Is USDA Switching Secrecy Strategy for Feedlot Phone Book?

May 7, 2008

House and Senate conferees have dropped from the 2007 Farm Bill language that would keep secret the names and addresses of feedlot operators, according to lobbyists tracking the bill.

That news might seem to signal a victory for groups - including SEJ - who opposed feedlot secrecy. Or not.

Faced with recent defeats in both Congress and the courts, the USDA and meat industry, both of whom seem determined to keep such information secret, may be shifting their strategy to trying to accomplish the same result by using Privacy Act regulations.

At issue is simple "telephone book" information about food animal production facilities which US Department of Agriculture is trying to collect for its National Animal Identification System (NAIS). The NAIS, the USDA says, is intended to allow animal tracking which would help control a disease outbreak. While USDA pictures the NAIS as solely intended to benefit industry, environmental, food, and consumer groups view basic NAIS information as something that would help the broader US public protect themselves.

USDA published two notices relevant to withholding NAIS "phone book" data in the Federal Register April 30, 2008. The move came within days of news that House and Senate conferees on the 2007 Farm Bill had dropped NAIS secrecy language.

Such notices are commonplace and published routinely, veteran Privacy Act lawyers say, and do not in themselves necessarily have significant legal impact. But the USDA recently published a spate of them on the heels of a sweeping appeals court defeat on the use of Freedom of Information Act privacy provisions. This has caused other open-government lawyers to interpret the actions as signalling an important shift in legal strategy.

The secrecy language in the Farm Bill had drawn vehement opposition from journalism, consumer, and open-government groups. The Society of Environmental Journalists was one of the groups opposing the Farm Bill NAIS secrecy provision.

The Privacy Act, originally passed in 1974, applies to almost all "systems of records" kept by the government containing information about individual citizens by name. It gives citizens the right to see the information the federal government keeps on them. It also prohibits, and even criminalizes, government disclosure of personal information without the permission of the person whom the information pertains to, subject to certain exemptions (5 USC 552a(b)) and see also case law discussion.

One of the USDA Federal Register notices of April 30, 2008, would formally establish the NAIS as a "system of records" for purposes of the Privacy Act. The other would do the same for the Comprehensive Electronic Permitting System (ePermits) operated by the USDA's Animal and Plant Health Inspection System (APHIS). Some farmers complain that USDA has used the ePermits system as a tool to force often-reluctant food producers to submit basic information to NAIS - while continuing to claim NAIS participation is voluntary.

The NAIS notice will take effect June 9, 2008, unless modified in response to comments. The deadline for public comments is May 30, 2008.

USDA published a total of five Privacy Act declarations on April 30 - covering a broad range of food supply safety information and other USDA information which might otherwise be available to the public. The agency published another such notice on May 7, 2008.

Another of those declarations would black out information in USDA's "Wildlife Services Management Information System." Among other things, that database contains information about which farmers and ranchers are availing themselves of the USDA's program to kill predators such as coyotes and wolves which threaten livestock. Environmental groups have sought such information, but some court decisions have blocked access to it on privacy grounds.

Many of those systems of records have been in existence for a significant number of years. The question of why the USDA waited until now to publish public notices may still be unanswered. But the Privacy Act requires federal agencies to publish a Federal Register notice upon establishment or revision of such systems of records (5 USC 552a(e)(4)). The NAIS "phone book" database has been in existence since at least April 2007.

The April 30, 2008, USDA notices were seen by some lawyers as an effort to limit the impact of a Feb. 15, 2008, federal appeals court decision requiring USDA to disclose certain information about farmers receiving subsidies.

That case, Multi Ag Media LLC vs. Department of Agriculture, centered on arguments over interpretation of the privacy exemption (Exemption 6) of the Freedom of Information Act. The appeals court held that the bulk of 13 databases identifying beneficiaries of USDA's subsidy and benefit programs should be disclosed because the public had a significant interest in their disclosure.

The privacy provisions of FOIA and the Privacy Act interlock in complex and complementary ways. FOIA presumes that most government records must be disclosed, but exempts personal information like medical records, except when the public interest in disclosure outweighs the individual's privacy interests. The Privacy Act, as amended, prohibits disclosure of certain personal information, but exempts from this prohibition any records that are REQUIRED to be disclosed under FOIA. That leaves a gray area involving records where agencies have some discretion under FOIA.

Over the decades since enactment of both statutes, a substantial body of administrative and case law has accumulated interpreting precisely what kinds of information are and are not required to be withheld or disclosed.