                IN THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

____________________________________
                                      )
MARY-LOUISE ZANONI,                   )
                                      )
           Plaintiff,                 )   Civil Action No. 08-939
                                      )   (EGS)
                                      )
      v.                              )
                                      )
UNITED STATES DEPARTMENT OF           )
AGRICULTURE,                          )
                                      )
           Defendant.                 )
                                      )
                                      )

                        MEMORANDUM OPINION

     Plaintiff Mary-Louise Zanoni brings this action against

Defendant United States Department of Agriculture (“USDA”), under

the Privacy Act of 1974, 5 U.S.C. § 522a, and the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 522, seeking to (1) enjoin

the USDA from converting the National Animal Identification

System (“NAIS”) and the National Premises Information Repository

(“NPIR”) into a Privacy Act system, and (2) to compel the USDA to

comply with her FOIA request.   Plaintiff and defendant filed

cross-motions for summary judgment.    After considering the

motions, responses and replies thereto, the applicable law, and

the entire record, this Court DENIES plaintiff’s motion for




                                 1
summary judgment and GRANTS defendant’s cross-motion for jummary

judgment.

I.   BACKGROUND

     The USDA, through its Animal Plant Health Inspection Service

("APHIS"), maintains the NPIR and NAIS databases.   The databases

serve as a centralized registry system used to quickly identify

and notify producers about animal disease outbreaks in their

area.   The information in the NAIS database includes a unique

identification number for each animal and premises, and the name,

phone number, and address of the producer.   The NPIR has the same

contact information for the producer and also includes the name

of the premises, and the generic type of operation (i.e. feedlot,

farm, veterinary clinic).   The gathering of information for these

databases is conducted by the federal government with cooperation

from the states.   Currently, states have autonomy over the

registration process for premises located within their borders.

As such, states may have their own criteria for premises

registration, including giving premises IDs to producers who

participate in state disease control/eradication programs (i.e.

vaccinations, testing).   After collecting all of the information

needed for their own databases, states submit the producer

contact information, premises ID number and location into the

Standardized Premises Registration System (“SPRS”) and the NPIR.

While many producers register in the NPIR through state programs,


                                 2
others register in the database through federally regulated

disease control and eradication programs.   For those producers

who do not participate in either of the above mentioned programs,

registration in the NPIR is voluntary.

     There are opt-out options available for producers who do not

want to remain registered in the NPIR.    The producer is supposed

to receive a notice in the mail when his or her information is

transferred from the state to the NPIR.   This notice informs the

producer of the voluntary nature of the program and allows the

producer to contact the state if he or she wants to be removed

from the NAIS or NPIR.   At this point, the producer can either

have their status in the NAIS or NPIR database changed to

inactive or, if the producer does not participate in any disease

prevention programs like those mentioned above, he or she may

have all of the information about their premises deleted from the

database.   Alternatively, if the producer is involved in disease

prevention programs, he or she has the option of having all of

his or her personal identification information deleted from the

database, leaving only the premises ID and address for disease

tracking purposes.   The APHIS processes opt-out requests for the

NPIR, and states are responsible for deleting the requesting

producer’s information from the state databases.

     Plaintiff is a journalist who planned to write a series of

articles from July 2008 to July 2009 about the NPIR, asserting


                                 3
that though the USDA claims the database is voluntary, many

producers are registered without their knowledge, permission,

and/or despite their opposition to registration.      On October 24,

2007, plaintiff submitted a request to the APHIS FOIA officer

asking for computer disks with the following information:        (1)

all records of registered premises contained in the NPIR,

including the name of the entity, name of contact person,

address, telephone number, alternate telephone number, and type

of operation run on the premises; (2) the number of requests to

be removed from database(s) that APHIS has received from

owners/managers of registered premises; and (3) the number of

premises that actually have been removed from the database.

     The APHIS FOIA officer processed the request through to the

Office of Veterinary Services (“OVS”), which, among other things,

maintains NAIS.   On November 16, 2007, the OVS supplied the FOIA

officer with between 14,000 and 17,000 pages of information in

response to plaintiff’s request.       Shortly thereafter, on December

13, 2007, the USDA denied her request and informed plaintiff that

the requested records were exempt from disclosure pursuant to

FOIA Exemption (6), which provides that FOIA disclosure

requirements do not apply to “personnel and medical files and

similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy.”      5 U.S.C. § 552

(b)(6).


