Comments of the united states on the answers of brazil to further questions from the panel to the parties following the second panel meeting
B. US Law Prohibits Disclosing Planted Acreage Information Without the Prior Consent of the Farmer
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- C. There Is No Basis to Draw Any Inference, Much Less an “Adverse Inference”
- VII. Conclusion
- List of Exhibits
- Table of Cases Cited
- 259. With respect to the Privacy Act of 1974, 5 U.S.C. 552a
- Brazil’s Comment
B. US Law Prohibits Disclosing Planted Acreage Information Without the Prior Consent of the Farmer 76. The United States has explained in its letters dated 18 December 2003, 19 December 2003, and 20 January 2004, that under US law it may not disclose planting information in which a farmer has a privacy interest. This has been consistent US Department of Agriculture policy and is not contradicted by the Washington Post district court decision referenced by Brazil (which dealt with disclosure of payment information – similarly, the United States has provided contract data on a farm-by-farm basis). The United States also explains these matters in more detail in its answer to Questions 259(a), (b), and (c). 77. Brazil’s views on how US law operates in the FOIA context are not relevant to the US Department of Agriculture’s statutory responsibility to respect the privacy interests of US farmers in the planted acreage data. However, Brazil’s discussion of Washington Post v. United States Department of Agriculture, 943 F.Supp. 31 (D.D.C. 1996), does not support Brazil’s arguments that the United States need not protect this data. 78. The US position on the privacy interests in plantings is not post hoc since, as we showed in the attachments to the US letter of 18 December 2003, the position on planted acres has been the same since at least 1997 – that is, after the Washington Post decision. Brazil neglects to mention that all that was at issue in the Washington Post case was crop payments, not farmer plantings. Hence, that case fit within the FOIA precept of disclosure of the activities of the government, which was what was of concern to the court. 943 F. Supp. at 33, 36. Plantings are quite a different matter, involving a farmer’s activities, not that of the government. Moreover, such producer-supplied information, not government-generated, has long been recognized as having special privacy concerns. See, e.g., 7 USC 1373 and 7 USC 1502. Thus, under specific provision of the 1938 Act and provisions of the Crop Insurance Act, the US government has long considered plantings separate matters not subject to disclosure. A similar outcome results from an analysis under the Privacy Act and to some degree the Trade Secrets Act. 79. Regarding the rice matter, Brazil argues that “USDA’s FOIA representatives necessarily must have determined that because the request did not focus on an individual producer’s farm, the interests of the public in understanding and evaluating the operation of the contract payment schemes outweighed any privacy interests”. However, the rice matter involved one office, and that disclosure was contrary to clearly established national policy. We have explained fully what the problem was and what FSA policy is. The concerns here are much greater than in the Hill decision, moreover, because the privacy interests of 200,000 farmers are involved. C. There Is No Basis to Draw Any Inference, Much Less an “Adverse Inference” 80. Brazil has asked the Panel to draw certain adverse inferences from the alleged failure of the United States to cooperate fully and provide requested data. As noted in the US letter of 20 January and explained above, the United States did not have the authority to provide the farm-specific planting information in the format requested by the Panel’s 12 January 2004. However, the United States did provide both farm-specific and aggregated contract data that would permit the Panel and Brazil to assess the total expenditures of decoupled payments to farms planting upland cotton.519 Brazil itself admits that “the data provided by the United States appears to be complete” with respect to both contract acres and planted acres520 – therefore, the willingness of the United States to provide information within the limits set by US law cannot be questioned. Further, the Panel on 3 February requested certain additional aggregated information, which therefore does not implicate privacy interests of farmers and which the United States is endeavouring to provide. 81. The situation here is thus very different from the one in Canada - Aircraft where the Appellate Body first opined that “a panel should be willing expressly to remind parties – during the course of dispute settlement proceedings – that a refusal to provide information requested by the panel may lead to inferences521 being drawn about the inculpatory character of the information withheld.”522 There is no basis for an “inference” of any kind, adverse or otherwise. 