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Case TitleZANONI v. UNITED STATES DEPARTMENT OF AGRICULTURE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2008cv00939
Date Filed2008-06-02
Date Closed2011-10-05
JudgeJudge Emmet G. Sullivan
PlaintiffMARY-LOUISE ZANONI
DefendantUNITED STATES DEPARTMENT OF AGRICULTURE
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [30]
FOIA Project Annotation: After a D.C. Circuit panel split last year in Multi Ag Media v. Dept of Agriculture, 515 F.3d 1224 (D.C. Cir. 2008), finding that more information concerning farms receiving federal subsidies must be made public, Congress acted quickly to include an Exemption 3 provision in the farm bill essentially prohibiting most personally identifying information from being disclosed. The swift passage of Section 1619 of the Food, Conservation and Energy Act of 2008 is probably a tribute to the strength of the farm lobby. But the reason Congress passes Exemption 3 statutes is because a FOIA exemptionâ€"typically Exemption 6 (invasion of privacy) or Exemption 4 (confidential business information)â€"does not seem adequate to protect the specific type of information at issue. Exemption 3 statutes provide assurance to affected constituencies that such information will not be disclosed in the future. And such Exemption 3 statutes have real-life consequences, as journalist Mary-Louise Zanoni recently found out as a result of her FOIA suit against the Agriculture Department. Zanoni sued to get access to the National Animal Identification System (NAIS) and the National Premises Identification Repository (NPIR). The two databases are used by the Animal and Plant Health Inspection Service to quickly identify and notify producers about animal disease outbreaks in their area. The NAIS database includes a unique identification number for each animal and premises; and the name, phone number, and address of the producer. The NPIR database also includes the name of the premises and the generic type of operation. The NPIR information is typically collected by states for producers that participate in state disease control/eradication programs, but producers may also end up in the databases through federally regulated disease control and eradication programs. For producers not involved in state or federal programs, the NPIR registration is voluntary. Producers can opt out of the system, either changing their status to inactive or, if they do not participate in any state or federal disease prevention programs, they can be deleted from the system altogether. Even if they do participate in disease prevention programs, producers can have their personal identification information deleted, leaving only premises ID and address for disease tracking purposes. APHIS processes opt-out requests for the NPIR and states are responsible for deleting producer information from their own databases. Zanoni planned to write a series of articles about the NPIR alleging that the database was not really voluntary in practice and that may producers were registered without their knowledge or permission, and/or despite their opposition to registration. She requested electronic files containing the registered premises in NPIR, the number of requests to be removed from the database, and the number of premises actually removed. The agency denied her request under Exemption 6. When Zanoni appealed, the agency located another database used to track producer removal requests. The agency provided Zanoni with this database, which included the names of producers deleted from the NPIR but not the dates of removal. While Zanoni's request was pending, the agency published a Federal Register notice indicating that it intended to convert four NAIS databases into a Privacy Act system of records. Zanoni filed suit to prevent the agency from changing the status of the NAIS databases and also to challenge the denial of her request. She also asked the court to find that Section 1619 of the FCEA did not apply to her request. Judge Emmet Sullivan started his analysis by noting that Section 1619 of the FCEA, codified as 7 U.S.C. § 8791(b)(2)(A), provided that the Department of Agriculture "shall not disclose. . .information provided by an agricultural producer or owner of agricultural land concerning the agricultural operation, farming or conservation practices, or the land itself, in order to participate in programs of the Department." FCEA