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

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.

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.

FOIA Request The FOIA officer’s have 20 business days from the date of receipt of a “proper” request in which to respond.

Provides procedures for correcting errors in those records. The Privacy Act (1974) Governs the collection, maintenance, use, and dissemination of personal information about individuals that is maintained in systems of records by federal agencies. Grants individuals the right to access records maintained on themselves. Provides procedures for correcting errors in those records.

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. For Example - DCs, RC&D Coordinators 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.

Section 1619 of the Food, Conservation, and Energy Act of 2008 (Farm Bill)  Booooo!

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

Acknowledgment of Section 1619 Compliance for Conservation Cooperators Sharing of routine information as necessary for the implementation of conservation programs with partners will be permitted through signing of the Acknowledgement Sharing of routine information outside of accomplishing this purpose is not allowed.

Who needs to sign the Acknowledgement? SWCD Pheasants Forever Ducks Unlimited RC&D All partner employees that provide assistance on USDA programs

Acknowledgement of Section 1619 The signature of the “Acknowledgement” is made on behalf of an organization by an official within the organization who has the authority to legally bind the entire organization to comply with the provisions in Section 1619.

Examples of non-releasable information Social Security Numbers Tax ID Numbers Entity Information Banking Routing Information Conservation plans Wetland determinations HEL determinations Acreage amounts Assistance notes NRI point data Flood damage surveys Program contract information

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 (e.g. 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.

Payment information Names and addresses Examples of information that can be RELEASED as per Sec. 1619 (through a FOIA request) 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

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

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

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…

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

Release of Information… The best way for a vendor, TSP, and/or people hired by an approved USDA participant to receive information that contains data subject to FOIA or the Privacy Act – Is directly from the participant or landowner

Forms – Consent/Release MN-ADS-015 - (Landowner File Access Waiver) use with TSPs MN-ADS-016 - INFORMATION RELEASE REQUEST form (e.g. landowner release to several contractors for bidding process) MN-ADS-017 - INFORMATION RELEASE AUTHORIZATION form (used by Conservation Partners, e.g. SWCD)

Technical Service Providers 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) - We DO NOT release info that reflects on the producer’s personal, commercial or financial matter, etc, to TSPs.

Release of Information… Another method for vendors to receive USDA project data is through a landowner INFORMATION RELEASE REQUEST form (MN-ADS-016). Form is completed by landowner/requestor authorizing information relating to him/herself to be released to another person. The form contains:

The name of the requestor A list of the information to be released Person or persons info will be released to How long access (no longer than 1 year) Signature of requestor with acknowledgement that receiver may use and share information without legal restrictions Requestor’s signature must be witnessed by USDA employee who either knows the identity or has reviewed documentation that shows the requestor is the person submitting form (e.g. driver’s license) Alternative is Public Notary signing the form.

INFORMATION RELEASE REQUEST form (MN-ADS-016) This form is not to be used by conservation partners who routinely need access to USDA participant information to assist with conservation programs. Conservation Partners are covered under the Acknowledgement

INFORMATION RELEASE AUTHORIZATION form (MN-ADS-017) Partner employees who are covered under the Acknowledgement, may use the INFORMATION RELEASE AUTHORIZATION form (MN-ADS-017) to obtain landowner permission for the release of private information for use with a joint USDA conservation project (e.g. meeting minutes or other purposes). When a landowner authorizes the release of information to an individual SWCD employee, that individual may share it with others, as needed. There is no need to list multiple SWCD employees and/or supervisors on this form.

INFORMATION RELEASE Any landowner signing either form must be made aware of these facts: Signing any release form is not a requirement of participation in any USDA conservation program and; The person they are authorizing release of the information to, may freely share it with others without additional permission.

Sharepoint (FOIA – left column) Where to find the forms Sharepoint (FOIA – left column) National FOIA page – access from MN NRCS Home Page (link @ very bottom)

Information is to be Released… ONLY BY THE State Conservationist THROUGH A FOIA REQUEST!!! NRCS employees, conservation district employees, TSPs, contractors and consultants, ARE NOT to release any non-public information to anyone.

Send ALL FOIA requests for information to the NRCS State Office.

FOIA Contacts NRCS Tessa Garcia – (651) 602-7872 Pat McLoughlin – (651) 602-7907 FSA Lisa MacDonald – (651) 602-7707 .

Examples Contractors request – “can I have a list of 2010-2011 EQIP applicants for Winona, Fillmore, and Houston Counties?”. We would release the names and addresses of accepted EQIP contracts. This is a common request from contractors.

Examples SWCD map

Examples – SWCD Board Meeting Minutes BAD GOOD

Recent Developments NB-120-10-16 – FOIA Requests for Information on NRCS Conservation Easement Boundaries boundary information on conservation easements held by the US is considered public information

Recent Developments cont’d MINNESOTA BULLETIN NO. 120-11-3 Under provisions of the Privacy Act NRCS may release information from its files regarding wetland determinations and compliance issues to other federal, state, local, tribal or other governmental agencies having jurisdiction for investigating or prosecuting violations or potential violations of law, or enforcing or implementing statues, rules, regulations or orders regarding environmental compliance and related matters. This bulletin was retracted February 7, 2011

MINNESOTA BULLETIN NO. 120-11-3 Under the Federal Privacy Act and the system of records entitled "Landowner, Operator, Producer, or Participant Files" as published in the agency's system notice at 70 Fed. Reg. 51332 (Aug. 30, 2005) NRCS is authorized to release to such agencies those records in that system that indicate a violation or potential violation of law. NRCS will use” Routine Use Exception (6)” at 70 Fed. Reg. 51334 to process verified Privacy Act requests. This bulletin was retracted February 7, 2011

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). Information on wetlands, highly erodible land (HEL) and HEL conservation plans may also be released to the current operator. Prospective renters or buyers must make a FOIA request for any information they want from a cooperator file.

Farm Bill Technicians Non-USDA employees. No unique status or ability to have access to individual producer information. However, CREP agreements between FSA and BWSR allows FBTs access to information to implement the conservation practices and make payments.

eLINK Can not create or keep lists (i.e., database) of ANY USDA information. Can enter joint projects into a database (e.g., District has a financial interest in a project such as CREP or EQIP.)

CREP - RIM No access to information prior to the producer enrolling into the program. Once the landowner is enrolled, Districts can have access to the information (if they are a partner and the land will be enrolled into CREP.)

Cooperating Partners How can USDA continue to work with conservation partners if most of our USDA information is considered “protected” or “private”?

Acknowledgement - PROVISIONS The State’s “sunshine law,” “open records act” or other version of the Freedom of Information Act is superseded by section 1619 under the Supremacy Clause of the U.S. Constitution. Accordingly, information protected from disclosure by section 1619 must not be released under such State laws.

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.

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.

SWCD Landowner Case Files Joint 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

SWCD Landowner Case Files Joint or Separate Without direct NRCS involvement on a project specific basis USDA generated information can not be kept in any SWCD case file.

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.

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.

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.

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 doesn’t 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

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.

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.

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.

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.

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.

USDA is an equal opportunity provider and employer. 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 USDA’s 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 (202) 720-5964 (voice or TDD). USDA is an equal opportunity provider and employer. .

Keep on Rockin’ with the FOIA!!!