PETA names USD, Regents in legal complaint

People for the Ethical Treatment of Animals (PETA) filed a complaint in First Circuit Court in Vermillion Wednesday, Feb. 3, seeking information from the University of South Dakota and the South Dakota Board of Regents about experiments conducted on animals by researchers on campus.

PETA is claiming that the Regents and USD are violating South Dakota's open-records law. In a press release issued Wednesday shortly after the legal complaint was filed, PETA states that USD administrators have failed to provide PETA with documents related to the university's taxpayer-funded experiments on monkeys.

"There are several reasons why PETA, as a nonprofit organization that pursues education and advocacy, states that they would like to have the information they are requesting," said Caitlin Collier, a Vermillion attorney representing PETA in this court action, "which is under the South Dakota open records law.

"It has to basically do with keeping people informed," she said. "That's part of their mandate as an organization. I see this really as one of the first tests of the new open records law (in South Dakota). The Legislature has finally changed the law to more of a presumption of openness. That's really at the heart of the lawsuit – to try to clarify what that new law means."

According to court papers filed Wednesday, USD was cited in 2007 by the U.S. Department of Agriculture for violations of the federal Animal Welfare Act pertaining to the use of primates in invasive stroke research experiments. PETA states that the violations found by the USDA include lack of psychological enrichment in the cages, and housing animals individually rather than in pairs or groups.

This USDA citation prompted PETA to seek more information about the use of animals, particularly monkeys, in research projects at USD. In July 2008, PETA submitted a public records act request to Laura Jenski, USD vice president for research. A request for disclosure of public records was also sent to James Shekleton, general counsel for the South Dakota Board of Regents.

The request was denied, and an appeal through the South Dakota Board of Hearing Examiners was also turned down.

Action by the South Dakota Legislature during its session last year amended South Dakota law pertaining to public records, prompting PETA to once again request records from USD.

According to court papers filed Wednesday, USD responded on July 31, 2009, claiming that certain information requests were denied based upon exemptions in the new law and that USD would charge an estimated fee of $2,000 to provide the requested information.

Court files show PETA requested 19 pieces of information in the summer of 2009, ranging from protocol revision request forms and veterinary medical records, to video and photographic footage of experiments, and copies of various reports, correspondence and minutes.

Jenski informed PETA that USD staff estimated that the time and materials needed to locate, assemble and reproduce the requested information would cost approximately $2,000, and would take approximately 20 business days to complete.

PETA was willing to pay up to $50, and requested all fees associated with providing the requested information be waived because of its non-profit status.

In late October, PETA pared its list of requested documents from 19 to 11. It also asked for copies of three records pertaining to the use of rabbits in experiments at USD.

Jenski responded to this request from PETA with a specific reason for denying nearly every document. In some cases, she noted, the requested document didn't exist. Some of the materials being sought were exempt from South Dakota public records law to protect specific details of the research.

In some instances, Jenski agreed to provide information, such as meeting minutes pertaining to experiments, but personnel names were redacted in accordance to state law.

PETA states that its request for records will provide members of the public information about the operations and activities of USD, a publicly-funded institution. This information, it states, will also reveal information about the experiments conducted by USD, and USD's response to non-compliance with various laws and policies that exist to address the care of animals used in research.

"The university system has greatly increased the amount of federal grants that they go after, particularly in the bio-medical field," Collier said. "Sometimes those grants, depending on which agency is involved, will require certain kinds of reports that may not end up on the federal Web site, but there still may be some information that is of interest to the general public."

Collier said certain procedures must be followed when filing and serving legal action against a governmental institution.

"A summary of the complaint has been sent to Mr. Shekleton and to the (South Dakota) attorney general," she said Wednesday.

PETA's declaratory judgment request asks that:

• The court require the disclosure of all public records requested by PETA last October, which USD and the Regents have already agreed not to disclose.

• The court requires USD and the Regents to waive the costs of production, or reduce the costs based upon an accurate estimate.

• That USD and the Regents pay all of PETA's attorneys fees, tax and costs incurred by taking this legal action, and

• Any other relief to PETA deemed just by the court.

USD and the Board of Regents have 30 days to respond to the complaint filed Wednesday.

The court action, Collier said, is not a direct attempt by PETA to halt animal research experiments at USD.

"There is public records access law that is now in place in South Dakota, and we believe that the court needs to interpret this in a way that requires USD to open up these records," she said. "USD's argument is proprietary interest … and in the complaint, we mention that and talk about how that's just not what other courts in states with similar laws have found to be proprietary interests."

PETA, Collier said, is not interested in obtaining information for the purpose of trying to use the research to develop, for example, a saleable product.

Court documents show that PETA is specifically interested in obtaining National Institute of Health (NIH) grant applications and progress reports submitted by Dr. Robert Morecraft, a USD professor in the division of basic biomedical sciences at USD's Sanford School of Medicine.

Morecraft's research centers on central nervous system mechanisms that support one's ability to recover from a stroke. He also is involved in finding the nerve pathways involved in a common neurological movement disorder called dystonia.

PETA claims that Morecraft conducts what it describes as "terribly painful" experiments on monkeys in his research.

"USD has squandered millions of taxpayer dollars to conduct these terribly painful experiments, and now the university wants to waste more money to hide what happened," said PETA Vice President of Laboratory Investigations Kathy Guillermo in a press release issued Wednesday. "Citizens have a right to know how public institutions are spending taxpayer money and how these facilities are treating animals – especially when their actions may constitute violations of the law."

PETA claimed Wednesday that Morecraft "for years has drilled holes into the skulls of monkeys and caused them to suffer strokes by clamping shut a blood vessel in their brains. The injured animals are then observed as they struggle to grasp food. Morecraft's experiments also include attaching electrodes to the brains of restrained monkeys in order to provoke uncontrollable facial and body movements in the animals. The monkeys are killed at the end of these experiments, and their brains and spinal cords are removed and dissected."

"Everything that we've stated is based on information we've gleaned from his (Morecraft's) grant applications to the National Institute of Health, as well as his journal articles that he has published," Justin Goodman, research supervisor in PETA's laboratory investigation department, based in Washington, DC, told the Vermillion Plain Talk Wednesday. "These are details that are taken from his own materials.

"The focus of this lawsuit is that the university itself is refusing to turn over documents that would include more details not only about the experiments but also what happened to these individual animals that were used in this project," he said. "This is a project that is being funded by taxpayers."

The Plain Talk contacted both Phil Carter of USD's University Relations Office, and Tracy Mercer of the South Dakota Board of Regents office in Pierre Feb. 3. Neither was aware of PETA's legal action taken earlier that day.

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