Pub. Just. Found. v. Farm Serv. Agency, No. 20-01103, 2021 WL 1873186 (N.D. Cal. May 10, 2021) (Alsup, J.)

Pub. Just. Found. v. Farm Serv. Agency, No. 20-01103, 2021 WL 1873186 (N.D. Cal. May 10, 2021) (Alsup, J.)

Re:  Request for records concerning federal loans to farmers

Disposition:  Granting in part and denying in part plaintiffs' motion concerning FOIA withholdings

• Exemption 3:  The court relates that "the cited withholding statute is 7 U.S.C. § 8791 enacted through Section 1619 of the Food, Conservation, and Energy Act of 2008."  "The parties do not dispute that Section 8791 is considered a withholding statute under Exemption 3 and other courts have characterized Section 8791 as such."  "Subsection 2 of Section 8791 prohibits disclosure of certain information gained through farmers' participation in its programs . . . ."  Of note, the provision also contains a clause allowing for "the disclosure of payment information (including payment information and the names and addresses of recipients of payments) under any Department program that is otherwise authorized by law."  The court relates that "FSA seeks to withhold under Section 8791 various documents provided to FSA by farmers seeking to participate in its farm loan program as well as documents created by the FSA that reference information provided by farmers."  First, the court finds that "[t]he fact that FSA alerted farmers to the Privacy Act and FOIA does not amount to blanket consent under Section 8791."  Additionally, the court relates that "Plaintiffs argue that, because loans are payments, any information 'concerning' them must also be 'payment information.'"  "The Court's own review of the legislative history provides no insight into the precise meaning of 'payment information.'"  "No decisions, moreover, specifically analyze the applicability of the term 'payment information' on loans or loan guarantees or whether information steps removed from the payments themselves are properly disclosed as 'payment information.'"  "So this order will apply common sense."  "Names, addresses, amounts, and dates are crucial context to follow taxpayers' money, which seems to be the point of the 'payment information' exception."  "Therefore, the agency must turn over all documents necessary to disclose the names and addresses of all recipients of the loan funds in question as well as the dollar amount and dates paid by the agency to the recipient."  "In addition, any transmittal document accompanying the transfer or check would also be 'payment information.'"  "In addition, 'payment information includes the name and number of the loan and the total dollar amount of the loan.'"  "An acknowledgment of receipt by the recipient would also be 'payment information.'"  "A closer call arises when the payment is earmarked by the agency for a specific purpose."  "Must that limitation be disclosed?"  "This order holds that a specific earmark by the agency is disclosable information about the payment."  "However, the application for the loan by the farmer is a mere request, not information that circumscribes the payment."  "No application document submitted by farmers constitutes payment information."  "If, however, the agency itself limits or circumscribes use of the payment to a specific purpose as specified in the application, then that specific passage in the application is disclosable under Section 8791."  "Finally, where applicants never became recipients of taxpayer money (for instance, when their loan applications were denied), then information related to those applications could in no way constitute 'payment information.'"
   
• Exemption 4:  The court notes that Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019), "did not settle whether information conveyed to the government may be withheld without an assurance of privacy – there, the assurance was undisputed and the Supreme Court expressly declined to further analyze the issue."  "However, Argus Leader did acknowledge [the Court of Appeals for the Ninth Circuit's] stance that Exemption 4 could protect information 'reveal[ed] to the government under the express or implied promise by the government that the information will be kept confidential.'"  "This order therefore acknowledges Argus Leader, but must apply the [Ninth Circuit] standard."  The court "finds that FSA failed to provide an assurance of confidentiality – either express or implied – to loan applicants merely because the application for direct loan assistance and the preferred lender application for guarantee included a disclosure that referenced the Privacy Act, including FOIA."  "It seems quite the opposite: a warning that under some circumstances, information will be disclosed."  The court relates that "[i]n arguing that there was an implied assurance of confidentiality under Exemption 4, FSA recommends the approach [regarding implied confidentiality] to Exemption 7(D) . . . ."  "This order declines FSA's suggestion to import [Exemption 7(D)'s] consideration of 'general circumstances' that imply confidentiality in the law enforcement context to enlarge Exemption 4 in the commercial context."  "Exemption 4 does not permit FSA to withhold loan application information or payment information related to loans because, here, no confidentiality assurance was provided."  "So, the second factor in the Argus Leader analysis – that the information is both customarily and actually treated as private by its owner – need not be decided."
   
• Exemption 6:  The court relates that "FSA withheld certain documents on the basis of multiple grounds, including Exemption 6, such as FSA's payment calculator, loan application packages, conditional commitments, guaranteed obligation requests, etc., which contain information on loan amounts, loan purposes, and personally identifiable information."  "The payment calculator includes 'principal amount, interest rate, term in months, term in quarters, monthly payment, and quarterly payment' . . . ."  "Information properly withheld under Exemption 3, as discussed above, does not require further analysis under Exemption 6 so this Exemption 6 analysis only pertains to the withholding of payment information and other information falling outside of Section 8791's scope."  The court finds that "[g]iven the 'broad, rather than narrow, meaning' of 'similar files,' this order finds that loan applications and information referencing those applications are covered by reference in Exemption 6 to 'similar files' because they contain financial and other sensitive personal information."  The court then finds that "loan information gives a mere peek into farmers' finances but does not bear as direct a relationship to the value of their land or their financial situation."  "The privacy interest in information related to the loan program's administration is more than de minimis but not particularly weighty in our case."  The court finds that "there is a substantially weighty public interest in administration of FSA programs that disburse taxpayer dollars."  "The public cannot understand the loan program without knowing loan payment amounts, names and addresses of recipients, and earmarks for those federal funds."  "The public interest in payment information, therefore, outweighs farmers' privacy interest in that information and must be disclosed."  "On the other hand, information that reveals sensitive personally-identifiable information (such as social security numbers, bank account information, personal assets, etc.) should be withheld because this information would make individuals vulnerable to identity theft and do not illuminate FSA's administration of the farm loan program."