                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 99-3575
                                 ___________

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,           * Appeal from the United States
                                         * District Court for the
       v.                                * District of Minnesota.
                                         *
Dan Glickman, Secretary, United          *
States Department of Agriculture,        *
                                         *
       Defendant - Appellee.             *
                                         *
National Pork Producers Council,         *
                                         *
       Intervenor Defendant - Appellant. *
                                  ___________

                           Submitted: November 16, 1999
                               Filed: January 4, 2000
                                ___________

Before WOLLMAN, Chief Judge, BOWMAN, and LOKEN, Circuit 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. Intervening defendant National Pork Producers Council ("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.

                                            I.

      The assessments at issue in the requested referendum are imposed under the
Pork Promotion, Research, and Consumer Information Act of 1985 ("Act"), 7 U.S.C.
§§ 4801-4819 (1994), which Congress designed to finance a research and marketing
program to increase the demand and expand the market for pork. See id. § 4801(b)(1).
Under the Pork Promotion, Research, and Consumer Information Order ("Order"), 7
C.F.R. pt. 1230 (1999), which implements the terms of the Act, every pork producer
and importer must pay an assessment, commonly known in the pork industry as a
"checkoff," to the National Pork Board ("Board") on each sale or import of pork. See
id. § 1230.71. The Board, in turn, pays monies generated by the checkoff to state pork
producer associations and to the Council, which is the Board's general contractor, to
fund its research and marketing programs, including the well-known "Pork: The Other


      1
         The Honorable JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota.
                                            -2-
White Meat" advertising campaign. The checkoff, currently set at 0.45% of sales and
imports, generates a substantial amount of income for the Board and the Council.2 For
example, the Board recently approved a spending budget of $48.1 million for checkoff-
funded programs in fiscal year 2000. Of that amount, $36.5 million is allocated for
contracts with the Council.

        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 require 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 request of a number of persons equal to at least 15
percent of persons who have been producers and importers during a representative
period." 7 U.S.C. § 4812(b)(1)(A). If a majority of the producers and importers voting
in the referendum favor termination, then USDA shall terminate the program within six
months. See id. § 4812(b)(1)(B).

    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.


      2
          The Order limits the checkoff to a maximum of 0.50% of each sale or import.
      3
         The Agricultural Marketing Service of USDA took most of the agency action
in this case. For ease of reference, we will refer generically to USDA in this opinion.
                                          -3-
      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 those 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, 5 U.S.C. § 552 (1994 & Supp. III 1997), to obtain a copy,
in electronic form, of the name, address, phone number, and any related information of
all persons who signed the petition. During the next two months, USDA received
position letters from the Campaign, the Council, and other interested parties. On
August 20, USDA made its final decision to release the petition and issued a two and
one-half page opinion explaining the decision. In that opinion, USDA concluded that
the petition information is subject to mandatory disclosure under FOIA because it does
not qualify for any FOIA exemptions. At issue here is USDA's determination that the




                                          -4-
information is not subject to FOIA exemption six, commonly known as the personal
privacy exemption.4 See 5 U.S.C. § 552(b)(6) (1994).

       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 petitions
at issue." Appellant's App. at 73. Nevertheless, USDA applied the balancing test that
is implicit in the language of the personal privacy exemption and purported to balance
the petitioners' privacy interest against the public's disclosure interest.

        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 consequences 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

      4
        USDA also determined that the petition is not subject to FOIA exemption four,
commonly known as the trade secrets exemption, which provides that mandatory FOIA
disclosure "does not apply to matters that are . . . (4) trade secrets and commercial or
financial information obtained from a person and privileged or confidential." 5 U.S.C.
§ 552(b)(4) (1994). Because plaintiffs did not challenge this determination, we will not
describe the portion of the administrative opinion addressing exemption four.
                                           -5-
in their hands and will be able to see the names, addresses, and telephone numbers of
the persons, including themselves, who previously signed." Id. Finally, USDA rejected
the claim by the Campaign that 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 the
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, 5
U.S.C. § 552a (1994), and the First Amendment, plaintiffs sought judicial review of
USDA's decision under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702
(1994), and declaratory and injunctive relief prohibiting release of the requested
information. The District Court allowed the Council, as the organization that had made
the FOIA request, to intervene as a defendant on August 17. The District Court granted
plaintiffs' motion for a preliminary injunction on September 20. This appeal followed.




                                           II.




                                           -6-
       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." 5 U.S.C. § 702. FOIA, as solely a disclosure
statute, only provides a cause of action to compel disclosure, but not an action to
prohibit disclosure. See 5 U.S.C. § 552(a)(4)(B); Chrysler Corp. v. Brown, 441 U.S.
281, 290-94 (1978). Thus, success in reverse FOIA actions generally requires a
showing that the agency's decision to disclose was "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also
Chrysler, 441 U.S. at 317-19.

