State Freedom of Information Acts—A Powerful Advocacy Tool
- Category: for Advocates
Advocates Need Data to Defeat Breed Discriminatory Legislation
by Fred Kray, Esq., and Laura Hayes, Esq.
Whenever breed-discriminatory legislation (BDL) is proposed—whether at the state, county, or city level—the legislative body must present some rational basis for enacting the legislation. Typically such bills are passed in the aftermath of a particularly public and gruesome mauling. Politicians jump into action to play on public sympathy and get re-elected. In many instances, all it takes is animal control officials giving anecdotal testimony about the trouble with pit bulls. How does an advocate fight this less-than-scientific basis for breed regulation?
The answer is the Freedom of Information Act (FOIA). Almost every state has a FOIA that allows anyone to request records from the government. The first step is to find your state's FOIA statute and see what guidelines you need to follow when submitting one (see notes, below, for links to help you find your state FOIA). Some state even provide a form for you to fill out and submit.
Crafting a FOIA request requires planning. Your goal in crafting the request is to get as much of the raw data animal control possesses and can produce AND to uncover what data animal control does not possess and cannot provide. Often the gaps in information are just as important as the information animal control provides.
PBLN's Boston FOIA Request
PBLN recent sent a FOIA request to animal control in Boston, Massachusetts. You may view the complete request here (pdf). What follows is a discussion of the categories of documents we requested. Going through this FOIA request will help you to draft your own effective request.
From 2004 to 2012, Boston had an ordinance in place that regulated the ownership of pit bulls. In November 2012, Massachusetts enacted a statute that, among many other things, banned BDL statewide. The Mayor of Boston and the city councilor behind the original pit bull ordinance immediately began to push for state legislation to overturn the ban on BDL. PBLN's Amy Conrad asked the city councilor for the animal control numbers he claims justify a pit bull specific ordinance. When these numbers were not forthcoming, PBLN decided to submit a FOIA request to Boston Animal Control. Our goal was to determine the accuracy of representations made by the Mayor of Boston and the city councilor and to determine what data exists regarding dogbite statistics and the enforcement of Boston's pit bull ordinance.
Tips for Drafting FOIA Requests
Drafting an effective FOIA request takes planning and patience.
- Write out the information you'd like to receive. Don't eliminate information you think animal control might not be able to provide. What's missing can be just as important as what's provided!
- Break down the information you want into a list of very specific items. Each item needs to be described comprehensively. For each one of these items, consider:
- what the source for the information might be (scholarly journals, web pages, spreadsheets, internal reports, manuals for animal control software, presentations, etc.);
- whether the information exists in hardcopy or electronically (ask for both);
- the range of dates for which you want the information.
- Don't be afraid to be repetitive—each and every item on your list needs to include a date range, possible sources, and possible formats.
- Proofread—checking for grammar, spelling, logic, and compliance with your state's FOIA.
- Be polite!
Breed Identification—What's the Scientific Basis?
When looking for data relating to an existing or proposed breed specific law, you need to know how breed is determined. Usually breed is determined by visual identification. Regarding visual identification, you are looking for a lack of evidence that animal control has a protocol or scientific basis for the visual identification of dog breed. Further, you want to prove that the animal control officers who enforce the law have no training in it. Finally, you want to show that regardless of how many identifications animal control has made, there is no way to test their accuracy. This information allows application of the Cardelle decision, which requires a scientific basis for admission of testimony by animal control.
Dog Bite Statistics
When using a FOIA request to get dog bite statistics, you need not just the compilation of dog bite statistics, but the actual data upon which the compilation is based. When seeking this data, you need to keep in mind several factors—the manner in which animal control records data, the relevant time period, and the wider animal control context.
Regarding record-keeping, you must address the issue of breed selection in animal control's record-keeping software. Who inputs the data? What breeds are given as options when someone goes to create a record? What software is used? And of course you want to ask what records animal control is required to keep and what their retention policy for such records is.
Selecting a time period for the records you are requesting is crucial. You'll want to have data from before and after any breed specific regulations went into effect. In our Boston FOIA request, we wanted to look at bite statistics from before, during, and after Boston's pit bull ordinance was in effect in order to determine its efficacy and effect.
Finally, you'll want information to put data related to pit bulls in a wider context. What is the dog population in relation to pit bulls? What percentage of all the city's dogs does animal control believe to be licensed and/or registered? True dog population numbers are hard, if not impossible, to determine. Without accurate numbers, there is no way to judge the percentage of bites by breed accurately.
Enforcement of Laws
Enforcement issues need to be addressed. First, look outside any breed-specific regulations. Have dangerous dog laws, leash laws, and the like been enforced? Have they been enforced consistently? Selectively? Or not at all? How many citations have been issued? How many citations have been issued and for what reason vis-à-vis pit bulls? What is the break down of the type of prosecutions that have been made? Have dangerous dog complaints and prosecutions gone up, down, or stayed the same over time? What are the total number of dog-related complaints by year? Have these numbers been affected by any breed specific regulations?
Second, look at the enforcement of any breed specific regulations. Has there been consistent, selective, or little to no enforcement? How does the enforcement of breed specific regulations compare with regulations applicable to the dog population at large.
Intake and Euthanasia
A FOIA request must include animal control statistics for intake and euthanasia rates over the relevant time period. These factors speak to overall public safety and animal welfare.
Materials Used to Pass Pit Bull Regulation
Finally, the request should include any materials that animal control has provided to the legislative body during the decision-making process regarding BDL. This will give you a feel for how much science was presented and if it was simply ignored. It will also provide information about how animal control created dog bite statistics for the legislative body.
The first step in defending against Breed Discriminatory Legislation is to obtain the data upon which the legislation was passed or has been proposed, dog bite statistics over the relevant period of time, enforcement statistics, intake and euthanasia rates, and breed identification protocol information. All this can be accomplished with a thoughtful, thorough state freedom of information act request, like the one PBLN submitted to Boston Animal Control.
State Freedom of Information Acts
State Freedom of Information Act Map from PBS
List of State FOIAs from the National Freedom of Information Coalition
Rational basis means that the government—whether local, state, or federal—needs to show that a statute, regulation, or executive order is rationally related to a legitimate government interest. In regard to BDL, that legitimate government interest is public safety. Rational basis review is the lowest level of scrutiny that a court applies when engaging in judicial review of a law. Sadly, in that context, rational does not mean smart, merely non-arbitrary.
In this Florida case, a court found an animal control officer was not qualified as an expert when it came to the visual identification of pit bulls. Although the ACO had IDed hundred of dogs, there was no evidence he had verified his findings in any way. Read more about the case here.