82. This is particularly so in this dispute as the farm-specific planted and base acreage information was sought for purposes of Brazil’s allocation methodology, which is without any textual basis in the WTO agreements. For purposes of Peace Clause, Brazil’s methodology is inapplicable because Brazil concedes that “support to a specific commodity” means “product-specific support” – and yet, Brazil’s allocation methodology would contradict the meaning of product-specific support and non-product-specific support set out in the Agreement on Agriculture. Further, Brazil’s methodology is inapplicable for purposes of its serious prejudice claims because Brazil argues that no allocation of decoupled payments or identification of subsidy benefits or the subsidized product is necessary under Part III of the Subsidies Agreement. Further, the only allocation methodology set out in the Subsidies Agreement is that of Annex IV, for which the farm-specific planted and base acreage information would be irrelevant. Thus, there is no need to draw an inference of any sort in this dispute. 83. Brazil's proposed "adverse influences" also do not follow logically from the data before the Panel. Brazil first suggests that farm-by-farm data would have resulted in payments higher than Brazil’s 14/16 methodology. However, Brazil cannot escape the fact that it has not brought forward evidence and arguments to support findings under the Annex IV methodology. 84. Second, Brazil suggests that the Annex IV methodology would have produced higher payments than Brazil’s 14/16 methodology. The United States is not in exclusive possession of relevant information with respect to an Annex IV methodology, but the incomplete data and calculations above demonstrate that in fact the Annex IV methodology would produce a far lower subsidy amount than Brazil’s 14/16 methodology. 85. Third, Brazil suggests that “the information withheld” by the United States “would have been detrimental” to US arguments that decoupled payments are non-product-specific support. As set out previously, the farm-by-farm planted acreage data that the United States could not provide under US law is simply irrelevant to the issue whether decoupled payments are “product-specific support”. Brazil appears to overreach, moreover, in suggesting that a “detrimental” inference be drawn since the Canada – Aircraft report found that the inferences to be drawn were not punitive but factual in nature. VII. Conclusion 86. Brazil has asserted that decoupled income support payments must be allocated to upland cotton only for purposes of the Peace Clause and not for purposes of its serious prejudice claims. However, Brazil’s analysis is completely backwards: the text and context of the Peace Clause demonstrate that support is not to be allocated for purposes of the Peace Clause test while the text and context of Articles 5 and 6 of the Subsidies Agreement demonstrate that subsidies not tied to production of a given product (such as decoupled income support) are to be allocated to all of the products the recipient sells for purposes of serious prejudice claims. 87. The implication of Brazil’s erroneous analysis and arguments, and in particular its express disavowal of any allocation methodology for purposes of its serious prejudice claims on decoupled income support payments, is that Brazil has failed to make a prima facie case on these claims. As a result, no findings may be made with respect to these measures, and these payments may not be included in an analysis of whether the effect of the challenged US subsidies has been serious prejudice to Brazil’s interests List of Exhibits 143 Memorandum from Larry Mitchell, USDA Farm Services Agency, to Various FSA Offices, Administrators, and Divisions on Release of Restricted Information under the Freedom of Information Act (18 September 1998) 144 USDA Farm Services Agency, Notice INFO-16: Releasing Lists of Names and Addresses in Response to Requests Under FOIA (1 December 1998) 145 Contents of 4 corrected data files submitted on 28 January 2004 146 USDA, Commodity Credit Corporation, 58 Federal Register 15755-15756 (24 March 1993). 147 Data in response to Panel Question 264(a): Exhibit US-128 on a Fiscal Year/ Cash Basis 148 Data in response to Panel Question 264(d): Claim Payments/ Recoveries/ Reschedulings on a Fiscal Year/ Cash Basis 149 United States Department of the Treasury Financial Manual I TFM 2-4600 (December 2003) 150 “Annual Review of Fees for USDA Credit Programs,” 25 March 2003 and 8 April 2002. 151 United States Office of Management and Budget Circular No. A-129 (November 2000), Table of Contents, General Information, Appendix A, Sections I and II. 152 Commodity Credit Corporation Realized Losses and Appropriations to Restore Such Losses for Fiscal Years 1992-2003 153 Summary of Principal Terms, Conditions, and Duration of Each Rescheduling Reflected in Column F of Exhibit US-128 154 Partially Corrected Calculations Allocating Decoupled Payments for Upland Cotton Base Acres to Upland Cotton Using Incomplete Annex IV Methodology ANNEX I-20 BRAZIL'S COMMENTS ON UNITED STATES 11 FEBRUARY 2004 ANSWERS TO ADDITIONAL QUESTIONS FROM THE PANEL FOLLOWING THE SECOND MEETING OF THE PANEL WITH THE PARTIES 18 February 2004 Table of Cases Cited
List of Exhibits
