Two overbroad anti-disclosure provisions part of House-Senate negotiations over farm bill

The two proposed exemptions to disclosure contained in the House-passed farm bill (HR 2642) would broadly inhibit public understanding of agriculture issues and prevent valuable uses of public information in our democracy.  Congressional negotiators will decide the fate of these provisions as they reconcile differences between farm bills passed in the U.S. House and Senate starting this week.

Section 1613

One provision (Sec. 1613) contained in the bill that passed the House (HR 2642), would create a presumption of secrecy about farming operations by prohibiting any agency from disclosing on a discretionary basis information submitted to it “concerning an agricultural operation, farming or conservation practices or the land itself.”

Five years ago Congress barred the Agriculture Department from releasing this information (See: http://projects.propublica.org/foia-exemptions/statutes/14), but this proposal expands that to all federal agencies subject to FOIA, which currently number about 100. This proposal drops wording that expressly allowed agencies to release information in statistical form, masking identities of individual farmers. Further, it would only allow disclosure of information about farming operations if Congress expressly required public disclosure or the farmer consents or otherwise publicly discloses the information.  Finally, the proposed language does not comply with the requirements that Congress established under the OPEN FOIA Act of 2009 by failing to properly cite the section of existing FOIA statute that recognizes statutory exemption to FOIA. This proposal sets a bad precedent for the federal FOIA and deserves further refinement to better articulate a need and allow public scrutiny before creating new exemptions to disclosure.

This provision would undermine the flow of information about farms and farming practices that have nothing to do with personal privacy. If enacted, it would inhibit:

Section 11325

Another provision in the House bill (Sec. 11325) would bar the EPA from disclosing any “identifying location information” under a water pollution law “or any other law.” The provision gives examples of contact information it would protect that is already protected under current law. In addition, the proposal applies far more broadly by prohibiting disclosure of “other identifying location information,” which would create impacts similar to those under Section 1613.

Supporters of these provisions have yet to adequately explain why such broad exemptions to disclosure are necessary. 

  • Existing law already protections personal privacy information.
  • Fourteen different laws on the books exempt agriculture-related information from disclosure under the FOIA, including the prohibition slipped into the 2008 farm bill during the conference negotiations.
  • According to USDA figures, the 2008 farm bill provision (7 U.S.C. 8791) has been cited to deny records requests several hundred times every year since Congress enacted the law:
  • FY08: 167
  • FY09: 432
  • FY10: 344
  • FY11: 385
  • FY12: 340

Given the strong public interest in the information covered under existing law, Congress ought to carefully consider any broadly worded exemptions to disclosure.

Best practices for national-security reporting

With the recent surveillance leaks in mind, we want to call attention to a collection of “best practices” for journalists reporting on national-security issues which New York Times reporter Adam Clymer laid out as part of a larger report a couple years after the attacks of 9/11; this is a condensed version of Clymer’s summary (from SGI director Rick Blum’s recent Roll Call op-ed):

  • Carefully consider the consequences of publishing.
  • Take government concerns seriously.
  • Check sources.
  • Tell readers when making agreements with governments regarding what stays in (or is left out of) a story.

Now, 2003 is a decade – and more than a few national-security journalism cycles – in the past – but Clymer’s advice remains relevant and valuable, even if a measure of its success is how unobtrusive it is. Ironically, the best practices may be so transparent that they can’t be seen.

In a new light: FOIA and a photographer’s records

For Ernest Withers, taking pictures while marching in the Civil Rights Movement helped him document his experience, but a FOIA request from a Memphis Commercial Appeal reporter, inspired by an anonymous tip, revealed that Withers had another role during that turbulent time: federal informant. The reporter and assembled panelists will discuss Withers and FOIA’s role uncovering this hidden history at an event at the National Press Club next Thursday, October 10.

