The Freedom of Information Act - PowerPoint Presentation

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The Freedom of Information Act The Privacy ActSection 1619 of the Farm BillSlide2

Freedom of Information Act- federal statute which allows any person

the right to obtain

federal agency records

unless the records (or part of the records) are protected from disclosure by any of the nine exemptions contained in the law. Slide3

What is a FOIA request? - A written request for information that is not already public.

* At a minimum, the request should state the name and address of who is requesting the information and what information is being requested.

- Requests can be submitted via mail, fax, or e-mail.

DOES NOT have to cite the FOIA rule.

The requestor DOES NOT have to explain or justify the purpose of the request.Slide4

FOIA RequestThe FOIA officer’s have 20 business days from the date of receipt of a “proper” request in which to respond.Slide5

The Privacy Act (1974)Governs the collection, maintenance, use, and dissemination of personal information about individuals that is maintained in systems of records by federal agencies.

Grants individuals the right to access records maintained on themselves.

Provides procedures for correcting errors in those records.Slide6

The Privacy Act (1974)NRCS maintains a system of records covered under the Privacy Act for its owner, operator, or producer files, its volunteers, and its employees.For Example - DCs, RC&D Coordinators

are the system managers for owner, operator, or producer information housed in their offices. They are responsible for maintaining the system of records and protecting the information contained there in.Slide7

Section 1619 of the Food, Conservation, and Energy Act of 2008 (Farm Bill)

Booooo!Slide8

Section 1619 of the Food, Conservation, and Energy Act of 2008Any employee of the USDA, or any contractor or cooperator or partner of the Department shall not disclose –

Any information provided by an agricultural producer or owner of agricultural land concerning the agricultural operation, farming or conservation practices, or the land itselfSlide9

Acknowledgment of Section 1619 Compliance for Conservation CooperatorsSharing of routine information as necessary for the

implementation of conservation programs

with partners will be permitted through signing of the Acknowledgement

Sharing of routine information outside of accomplishing this purpose is not allowed.Slide10

Who needs to sign the Acknowledgement?SWCDPheasants ForeverDucks Unlimited

RC&D

All partner employees that provide assistance on USDA programs Slide11

Acknowledgement of Section 1619 The signature of the “Acknowledgement” is made on behalf of an organization by an official within the organization who has the authority to legally bind the entire organization to comply with the provisions in Section 1619.

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Examples of non-releasable informationConservation plansWetland determinationsHEL determinationsAcreage amountsAssistance notes

NRI point data

Flood damage surveys

Program contract information

Social Security Numbers

Tax ID Numbers

Entity Information

Banking Routing InformationSlide13

Section 1619 of the Food, Conservation, and Energy Act of 2008Section 1619 does not inhibit disclosure of these types of information between and among USDA agencies

(e.g. FSA

and RD); however, this information may only be shared with other Federal agencies outside of USDA for specific purposes under a cooperative program….

i.e. NOT for general regulatory or enforcement purposes.Slide14

Examples of information that can be RELEASED as per Sec. 1619 (through a FOIA request) Payment information

Names and addresses

Information that has been transformed into aggregate or statistical form that protects the name of the agricultural producer or owner or protects the site of gathering dataSlide15

Section 1619 of the Food, Conservation, and Energy Act of 2008Geospatial information is also prohibited from disclosure when it has been maintained by USDA and concerns the land which an agricultural producer or owner has provided information to participate in a USDA programSlide16

Section 1619 of the Food, Conservation, and Energy Act of 2008Geospatial information includes all information on the FSA Common Land Unit (CLU) including but not limited to

Field and Tract Borders

Tract and Farm Numbers

Field AcreagesSlide17

Section 1619 of the Food, Conservation, and Energy Act of 2008“Geospatial information” does not include aerial photographs themselves, but does include photographs when they contain, or associated with, additional data depicting or identifying attributes or characteristics of the land, such as common land unit boundaries (CLU), easement boundaries, wetland locations, tract numbers, field boundaries, acres on adjacent parcels, etc… Slide18

A landowner can get any information from his/her file at anytime without a FOIA request.Slide19

Release of Information… The best way for a vendor, TSP, and/or people hired by an approved USDA participant to receive information that contains data subject to FOIA or the Privacy Act –

Is directly from the participant or landownerSlide20

Forms – Consent/ReleaseMN-ADS-015 - (Landowner File Access Waiver) use with TSPsMN-ADS-016 - INFORMATION RELEASE REQUEST

form (e.g. landowner release to several contractors for bidding process)

MN-ADS-017 -

INFORMATION RELEASE AUTHORIZATION form (used by Conservation Partners, e.g. SWCD)Slide21

Technical Service ProvidersTSPs contracted by the producer, are subject to FOIA should always be encouraged to get project information directly from landowner

or fill out

-

MN-ADS-015

(Landowner File Access Waiver)

-

We DO NOT release info that reflects on the producer’s personal, commercial or financial matter, etc, to TSPs. Slide22

Release of Information… Another method for vendors to receive USDA project data is through a landowner INFORMATION RELEASE REQUEST form

(MN-ADS-016).