further defined "agricultural operation" to "include the production and marketing of agricultural commodities and livestock." He then pointed out that "on its face, § 8791(b)(2)(A) prohibits disclosure and gives little discretion to the agency as to how the provisions should be applied. Though the section states '[e]xcept as provided in paragraphs (3) and (4),' it is clear that disclosure of the type of information that the statute describes is prohibited. Paragraphs (3) and (4), which are referred to as exceptions, provide specific instances and methods in which disclosure of the information described in paragraph (2) is permitted. The Secretary may disclose the information described in paragraph (2) to government agencies that are working with the Secretary on USDA programs when those agencies provide technical or financial assistance for information described in paragraph (2), or when those agencies are responding for disease control purposes." He observed that "Section 8791 of the FCEA satisfies both the conditions necessary for FOIA Exemption 3 status. . .The language of this provision does not indicate that the information described may be disclosed upon the Secretary's discretion. Moreover, the exceptions that do permit the Secretary to disclose information apply to specific instances in which the statute provides disclosure, none of which apply to Zanoni." Zanoni claimed that the contact information in the database was not subject to Section 8791 since it did not fall within the provision's definition of "agricultural operation" because it had no effect on production or marketing. She distinguished the information in Multi Ag Media, which included farm acreage, irrigation practices, characteristics of farmland, and boundary identification, which Congress intended to protect under Section 8791; and the "phone book" type of information she sought. However, Sullivan disagreed. He pointed out that Zanoni's distinction "contradicts the clear indication in the statute that the identity of the producer and individual details about the premises are prohibited from disclosure. Paragraph (4), which provides when information falling under paragraph (2) can be disclosed, specifically states that to be disclosed the information must be in 'statistical or aggregate form without naming the individual owner, operator or producer.' This provision makes clear that Congress intended this type of information to be withheld under paragraph (2) because it prohibits disclosure of names and, logically, contact information where disclosure of some information regarding agricultural operation is permitted. The information Zanoni requests must be considered information 'concerning agricultural operations' because even in providing exceptions to disclosure, the statute requires the name of the producer, or information referring to the gathering site remain undisclosed." Zanoni's Privacy Act claim was one that only someone unfamiliar with the statute would assert. She contended that subsection (g)(1)(D), which provides the right to sue when an individual is adversely affected by an agency action, applied because if the NAIS database was converted to a system of records it would make it more difficult, if not impossible, for her to gain access to it. As a U.S. citizen, Zanoni argued that she was an "individual" under the statute. Sullivan rejected Zanoni's contention, noting instead that "the language of the Privacy Act indicates that its purpose is to give individuals whose personal information is stored by federal agencies the ability to protect the collection, maintenance and dissemination of their information. . .To view subsection (g)(1)(D) in isolation of the other sections and to interpret "individual" so broadly to apply it to any citizen of the United Statesâ€"regardless of whether they are the subject of the informationâ€"is inconsistent with the way the term is used in other areas of the Privacy Act." He added that "to allow a third party to enjoin the agency from safeguarding personal information in a Privacy Act system because that party claims the rights guaranteed to other individuals may have been violated contradicts the purpose of the Act. . .Zanoni is not an 'individual' within the meaning of §552a(g)(1)(D). Because plaintiff has no cause of action under the Privacy Act, she has not suffered an injury in fact and lacks standing to bring a Privacy Act claim."
