The Freedom of Information Act

1

• The Freedom of Information Act
• The Privacy Act
• Section 1619 of the Farm Bill

2
Freedom of Information Act

• - federal statute which allows any person the
  right to obtain federal agency records unless the
  records (or part of the records) are protected
  from disclosure by any of the nine exemptions
  contained in the law.

3
What is a FOIA request?

• - A written request for information that is not
  already public.
• At a minimum, the request should state the
  name and address of who is requesting the
  information and what information is being
  requested.
• - Requests can be submitted via mail, fax, or
  e-mail.
• DOES NOT have to cite the FOIA rule.
• The requestor DOES NOT have to explain or justify
  the purpose of the request.

4
What to do with a FOIA Request

• ALL FOIA/PA requests are to be sent to the state
  office IMMEDIATELY upon receipt. Field and Area
  staff never make determinations on FOIA
  exemptions.
• DO NOT attempt to release ANY information that is
  being requested until instructed otherwise by the
  state or area office.
• The FOIA officers have 20 business days from the
  date of receipt
• of a proper request in which to respond.
• - The clock is ticking.

5
The Privacy Act (1974)

• Controls what personal information is collected
  by the federal government and how its used.
• Grants individuals the right to access records
  maintained on themselves.
• Provides procedures for correcting errors in
  those records.

6
The Privacy Act (1974)

• NRCS maintains a system of records covered under
  the Privacy Act for its owner, operator, or
  producer files, its volunteers, and its
  employees.
• DCs, RCD Coordinators, and Lead Soil Scientists
  are the system managers for owner, operator, or
  producer information housed in their offices.
  They are responsible for maintaining the system
  of records and protecting the information
  contained there in.

7
??? Whats Changed ???

• Section 1619 of the Food, Conservation, and
  Energy Act of 2008

8
Section 1619 of the Food, Conservation, and
Energy Act of 2008

• Any employee of the USDA, or any contractor or
  cooperator or partner of the Department shall not
  disclose
• Any information provided by an agricultural
  producer or owner of agricultural land concerning
  the agricultural operation, farming or
  conservation practices, or the land itself

9
Section 1619 of the Food, Conservation, and
Energy Act of 2008

• JUST SAY
• NO!!!

10
Examples of information that shall be WITHHELD
as per Sec. 1619

• Conservation plans
• Wetland determinations
• HEL determinations
• Acreage amounts
• Assistance notes
• NRI point data
• Flood damage surveys
• Program contract information

11
Information that shall be WITHHELD

• Social Security Numbers
• Tax ID Numbers
• Entity Information
• AGI Information
• Banking Routing Information

12
Examples of WITHHELD information as per Sec.
1619

• Withheld means that the agency shall not provide
  the protected information even when a written
  FOIA request is received.

13
Examples of WITHHELD information as per Sec.
1619

• Even though its not releasable -
• Do not tell requestor its not releasable
• the requestor still has appeal rights that he/she
  needs to be aware of so send in the request
  regardless.

14
Examples of information that can be RELEASED as
per Sec. 1619

• Payment information
• Names and addresses
• Information that has been transformed into
  aggregate or statistical form that protects the
  name of the agricultural producer or owner or
  protects the site of gathering data

15
Information is to be Released

• ONLY BY THE
• State Conservationist
• THROUGH
• A FOIA REQUEST!!!

16

• NRCS employees, conservation district employees,
  TSPs, contractors and consultants, ARE NOT to
  release any non-public information to anyone.
• Send ALL requests for information to the NRCS
  State Office.

17
One exception -

• A landowner can get any information from his/her
  file at anytime without a FOIA request.

