[govinfo] quick sign-on letter -- secrecy prov'n in Farm Bill

  • From: "Patrice McDermott" <pmcdermott@xxxxxxxxxxxxxxxxxxxxx>
  • To: "opengovpartners@xxxxxxxxxxxxx" <opengovpartners@xxxxxxxxxxxxx>, "FOI-L@xxxxxxxxxxxxxxxx" <FOI-L@xxxxxxxxxxxxxxxx>, "govinfo@xxxxxxxxxxxxx" <govinfo@xxxxxxxxxxxxx>
  • Date: Mon, 5 Nov 2007 13:09:52 -0500

Below is a letter to be sent to the Senate in regard to a provision in the 2007 
Farm Bill that creates a huge FOIA exemption and criminalizes publication of 
information that may be included in the National Animal Identification System 
(NAIS), even if it is available elsewhere.

The bill may move any time this week, so time is of the essence. Please send 
your organizational sign-on to Emily Feldman by NOON (ET), on Tuesday, 6 
November. We will fax it to all Senate offices.

Please excuse duplicate postings.

Thanks.

Patrice McDermott, Director
OpenTheGovernment.org
www.openthegovernment.org
202.332.OPEN (6736)
November 6, 2007

Dear Senator:

We are writing to express opposition to the non-disclosure provisions (Sec. 
10305 of the Livestock Title) in the 2007 Farm Bill approved by the Senate 
Agriculture, Nutrition and Forestry Committee on October 25, 2007. This 
language would create an unnecessary bar to public disclosure and use or 
publication of information related to the National Animal Identification System 
(NAIS).  This secrecy provision is not in the House-passed bill and should be 
removed from the Senate bill.

Section 10305 creates a Freedom of Information Act exemption that includes 
"animal identification" information and information gathered in the USDA's NAIS 
without declaring explicitly that it is doing so. That violates the letter and 
spirit of a bill (S 849, the "OPEN Government Act of 2007") the Senate passed 
just this year on August 3 -- in which the Senate expressed its intent to 
transparently declare new exemptions to FOIA in legislation creating them. 
Under the exemption, only the Agriculture 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, foreign governments, or 
to other parties when ordered to do so by a court. It would preempt state and 
local disclosure laws. As a result, the public would remain in the dark.

The bill also forbids any "use" (beyond those listed above) by "any individual 
or entity" of NAIS information. Members of the public and the press could face 
criminal or civil penalties for publishing information from the NAIS. By 
criminalizing the publication, broadcast, or disclosure of information that may 
have been legally obtained, Section 10305 goes way beyond most existing law in 
imposing disproportionately harsh penalties for press activities protected by 
the First Amendment of the U.S. Constitution.

Since at least 2005, the USDA's Animal and Plant Health Inspection Service 
(APHIS) has been gathering contact information for livestock owners and storing 
it in a National Premises Information Repository. It appears that the new bar 
to disclosure in the Senate Farm Bill would remove this information from public 
access, even though the USDA itself has referred to these records as no more 
than the information in a "phone book." Moreover, the Agriculture Department 
has long assured the public in its fact sheets on NAIS that federal law already 
"protects individuals' private information and confidential business 
information from disclosure." The existing Privacy Act ( 5 U.S.C. § 552a) and 
Freedom of Information Act (FOIA, 5 U.S.C. § 552 ) provide an adequate legal 
framework for doing the job.

We urge you to support and vote for any and all efforts to strike Section 
10305, which prohibits disclosure of information under a National Animal 
Identification System, from the 2007 Farm Bill currently before the Senate for 
consideration, or to do so in conference. If you have any questions, please do 
not hesitate to call Patrice McDermott, Director, OpenTheGovernment.org, 202 
332 6736.

Thank you.

Sincerely,

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