CAMPAIGN FOR FAMILY FARMS, an unincorporated association of membership organizations; Rodney Skalbeck; James Dale Joens; Richard Smith; Rhonda Perry; Lawrence E. Ginter, Jr.; Stan Scott Schutte, on behalf of themselves and others similarly situated, Plaintiffs-Appellees, v. Dan GLICKMAN, Secretary, United States Department of Agriculture, Defendant-Appellee. National Pork Producers Council, Intervenor Defendant-Appellant.
No. 99-3575.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 16, 1999. Decided Jan. 4, 2000.
200 F.3d 1180
Lynn A. Hayes, St. Paul, MN, argued (Karen R. Krub, Leonard Schaitman and Sandra Wien Simon, on the brief), for appellees.
Before WOLLMAN, Chief Judge, BOWMAN, and LOKEN, Cirсuit Judges.
BOWMAN, Circuit Judge.
The Campaign for Family Farms (“Campaign“) and several individual pork producers brought this reverse Freedom of Information Act (“FOIA“) suit against the United States Department of Agriculture (“USDA“) to prevent it from releasing a petition that calls for a referendum to terminate a federally-imposed assessment on pork sales. The petition includes the names, addresses, and phone numbers of over 19,000 pork producers who signed the petition. The District Court1 issued a preliminary injunction prohibiting USDA from disclosing the petition and the information it contains. Intervenor defendant National Pork Producers Counсil (“Council“), which initiated the FOIA request at issue in this case, filed this appeal. Granting the Council‘s motion calling upon us to reach the merits of the case, we hold that USDA‘s determination that the petition is not exempt from disclosure under FOIA‘s personal privacy exemption is contrary to law. Accordingly, we remand to the District Court for the entry of a permanent injunction.
The assessments at issue in the requested referendum are imposed under the Pork Promotion, Research, and Consumer Information Act of 1985 (“Act“),
Believing that the checkoff program has not served the interest of independent family farmers, the Campaign, an informal organization of family farm and community membership organizations, launched a petition drive to requirе USDA to call a referendum on the checkoff program. Authority for such a referendum is found in the Act, which provides that USDA shall conduct a referendum to determine whether pork producers and importers favor the termination or suspension of the order implementing the checkoff program “on the
The petition forms distributed by the Campaign, which were preapproved by USDA,3 stated:
We, the undersigned U.S. pork producers, petition the Secretary of Agriculture to conduct a referendum to terminate (end) the mandatory Pork Promotion, Research, and Consumer Information Order and the mandatory pork check-off program that it covers. We support a voluntary check-off program.
By my signature, I certify that after January 1, 1997, I have sold one or more swine and have been assessed check-off payments. (Only one person may sign per business entity that owns and sells swine.)
Appellant‘s App. at 31. The petition forms provided spaces for petitioners to write their names, signatures, addresses, telephone numbers, and the “business name swine are sold under, if any.” Id. During the petition drive, the Campaign used two types of forms: a sheet that included space for ten signatures and a postcard that included space for one signature.
In May 1999, the Campaign submitted petition forms containing over 19,000 signatures, approximately 27% more than the 14,986 signatures that USDA advised were necessary to fulfill the 15% statutory requirement. USDA is currently in the process of verifying the petition, that is, ensuring that at least 14,986 of thоse who signed the petition were actually pork producers or importers during the representative period. To that end, USDA recently finished entering the information contained on the individual petition forms into an electronic database. USDA estimates that it will complete the verification process by January 1, 2000.
In the meantime, on June 17, 1999, the Council filed a request under the Freedom of Information Act,
The personal privacy exemption provides that mandatory FOIA disclosure “does not apply to matters that are ... (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Id. USDA first questioned whether the personal privacy exemption even applies to the petition information because “these individuals were acting in their business capacities as farmers who are pork producers when they signed the
Regarding the petitioners’ privacy interest, USDA found “very little or no privacy interest” at stake in the petition information. Id. at 74. On this question, USDA determined that the only information that would be revealed by disclosure are petitioners’ home addresses, phone numbers, and business name and the fact that petitioners engage in pork production. Citing a number of district court decisions, USDA concluded that little, if any, privacy attaches to such information and that “the likely consequencеs of disclosure are de minimis or nonexistent” as it is probable that a number of people already know that petitioners are pork producers. Id. In addition, USDA found that the nature of petition signing in general and in this case, where petition forms have space for several names and addresses, is essentially a public act: “It is reasonable to assume that a signer will realize that others will have the petition in their hands and will be able to see the names, addresses, and phone numbers of the persons, including themselves, who previously signed.” Id. Finally, USDA rejected the claim by the Campaign thаt petitioners will be subject to retaliation and intimidation as “purely speculative” because the Campaign did not refer to “any specific incidents, or any past history of such incidents.” Id. And USDA rejected any analogy to the concerns about retaliation in labor cases involving employee petitions for union authorization because those concerns “apply in a relatively closed work place, where the employer has considerable and immediate leverage over the employees.” Id.