259. With respect to the Privacy Act of 1974, 5 U.S.C. 552a: (a) Whose interests are protected under section 552a(b) in light of the definition of "individual" in section 552a(a)(2)? Do all payment recipients, including corporations and organizations, have Privacy Act rights? If not, is the United States prevented by its domestic law from releasing such of the information requested on 12 January 2004 as relates to payment recipients without Privacy Act rights? Please explain with references to case law. Brazil’s Comment: 1. In its 11 February 2004 response, the United States repeats its assertion that (many of) US upland cotton farms’ planting reports are protected by the US Privacy Act and cannot be produced to the Panel and Brazil, even under confidentiality arrangements.523 As explained below, the United States is wrong. But more fundamentally, as the United States has argued before other WTO panels, a WTO Member’s domestic laws do not provide a basis for not complying with its obligation to cooperate in a WTO dispute settlement proceeding and to provide, if requested by a panel under DSU Article 13, any information – if necessary using special confidentiality procedures.524 In sum, as Brazil established in its 28 January 2004 Comments and Requests Regarding US Data, there is no basis for the United States, citing confidentiality concerns, to withhold data from the Panel.525 2. The US 11 February 2004 response to this question confuses two fundamental questions. First, are there any Privacy Act rights of US upland cotton farms that would cover information about planted acreage that is gathered by the US government via mandatory or voluntary planting reports? And second, do these privacy rights prevail under the US Freedom of Information Act (“FIOA”)) over the interest of the public in understanding the operations or activities of the US government. While the United States partly (yet falsely) addresses the first question, it ignores the second question. 3. The starting point for addressing these issues is the relationship of the Privacy Act and the FOIA. The Privacy Act, codified as 5 U.S.C. § 552a526, protects “records maintained on individuals” by the US government, and prevents disclosure “to any person, or to another agency”, with certain exceptions.527 One of the exceptions listed reads: “unless disclosure would be … (2) required under section 552 of this title”.528 5 U.S.C. § 552 is the place where the FOIA is codified. It follows that the prohibition of disclosure of information on individuals provided for by the Privacy Act is subject to the requirements of the FOIA. 4. Returning to the first step, the United States admits that corporations are not covered by the Privacy Act.529 This is confirmed by the case law cited by the United States (Dresser Industries v United States).530 Yet, neither this case law, nor any other reference provided by United States, supports the United States’ distinction between “normal” corporations and “closely held corporations.”531 Even if “closely held corporations” were covered by the Privacy Act – an assertion for which the United States does not offer any proof – they would have the same status as private individuals, which are discussed below in Brazil’s comment on the US 11 February 2004 response to Question 259(b). 5. The United States further refers to the District of Columbia Court of Appeals decision in Center for Auto Safety v National Highway Traffic Safety Administration532 for the proposition that information voluntarily submitted to the US government by corporations may not be released if that information would not customarily be released by the corporation to the public.533 However, the United States misquotes this decision. In fact, the decision states that the information was exempt from disclosure because the information was voluntarily submitted and constituted confidential commercial information that was not customarily disclosed. The … information at issue had been disclosed in the past only when necessary, and always with a confidentiality agreement or protective order.534 Thus, the restriction only applies to confidential commercial information. While the United States asserts that “[t]his is the case with respect to plantings”, the United States provides no evidence for this assertion.535 The United States’ assertion is simply wrong. 6. Planting information is always in the public domain – anyone can look at a field to determine to what crop it is planted. Most US farmland is connected by paved roads and is easily accessible to the public. Further, the Aerial Photography Field Office of USDA’s Farm Services Agency exists to provide detailed aerial photographs of cropland.536 The Office maintains aerial photographs of every square kilometre of cropland in the United States and updates the photographs on a regular basis.537 Any person can order any aerial photograph by including a legal description of the area of interest in township, range, and section number or latitude and longitude coordinates.538 The Aerial Photography Field Office indicated that scaled enlargements of photographs are made using specialized rectifying enlargers which maintains an accuracy greater than 99 per cent for most cropland in the United States.539 The final rectified aerial photograph is, in effect, a photographic map accurately representing ground features. In fact, USDA’s local FSA offices use the aerial photographs in verifying planting reports (FSA-578 forms) required under various US farm programmes.540 No Privacy Act warnings are shown on the order form or on the web-site where these photographs can be purchased. 