                                   4
     Plaintiff appealed the USDA’s determination on December 21,

2007.       As a result of her appeal, in January and February of

2008, the FOIA officer inquired again with the OVS to see if

there were additional responsive records that could be disclosed

with respect to items (2) and (3) of plaintiff’s request.       During

this inquiry, the FOIA officer discovered that the OVS created a

separate database for tracking producer removal requests.       This

database included, among other things, information about the

submitted request such as the data indicated for deletion, the

reason for the deletion (i.e., opt-out program or duplication),

whether it was removed from the NPIR, and, if so, the date of the

removal.       The FOIA officer requested a copy of this database and

received information in the aforementioned areas for November

2006 to October 2007.       The USDA determined that the other fields

were not responsive to items (2) and (3) of plaintiff’s request.

     On April 30, 2008, APHIS printed a notice in the Federal

Register regarding its proposal for the conversion of four NAIS

databases into a system of records under the Privacy Act , which

would be effective on June 9, 2008.1      Plaintiff filed a complaint

in this Court on June 2, 2008: seeking (1) to reverse the USDA’s

determination that disclosure of the information requested by


        1
      The Privacy Act defines a “system of records” as “A group
of any records under the control of any agency from which
information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular
assigned to that individual.” 5 U.S.C. § 522a(A)(5).

                                     5
plaintiff was not required under FOIA; (2) to preliminarily

enjoin the USDA from converting the NPIR and NAIS databases into

a Privacy Act system; (3) to order the USDA to surrender to the

Court the documents relevant to plaintiff’s FOIA request; (4) a

declaration that § 1619 of the Food, Conservation and Energy Act

(“FCEA”) of 2008 is inapplicable to plaintiff’s FOIA request; and

(5) a declaration that the FCEA, as enacted, violates the

Presentment Clause of the United States Constitution and the

separation of powers doctrine.2   On June 4, 2008, by agreement of

the parties, this Court ordered defendant to print another notice

in the Federal Register postponing the conversion of the NPIR

into a Privacy Act system until further notice from the Court, to

preserve the NPIR documents responsive to plaintiff’s FOIA

request, and to access the NPIR database only when necessary to

track or identify a diseased animal.

     On June 19, 2008, in response to the Court’s Order,

defendant sent plaintiff the database information that the FOIA

officer received pursuant to his inquiry in January and February

of 2008.   The USDA provided information from November 30, 2006 to

October 9, 2007, which included the names of producers who were

removed from the NPIR database but did not include dates of

removal.   The USDA informed plaintiff on June 30, 2008 that


     2
      The parties refer to FCEA by its public law designation,
§ 1619, but this provision has now been enacted and will be
referred to in this opinion as § 8791. See 7 U.S.C. § 8791.

                                  6
columns C through Q of the NPIR, though responsive to plaintiff’s

claim, were exempt from disclosure under FOIA Exemption (3)

because § 1619 of the FCEA of 2008 prohibited disclosure.3

Additionally, the USDA informed plaintiff that other information

relevant to her FOIA request, specifically columns A, C through

L, and N through Q of the NPIR database, were also exempt from

disclosure because FOIA Exemption (6) allows an agency to withold

information when disclosure would be an unwarranted invasion of

the personal privacy of the producers listed in the database.

     Zanoni filed a motion for summary judgment in this court on

July 2, 2008, seeking to enjoin the USDA from converting the NAIS

and the NPIR into a Privacy Act system; and (2) seeking to compel

the USDA to comply with her FOIA requests for “[a]ll records of

registered premises contained in the NPIR . . . including the

name of entity, name of contact person, address, telephone

number, operation type and alternative telephone number.”    Compl.

at 35.   Defendant filed a cross-motion for summary judgment on

July 31, 2008 seeking to dismiss plaintiff’s Privacy Act claim

for lack of standing and seeking a ruling that FOIA Exemptions



     3
      FOIA Exemption (3) provides that disclosure requirements do
not apply when the information requested is “specifically
exempted from disclosure by statute . . . provided that such
statute (A) requires that matters be withheld from the public in
such a manner as to leave no discretion on the issue, or (B)
establishes particular criteria for withholding or refers to
particular types of matters to be withheld.” 5 U.S.C.
§ 522(b)(3).

                                 7
(3) and (6) permit the USDA to withhold the requested

information.

