|Case Title||ZANONI v. UNITED STATES DEPARTMENT OF AGRICULTURE|
|District||District of Columbia|
|Judge||Judge Emmet G. Sullivan|
|Defendant||UNITED STATES DEPARTMENT OF AGRICULTURE|
Complaint attachment 1
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. Â§ 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, Â§ 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 Â§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
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