Saturday, December 12, 2020
Farmers disclose a great deal of information and data to the USDA (federal government) to be able to participate in federal farm programs. The information/data is often tied to the particular farmer and farm location, thus raising privacy concerns over what persons and/or entities have access to it. Indeed, in recent years some animal activists opposed to large-scale confinement livestock production have committed acts of vandalism (and worse) against targeted facilities.
Because the information about farmers, their operations, and the locations of fields and facilities is in the hands of the USDA it is generally subject to disclosure to the public. In 1967, the Congress enacted the Freedom of Information Act (FOIA). 5 U.S.C. §552. The FOIA requires the disclosure of federal government documents upon request. The idea behind the law is to make federal agencies more transparent. But can a FOIA request reach private information of farmers that is in the USDA’s hands? Isn’t this personal information private? It’s an important concern for farmers.
The reach of a FOIA request and its application to farmers – it’s the topic of today’s post.
The FOIA requires that a federal agency must disclose requested records unless the records fall within an exemption. There are nine primary exemptions that protect certain documents, data and other information from a valid FOIA request. They are as follows: 1) classified documents governed by the President via Executive Order; 2) records that are “related solely to the internal personnel rules and practices of an agency”; 3) information that has been “specifically exempted from disclosure by statute”; 4) information that is protected by trade secret; 5) “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency”; 6) information contained in personnel and medical files and similar files when disclosure would constitute a clearly unwarranted invasion of personal privacy; 7) various types of law enforcement information; 8) matters contained in or related to examination, operating, or condition reports prepared by or for regulators or supervisors of financial institutions; and 9) geological information and data, including maps, concerning wells. 5 U.S.C. §552(b)(1-9).
Over the years, the courts have construed the exemptions narrowly based on a rationale that the FOIA has a strong presumption in favor of disclosure. See, e.g., United States Department of State v. Ray, 502 U.S. 164 (1991). When a request is made for documents from an agency, the particular government agency holding the requested information bears the burden to show that an exemption applies.
Application to Agriculture
As applied to agriculture, the most common exemptions are when the requested information is protected by statute, and when disclosure of the requested information would result in a clear invasion of privacy. Sometimes the exemption for geological information also comes into play.
Statutorily protected information. With respect to the exemption for statutorily protected information contained in 5 U.S.C. 552(b)(3), there are two aspect to the exemption. First, if the governing statute absolutely bars disclosure, there is no agency discretion. Alternatively, the applicable statute may only place a limited prohibition on disclosure and define particular matters to be withheld or provide specific criteria for withholding. In that instance, the information sought is only protected from disclosure if the specific requirements of the statute are satisfied. As applied to agriculture, federal law provides that “the Secretary, any officer or employee of the Department of Agriculture, or any contractor or cooperator of the Department, shall not disclose (A) information provided by an agricultural producer or owner of agricultural land concerning the agricultural operation, farming or conservation practices, or the land itself, in order to participate in programs of the Department; or (B) geospatial information otherwise maintained by the Secretary about agricultural land or operations for which information described in subparagraph (A) is provided." 7 U.S.C. § 8791(b)(2)(A), (B). The USDA commonly uses this provision as its basis for not disclosing farm and tract numbers (along with maps and aerial photographs) as protected geospatial information.
Personnel, medical and similar files. The USDA also often uses the exemption for personnel, medical and similar files located at 5 U.S.C. §552(b)(6) on the basis that the disclosure of such documents would constitute an unwarranted invasion of privacy. Living individuals have a privacy interest in not having agencies disseminate personal information about them. But, for a government agency to withhold information under this exemption, the privacy interest must outweigh the public interest. The basic legal question is whether the disclosure of the information would constitute a clearly unwarranted invasion of personal privacy. There’s a two-step process in answering that question. The first step involves determining whether disclosure would compromise a substantial privacy interest. If it would, that substantial interest must be weighed against the public interest in the release of the records. The party requesting the records bears the burden of identifying an overriding public interest and demonstrating that disclosure would further that interest. See, e.g., Stein v. Central Intelligence Agency, et al., 454 F. Supp. 3d 1 (D. D.C. 2020). The requester "must show that the public interest sought to be advanced is a significant one" and "the information is likely to advance that interest." See, e.g., National Archives & Records Administration. v. Favish, et al., 541 U.S. 157 (2004).
The issue of what farm records are exempt from a FOIA request was at issue in a recent case. In Telematch, Inc. v. United States Department of Agriculture., No. 19-2372, 2020 U.S. Dist. LEXIS 223112 (D.D.C. Nov. 27, 2020), the plaintiff was in the business of collecting and analyzing agricultural data from various sources, including the federal government. The plaintiff submitted seven FOIA requests to the USDA for specific records. The records sought included farm, tract, and customer numbers created by the USDA. The USDA created these numbers to assign them to land enrolled in USDA programs and to identify program participants. The USDA denied the plaintiff’s FOIA requests either in part or fully on the basis that the records at issue were geospatial information exempt from disclosure as relating to specific farm locations and specific farmers, and on the basis that the information sought would result in an unwarranted invasion of personal privacy.
The plaintiff administratively appealed the FOIA requests, and then sued in federal court three months later after being unsatisfied with the USDA’s failure to adjudicate the appeal. The plaintiff alleged that the USDA violated the FOIA by withholding the customer, farm, and tract numbers. Additionally, the plaintiff alleged the USDA violated the FOIA by following an unlawful practice of systematically failing to adhere to FOIA deadlines. The plaintiff claimed that no substantial privacy interest was at stake, and the public interest in obtaining the requested information outweighed any privacy concerns.
As a starting point, the trial court noted that the FOIA mandates that an agency disclose records on request, unless the records fall within an exclusion. As to the farm and tract numbers, the trial court held that the USDA properly withheld the information as geospatial information. The trial court held that the farm and tract numbers are geospatial information, as they refer to specific physical locations. Thus, USDA had properly not disclosed them to the plaintiff.
The trial court also held that the USDA also properly withheld the customer numbers from disclosure. Disclosing them, the trial court determined, would have been an invasion of personal privacy. The court noted that while the customer numbers alone did not reveal information about landowners, they could be combined with other public data to identify individual farmers and reveal information about their farms and financial status. The plaintiff claimed that disclosing the customer, farm, and tract numbers would allow the public to monitor how the USDA was administering its farm programs. Likewise, the plaintiff argued that the disclosure of the information would let the public determine whether the USDA was overpaying program participants and allow the public to determine whether farmers are complying with the USDA program. However, the trial court concluded that neither of the plaintiff’s arguments warranted the disclosure of the numbered information because the plaintiff showed no evidence to support its claim of fraud and because the FOIA’s purpose is to shed light on what the government is doing rather than the conduct of USDA program participants. As a result, the court held that the USDA also properly withheld the customer numbers.
As for the plaintiff’s claim that the USDA systematically failed to adhere to FOIA deadlines, the court held that the plaintiff lacked standing for failing to establish the existence of an unlawful policy or practice. The court noted that the USDA responded to the FOIA requests according to then-existing USDA regulations. The regulations stated that FOIA requests served on USDA required prepayments for the request to commence. The plaintiff failed to prepay on some of the requests, and the USDA completed the remainder of the requests within FOIA deadlines. Finally, the court held that the USDA’s failure to adhere to statutory deadlines to process the plaintiff’s administrative appeals did not rise to the level of systematically ignoring FOIA requests.
The trial court’s decision in the Telematch case is welcome news to farmers. While the FOIA generally allows the public to gain access to governmental records, there are key exceptions that can apply to data the USDA collects from farmers participating in federal farm programs.