A provision secretly tucked into the Farm Bill Conference Report (Sec. 1619, "Information Gathering") nullifies a recent, major federal appeals court decision under the Freedom of Information Act that ordered USDA to make public large amounts of data crucial to monitoring the economic and environmental impacts of multi-billion-dollar farm subsidy and conservation programs.

Language to undo the effects of the FOIA decision was not part of the bills passed by either the House or the Senate. It was inserted without public hearings or debate during the Conference Committee process.

In February, the U.S. Court of Appeals, DC Circuit, overturning a district court ruling under the Federal Freedom of Information Act, ordered the release of USDA data files in which "the public has a particular and significant interest" because "USDA uses this information in the administration of its subsidy and benefit programs and there is a special need for public scrutiny of agency action that distributes extensive amounts of public funds in the form of subsidies and other financial benefits." (Multi Ag Media, LLC v. Department of Agriculture)

Regarding one set of information, the court found that USDA's so-called Compliance File "contains crop data that agricultural producers report to FSA [Farm Service Agency] to establish eligibility for the government's subsidy and benefit programs. . .USDA withheld information on irrigation practices, farm acreage, and the number and width of rows of tobacco and cotton."

The other set of data ordered for release was a geographic information system (GIS) database that helps USDA's subsidy and compliance arm, the Farm Service Agency, "verify farm features and thereby monitor compliance with regulations governing farm benefits. . .USDA released much of the GIS database. . .but withheld information on farm, tract and boundary identification, calculated acreage, and characteristics of the land such as whether it is erodible, barren, or has water or perennial snow cover."

As the court stated:

"In sum, given USDA's rather tepid showing that release of the files would allow the public to draw inferences about some farmers' financial circumstances, the interest in data that would allow the public to more easily monitor USDA's administration of its subsidy and benefit programs, and FOIA's presumption in favor of disclosure, we conclude that the public interest in disclosure of the Compliance File and GIS database outweighs the personal privacy interest. Accordingly, release of these files would not 'constitute a clearly unwarranted invasion of personal privacy'. . .

. . .We reverse the district court's grant of summary judgment with respect to the Compliance File and the GIS database and remand the case to the district court for further proceedings consistent with this opinion."

The government did not appeal the ruling and the files were released, we presume, to Multi Ag Media, a subscription-based commercial publishing and marketing company that caters to firms doing business primarily with livestock farmers.

The key provision of Section 1619(b)(2) reads as follows:

2) PROHIBITION.—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;
or [the Compliance File]

(B) geospatial information otherwise maintained by the
Secretary about agricultural land or operations for which
information described in subparagraph (A) is provided.[the GIS database file]

Complete Sec. 1619 in the jump.

Download the Appeals Court Decision.