7. By its very nature, planting information cannot be confidential commercial information that could always be protected by confidentiality arrangements. In that sense, planting information is very different from technical information about airbags used in cars, which was at issue in Center for Auto Safety v National Highway Traffic Safety Administration.541 8. This conclusion is supported by another appellate court decision in CNA Financial Corporation v Donovan, also cited by the United States.542 Referring to the Trade Secrets Act, the court defined the scope of the exception in 5 U.S.C. § 552(b)(4) as only prohibiting the disclosure of commercial or financial information if disclosure “is likely to … cause substantial harm to the competitive position of the person from whom the information was obtained”, requiring “both a showing of actual competition and a likelihood of substantial competitive harm”.543 The United States has made no such showing with respect to planting information on upland cotton farms. Furthermore, the court held that “[t]o the extent that any data requested under FOIA is in the public domain, a submitter is unable to make any claim of confidentiality – a sine qua non of [5 U.S.C. § 552(b)(4)]”.544 None of the information requested by the Panel poses a significant threat to “cause substantial harm to the competitive position of the person from whom the information was obtained”, in particular because, as demonstrated above, the information is, in fact, by its very nature not information that can remain confidential, but is in the public domain, and, indeed, offered for sale by USDA.545 It follows that (non-closely held) upland cotton farms cannot invoke the Trade Secrets Act to prevent disclosure of planting information. 9. Since the United States characterizes information submitted to the US Government under mandatory terms to be releasable (i.e., MY 2002 planting information),546 and MY 1999-2001 planting information is not protected under the above rebutted US theory, there is nothing in the Privacy Act that would prevent the United States from producing farm-specific planting information for corporate farms using farm serial numbers or “dummy” numbers. At best, there is some ambiguity in the US law that should be resolved by the United States in favour of releasing the information, as required by its obligations under the DSU. 10. Second, even for the “individuals” covered by the protection of the Privacy Act, there is no legal basis to preclude the release of planting information. As noted above, the protection of the Privacy Act is conditional on the FOIA disclosure rules, which necessitate a weighing process between the privacy interest of the group of individuals and the public interest in the operations of the US Government. Under the applicable case law, this weighing process would be resolved in favour of disclosing the information, as discussed in Brazil’s comment on the US 11 February 2004 response to Question 259(b), below. 11. In sum, none of the US Privacy Act arguments holds up to scrutiny. And none is relevant in the first place, since the United States is under an obligation to provide – possibly subject to special confidentiality procedures – information requested by the Panel under DSU Article 13, even if that information is confidential. (b) The Panel notes that data concerning the four relevant programmes, in particular, payment amounts, identified by specific farms, is freely available on the internet. Please explain why that data can be disclosed but the requested planted acreage data cannot. Do individual recipients have Privacy Act rights with respect to their entrepreneurial activity? Please explain with references to case law. Brazil’s Comment: 12. In its 11 February 2004 response, the United States asserts that “[i]nformation concerning planted acreage does not demonstrate anything regarding the government’s operation – it only demonstrates what a producer is doing”.547 Brazil strongly disagrees. Information about plantings of farms receiving contract payments provides important information about the extent to which the US contract payments provide support to specific commodities. US taxpayers, as in the Washington Post case, have a strong public interest in knowing how their tax dollars are being spent. In particular, such information would shed light on the question of how much upland cotton is planted on upland cotton base acreage – information that is important for the US public to assess whether the United States is in compliance with its obligations under the Agreement on Agriculture. As the aggregate information provided by the United States suggests, in MY 2002, 96 per cent of US upland cotton plantings took place on upland cotton base.548 13. If follows that the US citation to a US Supreme Court decision in paragraph 7 of the US 11 February 2004 response misses the point. Since planting information is a vital component for assessing the “the government’s operation”, it has to be part of the balance between “the privacy interest of the individual with the ‘core purpose’ of FOIA”.549 And the US district court decision in Washington Post v. United States Department of Agriculture confirms that in