            Release of Information Collected Under the
           Agricultural Marketing Agreement Act of 1937

A provision in the appropriations act for the Departm ent o f Agriculture relating to the release of
   information collected under the Agricultural M arketing Agreement Act o f 1937 does not
   restrict the use of such information in the Departm ent’s rulemaking proceedings, in its
   prosecution o f enforcement proceedings, or in its defense o f regulatory actions under the 1937
   Act. The restriction was intended solely to limit the Departm ent’s discretionary release of
   information to members o f the public in response to Freedom of Information Act or other
   requests.

                                                                             January 15, 1987

              M   em orandum       O p in io n   for th e    G eneral Co un sel,
                             D epa rtm en t      of   A g r ic u l t u r e


  This responds to your request for our opinion on the effect of a provision in
the current appropriations act for the Department of Agriculture (USDA). The
provision in question relates to the release of information collected under the
Agricultural Marketing Agreement Act of 1937,7 U.S.C. §§ 601 et seq. (1937
Act), and reads as follows:
         None of the funds provided in this Act may be expended to
         release information acquired from any handler under the Agri­
         cultural Marketing Agreement Act of 1937, as amended: Pro­
         vided, That this provision shall not prohibit the release of infor­
         mation to other Federal agencies for enforcement purposes:
         Provided further. That this provision shall not prohibit the re­
         lease of aggregate statistical data used in formulating regula­
         tions pursuant to the Agricultural Marketing Agreement Act of
         1937, as amended: Provided further, That this provision shall
         not prohibit the release of information submitted by milk
         handlers.
Pub. L. Nos. 99-500, title VI, § 631, 100 Stat. 1783, 1783-30 (1986) and 99-
591, title VI, § 631, 100 Stat. 3341, 3341-30 (1986) (collectively, § 631).
   You wish to know whether and how § 631 affects USDA’s ability to use
information collected by it under the 1937 Act in connection with enforcement
and rulemaking proceedings initiated by it under the 1937 Act, as well as in
judicial or administrative challenges to USDA actions initiated by private
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parties. The particular examples with respect to which you seek our guidance
all involve situations in which the information in question might be introduced
by USDA as evidence in connection with its own rulemaking activities, its
prosecution of enforcement proceedings, and its defense of regulatory actions
taken under the marketing order program established by the 1937 Act.
   For reasons set forth in greater detail below, we believe that § 631 does not
restrict USDA’s ability to release information acquired from handlers under the
 1937 Act in the course of its administration and enforcement of that Act,
regardless of whether the information is relevant in an administrative or a
judicial context, and regardless of whether USDA is in the position of a
plaintiff or a defendant. Rather, § 631 was intended solely to limit USDA’s
discretionary release of information to members of the public, outside of the
enforcement context, in response to requests under the Freedom of Information
Act or otherwise.
   In interpreting a statute, we look first to its text. Though couched in terms of
a limitation on the expenditure of appropriated funds, as a practical matter
§631 functions as a direct restriction on USDA’s release of information
acquired from handlers under the 1937 Act. On the other hand, precisely
because § 631 is a USDA appropriations limitation, it would seem to have no
effect on other agencies’ ability to use or disseminate the information in
question.
   There are three provisos to § 631’s restriction on the release of information,
only one of which is relevant here: the section explicitly does not prohibit
release of information to “other Federal agencies for enforcement purposes.” 1
We believe that it would be anomalous to suppose that Congress intended to
allow other federal agencies freely to use information collected by USDA for
their own enforcement purposes, while at the same time denying a similar
freedom to USDA itself. Accordingly, we think that the ambiguously worded
“enforcement” exception in § 631 must be read to reflect and incorporate
Congress’ expectation that the section would not restrict USDA’s ability to use
any information collected by it under the 1937 Act to carry out its own
authorized enforcement functions.
   Yet another feature of the statutory language supports this narrow reading of
 § 631’s intended scope. This is the provision’s use of the term “release” to
describe what USDA may not do with information collected by it, as opposed
to a broader term such as “disclose.” The use of the term “release” suggests a
concern with USDA’s discretionary dissemination of information to the public,
rather than an intent to inhibit authorized law enforcement activities. Where
Congress has imposed restrictions on a federal agency’s use of information in
its possession, it has generally enacted laws prohibiting “disclosure” of such

