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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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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FIRST Principles: Working with whistleblowers and more

This is your FIRST Principles Update for October 2, 2017, by NEWS MEDIA FOR OPEN GOVERNMENT, a coalition of media associations advancing newsgathering, press freedom and open government. For more, visit foropengov.org or follow us @foropengov.

 

RESOURCE: WHISTLEBLOWER DEFENSE GROUP PUBLISHES GUIDE FOR JOURNALISTS

Vulnerable sources inside government may not fully understand their rights, the various whistleblower channels for reporting issues internally, and potential consequence from retaliatory actions for going public. “Journalists need to understand not only the value of a whistleblower’s information but also the unique challenges and risks faced by sources who are employees,” writes Dana Gold in a new guide for journalists on working with whistleblowers from the Government Accountability Project. “A relationship with a journalist can be the highest stakes and most stressful partnership in a whistleblower’s professional life.” Trust and mutual understanding are key to ensuring the flow of important information to the public while protecting sources.

GAP is a non-profit organization providing legal and other advice to government employees on whistleblower rights. GAP has experience working with potential whistleblowers and journalists while a news story is in development. They understand the importance of exclusivity and work carefully to help protect both whistleblowers and the journalists working on a story.

While experienced journalists may be familiar with the advice, the guide provides good recommendations for security, a healthy dose of reality to the limits of whistleblower protections and some interesting surprises. I didn’t know, for example, that 19 of 20 whistleblowers actually attempted to use internal channels before going public, according to one survey.

(In full disclosure, I attended a retreat organized by GAP to discuss issues surrounding government employee rights and provided input on an early version of the draft guide.)

 

FOIA AS DISINFECTANT AGAINST PREFERENTIAL TREATMENT IN IMMIGRATION

When first-term U.S. Representatives Bryan Fitzpatrick (R-PA) and Dwight Evans (D-PA) sought to put together reforms to the immigration process, they included a provision that fought preferential treatment of certain immigration cases and looked to FOIA for help. To combat the problem, they included language in their legislation that would require the Department of Homeland Security to log all communications from third parties about particular immigration cases and ensure responsible disclosure. Sec. 8(e)(2)(c)(ii) says:

(ii) TRANSPARENCY.—The log of communications described in clause (i) shall be made publicly available in accordance with section 552 of title 5, United States Code (commonly known as the “Freedom of Information Act”).

They went further in the next paragraph (SEc. 8(e)(3) for anyone keeping score) to require that if anyone receives helpful information and tips about the immigration process, that same information should be proactively disclosed to the public, which echoes the FOIA’s requirement that agencies affirmatively disclose information that the agency reasonably anticipates would be of interest to future requesters.

(3) PUBLICATION OF INFORMATION.—If, as a result of a communication with an official of the Department of Homeland Security, a person or entity inquiring about a specific case or generally about the immigrant visa program described in section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)) received generally applicable and non-case-specific information about program requirements or administration that has not been made publicly available by the Department, the Director of United States Citizenship and Immigration Services, not later than 30 days after the communication of such information to such person or entity, shall publish such information on the United States Citizenship and Immigration Services Web site as an update to the relevant Frequently Asked Questions page or by some other comparable mechanism.

If this provision does become law, it will be interesting to see whether this provision has any impact. It could be very hard to enforce, unless an investigative reporter or two goes through these communications one-by-one (and key information isn’t redacted under one of FOIA’s exemptions). This may be a case where the public interest in disclosure (to ensure equal treatment) would outweigh a particular interest protected under one of the exemptions) and a public interest balance test more broadly applied that it is currently would provide more disclosure. Of course, disclosure itself may deter bad behavior, which is the most difficult kind of impact to see.

 

FARM BILL HISTORICALLY SOWS SECRECY

Congressional gears are revving up for the push to reauthorize spending on farms and supplemental nutrition programs in schools, and this year we are particularly worried that the must-pass legislation will become a vehicle to undo pro-disclosure court decisions or impose secrecy without public discussion.

Traditionally the legislation has been known as the Farm Bill and is reauthorized every 5 years. The legislation marries congressional action to aid small family farms (or at least funding intended to help small family farms) with food and nutrition assistance programs. Under political pressure to pass the legislation, lawmakers have historically accepted pernicious secrecy provisions as part of the cost to moving the legislation.

News media groups in our coalition have been successful in fighting against such provisions, but we’ve also seen secrecy provisions slip through. In 2008, Congress dropped a provision that would have barred disclosure of basic phone book information on farms that contribute to the food supply, while enacting a provision that vaguely allowed the U.S. Department of Agriculture to withhold any information provided by a farm “in order to participate in programs of the Department” or geospatial information that describes farm property or operations. It turned out that local land assessors were stymied in their work by the provision.

Transparency has a few influential lawmakers in its corner. Senators Patrick Leahy (D-VT) is a longtime champion of government openness and an active watchdog over efforts to cut narrow loopholes into FOIA’s disclosure requirements. He’s the ranking member on the Appropriations Committee, where he helps oversee government spending. He also shepherded several successful campaigns to strengthen FOIA and held numerous oversight hearings during his tenure leading the Senate Judiciary Committee. Chuck Grassley (R-IA) also chairs the Senate Judiciary Committee, and he has been a strong defender of FOIA.

To be sure, while the farm bill debates are just now ramping up in the halls of Capitol Hill with hearings as a setup for bigger debates likely to occur next year, we remain concerned this legislation will again become a host for dangerous anti-transparency provisions and will be watching closely.

 

RESOURCE: INSPECTOR GENERAL REPORTS NOW SEARCHABLE, ONLINE IN ONE PLACE

Did you know that federal inspectors general have their own council composed of inspectors general from federal agencies? That council has created a one-stop shop for all public inspector general reports at Oversight.gov, a website run by the Council of the Inspectors General on Integrity and Efficiency (CIGIE). CIGIE claims the IGs that contributed reports to the site receive about 500,000 complaints annually of waste, fraud and abuse. Reports contributed to the site identified over $26 billion in savings in 2017.

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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.