Issues: Exemption 3 - Limited agency discretion, Exemption 3 - Statutory prohibition of disclosure
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2008-06-021COMPLAINT against UNITED STATES DEPARTMENT OF AGRICULTURE ( Filing fee $ 350, receipt number 4616012695) filed by MARY-LOUISE ZANONI. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 06/03/2008)
2008-06-022MOTION for Temporary Restraining Order by MARY-LOUISE ZANONI (Attachments: # 1 Brief, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Text of Proposed Order)(jf, ) (Entered: 06/03/2008)
2008-06-023NOTICE of Service to LCvR 65.1 by MARY-LOUISE ZANONI. (jf, ) (Entered: 06/03/2008)
2008-06-02SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF AGRICULTURE, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 07/15/2008)
2008-06-044ORDER. Signed by Judge Emmet G. Sullivan on June 4, 2008. (lcegs1) (Entered: 06/04/2008)
2008-06-055NOTICE of Appearance by James D. Todd on behalf of UNITED STATES DEPARTMENT OF AGRICULTURE (Todd, James) (Entered: 06/05/2008)
2008-06-056Joint MOTION for Order for Briefing Schedule by MARY-LOUISE ZANONI (Attachments: # 1 Text of Proposed Order)(Brown, Leonard) (Entered: 06/05/2008)
2008-06-097SCHEDULING ORDER. Plaintiff shall serve complaint by no later than June 11, 2008; Defendant shall answer plaintiffs complaint by no later than July 1, 2008; Plaintiff shall file any motion for summary judgment by no later than July 2, 2008; Defendant shall file a combined motion for summary judgment and response in opposition to plaintiffs motion for summary judgment by no later than July 21, 2008; Plaintiff shall file a combined response to defendants motion for summary judgment and reply to defendants response to plaintiffs motion for summary judgment by no later than August 1, 2008; Defendant shall file any reply to plaintiffs response to defendants motion for summary judgment by no later than August 8, 2008. See Order for further instructions to counsel. Signed by Judge Emmet G. Sullivan on June 9, 2008. (lcegs1) (Entered: 06/09/2008)
2008-06-10Set/Reset Deadlines: Answer due by 7/1/2008, Cross Motions due by 7/21/2008. Response to Cross Motions due by 8/1/2000. Reply to Cross Motions due by 8/8/2008. Notice to the Federal Register due by 6/9/2008. Joint Motion for a briefing schedule due by 6/5/2008. Time to effectuate service upon party due by 6/11/2008. Summary Judgment motions due by 7/2/2008. Response to Motion for Summary Judgment due by 7/21/2008. Reply to Motion for Summary Judgment due by 8/1/2008. (clv, ) (Entered: 06/10/2008)
2008-06-108RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 6/6/08. (Brown, Leonard) (Entered: 06/10/2008)
2008-06-109RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. UNITED STATES DEPARTMENT OF AGRICULTURE served on 6/6/2008, answer due 8/5/2008 (Brown, Leonard) (Entered: 06/10/2008)
2008-06-1010RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to (Brown, Leonard) (Entered: 06/10/2008)
2008-07-0111ANSWER to 1 Complaint by UNITED STATES DEPARTMENT OF AGRICULTURE. Related document: 1 Complaint filed by MARY-LOUISE ZANONI. (Attachments: # 1 Exhibit)(Todd, James) (Entered: 07/01/2008)
2008-07-0212MOTION for Summary Judgment by MARY-LOUISE ZANONI (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Text of Proposed Order, # 4 Exhibit 7 Affidavit of Mary-Louise Zanoni, # 5 Exhibit 8 Affidavit of Jack Kittredge, # 6 Exhibit 9 Affidavit of Peter Hardin, # 7 Exhibit 10 National Animal Identification System Draft Program Standards April 25, 2005, # 8 Exhibit 11 CV of Mary-Louise Zanoni, # 9 Exhibit 12 "Exported-Fueled National Animal ID Program Raises Many Farmer Objections, The New Farm, April 13, 2006, # 10 Exhibit 13 Pa. a Step Closer to Premise ID Program, Lancaster Farming, September 25, 2004, # 11 Exhibit 14 USDA/APHIS Veterinary Services Initial Announcement of Cooperative Agreements for FY 2007, # 12 Exhibit 15 NCDA&CS Hay Alert, # 13 Exhibit 16_1 NY Premise ID Application, # 14 Exhibit 16_2 PA Premise ID Application, # 15 Exhibit 17 USDA letter dated June 19, 2008 and redacted records)(Brown, Leonard) (Entered: 07/02/2008)
