Friday, January 8, 2016

Agriculture Big Data Legal Issues and Protections: Part 5 - Legal Concerns Regarding the Freedom of Information Act

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.

FOIA, however, does offer specific protections that exempt the disclosure of information that is a trade secret, commercial, or financial.  While FOIA does not provide a definition of the term “trade secret,” federal courts have generally regarded information to be “commercial or financial” if that information relates to business or trade.”

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