Farm Bill Update: Showdown looms on FOIA’s balanced protections versus special interest

Senator Charles Grassley is again poised — as soon as today, although the timing is far from clear — to present a broad exemption that would set a bad precedent for the administration of FOIA.  We recently wrote about our temporary win.

The proposal would exempt from disclosure the GPS coordinates of farms as well as basic contact information for owners and operators of farms and food processing facilities. Such entities are corporations, although Sen. Grassley and others are arguing that these locations are both businesses and individual residences, thus they deserve special privacy protections.

We strongly believe that the FOIA already balances the public interest in disclosure with trade secrets, individual privacy, national security and other interests. A better approach would be to reinforce the notion that existing laws such as the Freedom of Information Act already protect personal privacy.

New, unnecessary exemptions set a bad precedent for keeping the public informed of important public safety events.  For example, the FOIA’s existing balanced protections were adequate when the USA Today reported on why a recall of tainted beef didn’t include lunchboxes, waste in the food subsidy payments system or shortcomings in the federal farm loan program.

Successful fight to stop farm bill secrecy — for now

Senator Patrick Leahy and open government groups have stopped at least for now the Grassley amendment that would bar disclosure of basic phone directory information for owners and operators of livestock and poultry processing facilities and farms.  We explained our concerns about the provision quickly, other groups weighed in as well, and Senator Leahy’s worked diligently to explain the ramifications of this seeming milquetoast provision to his colleagues, and it became clearer that the proposal had problems.  We appreciate the delay to afford open government groups the opportunity to work with Senators Grassley and Boxer to find a better approach that upholds the public’s interest in a transparent and accountable 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.

#FOIAsurvey update re: FOIAonline

Our efforts to survey federal agencies (@sgichris, #FOIAsurvey) about FOIAonline are starting to bear fruit. We have put out feelers to most of the forty agencies and departments responsible for over 99% of FOIA requests each year, and we can identify some trends:

  • There is definitely more interest. We had expected as much, since the FOIAonline portal offers distinct benefits for individual agencies and requesters, as well as members of each group in the aggregate, but it’s nice to have this recognized by additional agency FOIA personnel.
  • There are plenty of existing contracts. Which is how things should be; we’re glad agencies have invested in their FOIA-processing systems. We’d just like to see agencies consider FOIAonline as an option when the opportunity arises.
  • There is a lot of voicemail. Given the chronic laments of both FOIA requesters and agency staff, that a lack of resources prevents agencies from responding to FOIA requests and related questions as quickly as they’d like to, this is not a surprise. (We hope the people whose numbers we called were busy helping other callers at the time.)
  • There is some confusion. We did have one agency respond that FOIAonline is for agencies which don’t have an electronic processing system. To which we’d say, (1) We certainly hope any non-electronic agency at least investigates FOIAonline; (2) Even an agency with an electronic processing system may benefit from joining FOIAonline; and (3) We hope that nobody thinks “We’ve already got an electronic system so we shouldn’t even check out FOIAonline.”
  • Talking about these issues will help FOIAonline evolve. The EPA, Department of Commerce, and OGIS/NARA have developed FOIAonline through a thorough process, continuing to refine the system and reach out to stakeholders, and while they have summarized some of their most frequent answers, we think our survey can provide additional information and perspective.

While none of the above items may be a complete surprise, the first round of responses does make us optimistic that agencies are aware of FOIAonline, that they are aware of the benefits it is capable of offering, and that the current scope of agency involvement is a function of its recent development. One agency FOIA staffer explained that while the agency wasn’t ready to commit to FOIAonline yet, it did seem like it was the future.

So, we want to make sure it’s the best, most comprehensive and efficient future we can build.

Sunshine in Government Award honors innovation in FOIA, Senator who defended news coverage

In honor of Sunshine Week, the Sunshine in Government Initiative (SGI) is pleased to recognize three leaders in government who will receive SGI’s Sunshine in Government Award (“Sunshine Award”) for their commitment and work to strengthen open government.

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