Multi Ag Media LLC v. Department of Agriculture

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 2007 Decided February 15, 2008

No. 06-5231

MULTI AG MEDIA LLC,

APPELLANT

v.

DEPARTMENT OF AGRICULTURE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 05cv01908)

James D. Miller argued the cause for appellant. With him

on the briefs was Lance V. Oliver.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee. On the briefs were Jeffrey A. Taylor, U.S. Attorney,

and R. Craig Lawrence and Megan L. Rose, Assistant U.S.

Attorneys.

Before: SENTELLE, Chief Judge, and TATEL and

GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

2

Dissenting opinion filed by Chief Judge SENTELLE.

GRIFFITH, Circuit Judge: Under the Freedom of

Information Act (“FOIA”), “an agency must disclose all

records requested by ‘any person,’ 5 U.S.C. § 552(a)(3),

unless the information sought falls within a specific statutory

exemption. 5 U.S.C. § 552(d).” Nat’l Ass’n of Retired Fed.

Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989).

Multi Ag Media LLC (“Multi Ag”), a commercial vendor of

agricultural data, has made FOIA requests for various records

of farm data maintained by the United States Department of

Agriculture (“USDA”). Invoking FOIA Exemption 6, which

protects individual privacy interests in government records,

USDA has withheld some of the requested information.

Because there is a significant public interest in disclosure that

outweighs the personal privacy interest USDA seeks to

protect, we reverse the district court’s grant of summary

judgment in favor of USDA.

I.

Within USDA, the Farm Service Agency (“FSA”) is the

principal agency charged with promoting a stable and

abundant American food supply. FSA meets this

responsibility, in part, by offering subsidies and other

financial assistance to farms. To qualify for FSA’s benefits,

farmers must submit information about their operations to a

local FSA office. The information includes data on each

farm’s agricultural practices, acreage, soil, crops, livestock,

and geographical location.

On July 13, 2005, Multi Ag submitted a FOIA request to

USDA seeking release of thirteen databases maintained by

FSA relevant to its agricultural subsidy and benefit programs.

FSA processed the request and released some information, but

3

withheld other information on the ground that it contained

private information about individual farmers protected by

FOIA Exemption 6. Pressing its claim for the withheld

information, Multi Ag exhausted its administrative appeals

within USDA without success, then filed suit in the district

court. The district court sided with Multi Ag in ordering the

disclosure of requested information in two of the files, but

also partly granted USDA’s motion for summary judgment

and allowed the agency to withhold information in two other

files, the Compliance File and the Geographic Information

System (“GIS”) database. Multi AG Media LLC v. USDA, No.

05-01908, 2006 WL 2320941, at *5–7 (D.D.C. 2006). Multi

Ag appeals that decision.1 The Compliance File is a massive

database with information on crops and field acreage for

hundreds of thousands of individual farms across the country.

It contains crop data that agricultural producers report to FSA

to establish their eligibility for the government’s subsidy and

benefit programs. In response to Multi Ag’s FOIA request,

USDA withheld information on irrigation practices, farm

acreage, and the number and width of rows of tobacco and

cotton. The district court concluded that this information was

protected by FOIA Exemption 6 because its disclosure

“would reveal financial information associated with an

individual . . . without shedding any light on the government’s

activities.” Id. at *5.

The GIS database provides farm data on a digitized aerial

photograph. USDA uses GIS as part of a system that

combines Global Positioning System technology and aerial

photographs to calculate acreage, identify crop types, and

1

USDA filed a cross-appeal challenging the district court’s order

that it release the withheld information from the Livestock

Assistance and Livestock Compensation program files, but has

since abandoned that appeal.

