United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2007 Decided February 15, 2008
No. 06-5231
MULTI AG MEDIA LLC,
APPELLANT
v.
DEPARTMENT OF AGRICULTURE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 05cv01908)
James D. Miller argued the cause for appellant. With him
on the briefs was Lance V. Oliver.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. On the briefs were Jeffrey A. Taylor, U.S. Attorney,
and R. Craig Lawrence and Megan L. Rose, Assistant U.S.
Attorneys.
Before: SENTELLE, Chief Judge, and TATEL and
GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
Dissenting opinion filed by Chief Judge SENTELLE.
GRIFFITH, Circuit Judge: Under the Freedom of
Information Act (“FOIA”), “an agency must disclose all
records requested by ‘any person,’ 5 U.S.C. § 552(a)(3),
unless the information sought falls within a specific statutory
exemption. 5 U.S.C. § 552(d).” Nat’l Ass’n of Retired Fed.
Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989).
Multi Ag Media LLC (“Multi Ag”), a commercial vendor of
agricultural data, has made FOIA requests for various records
of farm data maintained by the United States Department of
Agriculture (“USDA”). Invoking FOIA Exemption 6, which
protects individual privacy interests in government records,
USDA has withheld some of the requested information.
Because there is a significant public interest in disclosure that
outweighs the personal privacy interest USDA seeks to
protect, we reverse the district court’s grant of summary
judgment in favor of USDA.
I.
Within USDA, the Farm Service Agency (“FSA”) is the
principal agency charged with promoting a stable and
abundant American food supply. FSA meets this
responsibility, in part, by offering subsidies and other
financial assistance to farms. To qualify for FSA’s benefits,
farmers must submit information about their operations to a
local FSA office. The information includes data on each
farm’s agricultural practices, acreage, soil, crops, livestock,
and geographical location.
On July 13, 2005, Multi Ag submitted a FOIA request to
USDA seeking release of thirteen databases maintained by
FSA relevant to its agricultural subsidy and benefit programs.
FSA processed the request and released some information, but
3
withheld other information on the ground that it contained
private information about individual farmers protected by
FOIA Exemption 6. Pressing its claim for the withheld
information, Multi Ag exhausted its administrative appeals
within USDA without success, then filed suit in the district
court. The district court sided with Multi Ag in ordering the
disclosure of requested information in two of the files, but
also partly granted USDA’s motion for summary judgment
and allowed the agency to withhold information in two other
files, the Compliance File and the Geographic Information
System (“GIS”) database. Multi AG Media LLC v. USDA, No.
05-01908, 2006 WL 2320941, at *5–7 (D.D.C. 2006). Multi
Ag appeals that decision.1 The Compliance File is a massive
database with information on crops and field acreage for
hundreds of thousands of individual farms across the country.
It contains crop data that agricultural producers report to FSA
to establish their eligibility for the government’s subsidy and
benefit programs. In response to Multi Ag’s FOIA request,
USDA withheld information on irrigation practices, farm
acreage, and the number and width of rows of tobacco and
cotton. The district court concluded that this information was
protected by FOIA Exemption 6 because its disclosure
“would reveal financial information associated with an
individual . . . without shedding any light on the government’s
activities.” Id. at *5.
The GIS database provides farm data on a digitized aerial
photograph. USDA uses GIS as part of a system that
combines Global Positioning System technology and aerial
photographs to calculate acreage, identify crop types, and
1
USDA filed a cross-appeal challenging the district court’s order
that it release the withheld information from the Livestock
Assistance and Livestock Compensation program files, but has
since abandoned that appeal.
