An increasing number of people are discovering, to their embarrassment, that their emails are subject to the Freedom of Information Act. Scientists at state-funded universities have been forced to disclose emails that revealed cozy ties with the public relations arms of biotech and organic food companies. And last year, a FOIA request compelled the American Egg Board to turn over documents showing that its president tried to organize a public relations campaign against a vegan competitor called Just Mayo.
If the House Appropriations Committee has its way, though, the Egg Board's private emails will remain private in the future. This past week, the committee passed its version of the U.S. Department of Agriculture's 2017 budget. And in an accompanying report, the panel urged the USDA to make sure that FOIA does not apply to the American Egg Board and all similar "Research and Promotion boards that the USDA oversees."
This language refers to a dozen or so "checkoff programs" that promote beef, pork, soybeans and other commodities. They are the source of advertising campaigns like "Pork: The Other White Meat" and "Beef - It's What's For Dinner."
These programs have long been controversial because they use government authority to collect money for private commercial goals, such as advertising campaigns and research on the nutritional quality of particular foods. Farmers themselves vote to set up such programs, but Congress then establishes them and at that point, every farmer is required, by law, to contribute to them.
So do these operations belong to industry or the government? The industry groups "very much want to have it both ways," says Parke Wilde, a specialist on food policy at Tufts University and a long-time critic of the checkoff programs.
In 2005, Wilde points out, industry groups argued before the Supreme Court that the checkoff programs were, in fact, "government speech." At that time, the groups were facing a challenge from farmers who didn't want to pay for those programs. If the programs were part of the government, though, the farmers could be forced to pay up, just as they are forced to pay taxes. The Supreme Court agreed.
Now that they wish to escape from the FOIA, however, the checkoff programs are emphasizing their private nature. In early April, a dozen agricultural industry groups — but not the checkoff programs themselves, because they aren't allowed to lobby Congress --- asked Congress to declare the checkoff programs exempt from the FOIA because they "are funded solely with producer dollars, and therefore are not agencies of the federal government." The House Appropriations Committee has now adopted that view. Even if it became law, the language could face a challenge in the courts.
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