II.   DISCUSSION

      A.   Standard of Review

      Summary judgment should be granted only if the moving party

has shown that there are no genuine issues of material fact and

that the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991

(D.C. Cir. 2002).   In determining whether a genuine issue of

material fact exists, the Court must view all facts in the light

most favorable to the non-moving party.   See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).     The

non-moving party’s opposition, however, must consist of more than

mere unsupported allegations or denials and must be supported by

affidavits or other competent evidence setting forth specific

facts showing that there is a genuine issue for trial.   Fed. R.

Civ. P. 56(e); see Celotex Corp., 477 U.S. at 324.

      B.   Privacy Act Claim

      Zanoni asserts that § 522a(g)(1)(D) of the Privacy Act gives

her a cause of action to enjoin the USDA from converting the NAIS

and NPIR databases into a Privacy Act system.   This section of

the statute provides in relevant part that “[a]n individual may

bring a civil action against an agency that has failed to comply


                                 8
with the Privacy Act in a way having an adverse effect on the

individual.”   5 U.S.C. § 522a(g)(1)(D).   Plaintiff argues that

since “individual” is defined in the statute as a “citizen of the

United States,” 5 U.S.C. § 522a(a)(2), and since conversion of

the NAIS and NPIR databases would inhibit her ability to access

the information needed to write her exposé articles, the USDA’s

actions will have an adverse effect on her within the meaning of

the statute.   Defendant asserts that Zanoni cannot maintain her

claim under the Privacy Act because she has not suffered the

requisite injury in fact described by the Supreme Court in Lujan

v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)(explaining

that plaintiff cannot rest on “mere allegations” of standing, but

must provide “specific facts” by affidavit or other evidence

(quoting Fed. R. Civ. P. 56(e))).

     The language of the Privacy Act indicates that its purpose

is to give individuals whose personal information is stored by

federal agencies the ability to protect the collection,

maintenance and dissemination of their information.    See 5 U.S.C.

§ 522a(A)(1)-(B)(2).   Subsections (A), (B), (C) and (D)(2) of §

522a(g)(1) all connect an individual’s ability to bring a civil

action to an injury resulting from personal information

improperly maintained, disclosed, or collected by a federal

agency.   See 5 U.S.C. § 522a(g)(1)(A)-(D)(2).   To view subsection

(g)(1)(D) in isolation of the other sections and to interpret


                                 9
“individual” so broadly to apply it to any citizen of the United

States -- regardless of whether they are the subject of the

information -- is inconsistent with the way the term is used in

other areas of the Privacy Act.    The cases that plaintiff relies

on to support her claim under § 522a(g)(1)(D) further support

this construction of the Privacy Act and are distinguishable from

this case because they involve plaintiffs whose personal

information was disclosed or improperly maintained by a federal

agency.   See Doe v. Chao, 540 U.S. 614, 617 (2004); McCready v.

Nicholson, 465 F.3d 1, 5-6 (D.C. Cir. 2006).

     Moreover, the statute requires agencies to safeguard

personal information by allowing an individual to “prevent

records pertaining to him obtained by the agency . . . from being

used or made available to another without his consent.”

§ 522a(B)(2).   To allow a third party to enjoin the agency from

safeguarding personal information in a Privacy Act system because

that party claims the rights guaranteed to other individuals may

have been violated contradicts the purpose of the Act.    For the

aforementioned reasons, Zanoni is not an “individual” within the

meaning of § 522a(g)(1)(D).   Because plaintiff has no cause of

action under the Privacy Act, she has not suffered an injury in

fact and lacks standing to bring a Privacy Act claim.     See Lujan,

504 U.S. at 560-61.   Therefore, the USDA’s motion for summary

judgment on Zanoni’s Privacy Act claim is GRANTED.


                                  10
     C.    FOIA Exemption (3) for FOIA Request Item No. (1)

     Under FOIA, “[e]ach agency, upon any request for records

which (i) reasonably describes such records and (ii) is made in

accordance with published rules stating the time, place, fees (if

any), and procedures to be followed, shall make the records

promptly available to any person.”      5. U.S.C. § 552(a)(3)(A).   An

agency may deny a FOIA request when the information sought is

exempt from disclosure under FOIA.      5 U.S.C. § 552(d).   When

reviewing a motion for summary judgment in a FOIA matter, the

court reviews the agency’s decision de novo.      Assassination

Archives and Research Ctr. v. CIA, 334 F.3d. 55, 57 (D.C. Cir.

2003).    Under a de novo standard of review, the agency bears the

burden of proving the requested information falls within a FOIA

exemption.    Id.