4

create maps of farmland. The GIS database helps FSA verify

farm features and thereby monitor compliance with

regulations governing farm benefits. It also provides more

specific information regarding the location of farms than do

FSA’s other files, which provide only general state and

county location information. Declaration of Robin Wieland,

¶ 61 (February 15, 2006) (“Wieland Declaration”) (stating

that the GIS database provides a “specific geographic

reference”). USDA released much of the GIS database to

Multi Ag, but withheld information on farm, tract, and

boundary identification, calculated acreage, and

characteristics of the land such as whether it is erodible,

barren, or has water or perennial snow cover. The district

court concluded that because this information reveals details

of land ownership, its disclosure would compromise a

substantial privacy interest, but that disclosure would serve no

public interest because the information would not “reveal

anything about what the government is up to.” Multi AG

Media LLC, 2006 WL 2320941, at *6–7.

USDA argues on appeal that disclosure of the

Compliance File and the GIS database would compromise

farmers’ privacy interests and that these files are properly

withheld under FOIA Exemption 6. Multi Ag contends that

disclosure of the files would not reveal anything personal

about individual farmers and would advance a significant

public interest by shedding light on USDA’s administration of

its subsidy and benefit programs.

II.

We review the district court’s grant of summary

judgment de novo. Judicial Watch, Inc. v. FDA, 449 F.3d 141,

145 (D.C. Cir. 2006). “In the FOIA context this requires that

we ascertain whether the agency has sustained its burden of

5

demonstrating the documents requested are . . . exempt from

disclosure under the FOIA.” Gallant v. NLRB, 26 F.3d 168,

171 (D.C. Cir. 1994); see also 5 U.S.C. § 552(a)(4)(B)

(stating that “the burden is on the agency to sustain its

action”). An agency may sustain its burden by means of

affidavits, but only “if they contain reasonable specificity of

detail rather than merely conclusory statements, and if they

are not called into question by contradictory evidence in the

record or by evidence of agency bad faith.” Gallant, 26 F.3d

at 171 (quoting Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir.

1980)).

FOIA’s basic purpose reflects “ ‘a general philosophy of

full agency disclosure unless information is exempted under

clearly delineated statutory language.’ ” Dep’t of Air Force v.

Rose, 425 U.S. 352, 360–61 (1976) (quoting S. Rep. 89-813,

at 3 (1965)). “At all times, courts must bear in mind that

FOIA mandates a ‘strong presumption in favor of

disclosure.’ ” Nat’l Ass’n of Homebuilders v. Norton, 309

F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v.

Ray, 502 U.S. 164, 173 (1991)). FOIA’s exemptions “do not

obscure the basic policy that disclosure, not secrecy, is the

dominant objective of the Act.” Rose, 425 U.S. at 361. For

that reason, they “must be narrowly construed.” Id. And there

is nothing about invoking Exemption 6 that lightens the

agency’s burden. In fact, “under Exemption 6, the

presumption in favor of disclosure is as strong as can be

found anywhere in the Act.” Norton, 309 F.3d at 32 (citing

Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 690

F.2d 252, 261 (D.C. Cir. 1982)).

III.

FOIA Exemption 6 allows an agency to withhold

“personnel and medical files and similar files the disclosure of

6

which would constitute a clearly unwarranted invasion of

personal privacy.” 5 U.S.C. § 552(b)(6). We must pursue two

lines of inquiry to determine whether USDA has sustained its

burden to show that the information Multi Ag seeks is

properly withheld under this exemption. First, we must

determine whether the Compliance File and the GIS database

are personnel, medical, or “similar” files covered by

Exemption 6. If so, we must then determine whether their

disclosure “would constitute a clearly unwarranted invasion

of personal privacy.” Id. This second inquiry requires us to

balance the privacy interest that would be compromised by

disclosure against any public interest in the requested

information. U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 497

(1994); Nat’l Ass’n of Retired Fed. Employees v. Horner, 879

F.2d 873, 874 (D.C. Cir. 1989).

“Similar Files”

The district court concluded that the Compliance File and

the GIS database are “similar files” within Exemption 6, and

even though the parties on appeal do not contest this point, we

think it merits some explanation why business records such as

these are covered by Exemption 6. In National Parks and

Conservation Ass’n v. Kleppe, we reversed the district court’s

ruling that FOIA Exemption 4, which protects “trade secrets

and commercial or financial information obtained from a

person [that is] privileged or confidential,” 5 U.S.C.