   1 The w ording o f this proviso is som ew hat am biguous, because it is not clear whether another agency’s
“enforcem ent p u rposes” — as distinct from U SD A ’s ow n enforcem ent purposes — will justify U SD A ’s
release o f inform ation. In any event, because § 631 restricts only U SD A ’s ability to release information, this
provision w ould not inhibit another agency to which the information was released by USDA under the
proviso from in turn releasing it to nongovernm ental parties in the course o f its own authonzed activities

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information.2 Moreover, although Congress has on occasion imposed restric­
tions on an agency’s ability to disclose information in its possession to other
agencies, we would not, in the absence of a very clear indication in the statutory
language or legislative history, infer an intent to restrict an agency’s ability
itself to use information properly obtained by it to administer and enforce a
statute for which it is responsible.
   The legislative history of § 631 contains no such indication. To the contrary,
it confirms that this section was not intended to restrict USDA’s use of
information in the enforcement context. The impetus for imposing a legislative
limitation on USDA’s discretionary release of information collected under the
Act to private parties seems to have come in the first instance from the district
court’s decision in Ivanhoe Citrus A ss’n v. Handley , 612 F. Supp. 1560
(D.D.C. 1985). Handley was a “reverse” FOIA case in which California orange
growers sought to prevent USDA from releasing certain lists of grower names
and addresses collected by USDA under the Act. The court ruled against the
growers, holding that the grower lists in question were not exempt from
disclosure under FOIA, and that USDA had not abused its discretion in releas­
ing the lists pursuant to a FOIA request.
   In Handley , the court held, inter alia, that lists of names and addresses were
not covered by a provision in the 1937 Act requiring that certain information
collected under that Act be kept confidential. See 7 U.S.C. § 608d(2). Presum­
ably, had this confidentiality provision in the 1937 Act applied to the lists in
question, FOIA would have provided no basis for releasing them to a private
party. See 5 U.S.C. § 552(b)(3). On the other hand, the confidentiality provi­
sion of the 1937 Act would have posed no bar to USDA’s use of protected
information for its own enforcement purposes under the Act, because it pro­
vides that protected information may be disclosed “in a suit or administrative
hearing brought at the direction, or upon the request, of the Secretary of
Agriculture, or to which he or any officer of the United States is a party, and
involving the marketing agreement or order with reference to which the infor­
mation so to be disclosed was furnished or acquired.” 7 U.S.C. § 208d(2).
   In July 1985, only a few days after the Handley decision was announced, the
House Agriculture Committee reported out an amendment to the confidential­
ity provision of the 1937 Act. According to the Committee’s report, the
amendment was intended to extend the coverage of the confidentiality provi­
sion to the kind of information at issue in Handley. See H.R. Rep. No. 271,99th
Cong., 1st Sess., pt. 1, at 197 (1985) (“The amendment would overturn the
legal basis used by the [Handley] court and the Administration to justify release
of growersf] names and addresses.. . . ”). Notwithstanding this apparent intention,
however, the amendment reported by the House Agriculture Committee and ulti­
   2 See, e.g., 18 U.S C. § 1905 (generally prohibiting agency “disclosure” of confidential inform ation and
trade secrets); 15 U S.C. § 2055(b)(1) (prohibiting “disclosure" by the C onsum er Product Safety Com m is­
sion); 5 U.S.C. § 1401 (perm itting “disclosure” o f confidential information and trade secrets received by the
National Highw ay Traffic Safety A dm inistration under the National Traffic and M otor V ehicle Safely o f Act
only “ when relevant in any proceeding under this title” ). See also O ffice of Legal Policy, U.S. Department of
Justice, Freedom o f Information Act Case List 317-23 ( 1986) (discussion o f “ Exemption 3” statutes).

