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.

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About sunshineingov
Coordinator of the Sunshine in Government Initiative

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