As for the public interest in disclosure, USDA merely stated, “Assuming, for thе sake of argument, that there is sufficient privacy interest to warrant weighing against any public interest in disclosure, we believe that the process involved should be open at each stage, except to the extent that the ultimate ballot is protected by statute.” Id.
On July 29, before USDA had issued its final decision, the Campaign and several individual pork producers filed the present reverse FOIA action. Asserting that disclosure of the petition would violate exemption six of FOIA, the Privacy Act,
Although commonly known as reverse FOIA actions, cases like this one actually are brought under the APA, which provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ..., is entitled to judicial review thereof.”
When, as here, the agency has determined that the information sought does not fall within one of FOIA‘s exemptions from mandatory disclosure, it is especially difficult for plaintiffs to convince a reviewing court to permanently enjoin аgency disclosure. That the information sought actually may fall within a FOIA exemption
Normally, then, an agency has discretion to disclose information within a FOIA exemption, unless something independent of FOIA prohibits disclosure.5 See id.; 1 Burt A. Braverman & Frances J. Chetwynd, Information Law § 10-5, at 424 (1985) (“If information falls within the exemption, the agency may nоnetheless disclose as a matter of discretion, unless there is another law that forbids disclosure.“). In this case, however, USDA‘s discretion to release FOIA-exempt information is governed by a USDA regulation entitled “Exemptions and discretionary release“:
Except where disclosure is specifically prohibited by Executive Order, statute, or applicable regulations, an agency [of USDA] may release records exempt from mandatory disclosure under
5 U.S.C. § 552(b) whenever it determines that such disclosure would be in the public interest. Such a record is considered to be in the public interest if the benefit to the public in releasing the document outweighs any harm likely to result from disclosure.
This balancing test is almost exactly the same test used to determine whether the petition fell within FOIA‘s personal privacy exemption in the first place. Under the personal privacy exemption, the agency must balance the privacy interest of the individual against the public interest in disclosure. See Department of Air Force v. Rose, 425 U.S. 352, 372 (1976). The only difference between the two is that balancing under the personal privacy exemption is weighted far more in favor of disclosure than the discretionary release balancing test of the USDA regulation—as evidenced by the “clearly unwarranted” language of the exemption. Therefore, a determination in this case that the petition is subject to FOIA‘s personal privacy exemption necessarily must also be a determinatiоn that USDA should not disclose the petition under its discretionary release regulation.
With that understanding of the legal framework in place, we turn to the issues at hand.
III.
We must first resolve the proper scope of this appeal. At oral argument, we asked whether the District Court considered consolidating the merits of the case with the preliminary injunction hearing under Rule 65. See
That we have the power to reach the merits does not mean necessarily that we should do so in this case. Our case law traditionally cautions agаinst a broad scope of review on appeal of a preliminary injunction: “An appellate court, upon an appeal from an order granting or denying a temporary injunction, will ordinarily not consider the merits of a case further than is necessary to determine whether the trial court abused its discretion.” Shearman v. Missouri Pac. R.R. Co., 250 F.2d 191, 195 (8th Cir.1957) (quoting Pratt v. Stout, 85 F.2d 172, 177 (8th Cir.1936)); see also National Credit Union Admin. Bd. v. Johnson, 133 F.3d 1097, 1101 (8th Cir. 1998) (stating that court does not “pass judgment on the underlying issues” in reviewing district court‘s grant of preliminary injunction); cf. Callaway, 763 F.2d at 1287 n. 6 (describing this as “a rule of orderly judicial administration only“). This is so because the district court‘s findings of fact and conclusions of law on an application for a preliminary injunction are “tentative and provisional, in the sense that different findings ... might be warranted after a trial on the merits.” Independent Fed. of Flight Attendants v. Trans World Airlines, Inc., 655 F.2d 155, 159 (8th Cir.1981); see also University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).
But here we are faced with a purely legal issue on a fixed administrative record,6 namely whether, when we apply
IV.