§ 552(b)(4), could be used to lawfully withhold business

records on grounds of individual privacy. 547 F.2d 673, 686

(D.C. Cir. 1976). We explained that personal privacy interests

are not “a relevant concern under the fourth exemption,” but

are under Exemption 6. Id. at 685–86. Although Exemption 6

“has not been extended to protect the privacy interests of

businesses or corporations,” id. at 685 n.44, we pointed out

that “personal or ‘personalized’ financial information”

7

contained in the records of “individually-owned businesses”

that “necessarily reveal[s] at least a portion of the owner’s

personal finances,” may well qualify for protection under

Exemption 6. Id. at 685.

What we said in Kleppe about Exemption 6 was correct

and we apply it here. In United States Department of State v.

Washington Post Co., the Supreme Court explained that

“Congress’ primary purpose in enacting Exemption 6 was to

protect individuals from the injury and embarrassment that

can result from the unnecessary disclosure of personal

information.” 456 U.S. 595, 599 (1982) (emphases added).

The Court held that Exemption 6 was not limited “to a narrow

class of files containing only a discrete kind of personal

information,” but was “intended to cover detailed

Government records on an individual which can be identified

as applying to that individual.” Id. at 602. As we explained in

Horner, “[t]he Supreme Court has made clear that Exemption

6 is designed to protect personal information in public

records.” 879 F.2d at 875. Were we to deem an individual’s

financial information unprotected by Exemption 6 simply

because it is found in a business record, a cardinal purpose of

Exemption 6 would not be served. It is clear that businesses

themselves do not have protected privacy interests under

Exemption 6, but where their records reveal financial

information easily traceable to an individual, disclosing those

records jeopardizes a personal privacy interest that Exemption

6 protects. We thus hold that Exemption 6 applies to financial

information in business records when the business is

individually owned or closely held, and “the records would

necessarily reveal at least a portion of the owner’s personal

finances.” Kleppe, 547 F.2d at 685.

In our case, to determine whether the Compliance File

and the GIS database are “similar files” covered by

8

Exemption 6, we must consider whether the farms are

individually owned or closely held, and whether disclosure of

the files would reveal information about individual farmers’

personal finances. In its affidavits, USDA asserts that

approximately ninety-eight percent of the farms represented

in the files are “family owned,” meaning they are closely-held

businesses or “small family farms” in which “the financial

makeup of the businesses mirrors the financial situation of the

individual family members.” Wieland Declaration, ¶¶ 16, 28.

USDA explains that the requested files contain various data

fields such as state code, county code, farm number, and tract

number, which are used together to trace the files to “a

specific agricultural producer or landowner, who are [sic]

almost exclusively individual producers and closely held

businesses.” Id. ¶¶ 50, 60. In the affidavit of its president,

Multi Ag responds that the data in the Compliance File and

the GIS database are not about individuals, but are “all

generic or demographic.” Affidavit of John L. Montandon,

¶ 18 (Mar. 3, 2006) (Montandon Affidavit). Multi Ag further

argues that many farms have multiple owners and operators

and that this “wide variety of ownership and operating

vehicles . . . completely negates any inference about the

personal finances of any individual.” Id. ¶ 19, 21.

Although USDA does not offer evidence of specific

farms owned by named individuals whose privacy interests in

their personal financial information would be compromised

by disclosure, it nonetheless establishes that a significant

portion of the farms described in the Compliance File and in

the GIS database are individually owned or closely held.