2008-07-1513Unopposed MOTION to Continue Scheduling Order by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Todd, James) (Entered: 07/15/2008)
2008-07-16MINUTE ORDER granting 13 defendant's Unopposed Motion to Continue Scheduling Order, which the Court shall construe as a Motion to Amend the Scheduling Order. The 7 Scheduling Order is amended as follows: Defendant shall file a combined motion for summary judgment and response in opposition to plaintiff's motion for summary judgment by no later than July 30, 2008; Plaintiff shall file a combined response to defendant's motion for summary judgment and reply to defendant's response to plaintiff's motion for summary judgment by no later than August 11, 2008; Defendant shall file any reply to plaintiff's response to defendant's motion for summary judgment by no later than August 21, 2008. Signed by Judge Emmet G. Sullivan on July 16, 2008. (lcegs1, ) (Entered: 07/16/2008)
2008-07-16Set/Reset Deadlines: Cross Motions due by 7/30/2008. Response to Cross Motions due by 8/11/2008. Reply to Cross Motions due by 8/21/2008. Response to Motion for Summary Judgment due by 7/30/2008. Reply to Motion for Summary Judgment due by 8/11/2008. (clv, ) (Entered: 07/16/2008)
2008-07-3014Cross MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Affidavit Declaration of Dr. John Clifford, # 2 Exhibit Exhibit 2, # 3 Affidavit Declaration of Tonya Woods, # 4 Exhibit Ex4-Final Determination, # 5 Exhibit Ex5-RutherfordMemo, # 6 Exhibit Ex6, # 7 Exhibit Ex7, # 8 Exhibit Ex8, # 9 Exhibit Ex9, # 10 Exhibit Ex10, # 11 Exhibit Ex12, # 12 Exhibit Ex12, # 13 Exhibit Ex13-Unpublished Case, # 14 Exhibit Ex14-Unpublished Decision, # 15 Text of Proposed Order)(Todd, James) Modified on 7/31/2008 (jf, ). (Entered: 07/30/2008)
2008-07-31NOTICE re 14 Motion for Summary Judgment; emailed to james.todd@usdoj.gov, cc'd 2 associated attorneys -- The PDF file you docketed contained errors: 1. Please refile document, 2. Counsel is directed to file the pleading also as an Opposition. (jf, ) (Entered: 07/31/2008)
2008-07-3115Memorandum in opposition to re 12 MOTION for Summary Judgment and Combined Motion for Summary Judgment, Statement of Material Facts, and Response to Plaintiff's Statement of Material Facts filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Declaration Dr John Clifford, # 2 Exhibit 2, # 3 Declaration Tonya Woods, # 4 Ex 4 - Final Determination, # 5 Ex 5 - Rutherford Memo, # 6 Ex 6-Public Comment, # 7 Ex 7-Public Comment, # 8 Ex 8-Public Comment, # 9 Ex 9-Public Comment, # 10 Ex 10-Public Comment, # 11 Ex 12-Public Comment, # 12 Ex 12-Public Comment, # 13 Ex 13-Unpublished Decision, # 14 Ex 14-Unpublished Decision, # 15 Text of Proposed Order)(Todd, James) (Entered: 07/31/2008)
2008-08-1116REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment and response to Defendant's Motion for Summary Judgment filed by MARY-LOUISE ZANONI. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Exhibit, # 5 Exhibit, # 6 Affidavit, # 7 Exhibit, # 8 Exhibit)(Brown, Leonard) (Entered: 08/11/2008)
2008-08-1117RESPONSE in Opposition to Defendant's Statment of Material Facts in Support of 14 Defendant's Motion for Summary Judgment filed by MARY-LOUISE ZANONI. (Brown, Leonard) Modified on 8/12/2008 (jf, ). (Entered: 08/11/2008)
2008-08-1218ERRATA Exhibit 18 - Affidavit of Floyd Hall re 16 REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment by MARY-LOUISE ZANONI. (Brown, Leonard) Modified on 8/13/2008 (jf, ). (Entered: 08/12/2008)