4
create maps of farmland. The GIS database helps FSA verify
farm features and thereby monitor compliance with
regulations governing farm benefits. It also provides more
specific information regarding the location of farms than do
FSA’s other files, which provide only general state and
county location information. Declaration of Robin Wieland,
¶ 61 (February 15, 2006) (“Wieland Declaration”) (stating
that the GIS database provides a “specific geographic
reference”). USDA released much of the GIS database to
Multi Ag, but withheld information on farm, tract, and
boundary identification, calculated acreage, and
characteristics of the land such as whether it is erodible,
barren, or has water or perennial snow cover. The district
court concluded that because this information reveals details
of land ownership, its disclosure would compromise a
substantial privacy interest, but that disclosure would serve no
public interest because the information would not “reveal
anything about what the government is up to.” Multi AG
Media LLC, 2006 WL 2320941, at *6–7.
USDA argues on appeal that disclosure of the
Compliance File and the GIS database would compromise
farmers’ privacy interests and that these files are properly
withheld under FOIA Exemption 6. Multi Ag contends that
disclosure of the files would not reveal anything personal
about individual farmers and would advance a significant
public interest by shedding light on USDA’s administration of
its subsidy and benefit programs.
II.
We review the district court’s grant of summary
judgment de novo. Judicial Watch, Inc. v. FDA, 449 F.3d 141,
145 (D.C. Cir. 2006). “In the FOIA context this requires that
we ascertain whether the agency has sustained its burden of
5
demonstrating the documents requested are . . . exempt from
disclosure under the FOIA.” Gallant v. NLRB, 26 F.3d 168,
171 (D.C. Cir. 1994); see also 5 U.S.C. § 552(a)(4)(B)
(stating that “the burden is on the agency to sustain its
action”). An agency may sustain its burden by means of
affidavits, but only “if they contain reasonable specificity of
detail rather than merely conclusory statements, and if they
are not called into question by contradictory evidence in the
record or by evidence of agency bad faith.” Gallant, 26 F.3d
at 171 (quoting Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir.
1980)).
FOIA’s basic purpose reflects “ ‘a general philosophy of
full agency disclosure unless information is exempted under
clearly delineated statutory language.’ ” Dep’t of Air Force v.
Rose, 425 U.S. 352, 360–61 (1976) (quoting S. Rep. 89-813,
at 3 (1965)). “At all times, courts must bear in mind that
FOIA mandates a ‘strong presumption in favor of
disclosure.’ ” Nat’l Ass’n of Homebuilders v. Norton, 309
F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v.
Ray, 502 U.S. 164, 173 (1991)). FOIA’s exemptions “do not
obscure the basic policy that disclosure, not secrecy, is the
dominant objective of the Act.” Rose, 425 U.S. at 361. For
that reason, they “must be narrowly construed.” Id. And there
is nothing about invoking Exemption 6 that lightens the
agency’s burden. In fact, “under Exemption 6, the
presumption in favor of disclosure is as strong as can be
found anywhere in the Act.” Norton, 309 F.3d at 32 (citing
Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 690
F.2d 252, 261 (D.C. Cir. 1982)).
III.
FOIA Exemption 6 allows an agency to withhold
“personnel and medical files and similar files the disclosure of
6
which would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6). We must pursue two
lines of inquiry to determine whether USDA has sustained its
burden to show that the information Multi Ag seeks is
properly withheld under this exemption. First, we must
determine whether the Compliance File and the GIS database
are personnel, medical, or “similar” files covered by
Exemption 6. If so, we must then determine whether their
disclosure “would constitute a clearly unwarranted invasion
of personal privacy.” Id. This second inquiry requires us to
balance the privacy interest that would be compromised by
disclosure against any public interest in the requested
information. U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 497
(1994); Nat’l Ass’n of Retired Fed. Employees v. Horner, 879
F.2d 873, 874 (D.C. Cir. 1989).
“Similar Files”
The district court concluded that the Compliance File and
the GIS database are “similar files” within Exemption 6, and
even though the parties on appeal do not contest this point, we
think it merits some explanation why business records such as
these are covered by Exemption 6. In National Parks and
Conservation Ass’n v. Kleppe, we reversed the district court’s
ruling that FOIA Exemption 4, which protects “trade secrets
and commercial or financial information obtained from a
person [that is] privileged or confidential,” 5 U.S.C.
