Usda Appeal Response 111309

United States Department of Agriculture National Agricultural Statistics Service Office of the Administrator

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Mr. Christopher-Earl Strunk 593 Vanderbilt Avenue, #281 Brooklyn, New York 11238-3512 Dear Mr. Strunk: This is in response to your October 9,2009, letter appealing the denial by the National Agricultural Statistics Service (NASS), U.S. Department of Agriculture (USDA), for records sought pursuant to your Freedom of Information Act (FOIA) request assigned FOIA No. 09-046. Your request specifically sought the "mailing addresses of all the current demographic of New York farmers enumerated in the current statistics for the state of New York from 2007 thru the present; and furthermore, all the addresses of the prior demographic of New York's fmerslfarms enumerated in the prior demographic and statistics from 1967 thru the present, however, dropped from the current New York statistic enumeration for whatever reason." I have carefully considered your appeal, and based on my review, I am continuing to uphold the decision to withhold the mailing addresses pursuant to 5 U.S.C. 552(b)(3) of the FOIA. NASS conducts surveys pursuant to 7 U.S.C. 2204(a), which authorizes the Secretary of Agriculture to collect information concerning agriculture. As stated in Ms. Valerie Herberger's September 30,2009, response to your FOIA request, Section 1770 of the Food Security Act of 1985 (7 U.S.C. 2276) requires USDA to keep information collected under the authority of 7 U.S.C. 2204(a) strictly confidential. More specifically, it provides that information furnished pursuant to 7 U.S.C. 2204(a), as well as certain other specified provisions, may not be: "(1) use[d] . . . for a purpose other than the development or reporting of aggregate data in a manner such that the identity of the person who supplied such information is not discernable and is not material to the intended use of such information; or

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(2) disclose[d] . . . to the public, unless such information has been transformed into a statistical or aggregate form that does not allow the identification of the person who supplied particular information." 7 U.S.C. 2276(a) and (d)(5). Exemption 3 of the FOIA protects information specifically exempted from disclosure by statute . . . ,provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criterion for

Room 5041A-South Building 1400 Independence Avenue, SW - Washington, D.C. 20250-2001 (202) 720-2707 . (202) 720-9013 FAX . www.nass.usda.gov USDA is an equal opportunity provider and employer.

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Mr. Christopher-Earl Strunk withholding or refers to particular types of matters to be withheld." Section 2276 meets both prongs of Exemption 3 in that it leaves no discretion, it establishes particular criterion for withholding, and it refers to particular types of matters to be withheld. You may seek judicial review of this decision in the appropriate U.S. District Court pursuant to 5 U.S.C. 552(a)(4).

593 Vanderbilt Avenue - #281 Brooklyn, New York 1 1238 Telephone: (845) 90 1-6767 Email: [email protected] Christopher-Earl: Strunk 6in esse Cynthia Z.F. Clark, Administrator U.S. Department of Agriculture USDA National Agricultural Statistics Service Room 4 117, South Building 1400 Independence Avenue, SW Washington DC 20250-300 Subject: APPEAL from the denial of the Request for all the Addresses of New York's Famterl Farm demographic used in statistics with F.O.I.A. Tracking No. 09- 159. Appeal Panel, I am the FOIA petitioner, Christopher-Earl: Stnmk 6 m esse, and make this statetrrent under penalty of perjury with 28 USC 1746. This is an appeal as of right to the total denial of any information requested (') with the above tracking number, to wit Valerie Herberger on September 30,2009 cited the 5 U.S.C. §552(b)(3) exemption by other federal statutes (see Exhibit A), as if my request exceeds 7 U.S.C. $2276(a)(2) and 7 USC §2276(b)(2)and were to apply as if it were violative, and to wit I ask for reconsideration in that my request would not be in violation of the cited requirements. That the denial is overly broad in its interpretation thereby infn'nges my U.S. Constitution First amendment right to speech, assembly and association, as well as 5' ,9' and 10" Amendment rights within New York, also m h e s with state action at the Albany Airport, as if an interstate commerce matter which it isn't; and as such petitioner is entitled not to have any law interpreted in a fashion that would construe Congressional intent to abridge my substantive rights as with the First, Fifth, 9&and 10& Amendments and U.S. Constitution in its entirety and you would agree shall always be protected. Declarant emphasizes that the FOIA did not request any names but just addresses, there was no request for any statistics that would apply to the those addresses; and therefore, there is no release that would be at cross purpose with the intentof the law. Otherwise, the denial would be deemed facially unconstitutionally overbroad with the intent of the law, and thereby subject to judicial review. Any communication with a occupant at that address only, if the occupant were in fact still a farmer much has changed, puts individual responsibility for the ~ p e statistics ~ c if any at the address with the owner in keeping with the law- otherwise a overbroad law would be prohibited as a catch twenty-two. If this matter goes the Judicial review route as if the Administrator interpretation of law is overly broad there would be considerable expense and punitive damages sought with state action also; however, if upon reconsideration there are anyfees for searching for, reviewing, or copying the records, please let me know before you task my request for addresses only. Brooklyn New Yor Attachment cc: NYS Department of Agriculture & Markets

