Animals Aren't "Individuals" for Freedom of Information Act Purposes

|The Volokh Conspiracy |


In yesterday's Ninth Circuit decision in Animal Legal Defense Fund v. U.S. Dep't of Agriculture, the ALDF had asked that a Freedom of Information Act request be expedited; the statute calls for such expedited processing when "failure to obtain requested records on an expedited basis … could reasonably be expected to pose an imminent threat to the life or physical safety of an individual." The request, though, had to do with the health of Tony the Tiger (no, not the Frosted Flakes one):

Since 2014, ALDF had been involved in state court litigation concerning a tiger named Tony who was being displayed in a cage at a Louisiana truck stop. In March 2017, ALDF learned from a veterinarian with special expertise in tigers that Tony was suffering from serious health issues. On April 7, 2017, ALDF asked USDA to carry out an Animal Welfare Act ("AWA") inspection to ascertain whether Tony was getting adequate care. USDA responded on April 10 in a letter stating, "If you wish to know the results of our findings, you must send a request, in writing, to our Freedom of Information Act Office." AWA inspection reports had previously been posted on USDA's website. However, following a policy change in February 2017, inspection reports that have not received final adjudication are available only by FOIA request…. In response to ALDF's request for records about Tony, USDA released four pages of responsive records on August 14, 2017, over three months after the request was made.

And the Ninth Circuit held against the ALDF, because animals aren't "individuals":

The Supreme Court considered in Mohamad v. Palestinian Authority, 566 U.S. 449 (2012), the meaning of "individual" as used in a provision of the Torture Victims Protection Act. The Court defined "individual" to mean "natural person" as opposed to an organization. Id. at 451–52. Although Mohamad addressed a different statutory context, we find much of its reasoning applicable here. Surveying dictionaries, the Court wrote, "As a noun, 'individual' ordinarily means '[a] human being, a person.'" Id. at 454 (quoting 7 Oxford English Dictionary 880 (2d ed. 1989)); see also, e.g., Random House Dictionary Of The English Language 974 (2d ed. 1987) ("a person"); Webster's Third New International Dictionary 1152 (1986) ("a particular person"). The Court continued, "After all, that is how we use the word in everyday parlance." Mohamad, 566 U.S. at 454. We agree that, as a noun standing alone, "individual" ordinarily refers to a single human being.

Other broadly applicable legislative enactments further corroborate this understanding. The Dictionary Act, which offers guidance for "determining the meaning of any Act of Congress, unless the context indicates otherwise," 1 U.S.C. § 1, specifies that the definition of "person" includes entities, such as corporations, "as well as individuals," id. (emphasis added), making clear that ordinarily the term "individual" is a subcategory of "person"—that is, a human being. Like the Dictionary Act, the Administrative Procedure Act defines "person" to mean "an individual" or corporate entity, 5 U.S.C. §551(2), such that "individual," as used therein, can only be understood to refer to a human being.

ALDF argues that dictionaries also define "individual" as "a particular being or thing as distinguished from a class, species, or collection" and that this definition encompasses an animal. See, e.g., Merriam-Webster Online Dictionary (last visited August 5, 2019). Certainly, "individual" can be used to refer to an animal in this manner. But when a speaker or writer intends this meaning of the word, the sentence or its context ordinarily specifies a corresponding class, species, or collection of animals. ALDF cites a dictionary example of "individual" used in this manner: "The markings on tigers are unique to each individual." (Emphasis in original). The sentence indicates that the relevant species is tiger, and individual corresponds to a particular example of that species—a tiger.

By contrast, where no species or group is indicated, the ordinary inference is that the group is "human beings." This usage is included in the Oxford English Dictionary Online, whose second definition under noun reads, "In contexts where a group is not specified or implied: a human being, a person." Oxford English Dictionary Online (Last visited August 5, 2019). FOIA's expedited processing provision, which refers to "the life or physical safety of an individual," is a "context[] where a group is not specified." See 5 U.S.C. § 552(a)(6)(E)(v)(I). "Individual" in this provision thus refers to "a human being, a person" because no other group has been indicated.

As the Supreme Court recognized in Mohamad, "Congress remains free, as always, to give the word ['individual'] a broader or different meaning." 566 U.S. at 455. But Congress must give "some indication" that it "intended such a result." Id. (emphasis in original). The Endangered Species Act ("ESA") provides an illustration of  how Congress can indicate that it so intends. One section of the ESA provides that, "The Secretary may authorize the release (and the related transportation) of any population (including eggs, propagules, or individuals) of an endangered species or a threatened species outside the current range of such species[.]" 16 U.S.C. § 1539(j)(2)(A) (emphasis added). In another section of the ESA, Congress uses the term "individual" with no such corresponding class and indisputably refers to a human being. See id. § 1536(e)(3)(G) ("The President … shall appoint one individual from each affected State [to the Endangered Species Committee" (emphasis added)).

Sounds right to me. Thanks to Howard Bashman (How Appealing) for the pointer.