     The USDA argues that information responsive Zanoni’s request

for “[a]ll records of registered premises contained in the NPIR .

. . including the name of the entity, name of contact person,

address, telephone number, operation type, and alternate

telephone number” is exempt from disclosure pursuant to FOIA

Exemption (3).      FOIA Exemption (3) provides that matters are

exempt from disclosure when “a statute requires that . . .

matters be withheld from the public in such a manner as to leave

no discretion on the issue . . . or establishes particular




                                   11
criteria for withholding or refers to particular types of matters

to be withheld.”   5 U.S.C. § 522(b)(3).

     When determining whether FOIA Exemption (3) applies, the

court “must first determine whether the statute is a withholding

statute . . . that . . . specifically exempt[s] matters from

disclosure.”   Pub. Citizens, Inc. v. Rubber Mfrs. Ass’n, 533 F.3d

810, 813 (D.C. Cir. 2008) (citation omitted).   If the statute is

determined to be a withholding statute under FOIA Exemption (3),

then the court must determine whether it is one that does so

under the conditions articulated in FOIA Exemption (3).     Id.   To

determine whether a statute is a withholding statute that

prohibits disclosure, the court looks at the language of the

statute on its face.   See Reporters Comm. For Freedom of Press v.

U.S. Dep’t of Justice, 816 F.2d 730, 735 (D.C. Cir. 1987)

(explaining that whether FOIA Exemption (3) applies to the

statute is determined by the actual words of the statute), rev’d

on other grounds by 489 U.S. 749 (1989).

     The statute at issue here is the FCEA, which provides that

“any officer or employee of the Department of Agriculture . . .

shall not disclose . . . information provided by an agricultural

producer or owner of agricultural land concerning the

agricultural operation, farming or conservation practices, or the

land itself, in order to participate in programs of the

Department.”   7 U.S.C. § 8791(b)(2)(A).   The FCEA further defines


                                12
“agricultural operation” to “include[] the production and

marketing of agricultural commodities and livestock.”       Id. §

8791(b)(1).

     On its face, § 8791(b)(2)(A) prohibits disclosure and gives

little discretion to the agency as to how the provision should be

applied.   Though the section states “[e]xcept as provided in

paragraphs (3) and (4),” it is clear that disclosure of the type

of information that the statute describes is prohibited.       Id.

§ 8791(b)(2).    Paragraphs (3) and (4), which are referred to as

exceptions, provide specific instances and methods in which

disclosure of the information described in (2) is permitted.         The

Secretary may disclose the information described in paragraph (2)

to government agencies that are working with the Secretary on

USDA programs when those agencies provide technical or financial

assistance for information described in paragraph (2) or when

those agencies are responding for disease control purposes.         See

7 U.S.C. § 8791(b)(3)(A)(i)-(ii).     In other words, § 8791

satisfies FOIA Exemption (3)(A) because it leaves no discretion

to the agency as to disclosure of this type of information.         FOIA

Exemption (3) provides that the statute must require information

to be withheld in a way that leaves no discretion on the issue or

that establishes particular criteria for withholding or refers to

particular types of matters to be withheld.     See 5 U.S.C. §

522(b)(3).    Section 8791 of the FCEA satisfies both the


                                 13
conditions necessary for FOIA Exemption (3) status.   Paragraph

(2) makes it clear that information shall not be disclosed by the

Department of Agriculture if that information meets the criteria

that the paragraph expressly provides, which is that it is

“provided by an agricultural producer or owner of agricultural

land” and that it is “concerning the agricultural operation,

farming . . .   or the land itself, in order to participate in

programs of the Department.”   7 U.S.C. § 8791(b)(2)(A).   The

language of this provision does not indicate that the information

described may be disclosed upon the Secretary’s discretion.

Moreover, the exceptions that it do permit the Secretary to

disclose information apply to specific instances in which the

statute permits disclosure, none of which apply to Zanoni.    The

only instance in this provision where the Secretary is given any

discretion is in paragraph (3), which plainly does not apply in

the instant case.   See 7 U.S.C. § 8791(b)(3)(A).

     The only issue that remains concerning FOIA Exemption (3) is

whether the NPIR information that Zanoni seeks is information

“concerning agricultural operation, farming . . . or the land

itself” within the meaning of § 8791 (b)(2)(A).

     Plaintiff argues that the contact information listed in the

NPIR database does not fall within the meaning of “agricultural

operation” because it has no effect on production or marketing.