§ 552(b)(4), could be used to lawfully withhold business
records on grounds of individual privacy. 547 F.2d 673, 686
(D.C. Cir. 1976). We explained that personal privacy interests
are not “a relevant concern under the fourth exemption,” but
are under Exemption 6. Id. at 685–86. Although Exemption 6
“has not been extended to protect the privacy interests of
businesses or corporations,” id. at 685 n.44, we pointed out
that “personal or ‘personalized’ financial information”
7
contained in the records of “individually-owned businesses”
that “necessarily reveal[s] at least a portion of the owner’s
personal finances,” may well qualify for protection under
Exemption 6. Id. at 685.
What we said in Kleppe about Exemption 6 was correct
and we apply it here. In United States Department of State v.
Washington Post Co., the Supreme Court explained that
“Congress’ primary purpose in enacting Exemption 6 was to
protect individuals from the injury and embarrassment that
can result from the unnecessary disclosure of personal
information.” 456 U.S. 595, 599 (1982) (emphases added).
The Court held that Exemption 6 was not limited “to a narrow
class of files containing only a discrete kind of personal
information,” but was “intended to cover detailed
Government records on an individual which can be identified
as applying to that individual.” Id. at 602. As we explained in
Horner, “[t]he Supreme Court has made clear that Exemption
6 is designed to protect personal information in public
records.” 879 F.2d at 875. Were we to deem an individual’s
financial information unprotected by Exemption 6 simply
because it is found in a business record, a cardinal purpose of
Exemption 6 would not be served. It is clear that businesses
themselves do not have protected privacy interests under
Exemption 6, but where their records reveal financial
information easily traceable to an individual, disclosing those
records jeopardizes a personal privacy interest that Exemption
6 protects. We thus hold that Exemption 6 applies to financial
information in business records when the business is
individually owned or closely held, and “the records would
necessarily reveal at least a portion of the owner’s personal
finances.” Kleppe, 547 F.2d at 685.
In our case, to determine whether the Compliance File
and the GIS database are “similar files” covered by
8
Exemption 6, we must consider whether the farms are
individually owned or closely held, and whether disclosure of
the files would reveal information about individual farmers’
personal finances. In its affidavits, USDA asserts that
approximately ninety-eight percent of the farms represented
in the files are “family owned,” meaning they are closely-held
businesses or “small family farms” in which “the financial
makeup of the businesses mirrors the financial situation of the
individual family members.” Wieland Declaration, ¶¶ 16, 28.
USDA explains that the requested files contain various data
fields such as state code, county code, farm number, and tract
number, which are used together to trace the files to “a
specific agricultural producer or landowner, who are [sic]
almost exclusively individual producers and closely held
businesses.” Id. ¶¶ 50, 60. In the affidavit of its president,
Multi Ag responds that the data in the Compliance File and
the GIS database are not about individuals, but are “all
generic or demographic.” Affidavit of John L. Montandon,
¶ 18 (Mar. 3, 2006) (Montandon Affidavit). Multi Ag further
argues that many farms have multiple owners and operators
and that this “wide variety of ownership and operating
vehicles . . . completely negates any inference about the
personal finances of any individual.” Id. ¶ 19, 21.
Although USDA does not offer evidence of specific
farms owned by named individuals whose privacy interests in
their personal financial information would be compromised
by disclosure, it nonetheless establishes that a significant
portion of the farms described in the Compliance File and in
the GIS database are individually owned or closely held.