18
Criminal Penalties for Noncompliance with the PA

• For Knowingly and willfully disclosing PA data to
  any person not entitled to access
• - Misdemeanor and fine up to 5,000
• For Knowingly maintaining a System of Records
  without meeting the public notice requirements
• - Misdemeanor and fine up to 5,000
• For knowingly and willfully requesting or
  obtaining records under false pretenses
• - Misdemeanor and fine up to 5,000

19
Section 1619 of the Food, Conservation, and
Energy Act of 2008

• Geospatial information is also prohibited from
  disclosure when it has been maintained by USDA
  and concerns the land which an agricultural
  producer or owner has provided information to
  participate in a USDA program

20
Section 1619 of the Food, Conservation, and
Energy Act of 2008

• Geospatial information includes all information
  on the FSA Common Land Unit (CLU) including but
  not limited to
• Field and Tract Borders
• Tract and Farm Numbers
• Field Acreages

21
Section 1619 of the Food, Conservation, and
Energy Act of 2008

• Geospatial information does not include aerial
  photographs themselves, but does include
  photographs when they contain, or associated
  with, additional data depicting or identifying
  attributes or characteristics of the land, such
  as common land unit boundaries (CLU), easement
  boundaries, wetland locations, tract numbers,
  field boundaries, acres on adjacent parcels, etc

22
Section 1619 of the Food, Conservation, and
Energy Act of 2008

• Section 1619 does not inhibit disclosure of these
  types of information between and among USDA
  agencies (FSA and RD) however, this information
  may only be shared with other Federal agencies
  outside of USDA for specific purposes under a
  cooperative program.
• i.e. NOT for general regulatory or enforcement
  purposes.

23
Section 1619 of the Food, Conservation, and
Energy Act of 2008

• Prior to sharing information protected under
  Section 1619 with non-USDA Federal agencies send
  a request to your AREA FOIA contact detailing the
  specific information requested, the cooperative
  program involved and how the partner agency
  intends to use the information.

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Attachment C

• Sharing of routine information as necessary for
  the implementation of conservation programs with
  partners will be permitted through an MOU. Until
  this MOU is developed, ALL individual partner
  employees will certify their compliance with
  Section 1619 using the Certification of NRCS
  Conservation Cooperator form.
• Sharing of routine information outside of
  accomplishing this purpose is not allowed.

25
Attachment C

• Until the MOU is developed DCs\RCD\Soils Staff
  are responsible for acquiring signatures of
  partners in their respective Field Offices and
  then sending these signed forms to the AO FOIA
  contact by APRIL 1, 2009.
• AREA Office FOIA contacts will be authorized to
  sign all certification forms. Forms will be
  stored in the Area Office.

26
Attachment C

• As new partner staff are hired the NRCS lead
  employee will be responsible for acquiring
  additional signatures of partners in their
  respective Field Offices and then sending these
  signed forms to the AO FOIA contact.

27
Who needs to sign the Certification of NRCS
Conservation Cooperator Form??

• SWCD
• Pheasants Forever
• Ducks Unlimited
• RCD
• All partner employees that provide assistance on
  USDA programs

28
Section 1619 of the Food, Conservation, and
Energy Act of 2008

• Each DC is also responsible to explain the
  revised FOIA provisions of Section 1619 of the
  Food, Conservation, and Energy Act of 2008 at a
  SWCD Board meeting prior to July 1, 2009.
• Notify your AREA Office FOIA contact and provide
  a copy of the Board meeting minutes when this
  action is accomplished.

29
ATTACHMENT C - PROVISIONS

• Information collected by cooperators/partners
  from ag producers or landowners in carrying out
  USDA programs is not releasable.
• Nor is information shared by USDA with
  cooperators/partners under the same program.

30
Attachment C - PROVISIONS

• I understand that, as a recognized USDA
  cooperator, I am personally responsible for
  upholding the law and safeguarding information
  following USDA guidelines and policy.

31
Attachment C - PROVISIONS

• Since I may be collecting data from landowners
  for dual purposes (USDA and State\County) I will
  make clear the purpose of the information
  collection.
• This notification will help ensure that
  landowners are made aware that information they
  provide may be released under State open
  disclosure laws.

