Len Brown says this one might be called Big Brother — down on the farm.
Brown, an attorney with the Lancaster firm of Clymer & Musser, filed a lawsuit against the federal government in U.S. District Court in the District of Columbia last month on behalf of a New York state journalist who wanted a look at a massive government database of farm animals and farm "premises" — and was rebuffed.
But not only did the U.S. Department of Agriculture refuse to honor the journalist's request, Brown notes in the complaint, it actually took steps to make all of the information in the database officially "private" — and therefore secret.
Brown, who has been involved in several high-profile civil liberties cases in recent years, says his client wants to check the database because she's certain that it contains the names and addresses of farmers who don't know they're on the list, and don't want to be. The lawsuit demands that the USDA preserve 17,000 pages of documents and be prevented from "converting" the information into an inaccessible database under the Privacy Act. The USDA agreed to both just hours after the filing.
"Small farmers in particular are fairly independent-minded people," said Brown. "They don't want the government involved in their business."
But government involvement in the business might be greater than ever before, thanks to the National Animal Identification System.
The program — administered by the U.S. Department of Agriculture's Animal and Plant Health Inspection Service — seeks to create a comprehensive list of virtually every livestock animal in the United States so that they can be tracked, perhaps via radio frequency tags or microchips.
Epidemics of tuberculosis or bovine spongiform encephalophy — commonly known as "mad cow disease" — could be caught early, and other animals that come into contact with infected livestock could be instantly indentified.
That, federal officials say, ensures both the health of individual animals, as well as the financial health of the industry.
The first step toward that goal, Brown said, involves the creation of a "National Premises Information Repository." This will allow the USDA to create a comprehensive list of every "premises" — farm or other location — in the country where livestock is kept. Participation is supposed to be voluntary. Mary Louise Zanoni, Brown's client, says she's seen evidence that's not always the case.
Zanoni, of St. Lawrence County, N.Y., is an attorney, activist and journalist who has covered the issue for several publications, including The Milkweed, a Wisconsin-based dairy-industry paper. She's discovered that some farmers were added to the database without even knowing about it.
States, she said, have used "data mining" techniques to get farmers' names and addresses and pass them on to the USDA. "In Idaho, [the state government] took people who had registered brands" with the state and forwarded their information to the feds, said Zanoni.
And in New York, the state Department of Agriculture & Markets "sends a letter congratulating farmers" on their inclusion in the database, telling them that in order to opt out, they must fill out a form, she said. But some farmers thought the form was for those who wanted to opt in.
And those who complete the form and want out of the program then get a second form from the state, said Zanoni, "asking: Are you sure?"
While researching an article for The Milkweed, Zanoni filed a Freedom of Information Act request. Initially, the Animal and Plant Health Inspection Service indicated it would disclose 17,000 pages of printed material. The agency later denied Zanoni's request, noting the FOIA provision permitting government agencies to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
Zanoni doesn't think the basic contact information contained in the premises records falls under the exemption.
USDA officials declined to comment on the lawsuit, initially saying they couldn't discuss matters in litigation. Subsequently, the department referred inquiries to the U.S. Department of Justice, but department spokespeople did not respond to several phone and e-mail messages seeking comment.
Brown said that after Zanoni's request had been turned down, a new provision was added to the 2008 Farm Bill, officially known as the Food, Conservation, and Energy Act of 2008. This measure was seemingly "intended to shield a large amount of USDA information from public disclosure," said Brown. That would have included the premises database. In the lawsuit, Zanoni contends this shouldn't affect her FOIA request — and that the provision is unconstitutional.
Last year Brown represented a Lebanon County farmer who sued the state after the Pennsylvania Department of Agriculture told him he'd need a federal premises identification number to sell ducks at live bird markets. The farmer, James Landis, is a conservative Mennonite who said he believed the requirement was a "direct violation" of the Bible. Just days after the lawsuit was filed last June, the state agency backed down.
Brown's work on that case brought him to Zanoni's attention.
There has been vocal opposition to both the animal identification system and the premises registry aspect of it. Dr. Ann Swinker, an associate professor at Penn State who studies the equine industry, is researching the issue. She conducted an online poll in which 48 percent of respondents said they opposed the animal identification system. But she suspects the "activists" made a specific attempt to skew the results.
Many in agriculture, she said, "are seeing it as a management tool," and a potentially effective one at that. Still, "one thing you never do is ask a cattleman how many cattle he has," she said. "That would be like me asking you how much money you have in your bank account."
In Wisconsin, Amish farmers have expressed opposition. Sam S. Stoltzfus ,of Gordonville, wrote a letter to the editor of the Lancaster New Era in 2006 noting that the expense of identifying each animal could convince already-struggling small farmers to quit the business. But, contacted last week, he said he doesn't hear a lot of opposition from local Plain farmers. A 2006 forum on the issue in Ephrata — at which Zanoni and Pennsylvania Agriculture Secretary Dennis Wolff were speakers — drew a crowd of "independent-minded farmers," according to a report in the Lancaster Farming newspaper.
Brown's complaint, filed May 30, prompted the USDA to suspend its attempt to convert the database into a "Privacy Act system of records" indefinitely. But the "gold standard," said Brown, is getting the database itself. "The significant public interest in gaining access to the NPIR records and in shining a light on USDA's policies and practices in implementing the massive undertaking of a National Animal Identification System" requires the court to act, he wrote in his brief.
Said Zanoni: "There are some things that might be wonderful for certain bureaucratic agencies.
"But what if the people don't want it?"
Gil Smart is associate editor of the Sunday News. E-mail him at gsmart@lnpnews.com, or phone 291-8817. 