1. Animal Identification: Confidentiality of Information Prepared by: Doug O’Brien, Senior Staff Attorney Michael Roberts, Director National Agricultural Law Center University of Arkanas School of Law Email: dobrien@uark.edu Western Center for Risk Management Education Western Extension Marketing Committee

2. Overview People concerned that information would be accessible to: –other members of the industry; –other federal or state agencies; –groups that want to harm animal agriculture industry. Some prefer private, voluntary system believing that this would address concerns. Others question whether this would be feasible.

3. NAIS and FOIA FOIA applies to records maintained by agencies within the executive branch of the federal government, including USDA. The purpose of FOIA is to provide public access to government records. FOIA includes exemptions. –NAIS information may fall under “business information and trade secrets” exemption. Other federal laws may exempt information: –Homeland Security Act exempts information voluntarily given to Department of Homeland Security. –Livestock Mandatory Price Reporting Act exempts price information. –Biosecurity Act exempts information provided to FDA. Legislation in Congress that would exempt animal ID information from FOIA: H.R. 3787, H.R. 3961, H.R. 4005, and S. 2070.

4. Access to information held by a private entity Controlled by contracts between entity providing information and the holder of the information. Without express limits in contract, holder of information could share the information with whomever it wants.

5. Animal ID, Confidentiality, and Civil Lawsuits Even if information is confidential, it may be subject to a court subpoena and may be used in a lawsuit. Court may “seal” the information from the public.

6. Conclusion Real concerns exist about who will have access to the information in NAIS. A private system does not involve FOIA requirements, but some question feasibility confidentiality in private system. A number of ways exist to exempt information from FOIA.

7. Contact Information Doug O’Brien University of Arkansas School of Law National Agricultural Law Center 479.575.7642 dobrien@uark.edu