32
Attachment C - PROVISIONS

• When work duties no longer require me to have
  access to data subject to Section 1619I will
  relinquish any such data in my possession.

33
Landowner Case Files

• In many offices NRCS and the local SWCD
  historically have maintained joint client files.
  Ownership and access of these files could become
  an issue unless all USDA related producer
  information is protected following the USDA FOIA
  and PA guidelines and policy.

34
Joint NRCS\SWCD Landowner Case Files

• SWCD employees working with partnership programs
  (RIM\WRP) can keep producer collected and USDA
  generated information in their joint NRCS\SWCD
  case files, when they notify the landowner that
  the information is subject to State disclosure
  laws.

35
Separate SWCD Landowner Case Files

• SWCD employees working with partnership programs
  (RIM\WRP) can keep producer collected and USDA
  generated information in their separate SWCD case
  files when
• 1) NRCS provided direct assistance with the
  project and
• 2) they notify the landowner that the
  information is subject to State disclosure laws.

36
SWCD Landowner Case FilesJoint or Separate

• SWCD employees working on non-USDA programs
  (RIM\State Cost Share) without direct NRCS
  involvement on a project specific basis can keep
  producer collected information in their SWCD
  case files when they notify the landowner that
  the information is subject to State disclosure
  laws
• BUT

37
SWCD Landowner Case FilesJoint or Separate

• Without direct NRCS involvement on a project
  specific basis USDA generated information can not
  be kept in any SWCD case file.

38
Landowner Case Files

• Exception - USDA generated information
• may be kept in non-USDA case files only if the
  information is provided directly by the
  landowner.

39
Landowner Case Files

• These rules go into effect immediately.
• Existing SWCD files with USDA and producer
  generated information will not need to have the
  information purged. However, all protected
  information in existing files is subject to USDA
  policy and guidelines on FOIA and PA.

40
Attachment C

• These signed forms will be maintained at the Area
  level by the NRCS Area FOIA Contact.
• Area 1 Larry Voltz, Bemidji
• Area 2 Terri Hodgin, Fergus Falls
• Area 3 Jason Sickmann, Duluth
• Area 4 John Crellin, Brooklyn Cenetr
• Area 5 Mike Nienaber, Marshall
• Area 6 Mark Kulig, St. Peter
• Area 7 Dave Copeland, Rochester

41
Examples of information that can be RELEASED as
per Sec. 1619

• When the producer or owner of the agricultural
  operation provides consent.
• Consent must be given in writing and include
• 1) the name of the participant or everyone
  listed on the contract or has an interest in the
  land
• 2) a description of the information to be
  released, to whom the data is to be released to,
  and the length of time the data is to be
  available for release (i.e. until practice is
  completed).

42
Technical Service Providers

• -Two kinds of TSPs -
• 1. Those contracted by NRCS
• 2. Those contracted by the producer.

43
TSPs

• TSPs contracted by the producer, are subject to
  FOIA.
• - Should always be encouraged to get project
  information directly from landowner or
• - Fill out MN-ADS-015 (Landowner File Access
  Waiver), or make FOIA request.
• - Consent forms will follow USDA conservation
  program agreement signature requirement
  provisions
• - We DO NOT release info that reflects on the
  producers personal, commercial or financial
  matter, etc.

44
TSPs

• TSPs contracted by NRCS, are given only the info
  necessary to get the work done. All information
  must be returned to USDA.
• - We DO NOT give the TSP information that
  reflects on the producers personal, commercial
  or financial matter, etc.

45
MN-ADS-015
46
MAPS

• - Aerial slides and/or photographs devoid of all
  personal identifiers CAN BE RELEASED without a
  FOIA request.
• - AGAIN - FSA Common Land Unit is not releasable.

47
FOIA

• NRCS / FSA / District staff can release
  information from individual cooperator files to
  the landowner (cooperator) or current renter
  (when renter is listed on the contract).
• Prospective renters or buyers must make a FOIA
  request for any information they want from a
  cooperator file.