Information about the crops on these farms “would
necessarily reveal at least a portion of the owner’s personal
finances.” Kleppe, 547 F.2d at 685. Multi Ag’s affidavits have
not controverted USDA’s affidavits on this point. See Gallant,
26 F.3d at 171. Multi Ag has shown that because farm
9
ownership is complex, the crop information that is revealed
may be less invasive of individual privacy than USDA claims,
but Multi Ag has not shown that all farms are owned in such a
manner that disclosing their assets will in no instances allow
the public to trace the information to individual farmers. Multi
Ag in fact concedes “that many farms are owned by a single
family.” Id. ¶ 24. It counters that these family owned farms
are “often large, substantial businesses,” Id., but disclosure of
an individual’s financial information is no less protected
under Exemption 6 simply because his assets are significant.
The affidavits do not establish the number of farms for which
the information would be easily traceable to individuals, but
they confirm that this is the case for at least a significant
portion of them, and this showing is sufficient for us to
conclude that the files are covered by Exemption 6.
Balancing Privacy and Public Interests
The balancing analysis for FOIA Exemption 6 requires
that we first determine whether disclosure of the files “would
compromise a substantial, as opposed to de minimis, privacy
interest,” because “[i]f no significant privacy interest is
implicated . . . FOIA demands disclosure.” Nat’l Ass’n of
Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C.
Cir. 1989). Our use of the word substantial in this context
means less than it might seem. A substantial privacy interest
is anything greater than a de minimis privacy interest. Id.
Finding a substantial privacy interest does not conclude the
inquiry; it only moves it along to the point where we can
“address the question whether the public interest in disclosure
outweighs the individual privacy concerns.” Nat’l Ass’n of
Homebuilders v. Norton, 309 F.3d 26, 35 (D.C. Cir. 2002). In
other words, a privacy interest may be substantial—more than
de minimis—and yet be insufficient to overcome the public
interest in disclosure.
10
The parties dispute whether disclosure of the Compliance
File and the GIS database would reveal private personal
financial information. USDA argues that disclosing the
withheld information would reveal assets that, for family
owned farms, would invade their owners’ privacy interests.
For example, as USDA explains, the field and crop
information in the Compliance File “bear[] directly on the
value of the producer’s land and the wealth of the producer in
general.” Wieland Declaration ¶ 52a. Disclosure of a farm’s
reported acreage and data on the number and width of rows of
tobacco “may provide a snapshot” of a farm’s financial
circumstances and “shed[] light on the financial condition of
the farmer.” Id. ¶ 52b–h. Disclosure of the GIS database only
heightens these privacy concerns because its information is
set forth in photographs or maps.
By contrast, Multi Ag contends that release of the
Compliance File and the GIS database would not “shed light
on the financial condition of any particular farm, because
there are too many very common economic variables,” such
as “market price variability, weather variability, technological
changes, and disease impacts” that affect farm and crop
values. Montandon Affidavit, ¶ 19; Affidavit of William E.
Nganje, ¶ 3 (Mar. 3, 2006) (“Nganje Affidavit”). Multi Ag
argues that “it is not accurate to equate information about
crops and acreage directly with financial information of
farms.” Nganje Affidavit, ¶ 3. It also argues, as noted above,
that the complexity of farm ownership negates any inference
that might be drawn from the crop information about the
finances of individual farmers.
Although Multi Ag has shown that economic variables
weaken the correlation between farm assets and a farmer’s
financial situation, we conclude that the privacy interest that
11
would be compromised by disclosure of the files is greater
than de minimis. See Horner, 879 F.2d at 874; Norton, 309
F.3d. at 35–37 (finding that the government had “established
only the speculative potential of a privacy invasion without
any degree of likelihood” but nonetheless “[v]iewing the
asserted privacy interests as involving more than minimal
invasions of privacy”). Telling the public how many crops are
on how much land or letting the public look at photographs of
farmland with accompanying data will in some cases allow
for an inference to be drawn about the financial situation of an
individual farmer. Because USDA has not made a showing of
how often this may be the case, we are not persuaded that the
privacy interest that may exist is particularly strong.
Nonetheless, our standard at this stage is not very demanding,
so we are willing to engage in the balancing inquiry by
concluding that disclosure of the information would constitute
a “more than minimal invasion[] of personal privacy.”
