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Farmers and ranchers get their privacy back

Privacy was the winner in a Court of Appeals case a few days ago in the 8th U.S. Circuit with a unanimous ruling against the U.S. Environmental Protection Agency.

intersection of public private illustrationA three-judge panel ruled against EPA’s practice of collecting private information from farmers and ranchers and then turning it over to environmental activists and others who request it through the Freedom of Information Act (FOIA).

Personal and medical information typically is not subject to FOIA release under the act’s Exemption 6, but EPA was not letting the privacy protection stand in its way. The American Farm Bureau Federation and the National Pork Products Council sought injunctive relief in U.S. District Court in Minneapolis, but were denied standing.

That judgement was reversed on Sept. 9 when the 8th Circuit Court of Appeals returned the case to the district court to enforce its orders. Defendants in the case are EPA and Gina McCarthy, its administrator.

In the appeal ruling, 8th U.S. Circuit Judges James B. Loken, Diana F. Murphy, and Steven Colleton sided with the national farm groups. The three-judge panel found the unlawful release of personal information sufficient for the “concrete and particularized injury” to have standing.

“We therefore conclude the district court erred in dismissing this case for lack of standing. We further determine that the EPA abused its discretion in deciding that the information at issue was not exempt from mandatory disclosure under Exemption 6 of FOIA,” the ruling says.

The case “is a big win for privacy in the internet world for all citizens,” said Farm Bureau’s Danielle Quist in a news release. Quest, senior counsel for public policy, said people have a “substantial private interest” in their personal information, “even when it can be found here and there on the internet.”

How it all started
EPA collects information on farmers and ranchers under the Clean Water Act, which provides for granting permits for concentrated animal feeding operations, or CAFOs. The application process is available to the public.

In 2008, the Government Accountability Office issued a report saying the state-federal CAFO system was resulting in inconsistent and inaccurate information. It recommended EPA compile a single national registry.

cattle-feedlot-406The same year, environmental groups sought judicial review of the National Pollution Discharge Elimination System (NPDES) permit, and EPA agreed to a settlement that promised it would require CAFO operators to report certain information to the agency and make it public.

Under a 2011 rule, that information would include location, acreage under control of the CAFO, type and number of animals, and contact information. Farmers and ranchers mounted an opposition and the rule was withdrawn in 2012. EPA’s next move was to enter into an agreement with the Association of Clean Water Administrators to share information on a state-by-state basis.

EPA was able to collect information on farmers and ranchers in 35 states through the agreement. By September 2012, environmental activists were filing FOIA requests for the “the legal name of the owner of the CAFO … their mailing address, email address, and primary telephone number” and “the location of the CAFO’s production area, identified by latitude and longitude and street address.”

EPA released information it had collected in 29 states in the form of Excel spreadsheets but without redacting any personal information. EPA claimed it was under no legal obligation to do so.

EPA argued that the information the agency disclosed is available through the states. EPA was not required to disclose “personal and medical and similar files” if such disclosure “would constitute a clearly unwarranted invasion of personal privacy.”

The court found EPA was releasing personal information after receiving specific objections from farmers and ranchers. The three-judge panel said “substantial privacy interests” are involved. It found EPA’s disregard of the farmers’ and ranchers’ preferences is contrary to law.

“An individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because the information may be available to the public in some form,” the ruling states.

“The agency has aggregated vast collections of data from the majority of states — much of it obtained through state-specific information requests — and provided it to requesters in a single response.”

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