No one wants anyone, least of all the government, poking around in their business. That's one reason even producers who support the National Animal Identification System (NAIS) are rightly concerned about data confidentiality.

It boils down to wondering how safe producer-submitted data is from prying public eyes when it's part of a federal database.

Though there's nothing ironclad where interpretation of the law is concerned, Elizabeth Springsteen, staff attorney with the National Agricultural Law Center, says producers face similar confidentiality protection with and without NAIS.

What's exempt?

The Freedom of Information Act (FOIA) is often the primary producer concern. “FOIA gives the public access to federal agency records, simply by asking for them,” Springsteen says. There are a number of FOIA exemptions, though, including one pertaining to information exempted by other statues.

Springsteen explains that the 2008 Farm Bill included statute 7 U.S.C.§8791 that says, “any officer or employee of the Department of Agriculture… shall not disclose… information provided by an agricultural producer or owner of agricultural land concerning the agricultural operation, farming or conservation practices, or the land itself….”

This law was tested earlier this year when USDA was sued for refusing to provide NAIS data requested through FOIA. Based on the aforementioned statute, the court agreed that USDA was legally correct to deny the request.

There are even exemptions to this exemption, but Springsteen says, “This statute goes a long way to protecting producer confidentiality.” At least it does on a federal level. Springsteen points out states have their own FOIA laws.

As it is currently constructed, the National Premises Information Repository houses information about premises registration. The related federal Animal Identification Numbering Management System tracks which NAIS numbers have been issued to which registered premises.

Animal movement data, on the other hand, exists in state and private databases. This data isn't subject to federal FOIA law, but may be subject to the FOIA laws of individual states.

Moreover, Springsteen says virtually all public and private information is open to court subpoena power.

“In the course of litigation, courts have subpoena power to obtain information necessary to resolve the case that's being heard,” she says. “Information exempted under FOIA is not automatically immune from subpoena. Instead, the information might be obtained through the discovery process if the court finds that the party's need for information exceeds the government's need for confidentiality.”

As might be imagined, different judges will view government need for confidentiality differently. So far, Springsteen says no cases have addressed this in the context of NAIS.

Liability theories

Though participation in NAIS doesn't increase producer liability directly, Springsteen believes producers should be more concerned about it than confidentiality.

Everyone producing anything is liable for what they churn out. Generally speaking that means cattle producers are legally liable for the cattle they produce. If somebody can prove a calf you produced caused them harm, you're liable with or without NAIS.

Springsteen says there are three possible theories of liability that could be applied to cattle coming from producers:

  • Warranties that are stated expressly or implied. Though it's possible for this to lead to producer liability, Springsteen explains, “Warranties are only given by merchants, and courts in the past haven't always found producers to be merchants.” Plus, she says 16 states have exceptions to prevent liability from attaching to livestock producers.

  • Strict liability, which is liability imposed when someone introduces into commerce a defective product that is unreasonably dangerous. Here again, it's possible for producers to be found liable with this theory. But, Springsteen says, “for it to happen, animals must be defined as unreasonably dangerous products. The majority of courts say animals can't be classified as products because of their constantly changing nature. However, a couple of courts have found that animals (household pets, specifically) are products.”

  • Negligence, which is the failure to exercise reasonable care — in other words, what a reasonably prudent person would do in the same or similar circumstances. This is the theory Springsteen says likely poses the most liability risk to livestock producers.

“If a plaintiff can prove that a producer failed to use reasonable care and that failure led to the plaintiff's injury, the producer can be held responsible under a theory of negligence,” Springsteen explains. She adds, though, that negligence can be reduced or eliminated through documentation of best management practices.

“Livestock producers are currently liable for the livestock they produce. They will continue to be held to the same standard,” Springsteen says. “However, NAIS helps identify producers in the chain of custody for particular animals. This identification increases the accountability for producers that might be anonymous otherwise. This makes it easier to determine who mismanaged the animal and can lead to increased liability exposure.”

Of course, for NAIS to increase liability exposure, NAIS data must be released to begin with. That leads back to Springsteen's discussion about the confidentiality of NAIS data.

Does NAIS change anything?

Springsteen offers this example, not as a likely scenario, but one in which participation in NAIS could face increased exposure to liability.

Suppose a consumer ate a steak contaminated with E. coli O157:H7, got sick and sued the beef processor. Next, imagine that the processor seeks to reduce liability by bringing the producer into the suit. To do so, suppose the processor seeks to subpoena NAIS records at the federal and state levels. Assume the court agrees to subpoena the records. As a result, the producer can be identified and drawn into the suit.

Yes, the above is fraught with assumptions. For one thing, the processor would have to be able to accurately track the cut in question to a specific carcass. In turn, the processor would have to identify the source of the carcass, which is currently more than possible without NAIS. Then the processor would have to prove the animal producing the carcass was the source of contamination, rather than anything that happened between the time the animal left the producer's custody and landed on the consumer's supper plate.

Common sense suggests that unless the producer was beyond negligent, it would be tough to prove him liable. Unfortunately, lots of time, court costs and heartache could be expended on the way to that conclusion.

All of that's true, though, with or without NAIS.