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Zanoni v. United States Dep't of Agriculture

March 31, 2009

MARY-LOUISE ZANONI, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff Mary-Louise Zanoni brings this action against Defendant United States Department of Agriculture ("USDA"), under the Privacy Act of 1974, 5 U.S.C. § 522a, and the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, seeking to (1) enjoin the USDA from converting the National Animal Identification System ("NAIS") and the National Premises Information Repository ("NPIR") into a Privacy Act system, and (2) to compel the USDA to comply with her FOIA request. Plaintiff and defendant filed cross-motions for summary judgment. After considering the motions, responses and replies thereto, the applicable law, and the entire record, this Court DENIES plaintiff's motion for summary judgment and GRANTS defendant's cross-motion for jummary judgment.

I. BACKGROUND

The USDA, through its Animal Plant Health Inspection Service ("APHIS"), maintains the NPIR and NAIS databases. The databases serve as a centralized registry system used to quickly identify and notify producers about animal disease outbreaks in their area. The information in the NAIS database includes a unique identification number for each animal and premises, and the name, phone number, and address of the producer. The NPIR has the same contact information for the producer and also includes the name of the premises, and the generic type of operation (i.e. feedlot, farm, veterinary clinic). The gathering of information for these databases is conducted by the federal government with cooperation from the states. Currently, states have autonomy over the registration process for premises located within their borders. As such, states may have their own criteria for premises registration, including giving premises IDs to producers who participate in state disease control/eradication programs (i.e. vaccinations, testing). After collecting all of the information needed for their own databases, states submit the producer contact information, premises ID number and location into the Standardized Premises Registration System ("SPRS") and the NPIR. While many producers register in the NPIR through state programs, others register in the database through federally regulated disease control and eradication programs. For those producers who do not participate in either of the above mentioned programs, registration in the NPIR is voluntary.

There are opt-out options available for producers who do not want to remain registered in the NPIR. The producer is supposed to receive a notice in the mail when his or her information is transferred from the state to the NPIR. This notice informs the producer of the voluntary nature of the program and allows the producer to contact the state if he or she wants to be removed from the NAIS or NPIR. At this point, the producer can either have their status in the NAIS or NPIR database changed to inactive or, if the producer does not participate in any disease prevention programs like those mentioned above, he or she may have all of the information about their premises deleted from the database. Alternatively, if the producer is involved in disease prevention programs, he or she has the option of having all of his or her personal identification information deleted from the database, leaving only the premises ID and address for disease tracking purposes. The APHIS processes opt-out requests for the NPIR, and states are responsible for deleting the requesting producer's information from the state databases.

Plaintiff is a journalist who planned to write a series of articles from July 2008 to July 2009 about the NPIR, asserting that though the USDA claims the database is voluntary, many producers are registered without their knowledge, permission, and/or despite their opposition to registration. On October 24, 2007, plaintiff submitted a request to the APHIS FOIA officer asking for computer disks with the following information: (1) all records of registered premises contained in the NPIR, including the name of the entity, name of contact person, address, telephone number, alternate telephone number, and type of operation run on the premises; (2) the number of requests to be removed from database(s) that APHIS has received from owners/managers of registered premises; and (3) the number of premises that actually have been removed from the database.

The APHIS FOIA officer processed the request through to the Office of Veterinary Services ("OVS"), which, among other things, maintains NAIS. On November 16, 2007, the OVS supplied the FOIA officer with between 14,000 and 17,000 pages of information in response to plaintiff's request. Shortly thereafter, on December 13, 2007, the USDA denied her request and informed plaintiff that the requested records were exempt from disclosure pursuant to FOIA Exemption (6), which provides that FOIA disclosure requirements do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552 (b)(6).

Plaintiff appealed the USDA's determination on December 21, 2007. As a result of her appeal, in January and February of 2008, the FOIA officer inquired again with the OVS to see if there were additional responsive records that could be disclosed with respect to items (2) and (3) of plaintiff's request. During this inquiry, the FOIA officer discovered that the OVS created a separate database for tracking producer removal requests. This database included, among other things, information about the submitted request such as the data indicated for deletion, the reason for the deletion (i.e., opt-out program or duplication), whether it was removed from the NPIR, and, if so, the date of the removal. The FOIA officer requested a copy of this database and received information in the aforementioned areas for November 2006 to October 2007. The USDA determined that the other fields were not responsive to items (2) and (3) of plaintiff's request.

On April 30, 2008, APHIS printed a notice in the Federal Register regarding its proposal for the conversion of four NAIS databases into a system of records under the Privacy Act , which would be effective on June 9, 2008.*fn1 Plaintiff filed a complaint in this Court on June 2, 2008: seeking (1) to reverse the USDA's determination that disclosure of the information requested by plaintiff was not required under FOIA; (2) to preliminarily enjoin the USDA from converting the NPIR and NAIS databases into a Privacy Act system; (3) to order the USDA to surrender to the Court the documents relevant to plaintiff's FOIA request; (4) a declaration that § 1619 of the Food, Conservation and Energy Act ("FCEA") of 2008 is inapplicable to plaintiff's FOIA request; and (5) a declaration that the FCEA, as enacted, violates the Presentment Clause of the United States Constitution and the separation of powers doctrine.*fn2 On June 4, 2008, by agreement of the parties, this Court ordered defendant to print another notice in the Federal Register postponing the conversion of the NPIR into a Privacy Act system until further notice from the Court, to preserve the NPIR documents responsive to plaintiff's FOIA request, and to access the NPIR database only when necessary to track or identify a diseased animal.

On June 19, 2008, in response to the Court's Order, defendant sent plaintiff the database information that the FOIA officer received pursuant to his inquiry in January and February of 2008. The USDA provided information from November 30, 2006 to October 9, 2007, which included the names of producers who were removed from the NPIR database but did not include dates of removal. The USDA informed plaintiff on June 30, 2008 that columns C through Q of the NPIR, though responsive to plaintiff's claim, were exempt from disclosure under FOIA Exemption (3) because § 1619 of the FCEA of 2008 prohibited disclosure.*fn3 Additionally, the USDA informed plaintiff that other information relevant to her FOIA request, specifically columns A, C through L, and N through Q of the NPIR database, were also exempt from disclosure because FOIA Exemption (6) allows an agency to withhold information when disclosure would be an unwarranted invasion of the personal privacy of the producers listed in the database.

Zanoni filed a motion for summary judgment in this court on July 2, 2008, seeking to enjoin the USDA from converting the NAIS and the NPIR into a Privacy Act system; and (2) seeking to compel the USDA to comply with her FOIA requests for "[a]ll records of registered premises contained in the NPIR . . . including the name of entity, name of contact person, address, telephone number, operation type and alternative telephone number." Compl. at 35. Defendant filed a cross-motion for summary judgment on July 31, 2008 seeking to dismiss plaintiff's Privacy Act claim for lack of standing and seeking a ruling that FOIA Exemptions (3) and (6) permit the USDA to withhold the requested information.

II. DISCUSSION

A. Standard of Review

Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by ...


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