# Presentation: 918374

## Minnesota NRCS

- The Freedom of Information Act
- &
- The Privacy Act
- Pat McLoughlin

## Freedom of Information Act

- What is the FOIA?
-  - Law passed by Pres. Johnson in 1966 to establish public’s right to access records created or maintained by Federal Executive Branch agencies.
-  - Does not apply to:
- 		- Legislative or Judicial Branches
- 		- State or Local Governments
- 		- Private Organizations
- 		- Private Citizens
- - FOIA is a disclosure statute

## Freedom of Information Act

-  - Provides that _**any person**__ _has the right to_ _request access to federal agency records or information. All agencies of the US Government are required to disclose records (as fully as possible) upon receiving a _**written request**_ via *mail, fax, or e-mail* for them.

## Freedom of Information Act

-  - “Agency Records” are:
- 		- Created or obtained by an agency
- 		- Under control of the agency
- 		- includes all tangible records of 	information (not just paper)
- Records are protected from disclosure by any of 9 exemptions under FOIA– or 3 law enforcement exclusions.
- - Public has a right to a full explanation of any denial of access.

## Freedom of Information Act

-  - A FOIA request is considered “reasonable” when it describes the desired records so as to allow for ready identification and retrieval.
-  - The request may or may not state a willingness to pay reasonably incurred processing fees, or provide justification why fees should be waived.
- The requestor does not have to explain or justify the purpose of the request.

## Freedom of Information Act

-  **Time Limits for Response**
-  - _20 business days_ from the date of receipt of a “proper” request, by the agency or agency component that maintains the records (MN-SO).
-  - _Additional __10 days_ for “Unusual Circumstances”
- 		- info dispersed in field offices
- 		- voluminous amount of records for 	compilations and review
- 		- consulting with a third party (i.e. another 	agency).

## Freedom of Information Act

- Exemptions that we’ve used the most in MN:
- - **(5)** Inter-agency or Intra-agency communications that are protected by legal privileges (i.e. advice or suggestions made by Boards or consultants; speculative info.; planning, programming or budgetary info.; proposed policies before they are adopted; attorney/client relationship info.)

## Freedom of Information Act

- - **(6)** Information, which, if released would result in a clearly unwarranted invasion of the personal privacy of another individual (i.e. home addresses, phone numbers, and e-mail addresses; personal medical records, employment application data, security clearance records).
- - **(3)** Information prohibited from disclosure by another federal law (i.e. the 2002 Farm Bill)

## Freedom of Information Act

**- ****	****Note**: even if information may be withheld under FOIA, _the agency may disclose it as a matter of administrative discretion_ if it is not prohibited by law and would not cause any foreseeable harm, even though agency is not legally obligated to release.
-  - Denial of a FOIA request can be appealed to either USDA or the court system (choice of requestor)
- 	**(Appeal clause in our response letters – goes to Chief)**

## The Privacy Act (1974)

- Establishes certain controls over what personal information is collected by the federal government and how it used.
- Grants individuals the right to access records maintained on themselves unless covered by exemption.
- Provides procedures for correcting errors in those records.
- -	Requires agencies to publish notification of systems of records that are maintained on individuals.

## 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.
- -	DCs are the system managers for owner, operator, or producer information housed in their offices. They are responsible for maintaining the system of records.

## Freedom of Information Act

**2002 Farm Bill Impact on FOIA in the NRCS**
- -	Section 2004 of Farm Bill mandates that info provided by individuals to NRCS to participate in conservation programs IS NOT considered public information and IS NOT releasable to public by any employee.
- -	Information, including the location of NRI data collection points, may be disclosed only if converted into statistical or aggregate form that does not allow identification of individual supplier.

## Examples of NON-RELEASABLE Information Under Section 2002 of the Farm Bill

- Assistance Notes
- Problems found on producer’s unit
- Cultural Resources (kind/location)
- Resources inventories specific to producer’s unit
- Benchmark data (current conditions on producer’s unit)
- Worksheets specific to unit
- Land use maps specific to unit
- Practices and systems installed
- Acres in unit
- Livestock numbers in unit

- Info on how producer manages resources
- Environmental evaluation on unit
- Environmental Assessment on unit
- Record of producers decisions
- Program/Contract Agreement information
- Specific alternatives developed for producer
- Specific alternatives evaluated for producer

## More NON-RELEASABLE Information Under Section 2002 of the Farm Bill

- Economic data specific to the producer’s operation
- Crop Budgets, etc., developed for producer
- Social concerns of the producer
- Land relationships for the producer’s operation
- Permits obtained by the producer
- Conservation plan(s) for producer’s operation
- Conservation compliance determinations (HEL, etc)
- Engineering surveys, designs, etc., for producer’s operation
*This list is not all inclusive, just some examples*

## Freedom of Information Act – Farm Bill

**The exception:**
- In certain limited circumstances, non-public information obtained from individuals may be disclosed or released only to the extent necessary to _enforce natural resources conservation programs_ or _to assist in providing technical or financial assistance_ for any natural resources conservation program administered by NRCS or FSA.
**Translation:**
- We can share our cooperator casefiles with our conservation partners, contractors, TSPs, but only to provide technical or financial natural resource conservation assistance.