Form is completed by

landowner/requestor

authorizing information relating to him/herself to be released to another person.

The form contains:Slide23

The name of the requestorA list of the information to be releasedPerson or persons info will be released toHow long access (no longer than 1 year)Signature of requestor with acknowledgement that receiver may use and share information without legal restrictions

Requestor’s signature must be witnessed by USDA employee who either knows the identity or has reviewed documentation that shows the requestor is the person submitting form (e.g. driver’s license)

Alternative is Public Notary signing the form.Slide24

INFORMATION RELEASE REQUEST form (MN-ADS-016) This form is not to be used by conservation partners who routinely need access to USDA participant information to assist with conservation programs. Conservation Partners are covered under the

AcknowledgementSlide25

INFORMATION RELEASE AUTHORIZATIONform (MN-ADS-017)Partner employees who are covered under the Acknowledgement,

may use the

INFORMATION RELEASE AUTHORIZATION form (MN-ADS-017)

to obtain landowner permission for the release of private information for use with a joint USDA conservation

project (e.g. meeting minutes or other purposes).

When a landowner authorizes the release of information to an individual SWCD employee, that individual may share it with others, as needed.

There is no need to list multiple SWCD employees and/or supervisors on this form.Slide26

INFORMATION RELEASEAny landowner signing either form must be made aware of these facts:Signing any release form is not a requirement of participation in any USDA conservation program and;

The person they are authorizing release of the information to, may freely share it with others without additional permission.Slide27

Where to find the formsSharepoint (FOIA – left column)

National FOIA page – access from MN NRCS Home Page (link @ very bottom)Slide28

Information is to be Released…ONLY BY THE State Conservationist

THROUGH A FOIA REQUEST!!!

NRCS employees, conservation district employees, TSPs, contractors and consultants, ARE NOT to release any

non-public

information to anyone.Slide29

Send ALL FOIA requests for information to the NRCS State Office.Slide30

FOIA ContactsNRCS

Tessa Garcia – (651) 602-7872

Pat McLoughlin – (651) 602-7907

FSA

Lisa MacDonald – (651) 602-7707

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ExamplesContractors request – “can I have a list of 2010-2011 EQIP applicants for Winona, Fillmore, and Houston Counties?”.We would

release

the names and addresses of

accepted

EQIP contracts. This is a common request from contractors.Slide32

Examples SWCD mapSlide33

Examples – SWCD Board Meeting Minutes

BAD

GOODSlide34

Recent DevelopmentsNB-120-10-16 – FOIA Requests for Information on

NRCS Conservation Easement Boundaries

boundary information on conservation easements held by the US is considered public informationSlide35

Recent Developments cont’d MINNESOTA BULLETIN NO. 120-11-3Under provisions of the

Privacy Act

NRCS may release information from its files regarding wetland determinations and compliance issues to other federal, state, local, tribal or other governmental agencies having jurisdiction for investigating or prosecuting violations or potential violations of law, or enforcing or implementing statues, rules, regulations or orders regarding environmental compliance and related matters.

This bulletin was retracted February 7, 2011Slide36

MINNESOTA BULLETIN NO. 120-11-3Under the Federal Privacy Act and the system of records entitled "Landowner, Operator, Producer, or Participant Files" as published in the agency's system notice at 70 Fed. Reg. 51332 (Aug. 30, 2005) NRCS is authorized to release to such agencies those records in that system that indicate a violation or potential violation of law. NRCS will use” Routine Use Exception (6)” at 70 Fed. Reg. 51334 to process verified Privacy Act requests.This bulletin was retracted February 7, 2011Slide37

NRCS / FSA / District staff can release information from individual cooperator files to the landowner (cooperator) or current renter (when renter is listed on the contract). Information on wetlands, highly erodible land (HEL) and HEL conservation plans may also be released to the current operator. Prospective

renters or buyers must make a FOIA request for any information they want from a cooperator file.Slide38