Information about the crops on these farms “would

necessarily reveal at least a portion of the owner’s personal

finances.” Kleppe, 547 F.2d at 685. Multi Ag’s affidavits have

not controverted USDA’s affidavits on this point. See Gallant,

26 F.3d at 171. Multi Ag has shown that because farm

9

ownership is complex, the crop information that is revealed

may be less invasive of individual privacy than USDA claims,

but Multi Ag has not shown that all farms are owned in such a

manner that disclosing their assets will in no instances allow

the public to trace the information to individual farmers. Multi

Ag in fact concedes “that many farms are owned by a single

family.” Id. ¶ 24. It counters that these family owned farms

are “often large, substantial businesses,” Id., but disclosure of

an individual’s financial information is no less protected

under Exemption 6 simply because his assets are significant.

The affidavits do not establish the number of farms for which

the information would be easily traceable to individuals, but

they confirm that this is the case for at least a significant

portion of them, and this showing is sufficient for us to

conclude that the files are covered by Exemption 6.

Balancing Privacy and Public Interests

The balancing analysis for FOIA Exemption 6 requires

that we first determine whether disclosure of the files “would

compromise a substantial, as opposed to de minimis, privacy

interest,” because “[i]f no significant privacy interest is

implicated . . . FOIA demands disclosure.” Nat’l Ass’n of

Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C.

Cir. 1989). Our use of the word substantial in this context

means less than it might seem. A substantial privacy interest

is anything greater than a de minimis privacy interest. Id.

Finding a substantial privacy interest does not conclude the

inquiry; it only moves it along to the point where we can

“address the question whether the public interest in disclosure

outweighs the individual privacy concerns.” Nat’l Ass’n of

Homebuilders v. Norton, 309 F.3d 26, 35 (D.C. Cir. 2002). In

other words, a privacy interest may be substantial—more than

de minimis—and yet be insufficient to overcome the public

interest in disclosure.

10

The parties dispute whether disclosure of the Compliance

File and the GIS database would reveal private personal

financial information. USDA argues that disclosing the

withheld information would reveal assets that, for family

owned farms, would invade their owners’ privacy interests.

For example, as USDA explains, the field and crop

information in the Compliance File “bear[] directly on the

value of the producer’s land and the wealth of the producer in

general.” Wieland Declaration ¶ 52a. Disclosure of a farm’s

reported acreage and data on the number and width of rows of

tobacco “may provide a snapshot” of a farm’s financial

circumstances and “shed[] light on the financial condition of

the farmer.” Id. ¶ 52b–h. Disclosure of the GIS database only

heightens these privacy concerns because its information is

set forth in photographs or maps.

By contrast, Multi Ag contends that release of the

Compliance File and the GIS database would not “shed light

on the financial condition of any particular farm, because

there are too many very common economic variables,” such

as “market price variability, weather variability, technological

changes, and disease impacts” that affect farm and crop

values. Montandon Affidavit, ¶ 19; Affidavit of William E.

Nganje, ¶ 3 (Mar. 3, 2006) (“Nganje Affidavit”). Multi Ag

argues that “it is not accurate to equate information about

crops and acreage directly with financial information of

farms.” Nganje Affidavit, ¶ 3. It also argues, as noted above,

that the complexity of farm ownership negates any inference

that might be drawn from the crop information about the

finances of individual farmers.

Although Multi Ag has shown that economic variables

weaken the correlation between farm assets and a farmer’s

financial situation, we conclude that the privacy interest that

11

would be compromised by disclosure of the files is greater

than de minimis. See Horner, 879 F.2d at 874; Norton, 309

F.3d. at 35–37 (finding that the government had “established

only the speculative potential of a privacy invasion without

any degree of likelihood” but nonetheless “[v]iewing the

asserted privacy interests as involving more than minimal

invasions of privacy”). Telling the public how many crops are

on how much land or letting the public look at photographs of

farmland with accompanying data will in some cases allow

for an inference to be drawn about the financial situation of an

individual farmer. Because USDA has not made a showing of

how often this may be the case, we are not persuaded that the

privacy interest that may exist is particularly strong.

Nonetheless, our standard at this stage is not very demanding,

so we are willing to engage in the balancing inquiry by

concluding that disclosure of the information would constitute

a “more than minimal invasion[] of personal privacy.”

Norton, 309 F.3d at 35.

