Written
by M. Sean High – Staff Attorney
Some
in the agricultural community have expressed concern that depending on where
the agricultural Big Data is stored, this private information could be subject
to public exposure under the Freedom of Information Act (FOIA).
Under FOIA, citizens have the right to access information from the federal
government. It is important to note,
however, that FOIA only applies to government information and not private
information.
A
citizen’s FOIA right to information includes “‘agency records’ maintained by
‘agencies’ within the executive branch of the federal government, including
government corporations, government controlled corporations, and independent
regulatory agencies.” While FOIA does not provide a definition for “‘agency
records,’ in United States Dep’t of
Justice v. Tax Analysts, 492 U.S. 136, the Supreme Court set forth a
two-part test to determine what constitutes agency records pursuant to FOIA:
(1) records that are either created or maintained by an agency, and (2) under
agency control at the time the FOIA request is made.”
Recently,
in the case American Farm BureauFederation v. United States Environmental Protection Agency, Civil No.
13–1751 ADM/TNL (2015), District Judge Ann D. Montgomery ruled that EPA (responding
to a FOIA request submitted by environmental groups) could disclose agency
records regarding the names, addresses, and GPS locations of certain farms keeping
animals in close confinement. As a
result, farmers are now fearful that if at some point federal law requires that
a federal agency maintain records for aggregated agricultural Big Data
information, this currently private information will become susceptible to FOIA.
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