Farm Bill TechniciansNon-USDA employees.No unique status or ability to have access to individual producer information.However, CREP agreements between FSA and BWSR allows FBTs access to information to implement the conservation practices and make payments. Slide39

eLINKCan not create or keep lists (i.e., database) of ANY USDA information. Can enter joint projects into a database (e.g., District has a financial interest in a project such as CREP or EQIP.)Slide40

CREP - RIMNo access to information prior to the producer enrolling into the program.Once the landowner is enrolled, Districts can have access to the information (if they are a partner and the land will be enrolled into CREP.)Slide41

Cooperating Partners How can USDA continue to work with conservation partners if most of our USDA information is considered “protected” or “private”?Slide42

Acknowledgement - PROVISIONSThe State’s “sunshine law,” “open records act” or other version of the Freedom of Information Act is superseded by section 1619 under the Supremacy Clause of the U.S. Constitution. Accordingly, information protected from disclosure by section 1619 must not be released under such State laws.Slide43

Landowner Case FilesIn many offices NRCS and the local SWCD historically have maintained joint client files. Ownership and access of these files could become an issue unless all USDA related producer information is protected following the USDA FOIA and PA guidelines and policy.Slide44

Separate SWCD Landowner Case FilesSWCD employees working with partnership programs (RIM\WRP) can keep “producer collected” and USDA generated information in their separate SWCD case files when:

1) NRCS provided direct assistance with the project and

2) they notify the landowner that the information is subject to State disclosure laws.Slide45

SWCD Landowner Case FilesJoint or SeparateSWCD employees working on non-USDA programs (RIM\State Cost Share) without direct NRCS involvement on a project specific basis can keep “producer collected” information in their SWCD case files when: they notify the landowner that the information is subject to State disclosure laws

BUTSlide46

SWCD Landowner Case FilesJoint or SeparateWithout direct NRCS involvement on a project specific basis USDA generated information can not be kept in any SWCD case file. Slide47

Landowner Case Files Exception - USDA generated information may be kept in non-USDA case files only if the information is provided directly by the landowner. Slide48

MAPS

- Aerial slides and/or photographs devoid of all personal identifiers CAN BE RELEASED without a FOIA request.

- AGAIN - FSA Common Land Unit is not releasable.Slide49

FOIANRCS / FSA / District staff can release information from individual cooperator files to the landowner (cooperator) or current renter (when renter is listed on the contract). Prospective renters or buyers must make a FOIA request for any information they want from a cooperator file.Slide50

If a renter/operator comes in and wants to know if there is a wetland on the land that he is going to farm next year (he doesn’t own it yet), can we show him without written approval from the landowner?NO – he can either submit a FOIA request or get it from the landownerSlide51

The LGU is investigating a landowner for a potential WCA violation on a livestock pond that was dug years ago with cost share (now recently cleaned) can I tell the LGU that the landowner was working with USDA?NO – tell them to submit a written request. NEVER provide information verbally to any entity such as a LGU, county environmental services or anyone else.Slide52

AD-1026 Information on AD-1026 and CPA-026, for wetlands and highly erodible land (HEL) and HEL conservation plans may also be released to the current operator. Districts wanting access to the AD-1026 need to submit a FOIA request to FSA.As a general rule, Districts do not need access to the AD-1026 for reimbursed work.Slide53

HEL and Wetland info.All HEL and wetland information provided to a participant must be clipped to show only the tract of land they own and\or operate.Slide54

Area Engineering designs releasable?NO – except to the landownerA landowner can give written permission to copy a third party via consent form.

The landowner can give this information out to anyone.

Everyone else needs to submit a written FOIA request to get engineering designs from NRCS.Slide55

Other agencies No USDA information can be released to any individual or entity including other federal or state agencies, when the information will be used for enforcement purposes.Slide56

The United States Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, disability, political beliefs, sexual orientation, and marital or family statue (Not all prohibited bases apply to all programs). Persons with disabilities who require alternative means of communication of program information 9Braille, large print, audio audio tape, etc.) should contact USDA’s TARGET Center at (202) 720-2600 (voice and TDD).

To file a complain of discrimination, write to USDA, Write to, Office of Civil Rights, Room 325W, Whitten Building, 14th and Independence Avenue, SW. Washington, D.C., 20250-9410, or call (202) 720-5964 (voice or TDD).

USDA is an equal opportunity provider and employer.

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Keep on Rockin’ with the FOIA!!!