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production of electronic data and or access to the mailing addresses of all the current demographic of New York Farmers enumerated in the current statistics for the state of New York from 2007 thru the present; and furthermore d l the addresses of the prior demographic of New York's Farmers / Farms enumerated in the prior demographic and statistics from 1967 thru the present, however, dropped from the current New York statistic enumeration for whatever reason.

United States Department of Agriculture Research, Education and Economics Agricultural Research Service

September 30,2009

Mr. Christopher-Earl Strunk 593 Vanderbilt Avenue, #28 1 Brooklyn, New York 1 1238-3512 Dear Mr. Strunk: This is in response to your September 15,2009, Freedom of Information Act (FOIA) request addressed to the Associate Administrator, National Agricultural Statistics Service (NASS), U.S. Department of Agriculture (USDA), seeking all addresses of New York's farmers and farm demographics used in statistics. This office is responsible for administering the FOIA for NASS; therefore, your request was forwarded to us for a direct response. We received your request on September 22,2009, and assigned it FOIA Tracking No. 09-159. You specifically requested "production of electronic data and or access to the mailing addresses of all the current demographic of New York farmers enumerated in the current statistics for the State of New York from 2007 t h the present; and all addresses of prior demographic of New York's farmerslfarms enumerated in the prior demographic and statistics from 1967 thru the present, however, dropped from the current New York statistics enumeration for whatever reason." The information you are requesting regarding mailing addresses is confidential information that is protected from disclosure pursuant to 5 U.S.C. 552(b)(3) of the FOIA. Exemption 3 of the FOIA protects information specifically exempted from disclosure by statute. The controlling statute in this case is 7 U.S.C. 2276, which requires USDA to maintain the confidentiality of this information. In addition, the statute prohibits disclosure of any of the information in unaggregated form. It provides that the Department of Agriculture may not "...disclose such information to the public, unless such information has been transformed into statistical or aggregate form that does not allow the identification of the person who supplies particular information" [7 U.S.C. 2276(a)(2)]. It further provides that such information "...shall be immune from mandatory disclosure of any type including legal process.. ." [7 U.S.C. 2276(b)(2)]. This language leaves us no discretion to attempt to define some portions as exempt and others as non-exempt. As far as the statute is concerned, all portions in unaggregated form are exempt from disclosure. Based on the above, your request for all mailing addresses of New York's farmerslfarm demographics used in statistics is being denied in full. You have a right to appeal the denial of

Office of the Director, Information Staff 5601 Sunnyside Ave., Bldg. 1-2248, Beltsville, MD 20705-5128 Voice: 301-504-1640 Fax: 301-504-1647 E-mail: [email protected] An Equal Opportunity Employer