Further, Zanoni asserts that the words used in the subsection all


                                14
relate to limits to disclosure for information that is about

“commercial activities or trade secrets used in agriculture.”

Pl.’s Mot. Summ. J. at 27.   She supports this proposition by

distinguishing the data sought in this case from that disclosed

in Multi Ag Media LLC. v. Department of Agriculture, 515 F.3d

1224, 1226-27 (D.C. Cir. 2008), where the plaintiff sought

disclosure of information about farm acreage, irrigation

practices, farm tract, characteristics of farm land, boundary

identification, and calculated acreage.   Plaintiff asserts that

the information requested in Multi Ag Media is the type of

information Congress intended to protect in § 8791 and not the

“phone book” type of information she seeks.

     Plaintiff’s assertion that § 8791 does not apply to the

information that she requested contradicts the clear indication

in the statute that the identity of the producer and individual

details about the premises are prohibited from disclosure.

Paragraph (4), which provides when information falling under

paragraph (2) can be disclosed, specifically states that to be

disclosed the information must be in “statistical or aggregate

form without naming the individual owner, operator or producer.”

7 U.S.C. § 8791 (b)(4)(B)(i).   This provision makes clear that

Congress intended this type of information to be withheld under

paragraph (2) because it prohibits disclosure of names and,

logically, contact information where disclosure of some


                                15
information regarding agricultural operation is permitted.    The

information that Zanoni requests must be considered information

“concerning agricultural operation” because even in providing

exceptions for disclosure, the statute requires that the name of

the producer, or information referring to the gathering site

remain undisclosed.   Therefore, § 8791(b)(2)(A) does apply to

Zanoni’s FOIA request and her request was properly denied under

FOIA Exemption (3).

     D. FOIA Exemption (6) for FOIA Request Item No. (1)

     Finally, Zanoni argues that applying § 8791(b)(2)(A) to her

FOIA request would be a retroactive application of the law

because the law was enacted subsequent to her FOIA request.      The

plaintiff’s argument fails on this point because the general rule

is that the applicable law in a case is the law in effect at the

time the court makes its decision.    Cf.   Bradley v. Sch. Bd. of

Richmond, 416 U.S. 696, 711 (1974).   Morever, the plaintiff has

not offered any authority to support a different rule in this

context.   Therefore, § 8791 is applicable here.   Defendant’s

cross-motion for summary judgment on this claim is GRANTED.

Because FOIA Exemption (3) applies to Zanoni’s request, a

discussion of the applicability of FOIA Exemption (6) is

unnecessary.

     E. FOIA Request Items No. (2) & (3)




                                16
      Furthermore, the Court concludes that Zanoni’s FOIA request

for information regarding the “number of requests to be removed

from premises database that APHIS has received from

owners/managers of registered premises; and the number of

premises that actually have been removed from the database,” is

no longer at issue.

      Zanoni briefly states that the USDA provided insufficient

information in response to this Court’s Order that the USDA

produce information responsive to FOIA request items (2) and (3).

The plaintiff did not challenge the adequacy of defendant’s

search for information responsive to request items (2) and (3).

The standard for the adequacy of a search focuses the inquiry on

the search itself, and failure to uncover certain documents does

not subtract from the adequacy of an agency’s search.   See Wilbur

v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004).   Therefore, if the

USDA has shown that its search was “reasonably calculated to

uncover all relevant documents,” then its search is reasonable.

Id.   The record indicates that the USDA provided Zanoni with

information it deemed to be responsive to her request on July 30,

2008.   The record also indicates that the NPIR database did not

store information regarding the overall number of requests for

opt-out, but that the agency could provide her with the date of

removal requests, which it has provided.    To the extent the

plaintiff failed to challenge the USDA’s declaration that it has


                                17
searched for and provided all information responsive to her

inquiry, her FOIA request in this area appears to have been

satisfied.



III.    CONCLUSION

       Plaintiff’s motion for summary judgment is DENIED with

respect to enjoining the USDA from converting the NPIR and NAIS

databases into a Privacy Act system, and with respect to FOIA

request Item No. 1.    Defendant’s cross-motion for summary

judgment is GRANTED with respect to plaintiff’s Privacy Act claim

and its denial of her FOIA request pursuant to FOIA Exemption 3.

An appropriate Order accompanies this memorandum opinion.



       SO ORDERED.

Signed:     Emmet G. Sullivan
            United States District Judge
            March 31, 2009




                                 18