Having found a greater than de minimis privacy interest

in the requested information, “we must weigh that privacy

interest in non-disclosure against the public interest in the

release of the records in order to determine whether, on

balance, disclosure would work a clearly unwarranted

invasion of personal privacy.” Horner, 879 F.2d at 874.

Because the “basic purpose of [FOIA] . . . focuses on the

citizens’ right to be informed about ‘what their government is

up to,’ ” information that “sheds light on an agency’s

performance of its statutory duties” is in the public interest.2

2

Although Multi Ag may not want the information to check up on

the government itself, the use for which the requestor seeks the

information is not relevant for purposes of determining the public

interest under FOIA Exemption 6. Horner, 879 F.2d at 875 (“The

Act’s sole concern is with what must be made public or not made

public.”) (quoting U.S. Dep’t of Justice v. Reporters Comm. for

12

U.S. Dep’t of Justice v. Reporters Comm. for Freedom of

Press, 489 U.S. 749, 773 (1989); see also U.S. Dep’t of Def.

v. FLRA, 510 U.S. 487, 495 (1994) (stating that the relevant

public interest under FOIA is “the extent to which disclosure

[of requested files] would serve the ‘core purpose of the

FOIA,’ which is ‘contribut[ing] significantly to public

understanding of the operations or activities of the

government’ ”) (alterations in original) (quoting Reporters

Comm., 489 U.S. at 775).

USDA argues that because the Compliance File does not

include payment information linking the farm data to specific

subsidies, its disclosure would involve no public interest. The

agency explains that some of the crops listed in the

Compliance File are not tied to a subsidy program at all, but

are merely reported because the farmer has an ownership

interest in them and is required to submit information on all

such crops. In response, Multi Ag argues that eligibility for

farm benefits requires submission of all the data that is in the

Compliance File. Multi Ag points out that USDA

acknowledges that it collects only that information “necessary

for acceptance into one or more of FSA’s programs.” Wieland

Declaration, ¶ 28. If the information contained in the

Compliance File is required of all farmers receiving benefits

through FSA’s programs, so the argument goes, then the

public has an interest in knowing whether farmers who

receive subsidies have complied by submitting the necessary

information.

The district court agreed with USDA and found a

“drastically decreas[ed]” public interest in disclosure of the

Compliance File because it does not include payment

Freedom of Press, 489 U.S. 749, 772 (1989) (internal quotation

marks omitted)).

13

information connecting its data to specific subsidies. Multi

AG Media LLC, 2006 WL 2320941, at *5. The district court’s

focus is too narrow and misses the significant public interest

we see in disclosure. Although the Compliance File may not

directly say anything about a particular subsidy program, it

says everything about whether a particular farm is eligible to

participate in the benefit programs in the first place and thus

“sheds light on the agency’s performance of its statutory

duties.” Reporters Comm., 489 U.S. at 773. FSA uses this

information in making subsidy and benefit determinations,

and the public has a significant interest in being able to look

at the information the agency had before it when making these

determinations so that the public can monitor whether the

agency is correctly doing its job. For example, the

Compliance File includes both acreage amounts reported by

the farm operators and acreage amounts determined by FSA

after conducting its own spot checks. See id. ¶ 52g–h. Without

the data from the Compliance File, the public would have

great difficulty verifying that FSA is properly conducting its

spot checks and properly using the data obtained from the

spot checks.

We are likewise persuaded that there is a significant

public interest in disclosure of the GIS database. USDA

argues that although the information it withheld from the

database may say much about the farm, it says nothing about

how the agency administers its programs. But USDA does not

dispute that it uses the GIS database to monitor program

compliance. With the information from the database, the

public can more easily determine whether USDA is catching

cheaters and lawfully administering its subsidy and benefit

programs. As is the case with disclosure of the Compliance

File, the information in the GIS database will enable the

public to more easily monitor whether the agency is carrying

out its statutory duty. See Norton, 309 F.3d at 35–37 (finding

14

a strong public interest in disclosure of data the Secretary of

the Interior used to make critical habitat designations so that

the public could know if the agency was lawfully

administering its program).

