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.

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.

Farm bill sleight of hand hides subsidy recipients

What do a Texas oil billionaire, a former NBA basketball star and a Washington “uber-lobbyist” have in common?  They all received money (legally) under a program to subsidize farmers.  But according to the Environmental Working Group, you can’t find out if they or others like them still receive payments because the U.S. Department of Agriculture is no longer publishing the names of individuals receiving payments.

All because Congress inserted during the closed conference committee meeting two provisions into the massive 2008 farm bill that gave the USDA the authority to do it.

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