The USDA VMO was correct in her interpretation of the relevant regulations under the AWA.

The regulations are both clear and unambiguous. Pursuant to §2.38, the VMO is permitted, among other activities, to enter the place of business; examine records; inspect facilities, property and animals; and “document by the taking of photographs and other means, conditions and areas of noncompliance”1. The VMO had previously cited the University for inadequate husbandry. The VMO undoubtedly had the regulatory authority to review and document the conditions she observed.

§2.35 provides the additional regulatory authority for the copying and inspection of such records by the VMO. While University counsel was correct in part that these records are to remain on the research facility's premises, he failed to note the additional language of §2.35, which carves out the following exceptions: “unless there has been an alleged violation, they are needed to investigate a possible violation or for other enforcement purposes”2.

Here, any one of the three exceptions could apply. The VMO observed a possible violation (which she had seen before); she documented the possible violation; and she presumably needed the documentation as evidence for further investigation and for possible enforcement action. She clearly had the right to remove the documentation from the University premises.

§2.35 further provides that APHIS will maintain the confidentiality of the information, and that the release of any materials that contain trade secrets or commercial or financial information that is privileged or confidential will be governed by the applicable sections of FOIA. Since government employees conduct APHIS inspections, these records would be available to the public under FOIA unless one of the nine FOIA exceptions applies3. Eight of the nine exceptions may quickly be dismissed as not applicable to the scenario presented. One exception, however, a specific exemption by another statute, requires a further inquiry into the AWA.

§13 of the AWA contains the same language as §2.35 regarding implementation of regulations dealing with disclosure of trade secrets and other confidential commercial or financial information4. However, the information documented and photographed by the VMO did not appear to include trade secrets or confidential commercial or financial information. Therefore, it would likely be available to the public for inspection pursuant to FOIA.

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