Secrecy of National Organic Program Successfully Challenged

MADISON, WI: Sometimes the dismissal of a lawsuit against the government can still be viewed as a victory for the plaintiffs. That was the case earlier this month in federal district court in Madison, Wisconsin, when Judge Barbara Crabb dismissed a lawsuit brought by The Cornucopia Institute against the USDA.

Judge Crabb found that Cornucopia’s lawsuit, requesting previously withheld documents through the Freedom of Information Act (FOIA), was “moot” because since the filing of its action the USDA’s National Organic Program turned over approximately 2500 pages, seemingly fulfilling the organic watchdog’s request.

“Our lawsuit against the USDA can be considered a victory,” said Mark Kastel, Cornucopia’s codirector. “This lawsuit was what caused the USDA to release additional public documents that have given the organic community, farmers, and consumers insight as to why the USDA has not enforced federal organic regulations that would have cracked down on a series of factory-farms, milking as many as 10,000 cows, and labeling the milk as organic.”

Organic advocates have appealed to the USDA for the past seven years to crack down on such large corporations as Dean Foods (Horizon Organic) and Aurora Organic Dairy (manufacturers of private-label milk for Wal-Mart, Costco, Trader Joe’s, Safeway, and other retailers). Cornucopia’s FOIA request and subsequent lawsuit was designed to look at who the USDA was communicating with and understand their reasoning for both ignoring the recommendations of their expert advisory panel, the National Organic Standards Board, and refusing to investigate a number of formal legal complaints against the giant industrial-scale dairies.

“Not only have we succeeded in documenting the fact that they have closed some of the investigations against these scofflaws for ‘political reasons,’ we have also forced them to disclose potential violations of the Organic Food Productions Act that heretofore they were unwilling to share with the public,” Kastel added. “None of this would likely have happened without our filing of this lawsuit.”

Seemingly in conflict with the law in the past, the USDA had refused to publicly share letters of noncompliance sent from certifying agencies to farmers or organic handlers that might be violating the federal regulations. On December 21, 2006, the Department published in the Federal Register a notice that they would now make these documents publicly available. However, the notice included the caveat that they would redact (withhold) portions of the documents to exclude the number of livestock and acreage of pasture, or other crops, on an organic operation being scrutinized.

“We continue to believe this is an abuse of power and we argued to the court that there was no legal basis to protect the quantity of livestock or size of farm as confidential business information under the FOIA law,” stated Will Fantle, research director for The Cornucopia Institute. “There is very little that can occur on an organic farm, of a proprietary nature, that would justify secrecy. These are not R&D laboratories, they are dairy farms.”

It is thought that the release of this information will set a legal precedent preventing the federal agency from withholding such information from the public in the future.

Although subsequent to the filing of The Cornucopia Institute’s lawsuit the USDA produced three separate groups of documents, the court denied the nonprofit group’s request for reimbursement of legal fees.

“Although there is some legal precedent for Judge Crabb’s decision denying reimbursement for our legal costs, we are researching whether the law was properly applied to a FOIA request,” said David G. Cox, a Columbus, Ohio, attorney whose practice includes federal organic matters. “If a federal agency can ignore a bona fide request for documents the public has a legal right to, and then only produce said documents after citizens invest thousands of dollars in legal costs, not to mention thousands of taxpayers dollars used by the government’s attorneys in defending the action, this will result in locking individuals or organizations of modest means out in terms of being able to engage in the oversight of federal officials or agencies,” Cox added.

Information secured through their FOIA request and lawsuit is now being utilized by The Cornucopia Institute in formulating further legal action against the Department. Last week the public interest group announced their intention to sue the USDA for failing to enforce provisions of the federal organic laws. The new lawsuit would ask the court to force the Agency to carry out Congress’ legislative mandate and enforce federal organic standards on large industrial dairy farms “masquerading as organic.”

“There is a long history of a sweetheart relationship between the USDA and corporate agribusiness,” stated Kastel. “They might have been able to get away with this in conventional agriculture but business as usual at the USDA is ethically unacceptable to organic farmers and consumers who expect a more principled approach to governmental oversight. Secrecy, and protecting corporate bad-actors, is unacceptable and we will continue to act as aggressive watchdogs on behalf of organic integrity.”

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