knew there was a small risk that this issue would reappear and that is what happened on Dec. 20, 2019, when President Trump signed into law a bill that contained language requiring APHIS to reinstate the information removed as a result of Contender II to its website within 60 days. 

“Though APHIS has been taking action in recent years to protect privacy rights and confidential information relating to individuals and firms in the Tennessee Walking Horse industry, those efforts are endangered by Section 788,” said Kasey Kesselring, president of FAST. 

Section 788 is buried within thousands of proposed changes to federal regulations in the Further Consolidated Appropriations Bill. If this happens, information added to the APHIS searchable database could include detailed information that could potentially contain unredacted versions of final Animal Welfare Act inspection reports, including all alleged non-compliances and final enforcement records relating to the Animal Welfare Act (AWA) and Horse Protection Act (HPA).

“We support open records of course, but often, full versions of these reports contain what we feel are unproven allegations; misrepresentations and subjective claims of regulatory violations represented as though they are absolute facts despite only flimsy so-called evidence in many cases,” Fowler said. “Additionally, the bill, if passed without changes, would override provisions in the Freedom of Information Act (FOIA) and risk the businesses and professional reputations and even endanger the lives of many involved in the Tennessee Walking Horse industry.”

FAST, via its legal fund, is working with several other organizations and is urging that a notice and public comment rulemaking procedure be implemented prior to any decision. Additionally, leaders are calling for details about which specific documents will be subject to public scrutiny by way of the APHIS database. 

“This will give all interested parties, including those with privacy and confidentiality concerns, a full and fair opportunity to weigh in on how Section 788 will negatively impact their operations which, in turn, would lead to a better implementation plan that balances privacy rights against public access to records that APHIS maintains,” said Joseph Wilson, an attorney from Kelley Drye & Warren, a highly regarded firm in Washington D.C.,  who is representing FAST among various other groups. “We believe APHIS should also re-open the comment period in the Privacy Act of 1974 rulemaking proceeding. The enactment of Section 788 may implicate the proposed rules under consideration in that proceeding and therefore the public should have a chance to comment in that regard as well.” 

FAST is reviewing several avenues to rectify issues posed by Section 788 and will keep the industry informed as things progress.

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