Withers, who had been a WWII veteran and one of Memphis’s first black police recruits before opening his own photography studio, used his access as a freelance photographer to get pictures. But records showed that he had also been relaying information to the Federal Bureau of Investigation from the 1950s into the 1970s; even after his death, the Bureau was reluctant to acknowledge his role. However, reporter Marc Perrusquia noticed that the Department of Justice had responded to a FOIA request by “carefully redacting references to informants – with one notable exception[:] a single reference to Withers’ informant number.” (For a summary of related coverage, see below.)

The Press Club announced: “The panel has particular resonance today. It comes on the 50th anniversary of Dr. Martin Luther King Jr.’s ‘I Have a Dream’ speech. It arrives on the heels of recent news about the government’s sweeping domestic surveillance operations. The discussion hopes to highlight the challenges public-affairs journalism faces as news organizations’ business models are under stress. The discussion will shed light not only on the government’s past surveillance practices but also on FOIA and the public’s right to know what its government is up to.”

We at SGI also note that Perrusquia’s work is part of our “FOIA Files” (#603), and that the agreement between the Commercial Appeal and the Justice Department, for further future releases, means that we will continue to learn more about what the government has done and is doing.

A sampling of coverage (see also the Commercial Appeal’s summary):

SGI op-ed in RollCall.com outlines way forward on leaks: Engagement

In Guest Commentary on RollCall.com this morning, we give concrete ways the government should better engage with journalists on stories based on unauthorized disclosures (“leaks”).  We argue that when reporters bring stories to agencies on national security and foreign affairs where they may be some sensitive information in the story, the reporters take seriously their obligation to mitigate against possible harms from any disclosures. The government, too, has an obligation to engage the press when these stories are brought to officials to avoid possible harms from such stories.

The entire commentary is available here.

Take the poll! Should FOIA requesters see responsive documents before they go online?

Three years ago, I polled investigative journalists about a conflict between their competitive interests and their principles. Here’s the question:

The responses I received were thoughtful, varied and conflicting. Some saw competitive advantage in having the story for a few days. Beyond the selfish interests of keeping a story away from competitors, they pointed out a brief delay between the time a requester receives responsive information and the time the documents go online allows a reporter the time sometimes needed to convey a complex story accurately.  Others argued the documents are public and should be available to all, not just the single requester. For a journalist to argue otherwise is hypocrisy, some pointed out. In addition, some noted that with certain requests the requesting journalist likely has background needed on the topic to quickly find the important parts of documents, so those free riders are already at a disadvantage trying to scoop the story.

Since my informal survey in 2010, the government has built tools to make it easier to release responsive documents online at the time they are sent to the requester. Congress is considering FOIA legislation that would move the executive branch toward the creation of a single portal for agencies to receive and respond to FOIA requests.  EPA already has built a robust system that would accomplish that and more.  So the question is ripe: should there be a delay between the time the FOIA requester receives her documents and the time those documents go online?

What’s your take? Take the poll or email us.

Two cheers for Congress: the end of a b(3)

Buried in the middle of the FY2013 National Defense Authorization Act (NDAA) was a pleasant surprise for us: Section 1078, rescinding a statutory exemption to the Freedom of Information Act (or, as we call it, a “b(3)” – after the section of FOIA permitting them), repealed much of the “Smith-Mundt Act”. And earlier this month, this b(3) officially expired.

The United States created the Voice of America during the Cold War to let news programs reach people whose political leaders restricted the press. Amidst concerns that U.S. propaganda might influence domestic policy debates, Congress banned distribution of that programming within the U.S. That is, until earlier this month.

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Curious about surveillance? FOIA has answers.

Many Americans are curious about electronic surveillance by the federal government. Conveniently, the Freedom of Information Act (FOIA) has already helped provide some answers. Although much of the interest and attention arises from journalism in recent days (here, here, here, and here, and related stories), America has had various agencies conducting various forms of surveillance for various purposes for years. For over a decade, journalists have been using FOIA, among other means, to learn more about the surveillance capacities and activities of the federal government:

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