Pork referendum petitioners can keep signatures secret

From the Winter 2000 issue of The News Media & The Law, page 10.

Pork farmers seeking a referendum by the Department of Agriculture on whether they must continue to support the efforts of the National Pork Producers Council to promote "The Other White Meat" can keep their signatures secret, a unanimous U.S. Court of Appeals in St. Louis (8th Cir.) ruled in January. It said the public interest in oversight of the petition drive is "slender."

When the signers said they would cast their secret ballots in favor of eliminating the Council, they created a privacy interest that exists even though they signed in public and in a business capacity.

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The 1985 Pork Production, Research and Consumer Information Act set up a checkoff system for hog farmers to contribute to pork promotions and other efforts to beef up pork sales.

Under the law, farmers must contribute a portion of the price of each hog they sell to finance the National Pork Producers Council, headquartered outside Des Moines, Iowa. The funds -- 45 cents for every $100 of pork value -- are used for research, promotion and market developments. They have financed the ad campaign for "The Other White Meat."

The fund grew increasingly controversial, with many farmers and farm groups questioning the mandatory checkoffs as hog farmers continue to go out of business.

In April 1998, the Campaign for Family Farms, an umbrella organization of groups that object to pork checkoffs, began a petition drive to force the referendum provided for in the farm act to be conducted by the U.S. Department of Agriculture, based on a petition by a substantial percentage of pork producers subject to the checkoff.

Petitioners gave addresses and telephone numbers and some information verifying they are subject to the checkoff. The petitioners only had to ask for a referendum, but the documents they signed also included the statement, "We support a voluntary checkoff program." After 13 months, the Campaign had secured 19,000 signatures which, if valid, were more than enough to force the agency to call for a referendum on the measure.

In June 1999, the National Pork Producers Council filed a Freedom of Information Act request for information from the petition including the names, addresses, phone numbers, and related information of all persons who had signed the petition.

In late August, the Department of Agriculture granted the Council's request in a lengthy decision concluding that none of the exemptions to the FOI Act could apply. The agency questioned whether the privacy exemption to the act (Exemption 6) would apply at all since the farmers had signed in a business, rather than a personal, capacity, but it nonetheless addressed a balancing of privacy intrusions that might occur and the public's interest in disclosure of the information.

The department found that there was little or no privacy interest -- signing a petition is a public act and the revelations that the signers are pork producers would be of little surprise to anyone, it said. It found claims by the signers that disclosure would subject them to "intimidation and retaliation" unsupported.

The department said that the process of petitioning the government should be open at each stage except at final balloting on a referendum, where the law requires a vote by secret ballot.

In late July, the Campaign for Family Farms sued the agency to prevent release of the information in federal District Court in Minneapolis, claiming disclosure "would subject the petition signers to intimidation and/or retaliation by organizations such as the National Pork Producers and its state affiliates or pork packers," all of which it said have a significant financial interest in preserving the checkoff program.

Releasing the names would also have a "serious chilling effect" on hog farmers' willingness to petition the government, it said. It would also undermine the secrecy of the balloting position of the signers who were showing how they would vote in a referendum.

The Council intervened in the suit. It told the court that the petitions were passed around in public settings where the information had been plainly visible.

In September, the federal District Court issued an injunction against the agency prohibiting release of petition information. "The petition information is not benign or 'generic,'" according to the District Court. Before the federal court released a formal written decision, the agency and the Council appealed the injunction to the U.S. Court of Appeals in St. Louis (8th Cir.).

In early January, the appeals panel ruled that the Department of Agriculture abused its discretion in finding that the privacy exemption did not apply.

Because the petitioners revealed how they would vote in a secret ballot election, the agency would assuredly intrude upon their privacy in releasing the petition, the court ruled.

The fact that petitioners signed in a business capacity does not diminish their privacy interest, the appeals panel said. The fact that the petitions were publicly passed around also did not diminish that interest. It is not unusual, the court said, for individuals to want information kept from the general public while simultaneously releasing it on a more limited basis.

The panel recognized that a public interest exists in ensuring oversight of the process of verifying the petition. That is consistent with the principle that the FOI Act's basic purpose is to "open agency action to the light of public scrutiny," it said. But it gave that notion short shrift: "We do not mind saying that the public interest in such oversight is slender," it said.

Instead, the panel found that the balancing of interests "could only come out one way" -- in favor of protecting privacy. (Campaign for Family Farms v. Glickman)