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Farmers poison settlement for predator aid information

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  1. Freedom of Information

    NMU         TEXAS         Freedom of Information         Oct 24, 2002    

Farmers poison settlement for predator aid information

  • A federal judge in Texas filed notice that he is permanently enjoining the Department of Agriculture from releasing the names and addresses of farmers and ranchers who hold cooperative agreements with the department for lethal eradication of predators.

Farmers and ranchers who poison predators with lethal and restricted pesticides with assistance from the U.S. Department of Agriculture can keep their identities and other information secret, a federal district judge said Sept. 30.

Judge Walter Smith in Waco issued written notice of an order that he said will enjoin the government from providing that information.

Nicole Paquette, general counsel for the Animal Protection Institute in Sacramento, whose Freedom of Information Act request was denied by virtue of the judge’s decision, said the public needs to know who is using those deadly substances and where. For instance, she said, people call her to find out if it is all right to walk their dogs near a farming area without the risk of encountering poisoned carcasses that may be lethal to other animals. API needs to know where the poisons are used to educate and inform people.

Also, API hoped to educate local groups about the poisons used near them and how other, less lethal management of predators could be used, Paquette said.

API filed FOI requests for the information in 1997 and again in 1999. In August 1999 it sued the department for the information in federal district court in Washington, D.C. The institute was in the process of drawing up a settlement agreement with the department for the information when Texas farmers and ranchers got wind of the impending settlement.

The Texans and a federal judge obliterated the agreement. The Texans sued to keep the government from giving out the information. The judge in Texas granted them a permanent injunction.

Initially the government’s attorneys agreed to a preliminary injunction in the federal court in Texas, thinking they could then transfer the Texans’ lawsuit to the Washington, D.C., court where their case could be considered along with the animal rights group’s case.

But Smith refused the transfer and expanded the injunction, making it a class action. He also refused to let the animal rights group even be involved in the Texas case until the U.S. Court of Appeals in New Orleans reversed him on that point, ordering that API could intervene. Smith also brought the Forest Guardians, an environmental group in New Mexico, into the case, prohibiting the government from giving out the identities of farmers and ranchers it helped in several other Western states in response to an FOI request the Guardians filed.

Before the lawsuits, the Department of Agriculture had flip-flopped its policies on releasing the information but was now on the verge of making it public.

A federal district court in Washington, D.C., held that cotton farmers received subsidies as a business matter, not a personal matter protected by the FOI Act’s privacy exemption. After that decision, the department’s general counsel in 1998 directed release of the names of farmers and ranchers who received poison assistance.

The department dealt with the Texas farmers and ranchers for business, not personal reasons, just as it had dealt with cotton farmers on a business level. But the Wildlife Services unit of the department convinced the counsel to reverse that policy and find a “valid basis” for withholding identifying details.

When API made its request, it was denied. However, when API sued, the attorney litigating for the department determined that the farmers and ranchers were in business and that information about who they were was not “personal.”

In his decision that destroyed that settlement, Smith noted that the department’s employees in Wildlife Services have suffered opposition from animal rights groups including vandalism, burglary and arson and that similar acts could harm farmers and ranchers if they were identified.

He said a judgment that the information was “business” was “created out of thin air” with no rational basis. The department’s help might have nothing to do with business — it might protect a family garden.

The judge said, however, without elaborating, that an FOI Act exemption protecting confidential business information also would apply. An exemption that protects information kept secret by another law would apply because the Federal Insecticide, Fungicide and Rodenticide Act requires applicators of restricted use pesticides to maintain certain records which the government may see but not disclose. He said the Privacy Act would protect the information and he also said the government could release the information on a discretionary basis.

In a footnote, the judge also said that release of the information could benefit terrorists.

(Doe v. Veneman; attorney: Jay Tutchton, Denver, Colo.) RD

© 2002 The Reporters Committee for Freedom of the Press

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