Opinion
Civil No. 99-1165 (JRT/FLN)
July 19, 2001
Lynn A. Hayes and Karen R. Krub, FARMERS' LEGAL ACTION GROUP, INC., St. Paul, MN, for plaintiffs.
Friedrich A.P. Siekert, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, South, Minneapolis, MN, and Amy M. Allen, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for defendant.
William F. Forsyth, HENSON EFRON, P.A., Minneapolis, MN, Edward M. Mansfield, BELIN LAMSON McCORMICK ZUMBACH FLYNN, Des Moines, IA, defendant-intervenor.
ORDER
Plaintiffs brought this reverse Freedom of Information Act ("FOIA") suit against the United States Department of Agriculture ("USDA") to prevent it from releasing names and addresses of signatories to a petition for a referendum to abolish a federally-imposed assessment on pork sales. After granting plaintiffs' motion for a preliminary injunction, defendant-intervenor National Pork Producers Council ("NPPC") filed an interlocutory appeal. In a consolidated review on the merits, the Eighth Circuit held that the requested information cannot be released and remanded the case to this Court for entry of a permanent injunction.
This matter is now before the Court on NPPC's objections to plaintiffs' proposed form of judgment or in the alternative to amend or alter judgment pursuant to Rules 58 and 59 of the Federal Rules of Civil Procedure. NPPC claims that the proposed language goes beyond the Eighth Circuit's decision and plaintiffs' requested relief. For the reasons set forth below, the Court overrules NPPC's objections and grants plaintiff's proposed form of judgment.
BACKGROUND
In June 1999, NPPC submitted a FOIA request to the USDA for "the name, address, phone number and any other related information of all persons who signed the petition requesting a referendum on the Pork Checkoff Program." When the USDA indicated that it intended to release that information, plaintiffs filed this lawsuit. Plaintiffs moved for a preliminary injunction, requesting that the USDA be enjoined from "disclosing the names, addresses, telephone numbers, and business names of the persons signing the petition. . . ." On September 20, 1999, the Court granted plaintiffs' motion, barring the USDA from releasing "the information contained in the petition. . . ." NPPC appealed that decision to the Eighth Circuit, which the court consolidated with a final decision on the merits.
On January 4, 2000, the Eighth Circuit issued its decision and judgment in the appeal of this action. See Campaign for Family Farms v. Glickman, 200 F.3d 1180 (8th Cir. 2000). The court held that "USDA's determination that the petition is exempt from disclosure under the FOIA's personal privacy exemption is contrary to law." Id. at 1182. Accordingly, the court concluded that the USDA is barred from releasing the requested information and remanded the case to this Court for the entry of a permanent injunction:
We therefore remand to the District Court for entry of a permanent injunction prohibiting the USDA from releasing the information sought by the Council in its FOIA request. Id. at 1189.
Thereafter, plaintiffs submitted a proposed permanent injunction order, which provides in its entirety:
Defendant is PERMANENTLY ENJOINED from releasing by electronic or any other means to defendant-intervenor or to any other person or entity the names, addresses, phone numbers, or any other related information contained in the petitions calling for a referendum to end the Pork Promotion Research, and Consumer Information Order and the mandatory pork checkoff program it covers, which were submitted to USDA by the Campaign for Family Farms in May 1999.
NPPC now objects to this proposed language, claiming that it goes beyond the Eighth Circuit's ruling and grants relief broader than plaintiffs requested.
ANALYSIS
I. Limit to Petition Signers
NPPC objects to the language in the proposed permanent injunction submitted by plaintiffs. Plaintiffs' proposed injunction prevents the USDA from releasing "the names, addresses, phone numbers, or any other related information contained in the petitions. . . ." (Emphasis added.) NPPC challenges this wording, arguing that this language is too broad and that the release of information must be limited to the actual language in NPPC's June 1999 FOIA request, which sought "the name, address, phone number and any other related information of all persons who signed the petition. . . ." (Emphasis added.) To support this argument NPPC points to the final sentence of the Eighth Circuit's opinion in which the court remands the case to this Court "for entry of a permanent injunction prohibiting USDA from releasing the information sought by the Council in its FOIA request." Glickman, 200 F.3d at 1189 (emphasis added).
While the final sentence of the court's decision, when read literally and divorced from the rest of the opinion, supports NPPC's position, the Court declines to confine itself to the more narrow language found in that sentence. A reading of the court's entire opinion reveals a clear intent to protect disclosure of the entire petition. See id. at 1182 ("we hold that USDA's determination that the petition is not exempt from disclosure under FOIA's personal privacy exemption is contrary to law"); id. at 1188 ("We also believe that in the circumstances of this case the privacy interest in a secret ballot is severely threatened. Releasing this petition, which contains a clear declaration of how the petitioners intend to vote in the referendum, would substantially invade, that privacy interest."); Id. ("The present concern is that the petition not become available to the general public including those opposing a return to the voluntary checkoff program."); id. at 1189 ("Whether petitioners sold pork as an individual, a sole proprietor, or as a majority shareholder in a closed corporation does little to diminish the fact that disclosure of the petition will reveal the individuals who declared their position on this controversial issue."); id. (Having determined that the balancing test for application of FOIA's personal privacy exemption of FOIA's personal privacy exemption clearly favors protecting privacy, it necessarily follows that USDA's less onerous balancing test application to its discretionary-release regulation also must prohibit disclosure of the petition.").
On this basis, the Court accordingly adopts plaintiffs' proposed form of judgment as entirely consistent with the opinions entered by this Court and the court of appeals. NPPC's objection to the proposed language limiting the release to persons who signed the petitions is thus overruled.
II. Disclosure of Dates and Zip Codes
NPPC also objects to the language of plaintiffs' proposed permanent injunction concerning the disclosure of subcategories of petition information. Specifically, NPPC argues that the dates of signature and the zip codes of signatories are "reasonably segregable portion[s] of a record" that must be released under FOIA. 5 U.S.C. § 552(b).
The zip code and date of signature entries on the petition are not "reasonably segregable" because of the distinct possibility that the information will be used to identify the signers of the petition. The Eighth Circuit found that if the records were released "the privacy interest in a secret ballot [would be] severely threatened." 200 F.3d at 1188. The potential of violating this strong privacy interest precludes the disclosure of the zip codes and dates of signature of signers of the petition.
In addition, NPPC's FOIA request includes a request for "address[es]" and "other related information" of the persons who signed the petition. Zip codes fall comfortably within the ambit of the term "addresses" and are accordingly prohibited from release. Likewise, the dates of signature fall into the "other related information" category of the FOIA request and are prohibited from release.
ORDER
Based on the foregoing, the submissions of the parties, all of the files, records and proceedings herein, IT IS HEREBY ORDERED that
Defendant-intervenor's objections to plaintiffs' proposed form of judgment and/or motion to amend or alter judgment [Docket No. 74] are OVERRULED;
Defendant is PERMANENTLY ENJOINED from releasing by electronic or any other means to defendant-intervenor or to any other person or entity the names, addresses, phone numbers, or any other related information contained in the petitions calling for a referendum to end the Pork Promotion, Research, and Consumer Information Order and the mandatory pork checkoff program it covers, which were submitted to USDA by the Campaign for Family Farms in May 1999.
LET JUDGMENT BE ENTERED ACCORDINGLY.