2008-08-2119REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Todd, James) (Entered: 08/21/2008)
2008-11-26MINUTE ORDER denying 2 Motion for TRO. In view of the pending Cross Motions for Summary Judgment, Plaintiff's Motion for a Temporary Restraining Order is DENIED as moot. Signed by Judge Emmet G. Sullivan on November 26, 2008. (lcegs1) (Entered: 11/26/2008)
2008-11-2820MOTION to Permit Plaintiff to Supplement the Record by MARY-LOUISE ZANONI (Attachments: # 1 Exhibit 18 - Clifford Memo, # 2 Exhibit 19 - R-CALF Letter, # 3 Exhibit 20 - USAHA Resolution, # 4 Exhibit 21 - Bullard Declaration, # 5 Text of Proposed Order)(Brown, Leonard) (Entered: 11/28/2008)
2008-12-1121Consent MOTION for Extension of Time to File Response/Reply as to 20 MOTION to Permit Plaintiff to Supplement the Record by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Text of Proposed Order)(Todd, James) (Entered: 12/11/2008)
2008-12-17MINUTE ORDER granting 21 Consent MOTION for Extension of Time to File Response/Reply as to 20 MOTION to Permit Plaintiff to Supplement the Record . Responses due by 12/23/2008. Replies due by 1/2/2009. Signed by Judge Emmet G. Sullivan on December 17, 2008.(lcegs1) (Entered: 12/17/2008)
2008-12-20Set/Reset Deadlines: Responses due by 12/23/2008 Replies due by 1/2/2009. (clv, ) (Entered: 12/20/2008)
2008-12-2322Memorandum in opposition to re 20 MOTION to Permit Plaintiff to Supplement the Record filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Text of Proposed Order)(Todd, James) (Entered: 12/23/2008)
2008-12-3023ERRATA Substituting Complete Version of Memorandum in Opposition (Doc. No. 22), with Formerly Omitted Exhibit by UNITED STATES DEPARTMENT OF AGRICULTURE 22 Memorandum in Opposition filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Attachments: # 1 Defendant's Opposition to Plaintiff's Motion to Supplement Her Motion for Summary Judgment, # 2 Exhibit 1: USDA Veterinary Services Memorandum No. 575.19 (Dec. 22, 2008), # 3 Text of Proposed Order)(Todd, James) (Entered: 12/30/2008)
2008-12-3024Consent MOTION for Extension of Time to File Response/Reply as to 20 MOTION to Permit Plaintiff to Supplement the Record by MARY-LOUISE ZANONI (Attachments: # 1 Text of Proposed Order)(Brown, Leonard) (Entered: 12/30/2008)
2009-01-0925REPLY to opposition to motion re 20 MOTION to Permit Plaintiff to Supplement the Record filed by MARY-LOUISE ZANONI. (Attachments: # 1 Exhibit 1)(Brown, Leonard) (Entered: 01/09/2009)
2009-01-2926MOTION to Strike 25 Reply to opposition to Motion by UNITED STATES DEPARTMENT OF AGRICULTURE (Attachments: # 1 Text of Proposed Order)(Todd, James) (Entered: 01/29/2009)
2009-02-0927Memorandum in opposition to re 26 MOTION to Strike 25 Reply to opposition to Motion filed by MARY-LOUISE ZANONI. (Brown, Leonard) (Entered: 02/09/2009)
2009-02-2028REPLY to opposition to motion re 26 MOTION to Strike 25 Reply to opposition to Motion filed by UNITED STATES DEPARTMENT OF AGRICULTURE. (Todd, James) (Entered: 02/20/2009)
2009-03-3129ORDER denying 12 plaintiff's Motion for Summary Judgment; granting 14 defendant's Motion for Summary Judgment. Signed by Judge Emmet G. Sullivan on March 31, 2009. (lcegs1) (Entered: 03/31/2009)
2009-03-3130MEMORANDUM AND OPINION Signed by Judge Emmet G. Sullivan on March 31, 2009. (lcegs1) (Entered: 03/31/2009)
2009-04-13MINTE ORDER denying as moot 20 Motion to Permit; denying as moot 24 Motion for Extension of Time to File Response/Reply; denying as moot 26 Motion to Strike, considering the courts recent grant of summary judgment in favor of defendants. Signed by Judge Emmet G. Sullivan on April 13, 2009. (lcegs1) (Entered: 04/13/2009)
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