Exempting checkoffs from FOIA may be an uphill climb
WASHINGTON, May 11, 2016 - An effort by commodity
organizations to keep advocacy groups from using Freedom of Information Act (FOIA)
requests to attack checkoff programs – which raise money for research and
promotion initiatives — may lack the legislative teeth to have a significant impact.
A provision seeking to limit FOIA requests is currently in
the report language for the agriculture spending bill approved by the House
Appropriations Committee. The language notes that Research and Promotion boards,
which administer the checkoffs, “are not agencies of the federal government”
and the employees thereof “are not federal employees.” The language, meant to
guide rule-writers and regulators, concludes with a recommendation that USDA
“recognize that such boards are not subject to the provisions of” FOIA.
Wayne Watkinson, a partner with the McLeod Watkinson &
Miller law firm in Washington, said the language – which he emphasized is
report language and not legislation – is meant to protect against “fishing
expeditions” that activist groups will use to force checkoff staff to spend
time and money working to comply with FOIA requests.
“What you have here is a system in which outside groups are
able to divert resources away from the checkoff program’s purpose,” Watkinson
said in an interview with Agri-Pulse.
Legally speaking, Watkinson said this language wouldn’t
alter a 2005 Supreme Court ruling
labeling checkoff language as government speech. Emails and other
correspondence between checkoff employees and USDA officials – approval of a
blog posting, for example – would still be subject to FOIA, but communication
between checkoff employees would not.
USDA maintains that there are “numerous precedents” which
establish that “research and promotion boards are engaged in certain activities
overseen by the federal government” and can be subject to FOIA.
Matt Penzer, an attorney with the Humane Society of the
United States, said in an interview that checkoff groups should be subject to
FOIA, as they are “creatures of regulation that exist to help the (Agriculture)
Secretary implement a federal program of commodity promotion.” He said that
FOIA isn’t just a way to uncover problems, but a way to ensure transparency and
accountability in government programs, which he considers checkoffs to be.
Watkinson said although it’s difficult to put figures on the
numbers of FOIA requests the government receives and the costs of compliance
with those requests, there has been an uptick in requests for information about
checkoff groups in the past three years. Some of the requests can be very broad
and thus require more resources for adequate compliance (Watkinson said he knew
of one current request involving the National Dairy Promotion and Research
Board that he estimated could cost “upwards of $700,000”).
A spokesman for the USDA’s Agricultural Marketing Service,
which governs 22 research and promotion organizations, said that of the 141
FOIA requests AMS received in fiscal 2015, 37 were related to checkoff
programs. A document posted on the
AMS website notes that at least 14 requests dealing with checkoff programs were
filed in the first five months of FY 2016, mostly related to the American Egg
Board, the Cattlemen’s Beef Board, and the National Pork Board.
One November request asks for “any and all” correspondence
sent to or from the CEO of the National Pork Board (whom the request refers to
as Bruce Hodges, although the CEO at the time was Chris Hodges) involving a
number of keywords ranging from antibiotics and Porcine Epidemic Diarrhea Virus
(PEDv) to “anti-meat activists” and “We Care” principles. A similar request was
filed under the same name (Gary Ruskin, listed online
as the co-founder of U.S. Right to Know) for Cattlemen’s Beef Board CEO Polly
Ruhland.
Mark Kennedy, vice president for legal affairs with the
Physicians Committee for Responsible Medicine, filed a request in October
asking for all records “including communications,
proposals, grants, agreements, contracts, reports, manuscripts, analyses,
funding requests, funding records, and all drafts thereof” tied to eight American
Egg Board research studies.
Many requests were submitted
looking for information on trade groups, which are not under the jurisdiction
of AMS. The National Cattlemen’s Beef Association was the target of several of
these requests, such as an October filing by someone named Evan Anderson
looking for emails between NCBA and Health and Human Services Secretary Sylvia
Burwell. About a month later, a request was filed under the same name asking
for “all email metadata contained in the email server for (NCBA) maintained by
the USDA.” An NCBA spokesman said USDA maintains no such server.
So far, the report language is only addressed in the House,
where the Appropriations Committee was requested to take action by a group of
commodity organizations – not checkoff groups. However, NCBA Vice President of
Government Affairs Colin Woodall tells Agri-Pulse
that a similar request is planned for the Senate. While report language lacks
the enforceable characteristics of legislation, Woodall says NCBA has used
report language to accomplish its interests before and felt it was the best
opportunity in this case.
“We were looking at every opportunity possible to try to get
our point across,” Woodall said. “This is the one that presented itself.”
Given USDA’s long-standing position that the checkoff
programs are covered by FOIA, Agriculture Secretary Tom Vilsack is unlikely to
be swayed by the report language.
However, while the current administration may not be
receptive to change, Woodall says the groups pushing for the language can’t
wait for the next one.
“The administration that we have right now is the one we’re
working with,” Woodall said. “We’re not going to wait for any additional
administration – whether it’s Democratic or Republican – to try to address
this. We need to start addressing it now.”
#30
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