D.C. Circuit Rejects FOIA Bid From Agricultural Data Vendor

On August 12, the D.C. Circuit affirmed the district court’s decision to deny Freedom of Information Act (FOIA) requests made by Plaintiff – Appellant Telematch, Inc. (Plaintiff) to Defendant – Appellee United States Department of Agriculture (USDA). The USDA’s decision to deny the FOIA requests resulted in Plaintiff’s seeking judicial review. Both Plaintiff and the USDA moved for summary judgment in the district court, which granted the USDA’s motion. The appeal followed.

Plaintiff “is a commercial vendor of agricultural data. In 2018 and 2019, it submitted to USDA seven FOIA requests for records containing farm numbers, tract numbers and customer numbers.” The USDA assigns these identifying numbers to farms and farmers that are enrolled in “various [USDA] programs offering financial assistance for farming.” The USDA “digitally draws” the boundaries of the enrolled farm “on a map or aerial photo” and “assigns a farm number or tract number to the figure so drawn.” The USDA also gives each participating “farmer owner” a customer number.

The USDA denied Plaintiff’s FOIA requests for the identifying numbers under two FOIA exemptions: Exemption 3, which “allows an agency to withhold information ‘specifically exempted from disclosure’ by a statute that ‘either requires that the matters be withheld from the public’ or ‘refers to particular types of matter to be withheld…’ “; and Exemption 6, “which allows an agency to withhold ‘personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy…’ “

In addition to the FOIA exemptions themselves, the DC Circuit’s 2008 precedent, Multi Ag Media LLC v. USDA is also pertinent. In that decision, the Court held that Exemption 6 did not bar disclosure of “farm and tract numbers.” However, the DC Circuit notes that Congress responded to that decision by legislation ( the Food, Conservation and Energy Act of 2008, or 2008 Act) specifically providing that “USDA shall not disclose “(A) information provided by an agricultural producer or owner of agricultural land concerning the agricultural operation, farming or conservation practices, or the land itself, in order to participate in programs of the Department; or (B) geospatial information otherwise maintained by the Secretary [of Agriculture] about agricultural land or operations for which information described in subparagraph (A) is provided.”

As part of its analysis of FOIA Exemption 3, the District Court determined that the 2008 Act’s reference to “geospatial information” shielded the farm and tract numbers from FOIA disclosure because the 2008 Act specifically exempts the information from disclosure. After a lengthy discussion of the meaning of the term “geospatial information,” the DC Circuit agreed.

The District Court also determined that the customer numbers are shielded from FOIA disclosure under FOIA Exemption 6, pertaining to records “similar to” medical and personnel files, because “customer numbers apply to individual farmers.” The DC Circuit construed the “clearly unwarranted” clause of FOIA Exemption 6 as requiring “a substantial, as opposed to a de minimis, privacy interest,” and concluded that such an interest is at stake here because the farmers could be identified. The Court also weighed the privacy interests off the farmers, particularly as reflected by Congress’s concern for privacy in the 2008 Act, and the incremental value to the public at large of the disclosure of customer numbers, particularly because the USDA can release aggregate information. The DC Circuit agreed with the District Court that Exemption 6 applies and that customer numbers need not be disclosed.

Plaintiff’s counsel is Vedder Price.