We now consider the merits of USDA‘s determination that the petition is not subject to FOIA‘s personal privacy exemption—that is, we consider whether the determination was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordanсe with law.”
We need only look as far as the language of the petition itself to determine that USDA‘s determination was not in accordance with law. Besides calling for a referendum on the mandatory checkoff program, those signing the petition all declared their position on the ultimate issue: “We support a voluntary checkoff program.” In so doing, рetitioners all unequivocally declared that they would vote to end the mandatory program and thus return to the voluntary program.
To make public such an unequivocal statement of their position on the referendum effectively would vitiate petitioners’ privacy interest in a secret ballot. As the
Though many people signed the petition forms, each with space for ten signatures, and thus probably realized that a few individuals signing afterwards would be able to see their names, in so doing they did not waive their privacy interests under FOIA. Although an individual‘s expectation of confidentiality is relevant to analysis of the privacy exemption, see 1 Braverman & Chetwynd, supra, § 10-4.2.2, at 416, here the petitioners would have no reason to be concerned that a limited number of like-minded individuals may have seen their names and thus discovered their position on the referendum. After all, they knew the petition forms would be collected and submitted to USDA by the Campaign. The present cоncern is that the petition not become available to the general public, including those opposing a return to the voluntary checkoff program.
This type of privacy interest—one in which individuals seek to keep information from the general public while simultaneously divulging it for limited purposes to others—is not unusual. Of course, FOIA‘s privacy exemption is a prime example: individuals divulge personal information to the government for limited purposes with the expectation that the information will not become available to the general public. Even information that is available to the general public in one form may pose a substantial threat to privacy if disclosed to the general public in an alternative form potentially subject to abuse. See United States Dept. of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989) (holding that “rap sheets” are protected from mandatory FOIA disclosure under exemption 7(c)‘s “unwarranted invasion of personal privacy” standard although information was matter of public record). “[T]he fact that an event is not wholly ‘private’ does not mean that an individual has no interest in limiting disclosure or dissemination of the informatiоn.” Id. at 770 (citation omitted).
Additionally, our conclusion that plaintiffs have a substantial privacy interest in the petition is not diminished by the fact that many individuals may have signed it in their business or entrepreneurial capacities. The Supreme Court has construed the personal privacy exemption broadly as a general exemption that excludes ” ‘those kinds of files the disclosure of which might harm the individual.’ ” United States Dept. of State v. Washington Post Co., 456 U.S. 595, 599 (1982)
FOIA‘s personal privacy exemption contemplates a balancing of the individual‘s privacy interest against the public‘s disclosure interest. See Rose, 425 U.S. at 372. USDA weighed the public interest in an open process, “except to the extent the ultimate ballot is protected,” against the scant privacy interest it found petitioners have in the petition. Appellant‘s App. at 74. Given its meager understanding of the petitioners’ privacy interest, USDA‘s determination that the balance weighed in favor of disclosure is not surprising. The Council‘s description of the public interest in disclosure is more specific; it claims that disclosure is necessary to ensure public oversight of the verification process. The Council‘s description of the public interest is consistent with the principle that “the basic purpose of the Freedom of Information Act is to open agency action to the light of public scrutiny.” Rose, 425 U.S. at 372. Nevertheless, we conclude that the substantial privacy interest in a secret ballot, which both USDA and the Council concede should be protected, overrides whatever public interest there may be in oversight of the verification process. Though it is not important to our decision, we do not mind saying that we think the public interest in such oversight is slender, since the only parties who have any apparent reason to much care whether there is an election and whether the checkoff system stands or falls are the various pork producers represented on one side by the Council and on the other by the Campaign. Given our analysis of the strong privacy interests at stake in this case and that this privacy interest, in fact, stems from the protection the ultimate ballot is due,9 the balancing in this сase can only come out one way—in favor of protecting the privacy of the petitioners. Having determined that the balancing test for application of FOIA‘s personal privacy exemption clearly favors protecting privacy, it necessarily follows that USDA‘s less onerous balancing test applicable to its discretionary-release regulation also must prohibit disclosure of the petition.
Accordingly, we hold that USDA‘s determination that the petition is not subject to FOIA‘s personal privacy exemption cannot be upheld and that USDA, under its own regulations, may nоt release the requested information as a matter of discretion. We therefore remand to the District Court for entry of a permanent injunction prohibiting USDA from releasing the information sought by the Council in its FOIA request.