       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 agency
disclosure. That the information sought actually may fall within a FOIA exemption
does not end the analysis, for FOIA exemptions are no more than their description
implies. That is, they are exemptions from mandatory disclosure only; they do not
prohibit agency disclosure. See Chrysler, 441 U.S. at 293 ("We simply hold here that
Congress did not design the FOIA exemptions to be mandatory bars to disclosure.").

      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 nonetheless 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":


      5
        For example, plaintiffs claim that the Privacy Act and the First Amendment
prohibit disclosure in this case.
                                          -7-
      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.

7 C.F.R. § 1.17(b). Under this regulation, had USDA determined that the petition was
subject to FOIA's personal privacy exemption, then the agency would have proceeded
to balance "the benefit to the public in releasing the document" against "any harm likely
to result from disclosure" to determine whether or not to release as a matter of
discretion.

       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 determination 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.



                                           -8-
       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 Fed. R. Civ. P. 65(a)(2) ("Before
or after the commencement of the hearing of an application for a preliminary injunction,
the court may order the trial of the action on the merits to be advanced and consolidated
with the hearing of the application."). In the past, we have noted that consolidation
under Rule 65 saves time and conserves judicial resources at both the trial and
appellate courts. See West Pub'g Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1229-
30 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987). We also suggested at argument
the possibility of consolidation on appeal. Subsequently, the Council filed a motion,
to which USDA is unopposed, asking us to so consolidate in this appeal. The
Campaign opposes the motion.

       There is little question of our jurisdiction to consolidate the merits of the case
with the appeal of the order granting a preliminary injunction. The relevant statutory
grant of jurisdiction places no explicit limits on the scope of our review. See 28 U.S.C.
§ 1292(a) (1994) ("courts of appeals shall have jurisdiction of appeals from: (1)
Interlocutory orders of the district courts . . . granting, continuing, modifying, refusing,
or dissolving injunctions"). And the statutory grant has been interpreted broadly:
"Jurisdiction of the interlocutory appeal is in large measure jurisdiction to deal with all
aspects of the case that have been sufficiently illuminated to enable decision by the
court of appeals without further trial court development." 16 Charles Alan Wright et
al., Federal Practice and Procedure § 3921.1, at 28 (2d ed. 1996) (discussing §
1292(a)(1)); see also Callaway v. Block, 763 F.2d 1283, 1287 n.6 (11th Cir. 1985)
(stating that § 1292(a)(1) "grants the courts jurisdiction to reach the merits, at least
where there are no relevant facts at issue and the matters to be decided are closely
related to the interlocutory order being appealed"). Once jurisdiction is established, we
have a broad statutory grant of power to dispose of the case as we deem appropriate.
See 28 U.S.C. § 2106 ("The Supreme Court or any other court of appellate jurisdiction
may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a

                                            -9-
court lawfully brought before it for review, and may remand the cause and direct the
entry of such appropriate judgment, decree, or order, or require such further
proceedings to be had as may be just under the circumstances."); Deckert v.
Independence Shares Corp., 311 U.S. 282, 286-87 (1940) (affirming power of appellate
court to reach merits of case before it on interlocutory appeal and dismiss action); 15A
Wright et al., supra, § 3901, at 25.

        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 against 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).




                                           -10-
       But here we are faced with a purely legal issue on a fixed administrative record,6
namely whether, when we apply the APA standard of review, we must sustain USDA's
decision that the petition was not subject to FOIA's personal privacy exemption. As
we explained above, it is unnecessary for us to decide more because if the petition is
within the exemption, then USDA surely cannot release it under its discretionary
release regulation. And if it is not within the exemption, then neither the Privacy Act7
nor the First Amendment8 protect it from disclosure. The considerations that caution
against a broad scope of review in the usual interlocutory appeal—that is, a tentative
and provisional record with conflicting material facts—simply are not present here.
This Court has recognized in the past that a district court may properly reach the merits
in such a case without expressly ordering consolidation under Rule 65 and without
giving the parties adequate notice. See United States ex rel. Goldman v. Meredith, 596