Having found both a greater than de minimis privacy

interest and a significant public interest in disclosure of the

Compliance File and the GIS database, we must now balance

the two to determine whether the agency has met its burden to

show that “the substantial interest in personal privacy is not

outweighed by the public interest in disclosure.” Sims v. CIA,

642 F.2d 562, 573 (D.C. Cir. 1980). “For unless the invasion

of privacy is ‘clearly unwarranted,’ the public interest in

disclosure must prevail,” and the agency may not withhold the

files under Exemption 6. U.S. Dep’t of State v. Ray, 502 U.S.

164, 177 (1991).

We are mindful that Congress enacted FOIA “to pierce

the veil of administrative secrecy and to open agency action to

the light of public scrutiny.” Dep’t of Air Force v. Rose, 425

U.S. 352, 361 (1976). FOIA is intended “to ensure an

informed citizenry, vital to the functioning of a democratic

society, needed to check against corruption and to hold the

governors accountable to the governed.” NLRB v. Robbins

Tire & Rubber Co., 437 U.S. 214, 242 (1978). As the

Supreme Court has explained, the purpose and plain language

of the Act mandate a “strong presumption in favor of

disclosure.” Ray, 502 U.S. at 173.

That presumption is of special force here because the

public has a particular and significant interest in the

information Multi Ag seeks. USDA uses this information in

the administration of its subsidy and benefit programs, and

there is a special need for public scrutiny of agency action

that distributes extensive amounts of public funds in the form

15

of subsidies and other financial benefits. Brock v. Pierce

County, 476 U.S. 253, 262 (1986) (“[T]he protection of the

public fisc is a matter that is of interest to every citizen.”);

News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173,

1192 (11th Cir. 2007) (“easily” concluding that there is a

substantial public interest under FOIA Exemption 6 in

“learning whether FEMA is a good steward of (sometimes

several billions of) taxpayer dollars in the wake of natural and

other disasters”); United States v. Suarez, 880 F.2d 626, 630

(2d Cir. 1989) (“[T]here is an obvious legitimate public

interest in how taxpayers’ money is being spent, particularly

when the amount is large.”). Congress has recognized the

importance of ensuring the responsible use of these funds. For

example, it created the Office of Inspector General (“OIG”)

within USDA to “prevent and detect fraud and abuse” in the

“programs and operations” of the department. 5 U.S.C. App.

3 § 2; see also 7 C.F.R. § 2610.1(b) (“The mission of OIG

is . . . to conduct, supervise, and coordinate audits and

investigations of USDA programs and operations to

determine efficiency and effectiveness; to prevent and detect

fraud and abuse in such programs and operations; and to keep

the Secretary and the Congress informed of problems and

deficiencies relative to the programs and operations.”).

In sum, given USDA’s rather tepid showing that release

of the files would allow the public to draw inferences about

some farmers’ financial circumstances, the interest in data

that would allow the public to more easily monitor USDA’s

administration of its subsidy and benefit programs, and

FOIA’s presumption in favor of disclosure, we conclude that

the public interest in disclosure of the Compliance file and

GIS database outweighs the personal privacy interest.

Accordingly, release of these files would not “constitute a

clearly unwarranted invasion of personal privacy,” 5 U.S.C.

16

§ 552(b)(6), and USDA’s reliance on Exemption 6 in

withholding information from the files was improper.

IV.

We reverse the district court’s grant of summary

judgment with respect to the Compliance File and the GIS

database and remand the case to the district court for further

proceedings consistent with this opinion.

So ordered.

SENTELLE, Chief Judge, dissenting: Although I am largely

in agreement with the majority’s analysis, that analysis leads me

to a different conclusion, and I therefore respectfully dissent.