Norton, 309 F.3d at 35.
Having found a greater than de minimis privacy interest
in the requested information, “we must weigh that privacy
interest in non-disclosure against the public interest in the
release of the records in order to determine whether, on
balance, disclosure would work a clearly unwarranted
invasion of personal privacy.” Horner, 879 F.2d at 874.
Because the “basic purpose of [FOIA] . . . focuses on the
citizens’ right to be informed about ‘what their government is
up to,’ ” information that “sheds light on an agency’s
performance of its statutory duties” is in the public interest.2
2
Although Multi Ag may not want the information to check up on
the government itself, the use for which the requestor seeks the
information is not relevant for purposes of determining the public
interest under FOIA Exemption 6. Horner, 879 F.2d at 875 (“The
Act’s sole concern is with what must be made public or not made
public.”) (quoting U.S. Dep’t of Justice v. Reporters Comm. for
12
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of
Press, 489 U.S. 749, 773 (1989); see also U.S. Dep’t of Def.
v. FLRA, 510 U.S. 487, 495 (1994) (stating that the relevant
public interest under FOIA is “the extent to which disclosure
[of requested files] would serve the ‘core purpose of the
FOIA,’ which is ‘contribut[ing] significantly to public
understanding of the operations or activities of the
government’ ”) (alterations in original) (quoting Reporters
Comm., 489 U.S. at 775).
USDA argues that because the Compliance File does not
include payment information linking the farm data to specific
subsidies, its disclosure would involve no public interest. The
agency explains that some of the crops listed in the
Compliance File are not tied to a subsidy program at all, but
are merely reported because the farmer has an ownership
interest in them and is required to submit information on all
such crops. In response, Multi Ag argues that eligibility for
farm benefits requires submission of all the data that is in the
Compliance File. Multi Ag points out that USDA
acknowledges that it collects only that information “necessary
for acceptance into one or more of FSA’s programs.” Wieland
Declaration, ¶ 28. If the information contained in the
Compliance File is required of all farmers receiving benefits
through FSA’s programs, so the argument goes, then the
public has an interest in knowing whether farmers who
receive subsidies have complied by submitting the necessary
information.
The district court agreed with USDA and found a
“drastically decreas[ed]” public interest in disclosure of the
Compliance File because it does not include payment
Freedom of Press, 489 U.S. 749, 772 (1989) (internal quotation
marks omitted)).
13
information connecting its data to specific subsidies. Multi
AG Media LLC, 2006 WL 2320941, at *5. The district court’s
focus is too narrow and misses the significant public interest
we see in disclosure. Although the Compliance File may not
directly say anything about a particular subsidy program, it
says everything about whether a particular farm is eligible to
participate in the benefit programs in the first place and thus
“sheds light on the agency’s performance of its statutory
duties.” Reporters Comm., 489 U.S. at 773. FSA uses this
information in making subsidy and benefit determinations,
and the public has a significant interest in being able to look
at the information the agency had before it when making these
determinations so that the public can monitor whether the
agency is correctly doing its job. For example, the
Compliance File includes both acreage amounts reported by
the farm operators and acreage amounts determined by FSA
after conducting its own spot checks. See id. ¶ 52g–h. Without
the data from the Compliance File, the public would have
great difficulty verifying that FSA is properly conducting its
spot checks and properly using the data obtained from the
spot checks.
We are likewise persuaded that there is a significant
public interest in disclosure of the GIS database. USDA
argues that although the information it withheld from the
database may say much about the farm, it says nothing about
how the agency administers its programs. But USDA does not
dispute that it uses the GIS database to monitor program
compliance. With the information from the database, the
public can more easily determine whether USDA is catching
cheaters and lawfully administering its subsidy and benefit
programs. As is the case with disclosure of the Compliance
File, the information in the GIS database will enable the
public to more easily monitor whether the agency is carrying
out its statutory duty. See Norton, 309 F.3d at 35–37 (finding
14
a strong public interest in disclosure of data the Secretary of
the Interior used to make critical habitat designations so that
the public could know if the agency was lawfully
administering its program).