cases, where “the information is so generic that the impact on privacy interests are so small”550, the information has to be disclosed. This interpretation is, in fact, confirmed, rather then contradicted, by the US Supreme Court Decision in United States Department of Justice v Reporters Committee For Freedom of the Press (“Reporters Committee”).551 14. The Reporters Committee decision concerns an individual person’s FBI “rap sheet” that was requested under the FOIA. The Supreme Court rejected this request as outside the purpose of the FOIA, since it did not “contribut[e] significantly to the understanding of the operation or activities of the government” (emphasis in original).552 By contrast, planting information of farms clearly contributes to the understanding of the operation of the US contract payments programmes. Providing this information would, thus, not only enhance the Panel’s ability to make an objective assessment of the matter before it, but would also conform to “the basic purpose of the [FOIA,] to open agency action to the light of public scrutiny”.553 15. The US Supreme Court decision in Reporters Committee states that “Congress exempted nine categories of documents from the FOIA’s broad disclosure requirements”.554 These exemptions are codified at 5 U.S.C. § 552(b).555 In this case, disclosure of the information is neither prevented by other laws (5 U.S.C. § 552(b)(3)), i.e., the Trade Secrets Act (because the information does not constitute trade secrets as defined by US courts556), or the Privacy Act (which applies subject to the FOIA Act), nor by the separate exemption (5 U.S.C. § 552(b)(4) for trade secrets and commercial or financial information). Once again, since planting information could be collected from the public domain – or rather observed by any member of the public or, indeed, purchased from USDA – it cannot be deemed confidential. In fact, as the appeals court in CNA Financial Corporation v Donovan held, “[t]o the extent that any data requested under FOIA is in the public domain, a submitter is unable to make any claim of confidentiality – a sine qua non of [5 U.S.C. § 552(b)(4)]”.557 16. Moreover, 5 U.S.C. § 552(b)(7)(C) exempts information “compiled for law enforcement purposes, but only to the extent that the production of such … information would … (C) … constitute an unwarranted invasion of personal privacy.”558 While acreage reports are partly mandatory to enforce the requirements of various US domestic support programmes559, disclosure of planting information does not constitute an unwarranted invasion of personal privacy. In fact, the information could be gathered by simply checking the fields of a farm or by purchasing aerial photographs from the Aerial Photography Field Office of USDA’s Farm Services Agency, as discussed above.560 It is not difficult to determine the type of crop or the amount of acreage being planted to that crop from using high resolution colour aerial photographs. If a farmer growing crops can purchase from USDA high resolution and detailed aerial photographs of his next-door neighbour’s farm to calculate that information, how can it be that this same farmer can claim a Privacy Act violation for his own planted acreage data? This evidence provides the common sense answer to the question whether acreage reports are, in fact, subject to the Privacy Act. 17. Thus, from the perspective of its “public domain” character, acreage information is even less confidential than payment information, which the district court in Washington Post decided must be released under FOIA.561 Since acreage information sheds light on the performance of USDA and its adherence to the WTO obligations of the United States, any weighing of the limited privacy interests in planting information and the interest of the public in evaluating the work of USDA must be resolved in favour of the latter. 18. Finally, with respect to the “split of authority in US courts as to whether individuals have Privacy Rights with respect to their entrepreneurial activities”562, it is clear that even if a privacy interest protected under the Privacy Act should exist with respect to the entrepreneurial activity in question, the FOIA takes precedence over that interest, as explained in Brazil’s comment to the US 11 February 2004 response to Question 259(a), and in the Washington Post and Reporters Committee precedent. Concerning planted acreage information at issue between the parties, it is clear that the public interest in USDA’s performance, including USDA adherence to the US obligations under the WTO Agreement, takes precedence over the privacy interests of US farmers in information that is potentially always in the public domain. Even assuming, arguendo, that there were some ambiguity in the meaning of the US domestic law applicable to the question of confidentiality and the release of planted acreage information, the United States should resolve the ambiguity in favour of releasing the information, as required by its obligations under the DSU. Directory: english -> tratop e -> dispu e dispu e -> Annex g list of exhibits submitted by the parties dispu e -> World Trade Organization dispu e -> World Trade Organization Download 2.58 Mb. Share with your friends:
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