The majority is clearly correct that FOIA Exemption 6, 5

U.S.C. § 552(b)(6), permits the withholding of the Compliance

File and Geographic Information System (“GIS”) database if

such disclosure “would constitute a clearly unwarranted

invasion of personal privacy.” Id.; Maj. Op. at 5. The majority

is further correct in acknowledging that “‘Congress’ primary

purpose in enacting Exemption 6 was to protect individuals from

the injury and embarrassment that can result from the

unnecessary disclosure of personal information.’” Maj. Op. at

6 (quoting U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595,

599 (1982) (emphasis the majority’s)). I remain in concurrence

with the majority as it acknowledges, obedient to Washington

Post, that the protection of Exemption 6 extends to cover

“‘detailed Government records on an individual which can be

identified as applying to that individual.’” Maj. Op. at 7

(quoting Wash. Post, 456 U.S. at 602), and when it recognizes

that “[w]ere we to deem an individual’s financial interest

unprotected by Exemption 6 simply because it is found in a

business record, a cardinal purpose of Exemption 6 would not be

served.” Maj. Op. at 7 (citing Nat’l Ass’n of Retired Fed.

Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989)). As

the majority further recognizes, “approximately ninety-eight

percent of the farms represented in the files are ‘family-

owned,’” so that “the financial makeup of the businesses mirrors

the financial situation of the individual family members.” Maj.

Op. at 7 (internal quotation marks omitted). The majority then

reaches the inescapable conclusion that at least as to a

significant portion of the farms described in the database, the

crop information would be easily traceable to individuals.

2

I join the majority’s further reasoning when it concludes

that the disclosure of data bearing directly on the value of the

producer’s land and therefore, upon the wealth and income of

the producer compromises the privacy interest of the farmer and

“that the privacy interest that would be compromised by

disclosure of the files is greater than de minimis.” Maj. Op. at

10. It is only when the majority weighs the privacy interest in

nondisclosure against the public interest in the disclosure of the

records that I find myself in disagreement. Instead, I agree with

the district court that the public interest involved in the

disclosure of these files sits lightly upon the scales of balance.

As the district court noted, and the majority acknowledges,

there is a “‘drastically decreas[ed]’ public interest in disclosure

of the Compliance File because it does not include payment

information connecting its data to specific subsidies.” Maj. Op.

at 12 (quoting Multi AG Media LLC, 2006 WL 2320941, at *5).

As the district court further noted, given the volume of other

information already disclosed from other databases, and the

salient fact that the files in dispute contain no information about

USDA subsidies, “[d]isclosing the withheld information in the

Compliance file would merely reveal information about private

citizens, without shedding any light on the government’s

activities.” 2006 WL 2320941, at *5. Like the district court,

and not unlike the majority, I find Multi Ag’s argument that

there is no invasion (or no more than a minimal invasion) of the

privacy interests of the farmers most unconvincing. That

argument depends upon the proposition that there is much more

financial information in the universe of facts about the

individual farmers that will not be disclosed than there is

information being disclosed. To me this makes no more sense

than saying it would be acceptable for the government to

disclose the contents of tax returns because they do not provide

information concerning the holdings or expectations of the

taxpayer and therefore would constitute no invasion of privacy.

3

That proposition makes so little sense that there are specific

regulations and statutes protecting the privacy of the taxpayer.

See, e.g., 26 U.S.C. § 7213 (making it a felony for federal or

state employees willfully to disclose tax return information); 18

U.S.C. § 1905 (imposing criminal penalties on federal

employees disclosing, inter alia, the “amount or source of any

income, profits, losses, or expenditures of any person, firm,

partnership, corporation, or association”). It seems to be well

accepted that it would be unfair for the government to compel

taxpayers to disclose information and then allow that

information to be spread at large without regard to the privacy

of the taxpayer. Today’s ruling puts the farmers in the same

circumstances we would not impose upon other citizens and

taxpayers. I therefore would affirm the conclusion and

judgment of the district court that the privacy interest protected

by Exemption 6 would outweigh the light public interest in

disclosure.

Again, although I join in most of the reasoning of the

majority, I dissent from its conclusion.