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 mately enacted by Congress in December 1985 was worded so as to bring
 within the ambit of the confidentiality provision only “trade secrets and com­
 mercial or financial information.” Pub. L. No. 99-198, § 663,99 Stat. 1631 (1985).
   Almost immediately, questions were raised as to whether grower lists would
 be considered “trade secrets and commercial or financial information.” (In­
deed, the Handley decision had explicitly held that they were not, at least for
 purposes of the FOIA’s (b)(4) exemption. 612 F. Supp. at 1566.) It thus appeared
that the 1985 amendment to the 1937 Act had not accomplished the Agriculture
Committee’s stated objective of protecting the grower lists at issue in Handley from
FOIA disclosure, and that further legislative steps would be necessary.
   When viewed against this background, § 631 appears to represent a second
attempt to effect the desired limitation on USDA’s discretion to release infor­
mation collected from handlers under the 1937 Act in response to FOIA
requests. That this new restriction on USDA was imposed through an appro­
priations act provision rather than by a second amendment to the confidential­
ity provision of the 1937 Act itself is probably best explained as a phenomenon
of the modem legislative process: in recent years Congress has proven itself
increasingly willing to use the relatively expeditious appropriations process to
enact substantive law, rather than go through the arduous, time-consuming and
often dangerous process of amending the United States Code.
   As is often the case in such situations, the current USDA appropriations act
has no formal legislative history that would confirm or refute our hypothesis
about the connection between § 631 and the confidentiality provision of the
 1937 Act. Nonetheless, we believe that this hypothesis offers the most plau­
sible explanation of Congress’ intent in enacting §631. Accordingly, we
believe § 631 should be interpreted in light of the 1937 Act’s express intention
to allow USDA to use information collected under the Act “in a suit or
administrative hearing brought at the direction, or upon the request, of the
Secretary of Agriculture, or to which he or any officer of the United States is a
party.” 7 U.S.C. § 608d(2).
   In sum, we believe that § 631 does not limit USDA’s ability to release
information in the context of exercising its enforcement and administrative
responsibilities under the 1937 Act. Accordingly, it would appear that § 631
poses no bar to USDA’s release of information to governmental or nongovern­
mental parties in any of the specific situations described in your letter.
   As a final point, we note that because the restriction contained in § 631 was
enacted as part of an appropriations act, there is a presumption that Congress
intended it to be effective only for the fiscal period covered by that act. None of
the generally accepted countervailing indications of permanence are present in
either the text or nature of the provision. See General Accounting Office,
Principles o f Federal Accounting Law 2-34 to 2-37 (1982).3 Accordingly, it is

  3 A pro v isio n in an appropriations act w ill be regarded as perm anent if the language used o r the nature o f the
provision m akes it clear that such was o f th e intention o f C ongress. Principles , supra , at 2-34. Section 631
contain s no language m aking clear C ongress’ intention to extend the provision’s life beyond that o f the
                                                     C ontinued

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our opinion that the restriction contained in § 631 will have no effect beyond
the end of the fiscal period covered by the current USDA appropriations act,
unless it is reenacted by Congress.

                                                                     S a m u e l A . A l it o , J r .
                                                            Deputy Assistant Attorney General
                                                                Office o f Legal Counsel




  3 ( . . . continued)
appropriations act in w hich it appears, and the nature o f the restriction imposed does not necessarily im ply
intended permanence. The phrasing o f a provision as an affirm ative authorization rather than a restnction on
the use o f funds is generally regarded as an indication that Congress intended it to be perm anent. Id. at 2 -3 7 .
But § 631 is couched in term s o f a lim itation on U SD A ’s use o f funds rather than as a direct restriction on the
release o f inform ation. Finally, the inclusion o f a provision in the U nited States Code, another com m on
indication o f intended perm anence, id. at 2 -3 6 , is missing here.

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