Freedom of Information Act Exemption Does Not Allow EPA to Release Aggregated CAFO Information
This post is not legal advice
In 2015, I wrote on a decision from the U.S. District Court of Minnesota claiming that American Farm Bureau Federation (AFBF) and the National Pork Producers Council (NPPC) did not have “standing.” The ag groups were trying to stop the Environmental Protection Agency (EPA) from releasing certain information (to read that earlier post, click here). Recently, on appeal, the Eighth Circuit U.S. Court of Appeals reversed this decision finding the groups did have standing and information released by EPA was exempt from the Freedom of Information Act (FOIA).
The EPA has been working to develop a national concentrated animal feeding operations (CAFO) inventory. EPA has tried various routes to collect this information, but currently, the inventory uses several sources. Twenty-seven states provide information to EPA on publically available information; two states referred EPA to federal databases, and EPA gathered data from eight states’ publically available websites. As EPA was gathering this data, environmental groups submitted FOIA requests for the information on CAFOs. NPPC and AFBF raised concerns the release of the information might raise privacy concerns under FOIA. EPA determined that since the data was publically available, it did not implicate privacy and released the data.
AFBF and NPPC filed an action in federal court to prevent further releases of personal information. The federal district court dismissed for lack of standing. To read more about this district court decision and what standing is, click here.
Courts often require the parties to meet three requirements to find standing:
- The party has an injury-in-fact — the party has suffered or will imminently suffer an injury to a legally protected interest. The injury cannot be hypothetical or abstract.
- The causation relationship between the injury and the defendant’s action.
- It must be likely that the injury can be solved by a favorable decision and not merely speculative.
According to the Eighth Circuit, AFBF and NPPC had experienced an injury-in-fact with a nonconsensual dissemination of personal information. Requirements two and three are met because the injury was caused by EPA’s release and can be redressed by EPA not providing future disclosures and recalling the information previously released. The Eighth Circuit reverses the lower court decision that the groups did not have standing.
The Eighth Circuit continued its analysis looking at the claim that the release of information was an unwarranted invasion of privacy. FOIA contains nine exemptions; one exemption is Exemption 6 that prevents the disclosures of personnel, medical, or similar files. All parties agreed the data released was “similar files.” The other part of Exemption 6 required the disclosure to involve a “substantial” privacy interest and the agency to balance the privacy interest of the individual against the public interest.
According to the Eighth Circuit, the disclosure did involve a substantial privacy interest. The disclosure was substantial because it allowed CAFO owners and families to be harassed by the FOIA requestors potentially. The evidence showed that one environmental group members were already monitoring CAFO, and members of the environmental groups had contacted one CAFO owner.
One potential problem was the fact that the information was publically available. EPA had concluded there was no privacy issue because the information was publically available through other sources. Being publically available did not prevent the information from being exempt under FOIA, according to the Eighth Circuit. The court points out if the data was so readily available already then the environmental groups and agricultural groups would not have engaged in an expensive legal battle over its release. The Eighth Circuit concluded that AFBF and NPPC did have a substantial privacy interest.
The court, when looking at the balance of public disclosure versus the privacy interest, found that EPA’s analysis is not correct. EPA argued that disclosing the information demonstrated the agency’s attempts to implement the Clean Water Act. The Eighth Circuit points out EPA could show this by not disclosing personal information. EPA could highlight efforts to collect this data and did not need to release additional personal information (such as addresses, GPS coordinates of farms, emails, etc.). To the court, this closure did little to further the public interest.
Access to CAFO data is a hot topic across the country. Environmental groups see it as important to helping them monitor the implementation of the Clean Water Act. While ag groups and CAFO operators see access to this data as a way to potentially harass operators and their families since many operators home addresses are the same as the facility address.
Based on this ruling, although this information was freely available on some states’ websites, this does not mean it loses protection under the privacy exemption to FOIA. According to the Eighth Circuit, EPA has created a repository of data that makes it much easier for groups to collect data on CAFOs from one source. The court highlights this by pointing out that the environmental groups had engaged in a long and expensive legal battle to secure the information through FOIA.
Currently, this ruling will only apply to the Eighth Circuit region (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) and other circuits may follow it or may not. We will have to see if, with future cases, other circuits follow the Eighth Circuit’s reasoning.
Am. Farm Bureau Fed. v. U.S. Envtl. Prot. Agency, 2016 WL 4709117 (9th Cir. 2016).