48
AD-1026

• Information on AD-1026 and CPA-026, for wetlands
  and highly erodible land (HEL) and HEL
  conservation plans may also be released to the
  current operator.
• Districts wanting access to the AD-1026 need to
  submit a FOIA request to FSA.
• As a general rule, Districts do not need access
  to the AD-1026 for reimbursed work.

49
HEL and Wetland info.

• All HEL and wetland information provided to a
  participant must be clipped to show only the
  tract of land they own and\or operate.

50
AD-1026

• Official determination map includes field
  boundaries and track numbers.
• - White out surrounding areas showing adjacent
  track numbers and field boundaries leaving only
  the pertinent segment visible.
• Only releasable to landowner\current FSA listed
  operator. All others need to submit a written
  request to the state office.

51
Questions from the Field
52
If a renter/operator comes in and wants to know
if there is a wetland on the land that he is
going to farm next year (he doesnt own it yet),
can we show him without written approval from the
landowner?NO he can either submit a FOIA
request or get it from the landowner
53
The LGU is investigating a landowner for a
potential WCA violation on a livestock pond that
was dug years ago with cost share (now recently
cleaned) can I tell the LGU that the landowner
was working with USDA?NO tell them to submit
a written request. NEVER provide information
verbally to any entity such as a LGU, county
environmental services or anyone else.
54
What information can or cant be discussed or
provided at a public SWCD meeting? What should
minutes be limited to? The only information
that can be given out at board meetings is names
and addresses of APPROVED program participants.
Note approved participants are only those that
will receive USDA program benefits.
55
What information can or cannot be discussed or
provided at a public SWCD meeting? What should
minutes be limited to? Do not provide the names
of applicants, information on the practices
requested or approved, or funding \ payment
information. We can only release the amounts of
payments that have been made (through a FOIA
request).
56
If Consultants designing wetland mitigations,
want crop history for WCA/COE issues,can
information be released?

• NO
• Consultants should get any information they need
  from the landowner
• For WCA information they can contact the LGU or
  whoever is responsible for WCA and get it from
  them

57
Area Engineering designs releasable?

• NO except to the landowner
• A landowner can give written permission to copy a
  third party via consent form.
• The landowner can give this information out to
  anyone.
• Everyone else needs to submit a written FOIA
  request to get engineering designs from NRCS.

58
Other agencies

• No USDA information can be released to any
  individual or entity including other federal or
  state agencies, when the information will be used
  for enforcement purposes.

59

• A USDA participant hired a vendor to complete
  their practices. At tax time the participant
  requests information on the vendors Tax ID and
  amt paid to vendor.
• The landowner\participant can get anything they
  want from their file at anytime.

60
FOIA Contacts

• NRCS
• Tessa Garcia [phone]
• Pat McLoughlin [phone]
• FSA
• Lisa MacDonald [phone]
• .

61
Summary

• Cooperating Partner Employees do not have
  free-access to and cant use USDA and producer
  generated information unless
• The Partner Employee signs Attachment C and
  abides by its provisions

62
Summary

• JUST SAY
• NO!!!
• All information in USDA case files and CLU data
  can only be given to the landowner, some to the
  operator.

63

• The United States Department of Agriculture
  (USDA) prohibits discrimination in all its
  programs and activities on the basis of race,
  color, national origin, gender, religion,
  disability, political beliefs, sexual
  orientation, and marital or family statue (Not
  all prohibited bases apply to all programs).
  Persons with disabilities who require alternative
  means of communication of program information
  9Braille, large print, audio audio tape, etc.)
  should contact USDAs TARGET Center at (202)
  720-2600 (voice and TDD).
• To file a complain of discrimination,
  write to USDA, Write to, Office of Civil Rights,
  Room 325W, Whitten Building, 14th and
  Independence Avenue, SW. Washington, D.C.,
  20250-9410, or call [phone] (voice or
  TDD).
• USDA is an equal opportunity
  provider and employer.
• .