Obscure Farm Bill Provision Blacks Out Agricultural Data

February 25, 2009

The Department of Agriculture is interpreting a provision (Section 1619) in the 2008 Farm Bill so broadly that it may amount to a FOIA exemption for most information about individual agricultural operations. That might mean, for example, that environmental reporters might not be able to get a list of local feedlots and their locations — even when those feedlots might be polluting local streams.

As the Farm Bill was being debated in 2007-2008, livestock industry lobbyists slipped into it language prohibiting disclosure of information about individual agricultural operations submitted to the National Animal Identification System. Sen. Patrick Leahy (D-VT) got that provision removed. But when the bill went to conference, industry lobbyists got Sec. 1619 added, even though it had been in neither the House bill nor the Senate bill.

Section 1619 was sold to the conferees, press, and public as "merely" an effort to overturn a particular court case (Multi Ag Media vs. USDA). But several recent USDA FOIA rulings and a USDA policy memo obtained by the WatchDog suggest that the Ag Department is using the provision to deny many different kinds of FOIA requests.

The legal issues are complex. Interpretation of section 1619 is being litigated already, and USDA's interpretation under the Bush administration may eventually be overturned under the Obama administration. Under a separate legal doctrine, USDA is also using privacy concerns to deny FOIA requests.

But the actual language of Section 1619 lends itself to expansive interpretation. It reads, in part:

"Except as provided in paragraphs (3) and (4), the Secretary, any officer or employee of the Department of Agriculture, or any contractor or cooperator of the Department, shall not disclose — (A) 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...."

USDA in some cases is going beyond the law. When the nonprofit Boise public-interest law group Advocates for the West FOIA'd a range of information on the USDA Natural Resources Conservation Service's Environmental Quality Incentive Program (EQIP), USDA did not supply the information (although it offered to negotiate). Much of the information not supplied was NOT provided by program participators.

USDA is making similar interpretations of Section 1619 in another case, Mary-Louise Zanoni vs. USDA.