Farm Bill Would Prevent Release of GIS Data Under FOIA

In a recent posting on Mulch (Farm Bill Blocks Court-Ordered Release Of  Subsidy Program Data Under FOIA, May 13, 2008), a blog that focuses on agriculture, farm policy, and food safety, Ken Cook warns that a provision in the Farm Bill Conference Report (Sec. 1619, “Information Gathering” and (a) Geospatial Systems) will reverse a recent U.S. Court of Appeals (DC Circuit) decision ordering the release of USDA subsidy and compliance data under FOIA, including the Farm Service Agency’s (FSA) GIS data used to monitor compliance with regulations governing farm benefits. Notably, Ken Cook reports that the “[l]anguage 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.”

FSA Common Land Unit (CLU) Farm Field Boundary Data

As of this posting, FSA Common Land Unit (CLU) farm field boundary data with complete attributes is available for download from the NRCS Geospatial Gateway.  Previously, CLU data was available only with acreage attributes.  As noted above, however, the Farm Bill currently contains language to restrict the release of the CLU and other farm-related data, so this data may be pulled from the Gateway in the near future. CLU data is useful to land conservation departments for conservation and farmland preservation planning.

For more information about CLUs, their definition and use, see FSA Common Land Unit Abstract.

Multi Ag Media, LLC v. Department of Agriculture

The USDA withheld crop data provided by agricultural producers to qualify for government subsidies,  as well as FSA GIS data that included “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.” Ken Cook highlights the Court’s assertion that “the public has a particular and significant interest” in this information because the “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, No. 06-5231, D.C. Dist. Feb 15, 2008).”  The court concluded:

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.

Kevin Pomfret, on the other hand, commenting on this court case in his blog Spatial Law  (US Court Finds A “Substantial Privacy Interest” In Spatial Data, February 21, 2008), forecasts:

…Although after much deliberation the court ultimately decided to release the information I was surprised to see how far the court was willing to go to find a “substantial privacy interest” in this case. The court apparently agreed with USDA that even the potential that data could be aggregated in such a way that someone could then do crop analysis that then might be used to determine a farm’s worth that may or not be owned by an individual is a privacy risk. That seems to create a high hurdle to overcome in future cases, at least in this circuit. (It is noteworthy for those in the industry that the court adds, almost as an aside, that it believes that the disclosure of GIS databases “only heightens these privacy concerns” because the information is set forth in photographs and maps)

I find it a significant leap forward from Forest Guardians v. FEMA, which was decided in the 10th Cir. in 2005. In that case, Forest Guardians was looking for electronic copies of GIS maps with all forms of data, but excluding names and addresses. However, it was clear to the court that the names and addresses could easily be obtained from the data that would be provided, in which case each such individual would be subject to variety of potential invasions of privacy regarding their finances.

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