While much has been made of ensuring that data collected under a National Animal Identification System (NAIS) is immune from Freedom of Information Act (FOIA) access, an exclusive BEEF reader survey indicates the issue isn't the most top of mind for beef producers.

A mid-October survey of 16,223 readers found 21.2% consider data confidentiality their biggest single concern with NAIS. More concerning was the cost and labor requirements of NAIS for producers (48.3%). Coming in third was the potential for producer liability under NAIS.

FOIA, which became law in 1967, allows any person to request access to federal agency records. It applies only to the executive branch of federal government, exempting Congress, courts, local agencies and private organizations. In addition, all states have laws granting forced disclosure by state agencies and local governments.

That FOIA only applies to federal-agency records has been the rallying cry of those who support a private database for NAIS. While privately held data would be FOIA-exempt, any data accessed by government for any reason would presumably be open to FOIA, however.

But is that a big deal? Some in the industry say “no” because the only data NAIS would collect would be premises and individual animal ID numbers, as well as movement data. And, says attorney Kaleb Hennigh of Fayetteville, AR, many states have moved to enact statutes to protect NAIS data.

“It's not uncommon for Congress to enact legislation to expressly prohibit FOIA access,” Hennigh, a Henry Law Firm agriculture law specialist, says. As an example, he points to the FOIA-exempt status of data collected in relation to the Livestock Mandatory Price Reporting Act.

In fact, USDA and the National Cattlemen's Beef Association have language put together for such a purpose though a sponsor hasn't yet been named.

Hennigh is more concerned, however, about producers' liability exposure in the event a food-safety situation. While NAIS wouldn't allow for farm-source traceback of E. coli-contaminated beef, for instance, because NAIS data collection ends at harvest, Hennigh believes FOIA-accessed data might conceivably be used in tandem with source-verification programs retailers are commonly requiring of their suppliers.

“Animal-industry participants must proactively take steps to limit risks associated with such food-safety lawsuits due to transparency within the chain of production,” Hennigh says.

He suggests producers begin taking steps now to prepare their businesses for any potential legal and liability risks that may become a part of well-intentioned animal traceability programs.

“Producers can establish their innocence by providing evidence that reasonable production techniques ensured a healthy animal left the premises and later negligence by another producer caused the problem,” Hennigh says.