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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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.

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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Livestock owners’ “phone directory” info should not be covered with blanket of secrecy

(Updated 5/23/13 at 1:18pm)

Corrected 5/23/13 at 1:30pm

The full Senate is taking up the farm bill (S. 954), and one amendment three amendments (Amendment 970, 1011 and 1097) from Senator Charles Grassley contain nearly identical language that would eliminate basic “phone directory” information from disclosure, including the name, address, contact info (including email address), GPS coordinates and other identifying information of livestock owners and operators. They claim it’s a defense against domestic terrorism.

The EPA in the last few weeks released such information under FOIA to one (or more) environment groups. That release was criticized by some in Congress. However, the controversy around farmer and rancher’s address and contact information goes back a while to when the USDA was trying to create a system to trace back foodborne illness outbreaks to the source (e.g., the farm) within 72 48 hours to abide by trade agreements. (And it may go back further than that.)  There was much opposition among ranchers and farmers to that program, known as the National Animal Identification System (NAIS).  Eventually, that program was dropped.

During past discussions about this data, we tried to accommodate those concerns and carefully consider when the journalists would find that information useful in reporting (such as when an outbreak occurs) and find some compromise text, but we did not find anyone pushing the exemption who was willing to compromise.

The amendment is ill-considered and should not be voted on in such a rushed manner, especially when the interests in disclosure are as significant as the safety of the food supply. At a very minimum the public has an interest in learning the location of farms implicated in a health scare so the public can evaluate how those responsible for the safety of the food supply are responding.  The current amendment fails to balance any interest in keeping the records confidential with the public interest in disclosure.  The amendment creates a bad precedent for the federal government and for the public that has a strong interest in having full and fair information about newsworthy events regarding the safety of the food supply. Operators of any type of business already have exemptions written into FOIA to protect trade secrets and individual privacy.

This amendment is bad for transparency and accountability and shouldn’t be taken up until sponsors work to address the concerns with the proposal.

CBO releases cost estimate on FOIA bill, but doesn’t address savings

The CBO score is out on the FOIA reform bill and it estimates the bill would add $20 million over 5 years in federal expenses. It’s a frustrating analysis because it does not reflect any savings from making FOIA processing more efficient by, e.g., using a shared FOIA processing service such as FOIAonline.  Such problems are typical with CBO cost estimates, and traditionally it is very difficult to get CBO to adjust their scores.  Congress will have to find savings of at least equal to the net cost from the legislation to meet pay-as-you-go requirements before the bill could be approved.  Or Congress could waive that requirement, but that is highly unlikely.

This supports adjusting the bill to tie closing of contracts with a shift to FOIAonline or other system that makes the process more efficient.  Such systems could, for example, allow various agencies to “talk” to one another digitally while processing a FOIA request.

CBOscore_hr1211

SGI Statement on the Justice Department obtaining AP phone records

The action of the U.S. Department of Justice is an affront to the relationship between the government and news media that our nation’s founders established over two centuries ago.  Journalists experienced in reporting on global affairs and national security respect the government’s need to keep information confidential to protect national security and carefully consider the government’s concerns when reporting on such matters.

Last year Congress rejected a package of changes from the Senate Intelligence Committee that would have redefined the relationship between the government and press on reporting related to global affairs and national security. Until the Justice Department’s actions are better explained, they appear to be another reaction that unnecessarily threatens the balance between the government’s right to keep secrets to protect national security and the public’s right to be informed about global affairs. While delicate and sometimes tense, this balance has never been disrupted to the point that our national security is breached; quite the contrary, in fact:  thorough reporting on national security issues almost always serves the public ‘s and government’s interests and makes our nation safer.

The Sunshine in Government Initiative is a coalition of media associations promoting greater transparency in the federal government. Members include the American Society of News Editors, The Associated Press, Association of Alternative Newsmedia, National Newspaper Association, Newspaper Association of America, Online News Association, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, and Society of Professional Journalists.

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