Having found both a greater than de minimis privacy
interest and a significant public interest in disclosure of the
Compliance File and the GIS database, we must now balance
the two to determine whether the agency has met its burden to
show that “the substantial interest in personal privacy is not
outweighed by the public interest in disclosure.” Sims v. CIA,
642 F.2d 562, 573 (D.C. Cir. 1980). “For unless the invasion
of privacy is ‘clearly unwarranted,’ the public interest in
disclosure must prevail,” and the agency may not withhold the
files under Exemption 6. U.S. Dep’t of State v. Ray, 502 U.S.
164, 177 (1991).
We are mindful that Congress enacted FOIA “to pierce
the veil of administrative secrecy and to open agency action to
the light of public scrutiny.” Dep’t of Air Force v. Rose, 425
U.S. 352, 361 (1976). FOIA is intended “to ensure an
informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the
governors accountable to the governed.” NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 242 (1978). As the
Supreme Court has explained, the purpose and plain language
of the Act mandate a “strong presumption in favor of
disclosure.” Ray, 502 U.S. at 173.
That presumption is of special force here because the
public has a particular and significant interest in the
information Multi Ag seeks. USDA uses this information in
the administration of its subsidy and benefit programs, and
there is a special need for public scrutiny of agency action
that distributes extensive amounts of public funds in the form
15
of subsidies and other financial benefits. Brock v. Pierce
County, 476 U.S. 253, 262 (1986) (“[T]he protection of the
public fisc is a matter that is of interest to every citizen.”);
News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173,
1192 (11th Cir. 2007) (“easily” concluding that there is a
substantial public interest under FOIA Exemption 6 in
“learning whether FEMA is a good steward of (sometimes
several billions of) taxpayer dollars in the wake of natural and
other disasters”); United States v. Suarez, 880 F.2d 626, 630
(2d Cir. 1989) (“[T]here is an obvious legitimate public
interest in how taxpayers’ money is being spent, particularly
when the amount is large.”). Congress has recognized the
importance of ensuring the responsible use of these funds. For
example, it created the Office of Inspector General (“OIG”)
within USDA to “prevent and detect fraud and abuse” in the
“programs and operations” of the department. 5 U.S.C. App.
3 § 2; see also 7 C.F.R. § 2610.1(b) (“The mission of OIG
is . . . to conduct, supervise, and coordinate audits and
investigations of USDA programs and operations to
determine efficiency and effectiveness; to prevent and detect
fraud and abuse in such programs and operations; and to keep
the Secretary and the Congress informed of problems and
deficiencies relative to the programs and operations.”).
In sum, given USDA’s rather tepid showing that release
of the files would allow the public to draw inferences about
some farmers’ financial circumstances, the interest in data
that would allow the public to more easily monitor USDA’s
administration of its subsidy and benefit programs, and
FOIA’s presumption in favor of disclosure, we conclude that
the public interest in disclosure of the Compliance file and
GIS database outweighs the personal privacy interest.
Accordingly, release of these files would not “constitute a
clearly unwarranted invasion of personal privacy,” 5 U.S.C.
16
§ 552(b)(6), and USDA’s reliance on Exemption 6 in
withholding information from the files was improper.
IV.
We reverse the district court’s grant of summary
judgment with respect to the Compliance File and the GIS
database and remand the case to the district court for further
proceedings consistent with this opinion.
So ordered.
SENTELLE, Chief Judge, dissenting: Although I am largely
in agreement with the majority’s analysis, that analysis leads me
to a different conclusion, and I therefore respectfully dissent.