## Freedom of Information Act – Farm Bill

- NRCS employees, conservation district employees, TSPs, contractors and consultants, must not release any non-public information that:
- 	1) Reflects on the producer’s personal , commercial, or financial matters
- 	2) Causes substantial harm to the competitive position of the producer, or
- 	3) Impairs the ability of NRCS to obtain similar, necessary information in the future.

## Releasing Information to TSPs???

- -Two kinds of TSPs -
- 1. Those contracted by NRCS
- 2. Those contracted by the producer

## Releasing Information to TSPs???

- 	- _Those contracted by NRCS,_ via contract, cooperative or contribution agreement, are subject to the same FOIA restrictions as NRCS employees. (we can provide them certain non-public info per the Farm Bill FOIA exemption. Subject to same penalties for violation).
- 	- We should provide contracted TSPs a notice explaining their responsibilities for protecting non-public information that comes into their custody (in progress).

## Releasing Information to TSPs???

- 	- _Those contracted by the producer_, are subject to FOIA. NRCS cannot release privacy information to them without the participant’s approval or a FOIA request.
- 	- The producer must waive his/her right to privacy in order to authorize release of non-public information to their contracted TSP (**MN-ADS-015**).
- 	- The producer can always give his/her own personal information away to anyone he/she wants to but for NRCS to do so requires authorization from the individual producer (**MN-ADS-015**).

## Slide 20

## Recap - TSPs

-  - **If it’s a TSPer contracted with NRCS**, provide producer's non-public info via the exemption in the Farm Bill for entities working in cooperation with USDA to provide technical and financial services in natural resource conservation programs.
**Release only the info necessary to get the work done.**
- -	Do Not release info that reflects on the producer’s personal commercial or financial matters, causes harm to competitive position of producer; or impairs government’s ability to obtain necessary info in future.

## Recap - TSPs

-  -	**If it’s a TSPer contracted by producer**, you have to treat the TSP as any other private citizen. They can make a regular FOIA request through state FOIA/PA Officer to obtain non-public info about an NRCS cooperating producer.
- Or the producer can provide a written waiver to the agency that authorizes the TSPer to access his/her casefile records.
- -	The producer may also obtain his/her own casefile records (an individual has the right to access files on him or herself) from you and share them with anyone that the producer wishes.

## Recap - TSPs

- NRCS employees, particularly DCs, are the custodians of confidential information in the field office casefiles.
- Submit any FOIA request IMMEDIATELY to your state FOIA/PA Officer(s) for review and determination.
- Do Not release non-public information without authorization.
- -	Criminal penalties including heavy fines and imprisonment may result from violation.

## National Bulletin 180-6-1Confidentiality of Wetland Determinations and Delineations

- Applies to determinations and delineations that are conducted by NRCS employees or others designated by NRCS to act on its behalf.

## National Bulletin 180-6-1Confidentiality of Wetland Determinations and Delineations

- Information _**releasable **_to the public and to Federal, State, and local agencies or entities:
- Maps or aerial photographs showing wetland locations/boundaries (acreage of adjacent properties not releasable)
- Site visit reports and documentation of site conditions (prepared by NRCS)
- Wetland delineation data sheets prepared by NRCS; and
- Technical determinations (e.g. functional assessments, scope and effect determinations) made by NRCS

## Minnesota NRCS FOIA Bulletins

- No. 120-4-4 (October 22, 2003)
- 		Guidelines for NRCS, included form 	MN-ADS-015, bulletin to be reviewed with 	SWCDs (I can email a copy)
- No. 120-5-12 (February 18, 2005)
- Reminder of Responsibilities

## The Bottom Line...

-  - Any request for information that you receive (that isn’t already public) is a FOIA request.
-  - Request does not have to cite the FOIA or PA
-  - Can be addressed to anyone
-  - Letter, email, fax, etc.
**DON NOT RESPOND.**
**SEND IT TO THE STATE OFFICE IMMEDIATELY!!!! **

## Freedom of Information Act

**FOIA/PA **
**Contact Information for MN NRCS**
**Tessa Garcia – (651) 602-7872**
**Pat McLoughlin – (651) 602-7907**

## Backup Documents

- Text of FOIA and PA plus lots of reference material:
- US Dept. of Justice webpage _[http://www.usdoj.gov/04foia/index.html](http://www.usdoj.gov/04foia/index.html)_
- USDA’s FOIA webpage, includes FOIA guide
- _[http://www.usda.gov](http://www.usda.gov/)_

## Backup Documents

- Text of FOIA and PA plus lots of reference material:
- NRCS General Manual Policy, 120 GM Part 408, Subpart C, Freedom of Information Act and Privacy Act
- 	_[http://policy.nrcs.usda.gov](http://policy.nrcs.usda.gov/)_
- NRCS National Bulletin No. 120-2-12, June 6, 2002
- 	“New Requirements for Privacy”
- 	_[http://policy.nrcs.usda.gov](http://policy.nrcs.usda.gov/)_
- Technical Service Provider Policy – Subpart E Freedom of Information Act and Privacy Act.