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Idaho Bulletin 120-8-3

January 17, 2008

SUBJECT:  ADS – Privacy Act - District Relations

TO:   All Employees, NRCS, Idaho

Purpose.  To provide guidance on releasable information

Expiration Date.  In effect until superseded

Filing Instructions: File this bulletin and attachment under file code:  120-21-12-6, Privacy Act – Partnership Relations

This bulletin is to provide guidance on information found in Subtitle E of Title XII of the Food Security Act of 1985 (16 U.S.C. 3841 et seq.) and the Privacy Act.  The conservation districts received a one page letter explaining what information held by NRCS could be reviewed in a public board meeting.  The additional information contained in this bulletin should help you provide technical guidance on releasable information and more importantly, what venue it should be released.

As you discuss with the conservation districts USDA policy on privacy, it is crucial that you be understanding  of the 70 years of cooperation we have had with the district partnership.  Sharing this information has been part of our cooperation.  This is a major change for them and you must assure them our partnership is just as strong as before.  Unfortunately, the Privacy Act was not written with conservation partnerships in mind.  The rules are very rigid when it comes to information contained in government files.

Conservation Districts (Districts) work cooperatively with the USDA Natural Resources Conservation Service (NRCS) to help landowners and operators address natural resource concerns.  NRCS does rely on Districts to guide the local working groups, provide input on USDA conservation programs and help land managers address their specific conservation needs. NRCS requests that Districts occasionally review and make decisions regarding land manager conservation plans.  The most recent example is when a person requests cancellation of a Farm Bill conservation contract, an NRCS letter is sent to the conservation district requesting input.   These conservation plans identify the land manager’s natural resource concerns and the conservation practices and management systems that address them.  Conservation plans may also contain proprietary information unique to the land manager’s operation.

For the purpose of this bulletin, the term “conservation plan” means a land manager’s conservation plan developed with NRCS technical assistance.  Information in the conservation plan includes land manager objectives, inventory and planning data, practice and design specifications, economic information, program contract data, and other information. 

Conservation plans and other information in the land manager’s NRCS case file are official NRCS records and are therefore protected by the Federal Privacy Act of 1974.  This protection was strengthened by specific language in Section 2004 of the Farm Security and Rural Investment Act of 2002.  This section amended Subtitle E of Title XII of the Food Security Act of 1985 (16 U.S.C. 3841 et seq.).  Employees, consultants and contractors of NRCS who disclose unauthorized case file information can be fined up to $10,000 or imprisonment for up to one year.

The Section states, in part…‘‘(b) PRIVACY OF PERSONAL INFORMATION RELATING TO NATURAL RESOURCES CONSERVATION PROGRAMS.—

‘‘(1)  INFORMATION RECEIVED FOR TECHNICAL AND FINANCIAL ASSISTANCE.—

  1. IN GENERAL.—In accordance with section 552(b) (3) of title 5, United States Code, except as provided in subparagraph (C) and paragraph (2), information described in subparagraph (B)—

  1. shall not be considered to be public information; and

  2. shall not be released to any person or Federal, State, local agency or Indian tribe (as defined by the Secretary) outside the Department of Agriculture.

  1. INFORMATION.—The information referred to in subparagraph (A) is information—

  1. provided to the Secretary or a contractor of the Secretary (including information provided under subtitle D) for the purpose of providing technical or financial assistance to an owner, operator, or producer with respect to any natural resources conservation program administered by the Natural Resources Conservation Service or the Farm Service Agency; and

  2. that is proprietary (within the meaning of section 552(b)(4) of title 5, United States Code) to the agricultural operation or land that is a part of an agricultural operation of the owner, operator, or producer.”

The formal agreements between NRCS and conservation districts grant individual board members and employees access to NRCS case files.  However, districts must follow the same rules and face the same penalties as federal employees regarding protection of confidential information.  Information provided by individuals to participate in USDA conservation programs is not considered public information and is not releasable to the public without the individual’s permission.

District supervisors cannot disclose protected information received from NRCS employees outside of a meeting. (For example, information about an individual’s conservation activities obtained while visiting with NRCS employees).  Release of the information could constitute an ethics violation.

If a land manager has granted permission to disclose information in an open meeting, the information disclosed is considered public information and can be discussed with neighbors, community leaders, and others. Verbal permission to disclose information at an open meeting is not enough documentation.  It should be a signed written release and the district minutes should document the written release.

Conservation Districts have different procedures for reviewing and acting on conservation plans.  In most cases, plans are reviewed at district board meetings.  In a few cases, conservation districts have appointed individual board members to review plans at times other than board meetings.

There are two instances where the district board can take official action on conservation plans in an open session.

  1. The board may take official action on a conservation plan after receiving a recommendation from a district board member or staff member.  If this is done, it is very important that the DISTRICT provide policies, procedures and evaluation criteria for the members or employees to use when reviewing the plans.  Under this method, a District board could; a) delegate authority to review and approve the plan, or b) limit authority to review only, and request that the plan be presented at a subsequent board meeting for approval.  In an open meeting, this recommendation would identify only the name of the individual and a recommendation to either approve the plan or not. 
  2. The district board may take action on a conservation plan and discuss specifics when the land manager has granted permission, in writing, to discuss specific details about their plan in open session.

The wording of the final motion and action on conservation plans will be dependant on whether the land manager has granted permission to release information.  If release of information has not been authorized, the district’s official actions and minutes should reference the person’s name only.

The District board has the right to establish policy for reviewing and acting on conservation plans.  However, the NRCS representative can not allow release or discussion of specific conservation plan information at an open meeting.  

FOIA questions can be addressed to Janis A. Stanton, NRCS, Contract Specialist Phone: (208) 378-5710, email: Janis.Stanton@id.usda.gov.


/s/
RICHARD SIMS
STATE CONSERVATIONIST

Attachment

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