The majority is clearly correct that FOIA Exemption 6, 5
U.S.C. § 552(b)(6), permits the withholding of the Compliance
File and Geographic Information System (“GIS”) database if
such disclosure “would constitute a clearly unwarranted
invasion of personal privacy.” Id.; Maj. Op. at 5. The majority
is further correct in acknowledging that “‘Congress’ primary
purpose in enacting Exemption 6 was to protect individuals from
the injury and embarrassment that can result from the
unnecessary disclosure of personal information.’” Maj. Op. at
6 (quoting U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595,
599 (1982) (emphasis the majority’s)). I remain in concurrence
with the majority as it acknowledges, obedient to Washington
Post, that the protection of Exemption 6 extends to cover
“‘detailed Government records on an individual which can be
identified as applying to that individual.’” Maj. Op. at 7
(quoting Wash. Post, 456 U.S. at 602), and when it recognizes
that “[w]ere we to deem an individual’s financial interest
unprotected by Exemption 6 simply because it is found in a
business record, a cardinal purpose of Exemption 6 would not be
served.” Maj. Op. at 7 (citing Nat’l Ass’n of Retired Fed.
Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989)). As
the majority further recognizes, “approximately ninety-eight
percent of the farms represented in the files are ‘family-
owned,’” so that “the financial makeup of the businesses mirrors
the financial situation of the individual family members.” Maj.
Op. at 7 (internal quotation marks omitted). The majority then
reaches the inescapable conclusion that at least as to a
significant portion of the farms described in the database, the
crop information would be easily traceable to individuals.
2
I join the majority’s further reasoning when it concludes
that the disclosure of data bearing directly on the value of the
producer’s land and therefore, upon the wealth and income of
the producer compromises the privacy interest of the farmer and
“that the privacy interest that would be compromised by
disclosure of the files is greater than de minimis.” Maj. Op. at
10. It is only when the majority weighs the privacy interest in
nondisclosure against the public interest in the disclosure of the
records that I find myself in disagreement. Instead, I agree with
the district court that the public interest involved in the
disclosure of these files sits lightly upon the scales of balance.
As the district court noted, and the majority acknowledges,
there is a “‘drastically decreas[ed]’ public interest in disclosure
of the Compliance File because it does not include payment
information connecting its data to specific subsidies.” Maj. Op.
at 12 (quoting Multi AG Media LLC, 2006 WL 2320941, at *5).
As the district court further noted, given the volume of other
information already disclosed from other databases, and the
salient fact that the files in dispute contain no information about
USDA subsidies, “[d]isclosing the withheld information in the
Compliance file would merely reveal information about private
citizens, without shedding any light on the government’s
activities.” 2006 WL 2320941, at *5. Like the district court,
and not unlike the majority, I find Multi Ag’s argument that
there is no invasion (or no more than a minimal invasion) of the
privacy interests of the farmers most unconvincing. That
argument depends upon the proposition that there is much more
financial information in the universe of facts about the
individual farmers that will not be disclosed than there is
information being disclosed. To me this makes no more sense
than saying it would be acceptable for the government to
disclose the contents of tax returns because they do not provide
information concerning the holdings or expectations of the
taxpayer and therefore would constitute no invasion of privacy.
3
That proposition makes so little sense that there are specific
regulations and statutes protecting the privacy of the taxpayer.
See, e.g., 26 U.S.C. § 7213 (making it a felony for federal or
state employees willfully to disclose tax return information); 18
U.S.C. § 1905 (imposing criminal penalties on federal
employees disclosing, inter alia, the “amount or source of any
income, profits, losses, or expenditures of any person, firm,
partnership, corporation, or association”). It seems to be well
accepted that it would be unfair for the government to compel
taxpayers to disclose information and then allow that
information to be spread at large without regard to the privacy
of the taxpayer. Today’s ruling puts the farmers in the same
circumstances we would not impose upon other citizens and
taxpayers. I therefore would affirm the conclusion and
judgment of the district court that the privacy interest protected
by Exemption 6 would outweigh the light public interest in
disclosure.
Again, although I join in most of the reasoning of the
majority, I dissent from its conclusion.