Mr. Christopher-Earl Strunk

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the requested information by writing to the Administrator, NASS, USDA, Room 41 17, South Building, 1400 Independence Avenue, SW, Washington, DC 20250-0300. That office must receive the appeal within 45 days of the date of this letter. The phrase "FOIA APPEAL" should appear on the front of the envelope containing the appeal. The cost to process your request was minimal and has been waived. If you have any questions regarding our response, please feel free to contact us at 301-504-1640. Sincerely,

Valerie Herberger Freedom of Information Act and Privacy Act Officer

Christopher-Earl : Strunk © in esse 593 Vanderbilt Avenue - #281 Brooklyn, New York 11238 September 15, 2009 Certified w/ return receipt request Joe Reilly, Associate Administrator U.S. Department of Agriculture USDA National Agricultural Statistics Service Room 5041A, South Building 1400 Independence Avenue, SW Washington DC 20250 Subject: Freedom of Information Law Request for all the Addresses of New York’s Farmer / Farm demographic used in statistics. Dear Mr. Reilly, As of right under the Freedom of Information Act with 5 USC 552, I hereby request production of electronic data and or access to the mailing addresses of all the current demographic of New York Farmers enumerated in the current statistics for the state of New York from 2007 thru the present; and furthermore all the addresses of the prior demographic of New York’s Farmers / Farms enumerated in the prior demographic and statistics from 1967 thru the present, however, dropped from the current New York statistic enumeration for whatever reason. The State of New York Department of Agriculture and Markets states that USDA National Agricultural Statistics Service have authority over those records. If there are any fees for searching for, reviewing, or copying the records, please let me know before you task my request. If you deny all or any part of this request, please cite each specific Exemption you think justifies your refusal to release the information and notify me of appeal procedures and of a waiver available under the law for immediate litigation as time is of the essence. Sincerely yours,

/s/ _____________________

Christopher-Earl : Strunk © in esse

STATE OF NEW YORK DEPARTMENT OF AGRICULTURE AND MARKETS 10B AIRLINE DRIVE ALBANY, NEW YORK 12235

September 9,2009

Mr. Christopher-Earl 593 Vanderbilt Avenue, #281 Brooklyn, NY 11238 Dear Mr. Earl: The Department of Agriculture and Markets acknowledges receipt of your recent Freedom of lnformation request mailing address of all current demographic of New York farmers enumerated in the current NYS statistics from 2007 to the present, and addresses of the prior demographic of New NY's farmerslfarms enumerated in the prior demographic statistics from 1967 to the present. Those records are not kept in this Department. They may be located at the USDA, National Agricultural Statistics Service, Joe Reilly, Associate Administrator, Room 5041A, South Building, 1400 IndependenceAvenue, SW, Washington DC 20250. If you have any further questions in this matter, do not hesitate to contact us.

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Sincerely,

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Rebecca Smith Freedom of Information Officer

Christopher-Earl : Strunk © in esse 593 Vanderbilt Avenue - #281 Brooklyn, New York 11238 August 25, 2009 Certified w/ return receipt request Patrick Hooker Commissioner of the NYS Department of Agriculture & Markets 10B Airline Drive Albany New York 12235 Attention: the F.O.I.L. Officer Subject: Freedom of Information Law Request for all the Addresses of New York’s Farmer / Farm demographic used in statistics. The F.O.I.L. Officer, As of right under the Freedom of Information Law (F.O.I.L.), I hereby request production and or access to the mailing addresses of all the current demographic of New York Farmers enumerated in the current statistics for the state of New York from 2007 thru the present; and furthermore all the addresses of the prior demographic of New York’s Farmers / Farms enumerated in the prior demographic and statistics from 1967 thru the present, however, dropped from the current New York statistic enumeration for whatever reason. If there are any fees for searching for, reviewing, or copying the records, please let me know before you task my request. If you deny all or any part of this request, please cite each specific Exemption you think justifies your refusal to release the information and notify me of appeal procedures available under the law. Sincerely yours,

/s/ _____________________

Christopher-Earl : Strunk © in esse

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