October 31, 2007

During the 2003-04 scare over mad cow disease contamination of the U.S. beef supply, federal officials tracked shipments of suspect meat to individual supermarkets - but refused to tell American meat-eaters which ones they were. Government secrecy forced red-meat Americans to play Russian Roulette with their hamburgers.

The incident convinced the Agriculture Department and the Food and Drug Administration that they need a system for tracking individual food animals from birth to table. But farmers and food industry groups, concerned that the system could hurt sales, insisted that it be carried out in total secrecy from the public.

Now, even as citizens prepare for court challenges to that secrecy, the Democrat-controlled Congress is preparing to write the secrecy provisions into law via the Farm Bill now being put together in the Senate.

The Senate Agriculture Committee has written an exemption from the Freedom of Information Act for records in the National Animal Identification System (NAIS). The language was in the draft version of the bill put forth by Ag Committee Chairman Tom Harkin (D-IA).

The bill allows no disclosure of information from the NAIS under FOIA or otherwise except when the Secretary of Agriculture decides to disclose it. The Ag Secretary would be allowed to disclose NAIS information to the owner of the animal in question, a state agriculture department, the Attorney General, the Secretary of Homeland Security, the Secretary of Health and Human Services, or to other parties when ordered to do so by a court. The bill would allow the Secretary to disclose the information to foreign governments - but forbids the Secretary to disclose it to the American public, who actually pay for, eat, and sometimes die from the meat.

Moreover, reporters and publishers could be put in jail and face huge criminal fines for publishing any information from the NAIS - if the bill becomes law and survives Supreme Court scrutiny for constitutionality under the First Amendment.

The bill forbids any "use" (beyond those listed above) by "any individual or entity" of NAIS information. The secrecy language is crafted as an amendment of the Animal Health Protection Act of 2002. Under that statute, such violations may result in criminal or civil fines of $50,000 or more per violation, and jail terms of up to one year for a first violation or up to 10 years for subsequent convictions (7 U.S.C. 8313).

The industry-backed language in the bill makes no distinction as to how the information might be acquired or what the information is. Thus, a reporter who followed his nose to a large-scale feedlot and reported its address could do time in jail with his publisher, since "phone book" listings of animal-feeding facilities are part of the NAIS. If the feedlot had an environmental permit, information related to the permit could be made secret as well.

The Senate Agriculture Committee approved the bill, which still has not been formally filed or given a bill number, on Oct. 25. Senate floor action could begin this week.

One New York homesteader, Mary-Louise Zanoni, filed a FOIA request on Oct. 24 as the Senate Committee was rushing its bill through, for all records contained in the premises-registration database maintained by USDA's Animal and Plant Health Inspection Service as part of the NAIS. Those are the "phone book" listings. Zanoni, a Yale-trained lawyer and SEJ member, fully expects to challenge USDA in court if it denies her request.

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