      6
         Judicial review under the APA of informal agency adjudications is normally
confined to the administrative record. See Florida Power & Light Co. v. Lorion, 470
U.S. 729, 744 (1985). USDA's decision that the petition must be released under FOIA
is considered an informal adjudication. See Daisy Mfg. Co. v. Consumer Prods. Safety
Comm'n, 133 F.3d 1081, 1083 (8th Cir. 1998). In opposing the motion to consolidate,
the plaintiffs for the first time allege that USDA's factfinding procedures in FOIA cases
are inadequate and thus de novo review is appropriate. See Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971) ("de novo review is authorized
when the action is adjudicatory in nature and the agency factfinding procedures are
inadequate"). Because plaintiffs failed to make this allegation in the District Court or
in this Court before submission of the appeal, we decline to consider it. See United
States v. Elliott, 89 F.3d 1360, 1367 (8th Cir.1996), cert. denied, 519 U.S. 1118
(1997).
      7
        The Privacy Act only prevents third-party disclosure of covered records when
FOIA does not require disclosure. See 5 U.S.C. § 552a(b)(2). If the petition is not
subject to the exemption, then FOIA requires disclosure and the Privacy Act does not
apply.
      8
        FOIA's personal privacy exemption appears to be at least as inclusive as the
privacy protections implicit in the First Amendment.
                                          -11-
F.2d 1353, 1358 (8th Cir.) ("[D]isposition on the merits may be appropriate whenever
the evidence presented at the preliminary hearing indicates that there is no conflict of
material fact that would justify holding the full trial on the merits."), cert. denied, 444
U.S. 838 (1979). Further, several of our sister circuits have reached the merits of the
case on appeal from an order granting or denying a preliminary injunction. See
Callaway, 763 F.2d at 1287 (reaching merits on appeal from denial of preliminary
injunction because "both sides' arguments go to the merits, no facts are at issue and the
questions raised are purely legal ones"); United Parcel Serv., Inc. v. United States
Postal Serv., 615 F.2d 102, 106-07 (3d Cir. 1980) (reaching merits of underlying legal
issues despite fact that preliminary injunction was moot); Hurwitz v. Directors Guild
of America, Inc., 364 F.2d 67, 69-70 (2d Cir.) (issuing permanent injunction on appeal
from denial of preliminary injunction in case with no triable issues of fact), cert. denied,
385 U.S. 971 (1966). Like the Second Circuit, we can see "no reason why the cautious
exercise of such a power would be undesirable." Hurwitz, 364 F.2d at 70.
Accordingly, we exercise our discretion to reach the merits of USDA's determination
that the petition is not subject to FOIA's personal privacy exemption.

                                            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
accordance with law." 5 U.S.C. § 706(a). To answer this question, we carefully
review the administrative record to determine "whether the decision was based on a
consideration of the relevant factors and whether there has been a clear error of
judgment." Overton Park, 401 U.S. at 416.

       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

                                            -12-
their position on the ultimate issue: "We support a voluntary checkoff program." In so
doing, petitioners 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 Supreme Court has recognized, the secret ballot is of paramount importance to our
system of voting. In Burson v. Freeman, 504 U.S. 191, 206 (1992), for example, the
Court found a "widespread and time-tested consensus" that the secret ballot is
necessary to prevent voter intimidation and election fraud. Three terms later, the Court
used the tradition of the secret ballot, which it described as "the hard-won right to vote
one's conscience without fear of retaliation," in recognizing a First Amendment interest
in anonymous political advocacy. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334,
343 (1995); see also Buckley v. Valeo, 424 U.S. 1, 237 (1976) (Burger, C.J.,
concurring in part and dissenting in part). Relying on this strong interest in a secret
ballot, the Sixth Circuit invalidated a Kentucky ballot access law that required signers
of candidate petitions to declare that they desired to vote for the candidate. See
Anderson v. Mills, 664 F.2d 600, 607-09 (6th Cir. 1981). While we need not decide
whether there is a constitutional right to a secret ballot, we do not hesitate to hold that
there is a strong and clearly established privacy interest in a secret ballot and that this
privacy interest is no less compelling in the context of FOIA's personal privacy
exemption than it is in other contexts. We also believe that in the circumstances of this
case the privacy interest in a secret ballot is severely threatened. Releasing this
petition, which contains a clear declaration of how the petitioners intend to vote in the
referendum, would substantially invade that privacy interest.

      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

                                           -13-
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 concern 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 information." 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) (quoting H.R. Rep. No. 1497,
89th Cong., 11 (1966)). An overly technical distinction between individuals acting in
a purely private capacity and those acting in an entrepreneurial capacity fails to serve

                                           -14-
the exemption's purpose of protecting the privacy of individuals. Whether petitioners
sold pork as an individual, a sole proprietor, or as a majority shareholder in a closed
corporation does little to diminish the fact that disclosure of the petition will reveal the
individuals who declared their position on this controversial issue. Cf. National Parks
& Conservation Ass'n v. Kleppe, 547 F.2d 673 (D.C. Cir. 1976) (holding that financial
records of individually-owned businesses are subject to balancing test of personal
privacy exemption); 1 Braverman & Chetwynd, supra, § 10-4.1.3, at 412
("[I]nformation about closely-held corporations or sole proprietorships may be
protected if the information can be identified as applying to a particular individual.").

      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
(interpreting "clearly unwarranted" language of personal privacy exemption). USDA
weighed the public interest in an open process, "except to the extent the ultimate ballot
is protected,"9 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,


       9
        In its decision, USDA appeared to assume that the ultimate ballot would be
protected by statute. In fact, the secrecy of ballots in USDA referendums is not
protected by statute, but traditionally is protected as a matter of agency policy.
                                            -15-
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, the balancing in this case
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 not 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.

       A true copy.

              Attest:

                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                            -16-
